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| John L. Hill |
On Sept. 6, 2020, Ashley Westgard was stopped by police due to an expired licence plate. Under s. 320.27(2) of the Criminal Code, she was required to provide a breath sample using an approved screening device (ASD), which registered a “fail.” She was arrested and taken to the station, where further testing confirmed her blood alcohol concentration was over the legal limit. She was charged with impaired operation and “over 80.”
At trial, she was acquitted of impaired operation but found guilty of the “over 80” offence. She appealed the
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The Saskatchewan Court of Appeal rejected two grounds of appeal. She argued that the police officer’s demand to blow into an alcohol screening device was not in conformity with s. 320.27(2) of the Criminal Code because about 15 minutes had elapsed from the time she was stopped until she blew a “fail” reading. At trial and on appeal, it was agreed that the officer had acted reasonably in not causing undue delay following the decision in R. v. Quansah, 2012 ONCA 123.
Secondly, she stated that the police failed to facilitate her right to counsel as set out in s. 10(b) of the Charter. The Court of Appeal concluded that “Ms. Westgard was provided with information on her right to speak to counsel, that the officer met the implementational duty by calling Legal Aid for her when she asked and then calling her lawyer friend when she asked. I’m also satisfied on the evidence that Ms. Westgard did not express any dissatisfaction with her lawyer call or a need to speak further with a lawyer or Legal Aid. She has not established a breach of her s. 10(b) rights.”
The argument she raised that may be challenged is that the mandatory alcohol screening provisions of s. 320.27(2) of the Criminal Code allows police to stop and detain motorists and demand breath samples without reasonable suspicion that the driver has consumed alcohol, and without providing them the right to counsel. This seemingly violates ss. 7, 8, 9 and 10(b) of the Charter, which cannot be justified as a reasonable limit under s. 1 of the Charter.
Most of the three-judge panel agreed that s. 1 of the Charter allows such police action. Evidence demonstrated that the number of fatalities decreased after mandatory alcohol screening was introduced. Police are also not very effective at identifying impaired drivers. Additionally, mandatory screening is a minimally intrusive and quick method to detect impaired drivers.
The Court of Appeal referenced its decision in R. v. Wright, 2025 SKCA 52, where Justice Jeffery D. Kalmakoff, who authored the majority opinion in Westgard, stated that any unreasonable search and seizure violation is justified by s. 1 of the Charter.
Justice Jillyne M. Drennan issued a strongly worded, one-paragraph dissent. She had previously dissented in Wright. She wrote, “I adopt my reasons in the dissent of Wright and find that s. 320.27(2) of the Criminal Code violates s. 8 of the Charter and cannot be saved under s. 1. I would therefore declare the provision of no force and effect pursuant to s. 52 of the Charter. As Ms. Westgard was, in my view, subject to illegal search and seizure pursuant to s. 320.27(2), which ultimately resulted in further breath demands and arrest — I would exclude the evidence obtained against her as a result pursuant to s. 24(2) of the Charter, quash her conviction, and enter an acquittal.”
Appeals “as of right” to the Supreme Court of Canada are uncommon and typically only occur in specific circumstances within criminal law, mainly when there is a dissent in a Court of Appeal on a legal issue. Unless such an appeal is taken, roadside breath analysis using ASDs will continue.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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