Drinking and Driving: A Tale as Old as Time - Cassandra J. Bueckert

The case of R v Farley (“Farley”) was recently decided by the Manitoba Court of Queen’s Bench (“the MBQB”) on an appeal from a Provincial Court of Manitoba (“the MBPC”). The offender, Mr. Farley, was convicted of one count of operating a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood. At trial, Mr. Farley argued that his section 8 and section 10(b) rights under the Canadian Charter of Rights and Freedoms (“the Charter”) were infringed. However, the trial court dismissed those arguments. Mr. Farley appealed, arguing that his rights were in fact infringed and that the MBPC had erred in finding otherwise. This blog will briefly describe the events giving rise to the Farley decision, the issues presented for appeal, the current state of the law on these issues and potential impacts of this law in the future.

An arrest for drunk driving

On December 8, 2018, two Constables of the Winnipeg Police Service were conducting a road watch for impaired drivers. The officers parked their unmarked cruiser outside of Lipstixx Exotic Night Club & Sports Bar in Winnipeg. At 9:20 p.m., the officers saw Mr. Farley leave the bar and drive away in his pickup truck; the officers followed him for a short distance. Mr. Farley made a turn without signalling, and the officers pulled him over. The officers activated the cruiser’s emergency lights and siren twice before Mr. Farley stopped his vehicle at 9:25 pm. One of the Constables approached Mr. Farley’s vehicle and asked where he was coming from. Mr. Farley replied that he was coming from out of town and he was stopping in Winnipeg for a coffee. Mr. Farley was then asked if he had had anything to drink, to which he replied “[n]o, I did not have anything to drink at all.” The Constable, reportedly smelling alcohol on Mr. Farley’s breath, then asked once more whether he had had anything to drink. Again, Mr. Farley said that he did not have any alcohol in his system. The Constable then told Mr. Farley that he had seen him leave the bar and that he thought he was lying. At this point, Mr. Farley apologized and admitted to a brief stop at the bar. The Constable immediately made a demand that Mr. Farley provide a breath sample into an Approved Screening Device (“ASD”).

The Constable made the ASD demand at 9:30 pm and Mr. Farley “blew a fail” at 9:38 pm. The Constable then advised Mr. Farley he was under arrest for impaired driving. Once in the cruiser, the Constable read the breath demand to Mr. Farley and advised him of his right to counsel. Mr. Farley was asked if he understood to which he replied, “[y]es.” The Constable then asked if he wanted to call a lawyer, and Mr. Farley declined. The Constables, while conducting their paperwork, asked Mr. Farley twice more if he wanted to call a lawyer; each time, Mr. Farley declined. Mr. Farley was then asked about the drinks he had consumed, and he “admitted he had had two bottles of Bud Light – one at 8:30 p.m. and the second sometime around 9 p.m”. Mr. Farley provided two more breath samples once the check stop van arrived. He was later released on an appearance notice.

Mr. Farley’s guilt was not at issue on appeal in Farley. The issues on appeal were: (1) whether the MBPC erred in holding that Mr. Farley’s right to counsel was not infringed and (2) whether the MBPC erred in holding that the Constables who administered the ASD test were not required to inquire about Mr. Farley’s recent alcohol consumption in order to determine if mouth alcohol contamination skewed the ASD test results.

Courts concur no need to inquire

In assessing whether a right guaranteed under the Charter has been breached due to police failure to implement a detained person’s right to counsel, the onus is on the detained person to establish a Charter breach on a balance of probabilities. Mr. Farley asserted that police failed to implement his right to counsel and failed to further explain his rights and clear up any misunderstandings that he may have had. However, in R v Owens, the Court determined that “implementation duties flowing from the right to counsel are not triggered unless and until a detainee indicates a desire to exercise their right to counsel.” Mr. Farley advised the officers twice that he understood his right to counsel and did not wish to speak to a lawyer. Further, a police officer is not in a position to provide advice on the potential consequences of refusing counsel as such advice would open them to criticism and “delves into the territory of providing legal advice.”

It has long been established that a police officer, in detaining a person, is required to advise of the reason for arrest and the rights to counsel and to remain silent. A police officer is “not, however, required to explain the potential consequences that a person may face.”

The MBPC in Farley had found Mr. Farley’s testimony that he did not understand his right to counsel to be incredible. The MBQB followed that “such a credibility finding is entitled to great deference and should not be disturbed unless the judge has made a palpable and overriding error.” The appeals MBQB determined that no error was made and that the MBPC correctly stated the legal principles and applied them to the facts he had found. Accordingly, the MBQB dismissed the appeal on this particular issue.

The MBQB then turned their attention to the second issue presented for appeal, whether the MBPC erred in holding that the officers were not required to inquire into Mr. Farley’s recent alcohol consumption. The MBQB held that “[a] breath demand is a warrantless search, therefore the onus is on the Crown to show that, on a balance of probabilities, the search was reasonable.” Further, the presence of mouth alcohol contamination has been found to affect the reliability of an ASD test and therefore “taking an ASD sample within 15 minutes of alcohol consumption can produce a false “fail” reading.” However, case law on this topic currently shows that police officers, in administering ASD tests, are not obligated to obtain a drinking history from detainees when “there is no evidence about the timing of the driver’s last drink.”

The Manitoba Court of Appeal (“the MBCA”) in R v Mitchell (“Mitchell”) had previously held that “rarely will there be a need for a police officer to obtain an alcohol consumption history from a driver.” However, the law on this issue is not firmly established in Manitoba. Mr. Farley presented cases from other provincial courts finding that police officers should be required to ask detainees about their recent alcohol consumption and further be required to wait at least 15 minutes before administering an ASD test, in order to rule out the potential for mouth alcohol test contamination.

Upon hearing arguments on this issue, the MBQB in Farley determined that the distinguishing feature was whether the detainee admits to alcohol consumption when asked by police. The MBQB agreed with the MBPC, finding there was “no credible evidence indicating that Mr. Farley had consumed alcohol within 15 minutes prior to the ASD test.” Even though the Constable had his “doubts about the truth of Mr. Farley’s answers, Mr. Farley was adamant that he had not been drinking at all.” The law does not require police officers to continue to ask questions for which they have already received a response. Therefore, the appeals court did not find any palpable or overriding error made by the trial court and this ground of appeal was also dismissed.

Looking beyond the courts’ consensus

As illustrated, the presence of mouth alcohol contamination has been found to effect the reliability of an ASD test, potentially producing a false fail reading. Considering that contamination can produce such skewed results, the ruling in Farley creates serious cause for concern. Holding police officers to such a minimal standard of inquiry, where officers are permitted to generate a detainee’s alcohol consumption timeline by verbal confirmation from the detainee, seems contradictory to the interests of justice. Such minimal burden of inquiry has the potential for detrimental results, that is, false ASD readings that incriminate individuals who fail to verbally admit to recent alcohol consumption but are still within the legal blood alcohol level permitted to operate a motor vehicle. Reflecting upon the facts in Farley, these Constables were parked outside of the bar watching patrons, they chose to follow Mr. Farley because of his immediate departure from the bar. These facts would seem to demand further inquiry from officers on the recent alcohol consumption by Mr. Farley, even in the presence of his persistent denials of alcohol consumption. There are times when police officers need to be held to higher standards of inquiry in an effort to protect the integrity of the law, an individual’s 11(d) Charter Right guaranteeing innocence until proven guilty, and society's confidence in the justice system overall. Ultimately, I am optimistic that the principle established in the Farley case will undergo further refining in the future, in order to strike a much needed equitable balance.