Piazza c. R., 2016 QCCS 1622 (CanLII)
[51] La Couronne plaide que bien que l'ordre formel, en l'occurrence la lecture d'une carte de service n'intervient qu'à 3 h 50, il ressort de la preuve et de la conclusion du juge de première instance que l'agent Trudelle explique ses intentions à l'Appelant dès la cristallisation des soupçons, donc vers 3 h 40.
[52] Spécifions que les agents de la paix ne doivent pas nécessairement adopter un langage formaliste pour communiquer l'ordre prévu à 254(2) C.cr. Un seul énoncé d'intention compréhensible s'avère suffisant:
« The demand need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his or her breath forthwith. This can be accomplished through words or conduct, including the "tenor [of the officer's] discussion with the accused". See R. v. Horvath, [1992] B.C.J. No. 1107 (B.C.S.C.) (A.D.) What is crucial is that the words used be sufficient to convev to the detainee the nature of the demand. See R. v. Ackerman (1972), 6 C.C.C. (2d) 425 at 427 (Sask. C.A.) and R. v. Flegel (1972), 7 C.C.C. (2d) 55 at 57 (Sask. C.A.). »
[53] Dans Quansah, on lit:
[45] In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
[46] Second, the demand must 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. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
[47] Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. 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).
[48] Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
[49] Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(b) rights before requiring the sample. If so, the “forthwith” criterion is not met.
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