Supreme Court upholds acquittal of Quebec man who refused to give breath sample

The flag of the Supreme Court of Canada flies on the east flagpole in Ottawa, on Monday, Nov. 28, 2022. THE CANADIAN PRESS/Sean Kilpatrick

Canada's highest court on Thursday upheld the acquittal of a Quebec man who refused to provide a breath sample to officers who didn't have immediate access to an alcohol screening test.

The Supreme Court of Canada said in a unanimous ruling the demand was invalid because when it was made, police did not have in their possession an approved screening device.

The case dates to April 2017 when police were looking for a suspect in Val‑Bélair, near Quebec City, who had been reported by patrollers to have been driving an all-terrain vehicle while impaired.

Officers stopped Pascal Breault, who was on foot and who allegedly had bloodshot eyes and smelled of alcohol.

Police radioed their nearby colleagues to provide them with a test, but the man repeatedly said he would not provide a breath sample and insisted he had not been behind the wheel of an ATV.

After Breault refused three times despite being told it could lead to criminal charges, police eventually cancelled the request for the screening device and charged him with refusing to comply with a demand to provide a breath sample.

At issue was whether the demand by police was valid given they did not have a screening device on hand. Under the Criminal Code, police can require that a person “provide forthwith” a breath sample if the person is suspected of drinking and driving within the previous three hours.

The test must be done using an approved screening device, and the reading determines whether there's enough alcohol to warrant a full breathalyzer test giving the blood alcohol reading.

But the high court ruled that in order to demand a sample, police must have the testing device on hand.

According to Justice Suzanne Côté writing for the court, the word “forthwith” in the Criminal Code section means the test should be given immediately.

"A person cannot be criminally liable for refusing to comply with a demand with which it was not actually possible to comply because of the absence of an (approved screening device) at the time the demand was made," Côté wrote.

Breault was found guilty by a municipal court of refusing to comply with a police order for a breath sample and the Quebec Superior Court upheld that decision before the Quebec Court of Appeal acquitted him.

The Crown then appealed the case to the Supreme Court, which heard the case during a sitting in Quebec City in September.

This report by The Canadian Press was first published April 13, 2023.