The arresting officer had reasonable grounds for suspecting the accused of operating a vehicle while impaired. However, the officer did not immediately issue a s. 254(2) demand as he did not have access to an approved screening device. When the 254(2) demand was issued, the accused �failed� the test, was placed under arrest for impaired driving and was advised of his right to counsel. A delay of 13 minutes occurred between the formulation of suspicion by the officer and the actual demand.
The accused had a cellular phone in his pocket and there was a pay telephone on the scene.
It was not unreasonable for the officer not to make the demand before the approved screening device arrived at the scene. The officer had knowledge that the device was going to be on the scene soon. The wait for roadside screening device is a reasonable justification for a delay in the administration of a screening test.
As there was a delay between the suspicion of impairment and the s. 254(2) demand, there was a reasonable time for the accused to consult counsel before the application of the breath test. As the demand was not �forthwith�, the right of the accused were not limited by s. 254(2). As a result, the s. 10(b) rights of the applicant were violated.
The crown conceded that a s. 24(2) analysis was unnecessary.