R. v. Brown, 2021 NSPC 32

Provincial Court of Nova Scotia Citation: R. v. Brown , 2021 NSPC 32 Date: 20210707 Docket: 8380034 8380035 Registry: Amherst Between: Her Majesty the Queen v. Carlyle William Brown Decision (On MOTION BY DEFENDANT TO EXCLUDE EVIDENCE OF RESULTS OF BREATH SAMPLE) Judge: The Honourable Judge Rosalind Michie Heard: 9 February 2021, in Amherst, Nova Scotia Decision: 6 July 2021 Charges:

Section s 320.14(1)(a) & 320.14(1)(

b) Criminal Code Counsel: Paul Drysdale, for the Crown Jim O’Neil, for the Defence By the Court: [ 1 ] The accused, Carlyle William Brown, is charged in an information sworn on September 4, 2019 that he did: …on or about the 22th (sic) day of July, 2019, at or near Springhill, Cumberland County, Nova Scotia, did operate a conveyance while their ability to operate it was impaired to any degree by alcohol, or a drug, or both, contrary to s. 320.14(1) (

a) of the Criminal Code AND FURTHERMORE, at the same date and place did within two hours after ceasing to operate a conveyance, have a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 mL of blood, contrary to s. 320.14(1) (

b) of the Criminal Code . [ 2 ] The Applicant seeks the exclusion of evidence of the results of an analysis of Mr. Brown’s breath by an Approved Instrument, taken pursuant to a demand made by Cst. Cedric Landry, following Mr. Brown’s failure of an Approved Screening Device test conducted pursuant to s. 320.27(2) of the Criminal Code . [ 3 ] There is no allegation that the ASD test conducted failed to comply with the statutory provisions of s. 320.27(2), but the Notice requests that this Court find and hold that the provisions of s. 320.27(2) of the Criminal Code are in violation of

Section 8 and 9 of the Canadian Charter of Rights and Freedoms , are not “saved” by the provisions of s. 1 of the Charter , and thus, pursuant to s. 52 of the Constitution Act , of no force or effect, at least to the extent that the limited constitutional jurisdiction of this Court allows. The result would be the exclusion from evidence of the results of the analysis of breath samples provided by Mr. Brown pursuant to a demand made by Cst. Landry under that

section of the Criminal Code . [ 4 ] The Crown takes the position that s. 320.27(2) , despite authorizing the taking of a breath sample for MAS testing without the existence of reasonable grounds or suspicion, does not violate ss. 8 and 9 of the Charter . If the Court finds differently, then the Crown submits that the provisions are a “reasonable limit, prescribed by law” and “demonstrably justified” in a “free and democratic society.” [ 5 ] With respect to the remedy available to Mr.

Brown, as a Provincial Court Judge on a s. 52 application, my jurisdiction is limited to determining whether this subsection applies to Mr. Brown in this specific case ( R. v. Lloyd , 2016 SCC 13 , at paras. 15 and 19 ). Facts [ 6 ] Pursuant to the provisions of s.655 of the Criminal Code , the Crown and the accused agree that the following facts are agreed to and admitted: 1.

On Monday evening, July 22, 2019, Constable Cedric Landry (“LANDRY”) and Constable Mark Hurlburt (“HURLBURT”), were conducting a Mandatory Alcohol Screening (“MAS”) checkpoint on Nova Scotia Highway 321, near Springhill, Cumberland County, Nova Scotia.

2. Both LANDRY and HURLBURT were and are members of the Royal Canadian Mounted Police – Northern Traffic Services Division and were and are Peace Officers in and for the Province of Nova Scotia. Both were wearing standard RCMP uniforms and operating fully marked police cruisers at all material times. 3. The purpose of the MAS Checkpoint was primarily the enforcement of Criminal Code impaired driving legislation and the detection and interdiction of impaired drivers, but also the enforcement of Nova Scotia Motor Vehicle Act provisions.

All drivers entering or passing by the MAS Checkpoint were subject to Mandatory Alcohol Screening. 4. At approximately 9:35 p.m. on 22 July 2019, a conveyance, being a 2019 GMC Sierra pickup truck red in colour and bearing NSL FXG 049, operated by the Accused, Carlyle W. L. Brown (“BROWN”) approached the MAS Checkpoint. Cst. LANDRY approached Mr.

BROWN and, after asking for and being provided with a valid Nova Scotia Drivers’ license and checking the registration and safety inspection sticker of the vehicle, advised him of the requirement that all drivers provide breath samples, pursuant to the provisions of s. 320.27(2) of the Criminal Code . 5. Cst. LANDRY read to Mr. BROWN the Mandatory Approved Screening Device Demand from a card provided by the RCMP. 6. Cst. LANDRY had in his possession at the time an Approved Screening Device, namely, an AlcoSensor FST, S/N 201443, which had been validly calibrated and was in good operating order.

The MASD Demand was read to Mr. BROWN at 9:35 p.m. 7. Cst. LANDRY did not, prior to the reading of the MASD Demand, detect any indicia of impairment on the part of Mr. BROWN; nor did he detect any smell of odour of alcohol on Mr. BROWN’s breath. 8. Cst. Landry waited a moment while Mr. Brown finished a cookie. 9. Mr. BROWN was cooperative throughout and provided a sample of his breath, suitable for analysis, at 9:38 p.m. The result of the analysis was a “Fail”, resulting in Cst. LANDRY forming reasonable and probable grounds to believe that Mr. BROWN was committing an offence contrary to s. 320.14(1) (

b) of the Criminal Code . Cst. LANDRY asked Mr. BROWN to step out of the truck and placed him under arrest. 10. Cst. Landry read Mr. Brown his Charter Rights and Police Caution from memory. Mr. BROWN was advised of the reason for his arrest. He indicated he understood. Mr. BROWN was advised of his right to retain and instruct counsel without delay and of his rights to free legal advice through the Nova Scotia Legal Aid program. He indicated he understood. He was read the standard Police Caution, which he indicated he understood. 11. When asked if he wanted to contact legal counsel, Mr.

BROWN advised that he did not know what to do. 12. Mr. BROWN was read a demand for samples of breath for analysis by an Approved Instrument, in accordance with s. 320.28(1) (a)(

i) of the Criminal Code . Mr. BROWN indicated he understood. 13. At 9:44 p.m., Cst. LANDRY escorted Mr. BROWN to his Police vehicle. Cst. LANDRY observed Mr. BROWN to be walking without difficulty, although Mr. BROWN did indicate that he might have difficulty getting into the Police Vehicle due to recent knee replacements. Mr. BROWN was not observed to exhibit any indicia of impairment. 14. Mr. BROWN was transported to the Springhill Detachment of the RCMP, arriving at 10:01 p.m. Mr. BROWN was taken to the interview room and again asked if he wanted to speak to counsel. Mr.

BROWN indicated he did not know what to do. He indicated he did not have a lawyer since a personal matter some 35 years previous. Cst. LANDRY explained that free Legal Aid was available, and Mr. BROWN asked to speak to duty counsel.

15. Between 10:05 p.m. and 10:23 p.m., Cst LANDRY contacted duty counsel phone approximately 18 times before finally getting an answer. Duty Counsel advised that there would be a delay due to high volume of calls. Cst. LANDRY waited for approximately one half hour before calling again, approximately 8 more times, before Duty Counsel called back at 11:07 p.m. Mr. BROWN was placed in contact with duty counsel at 11:13 p.m. and spoke to her for approximately 23 minutes, before advising Cst. LANDRY that he was satisfied with the advice he had received. 16. Mr. BROWN was introduced to Qualified Technician Cst.

HURLBURT at 11:36 p.m. and provided samples of breath, suitable for analysis, at 11:56 p.m. and again at 12:18 a.m. 17. The results of the analysis are set out in the Certificate of Qualified Technician, which will be filed, were 90 milligrams of alcohol in 100 milliliters of blood at 11:36 p.m. and 80 milligrams of alcohol in 100 milliliters of blood at 12:18 a.m. 18. Release documents were prepared for Mr. BROWN and he was released to the care of his daughter at 1:33 a.m. 19. Pursuant to the provisions of ss. 320.31(1) and 320.31(4) of the Criminal Code , Mr.

