“Do I have to?” the woman asked, to which the officer replied, “Yes, I need your weight.”
This demand, which has no basis in law, violated both the woman’s privacy and her Charter right to be free from unreasonable search and seizure, a judge has ruled. Forcing someone to be weighed may not be as intrusive as taking bodily fluids, the judge found, but it is serious enough that the woman’s blood alcohol readings of twice the legal limit must be excluded, leaving the Crown with no evidence, and the woman free to go.
The decision follows another case last week in Toronto, in which an accused drunk driver was acquitted because police took too long to administer a roadside screening breath test after developing a reasonable suspicion of drunk driving. This “constitutionally inexcusable delay of approximately 10 minutes” failed to live up the Criminal Code requirement that the test be given “forthwith,” a judge ruled.
In both cases, police behaviour that the Crown defended as routine and innocent — weighing a suspected impaired driver, or letting a roadside breath demand be delayed by a few minutes — was found by a judge to seriously violate constitutional rights.The new decision of Judge Marc R. Labrosse of Ontario Superior Court upholds a lower court ruling to acquit the woman, which the Crown unsuccessfully appealed. The result is a new precedent for drunk-driving cases in the Ontario Court of Justice. Weighing someone, as far as the law is concerned, is just as intrusive as interrogating them or requesting their DNA, and it demands all the same safeguards, including the right to refuse.
“Here is the first recognized appellate authority finding that forcing an individual to get on a scale and provide their weight against their will amounts to a breach of their Charter rights,” said Solomon Friedman, a lawyer in the same firm as the woman’s lawyer, who could not comment because he was recently made a judge. He compared the issue to the right to keep silent and not incriminate yourself to police.
“Ordinarily, I can tell you as a lawyer, one of the pieces of advice that you give an individual is, ‘Don’t get on that scale. You will just be giving evidence that will be used against you. And you don’t have to,’ ” Friedman said. “In this case, the officer wouldn’t take no for an answer.”
The Charter freedom from unreasonable search and seizure, under Section 8, protects your “core biographical data,” Friedman said. “So that’s any private information about you, whether it’s something you have in your house, or in your car or on your person or in your mind. You can’t be compelled to provide it without judicial authorization.”
At trial, the Crown conceded the woman had a reasonable expectation of privacy about her weight. On appeal, however, the Crown took the opposite position and said a person’s weight can be objectively determined, at least approximately, just by looking, and so there is no expectation of privacy for one’s numerical weight in kilograms.
“As it turns out, they were right on the first go-round, according to Justice Labrosse,” said Friedman.
Kimberley McLachlan, who declined to comment when reached by phone Monday, was spotted in a car on a dead-end road by a police officer in Ottawa on Jan. 16, 2012, according to court records. Her plates did not match her vehicle, and as the officer followed her, she was speeding.
When he stopped her, the officer noticed a strong smell of alcohol, and she failed a breath screening test on her sixth attempt. By the time she got to the station, she “reeked” of alcohol, her eyes were glossy and bloodshot, and her speech was slow and deliberate. There was a delay getting her to a breath technician, and by the time one was available, more than two hours had passed since she last drove, which by law means expert evidence would be needed to “read back” her alcohol level to the time she was driving.
That is why the breath technician demanded she get on the scale, to provide data for that retrospective calculation. She initially refused, but was told she must, and as the trial judge described it, she complied but did not consent.
“Forcing someone to provide evidence against themselves is, in my view, serious,” said the trial judge, Charles D. Anderson. “If the police had demanded to know her weight by verbal response, the statement would be excluded under the common law as non-voluntary.”
The appeal judge was also critical of police for not keeping up with the law on drunk driving, and letting its breath technicians “simply adopt his or her own practice.”
“The absence of a properly identified (Ottawa Police Service) policy which deals with the manner of obtaining or estimating the weight of a detainee represents a breach which cannot be qualified as inadvertent,” he said. “While I acknowledge that it does not amount to bad faith, the breach here demonstrates an ignorance of the scope of the police authority in such circumstances and such ignorance of the scope of authority is still misconduct from which the court should be concerned to dissociate itself. While it is not the most serious of breaches, I still find it to be at the more serious end of the spectrum.”
Source: National Post