June 08, 2018
Kasirer, Vauclair, Hogue
Appeal from a judgment of the Superior Court allowing the respondent’s appeal from a judgment of the Municipal Court convicting him on the charge of refusing to comply with the demand to provide a breath sample. Allowed.
The question of law submitted by the respondent as grounds for appeal before the Superior Court has already been decided by the Court of Appeal in Petit v. R. (C.A., 2005-07-22), 2005 QCCA 687, SOUQUIJ AZ-50325096, J.E. 2005-1487,  R.J.Q. 2463, which determined that s. 254(2) of the Criminal Code (R.S.C. (1985), c. C-46) (Cr. C.) allows for a short delay before taking a breath sample with an approved screening device (ASD). The Superior Court had to apply this precedent under the stare decisis rule, recently reiterated by the Supreme Court in R v. Comeau (S.C. Can., 2018-04-19), 2018 SCC 15, SOQUIJ AZ-5146595, 2018EXP-1082, which requires the lower courts to apply the judgments rendered by the higher courts. The Municipal Court applied Petit to find that the demand made of the respondent was lawful and that his right to counsel had not been violated due to the time lapsed between the demand and the arrival of the device, adding that the circumstances of the stop would have prevented him from communicating confidentially with counsel. Consequently, the Superior Court judgment is set aside and the conviction is restored.
Since R v. Thomsen (S.C. Can., 1988-04-28), SOQUIJ AZ-88111030, J.E. 88-582,  1 S.C.R. 640, case law has consistently recognized that the constitutional right to counsel is suspended as soon as a police officer demands that a driver provide a breath sample in an ASD and that this suspension is justified in a free and democratic society. A debate continues, however, on the notion of “immediacy”, one of the supporting elements justifying the suspension of this right. Indeed, this notion was broadened by certain case law, including Petit, that interpreted it to take into consideration all the circumstances, including the time required to get the apprehended person where an ASD could be found or the time required to address security issues. An analysis of the Supreme Court judgments establishes that administering the test cannot be delayed unless the facts justify doing so to obtain a reliable result. Thus, the notion of “immediacy” is not respected if the delay is the result of the State’s inability to allow the driver from whom the demand has been made to respond immediately. Moreover, failure to promptly make that demand once police officers have the necessary suspicions and the lack of possibility to respond immediately do not revive the right to counsel, which remains suspended until the end of the investigation under s. 254(2) Cr. C.
Finally, even if Petit draws incorrect conclusions from the Supreme Court judgments, like recent case law in other provinces, this judgment must be applied following the horizontal stare decisis rule, because it is not a judgment that is open to review by a three-judge panel or a per incuriam judgment subject to review by a five-judge panel; the intervention must come from a panel of at least five judges who then rule on the duly identified question of law.
*Summary by SOQUIJ
Text of the decision:
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