Court File and Parties
Ontario Court of Justice
Date: 2020-01-06
Court File No.: Hamilton 18-9182
Between:
Her Majesty the Queen
— and —
Bradan Anderson
Before: Justice J.P.P. Fiorucci
Heard on: May 16, 2019
Submissions Heard on: May 31 and August 16, 2019
Reasons for Judgment released on: January 6, 2020
Counsel
S. MacDougall and B. Adsett — counsel for the Crown
J. Manishen — counsel for the defendant Bradan Anderson
FIORUCCI J.
INTRODUCTION
[1] A driver who refuses to comply with a demand made by a police officer to provide a breath sample into an approved screening device (ASD) faces criminal consequences upon conviction. A lawful demand is an element of the refusal offence that the Crown must prove beyond a reasonable doubt.
[2] On August 28, 2018, Mr. Cameron Fioret was in his living room when he heard a commotion outside. Mr. Fioret looked outside and saw three males beating up one male who was on the ground. The assailants were punching and kicking the male on the ground, and tossing him around. Mr. Fioret called 911 because it looked like the male was getting beat up "pretty badly", and Mr. Fioret was concerned for his safety.
[3] When the assault ended, the male was lying on the sidewalk for a couple of minutes. He then stumbled into the passenger side of a Ford Focus and drove off. Mr. Fioret was telling the 911 operator what he was seeing. He provided a description of the vehicle and told the operator that the car had gone through a stop sign. Shortly after the vehicle went through the stop sign, Mr. Fioret saw a police car going down the street.
[4] The police officers who were dispatched to the disturbance call arrived in the area and located Mr. Bradan Anderson seated in the driver's seat of a grey Ford Focus that was stopped at a stop sign. Mr. Anderson's vehicle had rear-ended another vehicle. The airbag of Mr. Anderson's vehicle had deployed, and he had visible injuries.
[5] A police officer made a demand that Mr. Anderson provide a sample of his breath into an ASD. Mr. Anderson verbally refused to provide the breath sample. He was charged with failure or refusal to comply with a breath demand made to him by a peace officer under section 254(2), contrary to section 254(5) of the Criminal Code.
[6] Mr. Anderson entered a not guilty plea to the charge. He says that the police officer did not have a reasonable suspicion that he had alcohol in his body. Consequently, the demand was invalid and he was under no obligation to comply with it. In the alternative, Mr. Anderson submits that the Crown has not established that the ASD demand was made "forthwith" as required by statute, which makes it an invalid demand. Again, Mr. Anderson would not be required to comply with such a demand.
[7] The Crown says that the evidence establishes that the demanding officer had the requisite reasonable suspicion that Mr. Anderson had alcohol in his body, and that the ASD demand was made forthwith.
[8] I must decide whether the Crown has proven beyond a reasonable doubt that the police made a valid section 254(2) Criminal Code breath demand of Mr. Anderson, which required him to comply with the demand.
ANALYSIS AND ISSUES
Refusal or Failure to Comply with a Breath Demand
[9] The essential elements of the offence described in section 254(5) consist of a proper demand and a refusal or failure to comply with that demand. The Supreme Court of Canada recently stated that "[c]ulpability for the refusal offence is based on disobedience with lawful compulsion".
[10] For Mr. Anderson to be found guilty, I must be satisfied beyond a reasonable doubt that he failed or refused to comply with a lawful demand made to him by a peace officer to provide a breath sample into an ASD. In this case, I must first determine whether the police officer had a reasonable suspicion that Mr. Anderson had alcohol in his body. If I were to find that the officer did have this requisite reasonable suspicion to make the demand, I would then have to determine whether the ASD demand was validly made "forthwith".
(a) Did the police officer who made the ASD Breath Demand have a reasonable suspicion that Mr. Anderson had alcohol in his body?
[11] Section 254(2) of the Criminal Code provides the legal authority for the police to demand that a driver provide a breath sample into an ASD. To lawfully make the demand, the officer must have "reasonable grounds to suspect" that the person operating the motor vehicle has alcohol in their system.
[12] The Supreme Court of Canada reviewed the reasonable suspicion standard in R. v. Chehil. Karakatsanis J., for the Court, noted that Parliament has employed the reasonable suspicion standard when authorizing certain searches in legislation, including section 254(2) of the Criminal Code which authorizes obtaining a breath sample to test for the presence of alcohol.
