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If the Police ask you to step on the scales to acquire your weight following an arrest for a DUI – DECLINE!

You’ve been stopped by an officer on your drive home from a dinner with a friend at which you had a couple drinks. At first, you are stunned, ashamed and aggravated with yourself. A million thoughts are racing through your head, you have no idea what to do, and you feel trapped. The officer has informed you that he suspects your ability to operate the vehicle is impaired and has indicates to you his reasons as to why.  He asks you to provide a sample of your breath, at the roadside, into an approved screening device. To your dismay, you fail the roadside test, and are arrested.  The officer informs you of your right to counsel, he cautions you, and makes a breath demand. You immediately reply that you’d like to speak to counsel. You do not have a lawyer, so you ask to speak to the free legal service the officer just informed you was available. At the station, you are put on the phone with counsel. The lawyer calms you down and informs you that you should provide two samples of your breath and that you should, otherwise, remain silent. You are beginning to relax, you made a mistake, but you will survive this. The officers have been kind and professional, and after speaking to counsel you feel prepared to complete the remainder of your interactions with them. However, the officer, before taking your samples, asks you to step on the scale. Immediately, you are again panic stricken. The lawyer never mentioned if you should let them weigh you. Should you comply like you were instructed to do with the samples of your breath, or should you refuse the request like you refused to provide a statement?

This is a question that has come to light following an article by Joseph Breen in the National Post (Link to Article: http://news.nationalpost.com/news/canada/police-violated-suspected-drunk-drivers-rights-by-weighing-her-during-breath-test-judge) Breen’s article focuses on the Ontario Superior Court decision of Justice Marc R. Labrose. Justice Labrose upheld a lower courts acquittal of a woman accused of DUI after the police recorded her weight on a scale in between her breath tests.

In the case in issue, the woman was forced to take the scale. When she asked the officer if this was a requirement, she was told that it in fact was. Justice Labrose found that the police had violated both her privacy and her s 8 Charter right (To Be Free From Unreasonable Search and Seizure). The court ruled that the demanding and seizing of this personal information, the woman’s weight, was a significant enough intrusion into an area of her life over which she held a reasonable expectation of privacy that it necessitated that the samples be excluded.

In other words, there was a Charter violation caused by the demanding and obtaining of information that the woman had a right to keep reasonably private, which was deemed to be so egregious that it could not be reasonably justified in a free and democratic society.

This ruling has provided clarity over an ambiguous issue. As Breen reports, the Crown attempted to justify the weighing of the suspect by describing the practice as routine, and yet Justice Labrose found it to be a significant violation of the accused’s rights. This is because he held that a person’s weight is the same as their core biographical data, information the courts have long recognised as being protected under section 8.  Clearly, going forward, at least in Ontario, demanding someone’s weight is a no go for the authorities when taking samples of their breath. The demanding and obtaining of someone’s weight can now be rationalized in the same realm as the police demanding information or requesting samples of bodily fluid. This is information that the police have no authority to force you to provide without judicial authorization.

The reason the police want to accurately determine your weight is because the prosecution may require this information to support the evidence they possess to demonstrate that you were impaired while operating or in care and control of your vehicle. In the event a toxicologist’s evidence is required, due to a delay in taking breath tests or if there was the consumption of alcohol just before or just after last driving, the quantity of alcohol in the person’s system will be in dispute. Weight becomes highly relevant at this point because, without weight, an accurate calculation of an individual’s blood alcohol readings may not be possible.

What does this mean for our hypothetical? It evidently means that you can refuse to provide your weight, just as you can refuse to provide the samples of your breath. The Ontario Superior Court’s decision means that you have a reasonable expectation of privacy over this information and that simply desiring the information to aid in the developing of a case against you does not justify infringing this expectation. They can request, you can comply, but nothing in the law says that you have to.

You can provide your weight voluntarily, or you can refuse to provide it. The refusal will carry no legislated consequences, because the taking of weight is not a statutorily compellable search under our DUI regime. What is now abundantly clear, is that the police without a warrant, can demand but cannot force you to step on the scale without breaching your constitutional rights

Not only should you not allow the police to weigh you, you should not disclose your weight or height to the police. If you are asked to disclose this information to the police it is important to remember that the police cannot compel you to answer questions as part of their investigation. You can simply refuse to provide an answer without any negative impact. It is important to remember though, that refusing to answer questions about your core biographical data is not an excuse for being rude or obstructive when interacting with the officers as this type of obtuse behaviour could be held against you.