2015 QCCQ 3786, 2015 QCCQ 3786

LSJPA — 1516 2015 QCCQ 3786 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ... “Youth Division” N° : 505-03-023241-146 DATE : April 13, 2015 ____________________________________________________________________ THE HONOURABLE JUDGE FRANCINE GENDRON, PRESIDING ____________________________________________________________________ THE QUEEN Prosecutrix v.

X Accused _______________________________________________________________ JUDGMENT _______________________________________________________________ CAUTION : The Youth Criminal Justice Act prohibits the publication of the name of a child or young person and any other information that would identify him or her as having been dealt with under this act or as having been the victim of, or as having appeared as a witness in connection with, an offence committed by a young person, save under court order.

Any person who contravenes these provisions is subject to criminal prosecution (ss. 75, 110 (1), 111 (1) and 138 Y.C.J.A. ). [ 1 ] The young person is charged with failing to comply with a demand she was given by a peace officer pursuant to paragraph 254(3 ) (

a) of the Criminal Code ( Cr. C. ). [ 2 ] The young person claims that she always intended to comply with the demand and that she therefore did not refuse or fail to provide a breath sample as requested. [ 3 ] At the outset of the trial, the young person filed an application to exclude the evidence gathered. She maintains that her rights against arbitrary detention and imprisonment and her right to retain the counsel of her choice without delay and to be informed of this right under

section 9, paragraph 10(

b) and subsection 24(2) of the Canadian Charter of Rights and Freedoms (“ Charter ”) were violated. [ 4 ] More specifically: ➢ Under section 25(2) of the Youth Criminal Justice Act ( Y.C.J.A. ), the young person should have been informed of her right to counsel as soon as her detention began, that is, when the officers asked her to exit her vehicle; ➢ Since the peace officers failed to meet this obligation, the young person’s detention was unlawful and contrary to

section 9 and paragraph 10(

b) of the Charter . [ 5 ] In addition: ➢ The peace officers never informed the young person of her rights under

section 146 Y.C.J.A. before questioning her; ➢ This omission also resulted in detention that was unlawful and inconsistent with

section 9 and paragraph 10(

b) of the Charter . [ 6 ] Therefore: ➢ The evidence obtained subsequent to the young person’s detention was obtained in conditions that violated her Charter rights and freedoms, and their admission and use at trial are likely to bring the administration of justice into disrepute; for these reasons, it should be excluded. [ 7 ] The Court held a voir dire on this issue. It should be recalled that the party alleging a Charter violation must prove such violation on a balance of probabilities. [ 8 ] Counsel for the young person submitted no authority in support of his arguments. He explains that he found no precedents, despite his research.

[ 9 ] It was agreed that the testimony heard in the voir dire would be entered into evidence in the case on the merits. THE VOIR DIRE [ 10 ] In brief, the defence argued that sections 25 and 146 of the Y.C.J.A. confer on minors greater rights than those of adults under

section 9 and paragraph 10(

b) of the Charter . [ 11 ] This argument presupposes that a young person’s right to counsel upon arrest or detention cannot be limited by

section 1 of the Charter . [ 12 ] The same claim is made regarding the conditions of admissibility of an oral or written statement by the young person to any person in authority while the young person is being arrested or is under detention. [ 13 ] Accordingly, unlike the regime applicable to adults, young persons should be informed of their right to counsel as soon as the conditions set out in subsection 254(2) Cr. C. are met. [ 14 ] Therefore, any oral or written statement made by the young person during her detention under subsection 254(2) Cr. C. must meet the conditions of admissibility set out in

section 146 of the Y.C.J.A. [ 15 ] The defence maintains that, in light of the above, the demand made of the young person by the police officers to submit to the approved screening device test on June 14, 2014, was unlawful. THE LAW The relevant legislative provisions [ 16 ] The young person is charged under paragraph (

b) of subsection 254(2) Cr. C. , which creates the following offence: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph ( a ), in the case of a drug, or with either or both of paragraphs (

a) and ( b ), in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [ 17 ] The constitutional rights the defence intends to show have been violated are worded as follows: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. … 9.

Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention to be informed promptly of the reasons therefor; to retain and instruct counsel without delay and to be informed of that right; and to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. 24(2).

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 18 ] The additional protections for young persons guaranteed by the Y.C.J.A. that were allegedly not respected are the following: 25 .

(1) A young person has the right to retain and instruct counsel without delay, and to exercise that right personally, at any stage of proceedings against the young person and before and during any consideration of whether, instead of starting or continuing judicial proceedings against the young person under this Act, to use an extrajudicial sanction to deal with the young person.

(2) Every young person who is arrested or detained shall, on being arrested or detained, be advised without delay by the arresting officer or the officer in charge, as the case may be, of the right to retain and instruct counsel, and be given an opportunity to obtain counsel. 146 .

