Forthwith Under Section 254 (Repealed December 13, 2018)

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General Principles

See also: Proof of Impairment by Alcohol and Screening Device

Section 254(2) requires that once the officer has reasonable suspicion he must seek to have the suspect "provide forthwith" a sample of breath or a physical coordination test. It states:

254
...

Testing for presence of alcohol or a drug

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.



[annotation(s) added]

The assumption is that the demand was made at the first possible opportunity after the formation of suspicion. The "clock begins to run" from this point onward.[1]

If the officer is not in a position to require a breath sample "before any realistic opportunity to consult counesl, then the officer's demand is not a demand made under s. 254(2).".[2]

"Forthwith" means "immediately or "without delay". It connotes a prompt demand and an immediate response.[3]

"Forthwith" should be "as soon as possible and before there is any realistic possibility that the subject could successfully contact counsel and get legal advice”. [4] The term has the same meaning as "without delay" as worded in s. 10(b) Charter (right to counsel).[5]

A demand that is not "forthwith" is not authorized by s. 254(2), is not a lawful demand and is not in compliance with s. 8 of the Charter.[6]

Where the "forthwith" requirement is complied with, the period of time from the demand to the test is a justifiable infringement of the section 10(b) Charter rights.[7]

Constitutionality

The obligation on the detainee to comply with a breath test or physical coordination forthwith without first having a right to counsel violates s. 10(b) of the Charter of Rights and Freedoms, but is upheld as a justifiable limitation under s. 1.[8]

Where any element of s. 254(2) have not been met, the detainee has a right to counsel prior to complying with the demand.[9]

  1. ↑ R v Dallago, [2001] OJ No 5683(*no CanLII links) , at para 23 (“…for the purposes of determining whether there has, in fact, been any opportunity for the detainee to consult counsel, the court should treat the demand as having been made at the first possible point after the formulation of the suspicion. The legal consequence, therefore, is to deem that the clock begins to run from this point in time.")
  2. ↑ R v Cote, 1992 CanLII 2778 (ON CA), [1992], 70 CCC (3d) 280, per Arbour J
  3. ↑ R v Yamka, 2011 ONSC 405 (CanLII), per Durno J
  4. ↑ R v Ritchie, 2004 SKCA 9 (CanLII), per Sherstobitoff JA, at para 17
    See also R v Janzen, 2006 SKCA 111 (CanLII), (2006), 285 Sask. R. 296
  5. ↑ R v Brownridge, [1972] SCR 926, 1972 CanLII 17 (SCC), per Ritchie J
  6. ↑ Yamka, supra
  7. ↑ R v Degiorgio, 2011 ONCA 527 (CanLII), per LaForme JA, at para 46
  8. ↑ R v Thomsen, [1988] 1 SCR 640, 1988 CanLII 73 (SCC), per Le Dain J
  9. ↑ 'R v DeBaie, 2000 CanLII 7309 (NS PC), per Gibson J

Reasonable Delays

A delay in the "forthwith" requirement is permitted where "proper analysis" may not be immediately possible, such as where the sample might be contaminated by cigarette smoke or recent consumption of alcohol. In such cases, a short delay is permitted so that an accurate test can be taken.[1]

A wait of 5 minutes between a demand for a ASD and the arrival of the ASD on the scene can be forthwith.[2]

The consideration of “forthwith” requirement under s. 254(2),[3] requires that:

  1. There is a contextual analysis, keeping in mind the legislation’s balance between the interest to eradicate drunk driving and the protection of Charter rights.
  2. the demand must be made promptly once the officer has reasonable suspicion there is alcohol in the driver’s body;
  3. the “forthwith” requires a prompt demand and an immediate response from the driver. However, the circumstances may dictate the need for greater flexibility. In such case the time must be no more “than is reasonably necessary to enable the officer to discharge” his duty.
  4. the immediacy requirement must take all circumstances into account. For example, short delay in administering the ASD due to a need for accurate results or articulable and legitimate safety concerns is permissible. The delay must be “no more than is reasonably necessary to enable to officer to discharge his...duty”.
  5. the circumstances must not allow for the police to realistically have implemented the accused’s 10(b) rights.

Further principles were summarized in R v Mastromartino[4]:

  1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
  2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
  3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.
  4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.
  5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer’s belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.
  6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.
  7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.
  8. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.

