R. v. Day, 2022 MBPC 2

CITATION: R. v. Day, 2022 MBPC 2 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) C. Murray, ) M. Moorthy, ) D. Burland, ) for the Crown and ) ) ) Brendon Day, ) M. Wasyliw, Accused ) for the Accused ) ) ) Reasons for Decision ) delivered: February 3, 2022 ) Lord, A.C.J. Decision on Voir Dire Introduction [ 1 ] Mr. Day is charged with impaired operation of a conveyance and operating a conveyance with a blood alcohol level equal to or over .08 on April 25, 2019. [ 2 ] At approximately 3:00 a.m. on April 25, 2019, Cst. Newans of the Headingley Royal Canadian Mounted Police (RCMP) stopped Mr.

Day for speeding pursuant to the Highway Traffic Act ( HTA ). Other than speeding, Cst. Newans did not note any other concerning driving by Mr. Day and when dealing with him during the traffic stop noted no signs of impairment. He had no suspicion that Mr. Day had alcohol in his body. He nonetheless made a demand pursuant to s. 320.27(2) of the Criminal Code (the Code ) that Mr. Day provide a sample of his breath into an approved screening device (ASD).

Section 320.27(2) provides for mandatory alcohol screening (MAS) and states: 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 this 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. [ 3 ]

Section 320.27(2) came into effect on December 18, 2018. Prior to this date a demand to provide a breath sample into an ASD could only be made if a peace officer had formed a reasonable suspicion the driver of a motor vehicle had alcohol in their body. ( s. 254(2) Criminal Code ) [ 4 ] Cst. Newans testified while there is no specific RCMP policy or directive regarding MAS, his consistent practice was to screen

all drivers he stopped after 9:00 p.m. or when there had been a motor vehicle collision. [ 5 ] The first sample provided by Mr. Day was insufficient for analysis. The second sample resulted in a “fail” reading. As a result of the “fail” reading Cst. Newans arrested Mr. Day for impaired driving. He then demanded a sample of Mr. Day’s breath pursuant to s. 320.28(1) of the Code . Mr. Day was taken to the RCMP detachment where he provided two breath samples into a breathalyzer instrument at 4:16 a.m. and 5:34 a.m., the results of which were 160 mgs% and 140 mgs% respectively.

Absent the mandatory screening provision in s. 320.27(2) Mr. Day would have continued to drive with at minimum a blood alcohol concentration (BAC) of 140 mgs%. [ 6 ] Mr. Day challenges the constitutional validity of the MAS provision s. 320.27(2) of the Code and asks the Court to find the

section in violation of ss. 8 and 9 of the Charter and not saved by the provisions of s. 1. [ 7 ] Mr. Day bears the burden of proving on a balance of probabilities that s. 320.27(2) violates the Charter . If a breach is proved, the Crown bears the onus on a balance of probabilities of showing the infringement is justified under s. 1. In this application my jurisdiction as a Provincial Court Judge is limited. As such, Mr.

Day seeks a ruling that s. 320.27(2) does not apply to him in this case and therefore his breathalyzer results should not be admitted into evidence. [ 8 ] In addition to the three witnesses called by the Crown on this voir dire ; Sgt. Mark Hume, Dr. Tracy Cherlet and Dr. Douglas Beirness, materials were also filed including statistics, numerous studies and reports on the effectiveness of sobriety checkpoints, the effectiveness of random breath testing and selective breath testing, legislation and related Hansard/Parliamentary proceedings. Voir Dire Evidence Sgt. Mark Hume [ 9 ] Sgt.

Hume, is a 21 year member of the RCMP and has been specifically involved in traffic enforcement for 15 years. He is the Unit Commander of Northwest Traffic Services and is also currently the Officer in Charge of Traffic Services for Manitoba. In this position he is responsible for drafting policy and providing advice to the Criminal Operations branch of the RCMP in Manitoba. [ 10 ] In addition to being the team leader of the Criminal Collision investigation unit and an instructor regarding impaired driving investigations, he is also the ASD program manager for the RCMP in Manitoba.

He is qualified to perform ASD tests, field sobriety tests and is a qualified breathalyzer technician. When the MAS provisions came into effect in 2018, Sgt. Hume taught province wide workshops regarding the new legislation. [ 11 ] Sgt.

Hume testified officers are trained that to engage the MAS provisions they must have an ASD on their person or in their police vehicle and observe the individual they are making the demand of to be the driver of a motor vehicle. [ 12 ] He testified the MAS demand should ideally be made within 1 to 2 minutes of initial contact with the driver and he confirmed there is no difference between the MAS demand and the suspicion based demand nor is there a difference in the testing procedure. The difference between the two is the authority to make the demand. [ 13 ] Sgt.

Hume described how a typical MAS stop would unfold. First, the driver would be asked to produce driver licence identification and be advised of the reason for the stop. An explanation would be given regarding the MAS provisions and then the demand would be made to provide a sample. He testified this interaction could be completed in most cases in as little as 30 seconds, and is very similar to the procedure and time taken to interact with a driver at a check stop or general traffic stop. [ 14 ] Sgt.

Hume testified absent safety concerns on the part of the officer, the vast majority of drivers in a MAS stop remain in their vehicle for the ASD test to be administered. He contrasted this with suspicion based or reasonable ground based demands where the driver would very likely be removed from their vehicle given the increased likelihood of a “warning” or “fail” reading which would require further police action. [ 15 ] On cross-examination Sgt.

