Apr 16

Since impaired driving law is a technical area of law, contact the Brampton impaired lawyers and Toronto impaired lawyers at Lockyer Zaduk Zeeh to review your case and advise you whether the police respected your Charter rights. We have represented clients charged with refusal and other driving offences such as impaired driving, excess blood alcohol, and dangerous driving. We understand the serious consequences you will suffer from losing your license and having a criminal record. We work tirelessly to ensure we provide our clients with their best defence to help them avoid losing their license and from being convicted.

What is an Approved Screening Device (ASD) Valid?

The Supreme Court of Canada ruled the police must have an approved screening device with them when they order someone to provide a breath sample.

In Rex v. Breault, Justice Suzanne Côté ruled that the validity of a demand to provide a breath sample requires that police have immediate access to an ASD at the time the demand is made. The word “forthwith” in s. 254(2)(b) must be given a strict interpretation that reflects its ordinary meaning, namely “immediately” or “without delay”.

A detained driver does not have a right to counsel as guaranteed by s. 10(b) of the Charter, since the driver must provide a breath sample immediately. The limit on this right is justified because the detention is very brief. Therefore, interpretation given to the word “forthwith” must be consistent with its ordinary meaning. As Côté J. noted, “[t]he more flexibly the word ‘forthwith’ is interpreted, the less the recognized justification for limiting the right to counsel holds up”.

Justice Côté stated that, exceptionally, unusual circumstances may justify a flexible interpretation of the word “forthwith” if they are related to the use of the device or the reliability of the result. However, unusual circumstances cannot arise from budgetary considerations or considerations of practical efficiency, such as the supplying of ASDs to police forces or the time needed to train officers to use them. The absence of a device at the scene at the time the demand is made is not in itself an unusual circumstance.