(1) Subject to this section, the law relating to the admissibility of statements made by persons accused of committing offences applies in respect of young persons

(2) No oral or written statement made by a young person who is less than eighteen years old, to a peace officer or to any other person who is, in law, a person in authority, on the arrest or detention of the young person or in circumstances where the peace officer or other

person has reasonable grounds for believing that the young person has committed an offence is admissible against the young person unless (

a) the statement was voluntary (

b) the person to whom the statement was made has, before the statement was made, clearly explained to the young person, in language appropriate to his or her age and understanding, that (

i) the young person is under no obligation to make a statement, (ii) any statement made by the young person may be used as evidence in proceedings against him or her, (iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph ( c ), and(iii) the young person has the right to consult counsel and a parent or other person in accordance with paragraph ( c ), and (iv) any statement made by the young person is required to be made in the presence of counsel and any other person consulted in accordance with paragraph ( c ), if any, unless the young person desires otherwise; (

c) the young person has, before the statement was made, been given a reasonable opportunity to consult (

i) with counsel, and (ii) with a parent or, in the absence of a parent, an adult relative or, in the absence of a parent and an adult relative, any other appropriate adult chosen by the young person, as long as that person is not a co-accused, or under investigation, in respect of the same offence; and (

d) if the young person consults a person in accordance with paragraph (c), the young person has been given a reasonable opportunity to make the statement in the presence of that person.

(3) The requirements set out in paragraphs (2)(

b) to (

d) do not apply in respect of oral statements if they are made spontaneously by the young person to a peace officer or other person in authority before that person has had a reasonable opportunity to comply with those requirements.

(4) A young person may waive the rights under paragraph (2)(

c) or (

d) but any such waiver (

a) must be recorded on video tape or audio tape; or (

b) must be in writing and contain a statement signed by the young person that he or she has been informed of the right being waived.

(5) When a waiver of rights under paragraph (2)(

c) or (

d) is not made in accordance with subsection (4) owing to a technical irregularity, the youth justice court may determine that the waiver is valid if it is satisfied that the young person was informed of his or her rights, and voluntarily waived them.

(6) When there has been a technical irregularity in complying with paragraphs (2)(

b) to ( d ), the youth justice court may admit into evidence a statement referred to in subsection (2), if satisfied that the admission of the statement would not bring into disrepute the principle that young persons are entitled to enhanced procedural protection to ensure that they are treated fairly and their rights are protected.

(7) A youth justice court judge may rule inadmissible in any proceedings under this Act a statement made by the young person in respect of whom the proceedings are taken if the young person satisfies the judge that the statement was made under duress imposed by any person who is not, in law, a person in authority.

(8) A youth justice court judge may in any proceedings under this Act rule admissible any statement or waiver by a young person if, at the time of the making of the statement or waiver, (

a) the young person held himself or herself to be eighteen years old or older; (

b) the person to whom the statement or waiver was made conducted reasonable inquiries as to the age of the young person and had reasonable grounds for believing that the young person was eighteen years old or older; and (

c) in all other circumstances the statement or waiver would otherwise be admissible THE EVIDENCE The Admissions [ 19 ] It should be noted at the outset that the defence admits the following evidence: ➢ the identification of the young person; ➢ that the ASD used by the police officers in their intervention was approved and compliant; ➢ the free and voluntary nature of the young person’s statement, although without admitting the contents; ➢ that if Officer Karine Couture were heard, her testimony would be essentially the same as that of Sergeant Bruno Bolduc; ➢ the conformity of the card provided by the SQ and used by the police officers to inform the young person of her rights.

The facts [ 20 ] On June 14, 2014, Sergeant Bruno Bolduc was working the night shift with his colleague, Officer Karine Couture. [ 21 ] At 3:55 a.m., they received a call from the Service de police de la Ville de Montréal (SPVM), informing them that a driver with a restricted licence was driving while impaired on the Mercier Bridge. A description of the vehicle and its licence plate number were also sent.

The information was from one of the young person’s friends, who said that she was following her in another vehicle. [ 22 ] Sergeant Bolduc and his colleague did a computer search and found that the owner of the vehicle lived in St-Mathieu-de-la- Prairie. [ 23 ] The police officers left the Candiac station and went to the junction of Autoroutes 15 and 30, which the young person had to drive through on her way home. [ 24 ] An automobile corresponding to the description received and driven by a young person passed in front of them.

As they followed her, they noted that the licence number corresponded to the one that had been sent to them. No one was with the driver. [ 25 ] Noting that there was a pronounced curve to this on-ramp, the police officer observed the vehicle swerve to the left and touch the lines on the left and right, but not cross them. The driving was uneven, but not erratic. He states that at the time, it was raining lightly and the roads were wet.. [ 26 ] The police officers stopped the vehicle at the end of the ramp.

It was 4:08 a.m. [ 27 ] Sergeant Bolduc walked towards the passenger side of the vehicle, while his colleague walked towards the driver. Sergeant Bolduc observed a bottle of vodka on the floor of the passenger side of the back seat that appeared to have been opened. He showed it to his colleague by pointing his pocket light at the bottle. [ 28 ] The officer noted a strong smell of alcohol when he arrived next to his colleague on the driver’s side.

Officer Couture informed the young person of the reasons she had been stopped and asked for her papers. [ 29 ] The young person looked for her identification papers but could not find them.

She finally gave the officers a document issued by the SAAQ attesting that she has a probationary license pending receipt of the official copy. [ 30 ] Upon reading the document, the police officers realized that the driver is a minor and subject to “zero tolerance” when it comes to alcohol consumption. [ 31 ] Sergeant Bolduc states that he observed that the young person’s gestures were slow, her eyes a little red, and her mouth pasty and slack.

