Focus On

CRIMINAL CODE OFFENCES - Offences against person and reputation - Motor vehicles - Impaired driving or driving over the legal limit

Tuesday, March 21, 2017 @ 7:44 AM  


Lexis Advance® Quicklaw®
Appeal by the Crown from the acquittal of the accused, McLachlan, for impaired driving. The accused was arrested after she failed a roadside impaired driving test. She provided two breath samples at the detachment indicating a blood-alcohol level of approximately twice the legal limit. The breath samples were taken more than two hours after the accused's arrest due to delays at the detachment. In accordance with normal practice, the qualified breath technician required the accused to stand on a scale in order to provide her weight. Knowledge of the accused's weight aided a toxicologist in forming an expert opinion that no bolus drinking had occurred. The trial judge found that the police action of requiring the accused to stand on a scale constituted an illegal search that breached her s. 8 Charter rights. The evidence was excluded pursuant to s. 24(2) of the Charter, resulting in the accused's acquittal. The Crown appealed.

HELD: Appeal dismissed. Several factors observed by police raised the possibility the accused had consumed alcohol in her vehicle or immediately before she commenced driving. The finding that bolus drinking was at issue was based on the totality of the evidence, did not involve speculation, and was entitled to deference. The trial judge correctly concluded the police conduct in compelling the accused to be weighed breached her s. 8 Charter rights. There was no statutory authorization for the breath technician's demand to the accused to provide her weight by standing on a scale. If such information was crucial to processing by police, Parliament would have expressly included the authority with other legislative police powers. Police did not caution the accused prior to requiring her to stand on the scale in a manner that would have permitted her to obtain legal advice related to the demand. The breach of the accused's rights demonstrated an ignorance of the scope of police authority and had a significant impact on the accused's Charter-protected rights. The trial judge did not err in applying the Grant analysis to exclude the evidence pursuant to s. 24(2) of the Charter.

R. v. McLachlan, [2017] O.J. No. 1086, Ontario Superior Court of Justice, M.R. Labrosse J., March 3, 2017. Digest No. 3643-004