R. v. Breault, 2023 SCC 9

what you need to know

- A demand made under s. 254(2)(b) (now s. 320.27(1)) cannot be presumed to be valid in the absence of an ASD at the scene.

- A person cannot be criminally liable for refusing to comply with a demand with which it was not actually possible because of the absence of an ASD at the time the demand was made.

- The existence of unusual circumstances, however, may justify a flexible interpretation of the immediacy requirement. These circumstances will be determined on a case-by-case basis but the burden of establishing unusual circumstances rests on the Crown.

Background

On April 2, 2017, two police officers were informed by forest trail patrollers that an individual who was intoxicated was driving an ATV. At around 1:35pm, police officers arrived on the scene and saw Mr. Breault. They stopped him as he was about to leave the scene on foot. One of the officers noted his eyes were bloodshot and that his breath had a strong odour of alcohol. The officers did not have an ASD (approved screening device) in their possession. At 1:41pm, they radioed to have one brought to them. Once he requested the ASD, but prior to receiving it, the officer made a breath demand pursuant to s. 254(2)(b) of the Criminal Code. At 1:45pm, Mr. Breault refused to provide the requested sample 3 times on the basis that he had not been driving the ATV. He was then arrested for refusing to comply with a demand to provide a breath sample, contrary to s. 254(5) of the Criminal Code.

History of Proceedings

At trial, Mr. Breault argued that the ASD demand was invalid given that the officers did not have an ASD at the scene. The Municipal Court judge rejected this argument and convicted Breault of refusing to comply with a breath demand. His appeal to the Superior Court was dismissed, but his appeal to the Court of Appeal was allowed. The Court of Appeal found that, in order for a demand to be valid, the peace officer must be in a position to demand that the driver provide a sample forthwith, which means that the officer must have immediate access to an ASD. The Crown now seeks to appeal this decision.

Disposition - Crown appeal dismissed. Acquittals affirmed.

Analysis

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. 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.

The immediacy requirement arising from this provision has both an implicit component and an explicit component. It is “implicit as regards the police demand for a breath sample, and explicit as to the mandatory response: the driver must provide a breath sample ‘forthwith’” (See R. v. Woods, 2005 SCC 42 at para. 14). This case deals with the latter component.

Specifically, the Supreme Court was tasked with determining whether the validity of a demand made by a peace officer under s. 254(2)(b) requires that the officer have immediate access to an ASD at the time the demand is made.

The word “forthwith” in s. 254(2)(b) must be given an interpretation that reflects its ordinary meaning, having regard to the text, context and purpose of this provision. According to the grammatical and ordinary meaning of the words “provide” and “forthwith” found in this provision, the driver must “supply” a breath sample to the peace officer “immediately” or “without delay”. The word “forthwith” qualifies the demand under s. 254(2)(b) that stopped drivers must obey. Such drivers are not free to provide a sample when they see fit. It is true that operational time is implicit in the word “forthwith”, because the police officer has to ready the equipment and instruct the suspect on what to do; however, operational time is different from the time needed for a device to be delivered to the scene.

The constitutionality of s. 254(2)(b) depends on an interpretation of the word “forthwith” that is consistent with its ordinary meaning, because this word implicitly limits the right to counsel guaranteed by s. 10(b) of the Charter. Since a detained driver must provide a breath sample forthwith, the driver may not consult counsel before doing so. This limit is justified under s. 1 of the Charter precisely because the detention is of very brief duration. The purpose of the detection procedure of which s. 254(2)(b) forms a part is to combat the menace of impaired driving. In the pursuit of this purpose, Parliament sought to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. This balance must be kept in mind when interpreting s. 254(2)(b).

At para. 63: “…As I have already explained, the word “forthwith” qualifies the demand to provide a breath sample. It is refusing to obey that demand to provide forthwith a sample that constitutes a criminal offence, not stating in advance that one will refuse to comply with the demand once an ASD is available at the scene. Moreover, and as Doyon J.A. properly noted at paras. 49-50 and 55 of the Court of Appeal’s judgment, how can a person be criminally liable for refusing to comply with a demand — that is, a demand to provide a breath sample — with which it was not actually possible to comply because of the absence of an ASD at the time the demand was made? To ask the question is to answer it.”

That being said, peace officers who have no ASD with them when they stop a driver who is suspected of having alcohol in their body are not entirely without options. They can require the driver to perform coordination tests, as permitted by the current s. 320.27(1)(a). These officers also have common law powers to check for sobriety. Where doing so is reasonable and necessary, they can, among other things, question a driver who is lawfully stopped about prior alcohol consumption or ask the driver to perform physical tests other than those provided for in the Criminal Code.

The existence of unusual circumstances, however, may justify a flexible interpretation of the immediacy requirement. These circumstances will be determined on a case-by-case basis but the burden of establishing unusual circumstances rests on the Crown. Circumstances involving urgency in ensuring the safety of the public or of police officers may be recognized as unusual. Unusual circumstances, however, cannot arise from budgetary considerations or considerations of practical efficiency. The absence of an ASD at the scene ta the time the demand is made is not in itself an unusual circumstance.