R. v. Mailey, 2012 ABQB 138

Court of Queen ’ s Bench of Alberta Citation: R. v. Mailey, 2012 ABQB 138 Date: 20120321 Docket: 081389116S2 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Patrick Owen Mailey Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice McCarthy _______________________________________________________ Appeal from the Conviction by The Honourable Judge H.A. Lamoureux Dated the 14 th day of January, 2011 2011 ABPC 10 , Docket: 971378116O19191

Overview 1. Introduction 2. Background 3. Reasons of the Trial Judge 4. Issues to be Determined 5. Standard of Review A. Standard of Review: Unreasonable Verdict B. Standard of Review:

Interpretation and Application of “ as soon as practicable ”

i) Interpretation of the “as soon as practicable requirement” ii) Application of the “as soon as practicable requirement” 6. Governing Principles A. The presumption contained in s. 258(1)(

c) B. Rationale for the “ As Soon As Practicable ” Requirement C. The

Interpretation of the “ As Soon As Practicable ” Requirement.

i) Governing principles with respect to the

interpretation of the “as soon as practicable” requirement set out by various appellate courts. ii)

Interpretation of “as soon as practicable” : Application to the case at bar D. The Application of the “ As Soon As Practicable ” Requirement

i) Governing principles with respect to the application of the “as soon as practicable” requirement. ii) Application of “as soon as practicable” : Application to the case at bar. 7. Conclusion 1. Introduction [ 1 ] This is an appeal of a

summary conviction in the Provincial Court of Alberta whereby the Appellant was convicted of driving having consumed excess alcohol. The Trial Judge found that the Crown proved beyond a reasonable doubt that samples of the Appellant’s breath taken at a roadside Check Stop in Calgary, Alberta, were taken as soon as practicable, and in accordance with the provisions of the Criminal Code of Canada . [ 2 ] At trial, the Crown relied on the presumption found in s. 258(1) (c)(ii) of the Criminal Code to prove the alcohol concentration in the blood of the Appellant at the time of the commission of the alleged offence. Counsel for the Appellant argued that

the Crown could not rely on this presumption because breath samples had not been taken as soon as practicable, as required by s. 258(1) (c)(ii) of the Criminal Code .

The Trial Judge rejected this argument and convicted the Appellant. [ 3 ] In order to relate the results of breath samples taken after a person who is stopped at the roadside and accused of operating a motor vehicle while his or her blood alcohol level exceeds the legal limit, the Crown is required to establish beyond a reasonable doubt that the tests were taken as soon as practicable: s. 258(1) (c)(ii) Criminal Code . [ 4 ] In the present case, a period of 37 minutes elapsed from the time the accused was stopped at the roadside by the arresting officer to the time that his first breath sample was taken.

Within that 37 minute time frame, a 25 minute delay occurred, for which no explanation was provided, and which the Appellant claims was unreasonable. In broad terms, the issue on appeal is whether the Trial Judge erred in finding that despite the period of delay, breath samples were taken as soon as practicable as required by the Criminal Code of Canada . 2. Background [ 5 ] Patrick Owen Mailey (the “Appellant”), was stopped at an Alberta Check Stop on October 31, 2008 by Calgary Police Services Officer, Constable Mike Hagen.

The Appellant was stopped while driving a motor vehicle heading eastbound along Memorial Drive in Calgary, Alberta. The facts as follows are not in dispute. [ 6 ] The Appellant was stopped by Constable Hagen at the roadside Check Stop at 2216 hours, at which point the Appellant admitted to consuming alcohol at 2130 hours that evening.

He was then asked to accompany the officer to the officer’s police vehicle, where the officer read to the Appellant the roadside breath screening demand at 2218 hours. [ 7 ] At 2219 hours, the Appellant registered a fail reading on the Approved Screening Device (ASD), and at 2220 hours, the officer formed the opinion that the Appellant’s ability to operate a motor vehicle was impaired by alcohol. [ 8 ] At 2223 hours, the officer read the Charter rights and Caution to the Appellant, and at that time, also read the evidentiary breath demand to the Appellant and escorted him to the Check Stop bus.

Two minutes later, at 2225 hours, the Appellant was placed in the telephone room on the Check Stop bus. At 2227 hours, the officer read a formal waiver of the right to counsel to the Appellant. At 2252 hours, the Appellant provided the first evidentiary breath sample and at 2313 hours he provided the second sample. [ 9 ] The Appellant was served his release documents at 2322 hours and was released at 2326 hours.

Between 2227 hours when the waiver was read and 2252 hours when the Appellant was presented to the Breath Technician, the Appellant and the officer simply sat on a bus bench across from each other. [ 10 ] In particular, the officer concluded his interaction with the Appellant with regard to his right to counsel at 2227; the Appellant was then sat on the bench and was not presented to the breath technician until 2252, a delay of 25 minutes. [ 11 ] The Appellant was charged under sections 253(1) (

a) and 253(1)(

b) of the Criminal Code . 3. Reasons of the Trial Judge [ 12 ] The learned Trial Judge, in her written decision of R. v. Mailey , 2011 ABPC 10 , found the Appellant guilty of operating a motor vehicle while his blood alcohol level exceeded the legal limit of 80 mg of alcohol in 100 ml of blood. The Appellant was sentenced to a $1,200 fine, a $120.00 victim fine surcharge, and a 12 month driving prohibition.

[13] At paragraph 6 of her decision, the Trial Judge made the following findings of fact on the basis of the testimony of ConstableHagen, who was the sole witness at trial: 1. The Check Stop was a lawful Alberta Check Stop conducted in a high visibility location in Calgary, Alberta. 2. A period of 37 minutes elapsed from the time the accused was stopped by the arresting officer to the time that his first sample ofbreath was taken. 3. There is no evidence to explain the reason for the officer and the accused being seated on the Check Stop bus between 2227 and2253 (sic) hours.

The only evidence which the court accepts, is that the accused and the police officer sat across from each other on thebus for that time frame. [14] In her decision, the learned Trial Judge remarked that Constable Hagen is a member of Calgary City Police with 10 yearsexperience, and found him to be a credible, reliable witness. She accepted his testimony in its entirety. [15] During his testimony at trial, the following exchange took place between Constable Hagen and the Crown Prosecutor : Q: Thank you. Now after the - after you had this interchange with the accused, what happened next?

A: He was - he was seated on - on the bench inside the bus and - and we were just waiting to be - I explained to him what I would be- the process would be that he be brought forth and qualitan (sic) - in front of a qualified breath tech to provide a sample of his breath. [16] At paragraphs 8-11, the Trial Judge set out her reasons for finding that the Appellant’s breath samples were taken as soon aspracticable as follows: 8 The phrase "as soon as practicable" has been interpreted by the Alberta Court of Appeal to mean "within a reasonably prompt timeunder the circumstances", R. v. Van der Veen, supra.

