2021 QCCA 505, 2021 QCCA 505

Unofficial English Translation of the Judgment of the Court Breault c. R. 2021 QCCA 505 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-003742-207 (200-36-002866-192) (CM 17CC011136) DATE: 26 MARS 2021 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. MARTIN VAUCLAIR, J.A. MARIE-JOSÉE HOGUE, J.A. SIMON RUEL, J.A. JOCELYN F. RANCOURT, J.A. PASCAL BREAULT APPELLANT – Defendant v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor and DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS INTERVENER JUDGMENT [ 1 ] The appellant appeals against a judgment rendered on February 21, 2020 by the Superior Court, district of Quebec (the Honourable Mr. Justice Raymond W.

Pronovost), which dismissed his appeal of the decision rendered on June 26, 2019 by the Municipal Court of the City of Quebec (the Honourable Patrice Simard) finding him guilty of the offence set out in s. 254(5) Cr.C . as it was then in force. [ 2 ] For the reasons of Doyon, J.A., with which Vauclair, Hogue, Ruel and Rancourt, JJ.A. agree; THE COURT : [ 3 ] ALLOWS the appeal; [ 4 ] QUASHES the judgment of the Superior Court dated February 21, 2020, as well as the judgment of the Municipal Court of the City of Quebec dated June 26, 2019; [ 5 ] DIRECTS a judgment of acquittal to be entered; [ 6 ] DECLARES that Petit c.

R. , 2005 QCCA 687 , no longer has precedential value. FRANÇOIS DOYON, J.A. MARTIN VAUCLAIR, J.A. MARIE-JOSÉE HOGUE, J.A.

SIMON RUEL, J.A. JOCELYN F. RANCOURT, J.A. Mtre Félix Antoine T. Doyon LABRECQUE, DOYON AVOCATS For the appellant Mtre Isabelle Cardinal GIASSON & ASSOCIÉS For the respondent Mtre Gabriel Bervin Mtre Justin Tremblay DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the intervener Date of hearing: October 22, 2020 REASONS OF DOYON, J.A. [ 7 ] “Forthwith” means “forthwith” when referring to breath samples. [ 8 ] The appellant appeals against a judgment rendered on February 21, 2020 by the Superior Court, district of Quebec (the Honourable Mr. Justice Raymond W.

Pronovost), which dismissed his appeal of the decision rendered on June 26, 2019 by the Municipal Court of the City of Quebec. The Municipal Court had convicted him of the offence set out in s. 254(5) Cr.C . , as it was then in force, after having determined that the demand to provide a breath sample using an approved screening device (“ASD”) was valid. Context [ 9 ] On April 2, 2017, at approximately 1:30 p.m., police officers Atkins and Côté-Lemieux received a phone call from trail patrollers informing them that an individual was driving an all-terrain vehicle (“ATV”) while drunk.

As they were heading towards the scene of the offence, they were informed that the driver was about to leave the area on foot. He was wearing a black coat and had abandoned the ATV in a parking lot. [ 10 ] At 1:35 p.m., the police officers arrived at the scene and officer Atkins stopped the appellant, who was walking away from the patrollers. Mr. Breault identified himself with his driver’s licence and said that he had not been driving the ATV. He said the driver was a lady who was also walking away.

The police officer smelled a strong odour of alcohol and noted that his eyes were bloodshot. [ 11 ] As for police officer Côté-Lemieux, he went to meet with the patrollers, who confirmed that it was indeed the individual stopped by police officer Atkins who had been driving the ATV. They had noted an odour of alcohol. Officer Côté-Lemieux joined officer Atkins and told him that it was indeed the appellant who had been driving the ATV. Officer Atkins asked the appellant whether he had consumed alcohol.

He replied that he had had one beer, but reiterated that he had not been driving the ATV. [ 12 ] Since officers Atkins and Côté-Lemieux did not have an ASD in their possession, officer Atkins radioed for one. It was 1:41 p.m. A police officer patrolling another area replied that he had one and would bring it to him. Officer Atkins estimated that the delay to obtain the ASD would have been approximately 10 minutes, although a 15-minute delay would also have been conceivable.

