R v Evans, 2012 ABQB 267

Court of Queen ’ s Bench of Alberta Citation: R v Evans, 2012 ABQB 267 Date: 20120424 Docket: 100642859S1 Registry: Calgary Between: Her Majesty the Queen Appellant - and - Christopher Malcolm Evans Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________ Appeal from the Decision by The Honourable Judge J.D. Bascom Dated the 3 rd day of March, 2011 1. Introduction

[ 1 ] The Respondent, Christopher Evans, was acquitted at trial of charges laid under ss. 253(1) (

b) and 253(1)(

a) of the Criminal Code (operating a vehicle with a blood alcohol concentration of over 80 mg and impaired driving). This appeal by the Crown essentially concerns an unexplained 8 minute delay by the arresting officer in obtaining samples of the Respondent’s breath after he was stopped at the roadside. 2. Background [ 2 ] On May 21, 2010, Constable Hough observed Mr. Evans speeding eastbound on 9 th Avenue in Calgary, Alberta. He stopped Mr. Evans’ vehicle at approximately 10:05 p.m. Mr. Evans’ breath smelled of alcohol, he had glassy red eyes, and admitted to consuming alcohol.

Constable Hough reasonably suspected that Mr. Evans had consumed alcohol, and made a proper demand for a roadside sample. [ 3 ] Standing at the rear of the police vehicle, Mr. Evans provided a sample, which resulted in a fail reading. Constable Hough then formed the opinion that Mr. Evans’ ability to operate a motor vehicle was impaired by alcohol and arrested him at 10:07 p.m. [ 4 ] At this point, Constable Hough quickly searched Mr. Evans, and then cleared the back seat of his police vehicle of his equipment, so he could secure Mr. Evans in the back of the vehicle.

The equipment was “strewn all over the back seat”, so Constable Hough piled it up in the front seat. [ 5 ] Constable Hough explained at trial that the reason his equipment and bags were in the back seat was due to him not expecting to deal with an impaired driver. The exact nature of this equipment was not explored in direct or cross examination.

Constable Hough’s only reference to specific equipment was in cross-examination when he said the first thing he did on his shift was “drew my equipment out, my laser, the ASD, and radio, keys...”. [ 6 ] After clearing out the back seat of the police vehicle, Constable Hough then directed Mr. Evans to sit in the back of the police vehicle and began to make radio calls to ascertain whether a breath technician was available at any nearby police stations. Constable Hough said he wanted to facilitate the investigation and ensure Mr. Evans did not have to wait to provide the breath samples.

He also radioed for a complaint number and a tow truck at this time. [ 7 ] After making these radio calls, Constable Hough read Mr. Evans the formal arrest, Charter and caution, and breath demand from a check-sheet of notes. Mr. Evans indicated he wished to contact a lawyer. Constable Hough finished reading these instructions at 10:17 p.m. He then made some more notes, filled out a tow bill, and left the scene with Mr. Evans at 10:26 p.m. [ 8 ] Constable Hough and Mr. Evans arrived at the 2 District Office at 10:36 p.m, where the closest breath technician was available. When they arrived, Constable Hough gave Mr.

Evans further instructions on how to exercise his right to counsel. At 10:39 p.m. Mr. Evans waived his right to counsel. He was placed in an interview room for approximately 5 minutes, until the qualified breath technician was ready to receive him. [ 9 ] Mr. Evans provided two samples of his breath. The first sample was provided at 10:45 p.m., 40 minutes after the initial traffic stop. The second sample was provided at 11:06 p.m., 61 minutes after the traffic stop.

