Accused charged with refusal to provide a screening breath sample. Alleged s. 9 breach. Prior to the ASD test, the accused was placed in the rear of the police vehicle. He stated a desire to contact counsel, and was then seen (contrary to police direction) to access a cell phone and begin making calls. The phone was taken, and the accused was handcuffed. He then refused to comply with the screening demand.
Held: s. 9 breach. Refusal excluded pursuant to 24(2).
The handcuffing of the accused was not necessary. In accordance with the test set out in MacDonald, 2014 SCC 3, the police were performing an important duty; however, the extent of the interference with individual liberty was unnecessary. The accused made no efforts to regain possession of his phone once it was taken by police, and given the absence of physical resistance from the accused, there was no reason to keep the handcuffs on him during the breath testing. Serious violation that had a significant impact on the accused’s Charter protected interests.
B. Aloneissi – Defence Counsel