He saw these as symptoms of a person who had consumed alcohol. [ 32 ] When asked about her alcohol consumption, the young person first responded that she had not been drinking. When Officer Couture asked her if she was sure, she answered that she had had two shooters. [ 33 ] The young person explained that she had given two different answers to the police officer’s questions because the first question was whether she had been drinking that evening, while the second was whether she had drunk that day.

She answered no to the first and two shooters at 1:00 p.m. to the second. [ 34 ] The officers asked the young person to exit the vehicle to submit to a test with the ADS.

The officer states that at that moment he and his colleague had grounds to suspect that she had been drinking. [ 35 ] Officer Bolduc states that when the young person walked between the two vehicles, he observed that her breath smelled slightly of alcohol and that she was walking in a straight line. [ 36 ] Four minutes elapsed between the time the young person was stopped (4:08 a.m.) and the time the officer demanded that she provide a breath sample (4:12 a.m.).

The police officer explained the consequences of refusing to submit to this demand (charges, seizure of vehicle, loss of driver’s licence). [ 37 ] Sergeant Bolduc states that because the young person appeared to be very nervous, he explained how to blow into the device (one long and continuous exhalation). He also gave her information about how the device works (0 to 50: quantified result, 50 to 100: warning, and over 100: fail).

The police officer states that the young person appeared to understand what she was being asked to do. [ 38 ] The young person denies that the officers told her how the device worked and that they showed her how to blow into it. According to her, they simply told her repeatedly that she was not blowing hard enough. [ 39 ] The police officers were using an approved and compliant device. This is not challenged by the defence. [ 40 ] The first attempt failed.

The device gave no reading and no air was released from the back, which made the police officers believe that the young person was not blowing into the tube correctly. [ 41 ] The young person said that she was cold and asked for her coat, which was still in her car, and her cell phone to call her mother, but the police refused. She felt unwell, did not like the situation, felt pressure from the police officers, and began to cry. [ 42 ] Sergeant Bolduc tested the mouthpiece of the device and deemed that it was operational. The police officer asked the young person to try again.

He says that he showed her how to blow into it by doing it himself, which the young person denies. This attempt also failed.

[ 43 ] The young person was in tears, and each time said that she would do it properly. Once again she was told that she would be charged with refusing to provide a breath sample and arrested if she did not comply. [ 44 ] Five attempts were made and the mouthpiece was changed three times, but the device registered no result whatsoever and no air was released from the back. [ 45 ] In her testimony, the young person stated that she blew as hard as she could until she had no air left in her lungs. [ 46 ] At 4:20 a.m., the young person was led inside the police vehicle and read her rights.

Sergeant Bolduc used the card made by the SQ, which he read to her in its entirety. The defence has seen the document and states that it is satisfied. [ 47 ] Sergeant Bolduc testifies that he also offered her the opportunity to contact a parent or family member, although he did not read her the entire text drafted for minors. [ 48 ] The young person began crying even harder. She asked to take the test again and, as she had repeated every time, promised that she would blow into it properly.

Given her apparent [ translation ] “willingness” (to use the words of Sergeant Bolduc), he and his colleague decided to give her a final chance. The evidence as to whether Officer Couture gave her a mouthpiece to practice on is contradictory, as the young person denies this aspect of the officer’s testimony. [ 49 ] Officer Bolduc states that he reminded her again of the criminal sanctions she risked, including seizure of the vehicle. The first time, the device registered a reading but not a result, as she had not blown with sufficient strength.

The same thing occurred the second time. [ 50 ] The police officers gave her the same warning, including the right to consult an attorney and a parent or family member. [ 51 ] The young person allegedly answered that she did not want a lawyer and that she just wanted to go to bed because she had to work the next day at 11:00 a.m. [ 52 ] In her testimony, the young person denied that the police officers gave her a warning or informed her of her right to counsel.

She says that if she had known she could call her mother, she would have done so. [ 53 ] The officers towed the vehicle and drove the young person to her home, which was two or three kilometres from where they had pulled her over. On the way, she continued to cry and ask to be allowed to blow into the screening device. [ 54 ] They arrived at their destination between 5:00 a.m. and 5:30 a.m. The police officer explained the grounds for stopping and arresting the young person to her mother. [ 55 ] Her mother observed that her daughter was panicking, soaking wet, and in tears.

She held her face between her hands to smell her breath and stated that it did not smell like alcohol. Both mother and daughter asked for another test with the ASD but were refused. [ 56 ] The young person’s mother says that once the officers left she took her daughter’s wet clothes off, dried her hair, and comforted her. Her shoes were so wet that she had to place them in the dryer. [ 57 ] Officer Couture was not called as a witness.

The defence admits that if she were heard, her testimony would be essentially the same as Officer Bolduc’s. [ 58 ] Both parties have adduced several events that took place prior or subsequent to the events described above, particularly through the mother’s testimony. These facts might have been relevant if the charge had been impaired driving, but they shed no light on the issue in dispute here, which is whether the young person complied with the demand made by an officer. [ 59 ] These excerpts from the testimonies will nevertheless be useful when assessing the credibility of the witnesses.