[13] In Chehil, the police deployed a drug detection dog to sniff Mr. Chehil's checked bag at the Halifax airport when his flight arrived from the Vancouver International Airport. For a sniff search to be Charter-compliant, the police must "have a reasonable suspicion based on objective, ascertainable facts that evidence of an offence will be discovered".
[14] The police deployed the sniffer dog to check Mr. Chehil's bag based on the following constellation of factors: the passenger manifest for the overnight flight from Vancouver to Halifax revealed that Mr. Chehil was one of the last passengers to purchase a ticket, paid for his ticket in cash, and checked one bag. The RCMP officers testified that, in their experience, these characteristics were indicators of illegal trafficking in narcotics. The officers had seen this constellation in Halifax and knew that it was common to drug couriers. The Court stated: "[t]he constellation had been noted in their training and observed by them in their prior investigations. It was not common to innocent travellers. This assertion was not challenged on cross-examination".
[15] Ultimately, the dog registered a "hit" on Mr. Chehil's bag, he was arrested, and cocaine was found in his bag. The Supreme Court of Canada dismissed Mr. Chehil's appeal and found that the constellation of factors listed above generated the reasonable suspicion necessary to deploy the sniffer dog.
[16] In doing so, Karakatsanis J. set out the nature of the reasonable suspicion standard:
Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances. In Kang-Brown, Binnie J. provided the following definition of reasonable suspicion, at para. 75:
The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
[17] Reasonable suspicion is a lower standard than reasonable and probable grounds, "as it engages the reasonable possibility, rather than probability, of crime." Reasonable suspicion is "assessed against the totality of the circumstances". This "inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation". It "must be fact-based, flexible, and grounded in common sense and practical, everyday experience".
[18] Karakatsanis J. cited American jurisprudence to explain when a constellation of factors is insufficient to establish a reasonable suspicion:
A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a "generalized" suspicion because it "would include such a number of presumably innocent persons as to approach a subjectively administered, random basis" for a search: United States v. Gooding, 695 F.2d 78 (4th Circ. 1982), at p. 83. The American jurisprudence supports the need for a sufficiently particularized constellation of factors. See Reid v. Georgia, 448 U.S. 438 (1980), and Terry v. Ohio, 392 U.S. 1 (1968). Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches.
[19] It is important to recognize that "reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors." However, Karakatsanis J. stated the following in Chehil:
Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. As Doherty J.A. found in R. v. Golub, (1997), 34 O.R. (3d) 743 (C.A.), at p. 751, "[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable". This is self-evident.
[20] While the police are obliged to take all factors into account, they are not required "to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations."
[21] The Chehil case provides an example of what the police are required to do with exculpatory factors within their knowledge. Karakatsanis J. noted that the police were required to "account for information received between the time of the decision to deploy the sniffer dog and the performance of the sniff search." In Chehil, "there was evidence that the police practice was to take such information into account, and that factors such as being met by grieving family members or a comment on the reservation record noting a bereavement rate would likely exclude an individual from suspicion."
[22] The after-the-fact review conducted by the court to protect against arbitrary state action was described by Karakatsanis J.:
Rigorous judicial scrutiny is an independent review that ensures that the suspicion relied on by the police is supported by factors that are objectively ascertainable, meaning that the suspicion is based on "factual elements which can be adduced in evidence and permit an independent judicial assessment": P. Sankoff and S. Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123, at p. 125. The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour. If the link between the constellation and criminality cannot be established by way of a logical inference, the Crown must lead evidence to connect the circumstances to criminality. This evidence may be empirical or statistical, or it may be based upon the investigating officer's training and experience.
[23] Karakatsanis J. cautioned that "[a] police officer's educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard."
[24] P.C. Jane Miroshnykova and P.C. Brad Lawrie of the Hamilton Police Service were dispatched to the 911 call. P.C. Miroshnykova was the officer who ultimately made the ASD demand to Mr. Anderson. I find that, on the totality of the circumstances, P.C. Miroshnykova did not have a reasonable suspicion that Mr. Anderson had alcohol in his body. Therefore, Mr. Anderson was under no obligation to comply with P.C. Miroshnykova's ASD demand.