BROWN’s blood alcohol concentration “within those two hours” [of operating the conveyance] is “conclusively presumed” to be 80 milligrams of alcohol in 100 milliliters of blood. Issue [ 7 ] This issue in this case is whether the Mandatory Alcohol Screening (MAS) demand made pursuant to s. 320.27(2) of the Criminal Code violates sections 8 and 9 of the Charter , and if so, whether that violation can be “saved” by the application of s. 1 of the Charter . Legislation [ 8 ]

Section 8 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 (“the Charter ”), reads as follows: 8 Everyone has the right to be free from unreasonable search and seizure.

Section 9 of the Charter reads as follows: 9 Everyone has the right not to be arbitrarily detained or imprisoned. [ 9 ] Prior to December 18, 2018, a demand to provide a sample into an approved screening device could only be made if the officer had formed a reasonable suspicion that the driver of the motor vehicle had alcohol in their body, pursuant to s. 254(2) of the Criminal Code . [ 10 ] On April 13, 2017, the Minister of Justice and Attorney General of Canada introduced Bill C-46,

An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts , SC 2018. Criminal Code s. 320.27(2) is included in

Part 2 and reads as follows: 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.

[11] The Mandatory Alcohol Screening (MAS) provisions are new to the Criminal Code and have been the subject of much legaldebate. Such demands may be made without any grounds and there is no requirement for an officer to suspect the individual has bloodor alcohol in his or her body. [12] There does not appear to be any allegation that Cst. Landry did not follow the provisions of this

section in making the demand he didand therefore the question is whether the law itself is constitutional. [13] To the date of this decision, there are only five reported cases addressing the constitutionality of the MAS provisions: a. R v Morrison, 2020 SKPC 28 – Baniak J. of the Saskatchewan Provincial Court found the legislation to be a violation of s.8, but found it to be a reasonable limit, pursuant to s. 1 of the Charter. b. R v Switenky, 2020 SKPC 46 – Baniak J. adopted his own reasoning from Morrison to the same end. c. R. v.

Blysniuk, 2020 ONCJ 603 – Laszczynski J. of the Ontario Court of Justice held that s. 320.27(2) does not infringe s. 8 of theCharter and, had the Court found differently, would have upheld it under s. 1. d. R. v Labillois, 2020 ABQB 200 – Justice Yamauchi upheld the decision of the Trial Judge holding that s.320.27(2) doesnot infringe s.8 of the Charter and, had the Court found such a breach, it would not have excluded the evidence in any event following as.1 Charter analysis. e. R. v. Kortmeyer, 2021 SKPC 10 (Sask. Prov.

Ct.) – Green, J. found the legislation to be a violation of s. 8, but found it to be areasonable limit and upheld it, pursuant to s.1 of the Charter. Does s. 320.27(2) violate

section 9 of the Charter? [14] Mr. Brown was initially lawfully stopped by Constable Landry at a police checkpoint. The purpose of the checkpoint was toconduct Mandatory Alcohol Screening tests on drivers who passed through the checkpoint. [15] Police also possess the power to randomly stop vehicles to check for driver’s licences, insurance and driver sobriety, at commonlaw.

The source of the initial police screening powers is found in the common law and is also implied by the statutory power to stopvehicles. [16] In Nova Scotia, the police are authorized to conduct traffic stops primarily pursuant to s. 83(1) of the Motor Vehicle Act, R.S.N.S.293, s.1. (MVA), which states: 83(1) It shall be an offence for any person to refuse or fail to comply with any order, signal or direction of any peace officer. And to a lesser extent ss. 78(2) and 18 MVA which provide the authority for peace officers to demand and inspect drivers’ licenses andvehicle permits from drivers. (see R. v.

MacLennan, 1995 NSCA 51, and R. v. Cooper, 2005 NSCA 47. [17] The police power to stop a vehicle and engage in screening tests such as driver observations, speaking to the driver, and asking aboutalcohol consumption was recognized in Dedman v. The Queen, [1985] 2 SCR 2, ; R. v. Hufsky, [1988] 1 SCR 621, , R. v. Ladouceur, [1990] 1 SCR, 1257, , and R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 SCR 3. [18] In Dedman, supra, the driver was stopped under the R.I.D.E (Reduce Impaired Driving in Etobicoke) program, the purpose of whichwas to reduce impaired driving.

The driver was charged with refusal to provide a breath sample. He was acquitted at trial, and theacquittal was upheld by the Ontario Supreme Court. The Crown appealed to the Ontario Court of Appeal, which set aside the acquittal.The accused’s appeal to the Supreme Court was dismissed. McIntyre J., for the majority at paragraph 68 stated: [68] In applying the Waterfield field test to the random stop of a motor vehicle for the purpose contemplated by the R. I. D. E. Program,it is convenient to refer to the right to circulate in a motor vehicle on a public highway as a “liberty”.

That is the way it was referred to inHoffman v. Thomas, supra, and in Johnson v.. Phillips, supra. In assessing the interference with this right by a random vehicle stop,one must bear in mind, however, that the right is not a fundamental liberty like the ordinary right of movement of the individual,but a licensed activity that is subject to regulation and control for the protection of life and property. Applying the Waterfield test,

them, and using the word “liberty” in this qualified and special sense, it may be said that the random vehicle stop in this case was primafacie an unlawful interference with liberty since it was not authorized by statute. The first question, then, under the Waterfield test iswhether the random stop fell within the general scope of the duties of a police officer under statute or common-law. I do not think therecan be any doubt that it fell within the general scope of the duties of a police officer to prevent crime and to protect life andproperty by the control of traffic. These are the very objects of the R. I. D.

E.

Program, which is a measure to improve thedeterrence and detection of impaired driving, a notorious cause of injury and death. (emphasis added). [19] The Dedman case was decided prior to the enactment of the Charter, but the principles in relation to police power for roadsidecheckpoints set out in Dedman were upheld in Hufsky, supra, which was a Charter challenge alleging arbitrary detention contrary to s. 9,as well as in relation to specific individual random highway checks in Ladouceur, supra. [20] The leading case dealing with police powers to screen drivers that are applied under provincial powers of the police to stop is theSupreme Court of Canada’s decision in R. v.

Orbanski; R. v. Elias, supra. In Orbanski , a field sobriety test was conducted after tellingthe driver that the test was voluntary. In Elias, the police conducted a random stop and question the driver about his drinking history. Inboth cases, the screening measures were challenged by the defence on the basis that rights to counsel were not provided prior to thescreening procedure. The Supreme Court noted several contextual factors in assessing screening measures in Elias at paragraph 24-27: 24 First, we are concerned here with the use of a vehicle on a highway.

This Court has recognized that, whilemovement in a vehicle involves a “liberty” interest in a general sense, it cannot be equated to the ordinary freedom of movement of theindividual that constitutes one of the fundamental values of our democratic society. Rather, it is a licensed activity that is subject toregulation and control for the protection of life and property: see Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2, at p.35.

The need for regulation and control of the use of vehicles on the highway is heightened both because of the high prevalence of theactivity and its inherent dangers. 25 Second, the effective regulation and control of this activity give rise to a unique challenge when it comes toprotecting users of the highway from the menace posed by drinking and driving. This challenge arises from the fact that drinking anddriving is not in and of itself illegal. It is only driving with an impermissible amount of alcohol in one’s body, or driving when one’sfaculties are impaired, that is criminalized.

The line between the permissible and the impermissible is not always easy to discern, and thenecessary screening can only be achieved through “field” enforcement by police officers. It follows that these officers must be equippedto conduct this screening, though with minimal intrusion on the individual motorist’s Charter rights. 26 Third, the challenge in this area of law enforcement is increased by the fact that the activity in question is ongoingand the drinking driver who has exceeded permissible limits presents a continuing danger on the highway.

The aim is to screen drivers atthe road stop, not at the scene of the accident. Hence, effective screening at the roadside is necessary to ensure the safety of the driversthemselves, their passengers, and other users of the highway. Effective screening should also be achieved with minimal inconvenience tothe legitimate users of the highway. 27 Fourth, it is important to recognize that the need for regulation and control is achieved through an interlockingscheme of federal and provincial legislation. The provincial legislative scheme includes driver licensing, vehicle safety and highwaytraffic rules.

