Doyon, Vauclair, Hogue, Ruel, Rancourt
Appeal from a judgment of the Superior Court dismissing an appeal from a decision of the Municipal Court convicting the appellant of the offence set out in s. 254(5) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.) as it was then in force, after having determined that the demand to provide a breath sample using an approved screening device (“ASD”) was valid. Allowed.
The appellant questioned the validity of the demand, given the absence of an ASD, and challenged the immediacy of the demand in light of the waiting period before the arrival of the device. The Municipal Court judge, citing Petit c. R., (C.A., 2005-07-22), 2005 QCCA 687, SOQUIJ AZ-50325096, J.E. 2005-1487,  R.J.Q. 2463 and R. c. Piazza, (C.A., 2018-06-08), 2018 QCCA 948, SOQUIJ AZ-51502151, 2018EXP-1702, found that a waiting period of up to 15 minutes can be considered valid, depending on the circumstances. According to him, the 4-minute delay between the time the suspicions arose and the first demand satisfied the immediacy requirement for the demand. The judge also concluded that the validity of the demand does not depend in any way on the presence of an ASD at the scene at the time the peace officer makes the demand.
At the time, s. 254(2) Cr. C. permitted police officers to make a demand to provide “forthwith” a breath sample using an ASD. The word “forthwith” has a weII-known meaning, which cannot be disregarded for the purpose of administrative convenience, but can be, for a short period of time, if the value of the test is at stake (given the text of the provision), or if the short delay involves only the operation of the device or results from a defect. If such a defect cannot be anticipated, it would fall within the scope of the unusual circumstances referred to in R. v. Woods (S.C. Can., 2005-06-29), 2005 SCC 42, SOQUIJ AZ-50320846, J.E. 2005-1246,  2 S.C.R. 205 and R. v. Bernshaw (S.C. Can., 1995-01-27), SOQUIJ AZ-95111021, J.E. 95-256,  1 S.C.R. 254. Thus, 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.
If a driver has the obligation to provide a breath sample forthwith, the corollary is that he must be in a position to do so; failing which he cannot be held criminally liable. Moreover, it is illogical to make the legality of the demand conditional on the period of time required for the ASD to be brought to the scene. When deciding whether or not to provide a breath sample, the driver must be in a position to know whether the demand is valid, which will only be possible later, once the ASD arrives. Vagueness in this regard is incompatible with the commission of a criminal offence which requires, as it does here, that the driver know that the demand is valid when refusing.
Considering that the right to counsel is suspended because of the very short delay before a breath sample is provided with an ASD, 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, (S.C. Can., 1990-12-20), SOQUIJ AZ-91111019, J.E. 91-76,  3 S.C.R. 1303).
In the circumstances, the demand in the present case was invalid and the refusal that followed did not constitute a criminal offence.
Legislation interpreted: s. 254(2) Cr. C.
Unofficial English Translation of the Judgment of the Court: Breault v. R.