HER MAJESTY THE QUEEN v. MATHIEU BRIDEAU, 2013 NBPC 22

2013 NBPC 22 FILE NUMBER: 30769501 CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN -AND- MATHIEU BRIDEAU BEFORE: Mr. Justice Pierre W. Arseneault AT: Moncton, New Brunswick DATE OF DECISION: November 1, 2013 APPEARANCES: Renée Roy, for the Attorney General of New Brunswick

Robert McKee, for the accused [TRANSLATION] [ 1 ] Mathieu Brideau is accused of failing to comply with a demand for the purposes of alcohol screening made by a peace officer on June 16, 2011, contrary to sections 254(2) and 254(5) of the Criminal Code . The relevant facts [ 2 ] At around 2:13 am on June 16, 2011, Constable Dubois observed the driver of a half-ton truck doing "burnouts” in the vicinity of Gauvin Street and Du Marché Street in Dieppe, and proceeded to stop the vehicle.

He stopped the truck and approached the driver at about 2:15 am. [ 3 ] Constable Dubois asked the driver (who identified himself as Mathieu Brideau) to provide him with his driver’s licence, registration and proof of insurance. Mr. Brideau did not have his driver’s licence with him. As he leaned over to provide the other two documents to the officer, the latter noticed an odour of alcohol on his breath. [ 4 ] He also noticed that the accused was [TRANSLATION] “heavy-eyed” and that [TRANSLATION] “his movements were slow”.

At that point, the officer had reasonable grounds to suspect he had alcohol in his body. [ 5 ] Constable Dubois returned to his patrol car to verify the driver’s identity, using the documents he had obtained. He found out that there was a warrant out for his arrest. As well, since he did not have an approved screening device with him, he took the opportunity to communicate with Constable Érica Harris, who was in the area, to ask her to bring him one.

The time was about 2:18 am and according to Constable Dubois, Constable Harris arrived 7 or 8 minutes later, at around 2:25 or 2:26 am, or [TRANSLATION] “a minute after the demand”. [ 6 ] At about 2:18 am, Constable Dubois, who by then had ascertained Mr. Brideau’s identity, returned to the truck and informed Mr. Brideau that he was under arrest as there was a warrant out for him, and also because he [TRANSLATION] “suspected him of impaired driving”. He added later in his testimony that he arrested Mr.

Brideau [TRANSLATION] “because of the warrant and for impaired driving”. [ 7 ] The officer informed the accused of his right to retain and instruct counsel provided by s. 10(

b) of the Charter and Mr. Brideau indicated that he wanted to speak to a lawyer. [ 8 ] At 2:25 am, Constable Dubois ordered the accused to submit to the alcohol screening test by means of an approved screening device. He stated that he used the Alcotest GLC 7410. (I accept that he made an error and actually meant the Alcotest 7410 GLC, which is the approved screening device and the one he used. The defence did not pursue the matter in its pleadings.) [ 9 ] Constable Dubois explained to Mr. Brideau how to blow into the device, and attempted to obtain the first sample at 2:27 am. It is clear that Mr.

Brideau did not follow the instructions when he blew into the device (he put half of the mouthpiece in his mouth). After four attempts and repeated instructions by the officer, the latter terminated the test and informed the accused that he was going to be charged with refusing to comply with the demand. The arguments of the accused [ 10 ] The defence raises two points: the demand was not made forthwith, and the arrest of the accused at the scene meant that the Constable could not order the test provided for by s. 254(2) .

The analysis [11] First and foremost, it should be noted that the prosecution must prove beyond a reasonable doubt that the demand to provide abreath sample complies with s. 254(2). Further, unless the demand meets the requirements of this provision, the person to whom it ismade is not obligated to comply with it and does not commit an offence if he or she refuses to. Section 254(2) provides that the test must be administered forthwith. This word usually means “immediately” (R. v. Grant, (SCC), [1991] 3 S.C.R. 139, para. 20). However, in R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254, rendered a fewyears later, the Supreme Court states that “the Grant case does not rule out the possibility that there is in fact some leeway to administerthe test after a certain period of delay” (para. 66). [12] Ten years later, the Supreme Court again dealt with the issue of immediacy in the context of s. 254(2) (R. v. Woods, 2005 SCC42 , [2005] 2 S.C.R. 205). The Court states the following at paras. 43 and 44: It is true, as I mentioned earlier, that “forthwith”, in the context of s. 254(2) of the Criminal Code, may in unusual circumstancesbe given a more flexible

interpretation that its ordinary meaning strictly suggests. For example, a brief and unavoidable delay of15 minutes can thus be justified when this is in accordance with the exigencies of the use of the equipment: see Bernshaw. The “forthwith” requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and animmediate response by the person to whom that demand is addressed.

