Her Majesty the Queen v. Danychuk [Indexed as: R. v. Danychuk]

70 O.R. (3d) 215

[2004] O.J. No. 615

Docket No. C39898

Court of Appeal for Ontario

Sharpe, Armstrong and Blair JJ.A.

February 19, 2004

Criminal law -- Drinking and driving offence -- Refusal to comply with roadside screening demand -- Accused arguing that requirement that screening device be available forthwith before valid demand can be made -- Accused refusing to provide sample -- Section 254(2) of Criminal Code not requiring that approved screening device must be warmed up and operational and that police officer must have explained approved screening device process and consequences of failure to comply before approved screening device demand may be made -- Criminal Code, R.S.C. 1985, c. C-46, s. 254(2). [page216]

The accused was stopped by a police officer who observed him driving somewhat erratically. The officer detected an odour of alcohol coming from the passenger's side of the vehicle and asked the accused what he had been drinking. The accused admitted that he had had two beers. The officer asked the accused to accompany him to the police cruiser for an approved screening device test. He had an approved screening device with him which had recently been calibrated and which was sealed, but he had not tested the device. The accused refused to provide a breath sample, and he was convicted of refusing to comply with an approved screening device demand. The summary conviction appeal judge set aside the conviction and entered an acquittal on the basis that the arresting officer did not make a valid approved screening device demand under s. 254(2) since the approved screening device was not available "forthwith" to be tested and presented to the accused. The summary conviction appeal judge held that the procedure for requiring a breath sample to be provided forthwith under s. 254(2) entails two requirements: that the screening device be present at the scene and ready to accept a breath sample, having been tested to ensure that it was ready; and that the officer making the demand present the screening device to the driver and explain the purpose of the test and the consequences of failing to provide a breath sample. The Crown appealed.

Held, the appeal should be allowed.

Section 254(2) of the Code does not mandate, either expressly or by implication, that before a demand may be made, the approved screening device must be warmed up and tested as operational, and that the police officer must have explained the process and the consequences of a failure to comply. The accused refused unequivocally to provide a breath sample. In such circumstances, the Crown need not even demonstrate that the device in question was an approved screening device as a prerequisite to a valid demand. In addition, the Crown does not have to show that an approved screening device was in the possession of, or immediately available to the police officer at the time of the demand. A timely demand is validly made pursuant to s. 254(2) where (a) the person to whom the demand is made has been operating a motor vehicle, or has care or control of that vehicle, (b) the peace officer who makes the demand reasonably suspects that the person to whom the demand is being made has alcohol in his or her body, and (c) the police officer is ultimately in a position to require that the breath sample be provided before there is any realistic opportunity to consult counsel. Where, as here, there has been an outright refusal to provide a breath sample, it is not a prerequisite to such a demand that the Crown establish the approved screening device was present at the scene, tested and ready to accept a sample, or that the police officer presented the device to the driver and explained the purpose of the test and the consequences of a failure to provide a sample. On the facts of this case, the trial judge found that the screening device was available forthwith for the accused to provide a breath sample. There was no basis for interfering with that finding.

APPEAL by the Crown from a judgment of Fedak J., [2003] O.J. No. 1286 (S.C.J.) of summary conviction appeal court allowing an appeal from a conviction for refusing to comply with an approved screening device demand.

