How Long is Too Long? SCC Interprets “Forthwith” Requirement for Breath Sample Demands

In R v Breault, 2023 SCC 9 [Breault], the Supreme Court of Canada (“SCC”) settled a long-running dispute regarding the flexibility of the immediacy requirement in situations where a police officer demands a breath sample to be provided “forthwith” by a suspected impaired driver (Criminal Code, RSC 1985, c C-46, s. 254(2)(b) as it appeared on 20 June 2018 [Code]).  The SCC settled on a narrow interpretation of immediacy, limiting its flexibility in order to uphold the constitutionality of the provision authorising such a demand.  Despite Parliament’s amendments to the Code before the SCC’s decision in Breault, which altered the legislative context and strengthened the purpose of the provision at issue, the SCC held that their interpretation of the old provision applied equally to amended provision.

The Case

Factual Background

On April 2, 2017, Constables Atkins and Côté‑Lemieux responded to a call regarding an intoxicated ATV driver (Breault, para 10). After arriving at the scene at approximately 1:35 p.m., the Constables found Mr. Breault; he had bloodshot eyes, and his breath smelled of alcohol (Breault, para 11). At 1:41 p.m., Constable Atkins requested that an “approved screening device” (“ASD”) be brought to the scene, and a police officer who was estimated to be about ten minutes away responded to the call (Breault, para 12). After this request, Constable Atkins demanded a breath sample from Mr. Breault pursuant to s. 254(2)(b) of the Code (now s. 320.27(1)(b)) (Breault, para 13). At the time, this provision permitted police officers with a “reasonable suspicion” that a person was intoxicated and had operated a vehicle within the previous three hours to demand that person “to provide forthwith a sample of breath that, in the peace officer’s opinion, [would] enable a proper analysis to be made by means of an approved screening device… [emphasis added]” (Code, s. 254(2)(b)). Mr. Breault refused to comply three times, after which he was arrested under s. 254(5) of the Code (now s. 320.15(1)) (Breault, para 13). By 2:00 p.m., the ASD had still not arrived at the scene (Breault, para 14). 

Judicial History

At the Municipal Court, Judge Simard convicted Mr. Breault of refusing to comply with a demand to provide a breath sample, finding that the elements of the offence could be made out even though an ASD was not present at the scene at the time of request and refusal (R c Breault, 2019 QCCM 114). Provonost J then dismissed Mr. Breault’s appeal at the Quebec Superior Court, finding no error in Judge Simard’s application of the relevant case law (Breault c R, 2020 QCCS 1597). Mr. Breault appealed again.

The Quebec Court of Appeal (“QCCA”) set aside the conviction, entering an acquittal; the court unanimously held that, since the immediate provision of a breath sample was not possible due to the absence of an ASD on the scene, the order was invalid and thus the refusal did not constitute an offence (Breault c R, 2021 QCCA 505). 

The Supreme Court of Canada

The issue before the SCC was whether the term “forthwith” in s. 254(2)(b) of the Code required police officers to have an ASD in their possession in order to make a valid demand for a breath sample (Breault, para 20). 

Côté J, writing for a unanimous court, dismissed the appeal and upheld Mr. Breault’s acquittal at the QCCA. Applying the rules of statutory interpretation with respect to the textual meaning of the impugned provision, she found that “the word ‘forthwith’ qualifie[d] the demand that drivers must obey” (Breault, para 31), suggesting that the demand must be complied with immediately after it is made. 

Turning to the statutory context, Côté J found that s. 254(2)(b) was the first step in a two-step process for detection of impaired drivers — the second step being a breathalyser test (Breault, para 33). Importantly, the constitutionality of this first step relied on limited flexibility in the meaning of forthwith (Breault, para 34). At the time a breath sample is demanded, a person is detained by the state and their ss. 8, 9, and 10 rights under the Canadian Charter of Rights and Freedoms [Charter] are infringed (Breault, para 34–35). Côté J found that the immediacy requirement in s. 254(2)(b) allowed these infringements to be saved under s. 1 of the Charter, and thus care must be taken when interpreting this requirement flexibly. 

Lastly, as for the purpose of s. 254(2)(b), Côté J found that Parliament purported to deter and detect impaired driving while balancing these pursuits with the protection of individual Charter rights. Taken together, she found that the meaning of “forthwith” in s. 254(2)(b) was consistent with its ordinary meaning: absent unusual circumstances, a demand made under this section must be complied with immediately, and immediate compliance to such an order must actually be possible.  Thus, the immediacy requirement places obligations on both the police officer and the person to whom the demand is being made; the police officer, for one, must actually possess an ASD in order for a valid demand for a breath sample to be made.  Since Constable Atkin did not fulfil this condition, the demand he made was invalid, and thus Mr. Breault’s refusal did not infringe the Code. 

The New Scheme: Forthwith or Not?

In Breault, the Crown argued that Parliament’s new amendments to the Code should be used to illuminate the meaning of the old provision in s. 254(2)(b) (para 41). Côté J rejected this argument, holding that subsequent amendments could not be used to shed light on the meaning of past provisions. Interestingly, she also briefly noted that the SCC’s decision in Breault applied to the new amendments.

