On November 24, 2020, Judge Dianne L. McGrath of the Provincial Court of Nova Scotia made an important decision in a DUI case which further supports liberty and protection against arbitrary searches under the Canadian Charter of Rights and Freedoms. In the case, Devyn Garland was found not guilty of failing to provide a breath sample. The case was really about this principle: if you are stopped by police for a roadside impairment test, they have to do the test immediately and find reasonable grounds of impairment to keep you detained. Any delay is a violation of your right to liberty. Any evidence they obtain, or search conducted, while you are unlawfully detained is against your rights.
The story began with Devyn Garland driving home on November 30, 2019 in Cape Breton, and being stopped for allegedly driving too fast. Constable James Penny pulled Garland over, with nothing more to go on for the stop than the suspected speeding violation. As Constable Penny was speaking to Garland, he detected the odour of alcohol on his breath. The constable did not have the required training to administer field sobriety tests and the police in the Cape Breton Regional Police Service did not have Approved Screening Devices for roadside tests. So, Constable Penny contacted another officer, Constable MacKenzie. He arrived 20 – 25 minutes later, administered sobriety tests, and found that Garland performed poorly. He finally gave the warning about the test results, demand to come to the station for a breath test, and provided the right to counsel. Once at the station, Garland went through six attempts of the police trying to get a sample, before they charged him for refusal. He was also charged with impaired operation of a vehicle.
Following the trial, the Crown conceded the case for impaired driving, but held to the refusal charge. The defence argued that police had the obligation under section 320.27 of the Criminal Code of Canada (Code) to request that Garland, “immediately perform the physical coordination tests…;” and failed to do this due to the delay of 20 – 25 minutes, making the detention unlawful. The consequence, according to the defence, was that the refusal charge under section 320.15 of the Code was unlawful – if you are unlawfully detained, how can police demands be lawful after that point?
The reasoning of Judge McGrath was very clear and logical:
[14] It is worth noting that s. 320.27 of the Criminal Code allows a peace officer to detain an individual for mandatory alcohol screening on mere suspicion that the individual has alcohol in their body. The caveat provided is that the screening must be done immediately, not as soon as practicable, but immediately.
[15] The word immediately is defined by the Oxford Encyclopedic Dictionary as “without delay”.
[16] The threshold for this investigative procedure is so low that balance is only achieved by ensuring that an individual’s detention in such cases is of the briefest possible duration.
(…)
[18] In the present case, Mr. Garland was detained at the roadside for 20+ minutes while waiting for another officer to attend to administer a standard field sobriety test. He was detained on mere suspicion that he had alcohol in his body.
(…)
[21] If the police wish to avail themselves of the investigative powers conferred on them by the Criminal Code, they must also comply with the requirements of the Criminal Code. Where the ability to perform the testing immediately does not exist, the police are unable to rely on the power to conduct such testing as set out in s. 320.27 of the Criminal Code.
[22] Consequently, this Court finds that the inability of Constable Penny to administer a roadside test immediately upon forming his suspicion in relation to Mr. Garland rendered his demand unlawful. Given that Constable Penny testified that the subsequent breath demand was predicated on the results of the field sobriety testing, this Court further finds that demand to be invalid and thus the subsequent refusal charge cannot stand.
This case is important as it emphasizes the importance of right to not be arbitrarily detained by police. Every minute of detention, while only suspected, is the state depriving you of a fundamental liberty. The police cannot simply argue that due to administrative or resource shortfalls, they had to wait until they were ready. Your liberty is more important than that.