The Court agrees with the submissions of the Crown that the analysis must be inthe context of the entire chain of events from the perspective of three critical times: I. The time when the accused was operating the motor vehicle. II. The time when the demand was made. III. The time when samples were taken. (R. v. Carter, supra.) 9 Further, it is very clear that the phrase "as soon as practicable" does not mean "as soon as possible", R. v. Altseimer, supra. TheCourt must be cautious not to overanalyze the requirement of taking samples as soon as practicable.

A fair dose of reason and commonsense must be utilized to interpret the meaning of the statutory requirement "as soon as practicable". It is extremely difficult to reconcileall the various cases quoted by both the Crown and Defence in this case in their submissions to the Court. It is clear however that fromreview of all the decisions the Courts will permit reasonable and necessary delays, provided they fall within the two hour windowestablished by the legislation. The word practicable is distinguishable from the work (sic) possible.

The Criminal Code does not requiresamples to be taken as soon as possible but rather as soon as practicable, the latter of which means as soon as is feasible, fair andconvenient, R. v. Moodrey, 1979 ABCA 286 , 1979 A.J. No. 613, at paragraph 14. This Court agrees with the comments of theBritish Columbia Court of Appeal in R. v.

Cambrin (1982) (BC CA), 1 C.C.C. (3d) 59, at page 62, in which theLearned Justice Craig, J.A., said: The framers of the legislation never intended that the prosecution will have to account for each minute which elapsed between the timeof the arrival of the accused and the taking of the first test. As Mr. Justice MacDonald, in giving a judgment of this Court in R. v.

Carter,pointed out, a test adopted by the Appeal Judge in that case, and apparently adopted by the Appeal Judge in this case (at 407) "wouldrequire a trial judge to find that the conditions specified in paragraph (c)(ii) had not been met without evidence explaining a delay of aslittle as five minutes.

10 The key therefore, is to examine the actions of police in the entire chain of circumstances in their dealings with the accused. 11 In this case, the Court finds that the Crown has proven beyond a reasonable doubt that the sample of the accused' (sic) breath wastaken as soon as practicable in accordance with the provisions of the Criminal Code.

A time lapse of 37 minutes from the time thevehicle was stopped to the time of taking the first sample falls within the statutory definition required by the Criminal Code, and theCertificate of Analysis is admitted as proof of the offence with which the accused is charged.

The statutory presumptions are notrebutted. (...) [17] The preceding analysis, combined with proof of the offence in the form of a Certificate of Analysis indicating that bloodalcohol samples taken from the Appellant exceeded 80 mg per 100 ml of blood, led the learned Trial Judge to find the Appellant guilty ofthe offence as charged under s. 253(1)(

b) of the Criminal Code. The Appellant now appeals the conviction on the following basis:

a) The Learned Trial Judge’s finding that the delay in obtaining breath samples, and particularly the 25 minute unexplained delayoccasioned in this case was either reasonable or necessary was not supported by the evidence;

b) The Learned Trial Judge erred in law in finding that the “as soon as practicable” requirement in s. 258 of the Criminal Code canbe satisfied despite appreciable and unjustified delay; and,

c) The Learned Trial Judge’s finding that the breath samples were obtained as soon as practicable was unreasonable. 4. Issues to be Determined [18] The issues to be examined are as follows: 1. Were the breath samples taken “as soon as practicable”? 2. Did the learned Trial Judge err in interpreting the standard for “as soon as practicable” in s. 258(1)(c)(ii) of the Criminal Code? 3. Did the learned Trial Judge err in applying that standard for “as soon as practicable” in s. 258(1)(c)(ii) of the Criminal Code tothe facts? 5.

Standard of Review [19] The parties are not in agreement as to the appropriate appellate test applicable in the case at bar. A. Standard of Review: Unreasonable Verdict [20] The Appellant submits that the Trial Judge rendered an unreasonable verdict in finding that breath samples were obtainedfrom the Appellant as soon as practicable. He relies on the dissenting opinion expressed in R. v.

Gagnon, 2006 SCC 17, 1 SCR 621, inwhich Deschamps and Fish JJ. discuss the applicable standard in the context of unreasonable verdicts. [21] The classic unreasonable verdict test, as indicated by the dissent in Gagnon at para 43, was originally developed in Corbett v.The Queen, (SCC), [1975] 2 SCR 275, and was subsequently refined in R. v. Yebes, (SCC), [1987] 2SCR 168, before being recently restated in R. v. Biniaris, 2000 SCC 15, 1 SCR 381. The test is “whether the verdict is one that aproperly instructed jury acting judicially, could reasonably have rendered”: Biniaris, at para 36.

In Gagnon, the dissent was of the viewthat the Trial Judge’s finding was supported neither by the evidence nor even by her own analysis of the evidence. The dissent equated

the inadequacy of the Trial Judge’s reasons to an error of law. [ 22 ] The Gagnon case provided by the Appellant, while properly identifying the principles governing the law which applies to unreasonable verdicts, does not apply under the circumstances. I have not been provided with any cases where the unreasonable verdict test was applied in a

summary conviction appeal of this nature. The Appellant states that in ruling that the breath samples were taken as soon as practicable, the Trial Judge must have come to this conclusion in one of two ways: either she deemed the 25 minute delay as reasonable and necessary, and therefore deemed the overall delay justified in the circumstances; or she relied exclusively on the overall time delay without proper regard to the 25 minute unexplained delay.

It is submitted that both approaches are improper and result in an error in law and an unreasonable verdict. [ 23 ] With respect, the unreasonable verdict standard does not apply in considering whether the Trial Judge erred in concluding that the breath samples were taken as soon as practicable. The arguments advanced by the Appellant in the present case in support of an unreasonable verdict are certainly germane to the issues in this case, but more accurately relate to the

interpretation and the application of the “as soon as practicable” test to the evidence, rather than the issue of unreasonable verdict. [ 24 ] Crown counsel correctly submits that in cases such as this, involving the examination of the “as soon as practicable” requirement in

summary conviction appeals, courts have consistently held that the issues under appeal are: 1.

interpretation of the phrase as soon as practicable, which is a question of law reviewable on a standard of correctness; and 2. the application of that test to the evidence, which is a question of fact reviewable on a standard of palpable and overriding error; and not whether the Trial Judge has rendered an unreasonable verdict. Indeed, the bulk of case-law canvassed in the proceeding analysis supports this submission. B. Standard of Review:

Interpretation and Application of “as soon as practicable ” [ 25 ] It is settled law that the standard of review on a question of law is correctness. The standard of review on findings of fact is “palpable and overriding error”. The application of a legal standard to a set of facts is a question of mixed fact and law, and is thus subject to a standard of palpable and overriding error, unless it is clear that the Trial Judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law, subject to a standard of correctness: Housen v. Nikolaison , 2002 SCC 33 , 2 SCR 235 at paras. 8-37 .

i) Interpretation of the “as soon as practicable ” requirement [ 26 ] The Crown’s position is that the standard of review to be applied to the determination of whether the learned Trial Judge properly interpreted the test for “as soon as practicable” is correctness. I agree. The

interpretation of a legal standard is consistently held to be a question of law. ii) Application of the “as soon as practicable ” requirement [ 27 ] As for the standard of review applicable to the application of “as soon as practicable” to the facts, the Crown submits this is subject to a standard of palpable and overriding error. While this issue is not yet settled, a substantial amount of appellate jurisprudence follows the question of fact standard.

