R. v. Piazza 2018 QCCA 948, 2018 QCCA 948
Opinion
R. v. Piazza 2018 QCCA 948 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006098-162 (500-36-007578-159) (C.M.M. 110-158-052) DATE: June 8, 2018 ______________________________________________________________________ CORAM: THE HONOURABLE NICHOLAS KASIRER J.A. MARTIN VAUCLAIR J.A MARIE-JOSÉE HOGUE J.A. ______________________________________________________________________ HER MAJESTY THE QUEEN APPELLANT – prosecutrix v.
NICOLA PIAZZA RESPONDENT – accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [UNOFFICIAL TRANSLATION BY CENTRE DE TRADUCTION ET DE TERMINOLOGIE JURIDIQUES] [ 1 ] The appellant appeals from a decision rendered by the Superior Court, District of Montreal (the Honourable Marc-André Blanchard), on January 21, 2016, in which the Court allowed the respondent’s appeal and acquitted him after setting aside the decision of the Municipal Court of the City of Montreal (the Honourable Richard Chassé), which had found the respondent guilty of refusing to comply with a demand made under subsection 254(2) of the Cr.
C. [ 2 ] For the reasons of Vauclair J.A., Kasirer and Hogue JJ.A. concurring, THE
COURT: [3] ALLOWS the appeal; [4] SETS ASIDE the judgment of the Superior Court; [5] RESTORES the judgment of the Municipal Court. _______________________________ NICHOLAS KASIRER J.A. _______________________________ MARTIN VAUCLAIR J.A. _______________________________ MARIE-JOSÉE HOGUE J.A.
Marc-Antoine Lavallée Normand Labelle CITY OF MONTREAL, PENAL AND CRIMINAL AFFAIRS For the appellant Jean-Philippe Marcoux GARIÉPY ST-ONGE MARCOUX Alexandre Legrand-Morel CORDEAU PARÉ, AVOCATS For the respondent Date of hearing: June 6, 2017 REASONS OF VAUCLAIR J.A. [6] Is the driver of a vehicle that has been stopped entitled, if the waiting time allows, to contact counsel before providing breathsamples into an approved screening device (hereinafter “ASD”)?
If there has been an infringement, did the judge of the Superior Courterr in failing to consider subsection 24(2) of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982, being
Schedule B tothe Canada Act 1982, c. 11 (U.K.) (“Charter”)? [7] These two questions, raised by the appellant, concern more generally the lawfulness of the demand to provide the sample whenthe 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? [8] The trial judge found the accused guilty.
The Superior Court allowed the appeal and acquitted the respondent of the offence offailing or refusing to comply with a demand made by a peace officer to provide a breath sample forthwith. Introductory Note [9] Certainly, at common law, a court must apply the decisions of a higher court, regardless of the judicial or academic criticismthat they give rise to and regardless of whether the former considers them to be wrong: Canada v. Craig, 2012 SCC 43 [2012]2 S.C.R. 489, paras. 20, 29; R. v. Arcand, 2010 ABCA 363, para. 184; Woods Manufacturing Co. v. Canada (Attorney General), 1951
36 (SCC), [1951] S.C.R. 504, 515, cited in R. v. Aubin, 2008 QCCS 4543. [10] Quite recently, the Supreme Court wrote the following in R. v. Comeau, 2018 SCC 15: [26] Common law courts are bound by authoritative precedent. This principle − stare decisis − is fundamental for guaranteeing certaintyin the law. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it. This iscalled vertical stare decisis.
Without this foundation, the law would be ever in flux − subject to shifting judicial whims or theintroduction of new esoteric evidence by litigants dissatisfied by the status quo. […] [34] To reiterate: departing from vertical stare decisis on the basis of new evidence is not a question of disagreement or
interpretation.For a binding precedent from a higher court to be cast aside on the basis of new evidence, the new evidence must “fundamentally shif[t]”how jurists understand the legal question at issue. It is not enough to find that an alternate perspective on existing evidence might changehow jurists would answer the same legal question. [11] In this case, the legal issue was decided by this Court in 2005 in R. v. Petit, 2005 QCCA 687, which held, in dismissing theappeal, that subsection 252(2) of the Cr.
C. authorizes a short delay in administering the test by means of an ASD and wrote as followsat para. 19: […] The detention was therefore less than ten minutes long, since the device arrived at 2:54 a.m. In the present case, such a delay doesnot constitute an unacceptable violation of the appellant’s rights, as the Supreme Court has ruled that a short and inevitable delay of 15minutes is justifiable. [12] In dealing with the respondent’s appeal, the Superior Court had to apply Petit, whether or not it agreed with the conclusion.Instead, it sought inspiration from the Court of Appeal for Ontario.
But, in my view, if the rule of stare decisis does not prohibit a judgefrom saying why he or she believes that a binding decision is wrong and should not be followed, he or she cannot refuse to apply it. Inthis case, Petit is not mentioned in the Court’s decision. On appeal, the appellant argues that the rule of stare decisis has been breached. [13] The appellant is right. The decision in Petit seals the fate of the appeal, but I will go one step further since, in my view, the meritsof Petit can be called into question, which, as I will explain below, raises the difficult question of horizontal stare decisis.
The Context [14] For the purposes of this appeal, there is no need to provide a detailed account of the facts. It is sufficient to recall that, followinginformation broadcast over the police radio, a patrolling officer who was working alone stopped the respondent who was driving hisvehicle on a public road. It was 3:37 a.m. One minute later, at 3:38 a.m., two other patrolling officers arrived on the scene. Among thethree police officers, Officer Trudelle went to the driver’s door to check the driver’s condition.
He immediately noticed a smell ofalcohol coming from the respondent’s mouth and his red eyes and ordered him to get out of his vehicle and to throw away the chewinggum that he had in his mouth. [15] At 3:40 a.m., Officer Trudelle explained his intention to have him submit to a screening test by means of an ASD as soon as adevice was brought to him, and provided him with explanations in this regard. The device arrived on the scene at about 3:50 a.m., andthe demand was made. Ten minutes then went by, during which time four unsuccessful attempts resulted in the respondent’s arrest forrefusal to comply.
The police officer informed him of his right to retain and instruct counsel. [16] It has been established that the respondent was cooperative, that he had a cell phone with him, and that he knew a lawyer’spersonal phone number. Furthermore, it is not disputed that Officer Trudelle did not concern himself as to whether the respondent had ameans of communication to call a lawyer and that, for security reasons, he would not have allowed him to do so while waiting for theASD. [17] This led to the two
summary conviction charges. The first count charged him with operating his motor vehicle while his abilityto operate the vehicle was impaired by alcohol or a drug (paragraph 253(1)(
a) of the Cr. C.). The second count charged him with failingor refusing, without reasonable excuse, to comply with the demand made to him by the police officer (subsection 254(5) of the Cr. C.).The trial proceeded before the Municipal Court of Montreal. [18] A voir dire was held as the respondent claimed that the police officers had infringed his constitutional rights to be informed ofand to exercise his right to retain and instruct counsel under paragraphs 10(
a) and 10(
b) of the Charter and that the demand made wasunlawful. [19] With respect to the legality of the demand, the trial judge noted the obvious presence of reasonable suspicion and dismissed theargument. With respect to the alleged infringements, the judge referred to R. v. Petit, 2005 QCCA 687, which authorizes a short waitingperiod to obtain an ASD. He added that the respondent could not communicate in confidence with counsel under the circumstances of thestopping of the vehicle: C.M. Montreal, No. 110-158-052, June 18, 2014.
Accordingly, he dismissed the respondent’s claims withrespect to the infringement of his rights. [20] At the trial, the respondent was acquitted on the first count, but found guilty on the second count. The respondent offered variousexplanations for his alleged “refusal”, i.e. a reasonable excuse or a mishandling of the device and Officer Trudelle’s lack of knowledgeof how it worked. The trial judge did not accept these arguments and found the respondent guilty: 2015 QCCM 107. [21] The respondent appealed against this decision before the Superior Court.