As for police officer Côté-Lemieux, he stated that the ASD would have been delivered [ translation ] “within 10 minutes, you know, I can’t believe it wouldn’t have arrived by then, you know, it’s practically impossible”. And yet, it had still not arrived 20 minutes later, when the request to bring the ASD was cancelled because of the events that followed. [ 13 ] Police officer Atkins further testified, [ translation ] “In order not to waste time and given that, at that time, I had reasonable suspicion to believe Mr.

Breault had driven the ATV while impaired by alcohol, I ordered him to provide a breath sample using the approved screening device”, even though he did not yet have the device in his possession. It was still 1:41 p.m. Officer Atkins explained the consequences of a refusal to the appellant. The appellant asked to speak with his lawyer, which the police officer refused, given that he was not under arrest. As of 1:45 p.m., the appellant refused three times to provide a breath sample using an ASD, each time stating that he had not been driving the ATV.

The last refusal took place at 1:53 p.m., still before the arrival of the ASD. [ 14 ] Consequently, the appellant was placed under arrest for refusing to provide a breath sample.

[ 15 ] At approximately 2 p.m., the police officers cancelled the request for an ASD because of the refusal. As police officer Atkins testified, [ translation ] “I radioed to cancel the approved screening device, that it was not necessary, because the gentleman was not inclined to blow into it. Therefore, the device never arrived at the scene”.

The appellant was then released after having handed over the keys of the ATV to the police officers. [ 16 ] In short, the appellant refused to provide a breath sample using a device that was not in the possession of the police officers and that never came to be in their possession. [ 17 ] The following is the text of the charge pursuant to which he was found guilty: [ translation ] On or about April 2, 2017, in Quebec City, district of Quebec, failed to comply with a demand made to him by a peace officer under s. 254 (2) of the Criminal Code , thereby committing the offence punishable on

summary conviction provided for in ss. 254(5) and 255(1) of the Criminal Code . [ 18 ] It is necessary to set out the provision which, at the time, permitted police officers to make a demand to provide “forthwith” a breath sample using an ASD: Testing for presence of alcohol or a drug 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: […] (

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.

Contrôle pour vérifier la présence d’alcool ou de drogue 254(2) L’agent de la paix qui a des motifs raisonnables de soupçonner qu’une personne a dans son organisme de l’alcool ou de la drogue et que, dans les trois heures précé​dentes, elle a conduit un véhicule — véhicule à moteur, bateau, aéronef ou matériel ferroviaire — ou en a eu la garde ou le contrôle ou que, s’agissant d’un aéronef ou de matériel ferroviaire, elle a aidé à le conduire, le véhicule ayant été en mouvement ou non, peut lui ordonner de se soumettre aux mesures prévues à l’alinéa a), dans le cas où il soupçonne la présence de drogue, ou aux mesures prévues à l’un ou l’autre des alinéas

a) et b), ou aux deux, dans le cas où il soupçonne la présence d’alcool, et, au besoin, de le suivre à cette fin : […]

b) fournir immédiatement l’échantillon d’haleine que celui-ci estime nécessaire à la réalisation d’une analyse convenable à l’aide d’un appareil de détection approuvé. Failure or refusal to comply with demand

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. Omission ou refus d’obtempérer

(5) Commet une infraction quiconque, sans excuse raisonnable, omet ou refuse d’obtempérer à un ordre donné en vertu du présent article. [ 19 ] The appellant questioned the validity of the demand, given the absence of an ASD, and challenged the immediacy of the demand in light of the waiting period before the arrival of the device. [ 20 ] The Municipal Court judge, citing 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.

In the case at bar, he concluded that the 4-minute delay between the time the suspicions arose (1:41 p.m.) and the first demand (1:45 p.m.) satisfied the immediacy requirement for the demand. As for its validity in the absence of an ASD, the judge relied on R. v. Degiorgio, 2011 ONCA 527 , to state that [ translation ] “[t]he validity of the demand does not depend in any way on the presence of an ASD at the scene at the time the peace officer makes the demand”. He added that [ translation ] “the absence of an ASD at the scene is a pretext, used at trial, to try to justify his immediate refusal.

