IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Johnston is charged with refusing to comply with an approved screening device demand on November 27, 2015 in Penticton.  He applies to exclude the evidence of his refusal pursuant to section 10(a) and (b) of the Charter.

[2]           Following a roadside screening device demand, Mr. Johnston began walking away from Constable Caruso.  Constable Caruso told Mr. Johnston he was under arrest.  Although he did not tell Mr. Johnston the reason for the arrest, Constable Caruso testified that he arrested him for obstruction.

[3]           He was handcuffed and placed into the backseat of the officer’s vehicle.  Constable Caruso then tried to persuade Mr. Johnston to provide a sample but he refused by saying, “No thanks.”

[4]           Prior to providing a sample of breath, Mr. Johnston was neither told why he had been arrested nor given his rights to counsel in relation to the arrest for obstruction.

[5]           Mr. Johnston was never charged with obstructing Constable Caruso.  Constable Caruso testified that shortly after the arrest, he decided not to charge him but kept him in the backseat of his police vehicle until the impaired driving investigation was complete.

[6]           Mr. Johnston argues that despite the fact that his rights to counsel were suspended for the purposes of an approved screening device (ASD) demand, once he was arrested, he was entitled to be properly informed of the reasons for the arrest, given his rights to counsel and further given an opportunity to consult counsel before moving forward with the investigation.

[7]           If I do find that his rights under section 10(a) or (b) were infringed, he further urges me to exclude the evidence of his alleged refusal to comply with the demand.

[8]           It is trite law that an accused’s right to be informed and to exercise his or her right to counsel is suspended when an approved screening device demand is made, provided the police are in a position to obtain the sample forthwith.  But what happens if the accused is arrested for another offence, before, or after the demand is made but prior to the sample being obtained?

[9]           Mr. Johnston’s counsel argues that the arrest is a game changer.  He stresses that the accused is entitled to be informed of the reasons for the arrest and his right to counsel immediately following an arrest.  He further stresses that if the accused indicates a desire to contact a lawyer, the police must then allow him to exercise that right before attempting to obtain any further incriminating evidence from him.

[10]        I do not agree.

[11]        In R. v. Michener, 2013 ABPC 232, the accused was not informed of his right to counsel when he was arrested for driving while suspended.  During the roadside investigation, the officer detected an odour of liquor, and made an approved screening device demand.  The accused argued that he should have been given an opportunity to contact counsel before deciding whether to comply with the demand.

[12]        Judge Henderson, in a very well-reasoned decision, concludes that although the police officer ought to have provided the informational component of section 10(b) in relation to the offence for which the accused was arrested, the right of the accused to speak to counsel would still have been suspended until after the ASD sample was obtained.

[13]        Mr. Michener was subject to two separate and distinct detentions.  The first regarding the arrest for driving while suspended and the second for the ASD demand.  The fact that the accused was arrested for another offence, did not change the requirement in the Criminal Code that when an ASD demand is made, the accused must provide a sample “forthwith”.  Since the officer was in a position to obtain the sample forthwith, the accused was not entitled to delay things by speaking to counsel.

[14]        Judge Henderson opined that even if Mr. Michener had been provided his right to counsel in relation to the charge of driving while suspended, he still would not have been entitled to exercise that right prior to compliance with the demand.  In R. v. Good, 2007 ABQB 696, the accused had been arrested on outstanding warrants and given his right to counsel.  On the way to the police station, the officer formed the suspicion the accused had alcohol in his body, stopped the police car, and made an ASD demand to which the accused refused.  Again the court concluded that he was not entitled to exercise his rights before compliance with the ASD demand.

[15]        In R. v. Gunn, 2015 ONCJ 218, the officer made an ASD demand and asked the accused to retrieve some papers from the glove box.  While doing so, the officer saw a bag of marijuana.  The officer then arrested him for possession of marijuana.  He informed the accused about his right to contact a lawyer and the accused indicated he wished to exercise that right.  The officer then obtained a sample of the accused’s breath into the screening device.

[16]        At trial, the accused argued that he should have been given the opportunity to speak to a lawyer before providing the sample.  Judge Perron did not agree and followed the reasoning in Michener.

[17]        In R. v. Scott, 2016 ABPC 226, the accused refused to accompany the officer to his police vehicle so he could conduct an impaired investigation.  The accused told the officer he was trespassing on his property.  The officer arrested him for impaired driving and obstruction.  In the police car the officer made an ASD demand.  The accused refused.  It was only then that he was informed of his right to counsel.

[18]        Judge Williams concludes that Mr. Scott’s rights were not infringed.  At paragraph 158 Judge Williams explains:

[19]        The defendant relies on R. v. Fedoruk, 2015 ABPC 78; however, it is distinguishable.  Although the facts are similar, the violation of import in that case did not occur prior to the ASD sample being provided, but rather at the police station when the police attempted to dissuade the accused from contacting counsel.  With respect to the suspension of the accused’s rights prior to the ASD sample, the court found the reasons in Michener persuasive and did not find a violation.

[20]        Although there might have been a breach with respect to the accused’s rights regarding the charge of obstruction, that charge is not before the court, and the breach(s) have no impact on the matter at hand.  There was no breach of the accused’s section 10(a) or 10(b) rights in relation to the charge before the court and I dismiss the accused’s application.