The samples indicated a blood alcohol level of 140 milligrams of alcohol in 100 millilitres of blood, as indicated on the Certificate of Analyses prepared by the breath technician. [ 10 ] Constable Hough served the Certificate of Analyses on Mr. Evans at 11:35 p.m. and released him. 3. Reasons of the Trial Judge. [ 11 ] The trial Judge gave his oral reasons for judgment on March 3, 2011. He determined in a voir dire that the 8 minute unexplained delay did not affect Mr. Evans’ Charter rights and admitted the Certificate of Analyses as evidence. In his ruling on the voir

dire to determine the admissibility of the Certificate of Analyses, the learned trial Judge reviewed the evidence and noted that there was a 10-minute delay from 10:07 p.m., when Mr. Evans was arrested, to 10:17 p.m. when Constable Hough read the formal arrest, Charter and breath demand. [ 12 ] The trial Judge found the explanation given by Constable Hough for the delay was “due to moving equipment from the back seat of the truck, preparing the tow bill, radioing for a complaint number, and radioing to obtain a technician.” Between 10:17 p.m. and 10:26 p.m., when Constable Hough and Mr.

Evans left the scene, the trial Judge found that Constable Hough wrote his notes and finished the tow bill. [ 13 ] The learned trial Judge concluded that there was approximately 8 minutes of unexplained delay in the period of 10:07 p.m. to 10:17 p.m.

He came to this conclusion as a result of a detailed accounting of time based on several inferences: - Firstly, the trial Judge took notice of the fact that reading the Charter , caution and demand took less than 1 minute in Constable Hough’s testimony, and concluded it would have taken the same amount of time at the scene. - Secondly, he found that moving the equipment, “which could only mean the radar unit, in that he had already obtained the screening device” would have taken “mere seconds.” - Finally, the trial Judge noted that filling out the tow bill and radioing would have taken approximately a minute, because there was no evidence that Constable Hough had any problems that would have led to a delay. [ 14 ] The trial Judge found that the delay did not affect Mr.

Evans’ Charter rights, as there was no requirement to read him his Charter rights immediately. Accordingly, he admitted the Certificate of Analyses as an exhibit in the trial. [ 15 ] Nevertheless, relying on the Provincial Court decision of R v Goss , 2008 ABPC 10 , the trial Judge found that the 8 minutes of unexplained delay was a concern. In Goss , a 20 minute delay at a Checkstop due to the officer taking notes was found to be an unreasonable delay. The trial Judge concluded that the Crown could not rely on the presumption in s. 258(1)(

c) because the breath samples were not taken as soon as practicable. Consequently, Mr. Evans was found not guilty of driving over 80 mg. He was also acquitted on the impaired driving charge. [ 16 ] In his reasons, the learned trial Judge stated: “The Criminal Code requires a police officer to make a demand for a sample of an accused’s breath as soon as practicable. In addition, for the Crown to obtain the evidentiary presumption that exists in section 258(1)(c), the samples must be taken as soon as practicable. In R v Goss , 2008 ABPC 10 , His Honour Judge Ogle does an analysis commencing at paragraph 52.

I adopt Judge Ogle’s analysis and in the end his results. Constable Hough is an experienced police officer who performs his duties in a controlled, methodical and conscientious way. I conclude that he did not turn his mind to the requirement of the – of doing things as soon as practicable to obtain this evidentiary presumption. There is basically 8 minutes unexplained, which is a concern when Constable Hough can provide detain in what occurred prior to and subsequent to the delay. In Goss , the delay was 20 minutes, much longer than in this case.

However, the Criminal Code nor the Appellate Courts have set a, in a particular, numerical limit. I therefore find the samples were not taken as soon as practical. The presumption in s. 258(1)(

c) does not apply. There being no further evidence, I would dismiss the count number 1 on the Information.

With regard to the count number 2, the charge of impaired driving, I reviewed the evidence there. It falls short of proof beyond a reasonable doubt the accused’s ability to operate a motor vehicle was impaired. I find him not guilty of that charge as well.” [ 17 ] The Crown appeals the acquittal on the over 80 mg charge and the impaired driving charge on two grounds. First, the Crown claims the trial Judge erred in determining the breath samples were not taken as soon as practicable. Second, the Crown contends that the trial Judge erred in ruling that the Crown was not entitled to rely on the s. 258(1)(

c) presumption in the absence of a Charter breach. [ 18 ] The crux of this case relates to the “as soon as practicable” requirement contained in s. 258(1) (

c) of the Criminal Code .