Thus, the Crown submits that the standard of review regarding the application of “as soon as practicable” in this application ought to be the same. [ 28 ] Overwhelmingly, appellate courts across the country have interpreted the application of this legal standard as being a question

of fact. Ker J sitting as a

Summary Conviction Appeal Justice (“SCAJ”) in the British Columbia Supreme Court in R. v. Walmsley, 2008BCSC 1625, [2009] BCWLD 3279, held at paras 16-20 that the meaning and

interpretation of “as soon as practicable” within themeaning of 258(1)(c)(ii) of the Criminal Code constitutes a question of law. As for the finding of facts that led to the conclusion that thedemand was made or was not made as soon as practicable, within the correct meaning of that phrase, the learned Justice found that to bea question of fact. [29] In his reasons, Ker J relied on the British Columbia Supreme Court’s decision in R. v. Plonka, 2008 BCSC 881, a

summaryconviction appeal case where the Court conducted a review of the jurisprudence on whether an appeal addressing the phrase “as soon aspracticable” raised a question of law or fact. In the Plonka decision, the application of facts to the “as soon as practicable” test was heldto be a question of fact. [30] Support for this conclusion can also be found in the Ontario Court of Appeal case of R. v. Torsney (2009), 981 MVR (5th)212. [31] Similarly, in R. v. Littler (2008), 72 MVR (5th) 70, the

summary conviction appeal justice relied on the Ontario Court ofAppeal decision of R. v.

Vanderbruggen, (ON CA), [2006] 29 MVR (5th) 260, 206 CCC (3d) 489 (Ont CA) and heldthat although the meaning to be accorded to the phrase “as soon as practicable” has been held to involve questions of law (see, e.g., R. v.Letner, (ON CA), [2000] 150 CCC (3d) 225, 51 OR (3d) 737), “the question as to whether samples in any particularinstance were taken as soon as practicable has been held to be an issue of fact for the trial judge”: para 25. [32] The Appellant argues that the standard of review for whether the facts as found by the Trial Judge meet the legal requirementthat breath samples be taken as soon as practicable is a question of law and reviewable on a standard of correctness.

He relies on theAlberta cases of R. v. Buffalo, 2010 ABQB 325, 480 AR 284 at para 16 and R. v.

Burton, (AB KB), [1988] 89 AR 60(QB) at paras 9-13 in support of this proposition. [33] In Buffalo, Binder J. of the Alberta Court of Queen’s Bench found that the Trial Judge in Provincial Court did not err infinding that the breath samples of the accused were taken “as soon as practicable” despite a delay of one hour and 21 minutes from thetime the accused was stopped to the time the breath samples were taken. [34] In discussing the standard of review applicable to the Trial Judge’s ultimate ruling on whether breath samples were taken “assoon as practicable”, Binder J. stated at paragraph 16 that “[...] the ultimate ruling on reasonable suspicion and the requirement that thebreath samples be taken “as soon as practicable”, in my opinion, is also reviewable for correctness”.

He noted, however, that suchfindings have been held to be subject to review for overriding or palpable error: para 16. [35] In the second case provided by the Appellant, Burton, there was a total delay of 95 minutes before breath samples were taken.This delay was caused first by the police officer waiting for a second officer to take charge of the accused’s car, followed by a delay dueto the accused’s attempts to contact a lawyer. There, the accused’s appeal from a conviction for driving with excessive alcohol wasallowed, given the length of the delay in that case.

However, on my reading of Burton, the Court explained in that case that while anappellate court has authority to overturn a trial Judge’s

interpretation of the phrase “as soon as practicable”, it does not have authority tooverturn a trial Judge on the question of fact as to whether the breath samples were taken “as soon as practicable”. This further bolstersthe applicability of the question of fact standard. [36] As Crown counsel in my view rightly points out, Burton does not stand for the point that the standard of correctness applies tothe application of the facts to the legal requirement that breath samples be taken as soon as practicable. The following is found at paras 9-11 of the Burton decision: In R. v. Cambrin (1982) (BC CA), 1 C.C.C. (3rd) 59 (BCCA), the

interpretation of the phrase " as soon as practicable"was held to be a question of law. (See also R. v. Cander (1981) (BC CA), 59 C.C.C.(2d) 490 (B.C.C.A.)). However, the issue of whether or not the samples were taken "as soon as practicable" is a question of fact to be decided by the trialjudge. (See R. v. Carter (supra) at 4 5 2 ) .

On the first issue, it appears from the above-mentioned authorities, that an appellate court may overturn a trial judge on the question of the

interpretation of the phrase "as soon as practicable". The Appellate Court may not, however, overturn a trial judge on the question of whether the samples were in fact taken "as soon as practicable". [Emphasis added.] [ 37 ] As previously mentioned, the standard of review regarding the application of “as soon as practicable” to the facts is not yet settled.

Taking into account however the substantial amount of appellate jurisprudence that follows the question of fact standard, I am of the view that the standard of review regarding the application of “as soon as practicable” in the present case ought to be the same. It follows that in order to interfere with her decision, I must find that the learned Trial Judge committed a palpable and overriding error. 6. Governing Principles [ 38 ] The relevant portions of s. 258(1) of the Criminal Code read as follows : 258(1) Proceedings under

section 255 In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), … (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if- (i) (not in force) (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things - that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; … (d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused's blood was performed improperly, does not include evidence of (

i) the amount of alcohol that the accused consumed, (ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused's body, or (iii) a calculation based on that evidence of what the concentration of alcohol in the accused's blood would have been at the time when the offence was alleged to have been committed;

(d.1) if samples of the accused's breath or a sample of the accused's blood have been taken as described in paragraph (

c) or (

d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused's blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused's consumption of alcohol was consistent with both (

i) a concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and (ii) the concentration of alcohol in the accused's blood as determined under paragraph (

c) or (d), as the case may be, at the time when the sample or samples were taken; [Emphasis added.] [ 39 ] Section 258(1) of the Criminal Code includes the presumption that the readings of blood alcohol made by the Intoxilyzer are accurate and the presumption that the readings taken at the time of testing are equivalent to the subject’s blood alcohol level at the time of driving within specified time and other limits. [ 40 ] Most importantly, for the purposes of this appeal, the Crown must establish that breath tests were taken as soon as practicable after the offence was alleged to have been committed in order to avail of the presumption contained subsection (1)(c)(ii) of the provision.