[25] An assessment of the objectively discernible facts in this case was challenging because of material discrepancies in the testimony of the two officers. I will detail my findings of fact below.
[26] P.C. Miroshnykova was dispatched to the call at 10:18 p.m. P.C. Miroshnykova testified that she received information that there was a disturbance or commotion possibly involving three males in a fight. She also received information that one of the males was staggering, got into his vehicle, drove away, and ran a stop sign.
[27] P.C. Miroshnykova testified that the information she had from dispatch included an indication that it might be an impaired driver. However, she acknowledged that one of the reasons she activated her roof lights when she arrived on scene at 10:23 p.m. was to check on the safety of the driver who may have been injured in the fight.
[28] Mr. Anderson's Ford Focus matched the description of the vehicle provided by dispatch. When P.C. Miroshnykova approached the driver's side of the vehicle, she saw Mr. Anderson sitting in the driver's seat, looking forward, with blood on his forehead, his hands and his nose. P.C. Miroshnykova could see that the vehicle's airbag had deployed. According to P.C. Miroshnykova, Mr. Anderson was able to produce his driver's licence to identify himself.
[29] When P.C. Miroshnykova asked Mr. Anderson if he was okay, he said he was not sure. According to P.C. Miroshnykova, he was also not sure what had happened, stating that he possibly hit a guy and "where did he go?".
[30] P.C. Miroshnykova described Mr. Anderson's speech as slow, and he seemed to be confused. Mr. Anderson denied that he had been drinking or using recreational drugs that night. P.C. Miroshnykova did not smell alcohol. In fact, when Crown counsel asked P.C. Miroshnykova whether she detected any odours when she was around the driver's side of the vehicle, she stated that she did not. In contrast, P.C. Lawrie testified that he could smell the propellant of the airbag which was "overpowering everything else".
[31] Mr. Anderson advised P.C. Miroshnykova that he was in pain, and specifically that his head was hurting. This caused P.C. Miroshnykova to request an ambulance.
[32] P.C. Miroshnykova asked Mr. Anderson to step out of his vehicle to await the arrival of the ambulance. According to P.C. Miroshnykova, when Mr. Anderson got out of his vehicle, he staggered across the street and could not maintain his balance. She also observed that he was not wearing shoes. In cross-examination, P.C. Miroshnykova acknowledged that it was not surprising to her that Mr. Anderson was staggering because she had information that he had possibly been in a fight, that he had been involved in a motor vehicle accident with enough force to deploy the airbag, and that he had a possible head injury.
[33] According to P.C. Miroshnykova, the basis for her suspicion that Mr. Anderson might be impaired by alcohol was the staggering, the fact that he appeared to be confused as to what had happened and where he was, and an empty beer can that she saw in the vehicle when Mr. Anderson had stepped out.
[34] Although she did not articulate the words of section 254(2), there is no dispute that P.C. Miroshnykova had the subjective belief that Mr. Anderson had alcohol in his body. The only issue is whether her suspicion was objectively reasonable.
[35] P.C. Miroshnykova's evidence regarding the beer can was materially inconsistent with that of P.C. Lawrie. This is particularly troubling because the Crown relies heavily upon the evidence of the beer can to support its position that there was a reasonable suspicion that Mr. Anderson had alcohol in his body.
[36] There is no evidence that the police seized or took photographs of the beer can that both officers purportedly observed in Mr. Anderson's vehicle.
[37] P.C. Miroshnykova testified that, after Mr. Anderson stepped out of the vehicle, she looked inside and noticed the empty can of Budweiser beer lying on the floor of the driver's seat, although she could not recall exactly where it was when asked by Crown counsel. P.C. Miroshnykova stated that the beer can "appeared to be slightly, I guess, bent". She did not observe any wetness in the area of the can or on the can itself. P.C. Miroshnykova agreed with Defence counsel's suggestion that the beer can could have been in the back seat and become dislodged in the accident and rolled forward.
[38] P.C. Miroshnykova testified that she was the first officer to approach the vehicle by herself and that P.C. Lawrie arrived shortly after her. P.C. Lawrie testified that he and P.C. Miroshnykova arrived within a couple of seconds of each other and that he approached on the passenger side of the vehicle while she approached on the driver's side. P.C. Lawrie believed he was present for the entire conversation between P.C. Miroshnykova and Mr. Anderson.