ANALYSIS The approach [ 60 ] The defence acknowledges that adult drivers stopped in the same circumstances as those prevailing in the young person’s situation may not invoke their constitutional rights against arbitrary detention any more than they may claim their right to counsel before submitting to the ASD test. [ 61 ] Thus, the defence does not challenge the case law developed by the Supreme Court in cases involving impaired driving, but instead asks the Court to set it aside because it is not applicable to young persons. [ 62 ] To determine the approach to be adopted, the Court must begin by identifying the reasons that led this country’s highest Court to rule that subsection 254(2) Cr.

C. was constitutional despite the restrictions on Charter rights that result from its application. [ 63 ] It must then determine whether the additional protections for young persons in sections 25 and 146 Y.C.J.A. exempt them from the rules applicable to adults and thus preserve their right against arbitrary detention and their right to counsel in situations involving the application of subsection 254(2) Cr. C. The Case Law [ 64 ] In R. v. Thomsen , [1] the Supreme Court of Canada’s task was to determine whether

section 234.1 Cr. C. , today subsection 254(2), violated the rights guaranteed by sections 9 and 10 of the Charter . It found that these limitations were justified in a free and democratic society.

[ 65 ] In the words of Le Dain J., writing for the Court: ➢ When a police officer investigates a person under

section 234.1 of the Criminal Code of Canada (today subsection 254(2) ), that person is detained within the meaning of

section 10 of the Canadian Charter of Rights and Freedoms . ➢ In its application, this provision violates a person’s right to the assistance of counsel without delay and to be informed of this right. ➢ This violation is justified by

section 1 of the Canadian Charter of Rights and Freedoms and is therefore consistent with the Constitution Act, 1982. [ 66 ] In R. v. Bernshaw , [2] Cory J. noted that the Court had recognized in R. v. Thomsen that the violation of a person’s right to call an attorney was justified because of the urgent need to obtain a breath sample quickly to ensure the effectiveness of the drinking and driving provisions. As a corollary: 26.

The right to retain counsel was incompatible both with the effective use of the ALERT device and with the purpose of demonstrating a police presence which would convince drinking drivers that there was a high probability that they would be quickly and readily detected. The section’s use of the word "forthwith" in the context of a roadside screening test clearly indicated that there was to be no opportunity granted to a driver to call a lawyer. The test was to be performed immediately and to fail it had no penal consequences.

It is a testing device used to protect the public. [ 67 ] The Supreme Court judges have been asked to define the conditions of validity of the demand by police officers to a person to provide a breath sample with an approved screening device essentially in light of the “forthwith” requirement in the provision. [3] [ 68 ] In the situation before us, the defence does not question whether the police officers’ demand to the young person was given within the time provided in the statute. [ 69 ] In deciding this issue, the Supreme Court’s analysis led it to recall the objectives sought by subsection 254(2) Cr.

C. , as well as the principles relevant to the resolution of the issues before us. [ 70 ] Thus, in R. v. Bernshaw , [4] Cory J. noted in the following terms that the drinking and driving provisions in the Criminal Code were enacted to address a serious social problem: 16. Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime.

In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. Impaired driving is a serious crime. Every year thousands of Canadians are killed and many more injured in traffic-related accidents. Alcohol is a contributing factor in an average of 43% of these cases (Traffic Injury Research Foundation -- D.R.

Mayhew et al. [ Alcohol Use Among Persons Fatally Injured in Motor Vehicle Accidents : Canada 1990] 1992, p.33). 17 Statistics Canada has compiled a variety of figures with respect to motor vehicle accidents in general. Between 1983 and 1991, 41,000 individuals died in traffic accidents in Canada. Between 1983 and 1991, 41,000 individuals died in traffic accidents in Canada. A further 2.5 million people were injured: "Impaired Driving – Canada, 1992" (1994), 14:5 Juristat 1. In 1992, the total number of deaths resulting from motor vehicle accidents was 3,289: Causes of Death 1992 (1994), at pp. 246-51.

This figure includes drivers, passengers, cyclists, and pedestrians. In 1987, motor vehicle accidents were responsible for injuries requiring 762,000 days of in-hospital medical treatment and causing 12 million days of lost activity and employment: Accidents in Canada (1991), at pp. 61-64. 18 Statistics Canada observed that alcohol is a contributing factor in 43 percent of those motor vehicle accidents which cause death and injury.

Interpreting Statistics Canada's general motor vehicle accident statistics with reference to this 43 percent figure, it would seem that alcohol was a contributing factor in: - some 17,630 individual deaths between 1983 and 1991; - approximately 1,075,000 individuals injured between 1983 and 1991; - about 1,414 additional deaths (including drivers, passengers, cyclists and pedestrians) in 1992; - 327,660 days of in-hospital medical treatment in 1987; and - 5,160,000 days of lost activity and employment in 1987. 19.

These dry figures are mute but shocking testimony demonstrating the tragic effects and devastating consequences of drinking and driving. The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime through the death and injury of their loved ones. The gravity of the problem and its impact on Canadian society has been so great that Criminal Code amendments were enacted aimed at eliminating or, at least, reducing the problem. Criminal Code Provisions Aimed at Eliminating or Reducing the Problem 20.