Hume argued it is possible for an ASD test to be administered with the driver outside of their vehicle at the roadside, in an open police vehicle or in a locked police vehicle at the officer’s discretion. While he agreed it is possible a driver could be searched during the screening process, it would not be routine, and he said handcuffing a driver in such circumstances is unheard of. [ 16 ] Sgt. Hume testified prior to administering an ASD test officers are required to ask the driver about recent alcohol consumption.

The purpose of this question in the MAS context is not to inform suspicion or provide reasonable grounds but rather to ensure an accurate ASD reading free of mouth alcohol. If alcohol consumption was indicated, the officer would delay the test for 15 minutes from the time of drinking. In the case of recent smoking, the test would also be delayed by five minutes to avoid damaging the instrument. [ 17 ] Sgt.

Hume testified in a mandatory screening scenario where there is no other traffic infraction and the driver passes the screening procedure, the entire stop should typically be no more than 2 to 3 minutes in length. In the event the stop was longer than 15 minutes, officers are trained to provide a driver with their right to counsel. On cross-examination he testified it would be rare for the entire process to take longer than 3 to 4 minutes. Sgt. Hume did a demonstration of a typical MAS stop during his evidence in court which took 2 minutes and 3 seconds. [ 18 ] Sgt.

Hume testified that while there are no specific parameters mandated by the RCMP as to when mandatory screening is conducted, in his traffic unit, the expectation before the COVID pandemic was that all drivers stopped during weekday evenings and all drivers stopped at any time on the weekend would be tested. Since the start of the pandemic however, for safety reasons, it has been left to the discretion of individual officers as to when a MAS demand is made. [ 19 ] Sgt. Hume gave evidence as to why it may be difficult for an officer to detect the odour of alcohol at the roadside.

He said some alcohol has no odour, cold or windy weather conditions can make it difficult to detect odours in general and some officers simply have a poor sense of smell. Further, if there is more than one person in the vehicle it can be difficult to isolate the source of alcohol

odour. He testified he has encountered drivers who show no signs of alcohol consumption or signs of impairment who nonetheless fail an ASD test. [ 20 ] In terms of supervisory oversight of MAS stops, Sgt. Hume said if a driver registered a warning or failed the alcohol screening test, because further police action would be required, a report would be generated by the officer. All reports generated are reviewed by a supervisor. However, if a driver passed the screening test and no other traffic violation had occurred, no report would be generated and there would be no mechanism of review. [ 21 ] Sgt.

Hume was also questioned about bias and racial profiling and the level of supervision and oversite of officers using MAS in this regard. He testified there is no specific monitoring of how officers exercise their discretion as to when a MAS demand is made, and there is no tracking of biographical or demographic data of those stopped. [ 22 ] Sgt. Hume confirmed however, the police likely stop more drivers pursuant to s. 76.1 of the HTA for sobriety checks during the evening than during the day and that there would be fewer drivers from an older demographic in this group.

Otherwise, he said in his experience he sees drivers of all ages and backgrounds stopped for testing. [ 23 ] He testified there is national online training provided for officers regarding unconscious bias and at the time of an officer’s annual assessment some supervisors will review random samples of dash cam recordings to observe how officers conduct themselves. Sgt. Hume confirmed there is also a process in place for the public to complain about an officer’s conduct and said the RCMP Act also requires officers to report any violations of the Act by another officer. Dr. Tracy Cherlet [ 24 ] Dr.

Cherlet prepared a report dated December 15, 2020. (Exhibit V2-7) and was qualified to give expert opinion evidence in the areas of physiology of alcohol with respect to the absorption, distribution and elimination of alcohol from the body; pharmacology of alcohol as it relates to the effects of alcohol on the human body; effects of alcohol on the ability to operate a conveyance; retrograde and anti-grade estimates of blood alcohol concentrations; theory and operation of breath test equipment including calibration, accuracy and reliability of approved screening devices and analytical procedures used in the analysis of samples for ethyl alcohol. [ 25 ] She testified about the Alco-Sensor FST which is the ASD used in all provinces and territories in Canada, having been approved by the Attorney General of Canada in 2009.

This ASD must be calibrated for accuracy every 31 days. If not done, the device locks itself and no additional breath tests can be conducted until a successful accuracy check has occurred. When an ASD is calibrated and the accuracy check is not within the acceptable range, the device will also lock itself until a successful check occurs. [ 26 ] The ASD also has automatic sample acceptance criteria. The device requires a minimum volume of breath and a minimum flow rate, over a minimum period of time in order to provide a successful reading.

Once the sample acceptance criteria of the device has been met, the ASD captures a portion of the breath sample for analysis. [ 27 ] Dr. Cherlet testified the force of air required for a successful test is similar to blowing into a straw and requires a minimum of 2 seconds of blowing, provided the minimum flow rate and minimum volume requirements have also been met. Once the sample has been captured, the results of the analysis appear on the device screen within a matter of seconds. When the display turns green it signifies a BAC of between 0 to 49 mgs%.

When the display turns amber and the letters CAU appear on the display, a BAC of between 50 to 99 mg% has been registered. For a BAC of 100 mgs% or greater the word “fail” appears on a red background. [ 28 ] She testified that while cold temperatures can cause damage to an ASD by producing condensation inside the device, the ASD can be used in cold temperatures for very short periods of time, provided the device is warm prior to use. [ 29 ] Dr. Cherlet also gave evidence about the effect of alcohol on a driver’s ability to operate a conveyance.

