Modernizing the Transportation Provisions of the Criminal Code - Discussion Paper

During the 2009 Standing Committee hearings, the issue of the right to counsel prior to providing a breath sample on an AI was raised in the Department of Justice Issues Paper.
The requirement often results in significant delays particularly as the courts have imposed on the police the duty of finding counsel of choice for the driver.

The Supreme Court has upheld requiring a driver to provide a breath sample in an ASD without the result to consult counsel. Failing the ASD constitutes reasonable grounds to demand a breath sample. Parliament has made it an offence to refuse to provide the breath sample without reasonable excuse. Therefore, it is to be expected that the advice from counsel, perforce, will have to be to obey the law.

It is essential to bear in mind that BAC is a physical fact that can only be established by requiring the person to provide a breath or blood sample. ASD and AI breath samples are taken pursuant to statutory authority which has been upheld as constitutional and alcohol in the blood will disappear over time, making obtaining a sample promptly imperative. The BAC as determined by the AI is not self-incriminating in the way that a statement can be. The Supreme Court has recently considered this issue in a series of cases dealing with the exclusion of evidence:

In most situations, statements and bodily samples raise very different considerations from the point of view of the administration of justice. Equating them under the umbrella of conscription risks erasing relevant distinctions and compromising the ultimate analysis of systemic disrepute. As Professor Paciocco has observed, "in equating intimate bodily substances with testimony we are not so much reacting to the compelled participation of the accused as we are to the violation of the privacy and dignity of the person that obtaining such evidence involves" ("Stillman, Disproportion and the Fair Trial Dichotomy under Section 24(2)", at p. 170). Nor does the taking of a bodily sample trench on the accused's autonomy in the same way as may the unlawful taking of a statement. The pre-trial right to silence under s. 7, the right against testimonial self-incrimination in s. 11(c), and the right against subsequent use of self-incriminating evidence in s. 13 have informed the treatment of statements under s. 24(2). These concepts do not apply coherently to bodily samples, which are not communicative in nature, weakening self-incrimination as the sole criterion for determining their admissibility.8

One option would be for the Criminal Code to provide that the right to counsel is postponed until after the physical evidence of the AI test has been gathered. As noted, in the USA, many states have prescribed wording that the police are to use when they demand a breath sample. The Criminal Code could provide such wording. Further, the Code could specify that any statement that was made by the accused prior to consulting counsel would be excluded from the evidence at trial unless the Crown has established that the accused was advised of his right to remain silent and had explicitly waived that right.

Another option would be for the Code to specify limits on the time that the accused is given for making the call to counsel and the way in which that right is to be exercised. For example, the Code could specify that it is sufficient for the police to have provided the accused with a phone, a list of lawyers who have made their willingness to be called at any time of day or night known to the police, a private place from which to make the call and a reasonable time (perhaps 15 minutes) to place the call. The police would not have to try to contact anyone on behalf of the accused. If the person had not made contact with a lawyer after a reasonable time, the AI breath tests would proceed.

Your views are sought on:

Eliminating the right to counsel prior to an AI test. (Any statement made prior to consulting counsel would be excluded unless this right was explicitly waived) or

Limiting the time to place the call to counsel to 15 minutes.

ISSUES ON WHICH YOUR VIEWS ARE SOUGHT

[8] R. v. Grant, 2009 SCC 32