R v Ball, 2023 ABKB 76

Court of King’s Bench of Alberta Citation: R v Ball, 2023 ABKB 76 Date: 20230210 Docket: 191575687S1 Registry: Wetaskiwin Between: His Majesty the King Crown - and - Sharon Anne Ball Accused Corrected judgment: A corrigendum was issued on February 13, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Justice N. Whitling _______________________________________________________

Appeal from the Decision by The Honourable Judge W.A. Andreassen Conviction entered on the 16 th day of February, 2021 (Oral Decision, Docket: 191575687P1) Introduction and Overview [ 1 ] The Appellant, Sharon Ball, appeals her conviction for operating a conveyance with a blood alcohol concentration exceeding 80 mg of alcohol in 100 mL of blood. The conviction was entered on February 16, 2021, by the Honourable Judge Andreassen of the Provincial Court of Alberta, sitting in Wetaskiwin. [ 2 ] This appeal turns upon the proper

interpretation of s. 320.27(2) of the Criminal Code . The Appellant argues that that provision, properly interpreted, only authorizes a Mandatory Alcohol Screening (“MAS”) demand to be made by a peace officer immediately upon the detention of the driver, such that a demand made even 3 to 4 minutes later may be unlawful, and contrary to s. 8 of the Canadian Charter of Rights and Freedoms .

In response, the Crown argues that the trial judge was correct in finding that no such obligation is created by s. 320.27(2) , and that no violation of the Appellant’s s. 8 rights occurred. [ 3 ] I find that the learned trial judge was correct in concluding that the MAS demand which led to the seizure of the Appellant’s blood was made in accordance with s. 320.27(2) .

Although there does exist an obligation on the part of a peace officer to act promptly when making a MAS demand pursuant to that provision, the 3 to 4 minute delay that occurred in the present case did not render the total period of delay unreasonable. [ 4 ] The appeal is therefore dismissed. Facts [ 5 ] The Appellant was the subject of a traffic stop on December 9, 2019. The basis for the stop was that her license plate was partially obscured by snow. [ 6 ] Upon being stopped, an exchange of approximately 3 to 4 minutes occurred between the Appellant and the peace officer, Cst. Sawyer.

During this exchange, the following things occurred. The Appellant produced her driver’s license and vehicle documents. Cst. Sawyer compared the photograph on the license with the Appellant. Cst. Sawyer informed the Appellant of the reason for the stop. Cst.

Sawyer asked the Appellant if she had had anything to drink, and the Appellant answered that she had not. [ 7 ] After this brief exchange, Cst Sawyer advised the Appellant that he was conducting a MAS demand, and he explained the Approved Screening Device or “ASD” procedure. [ 8 ] In the context of a s. 8 voir dire , the Appellant argued before the trial judge that since Cst. Sawyer delayed making the MAS demand for some 3 to 4 minutes, the demand was not made in compliance with s. 320.27(2) of the Criminal Code .

She argued further that since that provision was not complied with, the seizure of her breath was not authorized by law and violated s. 8 of the Charter . [ 9 ] Significantly, the Appellant did not argue at trial, and does not argue now, that the overall period of delay from the time of the detention to the taking of the sample was unreasonable.

Rather, her argument focuses upon the period of delay between the initial detention and the MAS demand. [ 10 ] In dismissing the Appellant’s Charter application, the trial judge relied upon case law which governed the old s. 254(2) of the Criminal Code , which held that that provision did not impose an obligation upon a detaining peace officer to make a breath demand instantaneously upon the detention. He then concluded that nothing in the language of s. 320.27(2) signals an intention by Parliament to depart from that earlier position. Further, applying first principles of statutory

interpretation, he concluded that there is nothing in the language of s. 320.27(2) which signals the existence of any such requirement. [ 11 ] In the alternative, the trial judge found that any violation of the Appellant’s s. 8 rights would not justify the exclusion of the resulting evidence pursuant to s. 24(2) of the Charter . Standard of Review [ 12 ] Since the Appellant’s first ground of appeal turns upon a pure question of statutory

interpretation, I conclude that the applicable standard of review is correctness. Analysis [ 13 ] The Appellant’s arguments in this appeal turn upon the language of s. 320.27(2) which reads:

320.27(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under

an Act of Parliament or

an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle 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 that device and to accompany the peace officer for that purpose. [ 14 ] The above provision came into force in 2018. Its primary innovation was the removal of any requirement that the peace officer reasonably suspect that the person operating the vehicle has alcohol in their body.