At the scene, the defendant never expressed his desire to submit to the peace officer’s demand as soon as the ASD would be available”. [ 21 ] Before dismissing the appeal, the Superior Court justice noted that the Municipal Court judge had rendered a judgment based on

the applicable law and that [translation] “this appeal is merely a necessary step on the way to the Court of Appeal” as part of a process tochallenge Petit and, by extension, Piazza, which applied Petit in circumstances I will explain further below. The arguments [22] Here is how the appellant formulated the question the Court has to adjudicate: [translation] Does a demand made by a police officer to provide breath samples forthwith comply with the law if the police officer is not inpossession of an approved screening device?

Does the fact that such a device can be brought to him within a period of 10 to 15 minutesrender the demand compliant? [23] The appellant is of the opinion that an ASD should be available at all times, just like [translation] “handcuffs, expandable batons,pepper spray and service weapons”, because it is necessary for the performance of police officers’ day-to-day tasks. He adds that heshares the opinion of Vauclair, J.A. who wrote, at para. 37 of Piazza, that detention prior to the use of an ASD [translation] “isnecessarily short” given that it suspends the exercise of the right to counsel.

The appellant also agrees with my colleague when the latterbrings into question the principle accepted in Petit to the effect that [translation] “a short and inevitable 15-minute delay may bejustifiable”: para. 19. I would point out that, in Piazza, the Court and my colleague applied Petit solely because of the rule of staredecisis, leaving the possibility of overturning it to a panel of five judges.

That is, in fact, why this appeal was heard by a panel of fivejudges, following the appellant’s application to that effect which was granted by the Chief Justice. [24] In that regard, the appellant favours a [translation] “uniform test” to interpret the term “forthwith”, which should mean[translation] “right away”, while Petit mistakenly accepts a delay based on a rationale that is itself founded on mere administrativeconvenience by allowing a theoretical 10-minute delay, which underestimates the importance of the suspension of the right to counselduring that time. [25] In short, as in Piazza, the appellant argues that one cannot [translation] “attribute to the word forthwith a greater duration thanwhat is necessary to obtain a reliable test where the facts indicate to the police officer that he or she must wait in order to avoid a falseASD reading”.

Thus, depending on the circumstances, this delay could be longer or shorter than the theoretical 10 or 15 minutesaccepted in Petit (in fact, in Petit, the delay was 10 minutes, but the Court also accepted the 15-minute delay referred to in R. v.Bernshaw, (SCC), [1995] 1 S.C.R. 254). [26] The respondent is of the opinion that the question as formulated by the appellant is moot because the offence was committedbefore the arrival of the ASD, as soon as there was a refusal, and that the demand was valid. It notes that the offence is not created by s.254(2), but, rather, by s. 254(5).

It relies on Degiorgio, cited by the Municipal Court judge, to argue that the period covered by therequired “immediacy” is the period during which the individual must comply with the demand.

A categorical refusal [translation]“crystallizes” the offence as of the moment the refusal is expressed, such that the person cannot avoid criminal liability as a result ofsubsequent events. [27] It adds that it is not the number of minutes that is important, but, rather, that the test [translation] “be administered as soon asreasonably possible given the circumstances”. [28] As for the intervener, its arguments focus on the standard for reversing a precedent, in this case, Petit. In its view, the facts aresufficiently similar to those in Petit for the Court to be able to apply it without distinguishing it.

It adds that the judgment in Petit was notrendered per incuriam nor is it manifestly wrong, that there is no jurisprudential conflict within the Court and that there are nocompelling circumstances calling for a reversal of the judgment or the principles set out therein. [29] It also submits that the provision does not require that the peace officer be in possession of an ASD in order for the demand to bevalid. Analysis The demand and its validity [30] It goes without saying that an invalid or illegal demand cannot result in criminal liability in the event of a refusal: R. v.

Grant, (SCC), [1991] 3 S.C.R. 139, at pages 149 and 150. The respondent is right to point out that the offence is not set out in s.254(2) Cr.C., but, rather, in s. 254(5). Nonetheless, the demand must be valid within the meaning of subsection (2) in order for therefusal referred to in subsection (5) to result in criminal liability. Indeed, Lamer, C.J. emphasized this point in Grant.

Even though thesection numbers in the Criminal Code were different at the time of that judgment, the wording was similar and, as the Chief Justicewrote at page 149: The crucial point is that, unless the demand made by a police officer falls within the ambit of s. 238(2), the person to whom the demandis addressed is under no obligation to comply with the demand, and does not commit the offence under s. 238(5) if he refuses to do so. [31] In Grant, the police officer had demanded that the driver submit to a screening test with an ASD which, however, he did not havein his possession.

