Impaired driving trial. Accused initially failed an ASD test. After the failure, the officer became suspicious of recent consumption and the possibility of mouth alcohol. Accordingly, he, in effect, ‘un-arrested’ the accused, and performed a second ASD 11 minutes later. No 10(b) rights given until after the second test failure. “Forthwith” and ss 8/10(b) issue.
Held: No Charter breach.
As per Nielsen [2015] AJ No. 502 (ProvCt) s 503(1)(d) CC provides an arresting police officer the ability to abort an arrest. Once the officer questioned the validity of the ASD failure, “[h]e retreated into the former state of detention where the right to counsel was limited”. The period of delay, which was aimed at ensuring a proper arrest, accorded with the limitation upon the right to counsel set out in Bernshaw [1995] 1 SCR 254.
G. Hatch – Defence Counsel