R v McCorriston, 2024 SKCA 5

Court of Appeal for Saskatchewan Docket: CACR3589 Citation: R v McCorriston, 2024 SKCA 5Date: 2024-01-12 Between:His Majesty the KingAppellantAndJeffrey McCorristonRespondentBefore: Caldwell, Kalmakoff and Drennan JJ.A.Disposition: Leave to appeal granted; appeal dismissedWritten reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Mr. Justice Kalmakoff The Honourable Madam Justice DrennanOn appeal from: CRM 47 of 2020 (Sask QB), MelfortAppeal heard: October 18, 2023Counsel: Erin Bartsch for the Appellant Trent Forsyth for the Respondent Caldwell J.A. I.

INTRODUCTION [1] The Crown seeks leave pursuant to s. 839 of the Criminal Code to appeal against a decision of the Court of Queen’s Benchthat allowed Jeffrey McCorriston’s appeal from his

summary conviction after a trial in Provincial Court on the charge of refusing tocomply with an approved screening device [ASD] demand contrary to s. 320.15(1) of the Criminal Code: R v McCorriston (13 June 2022)Melfort, CRM 47 of 2020 (Sask QB). [2] The

summary conviction appeal court judge [SCAC judge] overturned the trial judge’s decision on the question of whetherthe ASD demand had been made immediately and, concluding that it had not, the SCAC judge quashed the conviction and entered anacquittal. If leave is granted, the Crown seeks to have this Court quash the acquittal and remit the matter to the SCAC judge to considerother issues raised but left unaddressed in Mr. McCorriston’s

summary conviction appeal. [3] An appeal pursuant to s. 839 is limited to questions of “law alone”. The Crown has put forward three ostensible questions oflaw in this appeal. I would grant the Crown leave to appeal, and I would dismiss the appeal. The SCAC judge’s legal conclusion that theASD demand had not been made immediately in the circumstances of this matter is correct. Therefore, there is no basis to interfere withhis decision to quash Mr. McCorriston’s conviction and enter an acquittal on the s. 320.15(1) charge. II. ISSUES AND ANALYSIS [4] In its principal parts, s. 320.27(1)(

b) of the Criminal Code provides that, if a peace officer has reasonable grounds to suspectthat a driver has alcohol in their body, the officer may, by demand, require the driver “to immediately provide the samples of breath that,in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and toaccompany the peace officer for that purpose” (emphasis added). [5] The Supreme Court of Canada observed in R v Woods, 2005 SCC 42 at para 14, [2005] 2 SCR 205, that the requirement forimmediacy under what was formerly s. 254(2)(

b) of the Criminal Code (i.e., the predecessor to s. 320.27(1)(b)) required both that a peaceofficer demand forthwith a breath sample and that the driver provide forthwith a breath sample. See also R v Breault, 2023 SCC 9, 481DLR (4th) 195, which was released after the decisions in this case. [6] When discussing immediacy in this context, the relevant period for providing a breath sample falls between the making of ademand and the moment when the breath sample can be provided. The period in question in this case falls between when the peace officerformed a reasonable suspicion that Mr.

McCorriston had alcohol in his body and the making of the demand pursuant to s. 320.27(1)(b). Itis important to note that, although likely empowered to have done so in the circumstances, the peace officer disclaimed that he had madethe demand on Mr. McCorriston pursuant to his authority under s. 320.27(2) and, therefore, no consideration is given to that provision inthese reasons. [7] As mentioned, the Crown has proffered three questions of law for consideration in this appeal. A. Did the SCAC judge apply the wrong standard in his review of the facts? [8] A

summary conviction appeal court judge is generally required to accept the trial judge’s findings of fact in the absence ofpalpable and overriding error: see R v O’Connor, 2015 SKCA 9 at para 2, 451 Sask R 240; R v Komarnicki, 2016 SKQB 90 at para 12; Rv Burns, (SCC), [1994] 1 SCR 656; and Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235.

[9] The first question put forward by the Crown asks whether the SCAC judge erred by applying an incorrect standard of reviewwhen considering the trial judge’s findings of fact. The Crown contends that he applied the standard of correctness, disagreed with thetrial judge’s findings and substituted his own findings of fact when analysing the issue of immediacy. [10] I accept the Crown’s contention that the SCAC judge plainly disagreed with the trial judge about whether the ASD demandhad been made immediately in the circumstances of this case.

When addressing the issue of immediacy in her oral reasons for convictingMr. McCorriston, the trial judge characterised the relevant facts in the following way: In this case, I find the ASD demand was made immediately. Previously, the law required the ASD demand to be made forthwith. Thesection was changed to read “immediately”. Nothing, in my opinion, turns on this change of wording. The point of the ASD is that it isused at roadside to provide a quick way for police to test sobriety. I find Constable Milne moved as quickly as possible once he formed hisreasonable suspicion that Mr.