Without wishing to be unduly simplistic with respect tothe appeal judge’s decision, his proposition, expressed following a review of the case law, was that the demand to provide a breathsample under subsection 254(2) of the Cr. C. did [TRANSLATION] “not comply with the immediacy requirement associated with its
constitutional integrity where the police officers did not have an ASD with them, and a delay became inevitable, and where during thisdelay […] the accused could have had a realistic opportunity to consult counsel”: Piazza v. R., 2016 QCCS 1622, para. 44. The Issues on Appeal [22] Two legal issues were raised in the application for leave to appeal and were allowed by a judge of this Court: 2016 QCCA 592. Irephrase them liberally: 1) Does the paragraph 10(
b) constitutional right apply under the circumstances? 2) Did the appeal judge err in failing to conduct the analysis required under subsection 24(2) of the Charter? [23] The appellant is silent with respect to the second question, and, for reasons that will become obvious on reading this decision,subsection 24(2) does not apply in this case. As I will explain, the constitutional right guaranteed by paragraph 10(
b) of the Charter doesnot apply under the circumstances because it was suspended after the stopping, the
summary investigation and the demand to provide abreath sample at that time. Analysis The Supreme Court, the Right to Counsel and
Section 254 of the Cr. C. [24] The only issue is therefore whether the police officers infringed the right to retain and instruct counsel under paragraph 10(
b) ofthe Charter, which protects any person who has been detained or arrested. It involves the tension between the right to counsel and thedemand that a breath sample be provided forthwith: R. v. George, para. 1 (Ont. C.A.). In R. v. Quansah, 2012 ONCA123, the Court wrote at para. 14: “we are yet again asked to consider what the ′forthwith′ requirement in s. 254(2) means”. Yet, theSupreme Court has ruled on this matter on a number of occasions.
Obviously, the situation does not seem clear. [25] The appellant invites the Court to take a position on the relevance of the exercise of the right to counsel when a motorist isstopped and the decision made by the police officer to demand that he provide forthwith the breath sample that he considers necessary toconduct a proper analysis by means of an approved screening device under subsection 254(2) of the Cr. C. [26] Yet, the Supreme Court resolved the issue in 1988. A free and democratic society is justified in suspending the constitutionalright under paragraph 10(
b) of the Charter where a police officer makes a demand to a motorist to provide a breath sample in an ASD.Absent a new constitutional challenge, this is the starting point. [27] Two dimensions underlying the justification are identified. First, the time it takes to administer the test is minimal, it is done atthe scene and it is therefore, by definition, incompatible with the retention and instruction of counsel.
The provision requires immediateaction as soon as the police officer suspects the presence of alcohol, and immediate compliance by the driver when the demand is made.This step then is important in detecting motorists who operate vehicles after consuming more alcohol than what the law allows.Screening by means of an ASD is only one method among others, but an effective method, to help a police officer to be satisfied thatthere were reasonable grounds to believe that the driver has exceeded the permitted level of alcohol consumption, since physicalsymptoms of the impairment of a person’s ability to operate a vehicle do not always reflect one’s actual consumption of alcohol.
It isbelieved that an increase in the risk of detection deters motorists from driving after having had too much to drink. [28] A driver who has been subjected to detection is then brought to the police station, this time for a breathalyzer test, the results ofwhich may be conclusive and, if so, will be used as evidence to establish a blood-alcohol level exceeding the legal limit. [29] Problems have arisen because delays are sometimes, if not always, necessary between the time when the demand is made and thetime when the driver can comply. Many situations have been examined in the decisions of the Supreme Court.
There was the case wherethe delay was due to the fact that the police officer knew that if he did not wait for a while the test would not be reliable. Then there wasthe case where the police officer, not wanting to take a chance and obtain an unreliable test, waited for a while before administering it.The Court also considered the case where delays are caused by the fact that the police officer did not have the device with him or her andtherefore decided to go to the police station with the motorist.
Finally, the Court dealt with the delay that occurs when a motorist refusesto comply and is taken to the police station where, after having spoken to counsel, he or she agrees to comply with the demand. [30] It follows from all of these decisions that immediacy does not mean instantaneity, and that is understandable. After all, although,as a rule, all of this is done rapidly, it is necessary to prepare the ASD and explain the procedure to the driver before he or she complies.These delays are authorized by the statutory provision.
But how long can the waiting period last, and what effect does this have on thescreening procedure? [31] I should point out that the constitutionality of the scheme itself is not at issue, i.e. no one is asking the Court to determinewhether the scheme established by the current susbsection 254(2) of the Cr. C. is constitutional. The Thomsen Decision [32] In R. v.
Thomsen, (SCC), [1988] 1 S.C.R. 640, the issue was whether a person to whom a demand is made toprovide a breath sample for an ASD must be informed of his or her right to retain and instruct counsel, whether he or she may exercisethat right before complying with the demand and, if not, whether the provision is a reasonable limit within the meaning of
section 1. LeDain J. wrote as follows: The general issue raised by this appeal is whether a person to whom a demand was made by a police officer, pursuant to the former s.
234.1(1) of the Criminal Code, to accompany him to a police car and to provide a sample of breath for a roadside screening device, had,before responding to such demand, the right, guaranteed by s. 10(
b) of the Canadian Charter of Rights and Freedoms, to retain andinstruct counsel without delay and to be informed of that right. That issue turns on two questions: (
a) whether the s. 234.1(1) demandresulted in a detention within the meaning of s. 10 of the Charter; and (
b) if so, whether the right to retain and instruct counsel withoutdelay and to be informed of that right was subject, in the case of a s. 234.1(1) demand, to a reasonable limit prescribed by law that isdemonstrably justified in a free and democratic society within the meaning of s. 1 of the Charter. [Emphasis added.] [33] Here is the wording of the provision at issue in this 1988 case: 234.1
(1) L’agent de la paix qui a des raisonsde soupçonner la présence d’alcool dans lesang du conducteur d’un véhicule à moteurou de celui qui en a la garde à l’arrêt, peutlui demander de lui soumettre sur-le-champ tout échantillon d’haleine qu'il estimenécessaire pour procéder à une analyseconvenable au moyen d’un alcooltestapprouvé et de le suivre, si nécessaire, pourpermettre de prélever cet échantillon. [Emphasis added.] 234.1
(1) Where a peace officer reasonablysuspects that a person who is driving a motorvehicle or who has the care or control of amotor vehicle, whether it is in motion or not,has alcohol in his body, he may, by demandmade to that person, require him to provideforthwith such a sample of his breath as in theopinion of the peace officer is necessary toenable a proper analysis of his breath to be madeby means of an approved road-side screeningdevice and, where necessary, to accompany thepeace officer for the purpose of enabling such asample of his breath to be taken. [34] Relying on R. v.
Therens, (SCC), [1985] 1 S.C.R. 613, Le Dain J. found, first, that the person to whom thisdemand is made is detained, and that the person detained may reasonably need to retain and instruct counsel. The person thus has theright to retain and instruct counsel and to be informed of that right. At pages 649 and 650, he wrote: In my opinion the s. 234.1(1) demand by the police officer to the appellant to accompany him to his car and to provide a sample ofbreath into a roadside screening device fell within the above criteria.
The demand by which the officer assumed control over themovement of the appellant was one which might have significant legal consequence because, although the evidence provided by theroadside screening device could not be introduced against the appellant, it might provide the basis for a s. 235(1) breathalyzer demand.For this reason, and given the criminal liability under s. 234.1(2) for refusal, without reasonable excuse, to comply with the demand, thesituation was one in which a person might reasonably require the assistance of counsel.
The criminal liability for refusal also constitutedthe necessary compulsion or coercion to make the restraint of liberty a detention. The difference in duration of the restraint of libertyresulting from a s. 234.1(1) demand and that resulting from a s. 235(1) demand is not such as to prevent the former from constituting adetention within the meaning of s. 10 of the Charter. For these reasons I am of the opinion that as a result of the s. 234.1(1) demand theappellant was detained within the meaning of s. 10 of the Charter.