She explained that alcohol is a central nervous system depressant which slows down the activity of the brain and spinal cord. The result is a deterioration in vision, fine motor coordination, comprehension, judgement, perception and attentiveness. [ 30 ] In particular, when vision deteriorates, acuity, depth perception, peripheral vision, and glare recovery are affected. These are all aspects of vision required when driving. The consumption of alcohol also increases a driver’s reaction time.

When alcohol has been consumed, it takes longer for a driver to recognize traffic signs and signals, and once seen it takes longer for a driver to physically respond to the signal by, for example, slowing down or braking. [ 31 ] In her opinion the ability of some individuals to operate a conveyance is impaired at a BAC of 50 mgs%. The ability of a majority of individuals is impaired at 80 mgs% and at a BAC of 100 mgs% the ability of all individuals to operate a conveyance is impaired. [ 32 ] Dr.

Cherlet opined that alcohol consumption also produces a loss of inhibitions and an increase in self-confidence resulting in disregard for the rules of the road and an increase in the chance of being involved in a collision. She said as BAC levels rise, so do the rates of collisions. [ 33 ] Dr. Cherlet testified that studies have shown drivers with a BAC of 60 mgs% have double the risk of being involved in a collision. Drivers with a BAC of 80 mgs% are at three times higher risk, and at 100 mgs% the risk is five times higher as compared with control group drivers.

At a BAC of 150 mgs% the risk of being involved in a collision jumps 25 times. [ 34 ] Dr. Cherlet gave evidence about blood alcohol concentration and outward signs of impairment. She said slurred speech and staggering are associated with an advanced state of impairment referred to as intoxication. In this state a driver’s ability to operate a conveyance is clearly impaired. An absence of outward signs of impairment however, does not mean a person is not impaired. An individual who is tolerant to alcohol may not show any outward signs of impairment until having a much higher BAC.

She said the reverse is also the case. A person with low tolerance for alcohol may show signs of impairment at a BAC of 40 or 50 mgs%.

[ 35 ] In her opinion, observable signs of impairment are related more to tolerance to alcohol than BAC. For this reason, Dr. Cherlet concluded BAC alone is the best way to determine impairment. Dr. Douglas Beirness [ 36 ] Dr. Beirness was qualified to give expert opinion evidence in the analysis,

interpretation, and evaluation of studies, statistical data, research and literature involving the prevalence, detection, and deterrence of impaired driving, the effectiveness of screening measures, the social costs of impaired driving, and the anticipated impact of mandatory alcohol screening on incidents of impaired driving in Canada. Further specific areas of qualification can be found in his curriculum vitae. (Exhibit V2-3.) [ 37 ] Dr. Beirness prepared two reports.

The first is dated December 18, 2020. (Exhibit V2-3.) The second is an updated report dated June 15, 2021. (Exhibit V2-4 tab 4) For clarity, all references in my decision are to his second report. [ 38 ] Dr.

Beirness testified about historical information regarding impaired driving in Canada, including references to data compiled by the Traffic Injury Research Foundation for the Canadian Counsel of Motor Transport and other studies conducted regarding roadside screening. [ 39 ] In Canada, during the 1980s, with the introduction of public education and programs and policies whose purpose was to reduce impaired driving, a reduction in alcohol-related traffic deaths began to occur. In 1980, 60% of driver fatalities tested positive for alcohol. By 1997 this figure had dropped to 37.2%.

Since that time however, progress in Canada has slowed considerably and has remained constant, with the percentage of fatally injured drivers testing positive for alcohol in 2016 at 33.2%. At paragraph 7 of his report Dr. Beirness indicated that according to a report by the US Centers for Disease Control and Prevention, Canada has one of the highest rates of impaired driving fatalities in the world. In addition, at paragraph 4 he reported that for some time Manitoba data has shown a rate of traffic fatalities somewhat higher than the rest of Canada. [ 40 ] At paragraph 3, Dr.

Beirness provided statistics regarding alcohol involved motor vehicle collisions. Unintentional injuries rank third among all causes of death among Canadians and are the leading cause of death among those between the ages of 5 and 44. Motor vehicle crashes account for about 25% of all unintentional injury deaths. In 2018, 1,922 people died in motor vehicle crashes; a further 152,847 sustained injuries, 9,494 of which were serious. [ 41 ] Dr. Beirness gave evidence about roadside screening for impaired drivers.

He said roadside screening generally occurs either as part of routine traffic enforcement or as a result of organized checkpoints. These types of stops use brief interaction between police and drivers to check for obvious signs and symptoms of alcohol or drug consumption. [ 42 ] He testified screening drivers for sobriety has a twofold purpose.

Firstly, it keeps the public safe by detecting and removing impaired drivers from the road and secondly it serves as a highly visible deterrent to drivers who might consider driving after consuming alcohol. [ 43 ] He testified deterrence is achieved by both the perceived and actual probability of being stopped by police and sanctioned for impaired driving. Deterrence relies on the theory that if a sanction for undesirable behavior is perceived to be certain, severe and swiftly applied the probability of the behavior occurring again will be reduced. (para 23) Dr.

Beirness noted however, that past increases in the severity of penalties for impaired driving have not appeared to be a deterrent and that the criminal justice process may not be certain or swift in imposing a sanction. [ 44 ] Effective deterrence is also premised on individuals being aware of the probability of being stopped and the possible sanctions involved. Dr. Beirness noted in his report at paragraph 24 that a series of random roadside surveys conducted in 2017 and 2018 found the number one reason people reported they continued to drink and drive was that they did not think they were impaired (62%).