At the federal level, the primary interest lies in deterring and punishing the commission of criminal offences involvingmotor vehicles. Control of drinking and driving is not confined exclusively to the laying of criminal charges after a criminal offence hasbeen committed. Roadside screening techniques contemplated by provincial legislation provide a mechanism for combatting thecontinuing danger presented by the drinking driver, even if the driver may not ultimately be found to have reached a criminal level ofimpairment.

Examples of such provisions in the Manitoba Highway Traffic Act applicable at the roadside include s. 263.1(1), whichpermits a peace officer to suspend a driver’s licence if the officer has reason to believe that the driver’s blood alcohol level exceeds 80milligrams of alcohol in 100 millilitres of blood or if the driver refuses to comply with a demand for a breath or blood sample made unders. 254 of the Criminal Code. Hence, although the issues on these appeals arise in the context of criminal trials, their resolution mustnonetheless take into account both federal and provincial legislative schemes.

The Court must carefully balance the Charter rights ofmotorists against the policy concerns of both Parliament and the provincial legislatures. [21] Constable Landry was operating a roadside screening checkpoint on the evening in question.

There is no suggestion by theapplicant that the initial stop was arbitrary or motivated by an improper purpose. [22] The applicant’s further detention, however, that resulted from the demand under s. 320.27(2) to check on his sobriety, incircumstances where Constable Landry did not have any grounds to suspect the applicant had alcohol in his body, nor reasonable andprobable grounds to believe that he had committed an offence is an arbitrary detention for the reasons described in R. v. Hufsky, supra,wherein Ledain, J. stated at para. 20:

[20] In view of the importance of Highway safety and the role to be played in relation to it by a random stop authority for the purpose ofincreasing both the detection and the perceived risk of detection of motor vehicle offences, many of which cannot be detected by themere observation of driving, I am of the opinion that the limit imposed by s.189a(1) of the Highway Traffic Act on the right not to bearbitrarily detained guaranteed by s. 9 of the Charter is a reasonable one that is demonstrably justified in a free and democratic society.The nature and degree of the intrusion of a random stop for the purposes of the spotcheck procedure in the present case, rememberingthat the driving a motor vehicle is a licensed activity subject to regulation and control in the interests of safety is proportionate to thepurpose to be served. [23] The Supreme Court of Canada in R. v.

Ladouceur, supra, followed the reasoning articulated in Hufsky and held that completelyrandom stops authorized by the relevant provincial highway legislation to check on sobriety, for licenses, insurance and the mechanicalfitness of cars were inconsistent with s. 9, but were again saved under s. 1 as it was found that the random stop is rationally connectedand carefully designed to achieve safety on the highways and impair as little as possible the rights of the driver. It does not so severelytrench on individual rights.

Indeed, stopping vehicles is the only way of checking on a driver’s license and insurance, the mechanicalfitness of the vehicle, and the sobriety of the driver. [24]

Section 320.27(2) does not create a new stopping or detention power by the police, and it does not change the existing stoppingpower pursuant to section 83(1) of the Motor Vehicle Act. Nor does it lengthen the detention from that which would otherwise have beenlawful for the purposes of investigating a driver’s sobriety compared to that which has already been considered in the context of randomstops to check on the sobriety of the driver. It is settled law that while the detention which flowed from the demand made pursuant tosection 320.27(2) of the Criminal Code was arbitrary and therefore a breach of the applicant’s

section 9 rights, it is saved by

section 1 forthe reasons set out in Hufsky , and Ladouceur . For the reasons stated, I am not satisfied that s. 320.27(2) violates s. 9 of the Charter. Does s. 320.27(2) violate

section 8 of the Charter? [25] A driver is required by law to comply with a demand for a breath sample made pursuant to s. 320.27(2) of the Criminal Code, just ashe or she was obliged to do under the previous demand section. Failure or refusal to comply with the demand may result in the driverbeing charged with refusal to provide a breath sample. The major difference, however, is that under s. 320.27(2) of the Criminal Code, apolice officer is not required to formulate any grounds or a reasonable suspicion about the driver’s consumption of alcohol or sobrietyprior to making the demand. [26]

Section 8 of the Charter provides that “everyone has the right to be secure against unreasonable search or seizure”. This right isengaged where the state conducts a search or seizure that interferes with an individual’s reasonable expectation of privacy. This does notmean that every state-initiated search violates

section 8 of the Charter. Before the protections of s. 8 are engaged, it is first necessary todetermine whether the applicant has established, on a balance of probabilities, that they have a subjective and objectively reasonableexpectation of privacy that exists in the item searched or seized, taking into account “the totality of the circumstances of a particularcase”. (per Cory J. in R. v. Edwards, (SCC), [1996] 1 S.C.R. 128 at para. 31). [27] In R.v.

Tessling, 2004 SCC 67 , [2004] 3 S.C.R. 432 at para. 18, Binnie J. stated: [18] In the result the right to be free from examination by the state is subject to constitutionally permissible limitations. First, “not everyform of examination conducted by the government will constitute a search for constitutional purposes. On the contrary, only where thosestate examinations constitute an intrusion upon some reasonable privacy interest of individuals as the government action in questionconstitute a ‘search’ within the meaning of s.8.”; Evans, supra, at para. 22.

It is only ”[i}f the police activity invades a reasonableexpectation of privacy,[that] the activity is a search”; R. v. Wise, (SCC), [1992] 1 S.C.R. 527 at P. 533. Second, as thelanguage of S.8 implies, even those investigations that are “searches are permissible if they are “reasonable.” A search will not offend s.8 if it is authorized by a reasonable law and carried out in a reasonable manner: R. v. Caslake, (SCC), [1998] 1 S.C.R.51 [page 433]; R. v.

Collins, (SCC), [1987] 1 S.C.R. 265. [28] The Crown in this case argues that s.320.27(2), despite authorizing the taking of a breath sample for MAS testing without theexistence of reasonable grounds or suspicion, does not violate s. 8 of the Charter. If the Court finds that it does, then the Crown submitsthat the provisions are a “reasonable limit”, “prescribed by law” and “demonstrably justified” in a “free and democratic society”.

TheCrown also argues that s.8 of the Charter is not engaged with respect to Mandatory Alcohol Screening as set out in s.320.27 (2), as whenlooking at the entire context of the situation, a person who chooses to operate a motor vehicle has a highly reduced expectation ofprivacy, if any at all, in a breath sample demanded while they are engaged in the highly regulated field of driving.

In essence, the Crownargues that there is a lesser expectation of privacy associated with the action of driving a vehicle, a highly regulated activity, incomparison to the privacy rights a person can expect within his or her home. [29] Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 [2015] 3 SCR 250 sets out a framework

for analysis of a challenge to legislation based on s. 8 of the Charter. The issue in Goodwin was the Automatic Roadside Prohibition(“ARP”) scheme established by the British Columbia Motor Vehicle Act, which established automatic driving prohibitions upon driverswho “failed” or received “warn” readings on ASD tests taken pursuant to s. 254 (2) of the Criminal Code. [30] At paragraph 48, Karakatsanis J. set out the parameters of the analysis: [48]

Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure.” This right isengaged where the state conducts a search or seizure that interferes with an individual’s reasonable expectation of privacy. Theexpectation of privacy is a normative concept, reflecting the level of privacy that we, as a society, should reasonably expect in a givencircumstance: R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 44; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, atpara. 42.

It is not merely a function of how much privacy a person may expect or enjoy with respect to their person, space orbelongings. Where a search or seizure engages the protection of s. 8, a reviewing court must determine whether the search or seizure isreasonable. In this regard, (1) the search or seizure must be authorized by law, (2) the law itself must be reasonable, and (3) the search orseizure must be carried out in a reasonable manner: R. v. Caslake, (SCC), [1998] 1 S.C.R. 51, at para. 10; R. v.Collins, (SCC), [1987] 1 S.C.R. 265, at p. 278. (emphasis added) [31] Dickson J. in Hunter et al. v.

Southam Inc., (SCC), [1984] 2 SCR 145 at 159 found that a purposive review of thechallenged legislation is to be taken in light of s. 8 of the Charter: The guarantee of security from unreasonable search and seizure only protects a reasonable expectation.

