The Timing of Breath Demands (Approved Screening Devices & the “Forthwith” Requirement)

Criminal Code

Section 254(2)

(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 … the peace officer may, by demand, require the person  …

(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.  [Emphasis added.]

Compliance with the “forthwith” standard is both a statutory and constitutional precondition for a lawful search and seizure:

R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, at para. 51.

Further, both the demand for an ASD (approved screening device) sample and its provision must be “forthwith”.

Burden of Proof in Warrantless Searches

Where the search and seizure of the defendant’s blood-alcohol content is not judicially authorized, the Crown bears the onus of establishing its constitutional compliance on a balance of probabilities:

R. v. Shepherd, 2009 SCC 35 (CanLII), [2009] 2 S.C.R. 527, at para. 15; R. v. Haas, 2005 CanLII 26440 (ON CA), 2005 CanLII 26440, 76 O.R. (3d) 737 (C.A.), at paras. 24-26; leave refd [2005] S.C.C.A. No. 423.

If it fails to do so, it is then the defendant’s burden, on the same standard, to satisfy the Court that an order excluding the impugned evidence is warranted.

Both the Demand and the Taking of the Sample Must Occur “Forthwith”

Although section 254(2) speaks only of a motorist’s obligation to provide a sample “forthwith”, it is long settled that there is a complimentary constitutional duty on an officer to make the ASD demand as soon as he or she forms the requisite reasonable suspicion. As said in R. v. Vinoharan, [2009] O.J. No. 4037 (Sup. Ct.), at para. 6: “both the demand and the sample must be forthwith”.

See, also, R. v. Pierman; R. v. Dewald (1994), 1994 CanLII 1139 (ON CA), 19 O.R. (3d) 704 (C.A.), at para. 5; R. v. Woods, supra, at para. 14.

Forthwith Means Immediately or Without Delay--though the forthwith standard is amenable to the exigencies of the circumstances

As held authoritatively in Woods, at para. 13: “Forthwith” means “immediately” or “without delay”.

Indeed, as said in the next paragraph of Woods, “[s]ection 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy.”

There is no fixed standard or temporal guillotine, and some elasticity may be justified in demanding situations. Indeed, “forthwith”, as Woods acknowledges at para. 43, “may in unusual circumstances be given a more flexible interpretation than its ordinary meaning strictly suggests” (emphasis added).

By way of example, the Supreme Court (relying on Bernshaw, supra) speaks of a “brief and unavoidable delay of 15 minutes … in accordance with the exigencies of the use of the equipment”.

While on-the-ground challenges to statutory compliance may afford a measure of elasticity, the Court of Appeal has made “very clear” that Bernshaw and Woods do not cut the police a blank cheque. 

Delays of 15 minutes or less are not to be routinely excused “no matter what the reason for the delay”.

R. v. George (2004), 2004 CanLII 6210 (ON CA), 187 C.C.C. (3d) 289, at para. 5; see, also, Quansah, supra, at para. 31.

The standard, both statutory and constitutional, is that of circumstantial immediacy or, as put in Quansah, at para. 48, “a delay that is no more than reasonably necessary to enable the officer to properly discharge his or her duty” under s. 245(2). Any more extensive delay “exceeds the immediacy requirement”.

R. v. Buenrostro-Ramirez, 2017 ONCJ 101 (CanLII), at para 30.

Where the police delay relates to the investigation of another possible offence, the Court will look at factors such as the strength of the basis for such an investigation and immediate need to conduct it, always mindful to the fact that the individual’s constitutional rights (sections 8, 9, and 10(b) of the Charter) are being held in abeyance during the delay.

See for instance, R. v. Buenrostro-Ramirez, 2017 ONCJ 101 (CanLII).