To accept as compliance “forthwith” the furnishing of abreath sample more than an hour after being arrested for having failed to comply is in my view a semantic stretch beyond literalbounds and constitutional limits. [13] Therefore, the Courts have found in several appeal decisions that a delay of a few minutes while waiting for the arrival of anapproved screening device did not go against the “forthwith” requirement. Here are a few examples: R. v. Latour, (ON CA), [1997] O.J. No. 2445 (8 minutes before the device arrived and test administered 4 minutes later); R. v. Ritchie, 2004 SKCA 9, [2004] S.J.

No. 24 (11 minutes before the device arrived); R. v. Martens, 2008 ABCA 283 , [2008] A.J. No. 894 (12minutes); R. v. Payne, (NL CA), [1994] N.J. No. 219 (9 minutes). [14] The Court of Appeal for Ontario recently delivered two decisions dealing with this issue: R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779; R. v. McMillan, 2013 ONCA 109 , [2013] O.J. No. 727.

In Quansah, the accused alleged thatthe word [TRANSLATION] “forthwith” found in s. 254(2) did not mean “within a reasonable time”, but rather “without delay”. [15] Reiterating the directions of the Supreme Court in Woods, the Court of Appeal found as follows: 21 The "forthwith" requirement of s. 254(2) is inextricably linked to its constitutional integrity: see Woods, at para. 29. Thisjustifies what would otherwise be sustained as violations of ss. 8, 9 and 10(

b) of the Charter. Thus, in interpreting "forthwith",this court must bear in mind Parliament's choice of language and Parliament's intention, which is to strike a balance between thepublic interest in eradicating driver impairment and the need to safeguard individual Charter rights: see Woods, at para. 29. 22 So long as the demand is validly made pursuant to s. 254(2) - that is, so long as it is made "forthwith" - for Charter purposesthere is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right tocounsel.

This is because this statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights,given the extreme danger represented by unlicensed or impaired drivers on the roads: see Degiorgio, at para. 37. 26 Woods confirms this and reasserts that the constitutional validity of s. 254(2) depends on its implicit and explicitrequirements of immediacy. This immediacy requirement is implicit for the police demand for a breath sample and explicit forthe mandatory response: the driver must provide a breath sample "forthwith".

The term "forthwith" in s. 254(2), therefore,means "immediately" or "without delay" and indicates a prompt demand by the peace officer and an immediate response by theperson to whom that demand is addressed: see Woods, at paras. 13-14 and 44. However, in unusual circumstances "forthwith"may be given a more flexible

interpretation than its ordinary meaning strictly suggests: see Woods, at para. 43. 27 Woods sets out the correct approach to assessing the implicit and explicit immediacy requirements and whether they are metin any particular case. The approach begins with underlining the constitutional integrity of s. 254(2). That integrity depends oninterfering with Charter rights, but only in a manner that is "reasonably necessary" to keep impaired drivers off the road: seeWoods, at para. 30. The two critical Charter rights are s. 10(

b) rights and s. 9 rights, although s. 8 rights are at stake as well. [16] The Court of Appeal goes on to note, in the next paragraph, that over time the immediacy requirement called for someflexibility in its

interpretation: 28 For years this court has recognized that "forthwith", or the immediacy requirement, called for some flexibility in itsinterpretation. For example, s. 254(2)(

b) mandates that "a proper analysis" be made and thereby "incorporates an element of

accuracy": see Pierman, at para. 21. Consequently, if the circumstances dictate that a "short delay" is necessary for the officer toobtain an accurate result, the officer is justified in delaying either the making of the demand or the administration of the test after thedemand: see Pierman, at para. 21. 29 This "flexibility" was adopted by the Supreme Court of Canada in R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254.Sopinka J., at para. 73, agreed that "waiting 15 minutes is permitted under s. 254(2) of the Code when this is in accordance with theexigencies of the use of the equipment", provided the officer is aware of the potential inaccuracy of the equipment.

He went on to sayin the same paragraph that such a delay "is in accord with the purpose of the statutory scheme and ensures that a police officer hasan honest belief based on reasonable and probable grounds prior to making a breathalyzer demand." 32 Most recently, Woods endorses Bernshaw and acknowledges that while "forthwith" may be interpreted with some flexibility,this should only be done in "unusual circumstances" such as those involving the "exigencies of the use of the equipment": seeWoods, at para. 43. [17] The Court of Appeal found that five factors must be considered in order to determine whether the demand to provide breathsamples was given “forthwith”: • First, the analysis of the forthwith or immediacy requirement must always be done contextually.

