Peter Quansah may be colour blind, more likely he was just intoxicated. At 3:03 am he was spotted by a police officer sitting at a green light, not moving. The officer approached Quansah and noted that he was sitting in the driver's seat with his eyes closed. The officer attempted, for 10-15 seconds to waken Quansah; the officer noted Quansah had red and bloodshot eyes.
Quansah then awoke and drove off. The officer returned to his cruiser and gave chase. About a minute later Quansah pulled over. The officer again approached him and noticed his eyes were also unfocused and glosssy.
Between 3:06 and 3:17 the officer conducted a limited search for weapons and had a conversation with Quansah about his alcohol consumption. At 3:17 an ASD demand was made. Quansah failed and later provided samples indicating a BAC of 115.
At trial the officer admitted that he formed a reasonable suspicion - the standard required to make the demand - during the initial contact with Quansah. Quansah sought to exclude the breath samples arguing that the demand was not "forthwith" as required by 254(2) and therefore not a valid demand. The trial judge dismissed the motion and Quansah was convicted. Quansah successfully appealed. The Crown appealed to the OCA: 2012 ONCA 123.
The OCA restored the conviction. In doing so, it rejected the notion - argued by Quansah and held by teh summary conviction appeal judge - that "forthwith" always meant "immediate". The court also rejected the Crown's position that "forthwith" was always governed by "reasonable opportunity to consult counsel".
Instead, the court held that the following five factors should be considered in assessing whether a demand was made "forthwith" [paras 45-49].
First, consider the context - Parliament's intent was to strike a balance between an individuals rights and the need to protect the public from impaired drivers.
Second, the demand must be made "promptly" after forming a reasonable suspicion.
Third, the entire process - demand and compliance - must be no more than is reasonably necessary to enable the officer "to discharge his or her duty" under 254(2).
Fourth, the "forthwith" requirement must take into account all the circumstances of the situation.
Fifth, one of those considerations is whether the right to counsel could have been implemented.
While the result in this case is clearly the right one, the legal analysis is curious for at least two reasons. First, just a few months ago the same Court of Appeal defined "forthwith" clearly and perhaps exclusively in the context of reasonable opportunity to consult counsel: R v Degiorgio, 2011 ONCA 527. Second, defining "forthwith" by another arguably ambigous term "promptly" does little to assist trial courts in considering this issue.
DG Mack