Historically, this question has resulted in a lot of litigation. Recently the Ontario Court of Appeal seems to have brought some measure of order to this confusing area. In R.v. Quansah, the driver was observed by a police officer at 3:03 a.m., facing a green light but not moving. An investigation ensued, including an ASD demand and sample. 17 minutes elapsed between the time of the vehicle stop and the time of the ASD sample. The Court set out the five things courts must consider in assessing the immediacy requirement in s. 254(2):
1. The analysis must be done contextually. The 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.
2. The demand must be made by a police officer promptly once he forms the reasonable suspicion. The immediacy requirement commences at the stage of reasonable suspicion.
3. 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 duties as contemplated by s. 254(2).
4. The immediacy requirement must take into account all of the circumstances. These may include a reasonably necessary delay where the breath test cannot immediately be performed because the ASD is not immediately available or where a short delay is necessary to ensure a reliable result or where a short delay is required due to articulated and legitimate safety concerns.
5. One of the circumstances is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring a sample. If so, the forthwith requirement will not have been met.
The time that elapsed was 17 minutes at the most, during which, because the driver had just sped away from him, the officer understandably conducted a limited search of his car for weapons, had a short conversation with him about his alcohol consumption, and checked out the assertion that there was another person in the car with him. In these circumstances, the 17 minute delay was reasonably necessary for the officer to properly perform his task.