With respect, it is my view that Côté J was too quick to conclude that the interpretation of s. 254(2)(b) from Breault applies to the new provision in s. 320.27(1)(b) of the Code. While the new provision is, on its face, substantially similar to the old provision (with the key difference being that “forthwith” is replaced with “immediate”), there are aspects of the new provision that suggest that Parliament intended to convey a different meaning.

First, as noted in Breault, Parliament is presumed to know the Court’s interpretation of previous provisions; thus, the Court’s previous interpretations are carried over into new amendments, absent clear language to the contrary. Côté J pointed to the body of jurisprudence that upheld a narrow understanding of immediacy (R v Bernshaw, [1995] 1 SCR 254; R v Grant, [1991] 3 SCR 139; R v Thomsen, [1988] 1 SCR 640; R v Woods, 2005 SCC 42), noting that Parliament carried over that body of jurisprudence into the new amendments (Breault, para 43). In doing so, however, she did not acknowledge the recent body of jurisprudence that applied a more flexible understanding of immediacy (e.g., R. v. Degiorgio, 2011 ONCA 527; R v Petit, 2005 QCCA 687; R v Piazza, 2018 QCCA 948; R v Quansah, 2012 ONCA 123). Put simply, there is no clear and consistent message emanating from precedent that Parliament can be presumed to have carried into the new provision; the fact that the question of immediacy was heard by the SCC in Breault supports the view that this issue was not settled by prior jurisprudence. Thus, a presumption that Parliament intended to carry over a narrow meaning of forthwith into the new provisions cannot be made by pointing to the entire body of prior jurisprudence. 

Second, the new amendments separate the immediacy requirement and the possession (of the ASD) requirement. In the newly enacted s. 320.27(2), the Code requires a person to immediately provide a breath sample on the condition that, inter alia, the police officer possesses an ASD. There is no such explicit possession requirement in s. 320.27(1)(b). If possession of an ASD was an implied component in the immediacy requirement, s. 320.27(2) would contain redundant requirements. Therefore, although the previous provision — as held in Breault — implicitly required possession through the immediacy requirement, this same implication does not carry over to the new provision. Taken in context, the amended provision does not seem to require a police officer to possess an ASD in order for a valid demand for a breath sample to be made.  Only s. 320.27(2) explicitly requires such possession.  Thus, the contextual analysis applied in Breault does not automatically apply to the new provision, as the context has changed in an important way.

Lastly, the new amendments carried with them strengthened legislative purposes. The preamble of An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts (S.C. 2018, c. 21) [Act] emphasises the need to strengthen existing responses to impaired driving. It shows a strong commitment to both the deterrence of impaired driving and the protection of the public. Additionally, it attempts to achieve these goals while maintaining compliance with the Charter: 

it is important that law enforcement officers be better equipped to detect instances of alcohol-impaired…driving and exercise investigative powers in a manner that is consistent with the Canadian Charter of Rights and Freedoms [emphasis added]. (Act, preamble)

Through its emphasis on Charter compliance, this quote suggests that the immediacy requirement is not discarded in its entirety; however, it also indicates an intention to increase the scope of police power to respond to impaired driving. This strengthened purpose is affirmed in the Hansard; in introducing the respective bill, the Honourable Jody Wilson-Raybould described the amendments to the Code as “substantial reforms to strengthen the law of alcohol-impaired driving and address existing challenges with detection, enforcement, and prosecution” (“Bill C-46, an act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts”, 1st reading, House of Commons Debates, 42-1, vol 148 No 181 (19 May 2017) at 11459).  Overall, therefore, the legislative purpose behind the Act cannot be presumed to be the same as the purpose behind the provision analysed in Breault. The legislature was acting in response to the continued prevalence of impaired driving in society (Act, preamble), and the application of s. 320.27(1)(b) may operate differently in light of this strengthened purpose.  In terms of statutory interpretation, the strengthened purpose may be consistent with a more flexible understanding of the immediacy component. Additionally, this strengthened purpose may impact the application of the Oakes test (R v Oakes, [1986] 1 SCR 103) — especially in the rational connection and minimal impairment stages — thus allowing for a more flexible interpretation of the immediacy requirement to be justified under the Charter.  

Conclusion

Section 320.27(1)(b), while textually similar to s. 254(2)(b), cannot be presumed to carry with it the same understanding of immediacy that was adopted in Breault. At the time the amendment came into force, there was no single understanding of the forthwith requirement in the case law that Parliament could be presumed to have carried into the new provision. Additionally, the new amendments are grounded in a new legislative context and strengthened Parliamentary purposes, suggesting that an independent interpretation of the meaning of the provision is warranted. It may be that the immediacy component does in fact still require a police officer to possess an ASD at the time the breath sample request is made; or, alternatively, it may be that the new immediacy component is too flexible to be saved by s. 1 of the Charter. The only thing that is certain is that these analyses must be made independently of Breault in order for Parliament’s amendments to be given their full effect.