Courts must bearin mind Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need tosafeguard individual Charter rights. • Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion thatthe driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. • Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances amore flexible

interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of thedemand to the detainee’s response to the demand by refusing or providing a sample must be no more than is reasonablynecessary to enable the officer to discharge his or her duty as contemplated by s. 254(2). • Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonablynecessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where ashort delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulatedand legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer toproperly discharge his or her duty.

Any delay not so justified exceeds the immediacy requirement. • Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled theirobligation to implement the detainee’s s. 10(

b) rights before requiring the sample. If so, the "forthwith" criterion is not met." [18] The Court of Appeal found that in the circumstances of that case, a delay of 17 minutes at the most fell within the ambit of theimmediacy requirement. The accused briefly drove away from the officer, who then had to search the vehicle; there was also a briefconversation about the accused’s alcohol consumption and the officer had to check if the accused had another person in the car with him,as he alleged.

In such circumstances, a delay of 17 minutes was justified if the officer was to carry out his duties properly. [19] In McMillan, the Court of Appeal for Ontario reiterates to some extent the same principles, and states again that the immediacyrequirement comes into play as soon as the peace officer has reasonable grounds to make the demand. I quote these two paragraphs: 32 Be that as it may, the Supreme Court of Canada in Woods and this court as recently as 2012 in R. v.

Quansah, 2012 ONCA123, 286 C.C.C. (3d) 307, have held that "forthwith" requires that the demand be made as soon as the officer has formed therequisite grounds to make the demand; the justifiable delay does not seem to be tied to the fact that the motorist is detained. AsFish J. held in Woods, at para. 15: • Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8,9 and 10 of the Canadian Charter of Rights and Freedoms.

But for its requirement of immediacy, s. 254(2) would not passconstitutional muster. 33 In Quansah, the Crown had argued for an expansive definition of the forthwith requirement and that the demand would bevalid if "the sequence of events between the police officer forming grounds to make an ASD demand, and the detaineeresponding to the demand, occurs faster than the time in which the detainee realistically could consult with counsel" (at para.15). Speaking for the court, LaForme J.A. rejected this

interpretation. He held, at para. 35, that the opportunity to consult withcounsel is not the only criterion for assessing whether the forthwith requirement has been met. LaForme J.A. went on to setdown five things a court must consider in determining whether the demand was made forthwith. His second point is set out atpara. 46: • Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that thedriver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

[20] In the case at bar, Constable Dubois made the demand to provide a breath sample about ten minutes after he had formed the“reasonable suspicion”, and the test was administered about 2 minutes later. There was a delay of about 12 minutes between the time theConstable formed probable grounds and the time the test was administered. [21] Obviously, a good part of this delay was inevitable as they needed to wait for the device to arrive (7-8 minutes).

In addition, asthe accused did not have his driver’s licence with him, the officer, for the proper discharge of his duties, had to verify the informationprovided by the accused regarding his identity. This took about 3 minutes. Another 2 minutes of delay could be termed “operational”, asit was the amount of time required for the officer to turn on the device and to give directions to Mr. Brideau. [22] The defence maintains that in the circumstances the delay was such that Constable Dubois had to give Mr.

Brideau theopportunity to speak to a lawyer (the fifth Quansah factor) In my opinion, this contention has no merit in light of the evidence. In R. v.George (2004), (ON CA), 187 C.C.C. (3d) 289, at para. 52, the Court of Appeal for Ontario determined thatavailability of a telephone is a relevant consideration in a case such as this. [23] However, no evidence was adduced regarding whether anyone present had a telephone, or if there were usable telephones closeto where the vehicle was stopped. Considering the evidence (or rather the lack of it), I am certainly unable to find that Mr.

Brideau couldrealistically, within the timeframe we are dealing with, speak to a lawyer while waiting for the device to arrive. [24] According to Quansah, the circumstances of the event must be taken into account when determining the issue of immediacy.

Inthe instant case, I accept that the delay did not exceed the amount of time required for Constable Dubois to carry out his duties properly.In this case, a delay of about 12 minutes (which included the usual checks required in the circumstances, and the wait for the screeningdevice) seems quite reasonable to me, and is in conformity with all of the case law I considered. [25] The second argument raised by the defence, as I understand it, is to the effect that placing Mr.

Brideau under arrest as a result ofthe warrant as well as for impaired driving somehow deprived the officer of the means at his disposal to order the screening test providedfor by s. 254(2). In its brief, at para. 30, the defence contends that [TRANSLATION] “…after a person is placed under arrest forimpaired driving, the peace officer no longer has the authority under s. 254(2) of the Criminal Code to order a driver to provide a breathsample in an approved screening device” It seems this assertion arises from two decisions: R. v. Diruggiero, [1998] B.C.J. No. 578, andR. v. Minielly, [2009] Y.J.

