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A Defence lawyer's perspective on issues in criminal law
Please be aware that all commentary in my blog is designed to promote discourse on a variety of topics. Though I certainly do some research on the topics discussed and often offer my "two-cents", please keep in mind that nothing I say in this blog is meant to be taken as authoritative on any subject. My comments are really just me exercising my freedom of expression for the purpose of offering some insight on topics related to the practice of criminal law. As with all topics of discussion, it is important for you to be critical. If you need a defence lawyer, please call 403.452.8018 for a free telephone consultation or consult with an experienced Calgary criminal lawyer. Happy reading! Happy watching!
SAMPLE CHARTER NOTICE: Constitutional Challenge to Mandatory Roadside Testing
Posted in IMPAIRED DRIVING andDecember 12, 2019
sample charter notice
Included below is a redacted Charter Notice -- filed in a real case -- challenging the constitutionality of section 320.27(2) of the Criminal Code of Canada.
This Charter Notice addresses only ONE of a handful of meritorious legal issues relating to the constitutionality and legality of mandatory roadside breath testing. The argument in this sample Notice focusses on "reasonable expectation of privacy". I have had many questions about this Notice and thus decided to post it here for easy access.
In the view of this Calgary DUI lawyer, reasonable expectation of privacy is one the strongest legal arguments in support of invalidating section 320.27(2) of the Criminal Code (mandatory roadside breath testing). In short, by eliminating the requirement for any investigative standard, it appears Parliament simply ignored Supreme Court jurisprudence holding that all Canadians have a reasonable exception of privacy -- albeit diminished -- in a motor vehicle and in their breath.
It is important to understand that the Charter Notice below addresses only a single issue; there are others. Also, though this is an original and non-plagiarized draft of a Charter Notice filed in a real case, the Crown properly stayed the charges in that case and thus the issue addressed in this sample Notice was never adjudicated. Accordingly, please be aware that the issue within this sample Notice has yet to be finally resolved by the Courts.
This Calgary criminal lawyer in no way guarantees that the argument within this Charter Notice will be successful.
For the purpose of protecting solicitor-client privilege the name of my client, along with any information that could possibly identify him/her has been redacted from this Notice.
challenge to mandatory roadside breath testing
IN THE PROVINCIAL COURT OF ALBERTA
JUDICIAL DISTRICT OF CALGARY
B E T W E E N :
HER MAJESTY THE QUEEN
- and -
TAKE NOTICE THAT a motion will be made on behalf of the Applicant, XXXXXXXXXX (hereinafter “the accused”), before the presiding Judge of the Provincial Court of Alberta at the Court House in the CITY of CALGARY, Alberta on XXXXXXXXX XXth, 2019 at 9:00 a.m. (or so soon thereafter as the application may be heard) in Courtroom 1005 for a declaration that in his case only:
- That section 320.27(2) of the Criminal Code of Canada constitutes an unreasonable search and seizure contrary to section 8 of the Canadian Charter of Rights and Freedoms, is not a reasonable limit prescribed by law and as such all evidence obtained as a result of the use of the mandatory search procedure should be excluded from evidence pursuant to section 24(2) of the Charter.
- That section 320.27(2) of the Criminal Code of Canada constitutes an arbitrary detention contrary to section 9 of the Canadian Charter of Rights and Freedoms, is not a reasonable limit prescribed by law and as such all evidence obtained as a result of the use of the mandatory search procedure should be excluded from evidence pursuant to section 24(2) of the Charter.
That section 320.27(2) of the Criminal Code of Canada constitutes a breach of right to counsel contrary to section 10 of the Canadian Charter of Rights and Freedoms, is not a reasonable limit prescribed by law and as such all evidence obtained as a result of the use of the mandatory search procedure should be excluded from evidence pursuant to section 24(2) of the Charter.
FURTHER TAKE NOTICE THAT pursuant to R. v. Big M. Drug Mart Ltd,  1 S.C.R. 295 (S.C.C.) and R. v. Lloyd,  1 S.C.R. 130 (S.C.C.) it has long been established that any Provincial Court Judge has the power to determine the constitutionality of law where the case is properly before them. As was stated in Big M. Drug Mart Ltd., at para. 316 (affirmed by Lloyd supra), “it has always been open to provincial courts to declare legislation to be invalid in criminal cases. No one may be convicted of an offence under an invalid statute”. In Lloyd, McLachlin C.J. (as she then was) stated at para. 16: “Just as no one may be convicted of an offence under an invalid statute, so too may no one be sentenced under and invalid statute”. The Applicant submits that s. 320.27(2) of the Criminal Code breaches the Applicant’s Charter protected interests pursuant to sections 7, 8 and 9 and thus in his case, is unconstitutional and invalid. Absent the authority to search pursuant to s. 320.27(2) of the Criminal Code the police did not have reasonable and probable grounds to arrest and thus lacked the corresponding grounds to obtain the breath sample pursuant to s. 320.28 of the Criminal Code.
