Timing of Approved Screening Device (ASD) Demand
Where an officer has a reasonable grounds to suspect that a person has alcohol in their body, and that the person has within the preceding 3 hours operated a conveyance, the officer may require the person to immediately provide samples of breath for analysis by an Approved Screening Device (ASD).
Approved Screening Device vs Approved Instrument
The Criminal Code of Canada provides the following direction with respect to a peace officer's discretionary authority to investigate the presence of alcohol or drug in a driver.
Testing for presence of alcohol or drug
320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:
(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;
(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose; […]
In R. v. Quansah, 2012 ONCA 123 at para. 46, the Ontario Court of Appeal held that under the statutory scheme governing ASD demands “[t]he immediacy requirement … commences at the stage of reasonable suspicion”.
The following passage from Quansah summarizes the analysis for determining whether an ASD is administered “forthwith”:
45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
47 Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).
48 Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.
An appellant, Eva Kubacsek, was pulled over by the York Regional Police on a Sunday morning in January 2017, shortly after 11:00 a.m. The investigating officer, who had followed Ms. Kubacsek from a liquor store and already suspected she had been drinking that morning, immediately smelled alcohol on her breath. However, the officer did not make an approved screening device demand until 13 minutes later, after he confirmed that an ASD was available and could be brought to the roadside in the next ten minutes.
The officer then let Ms. Kubacsek try to call duty counsel on her cell phone, but she was unable to speak to counsel before the ASD arrived at the scene. She provided an ASD breath sample and blew a “fail” 22 minutes after the officer had first smelled alcohol on her breath. The statutory “forthwith” requirement was not met that Ms. Kubacsek’s ss. 8, 9 and 10(b) Charter rights were all infringed.
The Kuznetsoff case occurred after parliament’s changes to the Criminal Code of Canada impaired driving provisions in December 2018. The court in this post-amendment case adopted the following principles:
[7] Section 320.27 does not include direction as to the timing of the demand itself. Courts have held that it is implicit in the roadside testing regime that the officer must make a prompt demand – Woods at para 44, R v Quansah, 2012 ONCA 123 at para 26. Officers must complete the test process with dispatch, keeping in mind that the accused is detained for that purpose without access to counsel.The procedure and reasoning for the ASD demand is explained in R v Mohammed 2022 ONCJ 280 (CanLII) :
[8] Courts have not required that an officer utter the ASD demand at the instant the officer forms a reasonable suspicion, but if there is any delay in the demand it must be “no more than is reasonably necessary to enable the officer to discharge his or her duty” – Quansah at paras 47 – 48.
[23] Section 320.27(1)(b) of the Code provides:Adel Afzal
If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:
(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose (my emphasis)
[24] PC Westcott made an ASD demand under s.320.27(1)(b) of the Code which eventually resulted in a warrantless seizure of Mr. Mohammed’s breath sample. As a result, the Crown bears the onus on a balance of probabilities to prove the search and seizure was lawful and complied with s.8 of the Charter: R. v. Haas, 2005 CanLII 26440 (ON CA), 76 O.R. (3d) 737 (Ont. C.A.) at paras. 24-26 leave to appeal refused: [2005] S.C.C.A. No. 423.
[…]
[26] In Woods, Justice Fish explained that the forthwith (or immediacy) requirement addresses issues of unreasonable search and seizure, arbitrary detention and the right to counsel: at para. 29. Accordingly, a forthwith or immediacy complaint can be framed as a free-standing Charter violation or a violation of all three rights under ss.8, 9 or 10(b) depending on the facts of the case. Courts have cautioned not to conflate the arguments as they may turn on different facts. In other words, a violation on one ground does not mean a violation on others. See for example R. v. Yamka, [2011] O.J. No. 283 (Ont. Sup. Ct.).
[27] The immediacy obligation on police officers is triggered at the stage of reasonable suspicion. It is not sooner in the investigation, for example, when a motorist is detained: R. v. MacMillan, 2013 ONCA 109 (CanLII), [2013] O.J. No. 727 at paras. 25-35; R. v. Stelmach, [2016] O.J. No. 7240 (Ont. Prov. Ct.) at para. 34. On the ss.8 and 9 issues, the issue to be determined is when PC Westcott developed reasonable suspicion to make the ASD demand which is a fact-finding exercise. If I find that PC Westcott acquired reasonable suspicion but delayed the ASD demand for some other purpose, then there may be a ss.8 and 9 Charter violation because Mr. Mohammed would have been arbitrarily detained which would not be justified under the Charter.
Barrister and Solicitor
September 18, 2024