This limitation on the rightguaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlementto a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’sinterest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order toadvance its goals, notably those of law enforcement. [32] The Crown conceded in their written submissions that the MAS demand constitutes a warrantless seizure and that the onus falls onthe Crown to justify such seizure, per Hunter, 161, Goodwin, at para. 51. [33] The Court must determine if the search and seizure was a breach of the Applicant’s s. 8 rights or if the law is reasonable.

The testfor reasonableness is set out in R. v. Collins, (SCC), [1987] 1 S.C.R. 265 at para. 23, see also Goodwin, supra, at para.48, which states that a search is reasonable if: 1. It is authorized by law 2. The law is reasonable; and 3. The search was carried out in a reasonable manner 1. Is the search authorized by law? [34] I find that the first part of this test is met in the circumstances of this case. Constable Landry made the Mandatory AlcoholScreening demand to Mr. Brown explicitly pursuant to S.320.27(2) of the Criminal Code, which had been enacted and was in force atthe time of the stop.

The officer’s stated purpose for setting up the checkpoint was not only for the enforcement of the Nova ScotiaMotor Vehicle Act provisions and to enforce Criminal Code impaired driving legislation and the detection and interdiction of impaireddrivers, but specifically to subject all drivers entering or passing by the checkpoint to Mandatory Alcohol Screening. [35] Under s. 320.27(2) the following prerequisites must be met before a MAS demand may be made: A peace officer must have in his or her possession an Approved Screening Device; The peace officer must be acting in the course of his or her duties under

an Act of Parliament,

an Act of a provincial legislature orarising at common law; The target of the MAS demand must be “operating” a conveyance. [36] Constable Landry had complied with the statutory preconditions, such that the applicant was operating a motor vehicle at the timeand Cst. Landry had an approved screening device in his possession at the time of the demand. [37] Constable Landry was acting in the lawful exercise of his duties when the stop was conducted, pursuant to the provisions of the

Motor Vehicle Act and the common law power of a police officer to stop drivers at checkpoints, per Dedman v. The Queen, supra, asdiscussed in the previous

section dealing with s.9 of the Charter. [38] The fact that the search and seizure was authorized by law favours its reasonableness. 2. Is s. 320.27(2) a reasonable law? [39] The applicant has the onus to establish whether the law itself is reasonable.

All searches and seizures conducted without warrant arepresumptively unreasonable, absent exigent circumstances, and the burden of establishing reasonableness rests with the Crown. [40] An analysis of the constitutionality of subsection 320.27 (2) will be based on a determination of the impact of that legislation on anyreasonable expectation of privacy on the part of drivers operating conveyances in Canada.

The question is whether, “… In a particularsituation the public’s interest in being left alone by government must give way to the government’s interest in intruding on theindividual’s privacy in order to advance its goals, notably those of law enforcement”, see Hunter. [41] In the context of breath samples, Justice Karakatsanis, in Goodwin, supra, stated the following: [57] This Court has generally declined to set out a “hard and fast” test of reasonableness: see Thomson Newspapers Ltd. v. Canada(Director of Investigation and Research, Restrictive Trade Practices Commission), (SCC), [1990] 1 S.C.R. 425, at p.495.

In my view, this flexible approach remains compelling. This Court has nonetheless identified certain considerations that may behelpful in the reasonableness analysis, including “the nature and the purpose of the legislative scheme . . . , the mechanism . . . employedand the degree of its potential intrusiveness[,] and the availability of judicial supervision”: Del Zotto v.

Canada, (FCA), [1997] 3 F.C. 40 (C.A.), per Strayer J.A., in dissenting reasons adopted by this Court in (SCC), [1999] 1 S.C.R.3. (emphasis added) The nature and purpose of the legislative scheme [42] There can be no reasonable argument that the purpose of s. 320.27(2) of the Code, to deter, detect and remove impaired drivers fromthe streets and highways of Canada is highly compelling. Despite the efforts of government and society over decades, impaired drivingremains the most significant criminal cause of death in Canada. This legislative purpose or intent is clear from the

preamble to Bill C-46and s. 320.12 of the Criminal Code. [43] The

preamble of

Chapter 21 states in part: Whereas dangerous driving and impaired driving injure or kill thousands of people in Canada every year; Whereas dangerous driving and impaired driving are unacceptable at all times and in all circumstances; Whereas it is important to deter persons from driving while impaired by alcohol or drugs; Where it is important that law enforcement officers be better equipped to detect instances of alcohol-impaired or drug impaired drivingand exercise investigative powers in a manner that is consistent with the Canadian Charter of Rights and Freedoms.

Whereas it is important to simplify the law relating to the proof of blood alcohol concentration; Whereas it is important to protect the public from the dangers posed by consuming large quantities of alcohol immediately beforedriving;

Whereas it is important to deter persons from consuming alcohol or drugs after driving in circumstances where they have a reasonableexpectation that they would be required to provide a sample of breath or blood; Whereas it is important that Federal and Provincial laws work together to promote the safe operation of motor vehicles; And whereas the Parliament of Canada is committed to adopting a precautionary approach in relation to driving and the consumption ofdrugs, and to deterring the commission of offences relating to the operation of conveyances, particularly dangerous driving an impaireddriving. [44]

Section 320.12 sets out the objectives of detection and deterrence, and states, in part: It is recognized and declared that Operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that included licensing, theobservance of rules and sobriety; The protection of society is well served by deterring persons from operating conveyances or while their ability to operate them isimpaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians; The mechanism [45] A law’s purpose as criminal rather than regulatory can lead to it being subject to more stringent scrutiny: Goodwin, supra, atparagraph 60.

In examining the BC ARP scheme in 2015, Karakatsanis J. noted that an ASD test is only the first stage of an impaireddriving investigation. She also noted the highly regulatory nature of driving as an activity and that driving itself is not a right, but aprivilege (at paragraphs 62-63): [62] The ASD test is the sole basis for the penalties and suspensions provided for in the ARP scheme. This is markedly different fromthe criminal context, in which the ASD test is only the first

part in the Criminal Code’s two-step process for investigating drunk-drivingoffences. At this first stage, an officer need only have a reasonable suspicion that the driver has alcohol in their body: R. v. Lindsay(1999), (ON CA), 134 C.C.C. (3d) 159 (Ont. C.A.); R. v. Butchko, 2004 SKCA 159, [2005] 11 W.W.R. 95. However, these reduced protections for drivers at the roadside screening stage are counterbalanced by limitations on the use to which apotentially unreliable ASD result can be put.

It has the limited role of constituting the grounds for a further breath demand, conductedusing a breathalyser at a police station, and cannot alone establish an offence under the Criminal Code. (emphasis added) [63] Driving on highways is, of course, a highly regulated activity, and drivers expect that the rules of the road will be enforced. Thisreality, combined with the scheme’s location within a broader regulatory framework targeting driving and highway safety, supportscharacterizing the regime as regulatory and applying a more flexible standard in assessing its reasonableness.

However, other features ofthe scheme suggest that closer scrutiny is required to ensure the state does not unreasonably interfere with a driver’s privacy interest. First, while the breath seizure occurs for a regulatory purpose, it nonetheless has certain criminal-like features, such as its administrationby a police officer pursuant to Criminal Code authorization.

Second, while the consequences that follow a “fail” reading or the failure toprovide a sample are not criminal, they are immediate and serious, and arise without a further test using a (more reliable) breathalyser. [46] In Goodwin, at paragraphs 64-68, Karakatsanis J. noted two specific aspects of the ASD test which would be relevant to thereasonableness analysis in the context of the challenged regime. [47] The first is the degree of intrusiveness, which she noted that a breath test in fact amounts to the use of a person’s body against him(paragraph 65), but noted that: [65] However, a roadside ASD test is far less intrusive than many other searches or seizures that may be performed for law enforcementpurposes, such as the blood sample at issue in Dyment, or a DNA swab, which contains deeply personal information: R. v.

S.A.B., 2003SCC 60, [2003] 2 S.C.R. 678, at para. 48. The roadside breath demand authorized by the Criminal Code has a much less significantimpact on an individual’s bodily integrity and privacy interests: R. v. Stillman, (SCC), [1997] 1 S.C.R. 607, at para.90. This minimally intrusive character supports the reasonableness of the ASD seizure. [48] The second aspect of the mechanism is reliability. In Goodwin, this is where the legislation failed, in that there was no mechanismfor the reliability of the ASD test to be challenged or reviewed.