FURTHER TAKE NOTICE THAT the factual matrix to support this Charter application is summarized as follows: At approximately XXXXX the police stopped XXXXXXXXXX for XXXXXXXXX. XX stopped appropriately. The police officer specifically indicated that XX “did not” detect any odor of alcohol emanating from the accused (or anywhere). The accused was asked whether XX had consumed any alcohol “within the last 15 minutes” to which XX responded that XX had not. The investigating officer made a “mandatory screening demand” pursuant to s. 320.27(2) of the Criminal Code. XXXXXXXXXX complied by properly providing a sample at XXXXXX. As a result of this mandatory test, XXXXXXXXXX was arrested, chartered, cautioned, detained and transported to a police detachment for the purpose of providing formal breath samples pursuant to section 320.28 of the Criminal Code. The 320.28 breath demand was not made until XXXXXX and the first sample was not obtained until XXXXXX.
FURTHER TAKE NOTICE THAT the following is a brief argument made in support of the Applicant’s request for Charter relief.
In R. v. Thomsen,  1 S.C.R. 640 the Supreme Court of Canada confirmed that assuming control over a person for the purpose of a roadside demand constitutes a “detention” for section 10(b) Charter purposes. In the words of Ledain J. at paragraphs 13-14:
…given the criminal liability under s. 234.1(2) for refusal, without reasonable excuse, to comply with the demand, the situation was one in which a person might reasonably require the assistance of counsel. The criminal liability for refusal also constituted the necessary compulsion or coercion to make the restraint of liberty a detention. The difference in duration of the restraint of liberty resulting from a s. 234.1(1) demand and that resulting from a s. 235(1) demand is not such as to prevent the former from constituting a detention within the meaning of s. 10 of the Charter. For these reasons I am of the opinion that as a result of the s. 234.1(1) demand the appellant was detained within the meaning of s. 10 of the Charter.
Thus the appellant had the right, upon being detained by the s. 234.1(1) demand and before responding to that demand, to retain and instruct counsel without delay and to be informed of that right, and there was an infringement of it, unless the right is subject, in the case of a s. 234.1(1) demand, to a reasonable limit prescribed by law that is demonstrably justified in a free and democratic society, within the meaning of s. 1 of the Charter. I turn to that question now.
As was held in Thomsen supra, failing to afford a detainee his or her right to counsel at roadside violates section 10 of the Charter. Notwithstanding the breach, however, the Supreme Court unanimously concluded that to combat impaired driving, a roadside breath sample obtained in compliance with the provisions of the Criminal Code (in force at the time) constitutes a minimally impairing, reasonable limit prescribed by law, demonstrably justified in a free and democratic society.
Courts have long recognized the danger of impaired driving, along with the pressing need to lawfully equip police with the powers to detect it. Courts across Canada have hitherto been tasked with balancing the needs of law enforcement to detect impaired drivers with the Charter-protected interests of Canadians. Thomsen, along with cases such as R. v. Orbanski,  2 S.C.R. 3, R. v. Bernshaw,  1 S.C.R. 254 and R. v. Grant,  3 S.C.R. 139 defined the law with respect to the lawful use of an approved screening device and the limitations associated with this evidence. Up until December 2018 the balance was struck in the form of a two-part preliminary screening process, whereby police could conduct roadside breath screening if they suspected a motorist had alcohol in his or her body.
It is accepted that for roadside screening to be effective it serves two important functions: (1) to detect impaired drivers and (2) to increase the perceived risk of detection on the part of those who might contemplate driving while impaired. In R. v. Bernshaw,  1 S.C.R 254 at paras 20-22 the Supreme Court of Canada highlighted that the then-in force breath testing regime was a two-stage process.
To address the problem, Parliament enacted a two-stage statutory scheme set out in s. 254(2) and (3) of the Criminal Code to provide a means of testing for driver impairment. Overly simplified, it may be said that at the first stage, a means of screening drivers is set out. It is a preliminary investigation aimed at determining whether a driver may constitute a danger to the public because of alcohol in his system. At the second stage, the statutory scheme is aimed at precisely determining the driver's level of alcohol. It is only at this second stage that it will be ascertained whether the alcohol level is over the prescribed limit, thus constituting a criminal offence.
This preliminary screening paradigm set out in s. 254(2) of the Criminal Code was the law in Canada until December 2018. In December 2018 Parliament further greased the slippery slope by altering decades of settled law in favor of completely intentionally ignoring a host of Charter-protected interests. It did so by fundamentally corrupting the longstanding roadside screening procedure by replacing the minimal search criterion of reasonable suspicion to authorize a lawful roadside demand with mandatory compliance. Section 320.27(2) reads (emphasis added):
(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.
To trigger mandatory compliance pursuant to section 320.27(2) the only requirement is that the investigating police be “in possession” of an approved screening device. Once this requirement is met, any motorist, at any time, is liable to roadside breath testing, even if there is absolutely no reasonable basis to think that he or she has consumed any alcohol at all. This means that so long as police have an approved screening device handy, motorists stopped for any reason -- ranging from trivial to serious traffic violations -- may be forced into mandatory evidence conscription or risk criminal prosecution.
