A Dive into A Landmark Supreme Court Case on Suspicion of Drunk Driving: R. v. Breault, 2023 SCC 9

The case of R. v. Breault, decided on April 13, 2023, made big waves. It forced us to think about the rules police follow and the importance of breathalyzer tests in drunk driving cases. To make sense of it all, I have looked closely at this case and the relevant provisions of the Criminal Code of Canada (Cr. C.). Let us dive into this crucial case and break it down in a way that is easy for everyone to understand.

Key Lessons From This Case

• Drivers cannot be expected to agree to a police officer's demand for a breath sample "in advance" if a breathalyzer, an Approved Screening Device (ASD), is not available at the scene and they cannot consult with a lawyer. Without legal advice, a driver cannot correctly decide when a "delay" in the arrival of an ASD allows them to refuse to provide a breath sample. If a driver does not have access to legal counsel, they should not be expected to agree to provide a breath sample "later".
• A more flexible interpretation of "forthwith" (meaning "immediately" or "without delay") increases the need for drivers to have access to legal counsel. This underlines the importance of caution when considering "Unusual Circumstances" (explained below) for a flexible interpretation of "forthwith".
• The term "forthwith" implicitly limits the right to legal counsel, according to Section 10(b) of the Charter. This means drivers might not get a chance to consult a lawyer before providing a breath sample. This limitation is justified because the detention period is usually short, and the main aim of the law is to combat impaired driving.

The Incident

Photo by Rodrigo Morelos Oseguera on Pexels

On April 2, 2017, two officers, Atkins and Côté Lemieux, received a report about a drunk person driving an ATV in Val Bélair, Quebec. They were told the driver had parked and was leaving on foot. When they arrived at 1:35 p.m., they stopped the suspected person, Breault. They noticed he had bloodshot eyes and smelled of alcohol. He admitted to drinking a beer but denied driving the ATV. The officers confirmed with trail patrollers that Breault had been driving the vehicle. They did not have an ASD (Approved Screening Device, or breathalyzer) with them, so they called for one at 1:41 p.m. from a colleague in a nearby area.

Officer Atkins asked Breault to give a breath sample immediately, as allowed by law. They did not tell Breault that they did not have a breathalyzer on hand. Starting at 1:45 p.m., Breault refused three times to give a breath sample. He was warned of the consequences and he asked for a lawyer, but his request was denied.

Breault was arrested for refusing to give a breath sample. By 2:00 p.m., the breathalyzer still had not arrived, so the officers cancelled the request. They seized Breault's ATV and released him.

A Legal Battle Ensues: The Lower Courts Weigh In

Breault chose to challenge the actions of the officers in court. Here is how it unfolded:

The Crown's Appeal at the Supreme Court of Canada (SCC)

Unsatisfied with the Appeal Court's decision, the Crown chose to appeal to the Supreme Court of Canada (SCC). Breault, however, stood firm in his defense.

Here is a snapshot of the arguments presented by the parties:

Resolution of the Case

The crux of this case, and indeed its ultimate resolution, hinged on a pivotal question: Does the validity of a demand made by a peace officer under s. 254(2)(b) Cr. C. require that the officer have immediate access to an ASD at the time the demand is made?

Clarifying the Language: The Supreme Court's Interpretation

In this landmark case, the SCC eliminates any ambiguity surrounding the interpretation of the term "forthwith" as used in s. 254(2)(b) (Note: s. 254(2)(b) is substantially similar to s. 320.27(1)(b), Cr. C.). The following table outlines the SCC's authoritative interpretations of several key terms related to s. 254(2)(b).

The Importance of Interpretation: Impact on Current Cases

The interpretation of s. 254(2)(b) is significant as it is substantially similar to s. 320.27(1)(b), Cr. C. This is detailed in the table below.