A. The presumption contained in s. 258(1)(c)(ii) [ 41 ] The presumption set forth in s. 258(1) (c)(ii) of the Criminal Code , often called the presumption of identity, allows the Crown to relate breath sample results back to the time of driving without the need to call further evidence.

If the requirements in s. 258(1) (c)(ii) are satisfied, and in the absence of evidence to the contrary, the Crown is entitled to presume that the alcohol blood content of the accused's blood exceeded the permitted level at the time he was operating his motor vehicle. [ 42 ] Once the presumption applies, the accused is precluded from challenging the readings based on evidence of the accused's drinking pattern, alcohol absorption or elimination rates. B.

Rationale for the “as soon as practicable ” requirement [ 43 ] Given this statutory presumption enacted for the benefit of the Crown in prosecuting drinking and driving cases, and in order to understand why appreciable unjustified delays cannot be overlooked, it is important to note the rationale behind the “as soon as practicable” requirement. [ 44 ] The “as soon as practicable” requirement is a precondition to the presumption found in s. 258(1) (c)(ii) of the Criminal Code . As explained by the Court in R. v.

Davidson , [2005] OTC 716, 23 MVR (5th) 77, 67 WCB (2d) 645 (Ont SJC) at para 19 , the “as soon as practicable” requirement was enacted as a protection for accused persons. According to the Justice in that case, at paragraph 19: The as soon as practicable requirement assists in ensuring that the presumption operates fairly and leads to accurate results. Consequently, any delay impinges on a protection Parliament has enacted for the benefit of the accused. Adherance to the requirement that breath samples be provided as soon as practicable was also discussed by the

summary conviction appeal justice in R. v. Bouchey , [1998] 39 MVR (3d) 125, 86 OTC 137, at paras 22-27 :

There are two reasons for this rule of law that Breathalyser tests must be taken as soon as practicable after the offence was alleged tohave been committed. One is technical, the other is legal. From a technical point of view the amount of alcohol in the blood is constantly changing. It increases at first as the alcohol is beingabsorbed into the blood from the stomach and alimentary canal, and it decreases later as the alcohol is broken down by the chemicalprocesses of the body.

For convenience the law dictates that a blood/alcohol reading taken within a reasonable time after the allegedoffence reflects the blood/alcohol reading at the time of the alleged offence but this is a legal fiction. The greater the time which elapsesbetween detention and test, the greater the fiction it really is. For this reason the law itself refuses to accept readings taken more than twohours following the alleged offence. … From a legal point of view, this is an extraordinary procedure.

As a general rule, in the absence of reasonable grounds to believe anoffence is, has been or will be committed, the police have no right to stop a person passing lawfully along the Queen's highway. Norhave they any right to deflect such wayfarers to a distant point and force them to produce a sample of bodily substances in anticipationthat such a sample will disclose the commission of an offence. This general rule is modified by certain statutory powers. As Harradence J.A. pointed out in R v.

Van Der Veen (1988), 1988 ABCA 277 , 11 M.V.R. (2d) 251 at 255, we are dealing witha situation involving a statutorily authorized infringement on the liberty of the subject. The requirement that the breath samples be taken"as soon as practicable" should be strictly interpreted and applied so as to prevent intrusion of a detained person's liberty for no longerthan is necessary. [45] The rationale for the requirement found in s. 258(1)(c)(ii) was also recently explained in R. v. Willette, 2011 ONSC 1055, 11 MVR (6th) 273 at paras 46-49, cited with approval in R. v.

Bacchus, 2011 ONCJ 448, 98 WCB (2d) 135 by the Ontario Court of Justice,as follows: The "as soon as practicable" requirement was enacted as a protection for the accused, since the presumption operates to fix the accusedwith a blood alcohol content that existed sometime after the time of driving. This requirement mandates that the breath test be conductedas soon after the time of driving as reasonably possible in order to ensure that the presumption operates fairly and that the breath testingleads to accurate results: R. v. Davidson, [2005] O.J. No. 3474 at para. 12 (S.C.J.); R. v.

Phillips, (ON CA), [1988] O.J.No. 415 (C.A.). In enacting the "as soon as practicable" requirement, Parliament was concerned that it protect against the manipulation of the results bydelaying testing to allow for increased absorption of alcohol into the accused's blood: R. v. MacMillan, [2004] O.J. No. 4523 at para. 37(O.C.J.) Accordingly, any delay encroaches on a protection that Parliament has enacted for the benefit of the accused: Davidson, supra, at para.19.

It is also necessary that compliance with this statutory scheme be strictly construed, since it relieves the Crown of the obligation toadduce additional extrapolation evidence and the necessity of calling an expert: R. v. Noble, [1977] S.C.J. No. 68 at pages 7 and 8(S.C.C.); R. v. Walker, [2006] O.J. No. 2679 at para. 2 (S.C.J.); R. v. Wolff, [1976] O.J. No. 694 (H.C.J). [46] Protection for the accused in the form of the “as soon as practicable” requirement appears to be founded in large

part in aconcern for preserving individual liberties in the face of State powers as well as to protect against manipulation of the results of thesamples. For that reason, unreasonable delays in obtaining breath samples from detained persons are not permitted. C. The

Interpretation of the “As Soon As Practicable” Requirement.

[47] This is a question of law, and subject to a correctness standard of review.

i) Governing principles with respect to the

interpretation of the “as soon as practicable requirement” set out by various appellatecourts. [48] The parties are in agreement that the meaning of the phrase “as soon as practicable” is settled. In R. v. Altseimer, (ON CA), [1982] 1 CCC (3d) 7, 38 OR (2d) 783 (Ont. CA) at para 7, the Court held that “as soon as practicable” does not mean “assoon as possible”. Rather, “as soon as practicable” means “within a reasonably prompt time under the circumstances”: R. v. Van derVeen, (1988), 1988 ABCA 277 , 89 AR 4 at para 32 (CA), citing R. v. Mudry, 1979 ABCA 286 , [1979] 19 AR 379, 5MVR 23 (Alta CA) (see also: R. v.

Coverly, [1979] 21 AR 233, 50 CCC (2d) 518 (Alta CA)). [49] Both the Appellant and the Crown Respondent also agree that the Court should look at the whole chain of events, bearing inmind that the Criminal Code provides an outside time limit of two hours from the time of driving to the taking of the first sample : R. v.Vanderbruggen at paras 13 and 16.

The Appellant admits that “[t]here is no requirement that the Crown provide a detailed explanationof what occurred during every minute that the accused is in custody”: Vanderbruggen, at para 13. [50] Crown counsel submit that appellate courts have consistently mandated trial courts take a pragmatic view of the “as soon aspracticable” requirement. A trial Judge should apply common sense and experience when assessing whether the breath samples weretaken as soon as practicable: see, e.g., R. v.

