R. v. McCORRISTON, 2024 SKCA 5, DECEMBER 5, 2012.

FACTS: The accused was convicted of the offence of refusing to comply with an approved screening device demand, contrary to section 320.15(1) of the Criminal Code.  On appeal to the summary conviction appeal court, the conviction was set aside and an acquittal entered.  The appeal court judge concluded that the demand was invalid because it had not been made “immediately”. 

The time frame between the officer forming his grounds for the demand and the administering of the demand was five minutes.  During that time frame, the officer had readied the device for use and conducted a background check on the accused.   

The Crown was granted leave to appeal to the Saskatchewan Court of Appeal.

HELD: The appeal was dismissed.  The Court of Appeal concluded that the appeal court judge’s “conclusion that the ASD demand had not been made immediately in the circumstances of this matter is correct” (at paragraph 3).

The Court of Appeal indicated that “[w]hen discussing immediacy in this context, the relevant period for providing a breath sample falls between the making of a demand and the moment when the breath sample can be provided” (at paragraph 6).

The Court of Appeal referred to the Supreme Court of Canada’s decision in Breault, and held that “the question is no longer whether a delay was reasonable in the circumstances. What must be determined is whether there exists ‘an unusual circumstance that justifies a more flexible interpretation’ of the word immediately in the case at hand” (at paragraph 18).

The Court of Appeal indicated that “[b]ased on the Supreme Court’s jurisprudence, the starting point for that analysis is the ‘operational time component’, which is implicit in the immediacy requirement…This requires courts to make allowance for the time during which a peace officer would ready the ASD and instruct the driver about what to do. That period does not count as delay” (at paragraph 19).

However, the Court of Appeal held that Breault “restricts constitutionally permissible delay that goes beyond an operational time component to those circumstances where the elapse of additional time is necessary to overcome out-of-the-ordinary impediments or barriers to the lawful use and reliable operation of an available ASD at roadside. That said, the Supreme Court acknowledged that, by applying a narrow construction of this principle from R v Breault, courts might recognise other unusual circumstances that justify a more flexible interpretation of immediately” (at paragraph 21).

This Case:

In this case, the Court of Appeal concluded that “there was nothing in the evidence to suggest that the background checks in this case were ‘directly related to the use of the ASD or the reliability of the result’ or otherwise constituted an unusual circumstance justifying a flexible interpretation of the word immediately in s. 320.27(1)(b)” (at paragraph 26):

I conclude that the SCAC judge did not err in law in this regard. In effect, the SCAC judge held that the background checks conducted in the circumstances of this case did not present an unusual circumstance warranting a flexible interpretation of the word immediately. His reasoning is also consistent with the Supreme Court’s rejection of “considerations of practical efficiency” as constituting an unusual circumstance justifying a flexible interpretation of the word immediately in R v Breault (at para 59). While background or other checks may warrant a flexible interpretation in other circumstances, lack of information about Mr. McCorriston’s background was not an out‑of‑the‑ordinary impediment to the lawful use and reliable operation of the ASD at roadside. As noted, the peace officer in this case had already performed vehicle computer checks and reported the vehicle stop, which occurred at around 11:00 a.m. To do this, he had to have identified Mr. McCorriston, who was the only person in the vehicle. In other circumstances, it may be prudent to run background checks on a driver—whether to ensure the safety of the public or of peace officers or for other reasons—but there was nothing in the evidence to suggest that the background checks in this case were “directly related to the use of the ASD or the reliability of the result” or otherwise constituted an unusual circumstance justifying a flexible interpretation of the word immediately in s. 320.27(1)(b) (R v Breault at para 58). As such, I conclude that the SCAC judge correctly held that the ASD demand had not been made immediately in the circumstances of this case.