Thus the appellant had the right, upon being detained by the s. 234.1(1) demand and before responding to that demand, to retain andinstruct counsel without delay and to be informed of that right, and there was an infringement of it, unless the right is subject, in the caseof a s. 234.1(1) demand, to a reasonable limit prescribed by law that is demonstrably justified in a free and democratic society, within themeaning of s. 1 of the Charter.
I turn to that question now. [Emphasis added.] [35] Le Dain J. then explained that, given the circumstances of roadside stops, the suspension of that right is justified by the statutoryprovision, mainly because the test is supposed to be a quick process, carried out at the scene, i.e. by the roadside. In fact, the Englishversion uses the word “roadside”.
At page 653, he writes: A s. 234.1(1) roadside screening device test is to be administered at roadside, at such time and place as the motorist is stopped, and asquickly as possible, having regard to the outside operating limit of two hours for the breathalyzer test which it may be found to benecessary to administer pursuant to s. 235(1) of the Code. [Emphasis added.] [36] At this stage, this quick test is desirable to increase the rate of detection of cases of driving while one’s ability to operate thevehicle is impaired by alcohol, and the retention and instruction of counsel can be made at the next stage.
At page 655, Le Dain J. writes: The important role played by roadside breath testing is not only to increase the detection of impaired driving, but to increase theperceived risk of its detection, which is essential to its effective deterrence. In my opinion the importance of this role makes thenecessary limitation on the right to retain and instruct counsel at the roadside testing stage a reasonable one that is demonstrably justifiedin a free and democratic society, having regard to the fact that the right to counsel will be available, if necessary, at the more seriousbreathalyzer stage. [37] In
summary, paragraphs 10(
a) and (
b) of the Charter are suspended by a rule of law at the ASD stage, and this is justified on two
grounds: detention is necessarily of short duration, and it is linked to the achievement of an important social objective, the quickdetection of drivers whose ability to operate a vehicle may be impaired by alcohol. [38] The subsequent decisions of the Supreme Court have been consistent. The suspension of the constitutional right and itsjustification in a free and democratic society are settled matters.
What is discussed in these decisions, however, is how to defineimmediacy during the initial contact with police officers, one of the factors that underlie the justification for the suspension of that right.What is a brief detention within the meaning of subsection 254(2) of the Cr. C. and as described by Le Dain J.? In Thomsen, the policeofficer was carrying out spot checks and was equipped with an ASD, but little is known about the delays in question. [39] An amendment to subsection 254(2) of the Criminal Code allowed litigants to raise new arguments.
The ASD is no longer ameans of detection limited to operators of motor vehicles. Parliament extended the use of this screening test to other situations: cases of“care or control of a motor vehicle”, and it now extends to operators of vessels or aircrafts. Parliament has thus eliminated the word“roadside” from the English version, since it no longer had any meaning with respect to a vessel or an aircraft. In the French version, theword “sur-le-champ” was replaced by “immédiatement”. The Grant Decision [40] This new wording was in force when the facts in R. v. Grant, (SCC), [1991] 3 S.C.R. 139, occurred.
Section 238of the Cr. C. read as follows: 238
(2) L’agent de la paix qui a des raisonsde soupçonner la présence d’alcool dans lecorps de la personne qui conduit un véhiculeà moteur, un bateau ou un aéronef, ou aideà conduire un aéronef, ou a la garde ou lecontrôle d’un véhicule, d’un bateau oud’un aéronef, que ceux-ci soient enmouvement ou non, peut lui ordonner delui fournir, immédiatement, l’échantillond'haleine qu’il estime nécessaire pourl’analyser à l’aide d’un appareil dedétection approuvé et de le suivre, sinécessaire, pour permettre de prélever cetéchantillon. [Emphasis added. Bold added.] 238
(2) Where a peace officer reasonablysuspects that a person who is operating a motorvehicle or vessel or operating or assisting inthe operation of an aircraft or who has the careor control of a motor vehicle, vessel or aircraft,whether it is in motion or not, has alcohol in hisbody, he may, by demand made to that person,require him to provide forthwith such a sampleof breath as in the opinion of the peace officer isnecessary to enable a proper analysis of hisbreath to be made by means of an approvedscreening device and, where necessary, toaccompany the peace officer for the purpose ofenabling such a sample of his breath to be taken.
The facts in Grant are as follows. While Grant was driving his motor vehicle, a police officer suspected him of driving whiledisqualified. When he was stopped further away, Grant was outside of his vehicle and on the sidewalk. The police officer asked him toenter the police car for questioning. The police officer smelled alcohol on Grant’s breath, and made a demand that he submit to ascreening test by means of an ASD. The officer did not have the ASD with him and had to have one brought from the police station. Apolice officer finally arrived with the device, after a wait of some 30 minutes.
Grant refused to comply with the demand. He was chargedwith refusing to comply with the police officer’s demand. [41] In that case, Lamer J. expressed the view that the requirement to provide the required sample forthwith justified, just as Thomsenhad confirmed, a limitation of the constitutional right under these circumstances and solely during the period of detention which is, bynecessary implication, short: Grant, page 149.
He refused to make a final disposition of the matter, since no constitutional issue had beenstated. [42] Lamer J. did however find that a non-compliant demand creates no obligation to comply.
Moreover, a demand that is not made inaccordance with the requirements of the law can no longer justify the suspension of the constitutional right to retain and instruct counsel: 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.Nor is the provision available to authorize the absence of a s. 10(
b) warning upon detention, and hence it cannot constitute a limitation onthe s. 10(
b) rights to counsel "prescribed by law" which would be capable of justification under s. 1. In other words, if the actions of theofficer fell outside the purview of s. 238(2), those actions must be independently analyzed under s. 10(
b) of the Charter withoutreference to the Code provision. The judgment of this Court in Thomsen could only have application if the police action had fallen withins. 238(2). [Emphasis added.] [43] In that case, Lamer J. considered that the demand did not fall within the ambit of the
section of the Criminal Code. Because ofthe waiting period, it was more in the nature of a demand to provide a breath sample when the police officer would have received theASD, which took some thirty minutes. It was therefore not a demand “to provide forthwith”. Without specifying what would be atolerable delay, one must understand that the word “forthwith” means “immediately”. At page 150, he wrote:
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 demandauthorized by s. 238(2), that Mr. Grant provide a sample of his breath “forthwith.” Instead, the demand made was a demand that heprovide a breath sample when the required apparatus arrived, which turned out to be half an hour later. It follows that Mr.
Grant wasunder 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 suggeststhat the breath sample is to be provided immediately.
Without delving into an analysis of the exact number of minutes which may passbefore the demand for a breath sample falls outside of the term “forthwith”, I would simply observe that where, as here, the demand ismade 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.] [44] Since the offence with which Grant was charged was refusing to comply with a demand made by a police officer, this lastelement was missing, so that no obligation to comply ensued.
The “refusal” was therefore not evidence, and subsection 24(2) of theCharter did not come into play: Grant, p. 150. The Bernshaw Decision [45] A few years later, in R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, the Supreme Court was confronted with thevalidity of a breath sample taken fifteen minutes after the police officer’s demand under subsection 254(2) of the Cr. C., the wording ofwhich is almost identical to that of its predecessor, subsection 238(2) of the Cr. C., cited above.
The French version no longer refers tothe presence of alcohol “dans le corps” of the person but rather “dans l’organisme” of the person, and the provision now refers tosituations involving railway equipment.
