Demand’s lawfulness determined when it was made
Saskatchewan’s highest court has cautioned against judges confusing the grounds for an arrest with the grounds for a demand.
In <R. v. Rezansoff, 2014 SKCA 80> several motorists called 911 to report a truck being driven erratically. A police officer followed the vehicle at speeds between 120 and 140 km/h for about 15 minutes before pulling it over. It drove very slowly after the officer activated his lights but he did not see it drive erratically.
Rezansoff stopped in a parking lot and slowly and deliberately checked his pockets for identification. His eyes were glassy. Smelling alcohol coming from the truck and seeing a beer case between the two front seats, the officer told Rezansoff he was under arrest for impaired driving while he still sat in the vehicle.
Rezansoff immediately got out and fell into the vehicle’s door. He was handcuffed and taken back to the police car. After calling for backup, the officer spoke to the passenger, who admitted he and the driver had both been drinking.
Rezansoff was taken to the station, read his rights and a proper demand for a breathalyzer was made. He was given the opportunity to contact a lawyer but declined to do so. About an hour later it was determined the breathalyzer wasn’t working and Rezansoff was taken to another detachment.
He refused to properly blow into the breathalyzer and a valid breath sample could not be obtained. He was charged with impaired driving, driving while disqualified and refusing to provide a breath sample.
In Saskatchewan Provincial Court Rezansoff pled guilty to driving while disqualified, but challenged the impaired driving and refusal charges.
The judge found the officer did not have reasonable grounds to make an arrest for impaired driving. Although accepting that he had a subjective belief Rezansoff was driving while impaired, he found the officer did not have a proper objective base for that belief.
The arresting officer had followed the vehicle for about 30 kms but did not see any bad driving. Further, there was also no evidence the alcohol smell came from Rezansoff’s breath. The judge felt the arresting officer was “jumping the gun” by arresting him while he was still in the vehicle.
The judge held Rezansoff’s <s. 9> Charter rights had been breached, excluded all the evidence before the officer saw and followed the truck and entered an acquittal on the impaired driving charge.
He did admit the post-arrest evidence of the refusal to provide a breath sample under <s. 24(2)> and convicted Rezansoff of refusal, sentencing him to three months in jail and a three year driving ban.
Rezansoff successfully appealed his conviction to the Saskatchewan Court of Queen’s Bench. The appeal judge ruled that, since the arrest was unlawful, the breath demand wasn’t valid and Rezansoff was under no legal obligation to provide a breath sample pursuant to the faulty demand – he had a reasonable excuse to refuse to comply.
This ended the matter and it was unnecessary to determine whether there was a Charter breach. However, the appeal judge nevertheless found a <s. 9> Charter breach and possibly also a <s. 8> breach.
Conducting his own <s. 24(2)> analysis, the judge would have excluded the evidence. Rezansoff’s conviction was set aside and he was acquitted of refusal.
The Crown challenged the refusal acquittal to the Saskatchewan Court of Appeal, arguing the appeal judge erroneously conflated the lawfulness of the arrest and the unlawfulness of the breath demand. In the Crown’s view, there were sufficient grounds for a breath demand. The Crown also submitted that the trial judge erred in finding a <s. 9> breach, submitting there were also sufficient grounds for the arrest.
Justice Lane, speaking for a unanimous court, agreed that the appeal judge erred by conflating the lawfulness of the arrest and the lawfulness of the demand.
“The lawfulness of the demand must be determined at the time the demand and the lawfulness of the arrest must be determined at the time of the arrest,” he said. “Driving while impaired and refusing a breath sample are two separate offences. One does not necessarily follow the other.”
Neither junior court considered the lawfulness of the demand as a component of a distinct offence. The court of appeals described the breath demand provision as follows:
The factors articulated by the arresting officer were capable of supporting his belief that Rezansoff was impaired at the time of driving.
“It is clear that all of the observations both prior to and after the arrest made by the arresting officer would fully support a demand for a breath sample,” said Lane. “We are satisfied the post-arrest conduct of the accused and the observations of the arresting officer and the admission by the accused passenger they had both been drinking are sufficient to ground the arresting officer’s subjective belief with an objective base.”
There were no Charter breaches and it wasn’t necessary for the court to address the other grounds of appeal raised by the Crown. The Crown’s appeal was allowed and Rezansoff’s conviction for refusing to provide a breath sample was restored.