Weighing the Accused Violated Her Constitutional Rights


In R. v. McLachlan, 2017 ONSC 1471, breath samples of an individual charged with “over 80 mg” were taken more than two hours after the offence; therefore, the Crown was unable to rely on the presumption of identity in section 258 the Criminal Code.

In order to establish that no bolus drinking has occurred, the Crown’s toxicologist required evidence of the weight of the accused.  While the accused was in the cellblock, she was required to stand on a scale and provide her weight to the breath technician officer, as was Ottawa Police Service policy. 
This constituted a search under section 8 of the Charter,  as the accused had a reasonable expectation of privacy in her weight when the evidence was going to be a key element in the finding of guilt.

R. v. McLachlan, at para 45.

The Criminal Code nor the Identification of Criminals Act, nor any other statute authorize such a procedure, and the procedure/search was not for any of the purposes authorized under the common law doctrine of search incident to arrest.

The evidence of the accused’s weight, obtained in violation of the Charter, was excluded pursuant to section 24(2).


[FN: the bolus drinking defence is ordered around the hypothesis that at the time the individual had care and control of the motor vehicle her blood alcohol content was not over the legal limit, though her blood alcohol content did thereafter exceed the legal limit.  This phenomenon is a result of the time it takes for recently consumed alcohol to transfer to the bloodstream.]

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