The wording is as follows: 254(2) L’agent de la paix qui a des raisons desoupçonner la présence d’alcool dansl’organisme de la personne qui conduit unvéhicule à moteur, un bateau, un aéronef oudu matériel ferroviaire, ou aide à conduire unaéronef ou du matériel ferroviaire, ou a lagarde ou le contrôle d’un véhicule à moteur,d’un bateau, d’un aéronef, ou de matérielferroviaire, que ceux-ci soient en mouvementou non, peut lui ordonner de lui fournir,immédiatement, l’échantillon d’haleine qu’ilestime nécessaire pour l’analyser à l’aided’un appareil de détection approuvé et de lesuivre, si nécessaire, pour permettre deprélever cet échantillon 254(2) Where a peace officer reasonably suspectsthat a person who is operating a motor vehicle orvessel or operating or assisting in the operation ofan aircraft or of railway equipment or who hasthe care or control of a motor vehicle, vessel oraircraft or of railway equipment, whether it is inmotion or not, has alcohol in the person’s body,the peace officer may, by demand made to thatperson, require the person to provide forthwithsuch a sample of breath as in the opinion of thepeace officer is necessary to enable a properanalysis of the breath to be made by means of anapproved screening device and, where necessary,to accompany the peace officer for the purpose ofenabling such a sample of breath to be taken. [46] In Bernshaw, the police officers had the ASD with them and had taken a sample forthwith.
However, the manufacturer’soperation manual recommended waiting 15 to 20 minutes before administering the test, in order to eliminate the presence of alcohol inthe mouth of the person being tested. At trial, an expert explained that the recent consumption of alcohol was one of the obstacles toobtaining a reliable result. In Bernshaw’s case, the police officers did not bother to determine whether he had recently consumed alcohol. [47] One of the issues raised in that case is relevant to this case. The Court was seized with the complex issue of whether theimmediacy requirement nonetheless includes a waiting period.
The Court was split on the matter. Cory, Sopinka, L’Heureux-Dubé andGonthier JJ. each wrote separate reasons. [48] Cory J., on behalf of three judges, relying on the need to prevent drinking and driving, reiterated that the ASD is a portablescreening device designed to rapidly sort drivers in order to identify those who are probably impaired due to alcohol consumption. TheASD has the advantage of limiting the inconvenience for drivers who, if they pass the test, will undoubtedly proceed on their way. Thevery concept, according to Cory J., is a detention of brief duration.
He wrote the following at para. 23 of the decision: This Court has in fact recognized that the ALERT test must be administered immediately and that the detention under s. 254(2) isconstitutionally justifiable under s. 1 of the Charter for the very reason that the detention is of such very brief duration. [49] Also, Cory J. did not consider it necessary to reconsider the meaning of the word “forthwith”, which was clarified in Grant:Bernshaw, para. 25. He nonetheless considered whether, in certain circumstances, the definition could be enlarged. [50] Cory J. reiterated the conclusion in Thomsen.
In his view, the effectiveness of detecting drinking drivers and its deterrenteffect militate in favour of suspending the right to counsel at this stage.
At para. 26, he wrote: The right to retain counsel was incompatible both with the effective use of the ALERT device and with the purpose of demonstrating apolice 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 opportunitygranted 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 testingdevice used to protect the public. [51] Bernshaw argued for the need to wait 15 to 20 minutes in every case and that, during that time, the police officer was required toinform the driver of his or her right to retain and instruct counsel. Cory J. rejected the idea. In addition to the inconsistency of thisrequirement with the requirement that the test be administered forthwith, he considered that a prolonged detention no longer justified the
suspension of the right: Bernshaw, para. 28. He was of the view that a driver who has a level of residual mouth alcohol after the lastdrink is consumed or as a result of burping or regurgitating would likely be [TRANSLATION] “exonerated” by the breathalyzer test,since this latter test has to be preceded by a 15-minute observation period.
This flexible approach offered by a waiting period in certaincases is not acceptable, and it is preferable to impose a uniform standard for the meaning of “forthwith”: Bernshaw, para. 35. [52] Sopinka J. was of the view that immediacy allows for a certain delay; L’Heureux-Dubé J. and three other judges agreed with himon this point. Unlike Cory J., he did not consider that, as a matter of law, a “fail” result of the screening test was sufficient to constitutereasonable and probable grounds where a police officer knew that certain circumstances affect the reliability of the test.
He indicatedclearly that an acceptable waiting period does not flow from a general rule but from the circumstances of each case: Bernshaw, paras. 45and 46. He was of the view that an “unreliable” fail reading on the ASD, of which the police officer was aware, could not, in itself,constitute reasonable and probable grounds to demand that the driver submit to a breathalyzer test, i.e. the second stage, and to take thesample as evidence of the offence. In his view, by ignoring this possibility, we would be authorizing an infringement of constitutionalrights: Bernshaw, paras. 52 and 60.
Consequently, a 15-minute waiting period is acceptable where it is justified by the circumstances inorder to ensure the reliability of the test. Otherwise, the delay would be unacceptable. Sopinka J. wrote at para. 61: … if this were the situation then police officers would be faced with the dilemma whereby the test might be invalidated as unreliable ifadministered without delay, yet would also be invalidated as an unauthorized test under s. 254(2) if the police officer did wait 15minutes.
This would appear to create an intolerable situation as it would emasculate the statutory scheme in circumstances where thepolice officer knows the suspect has very recently consumed his or her last drink of liquor. In my view, this could not have been theintention of Parliament. [Emphasis added.] [53] Citing the passage of Le Dain J.’s reasons in Thomsen, and cited at para. [35] of my reasons, Sopinka J. agreed that a delay maybe necessary in order to obtain a reliable result from the ASD.
This delay allows the police officer to ready the device, to instruct thedetained person on what to do, and to take the circumstances into account, all within an overall time limit of two hours, as indicated inThomsen. To put it plainly, an implicit operational time component. At para. 64, he explained as follows: Although the above passage states that the screening test should be administered as soon as possible, the fact that one should have regardto the two-hour limit for the breathalyzer test suggests that a 15-minute delay would not offend the provision nor the scheme of s. 254 ofthe Code.
Implicit in the requirement that the sample be provided forthwith is any operational time component. The peace officer has toready the equipment and instruct the suspect on what to do. In short, the statutory provisions must allow the time required to take aproper test.
The duration of this time requirement is constrained by the fact that there is an overall time limit of two hours if the schemeis to work. [Emphasis added.] [54] Sopinka J. saw in Lamer J.’s comments in Grant, which I quote in para. [44] of my reasons, agreement with the proposition “quele policier dispose d’une certaine latitude pour faire subir le test après un certain laps de temps / that there is in fact some leeway toadminister the test after a certain period of delay”: Bernshaw, para. 66. [55] Here, I digress.
Sopinka J.’s opinion may suggest that the ASD test must be administered as soon as practicable, having regard tothe two-hour limit (as it then was) for the breathalyzer test. However, by referring to Lamer J.’s opinion in Grant, some confusion sets inwith respect to what is an acceptable delay, since Lamer J. rejected a thirty-minute delay. What, then, are the nature and the duration ofthe delay contemplated by Sopinka J.? [56] In support of his statement, Sopinka J. cited three cases. Two involve the issue of a waiting period that is justified by concernswith respect to the reliability of the test: R. v.
Wonnacott (1990), 23 M.V.R. (2d) 248 (Ont. Dist. Ct.), aff’d. (1991),(ON CA), 35 M.V.R. (2d) 226 (Ont. C.A.) (recent consumption of alcohol) and R. v. Kaczmarek (1994), (ON SC), 50M.V.R. (2d) 56 (Ont. Ct. Gen. Div.) (recent inhaling of cigarette smoke). In both cases, the delay was less than 11 minutes. [57] The third case cited by Sopinka J., R. v. Seo (1986), (ON CA), 25 C.C.C. (3d) 385 (Ont. C.A.), was renderedwell before Grant and involved a delay to have a screening device brought to the scene of the roadside stop.