To address the problem, Parliament enacted a two-stage statutory scheme set out in s. 254(2) and (3) of the Criminal Code to provide a means of testing for driver impairment. Overly simplified, it may be said that at the first stage, a means of screening drivers is set out. It is a preliminary investigation aimed at determining whether a driver may constitute a danger to the public because of alcohol in his system. At the second stage, the statutory scheme is aimed at precisely determining the driver's level of alcohol.

It is only at this second stage that it will be ascertained whether the alcohol level is over the prescribed limit, thus constituting a criminal offence .

21. The ALERT testing devices are simply tools approved by Parliament for use at the first stage of the investigation of drivers who may be impaired . They provide a means whereby drivers can be quickly screened. The tested drivers will fall into two groups: those who have alcohol in their systems and those who do not or only have a low level. By this statutory scheme, Parliament has recognized the need to balance the competing concerns of accuracy and convenience to the general motoring public .

The ALERT test used as an investigatory tool obviously causes far less inconvenience to a driver than would a breathalyzer test. A driver who fails an ALERT test is not subject to criminal liability but may be required to take the more accurate breathalyzer test provided for in s. 254(3) of the Criminal Code . (Emphasis added.) [ 71 ] The “forthwith” requirement is especially important because it guarantees that persons deprived of their constitutional rights suffer this deprivation for only a short period of time.

The inconvenience for drivers stopped for sobriety checks is minimal when weighed against the benefits to road safety. [ 72 ] Still in R. v. Bernshaw , Cory J. found that requiring that a person be able to call counsel would unduly prolong the detention period, thus infringing on the detainee’s constitutional rights. 28 Counsel for the respondent not only argued that there should be a 15 - to 20-minute waiting period before the ALERT test was administered but also that, during the waiting period, the police officer should indicate that the driver had the right to consult counsel.

This submission demonstrates the weakness of the argument. Quite simply, it is not possible to conduct a roadside test "forthwith", that is immediately, and at the same time require the driver to be subject to a detention which is sufficiently lengthy to provide an opportunity to retain and instruct counsel under s. 10(

b) of the Charter . Quite simply, it is not possible to conduct a roadside test "forthwith", that is immediately, and at the same time require the driver to be subject to a detention which is sufficiently lengthy to provide an opportunity to retain and instruct counsel under s. 10(

b) of the Charter. A delay of that length without the right to instruct counsel might well not only be inconsistent with s. 10(

b) of the Charter but also be such that it could not be saved by s. 1 . (Emphasis added.) 29 Where a statute is open to more than one

interpretation, one of which is constitutional and the other of which is not, the

interpretation which is consistent with the constitution should be adopted. [ 73 ] The Supreme Court also addressed the obligation of all drivers to submit to the alcohol screening test as a responsibility flowing from having obtained a driver’s licence. 33 This requirement to undergo the ALERT testing immediately should be regarded as one of the obligations that flows from the right to drive. In Galaske v. O'Donnell , [5] it was noted that the driving of a motor vehicle is neither a God-given nor a constitutional right. Rather, it is a privilege granted by licence.

Attached to every right are concomitant duties, obligations and responsibilities. This is true of the licensed right to drive. One of the prime responsibilities of a driver is to see that reasonable care is exercised in the operation of the motor vehicle, and specifically, that it is driven in a manner which does not endanger members of the public. That duty or responsibility cannot be fulfilled by an impaired driver who, by definition, endangers others. In furtherance of the duty not to endanger others, there exists an obligation to comply with a police officer's reasonable request to supply a breath sample.

Complying with a reasonable request to take an ALERT test is a very small price to pay for the privilege of driving. The requirement to undergo the ALERT testing immediately should be regarded as one of the obligations that flow from the right to drive. (Emphasis added.) [ 74 ] In R. v. Woods , [6] Fish J., writing for the Court, pointed out the importance of the forthwith requirement in the context of respect for the constitutional rights of drivers who must respond to a demand to provide a breath sample.

His comments on Parliament’s intent to balance the rights of individuals by enacting drinking and driving provisions are particularly resonant in this situation before us. 29 The “forthwith” requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8 , 9 and 10 of the Charter .

In interpreting the “forthwith” requirement, this Court must bear in mind not only Parliament’s choice of language, but also Parliament’s intention to strike a balance in the Code between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. (Emphasis added.) [ 75 ] The Supreme Court had previously stated in R. v. Thomsen that police officers acting pursuant to the drinking and driving provisions in the Criminal Code were empowered to question the drivers of stopped vehicles to complete their investigation into the drivers’ consumption. [ 76 ] In R. v.

Orbanski , [7] the Supreme Court reiterated this notion even more clearly when it was asked to determine, inter alia , whether police officers were empowered to interrogate drivers about their alcohol consumption. [ 77 ] Charron J., for the majority, answered this question in the affirmative, for the following reasons: 49. To return to the case-specific inquiry relevant to this appeal, in Orbanski , the officer asked the driver if he had been drinking, to which Orbanski answered that he had had one beer at two o’clock.

Similarly, in Elias , the driver was asked whether he had been drinking, and he replied that he had. In both cases, the driver’s answer was part of the information used by the officer to form the reasonable suspicion necessary to request a roadside breath sample in the case of Elias, and the reasonable and probable grounds necessary to request a breathalyzer test in the case of Orbanski . The questions were relevant, involved minimal intrusion and did not go beyond what was necessary for the officer to carry out his duty to control traffic on the public roads in order to protect life and property.

