Police officers who demand drivers to provide breath samples must have an approved screening device with them to be able to immediately conduct the test, ruled a full bench of the Quebec Court of Appeal, upending its own previous guidance that allowed delays depending on the circumstances.
The long-awaited ruling sets clear obligations for police officers, falls in line with Supreme Court of Canada jurisprudence that asserts that delays cannot be justified for practical reasons given that the right to counsel is temporarily suspended, and is widely expected to have an sizeable impact on impending cases, according to criminal lawyers.
“Over the years some rulings have stretched the term immediately or forthwith to mean something else than immediately,” noted Jean-Philippe Marcoux, a Montreal criminal lawyer with Marcoux Elayoubi Raymond LLP who specializes in impaired driving cases. “But this ruling is very clear on the duties police face when using approved screening devices (ASD), and it will have an impact on the cases now in the system. I have a number of cases before the courts where either police did not have an ASD with them or there was a delay before the ASD arrived at the scene.”
Pascal Breault was arrested on April 2017 for refusing to provide a breath sample after he was suspected of driving an all-terrain vehicle (ATV) while drunk. A police officer, who smelled a strong odour of alcohol and noted Breault’s eyes were bloodshot, ordered him to provide a breath sample using an ASD even though he did not yet have the device in his possession. The police officer radioed for one but it did not arrive 20 minutes after the request. While waiting, Breault asked to speak to his lawyer but was refused as he was not yet under arrest at the time. The request for an ASD was ultimately cancelled because Breault refused three times to provide a breath sample, each time stating that he had not been driving the ATV. Breault was charged with committing an offence under ss. 254(5) and 255(1) of the Criminal Code but he questioned the validity of the demand in light of the absence of the ASD, and challenged the immediacy of the demand given the waiting period before the arrival of the device.
But Quebec City Municipal Court Judge Patrice Simard, citing the Quebec Court of Appeal’s decisions in Petit c. R., 2005 QCCA 687 and R. c. Piazza, 2018 QCCA 948, found that a waiting period of up to 15 minutes can be considered valid, depending on the circumstances. Judge Simard also relied on R. Degiorgio, 2011 ONCA 527, to assert 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 police officer makes the demand. Quebec Superior Justice Raymond Pronovost dismissed Breault’s appeal.
The Quebec Court of Appeal however quashed the Superior Court and the Municipal Court decisions, ordered an acquittal, and declared that its 2005 Petit ruling no longer has precedential value. In Piazza the Quebec appeal court applied Petit because of the stare decisis rule, leaving the possibility of overturning it to a panel of five judges, which is what took place in the case involving Breault.
At issue was the interpretation of the term “forthwith.” Under s. 254 (2)(b) of the Criminal Code, before it was amended, police officers were permitted to make a demand to provide “forthwith” a breath sample using an ASD. Unlike its previous decision in Petit, the five-member panel of the Quebec Court of Appeal held that “forthwith” has a “well-known meaning,” and it means immediately, unless there are unusual circumstances. The appeal court held 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,” said Appeal Court Justice François Doyon in Breault c. R., 2021 QCCA 505. “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.”
“It’s interesting that the appeal court objectivizes the criteria,” remarked Félix-Antoine Doyon, a Quebec City criminal lawyer who successfully plead the case. “That is, an order is immediate or it is not. An order is valid or it is not. That clarifies the state of law and objectivizes the applicable law.”
The appeal court also pointed out that a driver too has an obligation to provide “forthwith” a breath sample after the demand has been made. “To comply with the demand, the appellant had to provide a breath sample forthwith,” underlined Justice Doyon. “How could he do so in the absence of an ASD? This was obviously impossible. How he could he commit an offense by refusing to do something that he could not do? This was just as impossible.”
Parliament could have departed from the interpretation of forthwith when it introduced amendments under Bill C-46, which came into force in December 2018, to the Criminal Code. It could have used wording found in other provisions such as “soon as feasible” or “as soon as reasonably possible,” noted Justice Doyon. But it did not, he added.
Moreover, police officers do have other resources that they can use in the absence of an ASD. They can resort to new provisions of ss. 320.27 and 320.28 of the Criminal Code following the passage of Bill C-46, and can use physical coordination tests.
“Following the adoption of Bill C-46, police have more powers,” said Doyon. “That is, they can demand a person who is driving to submit to a mandatory breath test without reasonable grounds but as long as they have an ASD with them. By strictly interpreting the term forthwith, it is a win-win situation for both police and litigants. It ensures the respect of constitutional rights and ensures that impaired drivers are detected.”
But the simplest solution would be for all police cruisers to be equipped with an ASD, said Andrew Murie, CEO of Mothers Against Drunk Driving (MADD Canada). “Most police forces I know have already dealt with the issue by simply having an ASD in all of their vehicles,” said Murie. “I think the police could correct the problem immediately. The device is very affordable. Just like they would have handcuffs and bullet proof vests as part of their equipment, they should also have an ASD in their car.”
This story was originally published in The Lawyer’s Daily.