Gray vs. Nova Scotia (Attorney General), 2022 NSSC 333

SUPREME COURT OF Nova Scotia Citation: Gray vs. Nova Scotia (Attorney General) , 2022 NSSC 333 Date: 20221116 Docket: Hfx. No. 488165 Registry: Halifax Between: Michelle Maureen Gray Plaintiff v. The Attorney General of Nova Scotia representing His Majesty the King in right of Nova Scotia, and The Attorney General of Canada representing His Majesty the King in right of Canada Defendants DECISION Judge: The Honourable Justice John Bodurtha Heard: April 12, 2022, in Halifax, Nova Scotia Counsel: Kyla Michelle Lee, for the Plaintiff Jeffrey Waugh, for the Attorney General of Nova Scotia Jan Jensen, for The Attorney General of Canada By the Court: Overview [ 1 ]

Section 320.27(1) of the Criminal Code of Canada , R.S.C. 1985, c. C-46 (“ Criminal Code ”) authorizes roadside screening tests that can be administered when a peace officer “has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance…” If the officer suspects that the person has a drug in their body, s. 320.27(1) (

c) authorizes the officer to require her “to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.” [ 2 ] The plaintiff alleges that

section 320.27(1) violates

section 8, and that s. 320.27(1)(

c) violates s. 10(b), of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 (“ Charter ”). The plaintiff says s. 320.27(1), and specifically s. 320.27(1)(c), are overbroad, and should be declared to be of no force and effect pursuant to s. 52(1) of the Charter . She says the

provision cannot be saved by

section 1. The Crown says the provisions are consistent with the standards for roadside testing set out in previous caselaw. [ 3 ] I find the plaintiff has not established a violation of

section 8. While there is a breach of the right to counsel under

section 10(b), that breach is justified under

section 1. In each case, I find that there is no persuasive reason in the circumstances before me to depart from the state of the law that permitted police to use Approved Screening Devices (ASDs) to screen drivers for alcohol. Background [ 4 ] The parties filed the following Agreed Statement of Facts. 1. The Plaintiff suffers from Multiple Sclerosis (“MS”), an incurable autoimmune disease of the central nervous system. 2. The Plaintiff uses marijuana medically to treat symptoms of her MS on the advice of a physician. 3.

On January 4, 2019, RCMP Metro Traffic services was operating a roadside checkpoint (the “Checkpoint”), checking for potential impaired drivers, at Fultz House Lane and Cobequid Road in Lower Sackville, Nova Scotia. 4. At approximately 10:40 p.m., the Plaintiff was stopped at the Checkpoint in the vehicle she was driving. 5. When the Plaintiff approached the Checkpoint, RCMP Cst. Daniel Pottie (“Cst. Pottie”) approached her vehicle. 6. Cst. Pottie smelled burnt and fresh cannabis from the vehicle when the Plaintiff lowered her window. 7. Cst.

Pottie told the Plaintiff that he smelled cannabis inside the Plaintiff’s vehicle. The Plaintiff informed Cst. Pottie that she uses medical marijuana for her MS. 8. The Plaintiff’s responses appeared slowed and lethargic to Cst. Pottie. 9. Cst. Pottie made a demand, pursuant to

section 320.27(1) (

c) of the Criminal Code , that the Plaintiff provide a sample of oral fluid. 10. The Plaintiff complied with the demand by providing the oral fluid sample for analysis using approved drug screening equipment (the “ADSE”). 11. The ADSE used was a Dräger DrugTest® 5000 and a Dräger DrugTest® 5000 STK-CA. 12. The ADSE used is “approved drug screening equipment” as defined in

section 320.11 of the Criminal Code . 13. The ADSE was operated by another RCMP officer who was present at the Checkpoint and certified to operate the ADSE and conduct the testing. 14. The Plaintiff’s oral fluid was analyzed using the ADSE. 15. The ADSE that was used is approved to test for THC and cocaine, and only targets THC and cocaine. 16. The result of the analysis from the ADSE is either ‘positive’ or ‘negative’ for the target drug; it is not subject to

interpretation. 17. The cut-off concentration threshold for a positive reading from the ADSE is 25 nanograms of THC or more per millilitre of oral fluid. 18. The ADSE returned a positive reading for THC from the Plaintiff’s oral fluid sample. 19. Including the collection and analysis, the ADSE takes approximately 10 minutes to complete. 20. Collection and analysis took about ten minutes in this case. 21. The Plaintiff did not have access to legal counsel from the time she was stopped at the Checkpoint until the time of the positive reading of the ADSE. 22.

Packaged cannabis was found on the passenger-side floor of the Plaintiff’s vehicle. 23. After the ADSE returned a positive THC reading, and, considering that result, the smell of cannabis, the Plaintiff’s statements, the cannabis in the car, and the Plaintiff’s apparently slowed and lethargic responses, Cst. Pottie concluded that he had reasonable grounds to believe that the Plaintiff was impaired by a drug. 24. Cst. Pottie arrested the Plaintiff for operating a vehicle while impaired, read her her rights, including her right to counsel, and gave her the formal police caution. 25.

The Plaintiff declined counsel at this time at the scene when Cst. Pottie informed her of her right to counsel. 26. The Plaintiff was given the opportunity to have someone come pick up her vehicle or let another person drive it, but nobody was available. 27. The Plaintiff’s vehicle was towed by a private towing company to its lot. 28. The Plaintiff was driven to the Gottingen Street Headquarters of the Halifax Regional Police (“HRP”) to be evaluated by an

“Evaluating Officer” as defined by the Criminal Code . 29. At the HRP Gottingen Street Headquarters, the Plaintiff was given another opportunity to contact counsel, but again she declined. 30. An Evaluating Officer’s role is to perform a drug recognition evaluation (the “Evaluation”), the objective of which is to determine if the driver’s ability to operate a conveyance is impaired by a drug, or a combination of alcohol and a drug. The following are generally the steps: (

a) a preliminary examination, which consists of measuring the pulse and determining that the pupils are the same size and that the eyes track an object equally; (

b) eye examinations, which consist of (

i) the horizontal gaze nystagmus test, (ii) the vertical gaze nystagmus test, and (iii) the lack-of-convergence test; (

c) divided-attention tests, which consist of (

i) the Romberg balance test, (ii) the walk-and-turn test, (iii) the one-leg stand test, and (iv) the finger-to-nose test, which includes the test subject tilting the head back and touching the tip of their index finger to the tip of their nose in a specified manner while keeping their eyes closed; (

d) an examination, which consists of measuring the blood pressure, temperature and pulse; (

e) an examination of pupil sizes under light levels of ambient light, near total darkness and direct light and an examination of the nasal and oral cavities; (

f) an examination, which consists of checking the muscle tone and pulse; and (

g) a visual examination of the arms, neck and, if exposed, the legs for evidence of injection sites. 31. An Evaluation may also include a laboratory analysis of a bodily sample, such as blood or urine. 32. The Evaluation of the Plaintiff began at approximately 11:28 p.m. 33. During the Evaluation, the Plaintiff was experiencing poor coordination and memory loss which may have been MS related. 34. Following the Evaluation, the Evaluating Officer found that the Plaintiff was not impaired at that time. 35.

Following the Evaluation, the investigation into the offence of driving while impaired ended and the Plaintiff was not charged with a criminal offence. The Plaintiff was released from custody. 36. Cst. Pottie was of the opinion the Plaintiff was impaired at the time of the stop at the Checkpoint because of the strong smell of cannabis and the Plaintiff’s slow and lethargic responses. 37. Cst. Pottie believed that he had authority under the provincial highway traffic legislation to issue a seven-day license suspension. 38. Cst.