The second most frequent reason given was that they did not think they would get caught (52%). This suggests the perceived certainty of being stopped and/or detected for drinking and driving is relatively low. He noted at paragraph 27, well publicized, frequent and highly visible checkpoints can have an impact on impaired driving primarily through general deterrence. [ 45 ] Dr.

Beirness was asked to comment on the shift from suspicion based screening of drivers to mandatory screening of drivers; a shift from sensory based observation to scientific evaluation. [ 46 ] He testified suspicion based evaluation relies on an officer’s sensory capabilities and observational skills undertaken in a short period of time, and primarily rests on the detection of an odour of alcohol. He noted that detecting an odour of alcohol can be difficult, as some alcohol does not have an odour.

Climate conditions can also have an impact on the ability to detect the odour of alcohol, and there is a great variation between individuals and their ability to detect odours. [ 47 ] In both his testimony and his report Dr. Beirness referred to a number of studies that have shown police officers are not necessarily good at detecting drivers who have consumed alcohol, in some cases failing to identify a significant number. Studies of this sort focus on stopping drivers during specific hours, generally Wednesday to Saturday between 9:00 p.m. and 3:00 a.m.

Drivers are selected to provide voluntary breath samples after being waived through a police check stop with no alcohol having been detected. In the case of one study conducted in North Carolina (Wells et al Journal of Studies on Alcohol Exhibit V2-3 tab

x) police failed to detect 50% of drivers in the check stop who subsequently tested positive for having consumed alcohol. While not all drivers in the study tested over the legal limit, 62% of drivers with a BAC greater than 80 mgs% were not detected when screened by police. [ 48 ] Dr. Beirness said in his opinion mandatory alcohol screening using an ASD is by far the better way to detect impaired drivers when compared to subjective evaluation by police. An ASD will identify everyone tested with a BAC over the legal limit, whereas the police will not. [ 49 ] Dr.

Beirness was also of the view that when a person drives after drinking and gets through a checkpoint successfully, not only will it not have a deterrent effect on them, it may also have the reverse effect. The drinking driver may either find support for their belief they were under the legal limit or believe that in future the same level of alcohol consumption will again go undetected.

[ 50 ] Dr. Beirness testified about other measures taken in recent years to attempt to deter drinking and driving behavior. He said public awareness campaigns had some positive effect initially and noted that zero tolerance regulations for alcohol in new drivers and provincial administrative schemes also seem to be having a positive impact. This is because the sanctions involved are swift and certain. He contrasted this with designated driver programs which have not proved effective. [ 51 ] Dr.

Beirness commented that ignition interlock programs could be effective if they were used as a method of prevention rather than a sanction, and that education and rehabilitation programs for offenders are effective but do not go beyond the individual driver to deter the general public. [ 52 ] Dr. Beirness was asked to comment on the effectiveness of MAS elsewhere in the world and so far in Canada.

He testified many countries employ forms of MAS and that a considerable volume of literature demonstrates reductions in crashes, injuries and/or fatalities following its introduction. (para 35) [ 53 ] He concluded at paragraph 39, research from other jurisdictions provides substantial evidence MAS has a strong, immediate and long term impact on traffic crashes involving alcohol. High intensity MAS programs supported by media, conducted throughout the year and having a high ratio of breath testing to licensed drivers have more substantial impact.

Although the investment in police time and resources required to implement a successful MAS program may be substantial, the savings in social costs can be many times greater. [ 54 ] In Canada MAS statistics are available for 2019 and the early months of 2020, but due to the COVID-19 pandemic are limited after that. Data from 5 provinces show a 33.7% decrease in impaired driving fatalities as compared to the years 2016-2018. While Dr.

Beirness said it is too soon to be certain what this drop is attributable to, at paragraph 49 he opines the pattern is consistent with the expected effect of the introduction of MAS in Canada. [ 55 ] At paragraph 51 Dr. Beirness reported on statistics for police reported impaired driving incidents in Canada between 2010 and 2019 and noted the number of impaired driving incidents increased in 2019 after the introduction of MAS by 21% over 2018.

He said while it is expected over time MAS will create a strong general deterrent, reducing the numbers of impaired drivers, in the initial stages, before the scheme is well known, the result is an increase in more drinking drivers being detected. He noted this is likely due to the increased efficiency of MAS in identifying a larger number of drinking drivers who might in past years have gone undetected. [ 56 ] In line with this, the National Justice Survey, 2021 (Exhibit V2-5) reported at page 26, that of those surveyed, 47% said they were not aware of the introduction of MAS in 2018.

When asked if knowing the police have the authority to demand a roadside breath sample without suspicion of alcohol use would have an impact on their decision to drive after consuming alcohol, 35% said the question was not applicable to them because they either did not have a licence or they did not drink and drive.

Among the remaining 65%, 20% said it would have a major impact, and another 19% said it would have a moderate impact on any decision to drive after consuming alcohol. (p. 27) [ 57 ] The same survey reported at page 34, 63% of those who drove within 2 hours of consuming alcohol said they did so because they did not think they were impaired. 29% said they believed they were within the legal limit. Only a very small percentage provided a different reason, including thinking they would not be caught.

Of note, residents of the Prairies were more likely to report thinking they would not be caught, a reason rarely cited in other provinces. [ 58 ] The survey also addressed people’s perceptions of police traffic stops since December 2018 and in particular surveyed individuals of Black, South/West Asian, East or Southeast Asian and Indigenous backgrounds. Most indicated the traffic stop they were involved in was fairly routine and did not perceive they were being targeted.