[39] P.C. Lawrie testified that he did not have any direct recollection of P.C. Miroshnykova's activities when Mr. Anderson was walking to the area where he sat on the grass. However, he stated that he looked inside the vehicle and observed a crushed beverage can underneath one of the floor mats on the driver's side footwell. According to P.C. Lawrie, he noticed this because the floor mat was raised. P.C. Lawrie testified that when the beer can "was pulled out", he observed that "near the top of the opening the can was wet", and the wetness "would be relatively fresh". P.C. Lawrie "detected an odour of fresh beverage alcohol and that was emanating from the can's opening".
[40] Therefore, P.C. Miroshnykova's evidence that she observed the beer can lying loose on the floor of the driver's side footwell is inconsistent with P.C. Lawrie's evidence that the beer can was underneath the floor mat, which in his opinion "would be a deliberate placement". When Defence counsel asked P.C. Lawrie whether the beer can could have moved about during the accident, P.C. Lawrie stated, "it may have, however, I don't know that floor mats just jump up over top of cans and place themselves over top, sir…[t]his floor mat was in its normal position, otherwise, sir".
[41] According to P.C. Miroshnykova, after she saw Mr. Anderson stagger to the place where he sat on the grass, she went over to P.C. Lawrie to discuss her belief that it would be in their best interests to administer the ASD, partly based on her observation of the empty beer can on the floor. Neither P.C. Miroshnykova nor P.C. Lawrie had any notes about the discussion they purportedly had regarding P.C. Miroshnykova's grounds to make an ASD demand, yet both officers testified that they had an independent recollection of having this conversation.
[42] It is difficult to reconcile the evidence of the two officers regarding the location of the empty beer can and its appearance (i.e. slightly bent versus crushed). I accept P.C. Miroshnykova's evidence regarding the beer can over that of P.C. Lawrie. P.C. Miroshnykova was the officer dealing with Mr. Anderson at the driver's side and she testified that she saw the empty can when she looked inside the vehicle immediately after Mr. Anderson had exited.
[43] Furthermore, P.C. Lawrie did not give his evidence in a balanced way. This has also led me to accept P.C. Miroshnykova's evidence on this point. For instance, P.C. Lawrie testified that, in his experience, the beer can would be dry "in less than a matter of hours", and that he detected an odour of "fresh" beverage alcohol on the can. I found this testimony to be an attempt by P.C. Lawrie to exaggerate the significance of his purported observations in a case where he knew that an issue would be the reasonableness of the suspicion for the ASD demand.
[44] I reject P.C. Lawrie's evidence that the overpowering smell of airbag propellant was what he observed when he tried to detect the odour of alcohol in the vehicle. P.C. Miroshnykova noted no such overpowering odour of airbag propellant. She simply stated that she did not detect any odours when she was around the driver's side of the vehicle.
[45] It is also difficult to accept the evidence of P.C. Lawrie because of the way in which he testified. When he was challenged by Defence counsel regarding deficiencies in his note taking, he was defensive and argumentative. For instance, he stated, "sometimes we do things in life that we don't necessarily make notes on. I tied my boots this morning, sir".
[46] Therefore, the constellation of facts that existed include a driver who had driven through a stop sign and had rear-ended another vehicle with enough force to deploy his vehicle's airbag. The driver was confused as to what had happened and where he was. He staggered quite a bit when he got out of the vehicle.
[47] P.C. Miroshnykova had information that this driver had possibly been injured in a fight before driving. She witnessed injuries including blood on his forehead, nose and hand, and she knew that Mr. Anderson had a possible head injury due to his complaint of head pain. Mr. Anderson may have sustained these injuries in a fight, or as a result of the motor vehicle collision, or a combination of both the fight and the collision. P.C. Miroshnykova acknowledged that she was not surprised by the stumbling or staggering she saw because she knew about the possible fight, the motor vehicle accident and the possible head injury. In short, there were exculpatory factors which could account for Mr. Anderson's confusion, stumbling and staggering and which pointed away from the suspicion of alcohol in his body.