R. v. Cote (1992), 1992 2778 (ON CA), 70 C.C.C. (3d) 280, 11 C.R. (4th) 214, 6 O.R. (3d) 667 (C.A.); R. v. Latour (1997), 1997 1615 (ON CA), 116 C.C.C. (3d) 279, 45 C.R.R. (2d) 124, 34 O.R. (3d) 150, 27 M.V.R. (3d) 230 (C.A.), consd Other cases referred to R. v. Bernshaw (1994), 1995 150 (SCC), 95 C.C.C. (3d) 193, 35 C.R. (4th) 201, 26 C.R.R. (2d) 132, 176 N.R. 81, [1995] 1 S.C.R. 254, [1995] 3 W.W.R. 457, 8 M.V.R. (3d) 75; R. v. Danychuk, [2002] O.J. No. 5373 (QL) (C.J.); R. v. Farkas, 2002 79556 (ON CJ), [2002] O.J. No. 4682 (QL), 11 C.R. (6th) 387 (C.J.); [page217] R. v. Gutierrez (2001), 21 M.V.R. (4th) 183, [2001] O.J. No. 3659 (QL) (S.C.J.); R. v. Higgins (1994), 1994 6405 (MB CA), 88 C.C.C. (3d) 232, 21 C.R.R. (2d) D-5, 50 M.V.R. (2d) 24, 92 Man. R. (2d) 142, [1994] 3 W.W.R. 305, 61 W.A.C. 142 (C.A.); R. v. Kitchemonia (1973), 1973 888 (SK CA), 12 C.C.C. (2d) 225 (Sask. C.A.); R. v. Lemieux (1990), 24 M.V.R. (2d) 157, 41 O.A.C. 326 (C.A.); R. v. Lumley, [1988] O.J. No. 2521 (QL) (Prov. Ct. (Crim. Div.)); R. v. Matar, [1999] O.J. No. 4224 (QL) (S.C.J.); R. v. McCauley (1997), 1997 NSCA 139, 477 A.P.R. 154, 161 N.S.R. (2d) 154, 28 M.V.R. (3d) 257 (C.A.); R. v. Reimer (1980), 1980 2853 (SK QB), 54 C.C.C. (2d) 127, 4 M.V.R. 270 (Sask. Q.B.); R. v. Sawicki, 1972 819 (SK CA), [1972] 6 W.W.R. 755 (Sask. C.A.); R. v. Seo (1986), 1986 109 (ON CA), 25 C.C.C. (3d) 385, 51 C.R. (3d) 1, 20 C.R.R. 241, 27 D.L.R. (4th) 496, 38 M.V.R. 161, 13 O.A.C. 359, 54 O.R. (2d) 293 (C.A.); R. v. Sullivan (1991), 1991 656 (BC CA), 65 C.C.C. (3d) 541, 32 M.V.R. (2d) 92 (B.C.C.A.); R. v. Thomsen (1988), 1988 73 (SCC), 40 C.C.C. (3d) 411, 63 C.R. (3d) 1, 32 C.R.R. 257, 4 M.V.R. (2d) 185, 84 N.R. 347, 27 O.A.C. 85, [1988] 1 S.C.R. 640; R. v. Weir (1989), 1989 4927 (NL SC), 78 Nfld. & P.E.I.R. 260, 19 M.V.R. (2d) 274 (S.C.(T.D.)); R. v. Wilson (1991), 1999 BCCA 110, 121 B.C.A.C. 111, [1999] B.C.J. No. 416 (C.A.); R. v. Yake, [1992] O.J. No. 682 (QL) (Gen. Div.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 10(b) Criminal Code, R.S.C. 1985, c. C-46, s. 254

Mary-Ellen Hurman, for appellant. Joseph P. Fiorucci, for respondent.

The judgment of the court was delivered by

BLAIR J.A.: --

Overview

[1] The Crown applies for leave to appeal an acquittal granted by the Summary Conviction Appeal Court and, if leave be granted, appeals the acquittal.

[2] Mr. Danychuk was convicted in the Ontario Court of Justice on January 24, 2002, for failing to provide a breath sample, contrary to subsection 254(2) of the Criminal Code, R.S.C. 1985, c. C-46. He had been stopped when a police officer observed the car he was driving weaving between the driving lines. He refused to provide a breath sample when requested by the police officer to do so.

[3] The summary conviction appeal judge accepted the trial judge's finding that Mr. Danychuk had refused to provide a breath sample as demanded. He set aside the conviction, however, and entered an acquittal. He did so because, in his view, the police officer had not made a valid demand pursuant to subsection 254(2) since the approved screening device was not proven to [page218] have been available "forthwith" to be tested and presented to Mr. Danychuk. He held that the procedure for requiring a breath sample to be provided forthwith under that subsection entailed two requirements, namely,

(i) that the screening device be present at the scene and ready to accept a sample of breath, having been tested to ensure that it was ready; and

(ii)that the officer making the demand under subsection 254(2) present the screening device to the driver and explain the purpose of the test and the consequences of failure to provide a sample of breath.

[4] The Crown submits that the summary conviction appeal judge erred in imposing such prerequisites to a demand under subsection 254(2), particularly in the context of an unequivocal refusal to provide a sample.

[5] I agree with the Crown's submission and would allow the appeal.

Facts

[6] The essential facts are not in dispute.

[7] Mr. Danychuk and another man, who was the owner of the vehicle in question, were attending a charity golf event on May 8, 2001. During the event, Mr. Danychuk consumed two beers, one in the afternoon and the second between 8:30 and 9:30 in the evening. He and the other man left the event between 9:30 and 10:00 p.m., and Mr. Danychuk, who was the designated driver and who was "in better shape" than his friend, was driving. They were stopped by P.C. Potter and another officer while driving on the Q.E.W. towards Niagara Falls because their vehicle was observed weaving over the white intermittent lines of the lane.