Sopinka J. recalled thefinding in this case that “the test could be administered as soon as reasonably possible in the circumstances” and that “‘forthwith’ isdefined […] to mean within a reasonable time having regard to the provision and the circumstances of the case”: Bernshaw, para. 67. [58] Sopinka J. therefore accepted an
interpretation of the word “forthwith” that allows for a certain delay. However, here is what heexplained: 70 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 subsection 254(2) of theCode reads 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 addedin original.] 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. [59] Sopinka J. confined the delay to what is necessary to ensure that the ASD analysis is reliable. That, one can say, excludes the
delay noted in Seo, which is, in fact, a waiting period to obtain the device. If this latter waiting period could be justified, it wouldnecessarily be indefinite, but limited to two hours, and Sopinka J. did not need to define the delay, as he did, in circumstances where it isnecessary to obtain a reliable analysis, nor did he need to agree with Lamer J.’s opinion in Grant. [60] This somewhat disconcerting aspect of Sopinka J.’s opinion, and I say this with all due respect, continues or disappears when heagrees with the reasoning of the Court of Appeal for Ontario in R. v. Pierman; R. v.
Dewald (1994), (ON CA), 92C.C.C. (3d) 160, which is also inconsistent on the issue of a waiting period to obtain the device. [61] I will first explain my understanding of these two cases. They were heard together. The three judges of the Court of Appeal forOntario wrote reasons for the decision. Pierman was a case where the reliability of the analysis was at issue, since the police officer hadgrounds to delay the administration of the test by means of the ASD because of a recent consumption of alcohol.
But, in Dewald, thepolice officer had waited 15 minutes before taking a sample in order to comply with the theoretical waiting period prescribed by themanufacturer of the device. Having failed the test, Dewald then took the breathalyzer test, where the results showed a blood alcohol levelhigher than the prescribed limit. [62] With respect to the Dewald case, Arbour J.A. opined that a police officer cannot delay the test, except where it is justified by thefacts in order to obtain reliable results: p. 169. [63] The Court of Appeal was unanimous in Pierman.
Arbour J.A., relying on the wording of subsection 254(2) of the Cr. C. and thewords “to enable a proper analysis / qu’il estime nécessaire pour l’analyse”, explained that a police officer who has grounds to believethat the test would not be reliable is justified in waiting.
The demand complied with the requirements of the provision: In my view, a police officer cannot delay the taking of a breath sample, when acting pursuant to s. 254(2) of the Criminal Code, unlesshe or she is of the opinion that a breath sample provided immediately will not allow for a proper analysis of the breath to be made by anapproved screening device. The officer is not required to take a sample that she or he believes is not suitable for a proper analysis. Theexpression “proper analysis” incorporates an element of accuracy.
A police officer may be of the opinion that a breath sample which hasbeen recently contaminated, by cigarette smoke or by the recent consumption of alcohol, will not provide a basis for a proper analysis. Ifthere are facts which cause the officer to form the opinion that a short delay is required in order to obtain an accurate result, I think thatthe officer is acting within the scope of the
section in delaying the taking of the breath sample. [Emphasis added.] [64] According to Arbour J.A., since the additional period of detention was not authorized under subsection 254(2) of the Cr. C., theright to retain and instruct counsel was no longer suspended and its infringement resulted in the exclusion of the results of thebreathalyzer test: pp. 170 and 171. [65] Grange J.A.’s opinion was qualified. He did not dismiss the idea of a theoretical 15-minute waiting period, as required byCanadian standards.
However, even admitting that his colleague Arbour could have been right on this issue, he could not conceive thatthe evidence had to be excluded in those circumstances. On this last point, his colleague Galligan agreed with him, concluding that theadministration of justice would not be brought into disrepute by the admission of the evidence. [66] It is clear that in Dewald, Arbour J.A. declined to expand the scope of subsection 254(2) of the Cr. C. She pointed out thatParliament could have adopted wording similar to subsection 254(3) of the Cr. C., which governs the breathalyzer demand, but it did notdo so.
In this latter case, the provision allows the demand to be made and the required sample to be provided “dans les meilleurs délais /as soon as practicable”: p. 169: If, on the other hand, we were to hold that a police officer is entitled to wait 15 minutes before taking a breath sample pursuant tos. 254(2) of the Criminal Code, solely on the hypothesis that the suspect may have consumed alcohol within the previous 15 minutes, wewould be, in my view, unduly expanding the statutory basis upon which motorists may be detained without access to counsel.
It wouldhave been open for Parliament to provide a time frame within which s. 254(2) should operate, as it did, for instance, in s. 258(1)(c)(ii). Inmy opinion, it is not open to this court to expand the scope of a Charter infringement beyond what is necessary to give effect to thesection. [Emphasis added.] The Dewald Decision comply with subsection 254(2) of the Cr.
C. because of the delay, as interpreted in Bernshaw, which had been rendered by that time.However, he affirmed the decision of the majority in Dewald and held that the infringement was technical and that the police officeracted in good faith, so that the admission of the evidence had not rendered the trial unfair and would not bring the administration ofjustice into disrepute. [68] Getting back to the subject, I return to Bernshaw. As previously mentioned, Sopinka J. agreed with Arbour J.A.’s opinion.
Atparas. 72 to 74, he concluded as follows: Therefore, because in that case there was evidence that Pierman might have consumed alcohol just prior to being stopped by the police, itwas legitimate to delay the test. Whereas, in Dewald’s case, the police had no information as to when the accused last consumed alcoholand so delaying the test was not justifiable. Arbour J.A. held that the police can only detain a suspect for an extra 15 minutes where thereis some factual basis upon which to suspect that the screening device would yield an inaccurate result.
I adopt the flexible approach taken by Arbour J.A. In my view, it is in accord with the purpose of the statutory scheme and ensures that apolice officer has an honest belief based on reasonable and probable grounds prior to making a breathalyzer demand. Waiting 15 minutesis permitted under subsection 254(2) of the Code when this is in accordance with the exigencies of the use of the equipment. This applieswhen an officer is aware of the potential inaccuracy in the particular case.
Although there is no doubt that the screening test should generally be administered as quickly as possible, it would entirely defeat thepurpose of Parliament to require the police to administer the screening test immediately in circumstances where the results would berendered totally unreliable and flawed. The flexible approach strikes the proper balance between Parliament’s objective in combattingthe evils of drinking and driving, on the one hand, and the rights of citizens to be free from unreasonable search and seizure. I do notbelieve that the matter is advanced by quoting statistics.
Although we all agree that Parliament has every reason to vigorously pursue theobjective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacyon the basis of faulty tests. I do not believe that this is what Parliament intended in enacting s. 254 of the Criminal Code. [Emphasis added.] [69] In my view, Sopinka J.’s proposition means that the desired flexibility is strictly framed by the wording of the provision. Theright to counsel is nonetheless suspended during the delay.
Sopinka J. wrote at para. 75: I note that a potential problem which may arise from delaying the screening test, and which was discussed by my colleague in his reasonsas well as by Arbour J.A., is whether the suspect is entitled to access to counsel when detained for a longer period. In the Thomsen case,it was held that the roadside screening procedure was a reasonable limit on one’s right to counsel under s. 10(
b) of the Charter. In myview, a delay in the order of 15 minutes in order to obtain a proper sample of breath is not inconsistent with Thomsen. It would indeed bestrange for us to hold that the rights of some persons under one provision of the Charter (s. 8) must be sacrificed in order to preserve thelimit on their rights under another provision (s. 10(b)). [Emphasis added.] [70] What I take from this is that the right to counsel is suspended while the test under subsection 254(2) of the Cr.
C. is beingadministered, and that the test can only be delayed to ensure its reliability when the police officer knows that there are grounds forbelieving that that would not be the case. This is consistent with the balance to be maintained between the interests of the State and theprotection of the right to counsel, and also with the wording of the Act that provides for the sample needed “to enable a proper analysis /qu’il estime nécessaire pour l’analys[e]”. The Orbanski Decision [71] Moreover, on the issue of the continued suspension of the right to counsel, the decision in R. v. Orbanski; R. v.
Elias, 2005 SCC37 [2005] 2 S.C.R. 3, should also be considered. In that case, the Supreme Court confirmed the limit on the constitutional rightguaranteed under paragraph 10(
b) of the Charter: In my view, it logically follows from Thomsen that a limit on the right to counsel is also prescribed during the roadside screeningtechniques utilized in these cases. If a limit on the right to counsel is prescribed during compliance with a s. 254(2) demand for a samplefor analysis in the roadside screening device, then the limit must necessarily be prescribed during the screening measures preceding thedemand, conducted with the very objective of determining whether there is a reasonable suspicion justifying the demand.
