The Supreme Court of Canada weighed Wednesday on the refusal to offer a breath sample when one is suspected of having driven while intoxicated. Does such a refusal constitute a criminal offense when the police do not have the device in hand to perform the test? This is the question that was debated in the highest court in the land.
A case from Quebec was chosen for this exceptional first hearing of the Court, which is sitting this week in Quebec City. Usually in its building near the Parliament, in Ottawa, the Court traveled to Quebec to make its work better known and to promote access to justice. This is the second time she has uprooted herself, having done the drill in 2019 in Winnipeg, Manitoba.
The cause has the potential to affect many people, who could find themselves in the shoes of Pascal Breault.
Intercepted by the police in 2017, he refused to provide them with a breath sample.
Such a refusal normally constitutes a criminal act. The Criminal Code also provides that the arrested person, who is summoned to provide the sample, must comply “immediately”.
“Immediately” or almost
But the case here had this particular aspect: the police officer did not have in his possession the necessary detection device when he gave the order.
The Municipal Court declared the man guilty, but the Court of Appeal reversed this decision in 2021. According to it, the order given by the police officer was “invalid” because it was meaningless, he could not to execute “immediately”, since he did not have the required device in his hands. And if the order was invalid, then refusing to comply was not a crime.
This question also has an impact on the right to a lawyer – protected by the Constitution – because it is suspended between the order given and the moment when the person blows into the device, recalls the Court of Appeal in its decision .
The public prosecutor then appealed this judgment.
Before the Supreme Court, he argued that the word “immediately” should be interpreted flexibly. Which means “immediately” if the patrol car is transporting the device, or within 10 to 15 minutes, while a colleague brings it to the scene.
Jurisprudence has always recognized “that a delay was acceptable to bring the device on site”, argued Ms.e Nicolas Abran for the public ministry. Time limits of 4 to 14 minutes have been validated by the courts, he added.
And if the individual refuses immediately, his criminal responsibility is engaged. The fact that the detection device arrives later does not change anything according to him.
We don’t think all police officers will have a device in their vehicle — there aren’t enough of them — that’s why we’re asking for some flexibility, Ms.e Abran.
This answer made Judge Russell Brown uncomfortable: isn’t there a problem of transparency if the police officer does not reveal that he does not have the device with him?
The Court took the case under advisement and a judgment will be rendered at a later date.