Gabriel Bervin

The Crown appealed an acquittal entered by the Quebec Court of Appeal arising from the respondent's refusal to provide a roadside breath sample under s. 254(2)(b) of the Criminal Code when the demanding officer did not have an approved screening device (ASD) in his possession.

The Supreme Court of Canada held that the word 'forthwith' in s. 254(2)(b) must be interpreted in accordance with its ordinary meaning — immediately or without delay — and that the absence of an ASD at the scene at the time a demand is made is not an unusual circumstance justifying a flexible interpretation of that requirement.

A demand made when no ASD is present is therefore invalid, and a driver cannot be criminally liable for refusing to comply with a demand that it was physically impossible to comply with.

The Crown bears the burden of establishing unusual circumstances to justify any departure from the immediacy requirement.

The appeal was dismissed and the acquittal upheld.

The Crown appealed an acquittal on an over-80 charge where the trial judge found the statutory presumptions for breath test results were rebutted by non-compliance with a recommended observation procedure.

The majority held that an accused must adduce evidence both of malfunction or improper operation and that the defect tends to cast doubt on reliability in the specific case.

It concluded the evidence remained theoretical and speculative on reliability, so the presumptions were not rebutted.

The acquittal was set aside and a new trial ordered.

The dissent would have dismissed the appeal, finding the technician evidence sufficient to raise a reasonable doubt and warning against expanding the accused’s evidentiary burden.