A few described interactions that were perceived as racially targeting, all of which however concluded without incident. (p. 51, 52) Those who were pulled over at a roadside check stop considered the process to be efficient and cordial. Findings of Fact on the Voir Dire [ 59 ] Counsel for Mr. Day challenges the testimony of Dr. Beirness and urges the court to give his evidence little weight, describing him as an advocate for MAS rather than a neutral academic.

He also argued that his opinions are not supported by scientific evidence. [ 60 ] Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. A proposed expert witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so. Less fundamental concerns about an expert’s independence and impartiality should be taken into account in the broader, overall weighing of the costs and benefits of receiving the evidence. ( White Burgess Langville Inman v.

Abbott and Haliburton Co ., 2015 SCC 23 , para 2 .) [ 61 ] Dr. Beirness was qualified to give expert evidence in these areas by consent and has been qualified to provide expert evidence on these topics in court proceedings before. His qualifications were not challenged nor were the proposed areas of testimony. While it was acknowledged some of the studies relied on by Dr. Beirness have some shortcomings or limitations, in my view none are such that they undermine the general results or conclusions. I accept his evidence as independent and impartial. [ 62 ] Counsel for Mr.

Day challenges the evidence called by the Crown as a whole, claiming it is based on a number of myths. [ 63 ] Firstly, he does not agree with the general premise that in Canada efforts to reduce the incidents of impaired driving by various means have stalled in recent years. He argues there is no impaired driving enforcement crisis in Canada given the reduction in impaired driving related deaths over the last 30 years using existing suspicion based testing. [ 64 ] Based on the statistics provided and the testimony of Dr.

Beirness on this point, which I accept, it is evident that despite vast improvement over the last 30 years, there remain high numbers of individuals who continue to drive while impaired by alcohol and/or over the legal limit of 80 mgs%, and a high number of injuries and deaths as a result.

[65] Secondly, counsel for Mr. Day argues there is no evidence that mandatory screening measures are more effective thansuspicion based screening at identifying impaired drivers. He says there are no studies that directly compare the two methods ofscreening and the studies Dr. Beirness relies on are suspect and do not in any event support his opinion that MAS will result in moreimpaired drivers being identified. [66] It is correct that no studies directly compare the two methods of screening. However, the studies that have been done, and arerelied on by Dr.

Beirness, support the proposition that mandatory screening is more effective at identifying drivers over the legal limitthan subjective evaluation alone. This is often due to the reliance on the presence of an odour of alcohol as the basis for subjectivesuspicion based testing. I accept the evidence of Sgt. Hume, Dr. Cherlet and Dr. Beirness regarding the difficulties in identifying theodour of alcohol and the studies that support this. [67] If those driving over the legal limit are required to provide a breath sample they will be successfully identified and removedfrom the road.

That in and of itself reduces the number of impaired drivers on the road and the risk they pose to themselves and otherswhen compared with the reduced number identified using subjective based evaluation. [68] Thirdly, counsel for Mr. Day submits there is no evidence that MAS has a deterrent effect on impaired driving. He relies on theNational Justice Survey (Exhibit V2-5 for this proposition, which he says contradicts the evidence of Dr.

Beirness. [69] He argues for mandatory screening to have an impact on the decision making of those who drink and drive, the drivers wouldhave to know the law exists, would have to believe they were impaired, and would have to believe they will be stopped and tested. [70] He also argues there is no evidence to support Dr. Beirness’s opinion that drivers who successfully pass through a suspicionbased screening process will be more likely to drive after drinking in the future. [71] It is correct that there have been no studies done to evaluate this proposition and it may or may not be the case.

A drinkingdriver who successfully passes through a suspicion based screening may be equally relieved to have done so and make a differentdecision in the future. I place no weight on Dr. Beirness’ opinion on this point. [72] I do however accept the studies and the evidence of Dr. Beirness regarding other jurisdictions where MAS has beenimplemented, which suggest both immediate and long term positive impact. [73] In Canada MAS is still relatively new and its use has been greatly reduced by the COVID-19 pandemic.

It has not beenimplemented in the same high visibility, high frequency way it has been in other countries. This does not mean it cannot be or will not be.It may simply be too early to properly quantify what if any deterrent effect mandatory screening will have in Canada, but I accept it iscapable of having a deterrent effect on the behavior of those who consider drinking and driving. [74] Fourthly, counsel for Mr. Day challenges the notion that MAS is a quick and non-invasive procedure.

He suggests that MASpotentially subjects innocent people to detention, handcuffing, pat down searches, and being locked in the rear of a police vehicle all inpublic view of those who may know them. He also submits the use of passive alcohol sensors is less intrusive than the use of an ASD. [75] Counsel’s description of the mandatory screening procedure is not supported by the evidence.

I accept the evidence of Sgt.Hume that MAS stops are typically very brief, non-intrusive and are conducted in a manner that minimally inconveniences drivers. [76] Alcohol sensors measure only for the presence of alcohol in the air near a driver and can register a false positive if alcohol fromother sources is present, such as hand sanitizer or alcohol emanating from another person in the vehicle. [77] A positive reading from an alcohol sensor would ultimately result in a further detention for a subsequent ASD test to providegrounds for further investigation.