In December 2018, Parliament replaced sections 249 to 261 of the Criminal Code (termed the "Old Scheme") with sections 320.11 to 320.4 (known as the "New Scheme"). It is crucial to understand the similarities and disparities between these two legislative frameworks. Notably, while the old scheme uses the term "forthwith", the new scheme uses "immediately".

In this case, the Crown urged the SCC to interpret s. 254(2)(b) Cr. C. in light of the New Scheme enacted in 2018. However, the SCC declined to do so for several reasons, which are outlined in the following table.

Understanding "Unusual Circumstances": The SCC's Guidelines

The Crown argued that a delay in providing a breath sample is reasonable and necessary since police officers might not always carry a breathalyzer, making immediate testing impossible. They also claimed that immediate testing is not a crucial requirement for an offense under s. 254(5) Cr. C.

However, the Supreme Court countered this by stating that the Crown had failed to demonstrate any "Unusual Circumstance" that would justify the absence of a breathalyzer at the scene, thereby allowing a flexible interpretation of "immediate" testing. The Court also pointed out that the Crown could not explain why the officers involved did not have a breathalyzer with them at the time.

This case brings us to a critical interpretation by the Supreme Court of Canada on the concept of "Unusual Circumstances" in relation to the use of a breathalyzer under s. 254(2)(b) Cr. C. This interpretation is crucial as it provides law enforcement officers with a framework to justify any delay in breath testing, helping to establish criminal liability for drunk driving. More details on the Court's guidelines regarding "Unusual Circumstances" appear below.

Who Must Prove Unusual Circumstances?

According to the SCC, the responsibility of proving the existence of Unusual Circumstances (that justify a delay in breath testing) rests on the Crown. It is their duty to establish any atypical situation during the ASD's use.

Identifying Unusual Circumstances

The identification of an Unusual Circumstance should be made in light of the text of the statutory provision. Courts are advised not to unduly stretch the ordinary meaning of "forthwith." In other words, these Unusual Circumstances must be evaluated based on the exact wording of the law. The courts should not stretch the meaning of "forthwith".

Limited Public Funding and Unusual Circumstances

A lack of sufficient public funding to equip police forces with ASDs is not an Unusual Circumstance. Even though the need for more public funding to supply ASDs might be a reality, budgetary considerations do not justify a flexible interpretation of the immediacy requirement. Limited budget allocation is a daily reality for any government and does not constitute an exceptional situation.

Absence of a Breathalyzer as an Unusual Circumstance

The simple absence of an ASD at the scene at the time a breath sample is requested is not considered an Unusual Circumstance. This means that not having an ASD available when the breath sample is required does not automatically constitute an exceptional situation.

Understanding the Validity of a Breath Sample Demand: The SCC's Stance

The Supreme Court of Canada (SCC) rejected the Crown's argument that a driver cannot rely on the absence of an ASD to justify refusal. That argument suggests that the driver would be unaware of the ASD's absence during the police stop. However, the SCC states that accepting this argument could inadvertently encourage police officers to be non-transparent. Typically, when officers stop a driver, they alone know whether they possess an ASD. This would allow them to arbitrarily validate an otherwise invalid demand if the driver was not informed about the absence of an ASD at the scene.

Although a demand for a breath sample is critical in law enforcement for suspected drunk drivers, it must meet the following criteria to be considered valid:

The Supreme Court of Canada's Ruling on the Crown's Appeal

The Supreme Court of Canada (SCC) dismissed the Crown's appeal because the Crown failed to demonstrate any Unusual Circumstance that would justify the absence of an Approved Screening Device (ASD) at the scene. The Crown could not provide a valid reason for why Constables Atkins and Côté Lemieux did not have an ASD with them. This lack of explanation affected the interpretation of the requirement for immediate testing.

The SCC says that, due to these factors, the demand made by Constable Atkins was deemed invalid. Therefore, Breault's refusal to comply with the demand could not be considered a criminal act. As a result, the acquittal given by the Quebec Court of Appeal was upheld. The SCC agreed that Breault had not committed a criminal offense by refusing to provide a breath sample.