Indeed, in subsequent amendments, the BC government made provisionfor this. At paragraph 67:

[67] The reliability of a search or seizure mechanism is directly relevant to the reasonableness of the search or seizure itself: R. v.Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 48. As noted in Chehil, “[a] method of searching that captures an inordinate numberof innocent individuals cannot be reasonable”: para. 51. By contrast, a high degree of accuracy has been crucial to endorsing sniffer-dogsearches on a lower standard of reasonable suspicion: R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569, at para. 11; see also R. v.

Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456. [49] The lack of meaningful safeguards to ensure reliability, including the absence of an opportunity for a second test, was seen as aserious flaw in the BC ARP scheme, both at this stage and at s. 1. [50] In the case of s. 320.27(2), reliability and availability of judicial review are not the factors they were in Goodwin. With respect toreliability, the MAS results themselves are not evidence of either impaired driving or of having an excess blood alcohol level. Theresults go only to grounds for a further, more precise and accurate test by an Approved Instrument.

A driver found by an ApprovedInstrument to have an excess Blood Alcohol Concentration will have all of the procedural safeguards available to him under Canadianlaw. [51] Determining whether and to what extent a person can reasonably expect privacy in a particular situation requires a contextualassessment that takes into account the totality of the circumstances. The idea that a variety of circumstances may reasonably inform aperson’s expectation of privacy is consistent with a common sense understanding of the concept of privacy. R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128, at paras. 31 and 45. [52] Operating a conveyance on Canadian streets, roads and highways is a privilege and not a right, a privilege which comes withexpectations on the part of other operators and society at large that a person will be qualified to operate said conveyance, and that driverswill comply with the other requirements of federal and provincial law. As noted by Cory J., concurring in the result, in R. v.

Bernshaw, (SCC), [1995] 1 SCR 254 at paragraph 33: [33] This requirement to undergo the ALERT testing immediately should be regarded as one of the obligations that flows from the rightto drive. In Galaske v. O'Donnell, (SCC), [1994] 1 S.C.R. 670, at p. 686, it was noted that the driving of a motorvehicle is neither a God-given nor a constitutional right. Rather, it is a privilege granted by licence. Attached to every right areconcomitant duties, obligations and responsibilities. This is true of the licensed right to drive.

One of the prime responsibilitiesof a driver is to see that reasonable care is exercised in the operation of the motor vehicle, and specifically, that it is driven in amanner which does not endanger members of the public. That duty or responsibility cannot be fulfilled by an impaired driverwho, by definition, endangers others. In furtherance of the duty not to endanger others, there exists an obligation to comply with apolice officer's reasonable request to supply a breath sample.

Complying with a reasonable request to take an ALERT test is a very smallprice to pay for the privilege of driving. (emphasis added) [53] The Court in Bernshaw was dealing with the meaning to be assigned to the word “forthwith” in light of an allegation of a s. 10(b)violation, but the same principle would apply. [54] A person simply has a reduced expectation of privacy when operating a conveyance on a highway. This has been recognizedregularly in Canadian Courts. For example, in R. v.

Koulakis, 2012 QCCQ 4276 , the Quebec Superior Court noted, in a caseinvolving an alleged Charter s. 8 breach involving the discovery of cocaine in a vehicle, that: [40] The Supreme Court has consistently held that an individual has a reasonable expectation of privacy in his automobile. However,the same judicial pronouncements have also opined that an individual's reasonable expectation of privacy in an automobile isconsiderabley [sic] less than in a private dwelling. As Sopinka J. explained in R. v.

Belnavis: There is a marked difference between the expectation of privacy in a dwelling and an automobile which, pursuant to decisions of thisCourt, can be lawfully stopped by police officers virtually at random. (See R. v. Ladouceur, (SCC), [1990] 1 S.C.R.1257, and R. v. Wise, (SCC), [1992] 1 S.C.R. 527. [41] A reduced expectation of privacy in a motor vehicle was justified on the grounds of public safety and the need to regulate drivingon public thoroughfares. In the case of R. v.

Wise, Cory J. explained that: Society (. . .) requires and expects protection from drunken drivers, speeding drivers and dangerous drivers. A reasonable level ofsurveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection. [42] Automobiles are justifiably the subject of pervasive regulation by the State. Every driver of a motor vehicle must expect that theState, in enforcing its regulations, will intrude to some degree upon that operator's privacy.

The Supreme Court has ruled on a number ofoccasions that pursuant to statutory authority the police can randomly stop persons for “reasons related to driving a car such as checkingthe driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle.”

[55] The comments on this issue by Cory J., for the majority, in R. v. Wise, (SCC), [1992] 1 SCR 527 at p. 11 ,while expressed in the context of a warrantless attachment of an electronic tracking device to a murder suspect’s car, bear repeating atfurther length: 11. The expectation of privacy in a vehicle cannot be as great as that contended by my colleague. For the safety and well-beingof society, motor vehicles and their drivers are subject to a great many statutory requirements, conditions and regulations. Almost everyaspect of the use of a motor vehicle is controlled.

The side of the road on which a car may be driven; the speed at which it may proceed;when it may overtake and where it may overtake another vehicle; where and when it must stop; the mechanical condition of the vehicle;the installation of certain accessories, be they required or prohibited; the places where a vehicle may park: all these and many more arecircumscribed by various Acts and regulations.

For the safety of all, it is essential that drivers be tested before receiving their licence; that RIDE programs be instituted to discourage thedrinking driver; that the speed of vehicles be supervised and that the mechanical fitness of vehicles be inspected. These inspections andtests and this supervision do not constitute unreasonable breaches of basic civil liberties. Rather, they are common sense rulesthat exist for the protection of society as a whole. Reasonable surveillance and supervision of vehicles and their drivers areessential.

Without them, motor vehicles inevitably become instruments of crippling injury, death and destruction. Society then requires and expects protection from drunken drivers, speeding drivers and dangerous drivers. A reasonable levelof surveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection.

Allthis is set out to emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreasedrelative to the expectation of privacy in one's home or office. (emphasis added) [56] Questioning of drivers in relation to their consumption of alcohol has been found to be within police powers at common law and areasonable limit on s. 10(

b) rights to counsel, see: R. v. Orbanski; R. v. Elias, supra, at paras. 55-60. [57] In R. v. Weintz, 2008 BCCA 233, application for leave to appeal dismissed by the Supreme Court of Canada (SCC), a BC police officer stopped a vehicle following reports of erratic driving: [4] The motorist who made the observation phoned a police operator and a police vehicle was dispatched to the area where therespondent was driving his truck. Cst.

Long, the officer who stopped the respondent, said that after following the vehicle for a shortdistance he observed the truck sort of wandering away from the centre line to the fog line and back again. Cst. Long testified that as hestood conversing with the respondent driver at the window of the vehicle, there was a smell of liquor coming from the interior. Cst.Long asked the respondent if he had been drinking anything, but before he could answer, a companion of the respondent who was sittingin the passenger seat said that he had been drinking and that any smell of liquor was coming from him. Cst.

Long then asked the driverto get out of the vehicle. After the respondent exited the vehicle, Cst. Long directed the driver to "blow in his face". The respondentcomplied with the request and the officer detected an odour of alcohol on his breath. [58] The question before the court was whether the request made by the officer that the driver “blow in his face” constituted anunreasonable search. The BC Court of Appeal found that it did not and leave to appeal to the Supreme Court of Canada was refused.

Atparagraphs 22 to 27, Hall J.A., wrote for the Court: [22] Doherty J.A. observed in Smith that he saw little distinction between evidence that flows from a physical sobriety test and evidenceresulting from a driver's answers to questions about drinking put to him by a police officer. In the present case, I likewise do not perceiveany distinction between those sorts of investigative procedures and asking a person to blow breath into the face of the investigatingofficer. All are simply different roadside screening methodologies utilized by a police officer to detect the presence of alcohol in thebody of a driver.

In the instant case, such a request was reasonable because of the factual circumstances of this case. When the officerhere directed a question to the respondent about drinking, there was an immediate response from the adult passenger that he had beendrinking and that any odour of alcohol in the vehicle was presumably attributable to the passenger. It then became requisite for theofficer to determine the source of the odour of liquor. An effective and speedy methodology of doing such an assessment was tomake the request the officer did to this respondent.