A police officer finally arrived with the device after thirty minutes. Mr. Grant refused to comply and was thereforecharged. At page 150, Lamer, C.J. added: In my opinion, the actions of the officer in this case fell outside of the ambit of s. 238(2). The demand made was not the demand

authorized by s. 238(2), that Mr. Grant provide a sample of his breath “forthwith.” Instead, the demand made was a demand that he provide a breath sample when the required apparatus arrived, which turned out to be half an hour later . It follows that Mr. Grant was under no obligation to comply with the police officer’s demand, and did not commit the offence under s. 238(5) when he failed to do so. The context of s. 238(2) indicates no basis for departing from the ordinary, dictionary meaning of the word “forthwith” which suggests that the breath sample is to be provided immediately.

Without delving into an analysis of the exact number of minutes which may pass before the demand for a breath sample falls outside of the term “forthwith”, I would simply observe that where, as here, the demand is made by a police officer who is without an A.L.E.R.T. unit and the unit does not, in fact, arrive for a half hour, the provisions of s. 238(2) will not be satisfied. [Emphasis added] [ 32 ] The foregoing provides a good indication of the course of action to be followed, and it is therefore crucial to determine whether the demand made by police officer Atkins was in compliance with the legal requirements so as to determine whether the appellant was guilty by refusing. [ 33 ] Piazza , on which the appellant bases his arguments, does not provide a full answer, given the context for that decision and the issue it had to address.

As my colleague Vauclair, J.A. stated at para. 6 of that decision, the issue was as follows: [ translation ] “Does the driver of a vehicle that has been stopped have the right, if the waiting time allows, to contact counsel before providing breath samples into an approved screening device (hereinafter “ASD”)? If there was an infringement, did the Superior Court justice err in failing to consider s. 24(2) of the Canadian Charter of Rights and Freedoms , […]”.

In other words, the dispute did not pertain directly to the legality of the demand in light of the delay, but, rather, to the detainee’s right to contact his lawyer following such a demand and the possibility of excluding the evidence if that right was infringed. [ 34 ] This does not mean, however, that Piazza is not useful.

On the contrary, in such matters, judgments addressing the right to counsel during the waiting time, the legality of the demand, the concept of “immediacy”, the exclusion of evidence and the reasons for a refusal address overlapping principles, and my colleague’s remarks in Piazza are extremely useful, at least indirectly, particularly because of what he added at para. 7: [ translation ] “These two questions, which were raised by the appellant, pertain more generally to the lawfulness of the demand to provide the sample when the state is not able to provide the driver with the means to comply with the demand forthwith.

If it is not possible to respond forthwith, does the demand remain lawful and can the refusal to comply constitute an offence?”. [ 35 ] After an exhaustive review of the jurisprudence, my colleague summarized the situation admirably: [ translation ] [84] In short, I gather from the Supreme Court jurisprudence that, in spite of the opportunities it had, the Court declined to attribute to the word forthwith a greater duration than what is necessary to obtain a reliable test where the facts indicate to the police officer that he or she must wait in order to avoid a false ASD reading. This

interpretation is justified because it is based on the very wording of s. 254(2) Cr. C. I note, in passing, that the delay can sometimes be longer, as it was in R. v. Anderson , 2014 SKCA 32 , where, it seems, a 16-minute delay was reasonable for the ASD to “warm up” and become operational. [85] The Supreme Court rejected the idea that another type of waiting period might be acceptable, such as a theoretical 15-minute delay or a short delay to bring an ASD to the detainee’s location. I agree with this aspect of R. v. George : paras. 47-50. [ 36 ] There is no need to repeat my colleague’s analysis.

He synthesized the state of the law perfectly in those two paragraphs, at least as far as the Supreme Court is concerned. I would nevertheless like to cite an excerpt from R. v. Woods , 2005 SCC 42 , [2005] 2 S.C.R. 205, which I find particularly telling. Fish, J. wrote: 43 It is true, as I mentioned earlier, that “forthwith”, in the context of s. 254(2) of the Criminal Code , may in unusual circumstances be given a more flexible

interpretation than its ordinary meaning strictly suggests. For example, a brief and unavoidable delay of 15 minutes can thus be justified when this is in accordance with the exigencies of the use of the equipment : see Bernshaw . [Emphasis added] [ 37 ] Fish, J. accepted the ordinary meaning of the word “forthwith”—i.e., “immediately”—as the Supreme Court did in R. v. Grant , which was cited at para. 33 of Woods .