Pottie issued the Plaintiff a seven-day license suspension and drove the Plaintiff to her home. 39. The Registrar of Motor Vehicles rescinded the seven-day licence suspension. 40. The towing fee was not reimbursed. Issues [ 5 ] The following issues are before the court for determination: 1. Whether

section 320.27(1)(

c) of the Criminal Code violates

section 10(

b) of the Charter on the basis that the provision authorizes a detention and bodily search without the right to counsel; 2. If so, is the violation saved by

section 1 of the Charter ; 3. Whether

section 320.27(1) of the Criminal Code violates

section 8 of the Charter on the basis that it authorizes a more invasive search than the process for a breath sample; 4. If so, is the violation saved by

section 1 of the Charter ; 5. Are sections 320.27(1) and 320.27(1)(

c) of the Criminal Code unconstitutionally overbroad and consequentially of no force

and effect? 6. If so, what is the appropriate remedy. Evidence [ 6 ] In addition to the Agreed Statement of Facts, the Crown filed two experts’ reports. Douglas J. Beirness, PhD, was qualified as an expert in the field of impaired driving, capable of giving opinion evidence on the risk to road safety posed by cannabis-impaired driving; epidemiological evidence related to THC and driving; the impairing effects of cannabis; the scope of the problem of drug- impaired driving; and the nature and extent of cannabis use (Beirness report at p. 1). [ 7 ] Dr.

Beirness’s report reviewed the prevalence of cannabis use for both medical and non-medical use in Canada, and the prevalence of cannabis use among drivers. He stated with high confidence that “driving following the use of cannabis is common and is related to the frequency of cannabis use. Combining the use of cannabis with alcohol and/or other drugs is also common.” (Beirness report at p. 3).

He further opined that “the prevalence of nighttime drivers who test positive for cannabis has increased and currently exceeds that of drivers who test positive for alcohol” and (with moderate certainty) that “the number of impaired driving incidents reported by the police underestimates the true incidence of cannabis-impaired driving.” (Beirness report at pp. 3-4). He stated with a high degree of certainty that “the use of cannabis by drivers contributes to a substantial proportion of serious motor vehicle crashes in Canada and that the numbers are increasing.” (Beirness report at p. 7). Dr.

Beirness’s report also discussed the impairing effects of cannabis, which, he stated, “has the potential to cause significant impairment in a wide range of cognitive and motor skills required to operate a vehicle safely.” (Beirness report at p. 5).

He concluded, with high confidence, that “the risk of crash involvement among drivers who are adversely affected by cannabis is at least double that of drivers who do not test positive for cannabis.” (Beirness report at p. 9). [ 8 ] Amy Peaire, PhD, was qualified as an expert in the fields of forensic toxicology and approved roadside screening equipment, capable of giving opinion evidence on pharmacological effects of THC, the primary psychoactive ingredient of cannabis in the body; roadside and drug screening equipment approved for use in impaired driving investigations, including the approval process, standards, and operation; the underlying science of oral fluid screening for THC; general use of oral fluid drug screening equipment, including oral sample collectors; the utility and limitation of approved drug screening equipment for drug-impaired driving investigations; and alternative technologies to oral fluid drug screening equipment and their suitability (Peaire report at p. 1). [ 9 ] Dr.

Peaire’s report was particularly relevant to the parties’ arguments. Dr. Peaire described the process by which THC is absorbed into the bloodstream, and its effects.

She wrote, inter alia : Upon inhalation (e.g. by smoking or vaping), THC is absorbed through the lungs into the blood system, with peak blood concentrations being reached within minutes of exposure, often during smoking itself… [W]hile THC persists in the brain and continues its effects, there is a sharp decrease in blood THC concentrations following the initial peak… As compared to inhalation, THC absorption is slower when ingested and results in lower blood THC concentrations.

In general, the onset of effects is also delayed, the duration of effects extended, and the elimination of THC from blood delayed as compared to that following THC inhalation… Despite lower blood THC concentrations, strong subjective drug effects and cognitive impairment have been demonstrated… … Cannabis produces a wide range of acute psychotropic effects, that is effects upon an individual’s mental state.

These include euphoria, perceptual alterations, relaxation, and self-described “highs” or intoxication… Other acute effects of cannabis include time distortion, talkativeness, and perceptual alterations… [Peaire report at pp. 3-4, citations omitted] [ 10 ] Dr. Peaire referred to studies showing effects of cannabis use on driving skills, with “reaction time measurement, divided attention tasks, responses to an urgent task, and critical tracking tasks as most affected” (Peaire report at p. 4).

She noted that THC impairment can manifest itself in “weaving between lanes”, as well as “increased time driven out of lane, increased reaction time, and decreased ability to react to changes in the speed of other vehicles” (Peaire report at p. 4). Cognitive impairment was also observed following THC use for medical purposes (Peaire report at p. 4). [ 11 ] Dr. Peaire described procedures used by the Drugs and Driving Committee (DDC) of the Canadian Society of Forensic Science (CSFS) in evaluating drug screening equipment for approval by the Attorney General of Canada.

She noted that the DDC “is an independent volunteer committee whose role is to act as an advisory body to the Department of Justice on issues of drug-impaired driving”, composed of forensic toxicologists and traffic safety experts (Peaire report at p. 6).

She set out the background to the evaluation and approval of the ADSE: … Following an in-depth review of the relevant scientific literature, an environmental scan of current commercially-available technologies, a needs assessment for roadside use within Canada, and reference to and consultation with other jurisdictions, the DDC developed and set the Canadian standards for evaluation of drug-screening equipment.

These standards were published as the “Canadian Society of Forensic Science Drugs and Driving Committee (DDC) Drug Screening Equipment – Oral Fluid Standards and Evaluation Procedures” document effective November 1, 2017. This document outlines the submission and evaluation process which is used by the DDC in order to recommend drug screening equipment for approval by the Attorney General of Canada… [Peaire report at p. 6] [ 12 ] Dr. Peaire went on to set out the steps of the process in detail (Peaire report at pp. 6-8). Following that, Dr.

Peaire gave an overview of the Dräger system, which she opined “is suitable for use as ADSE” based on her own involvement, as chair of the DDC, in its evaluation and recommendation to the Attorney General (Peaire report at p. 9). She described the DDC standards for ADSE, stating, in part: … A new, individually wrapped oral fluid collection system is used to collect an oral fluid sample… The collection system clearly and

readily indicates to the operator when the required volume of oral fluid has been collected. This process should reasonably be completed within 4 minutes from the start of oral fluid collection. Following oral fluid collection, the oral fluid sample is analyzed by the reader. Readers must be ready for first use within 10 minutes of being switched on and within 5 minutes of completing any previous test. The reader should indicate whether a subject’s oral fluid is positive or negative for all of the individual drugs of interest … within 10 minutes of sample insertion. [Peaire report at pp. 9-10] [ 13 ] Dr.

Peaire noted that while all ADSE equipment must meet DDC standards, these are minimum requirements that some equipment may exceed. She continued: … For example, although based on the DDC’s standards drug screening analyses should be reasonably completed and analytical results displayed by the reader within 14 minutes of start of oral fluid collection, the two types of drug screening equipment currently approved in Canada typically perform this function in less time… [Peaire report at p. 10] [ 14 ] In describing the process of the mouth swab to collect oral fluid, Dr.

Peaire noted that typically it takes the Dräger system about one minute to collect an adequate oral fluid sample, then less than ten minutes to complete the analysis and provide a “positive” or “negative” result (Peaire report at p. 11). [ 15 ] Dr.

Peaire also noted that the standard operation of the system did not require an “observation and deprivation period” during which the individual would be observed by police before the screening test is administered; she noted, however, that such an observation period “should be employed in specific circumstances when police have reason to believe that recent actions of the individual could interfere with the accuracy of screening results” in order to “dissipate any such interfering effects” (Peaire report at p. 12). [ 16 ] Dr.

Peaire described the applicable DDC standards requiring “binary results which do not require

interpretation”, as well as the “strict requirements regarding the selectivity of requirements of drug-screening equipment, and extensive laboratory testing … during drug screening equipment evaluation to minimize the potential for either of the above-mentioned false positives or false negative situations” (Peaire report at p. 25). [ 17 ] With respect to the correlation between the presence of a drug in the body and its presence in oral fluid, Dr.