I accept the evidence that screening using an ASD is done in a manner that ensures a brief and non-intrusive interaction with the police. Legal Analysis [78] I have reviewed the materials and cases submitted and in particular have considered the various cases from other provinces thathave considered the constitutionality of s. 320.27(2). These cases have either found no violations of ss. 8 and/or 9 or if found, haveupheld the MAS provision under s. 1. Does s. 320.27(2) breach s. 9 of the Charter? [79]

Section 9 of the Charter provides that everyone has the right not to be arbitrarily detained or imprisoned. [80] While counsel does not take issue with the validity or manner of Mr. Day’s traffic stop for speeding pursuant to the HTA, heargues the further detention for the MAS demand and test pursuant to s. 320.27(2) of the Code was arbitrary and a violation of s. 9. [81] While Mr.

Day was stopped for a specific HTA infraction, it should be noted that a MAS demand and test could also flow froma random roadside stop pursuant to the HTA to check for driver licence, vehicle registration, mechanical fitness and sobriety. [82] The Supreme Court of Canada has addressed random stops such as these in the past, ruling that although arbitrary and a breachof s. 9 of the Charter, such stops are justified by s. 1. (R. v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257) [83] Counsel for Mr. Day relies on Ladouceur as well as the case of R. v.

Hufsky (SCC), [1988] 1 S.C.R. 621 forthe proposition that in upholding such stops under s. 1 the Supreme Court of Canada contemplated minor non-intrusive inquiries aboutdriving related issues which should not include MAS stops. He cites paragraph 60 of Ladouceur where the Court said “any further, moreintrusive procedure could be undertaken only based on reasonable and probable grounds.”

[84] In arguing that s. 320.27(2) does not violate Charter s. 9, the Crown relies on the fact the provision does not create a newstopping power.

The Crown also argues the immediacy requirement and the elimination of the need for questioning and observation ofthe driver lead to a briefer and less intrusive process than suspicion based screening, not all that different than random HTA stops. [85] I agree with the Crown’s submission that s. 320.27(2) does not create a new stopping power and does not to any degreelengthen the period that would otherwise have been lawful for investigating a driver’s sobriety in a random stop as considered inLadouceur. [86] As a result, while the detention flowing from a MAS demand is therefore similarly arbitrary and a violation of s. 9, it is savedby s.1 for the reasons articulated by the Supreme Court in Ladouceur.

Does s. 320.27(2) breach s. 8 of the Charter? [87] In the present case, the Crown acknowledges the taking of a sample pursuant to s. 320.27(2) constitutes a search or seizurewithin the meaning of s. 8, and being warrantless is prima facie unreasonable. The Crown bears the onus of showing the search andseizure was reasonable. [88] Determining whether a search is reasonable is a three stage procedure. A search will be reasonable if (

a) the search isauthorized by law, (

b) the law itself is reasonable; and (

c) the manner in which the search was carried out was reasonable. (R. v. Collins, (SCC), [1987] 1 S.C.R. 265) [89] The Crown argues the first stage is met in this case, as the breath demand was made pursuant to s. 320.27(2) and the statutoryrequirements of the

section were met. Counsel for Mr. Day does not take issue with stage one and agrees the MAS search and seizure isauthorized by law. [90] The Crown submits the requirements of the third stage are also easily met, in that the procedure utilized for mandatoryscreening is quick, unobtrusive and undertaken without unreasonable force or intrusion. [91] There was no suggestion by counsel that the search and seizure Mr.

Day was subjected to was carried out in an unreasonablemanner, but rather, in circumstances where no grounds at all are required for the search from the outset, it is not possible to carry outsuch a search in a reasonable manner. [92] In Mr. Day’s case Cst. Newans complied with the statutory requirements of s. 320.27(2). Mr. Day’s safety was not put at risk,and his privacy was not impacted any further than required to perform the test. [93] As previously indicated, I accept the evidence of Sgt. Hume and find, as in Mr.

Day’s case, the vast majority of MAS stopsresult in a brief detention for a simple and minimally intrusive test and interaction with law enforcement. There is no evidence to supportthe defence submission that MAS searches are protracted or abusive “humiliating roadside theatre”. [94] The remaining issue in the analysis is whether s. 320.27(2) is a reasonable law. Counsel for Mr. Day argues for a number ofreasons, it is not.

He says the legislation is unreasonable because it is based on unsupported myths and because it negatively impactscertain groups. [95] He submits there is no evidence before the Court that the current system and current legislative powers relying on thereasonable suspicion threshold are inadequate to address the impaired driving problem.

Unlike MAS, the suspicion based provisions arebalanced by subsequent judicial oversight to ensure the police have a reasonable basis for interfering with an individual’s privacy rights.Further, there is no evidence the MAS provisions will have a meaningful positive affect in reducing impaired driving. [96] He further argues that because the making of a MAS demand is entirely within the discretion of individual police officers, bias,unconscious or otherwise will drive the exercise of the discretion, resulting in an increased impact on racialized communities.

He urgesthe Court to take judicial notice that racialized minorities are over policed in Canada and subjected to more traffic stops than otherCanadians. [97] In addition, counsel for Mr. Day argues such bias driven policing will go unchecked, as the RCMP have no system in place forthe supervision and oversight of when mandatory screening is used and do not keep statistics about the demographic or biographic dataof those subjected to such testing. [98] He points out that in circumstances where a driver passes the ASD and no report is prepared, there is no opportunity to examinethe conduct of the police.

This is exacerbated by the fact that by and large MAS is used in roving stops rather than stationary check stopsand is therefore not truly random. [99] He argues that although the vast majority of detainees will have no alcohol in their body, they will nonetheless be detained andsuffer the public indignity and stigma of potentially being subjected to a pat down search and placed in the rear of a police vehicle, allwithout oversight or other procedural safeguards. [100] He argues a method of search that captures an inordinate number of innocent individuals, putting them at higher risk of beingcharged and convicted of refusing to provide a breath sample, cannot be reasonable.