Similarly, thelimit must necessarily be prescribed during the screening measure that is the functional equivalent to the roadside screening device,namely, a technique conducted with the very objective of determining whether there are reasonable and probable grounds justifying a s.254(3) demand for a breath or blood sample. [Emphasis added.] [72] By this decision, the Supreme Court confirmed that a period is created during which the suspension of the right is justified, i.e.from the moment when the police officer begins his or her investigation to form reasonable suspicion until he or she arrests the personwho, until then, is merely detained.
The Woods Decision [73] The Supreme Court once again reconsidered the immediacy of the demand and the response required under subsection 254(2) ofthe Cr. C. In R. v. Woods, 2005 SCC 42 [2005] 2 S.C.R. 205, Fish J. stated that the case in fact raises the meaning of the words“fournir [...] immédiatement / to provide forthwith” in subsection 254(2) of the Cr. C. [74] In that case, Woods refused to take the ASD test at the roadside location where he had been stopped. Arrested and taken to thepolice station, he consulted counsel. More than an hour after he was stopped, he changed his mind.
The police officers again made ademand that he provide an ASD breath sample. Woods failed the test. On the sole basis of this failure, he was ordered to provide abreathalyzer sample. His conviction for having operated a motor vehicle with a blood alcohol ratio exceeding the legal limit was basedon the breathalyzer results. [75] As Fish J. pointed out, the only issue in the appeal was whether the ASD breath sample was legally obtained, i.e. in compliancewith subsection 254(2) of the Cr.
C., since only results legally obtained provide reasonable grounds for the second demand: Woods,paras. 8 and 9. “If it was”, he wrote, “the breathalyzer evidence was properly admitted and the respondent’s conviction was sound. If not,the conviction cannot stand”: Woods, para. 8. [76] Fish J. pointed out the two ways of obtaining breath samples: pursuant to a valid demand under the provision of the Criminal
Code, or if it is provided voluntarily. It was common ground that the sample had not been provided voluntarily: Woods, paras. 9 and 27. [77] What we retain from this decision is that subsection 254(2) of the Cr. C. imposes a double requirement of immediacy, oneimplicit, the other explicit. At para. 14 of the decision, Fish J. wrote: … This immediacy requirement is implicit as regards the police demand for a breath sample, and explicit as to the mandatory response:the driver must provide a breath sample “forthwith”. [78] He pointed out that the scheme set up by subsection 254(2) of the Cr.
C. authorizes the screening of drivers who have consumedalcohol, in violation of Charter rights. But for the immediacy requirement, the provision would be unconstitutional: Woods, paras. 15and 29. Fish J. wrote it clearly in this latter paragraph: The “forthwith” requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issuesof unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10 of theCharter.
In interpreting the “forthwith” requirement, this Court must bear in mind not only Parliament’s choice of language, but alsoParliament’s intention to strike a balance in the Code between the public interest in eradicating driver impairment and the need tosafeguard individual Charter rights. [79] For Fish J., at paras. 43 and 44, citing Bernshaw in support, the delay is only justified in unusual circumstances: It is true, as I mentioned earlier, that “forthwith”, in the context of s. 254(2) of the Criminal Code, may in unusual circumstances begiven a more flexible
interpretation than its ordinary meaning strictly suggests. For example, a brief and unavoidable delay of 15 minutescan thus be justified when this is in accordance with the exigencies of the use of the equipment: see Bernshaw. The “forthwith” requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and an immediateresponse by the person to whom that demand is addressed.
To accept as compliance “forthwith” the furnishing of a breath sample morethan an hour after being arrested for having failed to comply is in my view a semantic stretch beyond literal bounds and constitutionallimits. [80] I am satisfied from the reference to Bernshaw that Fish J. did not intend to expand the possibility of a waiting period beyond whatis necessary to administer a reliable test if the police officer is aware of circumstances that force him or her to wait.
It is equally clear thatthe driver must immediately respond and that consulting counsel cannot justify a prolonged waiting period before responding norlegitimize a demand after consultation of counsel. [81] Furthermore, Fish J.’s reference to R. v. Cote (1992), (ON CA), 70 C.C.C. (3d) 280 (Ont. C.A.), to illustratehis reasoning is just as convincing in this regard. The case involved a delay of less than ten minutes because the police officers, nothaving a device with them, had to take the suspect to the police station to administer the screening test.
Fish J. quoted the followingpassage from Arbour J.A. and stressed that: 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.] [Emphasis in original.] [82] That statement illustrates the absurdity of the situation that developed in that case.
By taking Cote to the police station, the policeofficers brushed aside one of the considerations that prevents a driver from having access to counsel, which is somewhat strange andeliminates one of the reasons for requiring that the demand be made forthwith. [83] In short, I gather from the case law of the Supreme Court that, in spite of the opportunities that it had, the Court declined to grantthe word “forthwith” a greater duration than what is necessary to obtain a reliable test result if the facts lead the police officer to believethat 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 ofsubsection 254(2) of the 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 delay of 16 minutes was reasonable for the ASD to “warm up” and become operational. [84] The Supreme Court rejected the idea that another type of waiting period might be acceptable, such as a theoretical delay of 15minutes or a short delay to bring the person stopped in contact with the ASD. I agree with this aspect of R. v.
George: paras. 47 to 50. [85] The consequence of not complying with the requirements of the subsection also suffers from a certain degree of ambiguity. Forexample, noting that the demand was unlawful and that the ASD reading was the only element that provided reasonable grounds todemand that the accused take a breathalyzer test, Fish J., in Woods, concluded that the results were inadmissible, as the Court of Appealfor Manitoba had done before him, without mentioning subsection 24(2) of the Charter. This is in contrast with Sopinka J.’s approach inDewald, which I mentioned earlier.
In that case, in spite of a delay in administering the screening test, both the Court of Appeal and theSupreme Court found, under subsection 24(2) of the Charter, that the infringement was harmless and made in good faith. They admittedthe breathalyzer results in evidence. [86] However, in the case before us, if the demand is found to be non-compliant, the respondent had no obligation to comply and, assuch, no evidence was obtained: Grant, p. 150. Acquittal follows.
The Appeal Courts [87] Courts are always struggling with the application of this provision. Can the administration of the ASD test wait “a bit” or not? [88] The decision in R. v. George (2004), (ON CA), 187 C.C.C. (3d) 289 (Ont. C.A.), on which the appeal judge ofthe Superior Court based his decision in part, was rendered before Woods; however, the Woods case, which was heard one year afterGeorge, did not mention that decision. [89] The facts in George are similar, but not identical, to the facts in the case before us.
In the early hours, the motor vehicle driven byGeorge was pulled over and the police officer made a demand that he submit to a screening test. Since the police officer did not have thescreening device with him, it took 16 minutes before one was brought and two minutes more to administer the test. Before administeringthe test, the police officer noticed other signs associated with alcohol intoxication.
After the ASD registered a failure, the results of thebreathalyzer indicated a blood alcohol level that exceeded the legal limit. [90] George had a cell phone, he knew his lawyer’s phone number, he was cooperative, and he was free to move about while waitingfor the device. The police officer did not inform him of his constitutional right, but he testified that if George had asked to contact hislawyer, he would have allowed him to do so. [91] The trial judge found that there had been a violation of paragraph 10(
b) of the Charter, and he then excluded the evidence. Thesummary conviction appeal court judge dismissed the appeal, because the evidence showed that he had a realistic opportunity to consultcounsel during the waiting period. The Court of Appeal dismissed the appeal.
Referring to its decisions in Cote and Latour, it found that“where an officer is not in a position to require that a breath sample be provided by the detainee before there is any realistic opportunityto consult counsel, the officer’s demand is not a demand made under s. 254(2)”: para. 51. [92] The decision in George, however, adds that if the demand is non-compliant, in particular where the police officer does not havethe device with him or her, the availability of a telephone becomes a relevant factor in determining whether there was a realisticopportunity to consult counsel: para. 55.