Carter (SK CA), [1981], 59 CCC (2d) 450, 10 MVR 187, 9 Sask R 1(Sask CA) at para 8. [51] The Crown further submits that in both Van der Veen, at para 33 and Vanderbruggen, at para 12, the Courts were of the viewthat the foundation for determining whether samples were taken as soon as practicable is whether the police officer acted reasonably. [52] Indeed, in Carter, an appeal involving a trial conviction where no evidence was called to explain a 21 minute delay betweenthe alleged drinking and driving offence and the taking of breath samples, the Saskatchewan Court of Appeal outlined why anexplanation for every incident which occurred between the time of the alleged offence and the taking of breath samples is not required,at para 8: In my view it is for the learned trial Judge to determine whether or not the breath samples were taken as soon as practicable after the timethe offence was alleged to have been committed.

He comes to this conclusion on his assessment of the facts which are presented to him.When evidence is adduced as to when the accused was first seen either operating or in the care or control of the motor vehicle, the timethe demand was made and the times when the samples were taken, that evidence alone is sufficient for him to determine whether thesamples were taken as soon as practicable. To do so he need not take judicial notice of particular matters, he need only apply reason andcommon sense derived from his experience.

There is no need to explain every incident which occurred from the time the offence isalleged to have been committed until the samples were taken unless the trial Judge on the evidence before him, is not satisfied thesamples were taken as soon as practicable. [53] In Carter, the Court acknowledged there was an absence of evidence to explain the 21 minute period when the accused was incustody.

However, the Court stressed that at trial, judges are not to take into account only the time period which is unexplained, and neednot take judicial notice of particular matters, but rather, should consider the entire time from when the accused was first observed drivingto when the breath samples were taken in determining whether the samples were taken as soon as practicable. [54] The statements of the Court in Carter, were echoed in Vanderbruggen, where the Ontario Court of Appeal reiterated that theCrown does not need to account for every minute of the time that elapses between the time the offence is committed and the time thebreath samples are provided.

Satisfaction of the “as soon as practicable” requirement does not admit to mechanical application, nor isthere an inflexible limitation period beyond which s. 258(1)(

c) will not avail the Crown. The test, rather, is one of good sense and reason,as explained by the Court in Vanderbruggen at paragraph 13. [55] In R. v. J(C.A.), 2004 ABQB 838, 370 AR 76 (QB), the Alberta Court of Queen's Bench expressed the view that this issueshould be evaluated broadly, in the context of the two hour limit set out in the Criminal Code. The Court stated at paragraph 24 that “…

the Court should look at the total length of time to determine if the samples were taken within the time limit provided by s. 258 . If they were, the court must examine if there was a delay in taking the samples.” [Emphasis added.] [ 56 ] The Court in J(C.A.) , went on to suggest at para 24 that the correct analytical approach is to first look at the length of the delay to determine whether or not it raises a prima facie concern.

If the length of the delay does not raise a prima facie concern, the trial court is to look at whether the explanation for the delay is reasonable. [ 57 ] Justice Ross took a similar position in the recent case of R. v. Husain , 2010 ABQB 708 , 503 AR 125 (leave to appeal refused, 2011 ABCA 73 ). Ross J. emphasized that it is an error of law to focus exclusively on a particular aspect of the delay, as this is inconsistent with the direction in Mudry to consider the time to take the sample in the context of the statutory limit.

Ross J stated at paragraph 36: The Trial Judge focussed exclusively on a particular aspect of delay; that occasioned by efforts to contact counsel following a waiver of the right to counsel. This is inconsistent with Mudry's direction to consider the time to take the samples in the context of the statutory limit, which requires a more general approach to the issue of delay. The problem with focussing on one aspect of delay is that it can magnify the importance of mere minutes.

Thus the court in Davidson concluded that delay of this type that is "of more than a very minor nature" means that "tests will not have been administered as soon as practicable". Similarly, the Trial Judge's determination that a period of 16 minutes was sufficient to require explanation, combined with his finding that the accused had clearly waived his right to counsel, automatically led to the conclusion that the samples were not taken as soon as practicable.

Such a rigid rule is inconsistent with the flexibility and common sense called for in Mudry . [ 58 ] The Crown submits, and I agree, that the tenor of these higher court authorities is that the Crown does not have to account for every minute of time spent with the accused. Some unexplained delay is acceptable. Courts take a broad approach in this issue and will accept a general explanation for what occurred in a period of time. ii)

Interpretation of “as soon as practicable ”: Application to the case at bar [ 59 ] In light of the broad approach mandated by appellate jurisprudence as regards the requirements of s. 258(1) (c)(ii) of the Criminal Code , I turn now to the issue of whether the learned Trial Judge in the case at bar applied the correct

interpretation of the term “as soon as practicable”. [ 60 ] The Appellant contends that in her written judgment in R. v. Mailey , the Trial Judge makes no finding as to whether the 25 minute unexplained delay was reasonable or necessary. He concedes that the Crown does not have to account for every minute of an investigation (see Vanderbruggen , at para 13 ), and by implication the Court does not have to scrutinize minor unexplained delays. However he relies on R. v. Morrison (12 October 1993), Unreported, Edmonton (Alta QB) at p. 4, as well as R v.

Jonasson , [1997] 35 WCB (2d) 60 , AJ No 585 (Prov Ct) at para 17, R. v. Brandt , [1996] AJ No. 1417 (Prov Ct) at para 8 , and R. v.

Fitzpatrick , [1978] AJ No 722 (Sup Ct) at para 5 , to support the proposition that lengthy continuous delays over 20 minutes require analysis. [ 61 ] The cases of Jonasson , Brandt , and Fitzpatrick , are not binding authority and do not appear to be consistent in legal principle with appellate authority on point, so as to be of little persuasive power. [ 62 ] Turning to the unreported case of Morrison , the Crown argues that the Justice in that case did not follow the requirements set out by higher authority, and submits that this case was wrongly decided. [ 63 ] From the brief facts in the Morrison decision, it appears that there was a 45 minute unexplained delay from when the accused was prepared to provide breath samples to when the samples were actually provided.

According to the Crown, while the Justice in Morrison cites the appropriate legal test as to whether the Respondent has proven the samples were taken as soon as practicable, the test actually applied by the Justice was whether there was “an appreciable lapse of time” or “appreciable delay”. By applying the incorrect test, the Justice solely considered the unexplained time period in determining whether the samples were taken as soon as practicable.

[64] This application of the test stands in stark contrast to the flexible

interpretation of “as soon as practicable” mandated by theAlberta Court of Appeal decisions of Mudry and Van der Veen, which requires the Court to look at the entirety of the circumstances.This includes the time from when the accused was first stopped, consideration of whether the whole of the investigation was donereasonably and expeditiously and whether samples were taken as soon as practicable.