Such a procedure is, in my opinion, minimally intrusive and can be speedilyperformed at the side of the road. It thus accords with the parameters enunciated by Doherty J.A. in Smith and approved inOrbanski at para. 46. … [25] However, the factual situation disclosed in the present case is quite different from what occurred in Stillman. The results ofroadside screening techniques or questions about alcohol consumption are not to be utilized as evidence to incriminate a driver.

Charron J. noted this in para. 58 of Orbanski: "[…] evidence obtained as a result of the motorist's participation without the right tocounsel can only be used as an investigative tool to confirm or reject the officer's suspicion that the driver might be impaired. It cannotbe used as direct evidence to incriminate the driver". She referred, as well, with approval to previous cases such as R. v. Milne (1996),

(ON CA), 107 C.C.C. (3d) 118, 28 O.R. (3d) 577 (C.A.), leave to appeal to S.C.C. refused, [1996] 3 S.C.R. xiii, whereit was held that evidence obtained from roadside screening procedures should be limited to determining whether there existed a properbasis to make a demand for a breath sample under the provisions of the Criminal Code. In my opinion, the appeal judge fell into errorwhen he found Stillman to be applicable here because the request to blow breath was not for the purpose of obtaining evidence toincriminate the respondent.

The possibility of obtaining evidence that could incriminate the respondent only arose at that pointin time when the investigating officer concluded he had reasonable and probable grounds to believe that the individual had beendriving whilst impaired or had consumed alcohol to an extent to have a blood alcohol reading over .08.

At that point in time, ofcourse, the required information must be furnished to a driver that he has the right to retain and instruct counsel without delay and thedriver is to be afforded such right (Charter s. 10(b)). [26] This was made clear in the following passages from the judgment of Charron J.: [56] As discussed earlier, because of the nature of the activity, it is necessary that the police be empowered to use effective roadsidescreening methods to assess the level of impairment of drivers so as to ensure the safety of all users of the highways.

Hence the use ofreasonable screening methods within the scope that we have discussed, and the implicit abridgment of the right to counsel, are rationallyconnected to the state objective. [57] The infringement on the right to counsel is also no more than necessary to meet the objective. As described earlier, the scope ofauthorized police measures is carefully limited to what is reasonably necessary to achieve the purpose of screening drivers for impaireddriving.

Further, the limitation on the right to counsel has strict temporal limits – there is no question that the motorist who is notallowed to continue on his way but, rather, is requested to provide a breath or blood sample, is entitled to the full protection of theCharter right to counsel. [27] At the point in time when the officer directed the request to the respondent to blow breath in his face, the respondent was not beingasked to provide evidence that could be used to incriminate him.

This request was simply part of a roadside screening process of the typefound permissible under authorities such as Bonin, Smith and Orbanski. Information thereby obtained would not be available toincriminate the respondent, unlike the situation where a breathalyzer test is requested…. (emphasis added) [59] Some of these cases involve s. 10(

b) right to counsel, rather than s. 8 unreasonable search, arguments, but the similarities inapproach should be noted, especially in light of the statutory codification of the limits on the use of the results of such screeningtechniques as are found in s. 320.31(9) of the Code. An officer can constitutionally demand, without any specific statutoryauthorization, that a driver blow in his face to determine the presence of alcohol in the driver’s body.

A demand to provide a sampleinto an approved screening device would not be much more intrusive. [60] Several factors will impact on the “totality of the circumstances” in determining the extent of the “reasonable expectation ofprivacy” of a driver subject to an MAS demand. [61] Canadian Courts have in the past found a reasonable expectation of privacy in bodily substances, see: R. v. Stillman, (SCC), [1997] 1 SCR 607. The primary issue in Stillman related to the question of search incidental to arrest.

The Court, afterdefining that police power and finding that the seizure of hair and buccal swabs, as well as dental impressions, were made outside thatpower, determined the seizure to be a s. 8 breach. At paragraph 42, Cory J. wrote: [42] I agree with that position. It has often been clearly and forcefully expressed that state interference with a person’s bodily integrityis a breach of a person’s privacy and an affront to human dignity. The invasive nature of body searches demands higher standards ofjustification. In R. v.

Pohoretsky, (SCC), [1987] 1 S.C.R. 945, at p. 949, Lamer J., as he then was, noted that, “aviolation of the sanctity of a person’s body is much more serious than that of his office or even of his home”. In addition, La Forest J.observed in R. v. Dyment, (SCC), [1988] 2 S.C.R. 417, at pp. 431-32, “the use of a person’s body without his consent toobtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity”.

Finally, in R. v.Simmons, (SCC), [1988] 2 S.C.R. 495, at p. 517, Dickson C.J. stated: The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers haverecourse to medical doctors, to X-rays, to emetics, and to other highly invasive means.

Searches of the third or bodily cavity type may raise entirely different constitutional issues for it is obvious that the greater the intrusion,the greater must be the justification and the greater the degree of constitutional protection. [62] However, while courts have found a reasonable expectation of privacy in breath and blood samples where those samples have beenused for the purpose of criminal prosecution, that expectation should be, it is submitted, lower in cases of roadside screening, where the

sample is not for that purpose. For example, in Bernshaw , L’Heureux-Dube J. argued at paragraph 100 that: [100] What is the nature of the reasonable expectation of privacy in relation to the monitored activity in question (in this case, roadsideassessments of drivers' sobriety)? As was the case in Simmons, supra, I believe that this activity is one in which the reasonableexpectation of privacy is lower due both to the nature of the activity and to the nature of the means available to regulate it.

ALERT tests,spot checks, and other such measures all regulate conduct arising in the particular context of driving and with the particular goal ofcurtailing a particular subset of that activity -- impaired driving. When individuals obtain a driver's licence, they accept the manyresponsibilities that come with that privilege and, most importantly, undertake a responsibility to others to conduct themselves safely onthe nation's roadways. It is common knowledge, moreover, that impaired driving is dangerous and that the state must take certainmeasures to curb this pressing problem.

People who decide to drink and drive do so either in conscious disregard for, or wilfulacceptance of, the risks which that activity entails. Any reasonable expectation of privacy which they may entertain while in theirvehicle is therefore lower with respect to assessments of their sobriety than with respect to most other activities that do not raise similarconsiderations. [63] As Professor Robert Solomon argues: Balancing against this, however, is the fact that providing a breath sample on an ASD is minimally intrusive.

Placed on the spectrum ofbodily intrusions, breath samples are much less intrusive than providing other bodily fluids (such as urine or blood), pat-down and stripsearches, searches of body cavities, and so-called “bedpan vigils.” In fact, providing a breath sample seems less intrusive than havinghair samples or buccal swabs taken for DNA testing, which were found not to violate

section 8 in R v SAB.

While that case admittedlyexamined DNA samples seized under a special warrant for forensic analysis, it does suggest that the courts are becoming less prudishabout the taking of bodily samples than they were in the 1980s and 90s, when for example, the Ontario Court of Appeal referred to thetaking of a blood sample as “an interference of a very intrusive nature,” and somewhat melodramatically condemned the taking of abreath sample as the seizure of “the very breath one breathes.” By contrast, Justice Arbour explained in SAB that the process of DNAtesting is not necessarily intrusive: [U]nder a properly issued DNA warrant, the degree of offence to the physical integrity of the person is relatively modest.

A buccal swabis quick and not terribly intrusive. Blood samples are obtained by pricking the surface of the skin — a procedure that is, as conceded bythe appellant, not particularly invasive in the physical sense. With the exception of pubic hair, the plucking of hairs should not be aparticularly serious affront to privacy or dignity. We submit the approach in SAB provides a more realistic assessment of the level of physical intrusiveness involved in taking manybodily samples. Extending this reasoning to RBT, the capture of a driver’s exhaled breath seems minimally intrusive.

The sample takesonly seconds to provide and does not involve pain or discomfort. There is no intrusion into the driver’s body, nor an exposure of anybody parts that are normally concealed. Indeed, some of the arguments that have been made in support of fingerprinting could be madewith greater force in support of breath testing on ASDs. For instance, in R v Beare; R v Higgins, Justice La Forest explained, “[w]hilesome may find [fingerprinting] distasteful, it is insubstantial, of very short duration, and leaves no lasting impression.