It then distinguished the brief decision in R. v. Sadlon, [1992] O.J. No. 912, where the court hadsummarily dismissed the appeal, indicating that the availability of a telephone was not relevant where the demand was made undersubsection 254(2) of the Cr. C.: paras. 53 and 54. The Court reiterated what it had said in Cote, that the possibility of exercising the rightto counsel before the screening test was administered largely undermined the reasoning that justified the suspension of that right at thattime, as had been decided in Thomsen. [93] The reasoning in George was applied in R. v.
Najm (2006), (ON CA), 142 C.R.R. (2d) 189 (Ont. C.A.), acase where there was a delay of six minutes before the ASD arrived on the scene. As in this case, the matter had received a differentresponse from the trial judge and from the appeal judge of the Superior Court. The Court of Appeal restored the decision to acquit, eventhough “the trial judge’s finding may have been generous in favour of the appellant”, but the judge of the Superior Court “was notentitled to, in effect, retry the case” in the absence of error. [94] In my view, the Court of Appeal for Ontario went one step further in R. v.
Quansah, 2012 ONCA 123. In that case, after stoppingQuansah at 3:05 a.m., the police officer ordered him to get out of his vehicle and handcuffed him. The police officer noted that Quansahwas unsteady on his feet, that there was an odour of alcohol on his breath, and that his eyes were red, glossy and unfocused. He formed areasonable suspicion at this time. However, until 3:17 a.m., he conducted a limited search, questioned Quansah about his alcoholconsumption, and, Quansah having told the police officer that there was another person in his car, he went to check.
The two thenwalked toward the second patrol car which had arrived on the scene. At 3:17 a.m., the demand was made. [95] The trial judge had determined that the word “forthwith” meant “within a reasonable time”. The
summary conviction appealjudge, citing Woods, decided instead that “forthwith” meant “immediately”: paras. 11 and 12. [96] In the final analysis, the Court of Appeal suggests expanding the notion of immediacy to include some flexibility that allows fora delay that varies according to the circumstances. Moreover, the Court considers that the provision does not require that the policeofficer’s demand be made forthwith, but that this obligation applies only to the person who receives the demand: para. 25.
The Court isof the view that Woods determines that unusual circumstances may extend the delay before the demand is made, make it more flexible:para. 26. According to the Court, Bernshaw accepts that a delay of 15 minutes to obtain a reliable sample is acceptable, which would bethe equivalent of a short delay reasonably necessary for the police officer to do the job required by subsection 254(2) of the Cr. C., forexample to handle the equipment: paras. 31 and 32, citing para. 43 of Woods.
Arguably, the 12-minute interaction between Quansah andthe police officer, after the officer had formed the necessary suspicion but before he made the demand, is part of the delay that isinherent in implementing the provision. I note that from a reading of Quansah, the reader does not know if the police officer had theASD with him, at the scene of the roadside stop, at the time he made the demand. [97] In Quansah, the Court thus reconsidered the notion of “a realistic opportunity to consult counsel”.
In my view, the Courtexplained that this “realistic opportunity to consult counsel” is merely the illustration of a delay that is obviously too long, but that is notthe only factor that distinguishes a legal demand from an illegal demand: paras. 34 and 35. More specifically, it is not because there wasnever any opportunity that the delay is acceptable: para. 42.
However, I doubt that the Court wanted to revive a right to retain andinstruct counsel that has been suspended by the Supreme Court, thereby going against, it seems to me, vertical stare decisis. [98] The Court concludes by formulating five propositions with respect to the immediacy requirement: (1) the immediacy requirementis to be interpreted contextually, bearing in mind that Parliament is seeking to strike a balance between crime suppression andconstitutional rights; (2) the delay commences the moment the police officer forms the suspicion referred to in subsection 254(2) of theCr.
C.; (3) the time needed between the moment the police officer forms the suspicion necessary to make the demand and the responsemust be no more than what is necessary to enable the police officer to discharge his or her duty; (4) all the circumstances must be takeninto account, including the delay needed to have the device brought to the scene when the police officer who makes the demand does nothave it with him or her, the delay needed to obtain a reliable result, or the delay required due to safety concerns; and (5) if it is possible
for the detainee to exercise his or her right because of the delay, the demand does not meet the immediacy requirement. With respect, Ido not agree with all of these propositions. [99] I agree with the first proposition, which basically reiterates what was said by the Supreme Court. As I have attempted todemonstrate, I believe that the balance is strictly circumscribed by a delay that is precise and well defined by the various decisions of theSupreme Court. [100] I also agree with the second proposition, that the delay in making the demand promptly commences at the time the suspicion isformed.
This follows from the wording of subsection 254(2) of the Cr. C. It is not at all surprising that the police officer does not make ademand if he or she has not formed the required suspicion. However, Woods requires that the demand be made as of that time. If need be,the police officer may explain the delay in forming the required suspicion, or the explanation can come from the circumstancesthemselves. The police officer cannot, however, extend the delay, and consequently the period of infringement of a constitutional right,by applying an unreasonably high standard in this respect: by analogy, see R. v.
Feeney, (SCC), [1997] 2 S.C.R. 13,para. 34. [101] With respect to the third proposition, the wording is too broad. Allowing a police officer to wait beyond what is necessary tohandle the device, provide explanations or obtain a reliable sample would be reintroducing the flexibility of making the demand “as soonas practicable” or “dans les meilleurs délais”, an
interpretation that was rejected by Arbour J.A. in Dewald, an opinion affirmed by theSupreme Court. [102] A similar reasoning was accepted by this Court in R. v. Petit, 2005 QCCA 687, a decision rendered in the wake of Orbanski andWoods. At para. 19 of Petit, the Court states the following: [19] Even accepting for the sake of argument that the detention began when Officer Sauriol called to request an ASD, the detention wasstill less than ten minutes long.
Indeed, although the officers arrived at 2:41 a.m., the evidence shows that they were first occupied withverifying whether there were any injured and with securing the site and subsequently with identifying the drivers and witnesses andreconstructing events by posing various questions. This took a few minutes, and it was only afterwards that the ASD was requested. Thedetention was therefore less than ten minutes long, since the device arrived at 2:54 a.m.
In the present case, such a delay does notconstitute a[n] unacceptable violation of the appellant’s rights, as the Supreme Court has ruled that a short and inevitable delay of 15minutes is justifiable. [103] More recently, in R. v. Moussavi, 2016 ONCA 924, the Court of Appeal for Ontario rejected the argument that a delay of 11minutes between forming the grounds for the demand and making the demand for an ASD test is unreasonable.
The police officer whoarrived on the scene of a serious motor vehicle accident, where there was a great deal of debris on the highway, would have had safetyconcerns with respect to the scene of the accident and motor vehicle traffic. It is not clear what steps he took to ensure the safety of thescene nor how, in 11 minutes, he was able to do anything in this regard. Nothing is said about the ASD, and we must assume that thepolice officer had the device with him.
In short, we must assume that the police officer made the demand “as soon as practicable”, aninterpretation, in my view, rejected by the Supreme Court. [104] Finally, with all due respect, I do not believe that the fourth and the fifth propositions in Quansah comply with the requirementsof subsection 254(2) of the Cr.
C., except with respect to the delays associated with the preparation of the device and the delay needed toensure the reliability of the test. [105] Hence, the balance between administering this screening method and the suspension of constitutional rights is broken if the delayresults from the State’s inability to allow the driver to whom a demand is made to respond forthwith. [106] Allowing the demand to be postponed until such time as it is possible or practicable to administer the test clashes head-on, in myview, with the principles established by the Supreme Court.
Even if I wished to do so, as indicated in my introductory note, I cannotrefuse to apply the decisions of the Supreme Court: R. v. Comeau, 2018 SCC 15, para. 26; Canada (Attorney General) v.
