ASD demand became invalid because breath sample could not be obtained promptly

Criminal Law – Charter of Rights and Freedoms – Arrest or detention

Police officers stopped accused after he drove away in vehicle which officers had determined was registered to person who had outstanding arrest warrant in Alberta. While speaking with accused, officer observed strong odour of alcohol and observed other indicia of impairment. Officer made approved screening device (“ASD”) demand, but did not have ASD at scene and it took approximately 28 minutes for one to arrive. Accused was cautioned when officers learned ASD could not be delivered immediately, but was not advised of right to counsel until after he failed ASD test. At police station, accused provided two breath samples, both of which resulted in readings in excess of 80 milligrams of alcohol in 100 millilitres of blood. Trial judge convicted accused of driving with excess blood alcohol. Accused appealed. Appeal allowed; Accused acquitted. Although accused raised issue of breach of his right to counsel for first time on appeal, it was appropriate to exercise discretion to permit issue to be argued as there was no substantial prejudice to Crown, record was complete, there was no tactical reason for defence to have foregone arguing issue, Crown did not oppose accused raising issue and issue raised important context, was complimentary to other issues raised by accused and had merit. ASD demand became invalid because breath sample could not be obtained promptly. As breath demand was invalid, justification for holding accused’s right to counsel in abeyance evaporated. Right to counsel was violated as it was not given immediately. Officer should have advised accused of his right to counsel when it became apparent test could not be administered promptly and invited him to use his cell phone to contact counsel. Right to counsel for warrant detention should have been given immediately and not providing it constituted violation of accused’s right to counsel.

R. v. MacMillan (2019), 2019 CarswellOnt 9417, 2019 ONSC 3560, D.E. Harris J. (Ont. S.C.J.); reversed (2018), 2018 CarswellOnt 8862, 2018 ONCJ 384, G. Paul Renwick J. (Ont. C.J.).

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