As such, I do not believe the Morrison decisionought to be followed. [65] I agree with the Crown Respondent that the learned Trial Judge in the case at bar did not err, and applied the correctinterpretation of the term “as soon as practicable” under the circumstances. [66] The learned Trial Judge made specific mention of and correctly used the previously discussed principles set out by superiorcourts. The Appellant argues that due to the Trial Judge's failure to take judicial notice or draw inferences as to the cause of the delay,the delay cannot be said to be either reasonable or necessary.

However, caselaw has established that a trial Judge is not required to drawany such inferences. Rather, the trial Judge must look at the entirety circumstances. The Trial Judge did exactly that, and made thefollowing specific findings in her trial decision : a. The first sample must be received within a reasonably prompt time under the circumstances (at para 8); b. The whole chain of events must be examined, bearing in mind the Criminal Code provides an outside limit of two hours from thetime of driving to the taking of the first sample (at paras 9 and 10); c.

The length of time must be analyzed applying common sense and experience (at para 9); and d. The Crown need not account for every minute of time that elapses between the time the offence is committed and the time thebreath samples are provided (at para 9). [67] Ultimately, the learned Trial Judge found that the determinative factor was the total time spent from the beginning of theinvestigation to the taking of the samples.

She found, at para 11: … the Crown has proven beyond a reasonable doubt that the sample of the accused' (sic) breath was taken as soon as practicable inaccordance with the provisions of the Criminal Code. A time lapse of 37 minutes … falls within the statutory definition required by theCriminal Code (…). [68] In so finding, the Trial Judge correctly relied on the legal principle in R. v.

Cambrin (1982), (BC CA),[1983] 2 WWR 250, 18 MVR 160, which followed Carter, from the Saskatchewan Court of Appeal, such that the Court may examinethe total delay. [69] If that total delay does not reach the threshold requirement that further analysis is necessary, then the analysis ends there:Carter, at para 8. D. The Application of the “As Soon As Practicable” Requirement [70] This is a question of fact and I consider it appropriate to apply the standard of review of palpable and overriding error to theissue of application of the “as soon as practicable” requirement found in s. 258(1)(c)(ii).

i) Governing principles with respect to the application of the “as soon as practicable” requirement. [71] This second issue relating to the “as soon as practicable” requirement involves the examination of whether the learned TrialJudge correctly applied the test to the fact pattern at trial. In the case at bar, the learned Trial Judge found that it took 37 minutes fromthe initial stop of the Appellant’s vehicle to when he gave his first sample of breath.

[72] As previously mentioned, the learned Trial Judge found that within that 37 minute interval, there was a 25 minute unexplaineddelay before the sample was taken as the investigator and the Appellant sat across from each other on a bench, waiting for theopportunity to access the Intoxilyzer 5000C. [73] The issue here becomes whether the Trial Judge erred in focussing on the overall delay of 37 minutes, and if so, whether the25 minute delay requires explanation.

The Appellant argues that the learned Trial Judge erred either in deeming the unexplained delay as“reasonable and necessary,” or that she relied exclusively on the overall time delay without proper regard to the 25 minute unexplaineddelay. [74] The Appellant provides the cases of R. v. Brandt, [1996] AJ No. 1417 (Prov Ct), R. v. Jonasson [1997] AJ No 585, R. v.Macdonald, [2006] AJ No 1714 (Prov Ct), R. v. Mario, 2010 ABPC 305, R. v. Burton, supra, R. v. McAllister, 2009 ABPC 320; R. v.Budgell, 2007 ABPC 138, R. v. Turcotte, 2008 ABPC 16, R. v.

Goss, 2008 ABPC 10 , [2008] AJ No 116 (Prov Ct), and R. v.Keen, [2009] AJ No 576, all of which deal with appreciable delay which had no justifiable explanation, and in all of which it was heldthat the “as soon as practicable” requirement had not been met. [75] The Appellant submits that the authorities mentioned in the foregoing paragraph establish that unnecessary and unreasonabledelays in taking breath samples in the range of 25 minutes are not considered to have been taken as soon as practicable, no matter howlong or short the overall delay.

From among those authorities, he specifically refers the Court to the case of Jonasson, where the Judgegave the “as soon as practicable” condition a strict

interpretation and application. [76] However, Jonasson has been specifically recognized as being wrongly decided by Marceau J in the case of R. v. J(C.A.), atparagraph 23: Judge Fradsham stated in Lapointe that 9 minutes in and of itself did not give the Court a concern. It would appear that since JudgeDaniel only concerned herself with the time between the samples she must have come to the conclusion that the extra 14 minutes inexcess of the 15 minute minimum in and of itself created a prima facie concern for the Court.

I am of the view that to conclude that an 14extra minutes of unexplained delay between the two samples should not be the foundation for a prima facie concern that the sampleswere not taken as soon as practicable and to so hold was an error in principle on a matter of mixed fact and law. I am not saying that insome cases that kind of an unexplained delay with other unexplained delays may not give the Court a prima facie concern that thesamples were not taken as soon as practicable. [Emphasis added.] [77] In light of Marceau J.’s comments in R. v.

J(C.A.),I give Jonasson significantly diminished weight. [78] The Appellant also distinguishes the case at bar from the cases relied upon by the Trial Judge. His position is that althoughthe delays in the cases referred to by the Trial Judge were fairly extensive, they were found to have been reasonably explained. Thus thesamples were deemed to have been taken as soon as practicable.

With respect, the mode of procedure advocated by the authorities citedby the Trial Judge is to take a broad and punctual approach to the “as soon as practicable” requirement, in light of the circumstances.Further, not all of the delays in the cases relied upon by the Trial Judge had been adequately explained. In R. v. Carter, for example, thedelay of 21 minutes was not explained at trial. The Judge in that case deemed the delay explained through judicial inference and judicialnotice. [79] Counsel for the Appellant questions the applicability of Vanderbruggen.

In that case, there was a 46 minute delay between thetime the accused was placed into his cell and the first breath sample, within a one hour and fifteen minute overall delay. It is difficult todiscern the totality of evidence available to the Trial Judge to justify the 46 minute delay; however the Court remarked that at trial, therewas no evidence that either the arresting officer or the technician acted unreasonably. Similarly, there was no evidence that the officersgave unreasonable priority to any other task: para 14.

At paragraph 15, the Court upheld the Trial Judge’s finding on the basis that therewas sufficient evidence to conclude that the samples were taken as soon as practicable, and not, as the Appellant states, because therewas enough evidence before the judge to account for the delay. [80] Further, the Court does not appear in any part of the Vanderbruggen decision to require sufficient evidence to account for thedelay. Rather, the Court provides numerous iterations of the theme that flexible, pragmatic and broad consideration be given to the

requirement, stating for example that “the touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably” (at para 12), that “the trial judge should look at the whole chain of events” (at para 13), that “the ‘as soon as practicable’ requirement must be applied with reason” (at para 13), and that “there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody” (at para 13).

