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Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

REFUSING TO COMPLY WITH AN APPROVED SCREENING DEVICE DEMAND-MEANING OF “FORTHWITH”

In R. v. Breault, 2023 SCC 9, April 13, 2023, the accused was convicted of refusing to comply with an approved screening device demand. The conviction was overturned by the Quebec Court of Appeal, which concluded that because the officer did not have a screening device with him, the demand was not valid.  The Crown appealed to the Supreme Court of Canada.  The appeal was dismissed and the acquittal upheld.  

The Supreme Court described the issue raised as being the following (at paragraphs 1, 4 and 20):

This appeal concerns the interpretation of the immediacy requirement in what was, at the relevant time, s. 254(2)(b) (now s. 320.27(1)(b)) of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”). According to this provision, if a peace officer has reasonable grounds to suspect that a driver has alcohol in their body, the peace officer may, by demand, require the driver “to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made” through an approved screening device (“ASD”).

The central issue in this case relates to the time within which a peace officer must enable a driver who is stopped for this purpose to provide the breath sample required for a proper analysis to be made by means of an ASD. Specifically, this Court must determine whether the validity of a demand made by a peace officer under s. 254(2)(b) Cr. C. requires that the officer have immediate access to an ASD at the time the demand is made.

 The resolution of this case lies in the answer to the following question: Does the validity of a demand made by a peace officer under s. 254(2)(b) Cr. C. require that the officer have immediate access to an ASD at the time the demand is made?

The Supreme Court concluded that subject to “unusual circumstances”, for an approved screening device demand to be valid, the officer must have the device with them.

The Supreme Court held that “as a general rule, the word ‘forthwith’ must be given an interpretation that reflects its ordinary meaning. This interpretation is consistent with the text, context and purpose of s. 254(2)(b) Cr. C. It is also in keeping with the decisions of this Court, from R. v. Thomsen, [1988] 1 S.C.R. 640, to Woods, in which the word ‘forthwith’ has been interpreted in a manner consistent with its ordinary meaning, except in unusual circumstances” (at paragraph 24).

The Supreme Court indicated that the word “forthwith” means “‘immediately’ or ‘without delay’” (at paragraph 29).  The Court also indicated that “the guidance provided by this judgment on the interpretation of the immediacy requirement in s. 254(2)(b) Cr. C. applies to the interpretation of the word ‘immediately’ in s. 320.27(1)(b) Cr. C.”.

The Court held that “the relevant time period for the explicit immediacy requirement is the period between the making of the demand and the moment when the breath sample can be provided…‘Forthwith’ is not synonymous with ‘time reasonably necessary’; this word must be given an interpretation consistent with its ordinary meaning, except in the unusual circumstances referred to by Fish J. at para. 43 of Woods” (at paragraph 51).

Unusual Circumstances:

The Supreme Court held that “[f]irst, the burden of establishing the existence of unusual circumstances rests on the Crown” (at paragraphs 55). It provided the following guidance (at paragraphs 56 to 60):

Second, as in Bernshaw, the unusual circumstances must be identified in light of the text of the provision (Piazza, at para. 81 (CanLII)). This preserves the provision’s constitutional integrity by ensuring that courts do not unduly extend the ordinary meaning strictly given to the word “forthwith”.

Like the provision at issue in Bernshaw, s. 254(2)(b) Cr. C. specifies that the sample collected must enable a “proper analysis” to be made, which opens the door to delays caused by unusual circumstances related to the use of the device or the reliability of the result.

That being said, courts might recognize unusual circumstances other than those directly related to the use of the ASD or the reliability of the result that will be generated. For example, insofar as the primary purpose of the impaired driving detection procedure is to ensure everyone’s safety, circumstances involving urgency in ensuring the safety of the public or of peace officers might be recognized.

Third, unusual circumstances cannot arise from budgetary considerations or considerations of practical efficiency. A flexible interpretation of the immediacy requirement cannot be justified by the magnitude of the public funding required to supply police forces with ASDs or by the time needed to train officers to use them. There is nothing unusual about such utilitarian considerations. Allocating a limited budget is the daily reality of any government (Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678, at para. 153).

Fourth, the absence of an ASD at the scene at the time the demand is made is not in itself an unusual circumstance.

Conclusion:

The Supreme Court conclude that the Crown “has not shown that there was any unusual circumstance that would account for the absence of an ASD at the scene and thereby justify a flexible interpretation of the immediacy requirement. In fact, the appellant is unable to explain why [the officers] did not have an ASD in their possession. The demand made by [the officer] was therefore invalid. Accordingly, the respondent’s refusal did not attract criminal liability, and the acquittal entered by the Quebec Court of Appeal must be upheld” (at paragraph 68).