[48] There was no smell of alcohol, and Mr. Anderson denied alcohol consumption. The odour of an alcoholic beverage on the driver's breath is not a precondition to a valid ASD demand. However, in Mr. Anderson's case, there was no other evidence of alcohol consumption, aside from the empty slightly bent beer can lying loose on the floor of the driver's side footwell, on which P.C. Miroshnykova did not observe any wetness.
[49] Although there is a low threshold for a valid ASD demand, on the totality of the circumstances, I find that P.C. Miroshnykova objectively lacked the requisite suspicion that Mr. Anderson was operating the motor vehicle within the preceding three hours with alcohol in his body.
[50] Some may believe that the public interest in apprehending those who drive drunk warrants the making of an ASD breath demand on the constellation of facts that existed in Mr. Anderson's case. They would argue that it is possible that his driving conduct, confusion and staggering were caused by the consumption of alcohol, and that it is possible that he had recently consumed alcohol from the beer can found in the vehicle. Why not administer a minimally intrusive ASD test to confirm or refute the presence of alcohol in Mr. Anderson's system? To use P.C. Miroshnykova's words, would it not be "in our best interests to administer the approved screening device"?
[51] While there is a certain attractiveness to this view, it fails to recognize the reason the reasonable suspicion standard exists, which is to protect against indiscriminate and discriminatory searches. Was the ASD test truly a minimally intrusive search in the circumstances of Mr. Anderson's case? P.C. Miroshnykova acknowledged that the circumstances included a possible head injury for which the police requested the attendance of EMS. The making of the demand subjected Mr. Anderson, who had a possible head injury, to significant criminal consequences for failing to submit to the ASD search. In these circumstances, there is good reason to require that the officer's subjective belief be objectively verifiable. On the totality of the circumstances, the empty beer can and the other facts outlined above do not support a reasonable suspicion that Mr. Anderson had alcohol in his body.
[52] The Crown has failed to prove that a valid ASD demand was made under section 254(2). Therefore, Mr. Anderson was under no obligation to comply with P.C. Miroshnykova's demand, and he is found not guilty of failing or refusing to comply with it.
(b) Did the police officer make the ASD Breath Demand "forthwith" upon forming her suspicion?
[53] If I am in error in my finding that P.C. Miroshnykova objectively lacked the requisite suspicion to make the ASD demand, I find that the Crown has failed to prove that the demand was validly made "forthwith" as required by statute.
[54] Again, Mr. Anderson had an obligation to comply with P.C. Miroshnykova's ASD demand only if it was a proper or lawful demand. The constitutional validity of section 254(2) of the Criminal Code depends on "its implicit and explicit requirements of immediacy". It is implicit that the ASD demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The ASD test must be administered forthwith as well. Compliance with the "forthwith" requirement "justifies what would otherwise be sustained as violations of ss. 8, 9, and 10(b) of the Charter".
[55] In R. v. Quansah, the Court of Appeal listed five things that courts must consider when assessing whether there has been compliance with the "forthwith" requirement in section 254(2). First, courts must be mindful of "Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights". Courts must perform the analysis of the forthwith or immediacy requirement contextually. The context of Mr. Anderson's case involves P.C. Miroshnykova formulating her suspicion at the roadside with an ASD available to her in one of the cruisers that was present at the scene.
[56] Second, the immediacy requirement commences at the point when the officer forms his or her reasonable suspicion. This factor requires that the demand "be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body". An application of this factor from Quansah leads to me find that the Crown has not established that P.C. Miroshnykova made the section 254(2) demand forthwith upon forming her suspicion.
[57] The police have a duty to make "meaningful contemporaneous notes of their involvement in a criminal investigation". This requirement to properly document and give evidence regarding the objective facts upon which the police relied "protects against arbitrary state action".
[58] P.C. Miroshnykova testified that she arrived on scene at 10:23 p.m., at which time she activated her roof lights and approached the driver's side of the vehicle to commence her interaction with Mr. Anderson. She read the ASD demand to Mr. Anderson at 10:45 p.m. At some point between 10:23 p.m. and 10:45 p.m., P.C. Miroshnykova developed her suspicion that Mr. Anderson had operated a motor vehicle with alcohol in his body. However, P.C. Miroshnykova did not make any notes regarding the time at which she developed her suspicion.