This is because once refused, a MAS demandrequires no objectively supportable basis, such as reasonable suspicion in order to be valid. [101] Some of these concerns are echoed in the Canadian Civil Liberties Association (CCLA) submission to the House of CommonsStanding Committee on Justice and Human Rights regarding Bill C-46, which included the MAS provisions. (Exhibit V2-12, tab 9) [102] The CCLA report concluded random breath testing (RBT) would not be more effective than selective breath testing (SBT) andwould not have a meaningful impact on impaired driving.

It argued, that the real contribution of RBT comes from specific and general

deterrence, which either manner of ASD testing is equally capable of. [ 103 ] The report concludes other countries that have implemented RBT with successful results are not useful comparators as their schemes were introduced in different ways with high intensity and or high visibility and often concurrently with other measures designed to combat drinking and driving. [ 104 ] Finally, the CCLA says MAS will disproportionately affect certain groups resulting in racial profiling because random stops are not truly random, but rather as Dr.

Beirness agreed, are actually arbitrary or capricious. [ 105 ] For all of the above reasons, counsel for Mr. Day asks the Court to conclude the law is not reasonable and therefore a breach of s. 8 of the Charter. [ 106 ] The Crown submits s. 320.27(2) is reasonable and urges the Court to consider the context for MAS; driving is a privilege, not a right, and is a highly regulated activity. As such, drivers have a reduced expectation of privacy. [ 107 ] The scope of s. 320.27(2) is narrow, ensuring the briefest possible stop and minimal inconvenience for those who are not driving while over the legal limit.

A breath sample does not include core biographical information, and the use to be made of the ASD sample is restricted to providing grounds for a further demand; not as evidence to establish guilt. [ 108 ] The Crown further reminds the Court that brief roadside screening measures have always been upheld in the past and that suspicion based screening has proven to be insufficient resulting in impaired drivers escaping detection. [ 109 ] On the first stage of the Collins procedure, I am satisfied the search of Mr. Day and the seizure of his breath was authorized by law. Cst.

Newans, in the execution of his duties as a police officer made a valid stop under the Highway Traffic Act . He had in his possession an ASD and immediately administered the screening test. [ 110 ] On the third stage of the Collins procedure I am also satisfied based on the above, the search and seizure was carried out in a reasonable fashion, as are the vast majority of seizures under this section. [ 111 ] The second stage of the Collins procedure, (whether the law itself is reasonable) must be considered in the context of driving being a privilege not a right.

It is a highly regulated dangerous activity during which drivers have a reduced expectation of privacy. [ 112 ] In Goodwin v. British Columbia , 2015 SCC 46 the Supreme Court of Canada examined the constitutional validity of a provincially legislated automatic roadside prohibition scheme (ARP) and set out a framework for the analysis of a challenge to legislation based on s. 8 of the Charter.

The analytical framework is applicable to s. 320.27(2). [ 113 ] In Goodwin the Court found a roadside breath demand made pursuant to the provincial legislative scheme constituted a seizure with the meaning of s. 8 of the Charter , infringing on an individual’s, albeit diminished, reasonable expectation of privacy. As in the case of a MAS demand the ARP demand is without prior judicial authorization is therefore presumptively unreasonable. [ 114 ] In examining whether the law was reasonable the Court looked at a number of factors.

The nature and purpose of the legislative scheme, the mechanism employed by the legislation and its degree of potential intrusiveness, and the availability of judicial supervision. [ 115 ] The Court found removing impaired drivers from the road to reduce injuries and fatalities to be a compelling purpose weighing heavily in favor of the legislation being reasonable.

In my view this is equally applicable to s. 320.27(2). [ 116 ] The purpose of the MAS provisions is to increase the detection of drivers with an elevated blood alcohol concentration of 80 mgs% or more by increasing the effectiveness of detection through the use of a scientifically reliable device, and to deter others who may consider driving after consuming alcohol from doing so. [ 117 ] The mechanism of the mandatory scheme modifies the suspicion based scheme by requiring immediacy of testing only of individuals found driving. [ 118 ] MAS is administered quickly at the roadside with minimal inconvenience to the driver and is no different in testing procedure than suspicion based testing using the same device.

The requirement that the ASD be present at the roadside reduces any additional delay. [ 119 ] While no suspicion of alcohol consumption is required for mandatory screening, the mechanism used to test drivers is consistent with the finding in Goodwin that the degree of intrusiveness on a driver’s bodily integrity and privacy interests were minimal, supporting the reasonableness of the legislation. [ 120 ] Unlike the ARP scheme in Goodwin , the MAS scheme in s. 320.27(2) does not allow for the result of the test itself to be used to establish guilt or impose a sanction or other consequence.

It is an investigatory tool, potentially providing grounds for the police to make a further demand for a breathalyzer sample. This addresses any concern regarding the reliability of the testing procedure and the use of the result. [ 121 ] Where an individual registers a “fail” on the ASD, and thereafter either fails or refuses a breathalyzer demand resulting in a criminal charge, judicial oversight is present through the trial process.