Peaire said: A complication in the use of oral fluid drug screening technology to ascertain the presence of a drug in a person’s body is that drug presence in oral fluid may not correlate directly with the presence of that drug in the body for a variety of pharmacological reasons… As explained in the DDC Report on drug screening equipment – oral fluid , drugs generally become detectable in oral fluid shortly after administration.

They can be present as a result of drug excretion (aka elimination) and partitioning (aka movement or separation) into the oral fluid from the body as well as from residual drug deposits in the oral cavity… Nevertheless, positive drug screening results generally result from drug administration, and as DDC standards have drug cut-off concentrations selected so as to virtually negate the possibility of passive drug exposure as a source of positive results, positive results on ADSE can be considered as a preliminary indication of the presence of that drug in the body. [Peaire report at p. 27, citations omitted] [ 18 ] Dr.

Peaire went on to note that there “is not a direct correlation between drug concentrations in oral fluid and in blood. As such, an individual who screens positive on approved drug screening equipment cannot directly be determined to have blood drug concentrations above a given per se limit in blood” (Peaire report at p. 28).

While the presence of THC in oral fluid generally “indicates its presence in blood … it is difficult to make this association for individuals immediately following oral THC consumption, prior to significant absorption into the body… The time frame for detection of THC in oral fluid varies, but may be much shorter than in blood” (Peaire report at p. 28). [ 19 ] Dr. Peaire also clarified that drug screening equipment “does not measure drug impairment.

Nevertheless, depending on the drug in question and the specifics of its use, a temporal association between a positive ADSE result and impairment can be made” (Peaire report at p. 29). Generally, she wrote, “a temporal association can be made between a positive drug screening equipment result for THC and impairment. It is more difficult to make this association for individuals who test positive on drug screening equipment immediately following oral THC consumption due to the potential for positive results resulting from residual THC deposits in the mouth…” (Peaire report at p. 29).

History of the legislation [ 20 ] Prior to the amendments introduced by SC 2018, c. 21, the Criminal Code authorized roadside testing for alcohol using an “approved screening device” (ASD) or, for alcohol, drugs, or a combination of the two, by means of a “Standardized Field Sobriety Test” (SFST), involving physical coordination tests. A screening test would be authorized when the officer had a reasonable suspicion that the person had alcohol, drugs, or a combination of the two in their body while operating a vehicle.

The officer was authorized to require the driver to provide the sample forthwith. [ 21 ] As the relevant provisions were framed prior to 2008, s. 254(2) authorized a demand for a breath sample “forthwith” upon reasonable suspicion that the driver had alcohol in their body. Section 254(3) permitted a demand for a sample “forthwith or as soon as practicable” upon reasonable and probable grounds to believe that the driver had committed the offence of impaired driving within the previous three hours.

Prior to the amendments in 1999, this timeframe was two hours. [ 22 ] The final version of the operative provision (before the current legislation came into force in 2018) was s. 254(2), as amended in 2008, which read as follows at the time of its repeal and replacement by the ADSE provisions: Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer

may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (

a) and (b),in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demandmay be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [23] In various forms, and with modifications of detail, this language can be traced back to amendments in the mid-1970s. [24] The impugned provisions in this case are s. 320.27(1) (the

section 8 challenge) and 320.27(1)(c) (the

section 10(

b) challenge). Subsection 320.27(1) states, in its entirety: Testing for presence of alcohol or drug 320.27

(1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has,within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with therequirements of either or both of paragraphs (

a) and (

b) in the case of alcohol or with the requirements of either or both of paragraphs (a)and (

c) in the case of a drug: (

a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose; (

b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be madeby means of an approved screening device and to accompany the peace officer for that purpose; (

c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a properanalysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose. [Myemphasis.] [25] The term “approved drug screening equipment” is defined at

section 320.11, which defines it as “equipment that is designed toascertain the presence of a drug in a person’s body and that is approved by the Attorney General of Canada under paragraph 320.39(b).” This approval was on the advice of the DDC, as described in Dr. Peaire’s report. Roadside screening and immediacy [26]

Section 320.27(1)(

c) permits the officer to require an individual reasonably suspected to have a drug in their body to“immediately” provide a sample of a bodily substance. Previous versions of the legislation used the word “forthwith.” The terms aresynonymous. In R. v. Grant, (SCC), [1991] 3 SCR 139, the court held that the word “forthwith” in a demand for ascreening sample meant “immediately.” (see para. 20). [27] In R. v.

Bernshaw, (SCC), [1995] 1 SCR 254, Sopinka J., for the majority, held that the requirement toadminister the test “forthwith” permitted a delay to allow alcohol in the mouth to dissipate: 73 I adopt the flexible approach taken by Arbour J.A. In my view, it is in accord with the purpose of the statutory scheme and ensuresthat a police officer has an honest belief based on reasonable and probable grounds prior to making a breathalyzer demand. Waiting 15minutes is permitted under s. 254(2) of the Code when this is in accordance with the exigencies of the use of the equipment.

This applieswhen an officer is aware of the potential inaccuracy in the particular case. 74 Although there is no doubt that the screening test should generally be administered as quickly as possible, it would entirely defeat thepurpose of Parliament to require the police to administer the screening test immediately in circumstances where the results would berendered totally unreliable and flawed. The flexible approach strikes the proper balance between Parliament's objective in combattingthe evils of drinking and driving, on the one hand, and the rights of citizens to be free from unreasonable search and seizure.

I do notbelieve that the matter is advanced by quoting statistics. Although we all agree that Parliament has every reason to vigorously pursue theobjective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacyon the basis of faulty tests. I do not believe that this is what Parliament intended in enacting s. 254 of the Criminal Code. [Myemphasis.] [28] In R. v. Woods, 2005 SCC 42 , [2005] 2 SCR 205, the driver refused to provide a sample and was arrested for refusal.

At the police station the driver provided a valid screening sample after a further demand. There was a delay of about one hour and 20minutes from the roadside refusal until the driver provided the sample at the station. Fish J., for the court, defined “forthwith” as“immediately” or “without delay,” and said the term could not apply in these circumstances “[w]ithout doing violence to the meaning ofthe word…” (see para. 13). Interpreting the “forthwith” requirement, he said: 29 The "forthwith" requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity.

It addresses theissues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10of the Charter. In interpreting the "forthwith" requirement, this Court must bear in mind not only Parliament's choice of language, butalso Parliament's intention to strike a balance in the Criminal Code between the public interest in eradicating driver impairment and theneed to safeguard individual Charter rights.

… 43 It is true, as I mentioned earlier, that "forthwith", in the context of s. 254(2) of the Criminal Code, may in unusual circumstances begiven a more flexible

interpretation than its ordinary meaning strictly suggests. For example, a brief and unavoidable delay of 15 minutescan thus be justified when this is in accordance with the exigencies of the use of the equipment: see Bernshaw. 44 The "forthwith" requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and animmediate response by the person to whom that demand is addressed.

To accept as compliance "forthwith" the furnishing of a breathsample more than an hour after being arrested for having failed to comply is in my view a semantic stretch beyond literal bounds andconstitutional limits. [My emphasis.] [29] Woods contextualized Sopinka J.’s “flexible” approach from Bernshaw, confirming that the conventional meaning of“immediately” or “without delay” presumptively governed, subject to “unusual circumstances,” such as “exigencies of the use of theequipment.” [30] In R. v. Orbanski; R. v.

Elias, 2005 SCC 37 , [2005] 2 SCR 3, the court discussed the foundations of theconstitutionality of roadside screening for impaired driving, starting with the “heightened” need for “regulation and control of the use ofvehicles on the highway…” (see para. 24). The court went on: 25 Second, the effective regulation and control of this activity give rise to a unique challenge when it comes to protecting users of thehighway from the menace posed by drinking and driving. This challenge arises from the fact that drinking and driving is not in and ofitself illegal.