There is nopenetration into the body and no substance is removed from it.” Further, unlike fingerprints, which provide a lasting record and may tiean individual to other crimes, the results of a breath test on an ASD are transitory and do not implicate a driver in any other offence. Prof. Robert Solomon, Prof. Erika Chamberlain, Maria Abdoullaeva, Ben Tinholt and Suzie Chiodo, “The Case for ComprehensiveRandom Breath Testing Programs in Canada: Reviewing the Evidence and Challenges” (2011) 49:1 Alberta Law Review 37 at 38 (2011CanLIIDocs 139) (footnotes omitted). [64] R. v.

Monney, (SCC), [1999] 1 SCR 652, where a law authorizing the detention of a traveller entering Canada in a“bed pan vigil” while awaiting a bowel movement which was expected to contain drugs was upheld, with the Court holding that: [44] A second important distinction between the circumstances of this appeal and those present in Stillman is that the customs officers,in detaining the respondent in this case and subjecting him to a passive “bedpan vigil”, were not attempting to collect bodily samplescontaining personal information relating to the respondent.

Cory J. in Stillman expressed particular concern that the actions of thepolice in gathering DNA evidence violated the respondent’s expectations of privacy in using his body to obtain personal information. He relied in part on La Forest J.’s observation in R. v. Dyment, (SCC), [1988] 2 S.C.R. 417, at pp. 431-32, that "the useof a person's body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenanceof his human dignity".

Thus the right of privacy protected by s. 8 of the Charter ensures that individuals are able to maintain bodilyintegrity and autonomy in the face of potential state interference. Cory J. summarized the connection between privacy and bodilyintegrity as follows, at para. 87: Canadians think of their bodies as the outward manifestation of themselves. It is considered to be uniquely important and uniquely theirs.Any invasion of the body is an invasion of the particular person.

Indeed, it is the ultimate invasion of personal dignity and privacy. [45] Heroin pellets contained in expelled faecal matter cannot be considered as an “outward manifestation” of the respondent’s identity. An individual’s privacy interest in the protection of bodily fluids does not extend to contraband which is intermingled with bodily wasteand which is expelled from the body in the process of allowing nature to take its course.

It is not necessary for determination of the issuein this appeal to address the question of whether, if the customs officers had adopted a more invasive form of collection, such as surgery

or inducing a bowel movement, the result would necessarily be the same. [46] As to my determination that the passive “bedpan vigil” conducted by the customs officers is properly classified as a search withinthe second category, a review of the representative border searches provided by Dickson C.J. in his analytical framework reveals that theprincipal distinction between searches in the second and third categories is that all of the examples listed in the third category involve, toa greater or lesser degree, the intentional application of force.

Search techniques such as the insertion of a probe into a body cavity or theadministration of an emetic could all be characterized in the absence of lawful authority as an assault. Consequently, the potential degreeof state interference with an individual’s bodily integrity for searches in the third category requires a high threshold of constitutionaljustification.

In Stillman, Cory J. affirmed the highly invasive nature of searches in the third category when he stated as follows, at para.42: It has often been clearly and forcefully expressed that state interference with a person's bodily integrity is a breach of a person's privacyand an affront to human dignity. The invasive nature of body searches demands higher standards of justification. In R. v. Pohoretsky, (SCC), [1987] 1 S.C.R. 945, at p. 949, Lamer J., as he then was, noted that, "a violation of the sanctity of a person'sbody is much more serious than that of his office or even of his home".

In addition, La Forest J. observed in R. v. Dyment, (SCC), [1988] 2 S.C.R. 417, at pp. 431-32, "the use of a person's body without his consent to obtain information about him, invadesan area of personal privacy essential to the maintenance of his human dignity". Finally, in R. v.

Simmons, (SCC), [1988]2 S.C.R. 495, at p. 517, Dickson C.J. stated: The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers haverecourse to medical doctors, to X-rays, to emetics, and to other highly invasive means. … [48] While I conclude that the compelled production of a urine sample or a bowel movement is an embarrassing process, it does notinterfere with a person’s bodily integrity, either in terms of an interference with the “outward manifestation” of an individual’s identity,as was the central concern in Stillman, or in relation to the intentional application of force, as was relevant in Simmons.

As is the casewith other investigation techniques in the second category such as a strip search, subjecting travellers crossing the Canadian border topotential embarrassment is the price to be paid in order to achieve the necessary balance between an individual’s privacy interest and thecompelling countervailing state interest in protecting the integrity of Canada’s borders from the flow of dangerous contrabandmaterials…. [65] As argued by Professor Solomon: Millions of Canadians are routinely subject to mandatory screening at Canadian airports, courts and other government facilities, wherethey are required to pass through a metal detector and have their baggage and person searched.

In 2015, an estimated 131 millionpassengers “enplaned and deplaned” at Canadian airports, at which it is not uncommon for them to have to take off their shoes, belt andjewellery; have their carry-on belongings swabbed for explosive residue; be subject to a full body scan for weapons under their clothes;empty their pockets into a tray; and/or submit to a thorough pat-down search (which involves being touched on the neck, legs, arms,chest, hips, and buttocks through their clothes). Nor is it uncommon to stand in line for 10 or 15 minutes waiting to be subject to thesescreening and search procedures.

Nevertheless, as [Professor Peter] Hogg noted, “[t]he concerns about safety that prompt theseprocedures are well understood by travellers, and so far as I know they have never been challenged.” We would suggest that, for many people, it is a far greater intrusion on privacy to have one's purse, briefcase and luggage publiclysearched, and more humiliating to be patted down in public or strip-searched in private at a busy airport, than to provide a breath samplewhile sitting in one's car for two minutes at roadside like every other driver passing through a MAS checkpoint.

As indicated above,nearly 80% of Canadians surveyed responded that MAS is a reasonable intrusion on drivers. The roughly 91 million returning Canadians and international visitors entering the country each year may be subject to similar borderscreening and search procedures. In R. v.

Simmons, the Supreme Court of Canada stated in regard to routine inspections of baggage andpat-down searches at border crossings, “No stigma is attached to being one of the thousands of travellers who are daily routinelychecked in that manner upon entry to Canada, and no constitutional issues are raised.” The Court explained that given the state's securityinterests and the diminished expectation of privacy at border crossings, such routine inspections neither violated s. 8, nor constituted adetention within the meaning of the Charter. Prof. R. Solomon, Prof E.

Chamberlain, “The Road to Traffic Safety: Mandatory Breath Screening and Bill C-46”, (2018) 23 Can. Crim.L. Rev. 1. (footnotes omitted)

[66] In R. v. Campanella, (ON CA), the Ontario Court of Appeal found that laws authorizing the screening ofpersons entering a courthouse were valid under s. 8. While attempting to enter a courthouse for a court appearance on a drug charge, theaccused was required to pass through a metal detector. Under the screening program in place at the time, anyone without a securityclearance had to pass through metal detectors. Bags and purses that contained metal were searched manually for weapons or anythingthat could be used as a weapon.

A person in the security line could turn back at any time if he or she did not wish to be examined, andcould pause to transfer non-metallic objects from hand baggage to a pocket where it would not be searched. As the accused's purse wouldhave set off the metal detector, she voluntarily produced it for manual inspection. A baggie containing a small amount of marijuana wasfound in the purse, and the accused was charged with possession of a controlled drug. [67] The Court held, at paragraphs 18-19: [18] I start with the importance of the government objective.

It is notorious that, unfortunately, there have been serious incidents ofviolence in the courthouses of this province by the use of weapons that have been brought into the courthouse. Court proceedings areemotionally intense. Family, criminal and civil litigation involves matters of great consequence to the parties and those associated withthem. The proceedings can provoke strong emotions. Everyone with business in the courthouse and ordinary members of the public havethe right to expect that a courthouse will be a place of safety.

The public generally expects the government to ensure the safety of peoplewho are either required or wish to attend court. We pride ourselves on having an open and transparent justice system. A necessaryincident of that system is that people who attend the courthouse to participate in or merely observe the proceedings will feel safe whenthey do so. Most members of the public would expect the government to take reasonable measures to ensure the safety of the courtroomenvironment. [19] The means chosen by the legislature are reasonable.