[8] P.C. Potter detected an odour of alcohol coming from the passenger's compartment of the vehicle and asked the respondent whether he had been drinking. Mr. Danychuk admitted he had had the two beers. There were no other external indicia of intoxication noted by the police officer. On the basis of the driving pattern, the odour of alcohol and the admission, P.C. Potter requested Mr. Danychuk to accompany him to the police cruiser for a test. It is not contested that he had reason to suspect the respondent had alcohol in his body. Mr. Danychuk complied with the request to go with the police officer, and was seated in the rear of the cruiser. [page219]

[9] At 10:47 P.M., P.C. Potter demanded that Mr. Danychuk provide a sample of his breath into an approved screening device. Mr. Danychuk categorically refused to do so. The refusal to comply with the police officer's demand is admitted.

[10] P.C. Potter had an approved screening device with him in the front passenger compartment of the cruiser (an Alcotest model calibrated on May 5, 2001). He testified that the device had recently been calibrated and was sealed and in proper working order, but that he, himself, had not conducted a test of the apparatus. The following evidence of P.C. Potter is significant:

Q. And your information was -- what was your understanding as to whether this approved screening device was in proper working order?

A. The fact that it had a seal on it and was calibrated, it would've been in proper working order.

Q. Okay. And where, where was it within your cruiser . . . when you were speaking to the accused?

A. It was in the front passenger compartment; and I was in the process of removing it from the package, plugging it in -- and it does require a warmup period. So, I was doing that while I was reading the demand to the accused.

Q. All right. And the -- you've indicated that the accused indicated he was not going to provide a sample?

A. That is correct.

Q. What happened at -- please continue, as to what further contact you had with the accused?

A. At 10:53 p.m., I then cautioned him on failure to provide a breath sample.

Q. When you say you "cautioned him", what, exactly, did you tell him?

A. I said to him "If you do not provide a sample you will be charged. It is a criminal charge."

Q. And where was the approved screening device at that time, when you told him that?

A. Directly beside me.

Q. And what, what happened then?

A. His response to that was "I'm driving my partner's car, I would like to talk to him about where to leave the car."

Q. Please continue. What happened next?

A. Then at ten fifty-six I again asked the accused "Will you provide a breath sample?" To which his response was "No, I will go to court."

[11] At 10:57 p.m. Mr. Danychuk was arrested for failure to provide a breath sample. P.C. Potter then read him his rights to [page220] counsel and cautioned him in the usual fashion. Mr. Danychuk declined to call counsel. At 11:06 p.m. he was again asked to provide a breath sample, and again he refused to do so.

[12] The trial judge [at [2002] O.J. No. 5373 (QL) (C.J.)] made the following findings [at paras. 7-9]:

This Court has no doubt whatsoever that the Alco-test device was placed in the cruiser as Police Constable Potter testified. That is, that the device was on the front seat beside Police Constable Potter.

This Court has no doubt whatsoever that the Alco-test device was available forthwith to be tested and presented to the accused person Mr. Danychuk for him to provide a sample of his breath into the device.

This Court has no doubt that the accused was consistent and clear in his refusal to comply with the breath demand made upon him by Police Constable Potter.

(Emphasis added)

[13] There was ample evidence to support these findings.

Analysis

[14] The relevant portions of subsections 254(2) and (5) of the Criminal Code state:

254(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle . . . or who has the care or control of a motor vehicle . . . has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.

(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.

[15] The authorities have interpreted the requirement in subsection 254(2) that the person "provide forthwith" a breath sample as imposing a duty upon the police to be in a position to administer the test "forthwith", that is, as soon as reasonably practicable or within a reasonable time having regard to the provision and the circumstances of the case: see R. v. Latour (1997), 1997 1615 (ON CA), 34 O.R. (3d) 150, 116 C.C.C. (3d) 279 (C.A.); R. v. Seo (1986), 1986 109 (ON CA), 54 O.R. (2d) 293, 27 D.L.R. (4th) 496 (C.A.); R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, 95 C.C.C. (3d) 193. The rationale for this requirement is that unless the police officer is in a position to require a breath sample to be provided before there is any realistic opportunity for the detained person to consult counsel, that person's s. 10(b) Canadian Charter of Rights and Freedoms right to counsel may [page221] be unjustifiably infringed, and therefore a demand cannot be validly within the scope of subsection 254(2). "Otherwise", as Charron J.A. stated in Latour, supra, at p. 158 O.R.:

. . . the demand is outside the constitutionally permissible boundaries of the legislation and is invalid. The meaning of the word "forthwith" must therefore be defined in terms consonant with the outside limit on the limitation to the right to counsel.