It is only driving with an impermissible amount of alcohol in one's body, or driving when one's faculties are impaired, thatis criminalized. The line between the permissible and the impermissible is not always easy to discern, and the necessary screening canonly be achieved through "field" enforcement by police officers.

It follows that these officers must be equipped to 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 ongoing and the drinkingdriver who has exceeded permissible limits presents a continuing danger on the highway. The aim is to screen drivers at the road stop,not at the scene of the accident. Hence, effective screening at the roadside is necessary to ensure the safety of the drivers themselves,their passengers, and other users of the highway.

Effective screening should also be achieved with minimal inconvenience to thelegitimate users of the highway. … 28 Another important contextual factor to consider is that both cases are concerned with the interaction between police officers andmotorists at the roadside during this screening procedure from the time they are pulled over by the police to the time they are eitherallowed to continue on their way, or are arrested for a criminal offence related to drinking and driving. In each case, the driver wasultimately arrested and charged with impaired driving and driving "over 80".

However, no issue is raised about compliance with theCharter upon and following the arrest and demand for breath samples. Both Orbanski and Elias were promptly and fully informed oftheir right to counsel upon arrest and given the opportunity to exercise their right before providing samples of breath for the purpose ofanalysis.

The question is whether they should have been afforded their right before certain screening measures were effected -- inOrbanski's case, before he was asked to perform sobriety tests, and in Elias's case, before he was asked whether he had been drinking. [My emphasis.] [31] As such, the power to screen drivers must be flexible enough to be effective (see Orbanski, at para. 45). [32] The Quebec Court of Appeal recently considered s. 254(2) (post-repeal) in Breault v. R., 2021 QCCA 505, leave to appealgranted, [2021] SCCA No 173.

At the time of the demand in Breault, the officers on the scene did not have an approved screeningdevice, and were waiting for one to be delivered to the scene. The appellant refused several demands, and was arrested for refusal,whereupon the request for an ASD was cancelled.

The issues were whether a demand made when the officer did not have an ASD wascompliant with the “forthwith” requirement and, if not, whether the fact that an ASD could have been delivered within 10-to-15 minutesrendered the demand compliant (see Breault, at para. 22). [33] Doyon J.A., for the court, cited prior authority from the Quebec Court of Appeal that contemplated a “waiting period” foradministering an ASD, namely Petit c. R., 2005 QCCA 687, and R. c. Piazza, 2018 QCCA 948.

He went on to consider the SupremeCourt of Canada authorities, including Woods: 37 Fish, J. accepted the ordinary meaning of the word "forthwith" — i.e., "immediately" — as the Supreme Court did in R. v. Grant,which was cited at para. 33 of Woods.

Clearly, Parliament's use of the word "forthwith" is not insignificant and should be understood inits ordinary sense, except where there are "unusual" circumstances, such as a requirement stated by the manufacturer or particularcircumstances leading to the police officer's reasonable conclusion that a short delay is called for to ensure that the test is reliable, thatthe analysis is, in the words of s. 254(2)(

b) Cr.C., "proper". 38 On this last point, the very text of the provision suggests that Parliament had this possibility in mind because, as I just mentioned, thedemand consists in obtaining a breath sample "that (...) will enable a proper analysis to be made / nécessaire à la réalisation d'uneanalyse convenable".

In other words, the purpose of the demand is to obtain a breath sample that can lead to a "proper analysis / analyseconvenable", which could warrant a short wait if the police officer witnesses a circumstance that could call into question the value of thetest. 39 In short, the word "forthwith" has a well-known meaning, which cannot be disregarded for the purpose of administrativeconvenience, but can be, for a short period of time, if the value of the test is at stake (given the text of the provision), or if the short delayinvolves only the operation of the device (as in R. v.

Anderson, 2014 SKCA 32) or results from a defect. If such a defect cannot beanticipated, it would fall within the scope of the unusual circumstances referred to in Woods and Bernshaw. In other words, faced with a

defective device, the conclusion should not be that nothing can be done and that the driver should quite simply be released if he does notshow other symptoms.

Perhaps, in such circumstances, he should be given access to counsel, but that is another matter. 40 In a nutshell, unusual circumstances directly related to the operation of the device or the reliability of the test result can warrant ashort delay, but the mere need to wait for the arrival of an ASD must not be considered to be such a circumstance. [My emphasis.] [34] Doyon J.A. held that a valid demand required the officer to “be in a position to demand that the accused provide a breathsample forthwith, before the accused even has the time, realistically speaking, to contact counsel, which means that the police officermust have immediate access to an ASD.” (see Breault, at para. 42).

The court emphasized that “it is not only the demand that must bemade forthwith; the driver must also provide a breath sample forthwith after the demand has been made” (see para. 47). Thus thecorollary to the obligation to provide a breath sample forthwith was that the driver must be in a position to do so; a refusal charge wastherefore possible only where an ASD was readily available.

Doyon J.A. concluded that a “demand is either made "forthwith" or it isnot, and a person must be able to comply or not comply forthwith; it must be valid or not, regardless of the moment when the driverexpresses his or her refusal” (see paras. 50, 55, and 61). [35] He went on to clarify the “flexible” approach endorsed by Sopinka J. in Bernshaw: 45 In short, the passage cited by the respondent does not mean that the word "forthwith" must be given a flexible

interpretation in allcases. Sopinka, J. was referring to the specific situation in which the validity of the sample for purposes of analysis was at stake. 46 In my view, considering the jurisprudence of the Supreme Court, a delay cannot be justified on the basis of administrativeconvenience, that is, for practical reasons. The need to allow time for an ASD to be delivered to the scene of the arrest because the policeofficers do not have it in their possession is one such unjustified practical reason.

Since such a delay is not sufficiently short to concludethat the driver could not, in the meantime, contact counsel, the immediacy requirement, which is intimately tied to that right, is notsatisfied. [My emphasis.] [36] Doyon J.A. went on to discuss the new provisions that – by that time – replaced the ASD procedures under the 2018amendments, and considered the retention of the language of immediacy: 67 I am well aware that it would be much more convenient to allow a delay for the delivery of the device, as in [R. v. Petit, 2005QCCA 687].

The role of the courts, however, is not to facilitate the job of police officers, nor, as a matter of fact, to complicate it. Theirrole is to interpret and apply the law. That said, Parliament used the word "immediately" in the recent amendments (and kept the word"immédiatement" in French) despite all of the Supreme Court cases that have given it its ordinary meaning and have allowed a delayonly to ensure the validity of the test when circumstances raise a concern in that regard. 68 If Parliament had wanted to depart from that

interpretation, it could have used wording found in other provisions, such as "as soonas feasible", "as soon as reasonably possible" (which is how the respondent would like the word "forthwith" to be interpreted), "withoutdelay" (as in s. 10(

b) of the Charter, which means at the first reasonably available opportunity with respect to access to counsel) or "assoon as practicable" (as in new s. 320.28 Cr.C.). It did not do so. 69 Moreover, police officers are not necessarily without resources in the absence of an ASD. They can use physical coordination tests(s. 320.27(1)(

a) Cr.C.) or avail themselves more generally of the new provisions of ss. 320.27 and 320.28 Cr.C., which, in all likelihood,give them more flexibility when intervening.[My emphasis underlining.] [37] Doyon J.A. concluded that the word “forthwith” in the former provision did not authorize a delay beyond that necessary toconduct the ASD analysis: 70 Considering that the right to counsel is suspended because of the very short delay before a breath sample is provided with an ASD(a delay so short that it does not even allow a reasonable amount of time to contact counsel, which explains the suspension of that right),the word "forthwith" cannot justify a delay greater than is necessary to properly operate the device or obtain a reliable test in light of thefacts noted by the police officer.

It certainly does not allow an additional delay while awaiting the device, contrary to the teachings inPetit, which must no longer be followed because they run counter to the teachings of the Supreme Court by expanding the scope ofcriminal liability beyond acceptable limits: R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303, p. 1353. [My emphasis.] [38] The plaintiff relies on Breault as support for the position that the “forthwith” requirement bars investigative activities beyondwhat is “reasonably necessary” for the analysis to be completed.