[59] At one point in direct examination Crown counsel asked P.C. Miroshnykova how much time passed between observing Mr. Anderson stumbling and her ASD demand. P.C. Miroshnykova responded, "I would say an approximate time of less than five minutes". However, in cross-examination, P.C. Miroshnykova confirmed that she could not say how many minutes passed between the formulation of her suspicion and the ASD demand.
[60] The evidentiary record is further complicated by the fact that P.C. Miroshnykova testified that she made the demand after P.C. Lawrie had gone to retrieve the ASD and had brought it back to where she and Mr. Anderson were, whereas P.C. Lawrie was adamant that P.C. Miroshnykova made the demand before he went to retrieve the ASD. In any event, there is no evidence about the time at which P.C. Miroshnykova formulated her suspicion, which makes it impossible to conduct an independent judicial review of the conduct of the police in this case. P.C. Miroshnykova developed her suspicion at some point within a twenty-two minute time frame. There is no evidence to establish that she made the ASD demand promptly once she had developed that suspicion.
[61] The Crown urges that some flexibility in the forthwith requirement should be given in this case, and relies on the following statement of Rosenberg J.A. in R. v. MacMillan:
In my view, greater flexibility in the forthwith requirement can be tolerated where the suspect has not been detained between the time the officer forms the grounds and when the officer makes the demand. After all, the primary factor driving the need for immediate action is the avoidance of a lengthy detention while a detainee is deprived of the right to consult counsel.
[62] I reject the Crown's argument. Again, there is no evidence regarding the time at which P.C. Miroshnykova formed her suspicion. Furthermore, there is an insufficient evidentiary picture of what happened between the time she formed her suspicion and the time of the demand to independently assess whether Mr. Anderson was detained. P.C. Miroshnykova's testimony that Mr. Anderson was not detained when he was sitting on the grass is not determinative of the issue of whether he was detained after she had developed her suspicion. In fact, Crown counsel conceded in her submissions that Mr. Anderson was detained when he sat on the grass.
[63] The third factor in Quansah addresses the time between the formulation of the officer's reasonable suspicion through to the detainee's response to the officer's demand by refusing or providing a sample. The Court of Appeal stated that forthwith "connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given". The Court of Appeal went on to state:
In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).
[64] Again, there is an insufficient evidentiary record for me to make a finding that the delay between P.C. Miroshnykova forming her suspicion and the making of the demand was no more than was reasonably necessary to enable her to discharge her duty as contemplated by section 254(2).
[65] Although I have found that the Crown has failed to establish that P.C. Miroshnykova made the demand forthwith upon forming her suspicion, to ensure completeness in my analysis, I will go on to consider the remaining factors set out in Quansah.
[66] The fourth criterion in Quansah requires courts to take into account all of the circumstances, which may include a reasonably necessary delay where the breath test cannot immediately be performed. In this case, P.C. Miroshnykova was not dealing with a situation where the ASD was not immediately available, and had to be brought from another location, nor was this a case where a short delay was necessary, for instance, to ensure an accurate result or to address an "articulated and legitimate safety concern".
[67] The final factor that Quansah requires courts to consider "is whether the police could realistically have fulfilled their obligation to implement the detainee's section 10(b) rights before requiring the sample". This factor is most applicable to cases where the officer making the ASD demand is not in a position to require immediate compliance with the demand, for instance, because an ASD is not immediately available.
[68] Again, in this case, it is impossible to determine whether the police could have realistically implemented Mr. Anderson's section 10(b) rights before requiring the sample because there is insufficient evidence to assess the delay between the formulation of the suspicion and the demand. I simply note that Mr. Anderson's section 10(b) rights were suspended in that time period, whatever it may have been.
[69] Since I am unable to find that P.C. Miroshnykova's demand was validly made "forthwith" pursuant to section 254(2) of the Criminal Code, Mr. Anderson had no obligation to comply with the demand, and he did not commit an offence under section 254(5) when he refused to do so.
CONCLUSION
[70] I find Mr. Anderson not guilty of the charge of failure or refusal to comply with a breath demand made by a peace officer under section 254(2) of the Criminal Code.
Released: January 6, 2020
Signed: Justice J.P.P. Fiorucci