MacMillan was driving a boat. She had a significant amount of alcohol in her system when she was doing so – her BAC some 3 hours later was 170 mg of alcohol/100 ml of blood.
As a result of the incident the OPP were called. Cst Ariss arrived on scene around 5:30 pm. Upon arrival Ariss noted paramedics on scene and a body covered with a sheet on the shore. There was also a young woman, MacMillan, siting at the end of the dock; she was crying and appeared distraught.
Ariss spoke with MacMillan and attempted to comfort her; she was visibly upset and told him he should be performing CPR on the victim; Ariss told her the man was dead. During this conversation Ariss noted an odour of alcohol and MacMillan admitted to having consumed. This conversation ended at 5:50 and Ariss had the requisite reasonable suspicion to make an ASD demand pursuant to section 254(2). Ariss did not make the demand, however, and instead went to deal with others who were arriving.
Ariss later attended with an ASD to the ambulance where MacMillan was – after she had passed out – and made the ASD demand at 6:19. At that point Ariss became very upset and began to cry; Ariss decided to hold off from obtaining a sample until it was determined MacMillan was medically fit to do so.
Ariss and MacMillan left the scene at 6:46 in the ambulance. The ambulance arrived at hospital at 6:51. After being cleared by a physician MacMillan finally gave a sample at 7:16; she failed.
The trial judge found violations of sections 8, 9 and 10(b); in doing so, the trial judge held that MacMillan was detained as soon as the officer formed the suspicion (5:50). The trial judge also noted that the demand should have been made at that time as well and there was no justification for waiting till 6:19 [paras 22-23].
The Crown appealed.
In considering the appeal the Court of Appeal dealt with several issues, the most notable are discussed hereinafter.
First, detention. The trial judge found that MacMillan was detained from the point that the officer first spoke to her and formed his grounds – despite the fact that no demand had been made. This was an error.
As is made clear in R. v. Suberu, 2009 SCC 33 (CAnLII, 2009 SCC 33,  2 S.C.R. 460, at para 23, even where a person is under investigation for criminal activity and is asked questions, the person is not necessarily detained. In the absence of a legal obligation to comply, detention arises where a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
On this record, there is no evidence that the respondent was detained before Ariss made the demand. To the contrary, the fact that Ariss left her alone tells against any psychological detention. The fact that Ariss would not have let her leave if she had tried to does not mean that she was detained [paras 36-37]; [emphasis added].
Second, the definition of “forthwith”. The Court of Appeal held that the trial judge “did not err in holding that the demand had to be made promptly after Ariss formed the grounds” [para 34]. However, it did not follow that the delay in this case between forming the suspicion and making the demand was beyond the “forthwith” window. Citing R v Quansah, 2012 ONCA 123, the court noted that there is to be some flexibility in this requirement.
In the present case, the fact that MacMillan was not detained warrant added flexibility to the definition of “forthwith”:
In my view, greater flexibility in the forthwith requirement can be tolerated where the suspect has not been detained between the time the officer forms the grounds and when the officer makes the demand. After all, the primary factor driving the need for immediate action is the avoidance of a lengthy detention while a detainee is deprived of the right to consult counsel [para 35].
The Court of Appeal did find, however, that there was a violation of section 10(b) when Ariss, after deciding to hold off obtaining a sample, did not advise MacMillan of her right to counsel.
Turning to section 24(2), the Court of Appeal held that the trial judge also erred in the approach to that issue.
First, the trial judge erred in findings regarding the seriousness of the breach. In particular, the finding that the “detention” was abusive was in error. The Court of Appeal noted that the “nature” of the detention was “abstract”. MacMillan, although detained, was first in an ambulance and later at a hospital under care and treatment of medical personnel. While she was detained in law, here detention was not abusive as she was otherwise detained for medical reasons.
The trial judge also erred in applying a “double standard” to the evidence of MacMillan’s condition and vulnerability. The trial judge found the conduct of Ariss “egregious”, in part, because MacMillan was vulnerable due to what had occurred. But this same vulnerability accounted for much of Ariss’ sympathetic conduct, such as holding off, which the trial judge was unfairly critical of [paras 48-61].
Second, the trial judge erred in weighing the three heads of the 24(2) test; in particular, the trial judge erroneous viewed the obtainment of breath samples as a “significant state intrusion into one’s personal privacy” [para 91].