McCorriston had alcohol in his body. From the time Mr. -- or Constable Milne stopped Mr. McCorriston at10:55, to when he made the approved screening device demand at 11:03, was approximately eight minutes. From the time he formed the suspicion to the time he made the actual demand was approximately five minutes. The constable explainedthat he had to ready the instrument and get the mouthpieces. He also had to run a check on Mr. McCorriston. All of this is reasonable.

Wecannot expect the police to operate as if this is a race and bind them by an unseeable stopwatch. … In this case, Constable Milne acted with dispatch. I find that spending four minutes in the patrol car, as he did, getting the instrument readyand doing his checks, was not unreasonable, nor does it impact whether the demand was made immediately. And, further, the total timefrom when the constable had Mr. McCorriston at the roadside was actually a very short timeframe. I note that I find that the pre-screening demand was lawful and Mr.

McCorriston was not arbitrarily detained and there was no violation ofsection 9. Thus, there’s not any need to go into an analysis under Grant. [11] Nonetheless, I do not accept the Crown’s contention in this appeal that the SCAC judge applied the correctness standard to thetrial judge’s findings of fact. In my view, that proposition is not supported by the SCAC judge’s reasons, where he described the relevantfacts in this way: [28] Cst. Milne testified that he formed a reasonable suspicion that the appellant had alcohol in his body at the 2:53 minute mark of theWatchGuard video.

He instructed the appellant to “hang tight for a second” and without further explanation returned to his police vehicle.Cst. Milne testified that while he was in his police vehicle he performed a background check on the appellant (the time needed to completethis task is not in evidence) and readied the ASD for use. He estimated the time needed to ready the ASD to be 30 seconds or less. He alsoacknowledged that there were no specific safety concerns that precipitated the delay in making the demand. [29] According to the WatchGuard video, Cst.

Milne returned to the appellant’s vehicle at 7:47 and made the ASD demand at the 8:43minute mark of the video. In this interval, Cst Milne waited for the appellant to complete a telephone call and gave some directions to theappellant, presumably so as to secure a proper sample of breath. [30] The trial judge found that approximately five minutes elapsed between the point at which Cst Milne suspected the appellant hadalcohol in his body and the ASD demand. For four of those minutes Cst. Milne was in his police vehicle performing checks and readyingthe ASD to receive a breath sample.

The trial judge concluded that those four minutes of delay was not unreasonable and found that theimmediacy requirement of s. 320.27(1)(

b) had been met. [12] As I interpret his reasons, the SCAC judge did not trench upon the facts as the trial judge had found them, or upon those whichwere undisputed, when considering whether the ASD demand had been made immediately. He simply disagreed that those facts justifiedany delay. The legal effect of findings of fact or of undisputed facts raises a question of law, and a

summary conviction appeal court judgeis free to disagree with the legal conclusion reached by a trial judge provided the appeal judge does not intrude upon the fact-findingfunction of the trial judge: R v J.M.H., 2011 SCC 45 at para 28, [2011] 3 SCR 197; and R v Morin, (SCC), [1992] 3 SCR286 at 294. [13] There is nothing to be gained by parsing the SCAC judge’s decision on the issue of immediacy alongside the trial judge’sfindings of fact. I would not interfere with the SCAC judge’s decision under this ground because I do not share the Crown’s understandingabout how the SCAC judge handled the facts as found at trial in the

summary conviction appeal. B. Did the SCAC judge misapprehend the evidence? [14] The second issue the Crown identified in its factum asks whether the SCAC judge erred by “materially misapprehending theevidence based on a misdirection of law on the immediacy requirement”. Without addressing whether it presents a question of law alone, Iobserve that the issue of legal misdirection leading to a misapprehension of evidence is not addressed anywhere in the Crown’s factum.

Ipresume the substance of the argument the Crown intended to put forward on this point is included elsewhere, i.e., under the first and thirdissues it raised. C. Did the SCAC judge correctly conclude that the ASD demand had not beenmade immediately? [15] This third question is the principal issue in this appeal. The question is similar to an issue that arose in R v Breault, where theSupreme Court held that the word immediately in s. 320.27(1)(

b) has the same meaning and legal import as the word forthwith had underwhat was, at the relevant time, s. 254(2)(

b) of the Criminal Code. [16] Whenever a court is called upon to consider whether an ASD demand has been made immediately, it is important to remember

that the requirement for immediacy is bound up by legal implications because it serves to preserve the constitutionality of a demand unders. 320.27(1)(

b) by striking a balance between the public interest in eradicating driver impairment and the need to safeguard drivers’ ss. 8, 9and 10(

b) Charter rights: R v Breault at paras 6 and 50. At root, the constitutional validity of an ASD demand made under s. 320.27(1)(b)requires that both the demand and the provision of a breath sample be made immediately, i.e., forthwith or without delay: R v Breault atpara 2; and R v Woods at paras 13–14 and 44. If the demand was not made immediately, then the driver will have been unlawfullydetained at roadside. If the driver did not immediately provide a breath sample in response to a lawful demand, then the driver will havecommitted the offence under s. 320.15(1) of the Criminal Code.