Nowhere in the judgment does the Court of Appeal state that sufficient evidence is required to justify or explain the delay. [ 81 ] Finally, at paragraph 16, the Court of Appeal in Vandergruggen specifically noted in conclusion that this

section of the Criminal Code is designed to “expedite trials and aid in proof of the suspect’s blood alcohol level, and should not be interpreted so as to require an exact accounting of every moment in the chronology”. [ 82 ] I am aware of the diverging streams of authority with respect to the need for explanation of the delay in determining whether the breath samples were taken “as soon as practicable”.

The difficulty in reconciling these diverging streams and the various cases quoted by both the Crown and Defence was remarked upon by the Trial Judge at paragraph 9 of her judgment and I echo her statements in that respect. On one hand, the Crown takes the position that the breath samples were taken as soon as was reasonably practicable in the relatively short overall delay of 37 minutes.

On the other hand, the Appellant contends that the lack of explanation for the 25 minutes when he simply sat in the bus across from the police officer is unreasonable, and must result in a failure to find that the breath samples were taken “as soon as practicable”. [ 83 ] The delicate balance between the understandable need for safeguards for the liberty of an accused stopped at the roadside and accountability on the part of the police, and the equally understandable practical basis for not requiring an overly exacting explanation of every incident occurring within a reasonable period of time is difficult to achieve.

Higher court authorities illustrate that some unexplained delay is acceptable. But when does a delay become unreasonable ? There is no consensus in the case law about what length of delay is reasonable. The cases are largely determined on the unique facts of each case.

It is clear however, from appellate jurisprudence, that Courts are to take a broad approach in this issue, and may accept a general explanation for what occurred in a period of time. [ 84 ] Since Vanderbruggen, Courts have been directed to view the time period between the offence and testing as a whole and not require explanation for each minute or period in the process. Rather, samples must be taken in a reasonably prompt manner. Where the time is prima facie unreasonable the Crown will need to explain to the satisfaction of the Judge how the delay meets the requirement set out in 258(1)(c)(ii): R. v. J(C.A.) .

As mentioned earlier, the Crown is under no obligation to account for every minute of time spent with the accused. [ 85 ] A number of appellate courts have determined, in cases with similar facts to the case at bar, that delays upwards of 37 minutes met the “as soon as practicable test”.

The Crown provides three examples of cases with similar fact patterns where Courts of Appeal determined that the samples were taken as soon as practicable: a. a 40 minute unexplained time period in Van der Veen ; b. a 50 minute total time period in Cambrin , 21 minutes of which were unexplained; c. a 43 minute time lapse in Carter , between when the accused was stopped and when the first sample was taken, 21 minutes of which were unexplained. [ 86 ] The Appellant distinguishes the Van der Veen case with the case at bar on the basis that the 40 minute delay in that case was explained. To a certain extent, I agree.

In Van der Veen , the accused was arrested for impaired driving and brought to the police station to provide a breath sample. Unfortunately, a breath technician was not available and when the officer made inquiries as to when someone could attend at that district office, he was told that it was a busy night and one would be available shortly.

The breath technician did not arrive for 40 minutes. [ 87 ] In Van der Veen , the Court of Appeal noted that the trial Judge held that the officer acted reasonably in waiting for the technician and the breath samples were taken as soon as practicable, a finding which was upheld by the majority of the Court of Appeal at para 40: The trial judge did not think that the delay of 40 minutes between the arrival of the respondent at the police station and the arrival of the

The trial judge did not think that the delay of 40 minutes between the arrival of the respondent at the police station and the arrival of the technician, required further explanation. The fact that no technician was available for 40 minutes -- not a very long period of time -- did not itself require explanation. There is no obligation on the police to have a technician available at all times at every police station. The trial judge found that the breath samples were taken within a reasonably prompt time in the circumstances, -- that they were taken as soon as practicable.

In my view, this finding is correct. [ 88 ] While there was no indication on the record as to what the breath technician was doing during that period of time or whether he or she could have arrived at the station earlier, it was held in Van der Veen , that the Crown was not required to further justify why the technician was unavailable: paras 36 and 40. Unlike the present case, an explanation was provided for the delay and accepted by the Court. [ 89 ] In Cambrin , however, a 21-minute unexplained delay was held to be reasonable by the British Columbia Court of Appeal.

In Cambrin , the arresting officer made a breath demand at 5:30 am, the accused arrived at the district office at 5:50 am, the breath technician entered the room at 6:11 am and the first breath sample was taken at 6:20 am: Cambrin , at para 5 . [ 90 ] The trial Judge in Cambrin acquitted the accused because the Crown was required to, and did not, explain the 21 minute delay from when the accused was prepared to provide breath samples, at 5:50 am and when the breath technician arrived, at 6:11 am. The acquittal was upheld by the

Summary Conviction Appeal Court. [ 91 ] In overturning the acquittal, Craig J.A., speaking for the unanimous British Columbia Court of Appeal held, at paras 8-10: 8 I think that the county court judge erred in his

interpretation of s. 237(1)(c)(iii). Something is "practicable" when it is capable of being done, having regard to all the circumstances. Another way of saying virtually the same thing is that something is "practicable" if it is "feasible". The framers of the legislation never intended this

section to be interpreted to mean that the first test has to be conducted within a few seconds of an accused walking into the police station or area where the test is to be conducted. The framers of the legislation never intended that the prosecution would have to account for each minute which elapsed between the time of the arrival of the accused and the taking of the first test. As Mr. Justice Macdonald, in giving the judgment of this Court in R. v.

Carter , pointed out, the test adopted by the appeal judge in that case, and apparently adopted by the appeal judge in this case, "would require a trial judge to find that the conditions specified in paragraph (c)(ii) had not been met without evidence explaining a delay as little as five minutes." [ 92 ] Further, Craig J.A. held at para 21: 21 I am also of the opinion that in the circumstances of this particular case, as a matter of law, the twenty-one minutes is an inconsequential period of time . [Emphasis added]. [ 93 ] Similarly, in the Alberta case of Mudry , the accused’s vehicle was stopped at 1:00 am, the breath demand was read at 1:10 am, the accused was taken to and arrived at the district office at 1:35-1:40 am, and the first sample was taken at 2:05 am.

Regarding the 20-25 minutes between arrival and first sample, the only evidence before the Court was that the officer was employing a “mandatory period” of observation, the reason for which was not before the Court. At paragraph 18 of that decision, the Alberta Court of Appeal found that the delay, although not reasonably explained, nonetheless did not contravene the “as soon as practicable” analysis: It appears that a practice of providing for a period of observation has grown up.

