Interpreting the immediacy requirement of an order to provide a breath sample


R. v. Breault, 2023 SCC 9

The facts

In this case, police officers were informed by forest trail patrollers that an individual was driving an all-terrain vehicle (“ATV”) while intoxicated. The police arrived on the scene and questioned the accused. Noting a few symptoms, the officers radioed for an Approved Screening Device (“ASD”), as they did not have one in their possession. Once the request for an ASD was made, the police ordered that the accused immediately provide a breath sample immediately. On three occasions, he refused to provide the requested sample. He was placed under arrest for refusing to comply with the order, in contravention of paragraph 254 (5) of the Criminal Code[1], now found under section 320.27 of the Criminal Code.

At issue was the interpretation of the immediacy requirement contained in article 254 (2) b) of the Criminal Code.

In the first instance[2], the Municipal Court judge ruled that the validity of the order given did not depend on the presence of an ASD at the scene of the interception. In so doing, he found the accused guilty of the offense of refusing to obey a police order.

On appeal[3], the decision was overturned and a judgment of acquittal was rendered. According to the Court of Appeal, the validity of the order depended on the police officer’s ability to order a driver to provide an immediate breath sample, which implied that the peace officer must have immediate access to an ASD. Thus, in the absence of such a device, the officer’s order was invalid.

The decision

In the present appeal, the Supreme Court turns its attention to the interpretation of the immediacy requirement. Specifically, the issue at hand is whether the validity of the order requires the police to have access to an ASD at the very moment they issue an order.

The Supreme Court concluded that the order issued by the police officers was invalid.

To reach this conclusion, the Supreme Court first looked at the ordinary and grammatical meaning of the word “immediately”, which refers to the expressions “without delay”.

Indeed, the constitutionality of this requirement depends on an interpretation of the word “immediately” consistent with its ordinary meaning, since the presence of this word includes an implicit restriction on the right to counsel guaranteed by paragraph 10 b) of the Canadian Charter of Rights and Freedoms (“Charter”). Since the detained driver must immediately provide a breath sample, he cannot consult a lawyer beforehand. Such a restriction, which balances the need to preserve constitutional rights guaranteed by the Charter against the public interest in eradicating the threat posed by impaired driving, is justified and acceptable precisely because of the short duration of the detention.

Accordingly, the courts must not unduly broaden the ordinary meaning reserved for the word “immediately”.

Therefore, an order made under section 320.27 (1) of the Criminal Code cannot be presumed valid in the absence of an ASD at the interception site. A person cannot be held criminally liable for refusing to obey an order that was practically impossible to obey due to the absence of an ASD at the time the order was made. Finally, the validity of the order cannot be made conditional on the time taken to deliver the ASD at destination, as such an approach would place the driver before an unbearable uncertainty. Indeed, when a detained driver is called upon to respond to an order to provide a breath sample, he must be able to know whether the order is valid and whether his refusal will engage his criminal liability. In a context where the detained driver does not have the benefit of legal counsel, he cannot be expected to agree in advance to comply, and then know when the delay in delivering the ASD justifies a refusal.

As the order was invalid, the defendant’s refusal did not engage his criminal liability, so the verdict of acquittal must be upheld.

1 Criminal Code, R.S.C. 1985, c. C‑46.
2 R. v. Breault, 2019 QCCM 114.
3 Breault v. R., 2021 QCCA 505.
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