Ted's Blog

S.C.C. finds police must have a breathalyzer with them when demanding a breath sample.

In R. v. Breault, 2023 SCC 9 — “On April 2, 2017, two police officers were informed by forest trail patrollers that an individual who was intoxicated was driving an all‑terrain vehicle (“ATV”). At about 1:35 p.m., the police officers arrived at the scene, saw B and stopped him as he was about to leave the scene on foot. One of the officers noticed that B’s eyes were bloodshot and that his breath smelled strongly of alcohol. At 1:41 p.m., that officer radioed for an approved screening device (“ASD”) to be brought to him, since the officers did not have one in their possession. Once he had requested an ASD, the officer demanded that B provide forthwith a breath sample pursuant to s. 254(2)(b) of the Criminal Code. Starting at 1:45 p.m., B refused three times to provide the requested sample on the ground that he had not been driving the ATV in question. He was arrested for refusing to comply with a demand to provide a breath sample contrary to s. 254(5) Cr. C. The Municipal Court judge held that the validity of the demand made by the police officer did not depend on the presence of an ASD at the scene. He convicted B of the offence of refusing to comply with a demand made under s. 254(2) Cr. C., contrary to ss. 254(5) and 255(1) Cr. C. B’s appeal to the Superior Court was dismissed, but his subsequent appeal to the Court of Appeal was allowed. The Court of Appeal found that, in order for a demand to be valid, the peace officer must be in a position to demand that the driver provide a breath sample forthwith, which means that the officer must have immediate access to an ASD. The court was of the view that the demand made to B by the police officer was invalid due to the absence of an ASD. It reversed the lower courts’ judgments and directed that a judgment of acquittal be entered."

The SCC (8 :0) dismissed the appeal.

Secret Recordings May Amount To Just Cause For Dismissal

The British Columbia Supreme Court's decision in Shalagin v Mercer Celgar Limited Partnership, 2022 BCSC 112 illustrates when an employee's secret workplace recordings will amount to just cause for dismissal. Read More...