R. v. Woods

[2005] 2 S.C.R. 205, [2005] S.C.J. No. 42



para 7: "conviction rests entirely on the result of a breathalyzer test. That evidence was obtained pursuant to a breathalyzer demand under s. 254(3) of the Code. Its admissibility depends on whether the police had reasonable and probable grounds to make the breathalyzer demand. And it is common ground that the only evidence of reasonable and probable grounds for the breathalyzer demand was the ASD result pursuant to which that demand was made." <P> from Manitoba CA judgment:<P> "The accused was stopped by police officers, Constables Snell and Billedeau, as he was driving alone along Bishop Grandin Boulevard near St. Anne�s Road in suburban Winnipeg on March 12, 1999, at or about 10:30 p.m. The officers noted a strong odour of alcohol and demanded a breath sample for an ASD test pursuant to s. 254(2) of the Code. The accused refused and was then arrested for failing to comply with the demand (pursuant to s. 254(5)) and given his Canadian Charter of Rights and Freedoms (the Charter) right to counsel and the police warning. The accused indicated he wished to call a lawyer and, because a cell phone was not available in the police vehicle, he was told that he would have to wait until he was taken to the police station. <P> There was a delay in leaving the scene while the officers waited for a tow truck to remove the accused�s vehicle from the shoulder of the busy roadway. The officers and the accused arrived at the Public Safety Building at 11:24 p.m., and the accused contacted a lawyer. Following that conversation, the accused �intimated� to Cst. Billedeau �that he now, after consulting with a lawyer, wished to give samples.� The ASD demand was read again to the accused, and he replied, �Okay.� <P> After six unsuccessful attempts to produce a proper sample, a second instrument was obtained and another invalid sample was provided by the accused. The accused was then told that if he did not provide a proper sample on the next attempt, he would be charged with refusing to provide a sample. A proper sample was then obtained and registered a fail. <P> With that additional evidence, the accused was arrested for impaired driving and given a breathalyzer demand pursuant to s. 254(3) of the Code and his Charter right to counsel and the police warning. He spoke again with a lawyer and then provided two breath samples, the first at 12:30 a.m. and the second at 12:47 a.m. Both readings registered 120 milligrams of alcohol in 100 millilitres of blood."



29 "The �forthwith� requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10 of the Charter. In interpreting the �forthwith� requirement, this Court must bear in mind not only Parliament�s choice of language, but also Parliament�s intention to strike a balance in the Code between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. <P> 30 As earlier explained, Parliament enacted a two-step legislative scheme in s. 254(2) and (3) of the Criminal Code to combat the menace of impaired driving. At the first stage, s. 254(2) authorizes peace officers, on reasonable suspicion of alcohol consumption, to require drivers to provide breath samples for testing on an ASD. These screening tests, at or near the roadside, determine whether more conclusive testing is warranted. They necessarily interfere with rights and freedoms guaranteed by the Charter, but only in a manner that is reasonably necessary to protect the public�s interest in keeping impaired drivers off the road. <P> 31 At that second stage of the statutory scheme, where the Charter requirements must be respected and enforced, s. 254(3) allows peace officers who have the requisite reasonable and probable grounds to demand breath samples for a more conclusive breathalyzer analysis. Breathalyzers determine precisely the alcohol concentration in a person�s blood and thus permit peace officers to ascertain whether the alcohol level of the detained driver exceeds the limit prescribed by law. <P> 32 Thomsen was one of the early cases that dealt with constitutional concerns regarding roadside detention of motorists. The Court held that the absence of an opportunity to retain counsel violated s. 10(b) of the Charter, but was justified under s. 1 of the Charter as a reasonable limit prescribed by law. The �forthwith� requirement of s. 254(2) is in a sense a corollary of the fact that there is no opportunity for contact with counsel prior to compliance with the ASD demand. <P> 33 In Grant, the officer who had stopped the accused did not have a screening device in his car. He therefore asked another officer to deliver one to him. The device did not arrive until 30 minutes later. During that time, the accused remained in the police car. Speaking for the Court, Lamer C.J. stated: <P> The context of s. 238(2) [now, with changes immaterial here, s. 254(2)] indicates no basis for departing from the ordinary, dictionary meaning of the word �forthwith� which suggests that the breath sample is to be provided immediately. Without delving into an analysis of the exact number of minutes which may pass before the demand for a breath sample falls outside of the term �forthwith�, I would simply observe that where, as here, the demand is made by a police officer who is without an A.L.E.R.T. unit and the unit does not, in fact, arrive for a half hour, the provisions of s. 238(2) will not be satisfied. [Emphasis added; p. 150.] <P> 34 In R. v. Cote 1992 CanLII 2778 (ON C.A.), (1992), 70 C.C.C. (3d) 280 (Ont. C.A.), the police officer likewise had no screening device in his car. He drove the accused to a police station nine minutes away and was not ready until five minutes later to take a breath sample. The accused refused to comply with the officer�s demand and was charged pursuant to s. 238(5) (now s. 254(5)) of the Criminal Code. The Ontario Court of Appeal set aside his conviction and entered an acquittal instead. <P> 35 Speaking for a unanimous court, Arbour J.A. (as she then was) ci



whether the ASD breath sample furnished by the respondent at the police station was obtained forthwith