Clearly, Parliament’s use of the word “forthwith” is not insignificant and should be understood in its ordinary sense, except where there are “unusual” circumstances, such as a requirement stated by the manufacturer or particular circumstances leading to the police officer’s reasonable conclusion that a short delay is called for to ensure that the test is reliable, that the analysis is, in the words of s. 254(2) (

b) Cr.C ., “proper” . [ 38 ] On this last point, the very text of the provision suggests that Parliament had this possibility in mind because, as I just mentioned, the demand consists in obtaining a breath sample “that (…) will enable a proper analysis to be made / nécessaire à la réalisation d’une analyse convenable ”.

In other words, the purpose of the demand is to obtain a breath sample that can lead to a “proper analysis / analyse convenable ”, which could warrant a short wait if the police officer witnesses a circumstance that could call into question the value of the test. [ 39 ] In short, the word “forthwith” has a well-known meaning, which cannot be disregarded for the purpose of administrative convenience, but can be, for a short period of time, if the value of the test is at stake (given the text of the provision), or if the short delay involves only the operation of the device (as in R. v.

Anderson , 2014 SKCA 32 ) or results from a defect. If such a defect cannot be anticipated, it would fall within the scope of the unusual circumstances referred to in Woods and Bernshaw . In other words, faced with a defective device, the conclusion should not be that nothing can be done and that the driver should quite simply be released if he does not show other symptoms. Perhaps, in such circumstances, he should be given access to counsel, but that is another matter. [ 40 ] In a nutshell, 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. [41] In Woods, Fish, J. confirmed the opinion of Arbour, J.A. (as she then was), who pointed out the necessary link between theconcept of “immediacy” and the right to counsel: 34 In R. v. Cote (1992), (ON CA), 70 C.C.C. (3d) 280 (Ont. C.A.), the police officer likewise had no screeningdevice in his car. He drove the accused to a police station nine minutes away and was not ready until five minutes later to take a breathsample.

The accused refused to comply with the officer’s demand and was charged pursuant to s. 238(5) (now s. 254(5)) of the CriminalCode. The Ontario Court of Appeal set aside his conviction and entered an acquittal instead. 35 Speaking for a unanimous court, Arbour J.A. (as she then was) cited the passage I have reproduced from Grant, and explained: If the accused must be taken to a detachment, where contact with counsel could more easily be accommodated than at the side of theroad, a large component of the rationale in Thomsen disappears.

In other words, if the police officer is not in a position to require that abreath sample be provided by the accused before any realistic opportunity to consult counsel, then the officer’s demand is not a demandmade under s. 238(2). The issue is thus not strictly one of computing the number of minutes that fall within or without the scope of theword “forthwith”. Here, the officer was ready to collect the breath sample in less than half the time it took in Grant. However, in view ofthe circumstances, particularly the wait at the police detachment, I conclude that the demand was not made within s. 238(2).

As thedemand did not comply with s. 238(2), the appellant was not required to comply with the demand and his refusal to do so did notconstitute an offence. [Emphasis added; p. 285.] 36 It is for these reasons that we are prohibited on constitutional grounds from expanding the meaning of “forthwith” in s. 254(2)to cover the delays that occurred in this case. [42] For the demand to be valid, the police officer must therefore be in a position to demand that the accused provide a breath sampleforthwith, before the accused even has the time, realistically speaking, to contact counsel, which means that the police officer must haveimmediate access to an ASD. [43] In this regard, I note that when the respondent cites the following remarks from Bernshaw ( (SCC), [1995]1 S.C.R. 254, p. 294): “[…] Thus, the wording of the provision adds support to the argument that ‘forthwith’ must be given a flexibleinterpretation”, it fails to put this excerpt into context. [44] In Bernshaw, the police officers had not waited a certain amount of time before administering the test, although themanufacturer’s operation manual recommended a waiting period if the subject had recently had a drink, or regurgitated or vomited, toensure that any mouth alcohol had dispersed.