In my view, the police officers were authorized in each case to make such inquiries.

(Emphasis added.) Application of the law to the constitutional issues [ 78 ] No one questions whether the police were acting within the scope of their duties when they stopped the young person in her vehicle on the night of June 14, 2014. She was immediately informed of the reasons for being stopped, namely, to check her sobriety and the conditions on her driver’s licence. [ 79 ] The police officers began their investigation with a view to establishing a reasonable suspicion that the young person had consumed alcohol.

They found a bottle of alcohol, observed certain signs in the young person that they associated with a state caused by consumption (odour of alcohol, slightly slow gestures, red eyes, slack and pasty mouth, inability to find the papers requested). [ 80 ] Twice, Officer Karine Couture asked the young person if she had been drinking. The young person answered. [ 81 ] Because the police officers had reasonable grounds to suspect that the young person had consumed alcohol, they ordered her to submit to the ASD test. The “forthwith” requirement in subsection 254(2) Cr.

C. was complied with, with four minutes passing from the time the car was stopped to the time the demand was made. [ 82 ] The prosecution recognizes that the young person was detained as soon as she stopped her vehicle and the police officers spoke to her. [ 83 ] The police officers did not inform her of her right to counsel or her right to remain silent.

They also did not tell her that she benefited from specific procedural guarantees with respect to any statements she might make. [ 84 ] The Court finds that officers Bolduc and Couture did not have the duty to do so and that the demand made to the young person to provide a breath sample was therefore lawful, for the following reasons: [ 85 ] Drinking and driving is a social evil that Parliament seeks to contain through various methods. This legislative tool is one of those methods. [ 86 ] In this context, subsection 254(2) Cr.

C. creates a rapid, effective, and minimally infringing mechanism to detect drivers who have been drinking alcohol. [ 87 ] The lawfulness of the exercise depends on the speed at which the police officers’ work is carried out, to ensure that the constitutional rights that are suspended during the process are minimally infringed. [ 88 ] Another fundamental element: the results of the test do not lead to criminal or penal charges.

At this stage, the result simply helps police officers establish, through their investigation, reasonable grounds to believe that the driver has consumed alcohol. [ 89 ] Individual rights are protected at the next, more serious stage of the breathalyzer test. [ 90 ] So far, the Courts have not distinguished young drivers from adult drivers because the purpose of the statute is to target both.

The need to protect the public against the consequences of drunk driving, which Parliament has recognized, does not vary depending on the age of the driver. [ 91 ] It should be recalled that a driver’s licence is a privilege, not a right. This privilege translates into obligations for all drivers, whether minor or adult.

One of them is to submit to an ASD test when requested. [ 92 ] In fact, the young person’s argument would render subsection 254(2) inapplicable to drivers because it would prevent the “forthwith” requirement, which is inherently linked to its constitutional validity, from being met. [ 93 ] Picture a random stop of vehicles at a roadblock. A car arrives, and the police officer observes that the driver is young. Before anything else, the officer has to ask the driver’s age.

If the driver is a minor, before being asked whether he or she has been drinking, the driver must be informed of his or her right to consult an attorney, the provisions of

section 146 Y.C.J.A. and, in particular, the young person’s right to be assisted by a parent, an attorney, or another person referred to in the provision. The young person may demand that his or her parents be present before answering the police officer’s questions, even if they live an hour or two away. [ 94 ] The arguments of the defence cannot be accepted because they would prevent the “forthwith” requirement in subsection 254(2) from being met and, as a corollary, unduly prolong the young person’s period of detention. [ 95 ] An

interpretation of the Act that results in exempting young persons from a Criminal Code provision on the one hand and in violating their constitutional rights on the other cannot be accepted. [ 96 ] No judgment exempting a young person from the application of subsection 254(2) Cr. C. has been submitted. A reading of judgments of the Supreme Court on the lawfulness of this provision clearly leads to the conclusion that this provision applies without distinction to all drivers of motor vehicles who are identified therein, regardless of their age. [ 97 ] In conclusion, let us recall that

section 146 seeks to prevent minors from incriminating themselves in oral or verbal statements and thereby incurring their criminal or penal liability. [ 98 ] The ASD test is a different type of consideration: its purpose is merely to enable a police officer to establish reasonable grounds to demand that a person submit to another test that will have an impact in terms of criminal liability. At that second stage, young persons benefit from all of their constitutional protections and the specific provisions relating to their status as minors. [ 99 ] In this case, the police officers did not ask the young person any questions after arresting her or as they drove her home. The

young person made no statement after being arrested. THEREFORE, THE APPLICATION IS DISMISSED. ____________________ THE LAW APPLICABLE TO THE EVIDENCE ON THE MERITS The elements of the offence [100] It should be recalled that subsection 254(2) Cr. C. provides that a person required by a peace officer to provide a breath samplemust do so immediately: (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [101] The Crown must therefore establish, beyond a reasonable doubt, each of the elements of the offence, which are: 1. the existence of a demand by a peace officer under subsection 254(2) Cr.

