CRIMINAL CODE OFFENCES - Roadside screening test - Breathalyzer or blood sample demand - Failing or refusing to provide breath or blood sample

Law360 Canada (April 13, 2023, 12:57 PM EDT) -- Appeal by the Crown from a judgment of the Quebec Court of Appeal that set aside a judgment of the Quebec Superior Court and overturned a guilty verdict. Constables received a call from trail patrollers informing them that an individual, Breault, was driving an all-terrain vehicle (ATV) while intoxicated. They were informed the driver was about to leave the area on foot. On the scene, Breault stated he had one beer but had not been driving. Since they did not have an approved screening device (ASD) in their possession, the constables radioed for one. Though the device was not yet in the constables’ possession, Breault was ordered to provide a breath sample which he refused. Breault was informed of the consequences he faced by refusing. He refused twice more, each time stating he had not been driving. He was placed under arrest for failing to provide a breath sample. Because of his refusal, the constables cancelled the request for the ASD which had not arrived. The Municipal Court judge held the validity of the demand did not depend on the presence of an ASD at the scene and found Breault guilty of the offence set out in ss. 254(5) and 255(1) Cr.C. as it was then in force. The Superior Court dismissed Breault’s appeal. The Court of Appeal allowed the appeal concluding the word “forthwith” in s. 254(2)(b) Cr. C. had to be given an interpretation consistent with its ordinary meaning. Due to the absence of an ASD, the demand made by the constable was invalid. The Crown argued a flexible interpretation of the word “forthwith” was needed to combat the problem of drinking and driving and deter impaired individuals from driving. The possession of an ASD at the time of the demand was not an essential element of the offence. Breault argued that, unless there were unusual circumstances, the word “forthwith” had to be given an interpretation consistent with its ordinary meaning, because a driver stopped for a breath sample was being detained without the right to counsel....
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