The acceptable waiting time for the approved screening device

When the police suspect that a motor vehicle driver’s ability to drive is impaired by alcohol, they can order him to blow into an approved screening device to determine if there are traces of alcohol in his blood. However, what occurs when the police possess such a suspicion where a screening device is not “immediately” available?

« The role of the courts is not, however, to facilitate the task of the police, nor for that matter to make it more complex. Their role is to interpret and apply the law^[1].» (Translated)

Breault c. R., 2021 QCCA 505

The Facts

In this case, the police received a call from forest trail patrollers that a man was driving an all-terrain vehicle while intoxicated. Once at the scene, police observed a man with symptoms of intoxication who was walking away from them. He was therefore intercepted by the police and ordered to blow into an approved screening device at 1:41. However, the device in question was not in their possession, it needed to be brought by another police vehicle. Meanwhile, at around 1:45, the driver indicated that he refused to comply with the police order. He was, therefore, charged with refusing to comply with the police order and eventually found guilty by a judge of the Court of Quebec.

The Judgment

The accused appealed to the Quebec Court of Appeal to challenge the validity of the order he was given. According to him, the approved screening device should be available “immediately”. Therefore, the waiting period rendered the order illegal. A panel of 5 judges from the Court of Appeal unanimously granted the accused’s appeal.

The Court explains that the Criminal Code requires that when the order is given, the breath sample must be provided “immediately”, which means that the device must also be available “immediately”. The Court of Appeal emphasized that this requirement of immediacy is closely linked to the right to counsel, guaranteed by the Canadian Charter of Rights and Freedoms. Usually, once a person is detained, they have the right to speak with a lawyer. It was, however, considered justified to suspend this right temporarily in the event of a roadside breath test, because the detention is necessarily of short duration and is linked to the exercise of an important societal objective, namely the early detection of drivers whose ability to drive may be impaired by alcohol. However, if there is a waiting period, however short, in waiting for the device to be available and it would be possible, in the meantime, for the accused to communicate with a lawyer, this suspension loses its legitimacy and its justification.

Therefore, the Court of Appeal reverses its precedent and firmly declares that “‘immediately’ means ‘immediately’ when it comes to breath samples.” Police must therefore now have the approved screening device on hand or resort to other investigative