Bernshaw reproached them for not having waited as required and added that, during thewaiting period, he had the right to consult counsel, which should have resulted in the evidence being excluded. It was therefore in a veryspecific situation, where the reliability of the test could be at stake, that Sopinka, J. spoke for the majority. The full passage, drawn fromhis opinion, demonstrates this (p. 294): Accordingly, it appears that courts are willing to give a broad

interpretation to the meaning of “forthwith” as set out in the Grantdecision. In my view this is appropriate given the wording and context of the legislation.

The relevant portion of s. 254(2) of the Codereads as follows: ... the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in theopinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening deviceand, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken. [Emphasis added.] The provision specifically contemplates that the police officer is entitled to demand a breath sample which enables a proper analysis ofthe breath.

In the situation where the officer knows that a suspect has just recently consumed alcohol, a proper sample can only beattained by waiting at least 15 minutes. Thus, the wording of the provision adds support to the argument that “forthwith” must be given aflexible

interpretation. [45] In short, the passage cited by the respondent does not mean that the word “forthwith” must be given a flexible

interpretation inall cases. Sopinka, J. was referring to the specific situation in which the validity of the sample for purposes of analysis was at stake. [46] In my view, considering the jurisprudence of the Supreme Court, a delay cannot be justified on the basis of administrativeconvenience, that is, for practical reasons. The need to allow time for an ASD to be delivered to the scene of the arrest because the policeofficers do not have it in their possession is one such unjustified practical reason.

Since such a delay is not sufficiently short to concludethat the driver could not, in the meantime, contact counsel, the immediacy requirement, which is intimately tied to that right, is notsatisfied. The immediate and mandatory nature of the response [47] The jurisprudence places emphasis on the immediacy of the demand (the immediacy requirement regarding the demand isimplicit because of the wording of the provision: Woods, para. 14). Less attention is focused, however, on the immediacy of the driver’sresponse, a requirement that is explicit according to the very text of the provision.

Indeed, the provision states that the demand isintended “to provide forthwith a sample of breath / fournir immédiatement l’échantillon d’haleine”. Thus, it is not only the demand thatmust be made forthwith; the driver must also provide a breath sample forthwith after the demand has been made (i.e., an “immediateresponse”, to quote Fish, J. in Woods, at para. 44). [48] This requirement is important in the present case. [49] To comply with the demand, the appellant had to provide a breath sample forthwith. How could he do so in the absence of an

ASD? This was obviously impossible. How could he commit an offence by refusing to do something that he could not do? This was justas impossible. [50] If a driver has the obligation to provide a breath sample forthwith, it would seem to me that the corollary is that he must be in aposition to do so, failing which he cannot be held criminally liable. That said, how can he be in a position to do so if the ASD is not atthe scene when the demand is made? [51] Moreover, it seems illogical to make the legality of the demand conditional on the period of time required for the ASD to bebrought to the scene.

When deciding whether or not to provide a breath sample, the driver must be in a position to know whether thedemand is valid, which will only be possible later, once the ASD arrives. Vagueness in this regard is incompatible with the commissionof a criminal offence which requires, as it does here, that the driver know that the demand is valid when refusing. In other words, arefusal would result in culpability if the device arrived within a predetermined, theoretical, acceptable period of time, but would notshould the device arrive later. Such uncertainty cannot be tolerated.

Yet, this is the result Petit leads to, even if, in that case, there was norefusal to provide a breath sample. [52] As my colleague, Vauclair, J.A., noted in Piazza: [translation] [110] Nor does authorizing a delay for the device to be brought to the scene allow us to determine as of what moment the demand is nolonger valid and no longer meets the immediacy requirement; is it 2 minutes, 5 or 10, why not 30 seconds more or even 11 minutes? Is adelay of more than 15 minutes acceptable? Is there a maximum delay? Why?

Conceptually, what is the difference between the30-minute delay rejected in Grant, the 15-minute delay rejected in Bernshaw and the 10-minute delay in Petit? None of these questionshave a sufficiently rational answer to support the legislative provision that suspends the constitutional right at issue. [53] I am entirely in agreement with his opinion and his concerns.