The plaintiff submits that the court in Breault attempted to reconcilethe apparently inconsistent results of Bernshaw and Woods, interpreting Bernshaw’s “flexible approach” as relating only to delaysreasonably necessary to take a valid sample. [39] The plaintiff submits that the court in Breault suggested that the replacement of “forthwith” with “immediately” in the newprovisions indicates a parliamentary intention that the test be done “right away,” as with ASD testing.

It is impossible to comply with ademand when the officer is not in a position to conduct the test immediately, as discussed in Breault (see para. 57). However, as I readBreault, the issue was that the officers did not have a device and were therefore not in a position to commence the analysis.

Otherdecisions – such as Anderson, cited approvingly in Breault – indicate that the time required for the device to activate and be administeredwill be a valid delay within the meaning of “forthwith” or “immediately.” [40] The court in Breault held that the demand was invalid and the refusal did not constitute a criminal offence, and allowed theappeal. The Supreme Court of Canada has granted leave to appeal: [2021] SCCA No 173. The court reserved judgment in September2022. [41] Doyon J.A. referred to R. v.

Anderson, 2014 SKCA 32, to the effect that the “forthwith” requirement “cannot be disregardedfor the purpose of administrative convenience, but can be, for a short period of time … if the short delay involves only the operation of

the device…” (see Breault, at para. 39). [42] In Anderson the court held, first, that the “so-called ‘forthwith window,’ being the time within which the police officer mustrequire a driver to provide a breath sample … begins when the police officer develops a reasonable suspicion that the accused hasalcohol in their body…” (see para. 31). This had occurred at 1:02 a.m., when the appellant had admitted to consuming alcohol. Theofficer next turned on the ASD device, explained the procedure, and the accused provided a sample.

The officer read the accused hisrights immediately after the failed result, at 1:18 a.m. (see paras. 6-8, 34-35). The Saskatchewan Court of Appeal said: 36 The question then becomes whether the delay of approximately 16 minutes, from 1:02 a.m. to 1:18 a.m., is reasonable under thecircumstances. 37 As this Court held at para. 4 in R. v.

Janzen, supra, in determining whether a particular roadside screening test has been administeredforthwith, it is necessary to have regard for the circumstances of a case, including the extent of the lapse of time and the reason for it andto assess the matter with the following considerations in mind: (

i) the balance between Parliament's objective in combating the evils ofdrinking and driving, on the one hand, and the person's constitutional right to be free of unreasonable search or seizure on the other; and(ii) the fact that a person's constitutional right to consult counsel is reasonably suspended upon a demand to provide a sample of breathpursuant to s. 254(4). 38 The Supreme Court expressed the time requirement in R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254: 64 ... Implicit in the requirement that the sample be provided forthwith is any operational time component.

The peace officer has to readythe equipment and instruct the suspect on what to do. In short, the statutory provisions must allow the time required to take a proper test. 39 It follows that the police officer is to be afforded reasonable time to ready the ASD. There is no evidence before the Court of howmuch time is usually required for an ASD to warm up and become operational. However, the trial judge found no fault in the ASD taking16 minutes to warm up: 43 After reading the ASD demand, Cst. Gramlich had to turn on the ASD and allow it to warm up.

This meant a further delay of 16minutes, until 1:18 a.m., before Mr. Anderson could blow into the device. [2011 SKPC 1] 40 In my view, the 16 minutes it took for the ASD to warm up and become operational was reasonable and did not offend the"forthwith" requirement in s. 254(2) of the Code. [My emphasis.] [43] This passage speaks directly to the issue before me, where the objection relates not to the specific circumstances of theparticular situation, but to the operational requirements of the device.

Plaintiff’s counsel suggested in oral argument that the facts inAnderson were unclear, and noted the lack of evidence as to the usual time for the ASD test. However, Anderson does not suggest thatthis was being treated as a “one-off”; rather, the court simply accepted that sixteen minutes for preparation and operation of the devicedid not offend the “forthwith” requirement. As Crown counsel pointed out, the Anderson reasoning is clearly supported in Breault. [44] The Plaintiff has not convinced me that the reasoning in Anderson and Breault is not applicable to the circumstances in thiscase.

Section 10(b) [45]

Section 10(

b) of the Charter provides that “[e]veryone has the right on arrest or detention … to retain and instruct counselwithout delay and to be informed of that right…” As set out in several decisions of the Supreme Court of Canada, including R. v.Manninen, (SCC), [1987] 1 SCR 1233, R. v. Suberu, 2009 SCC 33, and R. v. Taylor, 2014 SCC 50, the duty to informan individual of their s. 10(

b) right to retain and instruct counsel is triggered by an investigative detention. In Taylor Abella J. said, forthe court: 24 The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention …, and the duty tofacilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is thereforeunder a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden ison the Crown to show that a given delay was reasonable in the circumstances...

Whether a delay in facilitating access to counsel isreasonable is a factual inquiry. 25 This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(

b) rights and facilitate access tothose rights where requested, both without delay. This includes "allowing [the detainee] upon his request to use the telephone for thatpurpose if one is available" (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercisehis right to counsel unless the police give him a reasonable opportunity to do so... [Some citations omitted.] [46] In R. v. Thomsen, (SCC), [1988] 1 SCR 640, the court held that a driver who was stopped by a police officerwas detained for the purpose of s. 10(b), triggering the right to retain and instruct counsel (see para. 13). The infringement was justifiedunder

section 1 by the urgency of obtaining the breath sample (see paras. 18-21). In Bernshaw, Sopinka J. held that the denial of theright to counsel in the context of a delayed roadside screening test was justified on the same basis in the circumstances of that case: 75 I note that a potential problem which may arise from delaying the screening test, and which was discussed by my colleague in hisreasons as well as by Arbour J.A., is whether the suspect is entitled to access to counsel when detained for a longer period. In theThomsen case, it was held that the roadside screening procedure was a reasonable limit on one's right to counsel under s. 10(

b) of theCharter. In my view, a delay in the order of 15 minutes in order to obtain a proper sample of breath is not inconsistent with Thomsen. It

would indeed be strange for us to hold that the rights of some persons under one provision of the Charter (s. 8) must be sacrificed inorder to preserve the limit on their rights under another provision (s. 10(b)). [My emphasis.] [47] There is no dispute that the

section 10(

b) right to counsel is triggered by a roadside screening demand under s. 320.27(1)(c), aswith other roadside screening tests. [48] The Crown takes the position that the ADSE scheme complies with the requirements for constitutionality of roadside testing asset out in the caselaw. For instance, there is use immunity. Pursuant to s. 320.36(1), “[n]o person shall use a bodily substance obtainedunder this Part for any purpose other than for an analysis under this Part.” Contravention of this prohibition is a

summary offence: s.320.36(4). The plaintiff argues that the immunity is not absolute, in that a “fail” can lead (as in this case) to non-criminal sanctions underprovincial motor vehicle legislation. However, as the Crown points out, the ADSE is shielded in the same way as the ASD system: theresult can only be used at trial to support the officer’s grounds for further measures.

In addition, use of a sample for other purposes is anoffence pursuant to s. 320.26(4) of the Criminal Code. [49] There is no equivalent constitutional barrier to use of an ADSE result under provincial motor vehicle legislation, as confirmedin Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 and the companion case of Wilson v. BritishColumbia (Superintendent of Motor Vehicles), 2015 SCC 47.

Additionally, the Crown points out that the ADSE result was not thereason the officer, in the case before me, issued the license suspension; rather, this was based on his conclusion that the Plaintiff wasimpaired based on the smell of cannabis and her slow and lethargic responses. The plaintiff says the scope of a constitutional challengeincludes the collateral consequences of the law and potential uses of the law beyond its intended scope.

