The intersection of police investigative powers and individual constitutional rights is often most visible during roadside traffic stops.
Under the Criminal Code, police have the authority to demand a breath sample into an approved screening device (ASD) to detect alcohol consumption. However, the exercise of this power is subject to strict procedural requirements, as demonstrated in the case of Her Majesty the Queen v. Bruno Boutin 2010 SKPC 068. This case provides foundation for the reasonable excuse defence when police conduct creates a conflict with a detainee’s right to counsel.
A central pillar of roadside breath testing is the requirement in the Criminal Code that a breath sample be provided immediately. This requirement of immediacy is critical because it serves as the constitutional justification for suspending a person’s right to counsel during a roadside stop. The Supreme Court of Canada has ruled that because the police must act immediately to ensure road safety, there is no practical opportunity to facilitate a phone call to a lawyer; therefore, the ASD test is considered a reasonable limit on Section 10(b) Charter rights.
The Factual Context of R. v. Boutin
The case of Mr. Boutin involved a complex sequence of events that disrupted the typical roadside investigation. An officer initiated a traffic stop for a routine check of license and registration. During the interaction, the officer discovered that Mr. Boutin’s license was suspended and that he was the subject of an outstanding arrest warrant. Consequently, Mr. Boutin was removed from his vehicle and arrested on the warrant.
While Mr. Boutin was detained in the police vehicle, the officers conducted a search of his truck and discovered marijuana. It was only after these events and approximately 58 minutes after the initial stop that the officer detected the odour of alcohol emanating from Mr. Boutin in the back of the police car. After a passenger confirmed that Mr. Boutin had consumed alcohol, the officer formed the grounds necessary to make an ASD demand.
Before making the demand, the officer formally advised Mr. Boutin of his arrest for the warrant and drug possession. At this stage, the officer followed standard procedure by reading Mr. Boutin his Section 10(b) Charter rights, informing him that he had the right to retain and instruct counsel without delay. Smartly, Mr. Boutin immediately expressed his desire to speak with a specific lawyer.
However, five minutes later, the officer read the ASD demand for a breath sample.
Mr. Boutin responded by stating, “Until I talk to my lawyer, I’m not doing anything else.” Although the officer explained that the right to counsel does not typically apply to an ASD test, Mr. Boutin maintained his refusal. He was subsequently charged with refusing to comply with a breath demand.
The Provincial Court of Saskatchewan had to determine whether the demand was lawful and whether Mr. Boutin had a reasonable excuse for his refusal.
The court found the demand was lawful. Even though an hour had passed since the stop, the officer did not form the suspicion of alcohol consumption until the end of that period. The ten-minute delay between forming that suspicion and making the demand was justified by the officer’s need to process the other arrests. Therefore, the demand met the immediacy requirement.
Despite the lawful demand, the court nevertheless ruled that Boutin had a reasonable excuse for refusing.
While it is trite law that motorists generally do not have a right to counsel before an ASD test, this case involved unique circumstances. By informing Boutin of his right to counsel for the criminal charges before making the breath demand, the police created a reasonable and good-faith based expectation that he could exercise those rights before providing further evidence.
This is because an average person, when formally told they have a right to a lawyer while facing multiple criminal charges, cannot be expected to understand the fine legal distinction that would suddenly strip that right away for a breath test. The court concluded that police misinformation or the confusing timing of rights can constitute a valid legal excuse for non-compliance.
When the police choose to transition a simple roadside detention into a formal criminal arrest with full Charter warnings, they must respect the good faith exercise of those rights by the accused.
