The Arrest and Evidentiary Demands

• Author: Karen Jokinen/Peter Keen
• Pages: 303-324

303

The Arrest and

Evidentiary

Demands

17

I. Introduction ............................................. 304

II. Legislation .............................................. 304

A. Summary of the Evidentiary Demands .................. 306

III. Reasonable Grounds Demands ............................. 307

A. Fail Results on an Approved Screening Device and

Reasonable Grounds ................................. 311

B. Analyzing Reasonable and Probable Grounds: Examples .... 313

IV. As Soon as Practicable ..................................... 316

A. Purpose of the “as Soon as Practicable” Language ......... 316

B. Meaning of “as Soon as Practicable” .................... 316

C. A Charter Application Is Required to Raise

“as Soon as Practicable” Issues ........................ 317

D. The Meaning of “as Soon as Practicable”

Remains Unchanged ................................. 318

V. Evaluating Ocer’s Breath Demand .......................... 320

VI. Additional Charter Considerations ........................... 323

VII. Conclusion .............................................. 323

© 2023 Emond Montgomery Publications. All Rights Reserved.

304 Impaired Driving and Other Criminal Code Driving Oences

I. Introduction

This chapter will review the grounds a police ocer has to have to make an approved

instrument demand, a drug recognition expert (DRE) demand, a blood demand, or

a demand for a sample of oral fluid or urine under section 320.28 of the Criminal

Code.1 Generally, with the exception of section 320.28(3), the police ocer will be

required to have reasonable grounds. This is not only a statutory requirement but

also a Charter requirement. The terms “reasonable and probable grounds” and “rea-

sonable grounds” are used interchangeably. These grounds are the same as those

required for an arrest.

We will also be discussing the “as soon as practicable” requirement that still exists

in section 320.28 and how, if samples are not taken as soon as practicable, this can be

challenged. Finally, we will briefly discuss Charter considerations as they relate to the

arrest and evidentiary demands.

II. Legislation

Samples of breath or blood—alcohol

320.28(1) If a peace ocer has reasonable grounds to believe that a person has oper-

ated a conveyance while the person’s ability to operate it was impaired to any degree

by alcohol or has committed an oence under paragraph 320.14(1)(b), the peace ocer

may, by demand made as soon as practicable,

(a) require the person to provide, as soon as practicable,

(i) the samples of breath that, in a qualified technician’s opinion, are necessary

to enable a proper analysis to be made by means of an approved instrument, or

(ii) if the peace ocer has reasonable grounds to believe that, because of

their physical condition, the person may be incapable of providing a sample of

breath or it would be impracticable to take one, the samples of blood that, in

theopinion of the qualified medical practitioner or qualified technician taking the

samples, are necessary to enable a proper analysis to be made to determine the

person’s blood alcohol concentration; and

(b) require the person to accompany the peace ocer for the purpose of taking

samples of that person’s breath or blood.

Evaluation and samples of blood—drugs

(2) If a peace ocer has reasonable grounds to believe that a person has operated a

conveyance while the person’s ability to operate it was impaired to any degree by a drug

or by a combination of alcohol and a drug, or has committed an oence under paragraph

320.14(1)(c) or (d) or subsection 320.14(4), the peace ocer may, by demand, made as

soon as practicable, require the person to comply with the requirements of either or both

of paragraphs (a) and (b):

1 RSC 1985, c C-46.

© 2023 Emond Montgomery Publications. All Rights Reserved.