One can hardly quantify the acceptable delay in a theoreticalmanner, particularly where the answer involves a constitutional right such as the right to counsel. [54] Indeed, what should we conclude when the device never arrives at the scene because the police officers have cancelled therequest due to the driver’s refusal, as was the case here? It would be impossible to know whether the demand was, would have been oreven could have been valid, because we would never know whether the acceptable delay (say, 15 minutes) would have been satisfied.Such a solution is untenable.

In fact, in the present case, the ASD had not yet even been delivered 20 minutes after the demand, when thepolice officers cancelled the request for an ASD. Should we conclude from this that the demand was invalid because it exceeded the 10or 15 minutes in Petit, such that the refusal did not result in culpability?

This is an exercise that cannot be justified. [55] The respondent argues that the Crown does not have to prove that the police officer was in a position to take the breath samplewith the ASD at the moment the driver refused to comply with the demand, because the offence is committed as soon as there is arefusal. Yet, it seems quite difficult to commit the offence of not complying or failing to comply with a demand if, in fact, one cannotcomply, as is the case when the ASD is not there. How can someone be accused of refusing or failing to comply, when they are not evenin a position to do so?

If the ASD does not arrive at the scene immediately after the demand is made, it follows that there was nopossibility for the driver to comply forthwith. [56] To overcome this obstacle, the respondent turns to R. v. Degiorgio, 2011 ONCA 527, in which LaForme, J.A. wrote: [42] The conduct criminalized by s. 254(2) consists of a proper s. 254(2) demand and an unequivocal refusal to comply with thatdemand. The offence is completed when the refusal is given: R. v.

Woods, 2005 SCC 42 , [2005] 2 S.C.R. 205 at paras. 40-42.There is nothing in the language of s. 254(2) that would require the Crown to prove that had the driver not refused to provide the sample,the demanding police officer could have complied with his or her obligation to take the sample “forthwith”. Nor can I understand why,as a matter of criminal law policy, a driver who has unequivocally refused to forthwith provide a breath sample should escape criminalresponsibility for that refusal based on events subsequent and totally unrelated to the refusal.

How is the culpability of the person whorefuses to comply with a demand reduced because, as events may have developed, the officer may not have been able to take the sampleforthwith? [57] The virtue of this approach is its simplicity.

However, I find it very difficult to follow this line of reasoning, for three reasons.First, I do not see how the Court could come to this conclusion when the very wording of the police officer’s demand stated the contrary:“I demand that you provide a suitable sample of your breath directly into an approved screening device forthwith to enable a properanalysis of your breath to be made and that you accompany me for the purpose of enabling a sample to be taken”. The demand compliedwith the law and required the driver to provide a breath sample forthwith, not when the ASD was to be delivered.

At the risk of repeatingmyself, I do not see how the person in question could provide a breath sample forthwith without a device. [58] Later on, at para. 66 of the judgment, the Ontario Court of Appeal indicated that the appellant had brought up the very situationthat is before us, that is, how to determine the validity of the demand if the request for delivery of the device is cancelled. The Court didnot reply to the argument, simply reiterating that the offence had already been committed, such that what occurred subsequently wasirrelevant.

The lack of a response leaves me wanting. [59] Lastly, even though the Ontario Court of Appeal mentioned that the appellant was relying on R. v. George, ,187 C.C.C. (3d) 289 (Ont. C.A.), it did not comment further. Yet, in George, Gillese, J.A. noted the following: [28] It is also accepted that if a roadside demand is made and a sample is not provided “forthwith” because the approved screeningdevice is not readily available, the demand is not valid and does not justify a failure to provide s. 10(

b) rights. See R. v. Grant (1991), (SCC), 67 C.C.C. (3d) 268 (S.C.C.). […]

[34] A conclusion that the demand was not made within s. 254(2) is also consonant with the Supreme Court’s admonition in Grantthat a demand that a detainee provide a sample “forthwith” must be a demand that the detainee provide a sample after “a brief period ofdetention”, if not “immediately”. The demand in the instant case was not to provide a breath sample “forthwith” but to provide a samplewhen the required apparatus arrived, which was some time later. [Emphasis added] [60] Even though this judgment was rendered in the context of the right to counsel, this opinion is nevertheless relevant.