The plaintiff says the differencesin invasiveness and duration of detention between ADSE and ASD testing indicate that the statements about use immunity in Goodwindo not necessarily govern ADSE testing. [50] According to the plaintiff, the evidence “suggests that the approval process did not contemplate the legal requirements forimmediacy in the administration of the test.” I disagree. The evidence indicated that under DDC standards, sample collection must becompleted within four minutes and the analysis within a further ten minutes.

The plaintiff argues that these thresholds are arbitrary andthat the legal requirements do not appear to be a factor in the “Oral Fluid Standards and Evaluation Procedures” prepared by the Drugsand Driving Committee of the Canadian Society of Forensic Sciences (see document attached to Peaire report at Tab D). The plaintiffsubmits that these standards appear to be linked entirely to technical and operational requirements, without reference to the applicablelegal standards.

However, there is no evidentiary basis for the assertion that the legal requirements were not considered, in fact, theevidence indicates otherwise. [51] The plaintiff submits that the ASD caselaw dealing with elimination of alcohol in the mouth balanced the need for “forthwith”administration of the test to minimize denial of the right to counsel with avoiding detentions based on false positive results resulting fromalcohol in the mouth.

The plaintiff says the “functioning and proper operation” of the ADSE requires an “observation and deprivation”period before the officer can collect an oral fluid sample for analysis. There is no evidence for this assertion. Dr. Peaire’s reportindicated that the ADSE does not require an observation and deprivation period for normal operation. According to the plaintiff, therewas “no effort to approve a device that could produce the results immediately, collect the saliva sample immediately after a differentsubject test is completed, or conduct a test immediately after being turned on.” In fact, I find that Dr.

Peaire simply stated that noobservation and deprivation period is necessary for operation of the device. She also stated that there could be circumstances where anobservation period was appropriate (Peaire report at p. 12). As with the claim that legal requirements were not considered, the assertionthat there was no attempt to approve a device that would operate faster is not supported by anything in the evidence. Dr.

Peaire’s reportprovides a detailed account of the process of identifying and recommending an ADSE screening device. [52] In this case, the Crown says, there was no delay: the collection and analysis was done in the ten-minute timeframe required tooperate the equipment. According to the Crown, Breault is irrelevant, since the issue in that case was a delay for administrativeconvenience. The Crown notes the standards set by the DDC and reviewed in the Peaire report are minimum standards required for theDDC to consider recommending a device. Therefore, the actual time could never be longer than that.

An observation and deprivationperiod would only be relevant if the driver’s recent behaviour had created effects allegedly requiring a delay for that reason. [53] The plaintiff says an occasional delay in ASD testing for dissipation of mouth alcohol, as considered in Bernshaw, is notanalogous to a longer delay in all cases in the ADSE procedure. While the Crown suggests that the Standardized Field Sobriety Test(“SFST”) is also inherently more time-consuming than the ASD, the plaintiff replies that there is no evidence of how long the SFSTtakes to complete.

The Crown cites caselaw suggesting it takes about ten minutes, but the plaintiff says the circumstances of those casescannot be taken as evidence of the duration of the test. The plaintiff cites Ergen v.

British Columbia (Superintendent of Motor Vehicles),2016 BCSC 643, as authority for the proposition that the court cannot rely on caselaw to establish a factual proposition (see paras. 29-31). [54] The plaintiff’s position rests on the view that incremental differences of timing and methodology between the former ASDscreening test for alcohol and the new ADSE procedure invalidate the legal justification for the new procedure. The plaintiff points tono evidence that an alternative screening device exists that would satisfy the constitutional minimum requirements.

I find the plaintiffhas not explained nor convinced me why the particular time period required to administer the ADSE does not fit within the category ofdelay for activating the device, as described in Bernshaw and Anderson, and by reference in Breault. [55] I find there is a breach of the right to counsel under

section 10(b), however, that breach is justified under

section 1which shallbe discussed below.

Section 8: search and seizure [56]

Section 8 of the Charter states that “[e]veryone has the right to be secure against unreasonable search or seizure.” The plaintiffsays s. 320.27(1) infringes

section 8 by authorizing a warrantless search based on suspicion, not reasonable grounds. According to theplaintiff, the sampling process is more invasive, and engages more significant privacy interests, than the process of a breath screening. In Hunter et al v. Southam Inc., (SCC), [1984] 2 SCR 145, the Supreme Court of Canada held that a warrantless search

was prima facie unreasonable under

section 8. There is no dispute that

section 8 is engaged by the ADSE procedure, as it was for ASDscreening. [57] The majority in Goodwin considered the principles governing

section 8: 48 … This right is engaged where the state conducts a search or seizure that interferes with an individual's reasonable expectation ofprivacy. The expectation of privacy is a normative concept, reflecting the level of privacy that we, as a society, should reasonably expectin a given circumstance... It is not merely a function of how much privacy a person may expect or enjoy with respect to their person,space or belongings. Where a search or seizure engages the protection of s. 8, a reviewing court must determine whether the search orseizure is reasonable.

In this regard, (1) the search or seizure must be authorized by law, (2) the law itself must be reasonable, and (3) thesearch or seizure must be carried out in a reasonable manner... [Citations omitted] [58] The Crown submits that there is no precedent holding that roadside screening violates

section 8. The majority in Goodwin saida roadside breath demand “engages”

section 8, but the issue was provincial legislation imposing sanctions flowing from ASD results. As the Crown notes, “engages” does not mean “infringes.” In R. v. Hufsky, (SCC), [1988] 1 SCR 621, where theobjection was to the demand to produce a license and registration under provincial legislation, the Supreme Court of Canada held thatthere was no

section 8 violation “where a person is required to produce a licence or permit or other documentary evidence of a status orcompliance with some legal requirement that is a lawful condition of the exercise of a right or privilege.” (see para. 23). The plaintiffnotes that Hufsky did not involve a requirement to provide private information. [59] In reviewing the factors from Goodwin. Authorized by law [60] The plaintiff’s constitutional challenge is to a specific statutory provision.

The search is clearly “authorized by law.” Reasonableness of the law [61] The majority in Goodwin cited Hunter, where the issue was framed as “whether in a particular situation the public's interest inbeing left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance itsgoals, notably those of law enforcement.” (see para. 55). The majority went on: 55 … The protection s. 8 provides for an individual's privacy -- personal, territorial and informational - is essential not only to humandignity, but also to the functioning of our democratic society.

At the same time, s. 8 permits reasonable searches and seizures inrecognition that the state's legitimate interest in advancing its goals or enforcing its laws will sometimes require a degree of intrusion intothe private sphere. The tension articulated in Hunter between the competing individual and state interests, and the adequacy of thesafeguards provided, remain foundational to this analysis. 56 Searches or seizures conducted without a warrant -- such as the seizure underpinning the ARP scheme -- are presumptivelyunreasonable: Hunter, at p. 161.

The burden of establishing reasonableness thus rests with the state. 57 This Court has generally declined to set out a "hard and fast" test of reasonableness... In my view, this flexible approach remainscompelling. This Court has nonetheless identified certain considerations that may be helpful in the reasonableness analysis, including"the nature and the purpose of the legislative scheme ... , the mechanism ... employed and the degree of its potential intrusiveness[,] andthe availability of judicial supervision"... [My emphasis.

Citations omitted.] [62] As to the nature and purpose of the provision, the Supreme Court of Canada has held that reducing the “carnage” of impaireddriving is a compelling and worthwhile objective (see Orbanski at para. 55 and Goodwin at paras. 58-59). This purpose can be found inthe similarly worded recognition and declaration in

section 320.12 of the Criminal Code. Roadside screening is one aspect of a regimefor deterring and punishing impaired drivers. The objective is to determine whether further testing is required, based on reasonablesuspicion that the subject has a drug in their body and has driven within the previous three hours.

The Crown submits that the reducedCharter protection at the screening stage is balanced by the requirements of immediacy and use immunity. [63] Discussing the mechanism of the ASD test, the majority in Goodwin noted that its “specific features … are relevant to thereasonableness analysis in two respects,” namely intrusiveness and reliability: 65 The first is the degree of intrusiveness of the ASD test on a driver's bodily integrity and privacy interests.