In R. v. MacKenzie,  3 S.C.R. 250 the majority of the Supreme Court reiterated that a motor vehicle is a place where persons have an expectation of privacy, albeit a diminished one. As stated by Moldaver J. at para. 31, “…this Court has held that motor vehicles, though emphatically not Charter-free zones, are places in which individuals have a reasonable but "reduced" expectation of privacy (R. v. Belnavis,  3 S.C.R. 341, at para. 38; see also R. v. Wise,  1 S.C.R. 527, at p. 534). In addition to having some expectation of privacy in motor vehicles, it is also undisputed that drivers of vehicles have some expectation of privacy in their breath, even if a diminished one (Goodwin v. British Columbia (Superintendent of Motor Vehicles,  S.C.C. 46) (“Goodwin”).
Though s. 320.27(2) is arguably plagued by a plethora of problems, the most obvious is that it statutorily eviscerates “expectation of privacy”. Where the previous roadside breath-testing regime permitted law enforcement to test motorists based on the minimal investigative standard of “reasonable suspicion”, the new law requires no investigative standard whatsoever. The net effect is that the law authorizes arbitrary search and seizure to the extent that police can now randomly, on personal whim and without reason compel any motorist to participate in evidence conscription. Put another way, by erasing expectation of privacy, section 320.27(2) literally ignores decades of section 8 Supreme Court Charter jurisprudence. It’s hard to imagine that Parliament reasonably considered that all trial courts are bound by the law as set out by the Supreme Court of Canada in cases such as Mackenzie supra, Belnavis supra, Wise supra and Goodwin supra.
In Thomsen supra et al, the Supreme Court held that the previous roadside breath-testing regime minimally attenuated s. 10 Charter protected interests because the legislation was designed to mitigate the length of time in which a motorist was detained for screening purposes. Additionally, any evidence by the approved screening device was limited to informing the police reasonable grounds for making a s. 254(3) breath demand and could not itself be used to incriminate the driver (see also R. v. Orbanski,  2 S.C.R. 3). The issues with s. 320.27(2), however, are nothing short of aggravated Charter non-compliance.
This is so for the following reasons:
Firstly, since s. 320.27(2) permits arbitrarily elongating the length of time for which a motorist is detained for the purpose of a purely arbitrary search and seizure, it seriously violates both sections 8 and 9 of the Charter. Secondly, since 320.27(2) completely erases “expectation of privacy”, section 320.27(2) cannot be said to be a minimal impairment of section 8 Charter protected interests; rather, it is an absolute impairment. Finally, since s.320.27(2) changes the legal framework for suspending right to counsel pursuant to s. 10 of the Charter, the rationale for interrupting the right as discussed in Thomsen no longer applies. To that end, surely motorists should have right to counsel in circumstances where police are authorized to arbitrarily detain for the purpose of a completely arbitrary search and seizure?
In all of the circumstances, the Applicant submits that legislation permitting arbitrary detention and/or arbitrary search is not a minimal impairment of sections 8 or 9 of the Charter. Furthermore, unlike Thomsen, where detention for the purpose of roadside testing was based on a minimal investigative standard (“reasonable suspicion”), the investigative sweep authorized by s. 230.27(2) of the Criminal Code is such that attenuating the right to counsel is no longer minimally impairing or demonstrably justified in a free and democratic society. To hold otherwise would be to literally endorse a police fishing expedition in places where everybodn has a reasonable expectation of privacy.
FURTHER TAKE NOTICE THAT the evidence to be relied upon by the Applicant in support of this Charter application will be heard in a voir dire in which the viva voce and body camera footage is expected to be the only evidence.
FINALLY TAKE NOTICE THAT the Applicant seeks relief from the presiding Provincial Court Judge that s. 320.27(2) of the Criminal Code is invalid and therefore the sample of breath was obtained in violation of one of, or all of sections 8, 9 and 10 of the Charter. Though the investigating officer certainly acted in good faith, section 320.27(2) of the Criminal Code was not enacted in good faith compliance with sections 8, 9 and 10 of the Charter. Accordingly, the breach constitutes a serious infringement of the accused’s Charter protected interests. It also constitutes serious Charter-infringing State conduct. In all the circumstances, all evidence flowing from the search and seizure of the accused must be excluded from evidence.
ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS XXTH DAY OF XXXXXXXXX, 2019.
Counsel for XXXXXXXXX
about David Chow
David Chow is a full service Alberta criminal lawyer. David is former Calgary Crown Prosecutor who became a Calgary criminal defence lawyer in 2005. Since that time he has successfully defended hundreds of impaired driving cases. If you have been charged with impaired driving post November 2018 you should consult with experienced Calgary DUI lawyers about your case; for a Constitutional Challenge may be appropriate. Do your due diligence researching Calgary criminal lawyers to ensure that you make the right choice. For a free telephone consultation call 403.452.8018. To read more about mandatory roadside testing, visit:
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