Client stopped by a provincial sheriff for speeding. Sheriff’s notes indicated that he could not smell an odour of alcohol, however thought that the client’s speed was slurred slightly. Sheriff detained the client and called an RCMP officer to come and investigate further. Sheriff did not advise the client he was being detained for follow up on an impaired driving investigation. Sheriff did not advise client of his right to call a lawyer. RCMP officer arrived within 13 minutes, perhaps less. RCMP officer spoke to client. Officer’s notes indicated he could smell an odor of alcohol in the vehicle, but not on the client’s breath. As a result he asked client to step out of his vehicle. At this point the officer smelled an odour of alcohol on client’s breath and formed a reasonable suspicion that client had alcohol in his body. This allowed officer to demand a breath sample in the roadside screening device. Officer did not have a screening device with him, so called another officer to bring one to the scene. Client was not advised of his right to contact a lawyer at this point. Demand was not read to client until right before sample was provided. Client registered a fail. Client was arrested for impaired driving. A total of 20 minutes had elapsed from the point that the client was stopped by the sheriff to when the fail result was obtained. At police station client provided breathalyzer samples of 110 and 100 mg%. Defence counsel filed Notice alleging : 1. A violation of the client’s s. 9 Charter right to be free from arbitrary detention in respect of the actions of the Sheriff, 2. Violations of the client’s s. 10(b) right to be informed of the right to contact counsel without delay as a result of the actions of the sherrif and the RCMP officer, and 3. a violation of client’s s. 8 right to be free from unreasonable serach and seizure as a result of the roadside demand not being forthwith as required by statute. On trial date, Crown counsel withdrew the impaired/08 charges. Client entered guilty plea to speeding ticket.
July 3, 2013