Degiorgio,however, did not take it into account. [61] To summarize my thought process, let me present this hypothesis. A person agrees to comply with the demand before there is anASD at the scene. This person waits with the police officers until the ASD arrives. If it does not arrive “forthwith”—i.e., is too late (suchas the 30 minutes in Grant or the 10 or 15 minutes in Petit)—the person could change his or her mind and refuse to provide a breathsample, without being convicted, given that the demand is not valid.

Yet, applying the logic in Degiorgio, if the same person had refusedthe same demand from the outset, he or she could face charges for refusing, without the ASD even having been delivered in time. Icannot accept such reasoning, whereby the same demand can be both valid and invalid, depending on the moment when the driverrefuses to comply. A demand is either made “forthwith” or it is not, and a person must be able to comply or not comply forthwith; it mustbe valid or not, regardless of the moment when the driver expresses his or her refusal. [62] The ruling in R. v. Danychuk, , 183 CCC (3d) 337 (Ont.

C.A.), which the respondent also cites, does notsupport its argument, even if it may seem that Degiorgio is to the same effect. [63] In Danychuk, the police officer had an ASD in his vehicle. The only problem was that he had not warmed it up so it could beoperational before he made the demand.

The debate therefore pertained to the need to turn on the ASD before making the demand: [19] As I read the language of subsection 254(2) and appreciate its context, however, I see nothing in it mandating -- either expresslyor by implication -- that before a demand may be made the approved screening device must be warmed up and tested as operational andthe police officer must have explained the process and the consequences of a failure to comply. [64] Consequently, this situation has nothing to do with the matter before us. [65] Huppé c.

R., 2015 QCCA 1680, to which the respondent also refers, is of no further assistance to it, because the validity of thedemand was not at issue. The ASD was in the police officer’s possession and the issue was whether the screening result was due to theconduct of Ms. Huppé, who was intentionally blowing into the device in an [translation] “entirely inadequate” manner, such that thisconstituted a refusal, or whether the result was due to a device malfunction.

The Court therefore did not rule on a situation where, as isthe case here, the device was not in the police officer’s possession. [66] Here, too, this situation is not relevant to the present case. Conclusion [67] I am well aware that it would be much more convenient to allow a delay for the delivery of the device, as in Petit. The role of thecourts, however, is not to facilitate the job of police officers, nor, as a matter of fact, to complicate it. Their role is to interpret and applythe law.

That said, Parliament used the word “immediately” in the recent amendments (and kept the word “immédiatement” in French)despite all of the Supreme Court cases that have given it its ordinary meaning and have allowed a delay only to ensure the validity of thetest when circumstances raise a concern in that regard. [68] If Parliament had wanted to depart from that

interpretation, it could have used wording found in other provisions, such as “assoon as feasible”, “as soon as reasonably possible” (which is how the respondent would like the word “forthwith” to be interpreted),“without delay” (as in s. 10(

b) of the Charter, which means at the first reasonably available opportunity with respect to access tocounsel) or “as soon as practicable” (as in new s. 320.28 Cr.C.). It did not do so. [69] Moreover, police officers are not necessarily without resources in the absence of an ASD. They can use physical coordinationtests (s. 320.27(1)(

a) Cr.C.) or avail themselves more generally of the new provisions of ss. 320.27 and 320.28 Cr.C., which, in alllikelihood, give them more flexibility when intervening. [70] Considering that the right to counsel is suspended because of the very short delay before a breath sample is provided with anASD (a delay so short that it does not even allow a reasonable amount of time to contact counsel, which explains the suspension of thatright), the word “forthwith” cannot justify a delay greater than is necessary to properly operate the device or obtain a reliable test in lightof the facts noted by the police officer.

It certainly does not allow an additional delay while awaiting the device, contrary to the teachingsin Petit, which must no longer be followed because they run counter to the teachings of the Supreme Court by expanding the scope ofcriminal liability beyond acceptable limits: R. v.

Chaulk, (SCC), [1990] 3 S.C.R. 1303, p. 1353. [71] Simply put, the demand in the present case was invalid and the refusal that followed did not constitute a criminal offence, suchthat I would allow the appeal, reverse the judgment of the Superior Court as well as the judgment of the Municipal Court of the City ofQuebec and direct that a judgment of acquittal be entered. FRANÇOIS DOYON, J.A.