No. 2600 [sic, should read 3]. [26] In Diruggiero, a police officer stopped the driver of a camperette. When he opened the door of the camperette, he noticed thatthe driver was obviously inebriated (strong odour of alcohol on his breath, stumbling around in the camperette and refusing to come out)Finally, the officer, having managed to get the driver out of the vehicle, handcuffed him and informed him that he was under arrest forimpaired driving. The driver was very agitated and did not co-operate with the officer in any way.

The officer, believing that the driverwould not comply with any demand to submit to a screening test, made the demand, and in fact the driver refused to comply.

At trial, theofficer explained his reasons as follows: It's always a guess but my best guess at the time had I been forced to make one is that he probably wouldn't provide a sample atall, and that is one of the reasons that I went to the ASD amongst others primarily because it does an extremely good job of whatit is designed to do and that's screened to make sure that he wasn't simply impaired by alcohol but by other intoxicants,medications prescribed or otherwise and that is his condition wasn't solely dependent on that, so it does screen." Also in cases like this when you are dealing with a combative person, someone whom you believe may refuse to provide a breathsample, anyway it's easier just to have them do it at the scene rather than waste two or three hours at the police station, play thephone call game, wait for other things to happen, wait for other game playing to go on and then find out in the end that the resultis the same.

So it accomplishes a number of tasks at the scene. [27] Clearly, before he made the demand, the officer already had the requisite grounds to order the driver to submit to the screeningtest. Therefore, his goal was not to pursue his investigation and obtain additional reasonable grounds, but rather to short-circuit theestablished process for very questionable reasons.

It is not really surprising that the Court found that [TRANSLATION] “. . . the purposeof making the ASD demand in this case was not within the legislative purpose of the section” (para. 22). [28] The facts in Minielly are similar to those in the abovementioned case, in the sense that there, too, the police officer had allreasonable grounds to believe that the driver had operated his vehicle while his ability to do so was impaired by alcohol or drugs.Consequently, there was no reason to issue a demand for the screening test.

[ 29 ] At paragraphs 30 and 31 of Minielly , Cozens, J. wrote the following: 30 It would appear that if the lawful authority for the demand is solely for the purpose of elevating a police officer's suspicion to reasonable and probable grounds, then, once a police officer concludes that he or she has the reasonable and probable grounds to believe a s. 253 offence has been committed, the suspicion threshold has been passed and the s. 254(2) demand cannot be made, regardless of whether the individual has been arrested or not. 31 R. v. Carty, 1998 ABQB 2 is one authority which stands for the above proposition. In a

summary conviction appeal judgment, the court, in a one page decision, confirmed the trial judge's ruling that a police officer no longer had the authority to make a s. 254(2) demand, having already formed his reasonable and probable grounds to believe that a s. 253 offence had been committed: [3] In this case the trial judge found as a fact that the investigating Constable was not using the screening device as a means of screening this accused. The officer had already concluded that the accused was driving while impaired.

I agree with defence counsel that the Constable was using the screening device as a means of eliciting self-incriminating evidence from someone whom he believed had committed a criminal offence. Those actions do not fall within the ambit of s. 254(2) . The provision cannot be used to justify a failure to comply with the Charter . This is all based on a finding of fact that the officer's actions in carrying out the screening test were not merely investigatory . (Emphasis added.) [ 30 ] The facts in the case at bar are clearly different. Constable Dubois placed Mr.

Brideau under arrest after he learned about the warrant; it is true that he informed him that he was under arrest for impaired driving as well, but there can be no doubt that, at that time, his investigation regarding the impaired driving offence was only starting. In addition, there can be no doubt that at that time Constable Dubois did not have the reasonable grounds which would allow him to order the driver to submit to the screening test. And further, in my opinion, this so-called “arrest” for “impaired driving” was in fact nothing more than a detention (see , for example, R. v.

Good , 2007 ABQB 696 , and R. v. Lloyd , [1997] A.J. No. 75 (C.A.) . [ 31 ] Obviously, there were two concurrent events, each with its own requirements. Both investigations had to be carried out concurrently. Conclusion [ 32 ] For the foregoing reasons, I am satisfied beyond a reasonable doubt that the prosecution proved the demand to submit to the screening test met the requirements of s. 254(2) of the Criminal Code . I am satisfied to the same extent that Mr. Brideau failed to comply with the demand without reasonable excuse. Therefore, he is found guilty. Pierre W. Arseneault, A.C.J.P.C.N.B.