That innovation differentiates s. 320.27(2) from the old s. 254(2) and the current s. 320.27(1). [ 15 ] In exchange for the removal of the reasonable suspicion requirement, s. 320.27(2) only empowers the peace officer to make an ASD demand if the peace officer has an ASD in his or her possession.

This requirement ensures that the driver is not detained without reasonable grounds or suspicion during whatever period of delay might be required for the peace officer to obtain an ASD. [ 16 ] Despite this difference between the old s. 254(2) and the current s. 320.27(2) , the trial judge commenced his analysis of the current provision with a review of the case law which interpreted the former provision.

A quotation which briefly encapsulates the net effect of that prior case law may be found at paragraph 44 of R v Woods , 2005 SCC 42 , where Justice Fish stated as follows: The “forthwith” requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and an immediate response by the person to whom that demand is addressed . [ 17 ] As the language of that quotation from Woods confirms, the word “forthwith” in the old s. 254(2) was found to import a requirement that the peace officer make the demand for a sample promptly.

This despite the fact that, on a strict grammatical reading of that former provision, the word “forthwith” did not speak directly to the timing of the officer’s demand at all. Rather, that term applied to the driver’s obligation to comply with the officer’s demand. [ 18 ] Woods and the related case law summarized by the trial judge confirms that the overall requirement for the peace officer to act expeditiously in the exercise of the authority conferred by s. 254(2) had developed in light of constitutional considerations.

Given that the driver’s liberty and ability to contact counsel are necessarily suspended throughout a roadside detention, the Charter requires that the detention persist no longer than is reasonably necessary. [ 19 ] Woods was interpreted and applied by the Court of Appeal in R v Megahy , 2008 ABCA 207 , being one of the cases examined by the trial judge in the present case.

Megahy addressed substantially the same argument being raised by the Appellant in the present case, albeit in reference to s. 254(2) and not the current s. 320.27(2) . [ 20 ] At paragraph 12 of Megahy , the Court stated: “ The appellant seeks, incorrectly, to import the “forthwith” requirement to the time the police have to administer the demand”. The Court continued at paragraph 16 to state “the approach suggested by the appellant would require a police officer to make a s. 254(2) demand instantaneously upon discovering that the driver has alcohol in his or her body, for fear of losing critical seconds.

With respect, that proposition is untenable.” [ 21 ] After considering these authorities and others, the trial judge concluded that there is nothing in the language of s. 320.27(2) which signals an intention on the part of Parliament to depart from the principles reflected in such cases as Woods and Megahy . [ 22 ] The trial judge also interpreted the current s. 320.27(2) in light of the first principles of statutory

interpretation and found nothing in its language to suggest the existence of a requirement that a detaining peace officer make the demand forthwith. [ 23 ] The Appellant now submits that the trial judge erred in applying the case law governing the old provision to the new provision. She argues that since the reasonable suspicion standard has been removed, the MAS demand must be made immediately following the detention. [ 24 ] In support of her argument, the Appellant cites R v Speers , 2020 SKQB 199 .

Paragraph 35 of that case can arguably be interpreted as stating that the obligation of a police officer to act promptly, as recognized in such cases as Woods , also applies to the current s. 320.27(2) : Second, the need for immediacy upon detention creates an obligation on both the officer and the detainee. The Supreme Court has read into the predecessors of s. 320.27(2) (and necessarily also into s. 320.27(2) ) an officer’s obligation to immediately demand an ASD demand after detaining a person . This

interpretation of s. 320.27(2) is not a grammatical reading of the provision but rather a judicial nod to, and accommodation of, a constitutional reality, acknowledging that because an ASD demand denies a right to legal counsel, an officer must act expeditiously to abbreviate the detention.

