Roadside Screening Demands

• Author: Karen Jokinen/Peter Keen
• Pages: 273-302

273

Roadside

Screening

Demands

16

I. Introduction ............................................. 274

II. Initial Screening Powers .................................... 274

III. Formal Screening Demands ................................ 277

A. Mandatory Alcohol Screening Demands: Section 320.27(2) ... 278

B. Reasonable Suspicion Demands ....................... 281

C. Delay in Making a Screening Demand ................... 288

IV. Information Provided by Screening Tests ...................... 294

A. Eect of a Fail Result on the Approved Screening Device .... 294

B. Section 320.27(1)(a) Demands: Physical Coordination Tests ... 295

C. Approved Drug Screening Equipment ................... 296

V. Limited-Use Rule ......................................... 297

A. The Limited-Use Rule, R v Soules, and Section 320.31(9)

of the Criminal Code ................................. 300

VI. Conclusion .............................................. 302

© 2023 Emond Montgomery Publications. All Rights Reserved.

274Impaired Driving and Other Criminal Code Driving Oences

I. Introduction

Screening occurs when the police briefly examine drivers to assess whether they

have been involved in drinking and/or drugged operation of a conveyance. Screening

is essential in preventing injuries and deaths caused by criminal driving behaviour.

Without some screening process, the police, before intervening, would have to wait

until they observe a criminal or provincial oence take place or until an accident has

occurred. The purpose of screening is to get drivers who pose a risk to the public o

the road before the risk materializes into property damage, injuries, or death. Yet

many of those screened are innocent of any criminal wrongdoing. Such checks can

begin without any suspicion of criminal activity yet drivers are stopped and briefly

detained by the state during this process. Some of those screened may be required to

provide incriminatory information to the police. Screening involves “tension between

the individual rights of motorists and the broader societal concern in dealing with the

carnage caused by those who commit oences involving drinking and driving.”1

The power of police to stop drivers has been examined in Chapter 14, The

Stop. In this current chapter, we examine the source of police powers to engage in

the screening of drivers and the limitations on those powers. Screening typically

involves two phases. During the initial phase, ocers interact with the driver and

determine whether to allow the motorist to continue or to take further steps. The

first phase ends with the driver being allowed to continue or with a formal screening

demand, or with an arrest if the ocer makes observations of a criminal oence. In

the second phase, the ocer makes a formal evidentiary demand which the driver

must comply with.

We will begin this chapter by examining powers to initially screen drivers and will

then examine the powers to make formal screening demands. We will discuss the ten-

sion between individual constitutional rights and public safety needs involved in the

screening process and will explain how the courts have resolved the tension by placing

limitations on the use of evidence obtained during the screening process. The law

relating to arresting an individual for a criminal drinking and/or drugged operation

oence and to making an evidentiary demand will be discussed in Chapter 17, The

Arrest and Evidentiary Demands.

II. Initial Screening Powers

When police deal with operators, either during a conveyance stop or other interac-

tions (such as speaking to an operator of a parked vehicle or at the scene of an acci-

dent), the police assess the individual to determine whether there are grounds to make

a Criminal Code2 screening demand or to arrest for a Criminal Code operation oence.

1 R v Orbanski; R v Elias, 2005 SCC 37 at para 1.

2 RSC 1985, c C-46.

© 2023 Emond Montgomery Publications. All Rights Reserved.