Chad Kroeger’s over .08 case was a turning point for the police. Like so many before him, Mr. Kroeger (or Turton if you prefer) drank too much one night before driving his Lamborghini through Surrey. He was pulled over by the RCMP and ultimately he provided breath samples in excess of the legal limit.
It was a Charter violation — an unreasonable search and seizure. A search not authorized by law is by definition unreasonable. But what of it?
Whatever you may think of Mr. Kroeger, he is known as a successful businessman and music producer. But in the area of drinking-driving law he is also known for the Charter violation that now takes place all over BC every day.
When pulled over, the police assessed Mr. Kroeger and determined that there were not grounds to conclude that he had alcohol in his body. As a result, they could not demand that he provide an ASD sample. Still, thinking that maybe the evidence might exist if they could just get it, the investigating officer told Mr. Kroeger to blow in his face.
Of course, we are all breathing all of the time. We also shed DNA, and hair and put our fingerprints on things. For the police to collect evidence the proper course is to do it in a way authorized by law, i.e. a warrant or pursuant to some section of the Criminal Code. But there is no section of the Criminal Code that authorizes the police to demand that someone blow into the officer’s face.
So it was a Charter violation — an unreasonable search and seizure. A search not authorized by law is by definition unreasonable. But what of it?
Whenever there is an unlawful search, the Court must consider whether the results of the unlawful search are admissible. This is a balancing act. Would the admission or non-admission of the evidence bring the administration of justice into disrepute? As we explained recently, the Court must think prospectively. Will the admission encourage bad police behaviour?
Ultimately the Court found that the breach was relatively trivial and that the administration of justice would be brought into disrepute if the evidence was not admitted.
So the officer was permitted to rely on the odour on Mr. Kroeger’s breath to form a suspicion that he had alcohol in his body, leading to an ASD sample, a Fail reading, an arrest and two subsequent samples on an Approved Instrument that recorded him being over 80 mg%. And Mr. Kroeger was convicted.
But what happened after that? Was the administration of justice enhanced by the admission of the unlawfully obtained roadside sample blown into the officer’s face?
The decision did not create a new legal right to force people to blow into the face of a police officer on demand. It is still a Charter violation. Before the ruling in Mr. Kroeger’s case, we had never been involved in a case where the officer made this request. Now it is a regular occurrence.
When the IRP scheme was going full force with 90-day prohibitions for ASD Fail, about two people a week would tell us that they were told by the officer to blow at the officer’s face. Right now we hear about it every week or two.
So was the Court right in Mr. Kroeger’s case? Well, it certainly seemed like a minor breach, and if it was infrequent and a simple mistake of the officer then it seems fairly trivial on the whole. However, the decision has spawned Charter violations as a regular occurrence in British Columbia. Every day, somewhere in the BC an officer demands that a subject provide breath evidence without lawful authority. The police know that the evidence that flows from the Charter violation will likely still be admitted by the Court. So there is nothing to stop them, and indeed they feel that they have the endorsement of the Court to violate a Charter Right.
It was certainly unintentional, but the police in BC have been encouraged to violate Charter Rights.
It may not be easily identified in the context of legal history, but in the long run the decision in Mr. Kroeger’s case may have the effect of bringing the administration of justice into disrepute, even if it did not in the particular case.