Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

DOES SECTION 320.27(2) [Mandatory Alcohol Screening] VIOLATE SECTIONS 7, 8, 9 OR 10(b) OF THE CHARTER?

In R. v. Kortmeyer, 2021 SKPC 10, February 19, 2021, the accused was charged with the offences of impaired driving and failing to comply with a demand. He argued that section 320.27(2) of the Criminal Code, the Mandatory Alcohol Screening provision, violates sections 7, 8, 9 and 10(b) of the Charter.

The application was dismissed by Judge Green.

Section 8:

[30] Despite a diminished interest in one’s breath, a privacy interest nevertheless exists.  In my view, a demand for a warrantless search and seizure of a bodily substance, by which a person could potentially incriminate himself, without any grounds required to justify that search and seizure, does constitute a breach of s. 8.  As a result, I both agree with Judge Baniak’s decision on this issue and see no cogent reason to depart from it.  As well, for the reasons I set out set out subsequently in this decision, I accept Judge Baniak’s reasoning and decision in both Morrison and Switenky – the latter case which included a consideration of Dr. Beirness’s evidence – that the s. 8 breach is saved by s. 1 of the Charter as a reasonable limit prescribed by law that can demonstrably be justified in a free and democratic society.

Section 9:

[34] I agree with Judge Baniak’s conclusion.  In addition to the brevity of the detention required for an MAS test, and the minimal intrusiveness of the ASD test administered to Mr. Kortmeyer, I, as well:

(1) Accept, as submitted by Ms. Roy in her brief of law, that “to the extent that the removal of the requirement for reasonable suspicion has the potential to shorten roadside stops, and to obviate the need for more extensive questioning and observation of drivers, it constitutes a lesser intrusion” on the rights protected by s. 9; and

 (2) Note that, in R v Labillois, 2020 ABQB 200, 9 Alta LR (7th) 200, Justice Yamauchi, sitting on appeal, upheld the trial judge’s decision that a police officer, who demanded an ASD sample under the MAS provisions of s. 320.27(2) did not breach the s. 9 rights of Mr. Labillois.  Justice Yamauchi found (at para. 43) that the traffic stop and the MAS demand in that case had little impact on Mr. Labillois’s rights and that the demand was minimally intrusive and revealed no biographical or personal information.

 [35] For the reasons stated, I am not satisfied that s. 320.27(2) violates s. 9 of the Charter.

Section 7:

[39] Given my conclusion, above, that s. 320.27(2) does not violate s. 9 of the Charter, I am not otherwise satisfied that the defence has met the onus in showing that this subsection violates s. 7.

Section 10(b):

[36] Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.  Ms. Roy, in her written argument, stated that the amendments to the ASD demand power in s. 320.27(2) do not materially affect the right to counsel under s. 10(b) of the Charter.  This was the same position taken by Judge Brandt in Pratt who said at p. 19 of the transcript:

… I find that s. 320.27(2) itself represents no difference with respect to the accused’s right to counsel.  The right to counsel at roadside is thus suspended for the same reasons as they are with suspicion-based testing.  The matter of right to counsel at roadside is a matter of settled law, which I need not reiterate here.  Under s. 320.27(2), the accused has no right to counsel until after blowing a fail on an ASD.  That has not changed.  The accused is in exactly the same position after a mandatory alcohol screening demand as after an ASD demand under suspicion-based testing.  Thus, I do not find any breach of Mr. Pratt’s 10(b) right.  I find that s. 320.27(2) does not offend s. 10(b) of the Charter, and that Mr. Pratt’s rights to counsel were not infringed.

I accept this reasoning as applicable to this case, and as a result am not satisfied that s. 320.27(2) violates s. 10(b) of the Charter, and if it does, I am satisfied that any such breach is saved by s. 1 as the Supreme Court held in R v Orbanski, 2005 SCC 37 at paras 46 – 59, 196 CCC (3d) 481 [Orbanski].

Is s. 320.27(2) saved by s. 1 of the Charter?

[69] …I am satisfied that the objective-based screening tool of MAS contained in s. 320.27(2) is not an unjustified extension of police powers over and above the lawful ability to stop vehicles for a reason connected to traffic safety, including sobriety.

[70]  For the above reasons, I am satisfied that there is proportionality between the deleterious and salutary effects of s. 320.27(2), and, in conclusion, that the means employed by s. 320.27(2) are proportional to the statutory object, which I view as increasing the detection of impaired drivers, reducing the injuries and deaths resulting from impaired driving and deterring others from driving while impaired.  In conclusion, I am satisfied that s. 320.27, while violating s. 8 of the Charter, is saved by s. 1, and is therefore lawful and applicable to Mr. Kortmeyer.