C.; 2. the young person’s failure or refusal to provide a breath sample; 3. the evidence that she intended to produce this result. [102] If the prosecution meets its burden with respect to these three elements, the young person must be convicted unless she raises areasonable excuse.[8] [14] Someone who fails to exhale enough air despite being quite willing to do so has not committed the offence of failing to complywith a peace officer’s demand. A person who does not blow into the screening device adequately or sufficiently will not commit theoffence unless that person has the guilty intent to do so.

The repeated failures of a person who appears to be providing a breath samplecannot in themselves be proof of guilty intent. [15] The failure has to be wilful and intentional, as opposed to an involuntary failure or one resulting from physical incapacity. [16] It is important to avoid confusing the analysis of the defence of reasonable excuse and the analysis of the essential element, i.e.,the guilty intent required by the statutory provision. On this topic, I concur in the comments of Richard Grenier J. of the Superior Courtof Québec, ruling on a

summary conviction appeal, in R. c. Bourque, [2005] J.Q. no 7781, (QC CS), , who wrote [TRANSLATION]: 20 The actus reus of this offence is the failure to comply with the demand; in order to establish mens rea, the prosecution also has toprove that the failure to comply with the demand was intentional.

Accordingly, someone who fails a screening test because he does notblow adequately will not be guilty of the offence charged if the individual does not have the required guilty intent, although that intentmay often follow from all of the facts put in evidence. 21 It is also important to avoid confusing evidence of guilty intent and the defence of reasonable excuse, the proof of which lies on theaccused, R. v. Sheehan, [2003] N.J. No 57. 22.

When there is a refusal to submit to the test, the guilty intent may be presumed, and the judge at the subsequent stage must considerwhether the accused has demonstrated, on a balance of probabilities, a reasonable excuse to justify the refusal. 23 As for the individual who does not blow adequately, the judge should first ask if there is any doubt, having regard to the totality ofthe evidence, as to the existence of the third essential element of the offence: intent.

If such a doubt does exist, the judge must eitheracquit or proceed with the reasonable excuse analysis, if such a defence is raised. [103] In this case, it is not contested that the demand made by the police officers complied with the conditions of subsections 254(2)Cr. C. They had reasonable grounds to suspect the presence of alcohol in the young person’s body, and the demand was made withinfour minutes of stopping the vehicle. [104] The prosecution argues that the young person deliberately failed to blow and that is why the ASD registered no value.

It notesthat the defence has recognized that the device was functioning properly. [105] The young person maintains that she always intended to comply with the order and that she therefore did not refuse or fail toprovide a breath sample as demanded. [106] The defence nevertheless argues that there is no presumption that the ASD was functioning properly and that in this case thepolice officers did not blow into the device themselves to verify whether it was working.

The defence adduces no evidence on this point,however, even though the burden of proving that the device was not working properly falls on its shoulders.[9] Credibility [107] This is a question of credibility, and the principles set out in R. v. W.(

D) apply.[10] The Court cites the following excerpt fromauthors Béliveau and Vauclair:[11]

[translation] 2328 When the evidence of the prosecution and the defence are contradictory, which generally happens when the accused testifies, a more insidious risk arises. In such a case, the triers of fact, juries in particular, may reflexively “choose” which version is the most plausible. This is clearly an erroneous approach, as it is tantamount to deciding on a balance of probabilities.

Therefore, when the issue of credibility is fundamental or important, and particularly when the evidence reveals no other relevant extrinsic factor, the Supreme Court has required that the jury receive instructions similar to the following : First, if [after considering all of the evidence and not merely the testimony of the accused] you believe the evidence of the accused, obviously you must acquit. Second, if [after considering all of the evidence and not merely the testimony of the accused] you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, [this does not mean that you must convict. The fact that the accused is not telling the truth does not make him guilty.] [Y]ou must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. 2329 . In Dinardo , the Supreme Court stated that “there is nothing sacrosanct about the formula”, especially in a trial before judge sitting alone.

Charron J. stated that “the assessment of credibility will not always lend itself to the adoption of the three distinct steps...; it will depend on the context”. That being the case, it is essential to answer “the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt”. This means that the judge or jury is not required to [ translation ] “accept the defence’s evidence in its entirety to acquit”.

In fact, the formula seeks merely to compel the correct intellectual approach to avoid prohibited reasoning, but this process may be respected in other ways. Thus, the order in which the testimonies are presented to a jury may be important. In C.L.Y , however, the Supreme Court did not accept the argument that it would be fatal for a judge sitting alone to comment on the credibility of the complainant before that of the accused.

Analysis in light of the applicable law [ 108 ] The Court must consider whether it believes the young person and whether she has raised a reasonable doubt through her explanations, in light of all of the evidence. [ 109 ] Does the Court believe the young person? [ 110 ] The young person testified with aplomb, held a steady gaze, and answered all the questions asked. She is visibly angry about the work done by the police officers and denounces some of their behaviour. She answered some of the prosecution’s questions with annoyance.

Her mother was in the same state of mind when she testified. [ 111 ] The Court accords little credibility to the young person’s claim that she gave contradictory answers to Officer Couture’s questions because the officer asked two different questions. Moreover, it is not likely that, after admitting that she had drunk two shooters, she added that she had had them at 1:00 p.m., which was 15 hours earlier. [ 112 ] Moreover, the young person is contradicted by her mother, A, on this important question.

