Forthwith - Re: Meaning of

R. v. Woods, 2005 SCC 42 (CanLII), [2005] 2 SCR 205

13 We are left as well with the ASD breath sample provided by the respondent at the police station, approximately 1 hour and 20 minutes after his arrest for refusing to provide a sample at roadside. “Forthwith” means “immediately” or “without delay”: Canadian Oxford Dictionary (2nd ed. 2004), at p. 585. Without doing violence to the meaning of the word, “forthwith” cannot be stretched to bring within s. 254(2) of the Criminal Code the long-delayed “compliance” that occurred in this case. This semantic obstacle to the Crown’s position, like the factual one, is in my view insurmountable.

14 The constitutional obstacle is no easier for the Crown to overcome. Section 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit as regards the police demand for a breath sample, and explicit as to the mandatory response: the driver must provide a breath sample “forthwith”.

44 The “forthwith” requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and an immediate response by the person to whom that demand is addressed. To accept as compliance “forthwith” the furnishing of a breath sample more than an hour after being arrested for having failed to comply is in my view a semantic stretch beyond literal bounds and constitutional limits.

R. v. Quansah, 2012 ONCA 123 (CanLII)

[12] The summary conviction appeal judge held that the trial judge erred in his application of the principles set out in R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205. He found that the trial judge’s analysis “is far different from the analysis that Mr. Justice Fish makes in his definition or his finding that ‘forthwith’ means immediately or without delay.” The appeal judge ordered a new trial, from which the Crown seeks leave to appeal.

[26] Woods confirms this and reasserts that the constitutional validity of s. 254(2) depends on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit for the police demand for a breath sample and explicit for the mandatory response: the driver must provide a breath sample “forthwith”. The term “forthwith” in s. 254(2), therefore, means “immediately” or “without delay” and indicates a prompt demand by the peace officer and an immediate response by the person to whom that demand is addressed: see Woods, at paras. 13-14 and 44. However, in unusual circumstances “forthwith” may be given a more flexible interpretation than its ordinary meaning strictly suggests: see Woods, at para. 43.