His Majesty The King v. Pascal Breault
(Quebec) (Criminal) (By Leave)
Criminal law - Criminal law — Failure or refusal to provide breath sample in approved screening device — Criterion of immediacy under s. 254(2) of Criminal Code — Whether Quebec Court of Appeal erred in law in interpreting standard of immediacy of s. 254(2)(b) (now 320.27(1)(b)) of Criminal Code as meaning that validity of police officer’s demand depends on possibility of officer having “immediate access” to approved screening device — Criminal Code, R.S.C. 1985, c. C 46, s. 254(2)(b) (now 320.27(1)(b)).
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The respondent, Mr. Breault, refused a number of times to provide a breath sample to a peace officer who demanded that he do so at a time when an approved screening device was not in the officer’s possession. The Municipal Court found Mr. Breault guilty of failing to comply with a demand made to him by a peace officer, thereby committing the offence provided for in ss. 254(5) and 255(1) of the Criminal Code. In its view, the validity of the demand did not depend on a device being at the scene at the time when the demand was made. The Court of Appeal instead held that, because of the requirement that a breath sample be provided “forthwith”, a delay greater than is necessary to properly operate the device or obtain a reliable test in light of the facts noted by the police officer cannot be justified. The demand was therefore invalid, and the refusal that followed did not constitute a criminal offence.
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