Although the young person says that her mother knew about the shooters, Thériault was literally dumbfounded when the prosecution asked her if she knew that her daughter had drunk during the afternoon preceding the events. She was puzzled and surprised when she answered in the negative. [ 113 ] It is also highly unlikely that the young person was not aware that there was a bottle of alcohol in her car. In her testimony, she stated that she later learned that the bottle belonged to the friend with whom she had spent the evening and who had gone to Montreal with her on the night of June 14.

The young person suggested that her friend was carrying this bottle in her backpack and took it out without her knowledge, placing it where the police found it, on the floor behind the passenger seat. [ 114 ] Given how small the interior of the vehicle was and the fact that her friend would have had to open her backpack, take the bottle out, and slip her arm between the two seats to place the bottle behind her, it is highly unlikely, given these circumstances, that the young person did not see anything.. [ 115 ] Again, the young person’s testimony is contradicted by her mother’s, who stated that she remembered that her daughter had told her that the bottle belonged to one of the friends that she had driven home. [ 116 ] The young person is also contradicted by her mother about the identity of the friend she went to Montreal with.

Thériault claims that her daughter spent the day with a young person named Fanny.

The Court believes that this is an error in good faith, especially since the identity of the person who was with the young person is not relevant to the resolution of the dispute. [ 117 ] Finally, the young person acknowledges that she did not tell the police officers that she had been at a bar when they asked her where she had been, but instead said that she was coming back from driving friends home. [ 118 ] When the prosecution asked her why she was nervous during the stop, the young person said, among other things, that she was afraid of losing her driver’s licence.

If she had not been drinking, why was she worried? Because her licence is her freedom, she said, and she never wanted to lose it.

She also stated that she did not like the situation, that she felt pressured by the officers, and that being arrested is stressful. [ 119 ] Specifically with regard to the element of the offence of refusing or failing to provide a breath sample, the young person explained on the one hand that she tried to comply with the order she was given, that she did in fact do so, that she blew with all her might and wanted to prove that she had not been drinking, but that she was unable to do it properly because she did not know how.

She explained that the cold, her stress and fear, and the police officers’ insistence prevented her from doing it properly.

[ 120 ] She added that she did not feel well at the time, that she was out of breath, and that she had wanted to try again but was unable to. [ 121 ] The Court believes that the young person was torn between the desire to do well and the fear of losing her driver’s licence, and that when it came time for her to take the test, she did not blow hard enough for the ASD to register a reading. [ 122 ] It is highly unlikely that the police officers did not explain how to do it before any of the seven tests she tried. [ 123 ] It is also very surprising that the young person denies that the officers read her rights or informed her of her right to counsel when they arrested her. [ 124 ] For all of these reasons, the Court does not believe the young person on these essential aspects of her testimony. [ 125 ] Regarding the second and third stage of the analysis: [ 126 ] The young person’s mother testified that the smell of alcohol emanating from her daughter was from the sweater she was wearing, not her breath.

She also added that she noticed this even before she spoke to her daughter and learning that this was also her daughter’s version. Later in her testimony, it became less clear as to when the young person stated this. [ 127 ] The issue as to whether the young person’s breath smelled of alcohol more than one hour after she was stopped is therefore not relevant, especially since the offence charged is not impaired driving. [ 128 ] Furthermore, her mother confirmed her daughter’s state when she arrived home.

She described her as panicked, wet, and in tears. [ 129 ] Ultimately, the Court concludes from the evidence: ➢ That the young person’s breath smelled slightly of alcohol, as observed by the police officers when she exited her vehicle; ➢ That the demand made by the police officers to provide a breath sample was lawful; ➢ That the defence has not shown, on a balance of probabilities, that the device was not working properly, it being moreover admitted that the device used was approved and compliant; ➢ That the police officers explained to the young person how to blow into the device as well as the consequences of refusing to provide a breath sample, and that they did so on more than one occasion and in different ways; ➢ That the police officers found that no air was coming out the back of the device, which should have been the case if the breath provided was sufficient, and that they changed the mouthpiece three times; ➢ That the police officers told the young person that she was pretending; ➢ That after arresting the young person and guiding her to their vehicle, the police officers gave her two more opportunities to take the test because they felt that she was displaying good will, but that she still did not do it correctly; ➢ That the police officers read the caution to the young person and informed her of her right to counsel and the possibility of contacting her parents when she was arrested; ➢ That the young person was nervous, continuously in tears after the first breath test, cold, and not permitted to fetch her coat in her car; ➢ That the young person asked several times to be given [ translation ] “another chance”, that she promised to blow into the device correctly, and that she continued to ask even after the seventh attempt. [ 130 ] The Court does not believe the young person with regard to the essential aspects of her testimony, and the evidence as a whole does not raise a reasonable doubt as to whether the young person failed to comply with the demand to provide a breath sample.

The evidence also does not reveal a reasonable explanation for the failure to comply. FOR THESE REASONS: [ 131 ] The accused is convicted of the offence charged. __________________________________ Francine Gendron

Mtre Annie Trudel Counsel for the prosecution Mtre Marc-André Dufort Counsel for the accused Date of hearing: March 16, 2015