Approved screening device

The expression approved screening device is a Canadian term defined in the Criminal Code of Canada as:

approved screening device means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada. [ [http://laws.justice.gc.ca/en/ShowDoc/cs/C-46/bo-ga:l_VIII::bo-ga:l_IX//en?page=6&isPrinting=false#codese:254] Criminal Code of Canada section 254 (1)]

An approved screening device demand can be made whenever a police officer reasonably suspects that a motorist has alcohol in his or her body. [ [http://www.lawyers.ca/international/sectiondetail.asp?ID=2&state=Ontario] Criminal Code of Canada section 254(2)] In Ontario, Canada police have a general power to stop drivers to check sobriety. [ [http://www.lawyers.ca/international/sectiondetail.asp?ID=41&state=Ontario] Ontario Highway Traffic Act section 48 and 216 (1)]

The "Approved Screening Devices Order" [ [http://www.lawyers.ca/international/students/discussiondetail.asp?Law=DUI&T1=approved+screening+device&ID=118] Canada Regulations SI/88-136, s. 1; SOR/93-263, s. 2; SOR/94-193, s. 1; SOR/94-423, s. 1; SOR/96-81, s. 1; SOR/97-116, s. 1 ] establishes certain devices as approved screening devices for use in Canada. These devices are commonly known as "roadside testers" or simply as an "ASD". In the United States they are known as a "PBT".

It is a criminal offence in Canada to refuse an approved screening device demand that has been lawfully made. Section 254(5) of the Criminal Code of Canada provides as follows:

(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section. [ [http://www.lawyers.ca/international/sectiondetail.asp?ID=4&state=Ontario] Criminal Code of Canada section 254(5)]

Possible defences to this offence include challenges to the lawfulness of the demand. Sometimes a demand is unlawful because it is not made forthwith or sometimes the device in question is not used forthwith. [ [http://www.lawyers.ca/private/Impaired2000/issuesresults.asp?IssueNo=55] See particularly R. v. Woods] The demand should be made by the same officer who formed the reasonable suspicion. [ [http://www.lawyers.ca/private/Impaired2000/results.asp?ID=94] R. v. Pavel] Lack of an opportunity to speak to counsel prior to the screening device test is not a defence. [ [http://www.canlii.org/eliisa/highlight.do?text=Thomsen&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/scc/doc/1988/1988canlii73/1988canlii73.html] R. v. Thomsen] The results of the screening device test can only be used to establish reasonable and probable grounds for the approved instrument demand, not for evidentiary purposes on the trial proper in Canada. [ [http://www.lawyers.ca/private/Impaired2000/issuesresults.asp?IssueNo=20] R. v. Coutts, R. v. Milne]

The Crown generally discloses compliance by the police with standards by providing copies of maintenance and calibration records for the screening device. [ [http://www.lawyers.ca/international/serialnumber.asp?ID=83&associated=64%2D003699&serialnumber=ARRB%2D0827&serialnumberid=83] See R. v. Neil Campbell as well as notes respecting relevance of such disclosure] Police should wait 15 to 20 minutes to administer the test if they suspect mouth alcohol to comply with their training and the manufacturer's instructions. [ [http://www.canlii.org/eliisa/highlight.do?text=Bernshaw&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/scc/doc/1995/1995canlii150/1995canlii150.html ] R. v. Bernshaw]

An approved screening device in Canada should be re-calibrated at least once every two weeks in accordance with the "RECOMMENDED STANDARDS AND PROCEDURES OF THECANADIAN SOCIETY OF FORENSIC SCIENCE ALCOHOLTEST COMMITTEE" [ [http://ww2.csfs.ca/contentadmin/UserFiles/File/EtoHEn.pdf ] Alcohol Test Committee Standards page 116] .

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