The decision in R v Breault affirms that, when determining whether anASD demand was lawful, courts must have regard for the specific circumstances in which it was made. [17] The word immediately in s. 320.27(1)(

b) is not synonymous with “time reasonably necessary” to enable a peace officer todischarge their duty under that provision (R v Breault at para 51, overruling R v Quansah, 2012 ONCA 123 at para 47, 286 CCC (3d)307). The Supreme Court has unmistakeably rejected a reasonableness approach: [51] It follows that the approach adopted by the Ontario Court of Appeal in Quansah needs to be qualified. It is true that theimmediacy requirement is not met where the length of the detention was such that the stopped driver could realistically have consultedcounsel.

It is also true that, in the reverse case, the analysis is not at an end, because there are situations in which the immediacyrequirement is not met even though there was not enough time to consult counsel (Quansah, at paras. 34-35). However, with respect, theOntario Court of Appeal broadened the immediacy requirement unduly by finding that it must allow for the time “reasonably necessary toenable the officer to discharge his or her duty as contemplated by s. 254(2)” (Quansah, at para. 47). “Forthwith” is not synonymous with“time reasonably necessary”; this word must be given an

interpretation consistent with its ordinary meaning, except in the unusualcircumstances referred to by Fish J. at para. 43 of Woods. [18] In R v Woods, when confirming that the immediacy requirement may in “unusual circumstances be given a more flexibleinterpretation than its ordinary meaning strictly suggests”, Fish J. described the example of “a brief and unavoidable delay of 15 minutes”that could be “justified when this is in accordance with the exigencies of the use of the equipment” (at para 43, citing R v Bernshaw, (SCC), [1995] 1 SCR 254).

The question is no longer whether a delay was reasonable in the circumstances. What must bedetermined is whether there exists “an unusual circumstance that justifies a more flexible

interpretation” of the word immediately in thecase at hand (R v Breault at para 52). [19] Based on the Supreme Court’s jurisprudence, the starting point for that analysis is the “operational time component”, which isimplicit in the immediacy requirement (R v Breault at para 32; and R v Bernshaw at para 64). This requires courts to make allowance forthe time during which a peace officer would ready the ASD and instruct the driver about what to do.

That period does not count as delay. [20] Next, the Supreme Court acknowledged in R v Breault that the requirement that a “proper analysis” be made “opens the door todelays caused by unusual circumstances related to the use of the [ASD] or the reliability of the result” (at para 57, emphasis added; seealso R v Wood and R v Bernshaw). The Court in R v Breault further recognised that there may be “unusual circumstances other than thosedirectly related to the use of the ASD or the reliability of the result that will be generated” (emphasis added).

In the latter regard, the Courtspecifically mentioned the consideration of “urgency in ensuring the safety of the public or of peace officers” (at para 58). While theSupreme Court left the legal effect of that and other considerations to trial courts to determine, it ruled out the possibility of “budgetaryconsiderations”, “considerations of practical efficiency” and the specific circumstance of the “absence of an ASD at the scene” asconstituting unusual circumstances justifying a flexible

interpretation of the word immediately in s. 320.27(1)(b) (at paras 59 and 60). [21] In my judgment, this dicta in R v Breault—about when a more flexible

interpretation of the immediacy requirement may bejustified—restricts constitutionally permissible delay that goes beyond an operational time component to those circumstances where theelapse of additional time is necessary to overcome out-of-the-ordinary impediments or barriers to the lawful use and reliable operation ofan available ASD at roadside. That said, the Supreme Court acknowledged that, by applying a narrow construction of this principle from Rv Breault, courts might recognise other unusual circumstances that justify a more flexible

interpretation of immediately. [22] On the bare facts of this case, the peace officer initially stopped Mr. McCorriston’s vehicle because it was unregistered. Hethen took two minutes and 18 seconds to perform computer checks on the vehicle and to report the stop before he approachedMr. McCorriston in the vehicle. After doing so, he formed a reasonable suspicion that Mr. McCorriston had alcohol in his body. Theofficer then told Mr. McCorriston to “hang tight for a second” and walked back to his police car alone. Mr.

McCorriston waited in hisvehicle for a few minutes while the peace officer readied an ASD and conducted computer background checks on Mr. McCorriston. Whenthe officer returned, he paused for an additional minute or less, waiting for Mr. McCorriston to end a call on his mobile device, and thenhe demanded a breath sample from him pursuant to s. 320.27(1)(b). Mr.