I agree with the federal and provincial Crown that the only effective way todiminish the risk in a large courthouse is to subject everyone without prior security clearance to some kind of inspection. I can see noother feasible means of achieving the aim. Indeed any other measure, such as random checks, would likely lead to concern that the lawwas being administered in a discriminatory manner. [68] The Court noted: [25] I am sensitive to the concern that we should not erode the benefits and protections of s. 8 by gradually sanctioning ever-greaterintrusions into privacy because of unfounded fears.

We should not lightly accept that searches in public places are justified solelybecause people have become used to them and expect them. However, the record in this case establishes the justification for the kinds ofsearches carried out in this case. [26] I agree with the reasons of Jewers J. in R. v. Lindsay, 2001 MBQB 226 , [2001] M.J. No. 377, 158 Man. R. (2d) 176(Q.B.), at para. 58 (approved in R. v. Lindsay, 2004 MBCA 147 , [2004] M.J. No. 380, 187 Man. R. (2d) 236 (C.A.), at para.18), considering a similar statutory scheme in Manitoba: In

summary I find the law to be reasonable. The legislation addresses a legitimate concern - the safety of all those in the court complex;experience both here and in other jurisdictions has shown that weapons are being brought into the courthouses and it is desirable thatthey be detected and prohibited. The Manitoba authorities could have chosen to rely upon the pre-existing security regime but that wasnot sufficient to discover all of the many varied types of weapons or potential weapons that were being brought into the court complex.The current system makes for a safer and more reassuring environment.

The means chosen are non-intrusive and bear no stigma. Arequirement for prior authorization based on reasonable and probable grounds would not be feasible. The law is neither vague nor over-reaching. It is constitutional. [69] This is the approach taken by Leszczynski J. in Blysniuk, supra. There, a driver had been stopped under the Highway Traffic Act fora peeled license plate. Once stopped, the Investigating Officer made a s. 320.27(2) MAS demand, because it was a Saturday nightduring the Christmas holiday period. [70] Leszczynski J. examined the constitutionality of ss. 320.27(2) under s. 8, 9 and 10(

b) of the Charter. The Court found: (

a) The accused’s s. 8 rights were triggered, in that the taking of a MASD sample constituted a search and that the driver had a reasonableexpectation of privacy, although “minimal and residual” for the reasons which the undersigned has expressed above (paragraphs 19-31) (

b) The search was authorized by law (para. 33) (

c) s. 320.27(2) is a reasonable law (paragraphs 34-62) (

d) The search was carried out in a reasonable manner (paragraph 63-64). [71] Leszczynski J. concluded, at paragraph 66:

[66] I have concluded based on a balancing of all of the factors I have referred to above, that the search and seizure that was carried outpursuant to s. 320.27(2) was reasonable in the circumstances. The personal and informational privacy interests of an individual who isoperating a motor vehicle in their blood alcohol concentration as measured by an approved screening device administered pursuant to thestatutory requirements of s. 320.27(2) is, at its highest, a minimal and residual privacy interest.

The pressing and substantial objectives ofthe law aimed at increasing the rate and reliability of detection and increasing deterrence are met by eliminating suspicion-based testing,which has proven to be unreliable in many circumstances, with a screening method that is scientifically-accepted and reliable. Whiledrivers who have not consumed any alcohol may now be required to provide a sample of their breath into an ASD, the law alreadypermits the police to stop and detain such drivers and to take steps to investigate their sobriety.

Although prior screening measures did notinvolve a search and seizure unless an officer had a reasonable suspicion that the driver had alcohol in their body, the impact of thesearch and seizure pursuant to s. 320.27(2) is minimally intrusive on a person's privacy interests and bodily integrity.

The statutoryrequirements when a demand is made are set out in s. 320.27(2) and are designed to ensure that it results only in a very brief roadsidedetention of an individual who is voluntarily engaged in the highly regulated and dangerous activity of driving a motor vehicle, which inthis case lasted not more than 2 minutes.

Section 320.27(2) contains appropriate restrictions on when and in which circumstances thepolice may conduct this screening (lawful stop, present operation of a motor vehicle, and the approved screening device in the officer'spossession), as well as, the limited use that can be made of the results (only as a screening measure and not to establish guilt). If chargesare laid against an individual, there is judicial oversight through a trial where the defence can challenge the lawfulness of the stop,lawfulness of the demand and the search itself.

While there is the potential for the disproportionate application of this law againstracialized and other marginalized populations, this can also be said of the former s. 254(2). In many ways s. 320.27(2) serves to increaseoverall fairness by removing the subjectivity involved in the prior suspicion-based testing. Overall, the law is reasonable havingconsideration of the totality of the circumstances and the context.

In this particular case, the search was authorized by the law, the lawitself is reasonable and the search was carried out reasonably and in full compliance with the statutory requirements of s. 320.27(2) andmet the test in Smith, supra. 3. Was the search carried out in a reasonable manner? [72] The reasonableness of the search must be assessed in light of the totality of the circumstances (R. v. Mann, 2004 SCC 52 ,[2004] 3 S.C.R. 59 at para. 44).

This includes an assessment of police conduct in executing the search, the extent of the interference, andwhether the search was minimally intrusive on the privacy interest at stake, per R. v. Macdonald, 2014 SCC 3 , [2014] 1 S.C.R.37 at para. 47. [73] In this case, it is not disputed that Cst. Landry complied with the statutory requirements set out in s. 320.27(2). The officer lawfullystopped the Applicant, who was operating a motor vehicle at a MAS checkpoint. He had a screening device in his possession at the timeand made a demand of the Applicant driver at the scene pursuant to s. 320.27(2).

He quickly administered the screening test at thescene. According to the agreed statement of facts, from the time the demand was made at 9:38 p.m., the result of the analysis was a“fail”, resulting in Cst. Landry forming reasonable and probable grounds to believe that Mr. Brown was committing an offence contraryto s. 320.14(

b) of the Criminal Code. As a result, Mr. Brown was placed under arrest. [74] There was no evidence of any conduct on the part of the officer that he improperly stopped the Applicant or that he was delayed inmaking the demand or administering the test. There is no suggestion that the Applicant’s safety was put at risk as a result of thedetention or the administering of the test, that the officer breached his privacy further than was required to administer the test, or that thesearch was carried out in a manner that went beyond that which was necessary in order to obtain a suitable breath sample.

For thesereasons, I conclude that the search and seizure was carried out in a reasonable manner. [75] For the reasons set out above, I find that the taking of a MASD sample constituted a search, which triggered the Applicant’s s. 8Charter rights, and that he had a reasonable expectation of privacy, although the privacy interest in this case is minimal and residual. Ifurther find that the search was authorized by law and that s. 320.27(2) is a reasonable law, and the search was carried out in a reasonablemanner. [76] The MAS regime authorized by s. 320.27(2) is not in conflict with s. 8 of the Charter.

Prior judicial authorization is unreasonable toexpect and subsequent judicial review is available. A driver has a highly reduced expectation of privacy, if any at all, in a breath sampledemanded while she is engaged in a highly regulated field. A breath sample as authorized by s. 320.27(2) is minimally intrusive, takingonly seconds to provide while the driver sits in his car. There is no stigma attached as no drivers are singled out.

The sample itself is forscreening purposes only and has no evidentiary value, except to provide grounds for further investigations at which point all thesuspect’s Charter and other rights will and must be fully recognized.

More importantly, a breath sample demanded under s. 8 providesneither identifying nor lasting information. [77] I am satisfied that s. 320.27 strikes an appropriate balance between the pressing and substantial interest in the detection anddeterrence of impaired driving and the individual driver’s privacy interests and does not infringe s.8 of the Charter and accordingly, theresults of the analysis of Mr. Brown’s breath by an Approved Instrument are admissible at trial.

Section 1 Charter analysis [78] If I am wrong in my conclusion, I have considered whether s. 320.27(2) is saved by s. 1 of the Charter as a reasonable limit that isdemonstrably justified in a free and democratic society, per R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, at paras. 66-70. [79]

Section 1 of the Charter reads as follows: The Canadian Charter of Rights and Freedoms guarantees the right and freedoms set out in it subject only to such reasonable limitsprescribed by law as can be demonstrably justified in a free and democratic society. [80] As stated in Morrison, supra, at paragraphs 154-156: [154] The test focuses on two main considerations: 1) th

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