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 Ocer’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 Oences
I. Introduction
This chapter will review the grounds a police ocer 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 ocer 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 ocer 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 oence under paragraph 320.14(1)(b), the peace ocer
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 ocer 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
theopinion 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 ocer for the purpose of taking
samples of that person’s breath or blood.
Evaluation and samples of blood—drugs
(2) If a peace ocer 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 oence under paragraph
320.14(1)(c) or (d) or subsection 320.14(4), the peace ocer 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.
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