If the court process is not engaged by the stop, other means to challenge the officer’s conduct through a complaint process exist, albeit in some circumstances without the benefit of a written record of the stop. [ 122 ] In addition to being subject to judicial oversight, the MAS scheme is in many respects more transparent than the suspicion based scheme, in that there is no surreptitious gathering of evidence by the police prior to the demand being made. [ 123 ] Based on the National Justice Survey, 2021 and in light of the fact s. 320.27(2) does not create a new stopping power for the

police, I am unable to conclude racialized minorities will be subjected to increased traffic stops for the purpose of mandatory screeningas compared to others. Arguably, s. 320.27(2) eliminates any subjective evaluation that may be influenced by bias as it allows for ademand to be made solely on the objective criteria set out in the section.

Section 1 of the Charter [124]

Section 320.27(2) strikes an appropriate balance between preserving a driver’s privacy interests and the detection and deterrenceof impaired drivers. Accordingly, I find the law authorizing MAS to be reasonable and not in violation of s. 8 of the Charter. [125] If I am wrong, I have considered whether s. 320.27(2) would be saved by s. 1 of the Charter. [126]

Section 1 of the Charter guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by lawas can be demonstrably justified in a free and democratic society. The leading case on its

interpretation is R. v. Oakes, (SCC), [1986] 1 S.C.R. 103. [127] The Crown must show on a balance of probabilities the law at issue (1) has a pressing and substantial objective, (2) is rationallyconnected to the objective, and (3) impairs the right in question as little as possible. The law must also be proportional as it relates to itssalutary and deleterious effects. [128] Counsel for Mr.

Day submits that s. 320.27(2) has no pressing and substantial objective and reiterates his argument that there isno evidence MAS will catch more impaired drivers than suspicion based screening methods and no evidence it will reduce injuries ordeaths caused by impaired driving.

For essentially the same reasons he argues the legislation has no rational connection to the purportedobjective because there is no evidence that suspicion based screening cannot adequately deal with identifying impaired drivers. [129] He also argues that because there are other methods of screening less intrusive than an ASD, the mandatory screening scheme istherefore not minimally impairing of the protected right under s. 8. [130] In terms of proportionality, counsel for Mr.

Day submits that while the salutary effects of s. 320.27(2) are unknown, thedeleterious effects are evident in what he describes as its application to the innocent in general and its disproportionate application tomarginalized and racialized Canadians. [131] In its submission, the Crown points out that the test in Oakes should be applied flexibly and contextually to the law in question tobalance the competing rights and interests at play and that a s. 1 analysis does not require evidence to justify a Charter breach. [132] In R. v.

Sauve, 2002 SCC 68 at paragraph 18 the Court said: While some matters can be proven with empirical or mathematical precision, others, involving philosophical, political and socialconsiderations, cannot. In this case, it is enough that the justification be convincing, in the sense that it is sufficient to satisfy thereasonable person looking at all the evidence and relevant considerations, that the state is justified in infringing the right at stake to thedegree it has.

Pressing and Substantial Objective [133] The Crown correctly points out that the Supreme Court of Canada has always found the reduction of impaired driving and itsdevastating consequences to be an objective that is pressing and substantial. In this context, the state has a duty to protect citizens fromthe continuing risks posed by impaired driving. [134] As previously noted in the s. 8 analysis, MAS is one of many measures that can be taken to address this risk. Driving is a highlyregulated and voluntary activity in which there is a lowered expectation of privacy.

Screening for alcohol does not reveal corebiographical data and the results themselves are not used as evidence of guilt. [135] While progress has been made over time to reduce the negative impacts of impaired driving, studies have shown that policeofficers are not necessarily effective at detecting impaired drivers and it remains a serious societal problem requiring further efforts atreduction. In my view s. 320.27(2) has a pressing and substantial objective. Rational Connection [136] As I have already found, an immediate consequence of MAS is to detect and remove impaired drivers from the road.

In addition,studies and research filed in this case indicate it is also reasonable and logical to conclude that mandatory alcohol screening will have adeterrent effect on those who may consider drinking and driving. As a result, I am satisfied there is a rational connection between themeasures adopted in s. 320.27(2) and the objective of reducing impaired driving. Minimal Impairment [137] The measure chosen by s. 320.27(2) to address drinking and driving need not be the least intrusive measure available.

Thequestion is not whether another alternative means exists that could achieve the objective effectively; the issue is whether MAS fallswithin a range of reasonable alternatives. [138] MAS is quick and minimally intrusive. While other measures such as passive alcohol sensors, public education and increasedcheck stop programs can also be effective at reducing impaired driving, the available evidence suggests these measures are not aseffective as MAS. [139] The legislation limits the circumstances in which mandatory screening can be used to those where a lawful stop has been made.

Itapplies only to those found driving, and an approved screening device must be present and immediately used.

[ 140 ] The result of the test is not in and of itself evidence. Although I have not found one, any s. 8 infringement that could be found is therefore in my view narrow and limited in scope and minimally impairs the right protected in s. 8. Salutary and Deleterious Effects [ 141 ] MAS will detect and remove impaired drivers from the road and will deter others from doing the same. This will lead to fewer impaired drivers on the road and therefore fewer injuries and deaths as a result. MAS is not a new stopping power, therefore the potential for profiling is no greater than existed prior to its introduction.

When balanced with the diminished right of a driver to keep private the amount of alcohol consumed in a dangerous and already highly regulated activity, I am satisfied the anticipated benefits of MAS in Canada outweigh any harm it may cause. [ 142 ] I conclude that s. 320.27(2), if in breach of s. 8 would be saved by s. 1, being a reasonable limit prescribed by law, demonstrably justified in a free and democratic society. The provision is therefore constitutional and applies to Mr. Day in this case. The applicant’s motion is dismissed. “Original signed by:” Tracey Lord, A.C.J.