But the need for an officer to act expeditiously does not displace the plain and grammatical obligation placed upon the detained person, namely to “immediately provide” a sample of breath. [Emphasis added] [ 25 ] I read the underlined sentence from paragraph 35 of Speers as referring to the obligation recognized by Justice Fish at paragraph 44 of Woods for the peace officer to make a “prompt” demand so as to ensure that the overall detention is not unduly prolonged.

Read in light of such authorities as Megahy , these comments from Speers do not reflect a conclusion that s. 320.27(2) requires the detaining peace officer to make a demand instantaneously upon the detention. [ 26 ] At the end of the day, and despite the able arguments of counsel, I agree with both the trial judge’s approach and his conclusions with respect to this issue and I have little to add to his analysis.

Quite simply, there is nothing in the language of s. 320.27(2) which suggests that the demand must be made immediately following the detention of the driver such that a delay of 3 to 4 minutes would negate the availability of that provision. Comparing the operative language of the current provision with that of the former provision, there is no apparent alteration which would signal an intention on the part of Parliament to alter the principles reflected in such cases as Woods and Megahy .

Although the case law respecting the former provision did effectively read in a requirement that a demand be made “promptly”, and although I accept that a similar requirement applies to the current s. 320.27(2) , the brief delay that occurred in the present case did not violate that requirement.

[ 27 ] One additional argument was raised by the Appellant at the oral argument of this appeal. At that time, counsel argued that once a police officer has embarked upon an inquiry respecting whether a driver has alcohol or a drug in their body, that officer has irrevocably elected to proceed under s. 320.27(1), and is prohibited from exercising the alternative authority contained in s. 320.27(2) .

Counsel argued further that permitting a police officer to proceed under s. 320.27(2) under such circumstances would render s. 320.27(1) redundant and superfluous. [ 28 ] With respect, there is nothing in the language of either ss. 320.27(1) or (2) which supports the conclusion that a police officer is required to make an irrevocable election between these two provisions at the outset of the detention.

Further, recognizing that a police officer may make an ASD demand without reasonable suspicion despite having commenced an inquiry as to whether the driver has alcohol in their body would not render s. 320.27(1) superfluous. That provision continues to have effect where, for example, the police officer is not in possession of an ASD. [ 29 ] For these reasons, I conclude that the language of s. 320.27(2) does not contain any requirement that a police officer exercising the authority conferred by that provision must make a demand immediately upon the detention of a driver.

This is not to suggest that the deletion of the reasonable suspicion standard has no effect at all upon the analysis reflected in the earlier case law. Given that no requirement for reasonable suspicion exists in s. 320.27(2) , the interval of time to be measured against the reasonableness standard may begin ticking as soon as the detention commences, rather than the point in time when reasonable suspicion is formed. The Appellant has not argued in the present case that that period of time was unreasonably extended by the detaining officer’s conduct.

Conclusion [ 30 ] In conclusion, I find that the trial judge was correct in his conclusion that s. 320.27(2) does not require the detaining peace officer to make an MAS demand immediately or instantaneously upon detention. It is sufficient for the officer to act promptly and expeditiously in all the circumstances. There is no suggestion in the present case that the 3 to 4 minutes of delay that preceded the breath demand was excessive or otherwise unreasonable in all the circumstances.

Consequently, the seizure of the Appellant’s breath with the ASD was authorized by law and did not violate s. 8 of the Charter . [ 31 ] Given this finding, it is unnecessary for me to review the trial judge’s analysis of s. 24(2), and I decline to do so. [ 32 ] The appeal is dismissed. Heard on the 27 th day of May, 2022. Dated at the City of Wetaskiwin, Alberta this 09 th day of February, 2023. N. Whitling J.C.K.B.A. Appearances: Conor Davis Alberta Justice for the Crown Joshua Asp Advocate Law for the Defence

_______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Justice N. Whitling _______________________________________________________ Under appearances, the spelling of Crown counsel’s name has been corrected. At paragraph 19, the number 2007 has been corrected to 207.