Nunavut woman acquitted of refusing breathalyzer, after judge finds charter breach

A Nunavut woman has been acquitted of refusing a breathalyzer test, after a judge found a “significant” breach of her rights under the Canadian Charter of Rights and Freedoms.

The woman, referred to as C.D. in the 15-page court judgment, was arrested on an impaired driving charge and refusing a breathalyzer in 2018, according to the recently released court decision.

In his judgment, Justice Christian Lyons says police had not read the women her rights before she was charged with refusing a breathalyzer test.

The Canadian Charter of Rights and Freedoms has established a number of rights to protect individuals who are arrested or detained by the police.

These include the right to be told why you have been arrested or detained, the right to remain silent when questioned by the police, and the right to speak with a lawyer, in private, as soon as possible.

Lyons said he found C.D. guilty of impaired driving based on the arresting officer’s observation of intoxication and driving pattern, and he accepted evidence that the officer had read C.D. her charter rights.

The police officer read her a summary of her rights from a “charter” card and asked if she wanted to call a lawyer.

The card says:

“You have the right to retain and instruct counsel in private without delay. You may call any lawyer you want. There is a 24-hour legal aid number available. This advice is given without charge and the lawyer can explain the legal aid plan to you. If you wish to contact a legal aid duty lawyer, I can provide you with a telephone number. Do you understand?”

The officer then read to her what is referred to as a “police caution” from the same card:

“You are arrested. You need not say anything. You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything. Anything you do say may be used as evidence. Do you understand?”

The police then drove C.D. to the RCMP detachment and attempted to get a breath sample from her.

C.D. failed to properly blow into the breathalyzer machine on six occasions and the police then charged her with failing to provide a breath sample, according to the judgment.

But C.D. was not read her charter rights again before she was charged with that offence, so Lyons acquitted her on that charge.

Lyons accepted the word of the arresting officer that C.D. had been read her rights the first time—but she may not have understood them.

“Although the Charter card uses language as recommended by the Supreme Court of Canada, some of it might be difficult to understand for some detainees,” Lyons said.

“English is not the first language of a large proportion of Nunavummiut, and some have limited English language skills, or formal western education. For many, the words ‘retain and instruct counsel in private without delay’ would be incomprehensible, and follow-up plain language such as, ‘you can speak to a free lawyer on the telephone in private as soon as we get to the RCMP detachment,’ would help facilitate understanding.”

But C.D. was not advised of her rights after the police decided to charge her with failing to provide a breath sample.

C.D. should have been told a second time that she could speak with a lawyer, Lyons said.

“Failure to do so amounted to a significant breach. Had she spoken to a lawyer she would have been advised to provide a breath sample. Perhaps she would have been able to persuade the police to give her another chance to provide a sample,” Lyons said.

She was put into an RCMP detachment cell to sober up.

As well, the police did not tell C.D. that the cell area was under video surveillance when she was taken there.

There was a small sign in an area outside the cell advising that the general area was videotaped, and the sign said the interior of the cell was video monitored.

But C.D. did not appear to look at the sign, the judgment said.

When viewing the video of her in the cell, Lyons said C.D. did not appear to be aware she was being video monitored.

C.D. was alone in the cell, and there was no one outside looking in the cell door window when she used the toilet.

But this was captured by the cell’s video camera and recorded by the RCMP, the judgment said.

The RCMP should tell all prisoners they are putting them in a detachment cell that is being video monitored and recorded, Lyons said.

“Consideration should also be given to having a sign in each cell advising the same,” Lyons said.

And some sort of cover or screen should also be made available to shield prisoners from the camera’s view when using the toilet.

“In appropriate circumstances, prisoners should be told about the availability of the cover or screen and, depending on the danger posed by the prisoner, the cover or screen could be provided,” he said.

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