More intrusive than ademand for documents, a breath demand clearly amounts to what La Forest J. described as "the use of a person's body without hisconsent to obtain information about him" by which the state "invades an area of personal privacy essential to the maintenance of hishuman dignity": R. v. Dyment, (SCC), [1988] 2 S.C.R. 417, at pp. 431-32. However, a roadside ASD test is far lessintrusive than many other searches or seizures that may be performed for law enforcement purposes, such as the blood sample at issue inDyment, or a DNA swab, which contains deeply personal information...

The roadside breath demand authorized by the Criminal Codehas a much less significant impact on an individual's bodily integrity and privacy interests... This minimally intrusive character supportsthe reasonableness of the ASD seizure. 66 However, the use of an ASD to obtain a breath sample also raises concerns that undermine the reasonableness of the seizure,specifically regarding the reliability of test results.

The chambers judge concluded, based upon the evidence, that owing to an ASD'sinability to account for the presence of mouth alcohol, "in some circumstances there can be serious issues concerning whether an ASDaccurately reflects blood-alcohol readings"... 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 number of

innocent individuals cannot be reasonable": para. 51. By contrast, a high degree of accuracy has been crucial to endorsing sniffer-dog searches on a lower standard of reasonable suspicion... 68 While the ARP [British Columbia Motor Vehicle Act Automatic Roadside Prohibition] scheme as enacted in 2010 allowed a driver to obtain a second analysis with a different ASD upon request, it placed no obligation on the police officer to advise the driver of this right... The ARP scheme also required that the second analysis would govern, regardless of whether it was higher or lower than the initial reading...

While a second test with a second device may significantly help resolve the reliability concerns raised by roadside ASD testing, the availability of this safeguard could prove illusory where a driver is unaware of its existence, particularly where there is no guarantee that the lower result will prevail. Absent meaningful safeguards to ensure reliability, this factor raises serious concerns about the reasonableness of the law authorizing the seizure. [My emphasis, some citations omitted.] [ 64 ] The plaintiff submits that the law – namely s. 320.27(1) – is not reasonable.

The plaintiff says the law is incapable of meeting the Criminal Code immediacy requirement, based on the standards for approving screening devices. [ 65 ] The majority in Goodwin linked the reasonableness of the law to its necessity (see paras. 55-57). The plaintiff points out that the Criminal Code already provides standardized field sobriety tests for drugs. Police officers can be trained to conduct SFSTs. Decisions about resource allocation should not impact reasonableness under

section 8. The plaintiff says training requirements are therefore not an answer to a challenge to the reasonableness of a search authorized by the provisions. The plaintiff says the expert evidence does not suggest that the feasibility or effectiveness of SFSTs – which have been found constitutionally valid – were considered.

Neither expert report explained why SFST coordination tests – involving physical coordination and thus physical impairment, “the risk factor relevant to impaired driving” – are not suitable for identifying drug-impaired drivers. [ 66 ] The plaintiff submits the law is not connected to the legislative aim of public safety because it is intended to screen for a threshold drug concentration, not impairment. I note, the plaintiff cites no authority for the proposition that roadside screening has no connection to public safety. [ 67 ] Dr.

Peaire’s report indicates that there is no direct correlation between drug concentration in oral fluid and blood. The cut-off levels for THC and cocaine are set high to minimize false positives. The ADSE does not test for impairment, unlike the SFST.

The plaintiff concludes from this that “[i]f the ADSE is not testing for a blood drug concentration by use of a direct correlative measurement (as is done with breath testing) nor for actual impairment (as is done with SFST testing) then it is not serving any lawful purpose.” This, the plaintiff says, undermines the test’s reliability, which is “directly relevant to the reasonableness of the search or seizure” under

section 8, as Goodwin indicates (see paras. 67-68 ). [ 68 ] While there is no equivalent “second test” provision in the Criminal Code , the plaintiff argues that the Goodwin reasoning is relevant by virtue of the alleged lack of training for administering the ADSE after an observation and deprivation period, and for identifying factors that may affect the result. The result is that issues that may affect the validity of the test would not come to the driver’s attention. As noted earlier, Dr.

Peaire did not address what training might or might not be administered to police officers and did not suggest that such a delay was necessary for operating the device (see Peaire report at p. 12). [ 69 ] An arrest and a DRE demand require reasonable grounds to believe that a driver is impaired. The plaintiff submits that no such grounds can exist if the test does not correlate with a blood concentration or with impairment. Since a positive ADSE result will trigger a DRE demand, an arrest, or both, the law therefore cannot be reasonable, as it fails to achieve its purpose.

However, the standard for administering the screening test is a reasonable suspicion that a person has a drug in their body – not impairment. [ 70 ] Further, the plaintiff says that use and operating standards of the ADSE indicate that temperature variations may cause malfunctions. In fact, Dr. Peaire stated that the reader can operate in temperatures between 5 and 40 degrees Celsius “and has internal heating and cooling functions to help maintain the equipment within this temperature range.” (see Peaire report at p. 11).

The plaintiff cites no evidentiary basis for the claim that temperature variations will have a substantial effect on the effectiveness of the device. [ 71 ] I find the law to be reasonable. Manner of the search [ 72 ] According to the plaintiff, the time required to take and process the sample means that the immediacy requirement cannot be met, rendering the manner of the search unreasonable. The plaintiff suggests that detention could exceed twenty minutes, based on ten minutes to turn on the device, four minutes to collect a sample, and ten minutes for analysis.

On the evidence before me, it is not clear that this is an accurate description of the actual timeline. The Agreed Statement of Facts at para. 19 states that “[i]ncluding collection and analysis, the ADSE takes approximately 10 minutes to complete.” Dr. Peaire stated that the reader must be ready for use within ten minutes of being switched on; collection typically takes about one minute; and the analysis takes less than ten minutes (see Peaire report at p. 12). Counsel’s reference to four minutes for collection describes the applicable DDC standard, not the device actually in use (see Peaire report at p. 15).

The Agreed Statement of Facts indicates that collection and analysis took approximately ten minutes (see para. 20). [ 73 ] In addition to its duration, the plaintiff says several other aspects of the manner of the search impact its reasonableness:

a) Biographical information and intrusiveness . The plaintiff says taking saliva for an ADSE test engages a higher privacy interest than a breath demand because it carries more “biographical” content, and because the sample is discarded “like regular trash” without safeguards against subsequent seizure “by anyone.” The plaintiff says the ADSE is comparable to a DNA swab in terms of intrusiveness and invasiveness (see Goodwin at para. 65 ). The Crown submits that intrusiveness must be assessed in the totality of the circumstances.

Orbanski confirmed that roadside testing occurs in a context of diminished expectation of privacy, given the highly regulated nature of the activity and the compelling state interest in suppressing impaired driving (see para. 25). An oral fluid sample is comparable in intrusiveness to a breath sample, and less intrusive than a blood sample, as noted in Goodwin (see para. 65 ). It reveals no “deeply personal information,” revealing only whether

the driver is complying with a legal prerequisite to driving, as the court said in Hufsky (see para. 23). In the Crown’s view, the ADSEsample “yields only the information that is directly relevant to the purposes of roadside screening.” There is no basis for the claim thatthe sample could be put to other uses, particularly given the criminal sanction. The Peaire report reference to the sample being discardedlike “regular waste” does not mean that no care is taken with it, means only that it is not medically hazardous waste.