[16] Justice Charron relied upon the decision of this court in R. v. Cote (1992), 1992 2778 (ON CA), 6 O.R. (3d) 667, 70 C.C.C. (3d) 280 (C.A.) where, after reviewing the basis for upholding the constitutionality of the predecessor of subsection 254(2) as set out in R. v. Thomsen, 1988 73 (SCC), [1988] 1 S.C.R. 640, 40 C.C.C. (3d) 411, Arbour J.A. said (at p. 671 O.R.):

If the accused must be taken to a detachment, where contact with counsel could more easily be accommodated than at the side of the road, a large component of the rationale in Thomsen disappears. In other words, if the police officer is not in a position to require that a breath sample be provided by the accused before any realistic opportunity to consult counsel, then the officer's demand is not a demand made under s. 238(2). The issue is thus not strictly one of computing the number of minutes that fall within or without the scope of the word "forthwith" . . . However, in view of the circumstances, particularly the wait at the police detachment, I conclude that the demand was not made within s. 238(2). As the demand did not comply with s. 238(2), the appellant was not required to comply with the demand and his refusal to do so did not constitute an offence.

(Emphasis added)

[17] Relying on these authorities and others, Mr. Fiorucci therefore argues the Crown must show that the police were at the ready immediately before a demand is made to administer the test and advise the motorist -- whose Charter rights are temporarily suspended by the detention -- of the process and the consequences of non-compliance. Otherwise, he submits, the demand is not to provide a sample "forthwith" and is not a valid demand made under subsection 254(2).

[18] In addition to this court's decisions in Cote and Latour, supra, Mr. Fiorucci relies upon R. v. Matar, [1999] O.J. No. 4224 (QL) (S.C.J.), as did the summary conviction appeal judge. In Matar, a Superior Court judge ruled that a person is not exposed to a charge of refusing to comply with a subsection 254(2) breath sample demand until he or she is confronted with an approved screening device that is ready for use -- even if the person unequivocally refuses to provide a sample from the outset.

[19] As I read the language of subsection 254(2) and appreciate its context, however, I see nothing in it mandating -- either expressly or by implication -- that before a demand may be made the approved screening device must be warmed up and tested as [page222] operational and the police officer must have explained the process and the consequences of a failure to comply. Respectfully, it is an unwarranted extension of the foregoing authorities to read such requirements into the section where the accused had categorically refused to provide the requested breath sample, and the summary conviction appeal judge erred in law in doing so.

[20] Mr. Danychuk refused, unequivocally, to provide a breath sample. This court has held, in such circumstances, that the Crown need not even demonstrate the device in question was an approved screening device as a prerequisite to a valid demand: R. v. Lemieux (1990), 41 O.A.C. 326, 24 M.V.R. (2d) 157 (C.A.). In addition, this court and others have held that in such circumstances the Crown does not have to show an approved screening device was in the possession of, or immediately available to, the police officer at the time of the demand: see R. v. Latour, supra; R. v. McCauley (1997), 1997 NSCA 139, 161 N.S.R. (2d) 154 (C.A.); R. v. Wilson (1991), 1999 BCCA 110, 121 B.C.A.C. 111, [1999] B.C.J. No. 416 (C.A.); and R. v. Higgins (1994), 1994 6405 (MB CA), 92 Man. R. (2d) 142, [1994] 3 W.W.R. 305 (C.A.). Other cases dealing with similar propositions include R. v. Reimer (1980), 1980 2853 (SK QB), 4 M.V.R. 270, 54 C.C.C. (2d) 127 (Sask. Q.B.); R. v. Sawicki, 1972 819 (SK CA), [1972] 6 W.W.R. 755 (Sask. C.A.); R. v. Kitchemonia (1973), 1973 888 (SK CA), 12 C.C.C. (2d) 225 (Sask. C.A.); R. v. Sullivan (1991), 1991 656 (BC CA), 65 C.C.C. (3d) 541, 32 M.V.R. (2d) 92 (B.C.C.A.); R. v. Yake, [1992] O.J. No. 682 (QL) (Gen. Div.); R. v. Gutierrez (2001), 21 M.V.R. (4th) 183, [2001] O.J. No. 3659 (QL) (S.C.J.); and R. v. Farkas, 2002 79556 (ON CJ), [2002] O.J. No. 4682 (QL), 11 C.R. (6th) 387 (C.J.).