In most cases a delay becomes unreasonable when in excess of 10 minutes.[5]

Delay Due to Unavailability of ASD

The ASD device does not need to be on scene at the time of forming the grounds. However, where the officer is performing a roadside check did not keep an ASD at the scene out of convenience resulted in a violation of the "forthwith" requirement.[6]

Where the ASD is not readily on hand, the delay waiting for the device may result in invalidating the demand. The question is whether the delay afforded the time to have a "realistic opportunity to consult counsel".[7]

Delays in the range of 15 minutes between the demand and the test is reasonable for dealing with the "exigencies of the use of the equipment".[8]

Delay Between Forming Suspicion and the Screening Demand

A "flexible approach" requires that the screening demand should be made "promptly" upon forming the requisite grounds. There is no need that the demand be "immediate".[9]

A reasonable delay between reasonable suspicion and demand can be for purpose of learning more about the amount of alcohol consumed, and potentially letting the person on his way.[10] Also, where there is a legitimate public safety issue or related problems that justify a brief delay.[11]

However, an unexplained delay for as little as 9 minutes can be found to be an unreasonable delay.[12]

Access to cell phones

The availability of a cell phone or nearby landline is not relevant where the officer is able to administer the test forthwith. However, delays in administration will make the availability of a phone relevant.[13]

An officer may permit a detainee to contact counsel if they possess a cell phone.[14]

As compared with "As Soon As Practicable"

There is generally no difference between the word "forthwith" and "as soon as practicable".[15]

A delay of 11 minutes to clear the driver's lungs after recently smoking is reasonable.[16]

Standard of Review

The question of whether the ASD was administered forthwith is a question of fact and warrants deference to the trial judge on a standard of "palpable and overriding error".[17]

  1. ↑ R v Pierman, 1994 CanLII 1139 (ONCA), per Galligan JA (2:1)
  2. ↑ R v Higgens, 1994 CanLII 6405 (MBCA), 88 CCC (3d) 232, per Scott CJ
    R v Misasi, 1993 CanLII 8577 (ON CA), (1993), 79 CCC (3rd) 339, per Finlayson JA
  3. ↑ summarized in R v Quansah, 2012 ONCA 123 (CanLII), [2012] ON 779 (ONCA), per LaForme JA
  4. ↑ 2004 CanLII 28770 (ON SC), (2004), 70 O.R. (3d) 540 (S.C.J.), per Durno J, at para 23
  5. ↑ e.g. R v Janzen, 2006 SKCA 111 (CanLII)
    R v Singh, 2005 CanLII 40877 (ON CA)
  6. ↑ R v Megahy, 2008 ABCA 207 (CanLII), per Martin JA
  7. ↑ R v George, 2004 CanLII 6210 (ON CA), [2004] OJ 3287 (ONCA), per Gillese JA
    e.g. R v Tinker (1992) 137 A.R. 16 (Alta.Q.B.)(*no CanLII links) - 9 minutes waiting was acceptable
  8. ↑ R v Fildan, 2009 CanLII 45315 (ON SC), 2009 O.J. No.3604, per Hill J, at para 40
  9. ↑ Fildan, ibid., at para 40
    R v Woods, [2005] 2 SCR 205, 2005 SCC 42 (CanLII), per Fish J
    Megahy, supra
  10. ↑ Megahy, supra, at para 17
  11. ↑ R v Kleinsasser, 2011 ABPC 206 (CanLII), per LeGrandeur J, at para 20
  12. ↑ e.g. see R v Marshall, 2011 ABPC 188 (CanLII), [2011] O.J. No.652, (Alta.P.C.), per Fradsham J -- 9 minutes found unreasonable
  13. ↑ R v George, 2004 CanLII 6210 (ON CA), per Gillese JA
  14. ↑ R v Murphy, 2005 CanLII 2944 (ON SC), [2005] OJ No 411, per Howden J, at para 9
  15. ↑ R v Seo, 1986 CanLII 109 (ON CA), [1986] OJ 178 (ONCA), per Finlayson JA
  16. ↑ R v Kaczmarek, 1994 CanLII 7217 (ON SC), [1994] OJ 9, per Hayes J
  17. ↑ R v Rienguette, 2012 ONSC 4633 (CanLII), per Gordon J, at para 11
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