While the plaintiff submits that the sample is “highly conscriptive,” the view that all bodily samples fit that description was rejected inR. v. Grant, 2009 SCC 32 , [2009] 2 SCR 353. The concern with bodily samples is less compelled participation than the impacton privacy, bodily integrity, and human dignity (see paras. 105 and 109). The Crown maintains that the Dräger collection method (amouth swab taking about a minute to collect) “is no more intrusive than other accepted search methods” and can be provided withoutrequiring the driver to exit the vehicle.

b) Use immunity and self incrimination. While the Criminal Code limits the use of the ADSE sample to testing, the plaintiff maintainsthat it would not be a criminal offence for the police to use it for another purpose, such as obtaining a DNA sample for use ininvestigating another offence. Such extraneous use would only lead to a potential

section 8 Charter challenge; with no assurance thatsuch evidence would be excluded. There is no corresponding risk with a breath sample. In the event that the subject handled the device,it would be possible for fingerprints to be recovered for other purposes. This possibility takes on additional significance given thatrefusal is an offence. Further, the plaintiff’s argument that investigative use of a sample would not be a criminal offence contradicts the language of section320.36(1), which states that “No person shall use a bodily substance obtained under this Part for any purpose other than for an analysisunder this Part”, and

section 320.36(4), which makes a contravention of s. 320.36(1) a

summary offence. In any event, the Crownsubmits that this is no more than speculation about potential future breaches, which is insufficient to establish a breach (See OperationDismantle Inc. v. Canada, (SCC), [1985] 1 SCR 441, at paras. 9, 18-26, and 30).

c) Physical discomfort. Dr. Peaire’s report suggested that she experienced a higher level of physical discomfort with the ASD, becauseit was held by an officer while she held the ADSE herself. However, she could not confirm that an officer would not be holding theADSE during a roadside test. Further, the plaintiff says, Dr. Peaire’s subjective experience is not properly the subject of expertevidence. Certainly this remark should carry little weight. But the plaintiff has not provided any compelling reason or basis to regardthe ADSE as a more physically uncomfortable procedure than alternatives such as the SFST.

The Agreed Statement of Facts does notallude to any discomfort experienced by the plaintiff related to the administration of the roadside screening test. Counsel says the plaintiff’s roadside test required her to spend ten minutes “outside in the cold” without access to counsel; nothing in the evidence supports the assertion that it was “obviously” cold, other than the date, January 4th.

The plaintiff says the need to maintainsubject and sample continuity and to assure the integrity of the process would make it unreasonable for the subject of the test to beallowed to return to their vehicle during a ten-to-twenty-minute wait for the result. Counsel points to no evidence to support thisassumption about police procedure.

d) Reliability. As noted earlier, the majority in Goodwin commented that “[t]he reliability of a search or seizure mechanism is directlyrelevant to the reasonableness of the search or seizure itself…” (see Goodwin, at para. 67). The Crown says the reliability issues raisedin Goodwin are not a concern here because of the place of the impugned

section in the legislative scheme. It does not lead directly to asanction, unlike the scheme at issue in Goodwin, under which a “fail” result triggered a license suspension. Further, the Crownmaintains that any limitations to the reliability and accuracy of the Dräger are addressed by the DDC standards. In short, the Crownsays, cannabis-impaired drivers should not be shielded from roadside screening by the fact that the substance requires different analysistechniques than alcohol.

e) Judicial oversight. The decision to use the ADSE is reviewable by the court. Further, there is no possibility for such a search to beconducted without the knowledge of the subject. Unlike in Goodwin – where there were consequences flowing automatically from thesearch – an ADSE analysis leads to no automatic or immediate consequences. The roadside test does no more than contribute to thedetermination of requisite grounds to proceed to the second stage. [74] I find that the manner of the search was reasonable. I find that the plaintiff has not established that the search authorized bysection 320.27(1) was unreasonable under

section 8 of the Charter. Simply put, there is no reason to depart from precedent holding thatroadside screening searches are reasonable.

Section 1 [75] The

section 1 analysis originates in R. v. Oakes, (SCC), [1986] 1 SCR 103. The Oakes analysis was recentlysummarized in R. v. Bissonnette, 2022 SCC 23: 120 In order to justify an infringement of a Charter right under s. 1, the state is required to show that the impugned law addresses apressing and substantial objective and that the means chosen to achieve that objective are proportional to it (R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, at pp. 136-40; Irwin Toy Ltd. v. Quebec (Attorney General), (SCC), [1989] 1 S.C.R. 927, atp. 986).

A law is proportionate when the following conditions are met: "(1) the means adopted are rationally connected to that objective;(2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of thelaw" (R. v. Nur, 2015 SCC 15, at para. 111; Oakes, at pp. 139-40). [76] Where the limitation is prescribed by law and there is a pressing and substantial objective established or acknowledged, thecourt is expected to accord a degree of deference to Parliament in deciding whether the limit is proportionate, as the court stated inCarter v.

Canada (Attorney General), 2015 SCC 5 , [2015] 1 SCR 331: 97 At this stage of the analysis, the courts must accord the legislature a measure of deference. Proportionality does not requireperfection: Whatcott v. Saskatchewan (Human Rights Commission), 2013 SCC 11, [2013] 1 S.C.R. 467, at para.

Section 1 onlyrequires that the limits be "reasonable". This Court has emphasized that there may be a number of possible solutions to a particular social

problem, and suggested that a "complex regulatory response" to a social ill will garner a high degree of deference (Alberta v. HutterianBrethren of Wilson Colony, 2009 SCC 37, at para. 37). [77] The plaintiff argues the violations of ss. 8 and 10(

b) cannot be saved by

section 1 of the Charter, which states that the Charter“guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justifiedin a free and democratic society.” [78] The Crown submits that there is no reason to depart from the authorities holding roadside screening procedures to be justifiedinfringements of s. 10(b). The Crown also says that any breach of

section 8 (which it denies) would be justified under

section 1. Pressing and substantial objective [79] The purposes of the impaired driving provisions are set out in

section 320.12 of the Criminal Code: Recognition and declaration 320.12 It is recognized and declared that (

a) operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, theobservance of rules and sobriety; (

b) the protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operatethem is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians; (

c) the analysis of a sample of a person’s breath by means of an approved instrument produces reliable and accurate readings of bloodalcohol concentration; and (

d) an evaluation conducted by an evaluating officer is a reliable method of determining whether a person’s ability to operate aconveyance is impaired by a drug or by a combination of alcohol and a drug. [80] The authorities indicate that “reducing the carnage caused by impaired driving continues to be a compelling and worthwhilegovernment objective,” as Charron J. put it in Orbanski (see para. 55). The Crown submits that the need to screen drivers for cannabisuse became even more acute with the legalization of cannabis. Dr.

Beirness’s report described “the increasing use of cannabis and thecommensurate increased risk of THC-impaired drivers.” (see Beirness report at pp. 2-3). Dr. Beirness’s opinion was that “the risk ofcrash involvement among drivers who are adversely affected by cannabis is at least double that of drivers who do not test positive forcannabis,” (see Beirness report at p. 9) and that “the prevalence of nighttime drivers who test positive for cannabis has increased andcurrently exceeds that of drivers who test positive for alcohol.” (see Beirness report at p. 3).

Based on this information, the Crownsubmits, “the need to deter persons from impaired driving due to the use of cannabis has, if anything, increased, and the need for theability to demand samples for ADSE is almost self-evident.” [81] The plaintiff does not vigorously contest that the legislation has a pressing and substantial objective, saying only that there islittle evidence that cannabis and cocaine impairment “are particularly responsible for the carnage Parliament seeks to prevent…” Theplaintiff says the presence of cannabis in the bloodstream does not mean that impairment was the cause of the “collision, injury ordeath.” Such proof would allegedly be necessary to establish that the objective was “as pressing as it is characterized” by the AttorneyGeneral.

Moreover, the Crown has cited Hansard remarks by the Minister of Justice using the phrase “precautionary approach” andsaying there “could be” a “slight” increase in rates of impaired driving; this, the plaintiff submits, does not indicate an “evidence-basedapproach to a problem known to exist.” The plaintiff says there is no reasonable correlation between the increased use of cannabis andan increased risk of THC-impaired drivers. [82] In the face of the expert evidence, I find the plaintiff’s arguments are unconvincing. I find tha

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