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 back to the time of driving, the Crown is required to establish beyond a reasonable doubt that the breath tests were taken “as soon as practicable”: s. 258(1)(c)(ii) Criminal Code . [ 19 ] If the breath tests are obtained “as soon as practicable” and the requirements in s. 258(1) (c)(ii) are satisfied, 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.

The Crown may rely on that presumption to prove the alcohol concentration in the blood of the Respondent, Mr. Evans, at the time of the commission of the alleged offence without the need to call further evidence. 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. [ 20 ] At trial, counsel for Mr. Evans 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 accepted this argument. [ 21 ] Given the trial Judge’s finding that the breath tests were not taken “as soon as practicable” by the arresting officer, the Crown could not avail of the presumption found in s. 258(1) (c)(ii) and was not able prove the elements of the offence. Accordingly, Mr. Evans was acquitted. 4. Issues to be Determined [ 22 ] The issues to be examined in this appeal are as follows: 1. Did the learned trial Judge err in determining the breath samples were not taken as soon as practicable? 2.

Alternatively, if the trial Judge did not err in determining the breath samples were not taken as soon as practicable, did the trial Judge err in deciding that the Crown cannot rely on the presumption in s. 258(1) (

c) in the absence of a Charter breach? 5.

Summary of Decision [ 23 ] For the reasons that follow, I allow the appeal. 6. Standard of Review [ 24 ] 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 , [2002] 2 SCR 235 at paras 8-37 .

[25] An extricable error of law includes, for example “the application of an incorrect standard, a failure to consider a requiredelement of a legal test, or similar error in principle” (Housen v Nikolaison at para 36). [26] With respect to a question of mixed fact and law, the more recent case of R v Shepherd, 2008 SCC 35, [2009] 2 SCR 527 atpara 20 took a different approach to a finding regarding the existence of reasonable and probable grounds to demand breath samples fromthe accused.

The Supreme Court of Canada held that the application of the legal standard to the facts of the case was a question of law,subject to review for correctness. [27] There does not appear to be much judicial debate regarding the standard of review to be applied to the determination ofwhether a trial judge properly interpreted the test for “as soon as practicable”. The

interpretation of a legal standard is consistently held tobe a question of law. [28] However, a review of case law yields no conclusive result as to which standard governs the application of the “as soon as practicable” test to the facts. Ross J, in R v Husain, 2010 ABQB, 2010 ABQB 708 , [2011] 36 Alta LR (5th) 141, canvassedrecent

summary conviction appeal cases which reviewed Housen and Shepherd in the context of determining the appropriate standard fora finding as to whether breath samples were taken “as soon as practicable”.

She declined in that case to rule on whether the Housen orthe Shepherd approach governs the standard of review, as she found that the trial judge made extricable errors of law, which under eitherapproach are subject to review on a correctness standard. [29] In R v Buffalo, 2010 ABQB 325, Binder J. concluded that following Shepherd, the ultimate ruling on the requirement thatbreath samples be taken “as soon as practicable” is reviewable for correctness: para 16.

He noted, however, that such findings have been held to be subject to review for overriding or palpable error (citing R v Torsney (2009), 81 MVR (5th) 212, (Ont CA); see also R vRadcliffe, 2008 ABQB 6, 450 AR 108 at para 55, and R v Vanderbruggen (2006), (ON CA), 206 CCC (3d) 489, 208OAC 379(Ont CA) at para 14, both to the same effect). [30] In the recent case of R v Mailey, 2012 ABQB 138, McCarthy J. also examined the standard of review regarding theapplication of “as soon as practicable” to the facts and noted at para 27 that the issue is not yet settled. [31] Based on the tenor of the higher court authorities, which he found to have followed the question of fact standard, McCarthy J.held that the issue of whether samples of an accused’s breath were taken “as soon as practicable” involves applying a legal standard to aset of facts.

