In Breault c. R., 2021 QCCA 505, March 26, 2021, the accused was convicted of refusing to comply with an approved screening device demand, pursuant to the former section 254(5) of the Criminal Code. At the time the demand was made, the police officer did not have an approved screening device with him. The accused refused to comply with the demand before the device arrived and was charged with the offence referred to. On appeal, the following question was raised [English translation]:
Does a demand made by a police officer to provide breath samples forthwith comply with the law if the police officer is not in possession of an approved screening device? [1]
The appeal was allowed and an acquittal was entered.
The Court of Appeal of Quebec indicated that “[I]t goes without saying that an invalid or illegal demand cannot result in criminal liability in the event of a refusal…the demand must be valid within the meaning of subsection (2) in order for the refusal referred to in subsection (5) to result in criminal liability…For the demand to be valid, the police officer must therefore be in a position to demand that the accused provide a breath sample forthwith, before the accused even has the time, realistically speaking, to contact counsel, which means that the police officer must have immediate access to an ASD” (at paragraphs 30 and 42). The Court of Appeal also indicated that “unusual circumstances directly related to the operation of the device or the reliability of the test result can warrant a short delay, but the mere need to wait for the arrival of an ASD must not be considered to be such a circumstance” (at paragraph 40).
The Court of Appeal held that to “comply with the demand, the appellant had to provide a breath sample forthwith…If a driver has the obligation to provide a breath sample forthwith, it would seem to me that the corollary is that he must be in a position to do so, failing which he cannot be held criminally liable” (at paragraphs 49 and 50).
Conclusion:
The Court of Appeal concluded that the demand was “invalid” and that an acquittal should be entered (at paragraphs 70 and 71):
Considering that the right to counsel is suspended because of the very short delay before a breath sample is provided with an ASD (a delay so short that it does not even allow a reasonable amount of time to contact counsel, which explains the suspension of that right), the word “forthwith” cannot justify a delay greater than is necessary to properly operate the device or obtain a reliable test in light of the facts noted by the police officer. It certainly does not allow an additional delay while awaiting the device, contrary to the teachings in Petit, which must no longer be followed because they run counter to the teachings of the Supreme Court by expanding the scope of criminal liability beyond acceptable limits: R. v. Chaulk, [1990] 3 S.C.R. 1303, p. 1353.
Simply put, the demand in the present case was invalid and the refusal that followed did not constitute a criminal offence, such that I would allow the appeal, reverse the judgment of the Superior Court as well as the judgment of the Municipal Court of the City of Quebec and direct that a judgment of acquittal be entered.
Immediately:
Interestingly, the Court of Appeal noted that “Parliament used the word ‘immediately’ in the recent amendments (and kept the word ‘immédiatement’ in French) despite all of the Supreme Court cases that have given it its ordinary meaning and have allowed a delay only to ensure the validity of the test when circumstances raise a concern in that regard” (at paragraph 67).
The Court of Appeal indicated that “[i]If Parliament had wanted to depart from that interpretation, it could have used wording found in other provisions, such as ‘as soon as feasible’, ‘as soon as reasonably possible’ (which is how the respondent would like the word ‘forthwith’ to be interpreted), ‘without delay’ (as in s. 10(b) of the Charter, which means at the first reasonably available opportunity with respect to access to counsel) or ‘as soon as practicable’ (as in new s. 320.28 Cr. C.). It did not do so” (at paragraph 68).
[1] The former section 254(2) allowed a police officer to demand that the accused provide a sample of breath “forthwith”. The present section 320.27(1) refers to “immediately” doing so.