Bedford, 2013SCC 72 [2013] 3 S.C.R. 1101, para. 38. [107] The conditions or the changes that would allow me to depart from a precedent are perhaps present, whether they are called“extraordinary exceptions”, as suggested in Comeau, at para. 26, or significant developments in the law, or if there is a change in thecircumstances or evidence that fundamentally changes the parameters of the debate, as suggested in Canada (Attorney General) v.Bedford, 2013 SCC 72 [2013] 3 S.C.R. 1101, at paras. 42 and 44, and Carter v. Canada (Attorney General), 2015 SCC 5[2015] 1 S.C.R. 331, at para. 44.
It is, however, for the parties to raise these changes and, if necessary, provide the evidence.For example, there have been factual changes since the Thomsen decision, changes that indicate that impaired driving reported [by]police is at its lowest level since 1986: R. v. Lopez, 2017 QCCS 1941, citing Samuel PERREAULT, “Impaired driving in Canada, 2015”,
(2016) Juristat, Vol. 36, No. 1, Catalogue no. 85-002-X, Statistics Canada.
This undoubtedly shows that there is room for debate,although I have no wish, at this stage, to imply that this change is sufficient to reconsider the basis of the suspension of the constitutionalright in question. [108] Be that as it may, we cannot ignore the fact that the wording of the authorized delay, i.e. “forthwith”, has never been modified, inspite of the numerous opportunities that Parliament has had, as demonstrated in the amendments described above. [109] Authorizing a delay to bring the device to the scene does not allow us, either, 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 the 30-minute delay rejected in Grant, the 15-minute delay rejected in Bernshaw, and the 10-minute delay in Petit? There is no answer to thesequestions that is sufficiently rational to relate to the statutory provision that suspends the constitutional right in question. [110] I agree with Cory J., who, at para. 35 of Bernshaw, recommended a uniform standard for interpreting the word “forthwith”. [111] A few words on the issue of opportunity to consult counsel.
I do not consider it to be a real problem, since the right is suspended
during the investigation preceding the demand under subsection 254(2) of the Cr. C. as well as for the purposes of the ASD test.Moreover, offering the possibility of consulting counsel in the interval, if there is a delay, would not only be difficult to apply, but wouldbe of no use, as illustrated in Woods. [112] As for the difficulties that might arise, it seems to me that allowing consultation with counsel, as suggested by the respondent, isactually highly problematic.
I find the appellant’s observations, at para. 91 of its statement, particularly interesting: [TRANSLATION] [91] In addition to the drawbacks mentioned in this decision, one can ask what would have happened if the respondent did not have alawyer; would police officers henceforth be required to have a directory of lawyers in their patrol car to deal with such an eventuality?What would have happened if the respondent had not been able to reach a lawyer, or again, where the respondent leaves a message onthe voicemail, how long should the police officer have to wait?
If the call is not returned, is the police officer required to refer therespondent to the free duty counsel service? And what about those situations where there is no network coverage? Would personsdetained in urban areas have more rights than a person stopped in a rural area? Does this not become inconsistent with Parliament’sobjective, i.e. the introduction of a simple screening procedure that does not entail any criminal sanction?
One can easily assume that aroadside intervention does not involve the same amenities as a police station with respect to one’s right to retain and instruct counsel. [113] One could add to this that once the consultation has begun, can the police officer interrupt it? How much time is to be allowed? Isexercising the constitutional right to be left to the more affluent who have cell phones or to drivers who have had the good idea to chargetheir battery?
Would the State be required to offer the means to do so? [114] By opting to allow a driver to consult counsel if there is a delay, it would be surprising if the State did not have, at the same time,the duty to facilitate contact with counsel: R. v. Brydges, (SCC), [1990] 1 S.C.R. 190; R. v. Sinclair, 2010 SCC 35[2010] 2 S.C.R. 310. The decision in George seems to suggest as much: R. v. George (2004), (ON CA), 187C.C.C. (3d) 289, para. 42 (Ont. C.A.). Or again, must the State give up the benefits of this method of investigation if it is unable toprovide the opportunity to consult counsel?
See, in this regard, by analogy, R. v. Prosper, (SCC), [1994] 3 S.C.R. 236,266. [115] I agree with the reasoning in R. v. Tornsey, 2007 ONCA 67, referring to R. v. Latour (1997), (ON CA), 34O.R. (3d) 150 (Ont. C.A.), where the Court indicated that it is not all to have the opportunity to call counsel during the delay, one mustbe able to consult with counsel. It considered that the few minutes it took in that case might have been enough for the driver to callcounsel, but not enough to consult with him or her.
That case did not, however, answer the core issue of when the opportunity can“commence”. [116] And there is more. As I have stated, affording the opportunity to consult counsel would be pointless. Logically, would consultingwith counsel validate a demand that would otherwise be illegal? Counsel could then only say to his or her client: “You should not havecalled me.” A constitutional trap? [117] More fundamentally, Woods shows clearly that consulting with counsel does not create a new start.
Hence, the “consultation”with counsel does not affect the illegality of the demand, since it is the delay itself that creates the illegality, and the driver is not obligedto comply with a late demand. [118] In short, I reject the idea that the suspension of the right to counsel terminates as a result of circumstances or that affording theopportunity to consult allows the State all the time it wishes to have the driver blow in the ASD. [119] I have no difficulty in finding that the immediacy requirement is not met if the delay is due to the State’s inability to afford thedriver to whom the demand is made the opportunity to respond forthwith. [120] In this case, the [appellant] fears an unwarranted expansion of a police officer’s constitutional obligations when he or she mustwait for an ASD.
In R. v. Petit, this Court wrote: [21] I would add that, according to the municipal court judge’s
interpretation, all police cars would have to be equipped with screeningdevices for ASD tests to be carried out legally. In addition, if the device in the vehicle happened to be defective or missing a piece, thedriver could not be legally administered a screening test, since this would require waiting until another device arrived. In my view, suchan
interpretation is unreasonable. In such cases, the officers would have to rely on roadside screening techniques that are arguably moreinconvenient for drivers than an ASD test, namely, questioning regarding the driver’s alcohol consumption and ordering the driver toperform physical sobriety tests, techniques that have been recognized as valid even where the driver does not have the opportunity tocommunicate with counsel beforehand (R. v. Orbanski, supra). [121] This argument seems to raise a justification that is based on administrative convenience.
It is an utilitarian consideration thatwould make constitutional rights, as the Supreme Court writes in R. v. Singh, “[c]ertainly […] illusory if they could be ignored because itwas administratively convenient to do so”: Singh v. Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R.177, 218; R. v. Prosper, (SCC), [1994] 3 S.C.R. 236; R. v. Burlingham, (SCC), [1995] 2 S.C.R. 206,para. 22. [122] It is also possible to answer this argument by returning to the facts in the case before us.
When he received the call, the policeofficer was aware of two things: (1) he would be stopping a vehicle to check the driver’s ability to drive, and (2) he did not have an ASDwith him. He could then have requested that a device be brought to him urgently, even before stopping the vehicle. [123] In short, for the reasons set out above, I am of the view that the absence of a prompt demand, made as soon as suspicions areformed, and the failure to afford an opportunity to immediately respond to the demand does not revive the right to counsel.
That rightremains suspended until the end of the investigation under subsection 254(2) of the Cr. C.
[124] I am, however, of the view that the demand made in this case was not valid and did not, therefore, create any obligation on thepart of the driver. [125] That, however, does not yet settle the appeal. Stare decisis [126] In Petit, this Court found that a short waiting period before the arrival of the ASD on the scene was acceptable. Other appeal duration. I am of the view that the question of law that is raised in this appeal was decided by the Court in Petit.
I have written at lengthto explain my disagreement with that decision. [127] I consider, however, that it is not for me, nor for a panel of three judges, to reconsider a decision of this Court that was renderedby another panel of three judges. As other appeal courts have decided, the intervention must come from a panel of at least five judgesthat then decides the question of law that has been duly identified: R. v. Neves, 2005 MBCA 112, para. 60; R. v. Larouche, 2014 CMAC6, para. 120;
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