McCorriston refused to comply with the demand, saying that hethought too much time had passed. [23] Not having the benefit of R v Breault, the trial judge understandably applied the old legal test from R v Quansah whenassessing the peace officer’s explanations for the elapse of approximately five minutes between his formation of reasonable suspicion andthe making of the ASD demand.

This is evident from her conclusions, where she said that the ASD demand had been made immediatelybecause “All of this is reasonable” and “spending four minutes in the patrol car, … getting the instrument ready and doing his checks, wasnot unreasonable”. [24] The SCAC judge also relied on R v Quansah when overturning the trial judge’s legal conclusion about immediacy. However,the principal reason for the SCAC judge’s determination that the ASD demand had not been made immediately was the undisputed factthat the peace officer had taken the time to perform background checks on Mr.

McCorriston on the computer in his patrol vehicle after hehad formed a reasonable suspicion and before he made the ASD demand. The Crown and Mr. McCorriston each have an

interpretation ofwhat the record (a WatchGuard video) discloses in this regard. The Crown specifically takes issue with the SCAC judge’s statement that ittook the peace officer “30 seconds or less” to ready the ASD (at para 28), leaving us to draw the inference that the SCAC judge thoughtthe rest of the time was unjustified delay. [25] In his testimony in cross-examination, the peace officer agreed that an ASD is “immediately” operational, but said that it wouldtake between 30 seconds and a minute to ready an ASD to take a sample.

He also testified that he had to grab the straws that are necessaryto obtain a sample and then walk back to Mr. McCorriston’s vehicle. Nonetheless, while the operational time component in this case was

undoubtedly longer than 30 seconds, it is undisputed that some part of the total five-minute period in question was taken up by the peace officer conducting background checks on Mr. McCorriston. On that footing, the SCAC judge relied on the pre- Breault decision in R v Husulak , 2006 SKQB 284 at para 32 , 283 Sask R 31, for the proposition that prolonging a roadside ASD detention for “other motor vehicle purposes” undermines the “essence of the immediacy requirement” in s. 320.27(1) (b).

This was the primary reason for his ruling that the demand in this case had not been made immediately. [ 26 ] I conclude that the SCAC judge did not err in law in this regard. In effect, the SCAC judge held that the background checks conducted in the circumstances of this case did not present an unusual circumstance warranting a flexible

interpretation of the word immediately . His reasoning is also consistent with the Supreme Court’s rejection of “considerations of practical efficiency” as constituting an unusual circumstance justifying a flexible

interpretation of the word immediately in R v Breault (at para 59 ). While background or other checks may warrant a flexible

interpretation in other circumstances, lack of information about Mr. McCorriston’s background was not an out-of-the-ordinary impediment to the lawful use and reliable operation of the ASD at roadside. As noted, the peace officer in this case had already performed vehicle computer checks and reported the vehicle stop, which occurred at around 11:00 a.m. To do this, he had to have identified Mr. McCorriston, who was the only person in the vehicle.

In other circumstances, it may be prudent to run background checks on a driver—whether to ensure the safety of the public or of peace officers or for other reasons—but there was nothing in the evidence to suggest that the background checks in this case were “directly related to the use of the ASD or the reliability of the result” or otherwise constituted an unusual circumstance justifying a flexible

interpretation of the word immediately in s. 320.27(1)(b) ( R v Breault at para 58 ). As such, I conclude that the SCAC judge correctly held that the ASD demand had not been made immediately in the circumstances of this case. [ 27 ] As a second reason for overturning the trial judge, the SCAC judge held that the peace officer “could realistically have implemented [Mr. McCorriston’s] rights under s. 10(

b) of the Charter ” within the five-minute period in question (at para 33). The SCAC judge found that the trial judge had erred because she had failed to consider this point. However, when assessing whether Mr. McCorriston’s right to counsel had been breached, the trial judge remarked that “there’s no guarantee that, at roadside, Mr. McCorriston would be able to contact a lawyer and that it would take three minutes”. Nonetheless, given that the immediacy requirement was not met based on the performance of background checks in this case, there is no need for further review of this secondary ground.

It is sufficient to note that the Supreme Court confirmed in R v Breault that, “It is true that the immediacy requirement is not met where the length of the detention was such that the stopped driver could realistically have consulted counsel” (at para 51). It is immaterial to the disposition of this appeal whether the SCAC judge correctly held that that had occurred in this case. III. CONCLUSION [ 28 ] For these reasons, I would not interfere with the SCAC judge’s conclusion that the ASD demand had not been made immediately within the meaning of s. 320.27(1) (

b) of the Criminal Code . I would grant leave to appeal, but I would dismiss the Crown’s appeal against the acquittal entered by the SCAC judge. “Caldwell J.A.” Caldwell J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Drennan J.A.” Drennan J.A.