[21] In my opinion, while it may be sensible for a police officer to make sure the device is working and the motorist apprised of the process and the consequences of non-compliance, it cannot be said -- in the face of these authorities -- that these matters constitute prerequisites to a valid demand for a breath sample under subsection 254(2), in my opinion. To adopt the language of Hughes J. in R. v. Reimer (1980), 1980 2853 (SK QB), 4 M.V.R. 270 (Sask. Q.B.) -- cited with approval in Lemieux (at p. 329 O.A.C.):

To say yes to the question posed at the outset of this judgment would be to require the Crown to cross a barrier or hurdle without, as far as I can see, a useful purpose being thereby served.

[22] In Lemieux, supra, at p. 328 O.A.C., the court agreed with the Crown's submission that "the gravamen of the offence under s. 254(2) and (5) of the Criminal Code is failure or refusal to comply with the demand of a peace officer": see also McCauley, supra. It is the failure or refusal to comply with the demand to provide the breath sample that is at the core of the infraction, not the failure or refusal to provide the breath sample "forthwith". The word [page223] "forthwith" in subsection 254(2) does not define the substance of the offence. Rather, it imposes on the person to whom the demand is made an obligation to comply in a timely fashion, and on the authorities an obligation to conduct the test in a timely fashion once the request is honoured in order that the detainee's rights to counsel under s. 10(b) of the Charter are minimally impaired.

[23] A demand will not be a valid demand under subsection 254(2) if the police are not in a position to administer the test "forthwith", i.e. in a timely fashion before there is any realistic opportunity to consult counsel: Cote, supra; Latour, supra. However, these cases do not stand for the proposition that the police must be in a position to "make the demand good" the instant the request is made. In fact, the opposite is true. In Latour, at pp. 159-60 O.R., Charron J.A. specifically rejected this notion:

According to [the appeal court judge's] reasoning, unless the peace officer reasonably believes that he or she can "make the demand good" at the time it is made, the demand is not valid even if the sample is, in actual fact, received into an approved screening device a few moments later.

In my view, Parliament did not require that the peace officer have this belief. The section simply provides that, prior to making the demand, the peace officer must reasonably suspect that a person who is operating a motor vehicle . . . has alcohol in his or her body. If the peace officer forms the required suspicion, he or she may make a demand that the person provide "forthwith" a sample of breath for analysis in an approved screening device. Of course, the peace officer who makes such a demand is under a duty to act upon it within the statutory limits. If, as the events actually unfold, the peace officer is in a position to require the person to provide the sample before there is any realistic opportunity to consult counsel, the statutory requirements are met. The detained person has no cause for complaint as the events will have unfolded in accordance with the legislative scheme and within its constitutional boundaries

[emphasis in original].

[24] Thus, Latour and Cote do not support the respondent's contention that at the time of the demand the police must have the screening device available immediately to be tested and presented to the detained motorist.

[25] Another line of authorities indicates that in circumstances where there has been an "unsuccessful attempt" to provide a breath sample -- either because of efforts by the person subject to the request to feign compliance, or because of a faulty device -- the Crown may be required to lead evidence to show the screening device was in good working order: see R. v. Lumley, [1988] O.J. No. 2521 (QL) (Prov. Ct. (Crim. Div.)); Yake, supra; Gutierrez, supra; R. v. Weir (1989), 1989 4927 (NL SC), 78 Nfld. & P.E.I.R. 260, 19 M.V.R. (2d) 274 (S.C.(T.D.)); and Farkas, supra. These cases are founded on the theory that such proof may be necessary lest the evidence [page224] raise a reasonable doubt the unsuccessful attempt was due to a flaw in the device. They do not lead to the conclusion, though, that the Crown must show that the police could have "made the demand good" as a condition of obtaining a conviction under subsection 254(2).

[26] A timely demand is validly made pursuant to subsection 254(2), in my opinion, where (a) the individual to whom the demand is made has been operating a motor vehicle, or has care or control of that vehicle, (b) the peace officer who makes the demand reasonably suspects that the individual to whom the demand is being made has alcohol in his or her body, and (c) the police officer is ultimately in a position to require that the breath sample be provided before there is any realistic opportunity to consult counsel. Where, as here, there has been an outright refusal to provide a breath sample, it is not a prerequisite to such a demand that the Crown establish the approved screening device was present at the scene, tested and ready to accept a sample, or that the police officer presented the device to the driver and explained the purpose of the test and the consequences of a failure to provide a sample.

[27] On the facts of this case the trial judge found that the screening device was available forthwith for Mr. Danychuk to provide a sample of his breath into it. There is no basis for interfering with that finding.

Disposition

[28] I would accordingly grant leave to appeal, allow the appeal, and restore the conviction imposed on Mr. Danychuk at trial.

Appeal allowed.