R. v. Woods (J.C.) (2005), 195 Man.R.(2d) 131 (SCC);
351 W.A.C. 131
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2005] Man.R.(2d) TBEd. JL.012
Her Majesty The Queen (appellant) v. John Charles Woods (respondent)
(30395; 2005 SCC 42; 2005 CSC 42)
Indexed As: R. v. Woods (J.C.)
Supreme Court of Canada
McLachlin, C.J.C., Bastarache, Binnie, Deschamps, Fish, Abella and Charron, JJ.
June 29, 2005.
Summary:
The accused was convicted of driving with an excessive blood alcohol level. He appealed. A summary conviction appeal judge allowed the appeal and acquitted the accused. The Crown sought leave to appeal.
The Manitoba Court of Appeal, per Philp, J.A., in a decision reported at [2003] Man.R.(2d) Uned. 48, granted leave to appeal. The appeal proceeded.
The Manitoba Court of Appeal, in a decision reported at 184 Man.R.(2d) 138; 318 W.A.C. 138, dismissed the appeal. The Crown appealed.
The Supreme Court of Canada dismissed the appeal.
Criminal Law – Topic 1386.1
Motor vehicles – Impaired driving – Roadside screening test – Demand – The police stopped the accused at 10:30 p.m. – They demanded a breath sample for an approved screening device (ASD) – The accused refused and was arrested for failure to comply with the demand – The accused was taken to the police station – He contacted a lawyer at 11:24 p.m. – He indicated that he now wished to provide a sample – The police read an ASD demand – After the accused made six unsuccessful attempts to produce a sample, a proper sample was given and registered a fail – The police made a breathalyzer demand, samples were taken and the accused was charged with “drive over .08” – The Supreme Court of Canada held that the second demand, made at the station, was not a lawful demand under s. 254(2) of the Criminal Code – It failed the “immediacy” requirement implicit in that provision – See paragraphs 6 to 11 and 46.
Criminal Law – Topic 1386.1
Motor vehicles – Impaired driving – Roadside screening test – Demand – The police stopped the accused at 10:30 p.m. – They demanded a breath sample for an approved screening device (ASD) – The accused refused and was arrested for failure to comply with the demand – The accused was taken to the police station – He contacted a lawyer at 11:24 p.m. – He indicated that he now wished to provide a sample – After the accused made six unsuccessful attempts to produce a sample, a proper sample was given and registered a fail – The ASD breath sample was provided approximately 80 minutes after the accused’s arrest – The police made a breathalyzer demand, samples were taken and the accused was charged with “drive over .08” – At issue was whether the ASD demand was made “forthwith” within s. 254(2) of the Criminal Code – The Supreme Court of Canada stated that “forthwith” meant “immediately” or “without delay” – The word “forthwith” could not be stretched to bring within s. 254(2) the long-delayed “compliance” that occurred in this case – Section 254(2) depended for its constitutional validity on its implicit and explicit requirements of immediacy – This immediacy requirement was implicit respecting the police demand for a breath sample and explicit as to the mandatory response: the driver had to provide a breath sample “forthwith” – See paragraphs 6 to 15 and 44 to 45.
Criminal Law – Topic 1386.1
Motor vehicles – Impaired driving – Roadside screening test – Demand – The police stopped the accused at 10:30 p.m. – They demanded a breath sample for an approved screening device (ASD) – At issue was whether the ASD demand was made “forthwith” within s. 254(2) of the Criminal Code – The Supreme Court of Canada stated that “the ‘forthwith’ requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10 of the Charter. In interpreting the ‘forthwith’ requirement, this Court must bear in mind not only Parliament’s choice of language, but also Parliament’s intention to strike a balance in the Criminal Code between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.” – See paragraph 29.
Criminal Law – Topic 1386.2
Motor vehicles – Impaired driving – Roadside screening test – Time and place for – [See all
Criminal Law – Topic 1386.1
].
Words and Phrases
Forthwith
– The Supreme Court of Canada discussed the meaning of “forthwith” as used in s. 254(2) of the Criminal Code, R.S.C. 1985, c. C-46 – See paragraphs 1 to 46.
Cases Noticed:
R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 9].
R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 28].
R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181, refd to. [para. 28].
R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1, refd to. [para. 28].
R. v. Cote (1992), 54 O.A.C. 281; 70 C.C.C.(3d) 280 (C.A.), refd to. [para. 34].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2) [para. 10].
Counsel:
Ami Kotler, for the appellant;
Joe Aiello, for the respondent.
Solicitors of Record:
Manitoba Justice, Winnipeg, Manitoba, for the appellant;
Phillips Aiello, Winnipeg, Manitoba, for the respondent.
This appeal was heard on May 11, 2005, before McLachlin, C.J.C., Bastarache, Binnie, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. Fish, J., delivered the following reasons for judgment in both official languages for the court on June 29, 2005.