Whether this is a necessary step to ensure protection for the accused, or to ensure that the machine has been properly warmed up, or to make the test fairer, has not been explained. This time is not required as a matter of law, and the evidence in future cases may not support its reasonableness. It is to be seen from at least one of the

definitions referred to that in talking of earliest practicable moment for example, this is not to be taken as requiring it to be at the very earliest moment. Some flexibility surely is dictated by common sense considerations bearing in mind that the liberty of the subject is involved by the accused being obliged to accompany the officer. Here the officer perhaps out of an abundance of caution, but certainly feeling some period of observation of the accused was appropriate before requiring the first sample to be taken, took 20 to 25 minutes longer perhaps than what could be termed the very earliest moment .

The learned trial judge, on the evidence, was satisfied the delay was reasonable. The language of the Code does not say "earliest". I am not at all satisfied that the language of ss. 235 and 237 require the term "as soon as practicable" to be read other than as within a reasonably prompt time under the circumstances and I am satisfied that the 20 to 25 minutes for observation as found by the learned trial judge does not of itself infringe it. [Emphasis added.]

[94] Finally, the Crown refers the Court to Carter. In Carter, the accused was first stopped by police at 12:28 am and he providedhis first sample of breath at 1:11 am. There was an unexplained delay of 21 minutes. In determining whether the samples were taken assoon as practicable, the Saskatchewan Court of Appeal held at paras 8-11: 8 In my view it is for the learned trial Judge to determine whether or not the breath samples were taken as soon as practicable afterthe time the offence was alleged to have been committed. He comes to this conclusion on his assessment of the facts which are presentedto him.

When evidence is adduced as to when the accused was first seen either operating or in the care or control of the motor vehicle,the time the demand was made and the times when the samples were taken, that evidence alone is sufficient for him to determinewhether the samples were taken as soon as practicable. To do so he need not take judicial notice of particular matters, he need only applyreason and common sense derived from his experience.

There is no need to explain every incident which occurred from the time theoffence is alleged to have been committed until the samples were taken unless the trial Judge on the evidence before him, is not satisfiedthe samples were taken as soon as practicable. 9 The requirement that the samples be taken as soon as practicable is one which must be applied with reason. As I read the section,as long as the delay, if there is one, is explained to the satisfaction of the Judge, there may be reliance on the presumption in para. (iv) aslong as the samples are taken within the two hour limit.

It would only be when the learned trial Judge concluded there was a delay notsatisfactorily explained, or such delay prejudiced the accused that the Court would deny the prosecution the right to rely on thepresumption in para. (iv). [Emphasis added.] [95] While I recognize that in Carter, the trial Judge made inferences to account for portions of the unexplained delay, the Courtnonetheless held that based on the entirety of all the circumstances, including the 21 minute time period for which no evidence wasadduced at trial, the samples were taken as soon as practicable.

Moreover, the Court specifically stated at paragraph 8 that the trial Judge“need not take judicial notice of particular matters”. [96] In addition to the appellate cases referred to above, the Crown Respondent also provided examples of Provincial Courtdecisions with a similar fact pattern to the case at bar where the samples were found to have been taken as soon as practicable, notably: a. R. v. Slachenberger, (AB CJ), [1990] 108 AR 255, 10 WCB (2d) 47 (Alta Prov Ct), 15 minute pre-test delay; b. R. v. Mide, 1998 ABPC 123, 233 AR 84, 21 minute pre-test delay; c. R. v.

Miller, 2010 ONCJ 468, 4 MVR (6th) 208, 17 minute pre-test delay; d. R. v. Price, 2010 ONSC 1898, 94 M.V.R. (5th) 23, 32 minute pre-test delay; e. R. v. Khan, [2008] 65 MVR (5th) 5, 76 WCB (2d) 420, 19 minute pre-test delay; and f. R. v. Chojnacki, 2010 ONCJ 30, 26 minute pre-test delay. [97] While not before me, I also mention the case of R. v. Price, 2010 ONSC 1898, 94 MVR (5th) 23, where there was a 32-minutedelay from the time of arrival at the station to the taking of the first sample. The total time was one hour and 7 minutes from arrest.

Indismissing an appeal against conviction for “over 80”, Justice Durno of the Ontario Superior Court reiterated that it is the total timeframe that must be considered at para 16. [98] The Price decision has been cited with approval by the Ontario Court of Justice in R. v. Miller, 2010 ONCJ 468, 4 MVR (6th)208. [99] As such, it was not necessary for the Trial Judge to determine if the delay was “reasonable and necessary”, nor was it an errorfor her to rely upon the overall time delay.

I am of the view that the learned Trial Judge did not commit a palpable and overriding error inher determination, and that her emphasis on the overall 37 minute time period between when the Appellant was first stopped and whenthe samples were taken met the as soon as practicable test, as set out by the preceding authorities.

[ 100 ] The above jurisprudence illustrates that simply because there was an unexplained or unjustified delay, does not necessarily preclude a court from also finding that the samples were taken as soon as practicable. [ 101 ] Under the circumstances, there was no evidence the sample was not taken as soon as practicable after the offence was alleged to have been committed. With all respect, in the present case, I find that it is not proper to parse the overall delay into specific time periods, as the Appellant suggests. The Trial Judge was correct in relying upon the overall delay of 37 minutes in her

interpretation of the “as soon as practicable” requirement. ii) Application of “as soon as practicable ”: Application to the case at bar. [ 102 ] In the case at bar, the Trial Judge reviewed and applied the proper legal test to the meaning of the phrase “as soon as practicable”. The Trial Judge then made a finding of fact, which I have accepted, that there was a total time period of 37 minutes from when the Appellant was stopped to when the breath samples were taken, 25 minutes of which were unexplained.

No evidence was adduced to show that the arresting officer acted unreasonably, gave unreasonable priority to any other task, which also supports the finding that the samples were taken “as soon as practicable”. [ 103 ] She held, in consideration of all the circumstances, the breath samples were taken as soon as practicable and subsequently found the Appellant guilty. These findings raise no prima facie concern as to the reasonableness of the delay, and there is no reasonable doubt about whether the samples were taken “as soon as practicable”.

The Trial Judge did not err in concluding that the delays did not result in breach of the statutory prescriptions of the Criminal Code ; as such, the Crown is entitled to rely on the presumption of identity contained in s. 258(1) (c)(ii). 7. Conclusion [ 104 ] The Trial Judge did not err in finding that the breath tests were taken as soon as practicable. The police acted reasonably in taking the breath samples within a reasonably prompt time under the circumstances. Accordingly, the appeal is dismissed. Heard on the 1 st day of December, 2011. Dated at the City of Calgary, Alberta this 21 st day of March, 2012.

J.T. McCarthy J.C.Q.B.A. Appearances:

Michael Oykhman for the Appellant Matthew Dalidowicz for the Respondent