Adopting the Housen approach, he held that this attracts the “palpable and overriding” standard of factual determinations. [32] To summarize, absent a clear articulation of the standards relative to determination governing the “as soon as practicable”issue, the standard of review on a

summary conviction appeal is correctness when the alleged error relates to a question of law. When itrelates to a question of fact, the standard is overriding and palpable error. [33] When the alleged error relates to a question of mixed law and fact,

summary conviction appeal courts oscillate between theHousen and the Shepherd approaches described above. It would appear to me that a trial judge’s decision is to be afforded deferenceunless the alleged error involves an incorrect application of a legal standard, as set out by McCarthy J. in R v Mailey. [34] I will leave further discussions to a scenario where the questions of mixed fact and law are not easily separated, as thestandard of review which applies to that issue need not be decided on the facts of this matter. 7.

Position of the Parties [35] In the case at bar, the Crown appellant has grounded the basis for its appeal in extricable errors of law made by the trial Judgein determining whether the samples were taken as soon as practicable. As previously mentioned, extricable errors of law are reviewableon a correctness standard.

[ 36 ] Counsel for the Respondent Mr. Evans contends that the applicable standard of review is that set out in s. 686(1) of the Criminal Code . According to the Respondent, the appeal court must not substitute its own findings of fact for that of the trial Judge, as to do so would be an error of law. [ 37 ] The correct test, he submits, is whether the verdict can be supported by the evidence, not whether the appeal court would have arrived at the same conclusion as the trial judge.

Where the trial judge makes reasonable findings of fact, an appeal court ought not to overturn a verdict based on a different opinion of those same facts. I agree with the Respondent that absent an error of law, the standard of review relative to determination governing the issue “as soon as practicable” requires considerable deference.

To overturn such decisions, the appellant must demonstrate a “palpable and overriding error”. [ 38 ] However, in this case, I take a similar approach to that of Binder J. in R v Buffalo , in that I do not find it necessary to determine whether Housen or Shepherd governs as I have concluded that the trial judge made extricable errors of law which are subject to review on a correctness standard. 8. Governing Principles [ 39 ] Section 253(3) of the Criminal Code dictates that a breath demand must be made and the breath samples must be taken “as soon as practicable”. This

section states: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable , require the person (

a) to provide, as soon as practicable , (

i) samples of breath ... (

b) if necessary, to accompany the peace officer for that purpose. [Emphasis added] [ 40 ] The relevant portions of s. 258(1) of the Criminal Code read as follows: 258(1) 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- (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, ... 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; ...

[Emphasis added] [41] As previously mentioned, the presumption set forth in s. 258(1)(c)(ii) of the Criminal Code, often called the presumption ofidentity, allows the Crown to relate breath sample results back to the time of driving without the need to call further evidence. Mostimportantly, for the purposes of this appeal, the Crown must establish that the breath tests were taken as soon as practicable in order toavail of the presumption of identity. 9.

Did the learned trial Judge err in determining the breath samples were not taken as soon as practicable? [42] The meaning of the phrase “as soon as practicable” is settled.

It does not mean “as soon as possible,” but rather “within areasonably prompt time under the circumstances”: see R v Altseimer, (ON CA), [1982] 1 CCC (3d) 7, 38 OR (2d) 783(Ont CA) at para 7; R v Van der Veen (1988), 1988 ABCA 277 , 89 AR 4 at para 32 (CA), citing R v Mudry, 1979 ABCA 286, [1979] 19 AR 379, 5 MVR 23 (Alta CA). [43] Crown counsel submits that appellate courts have consistently mandated trial courts to take a pragmatic view of the “as soon as practicable” requirement.

In R v Vanderbruggen, (ON CA), [2006] 29 MVR (5th) 260, 206 CCC (3d) 225, 51 OR(3d) 737, the Ontario Court of Appeal stated that the Court should look at the whole chain of events, bearing in mind that the CriminalCode provides an outside time limit of two hours from the time of driving to the taking of the first sample.

The Court further stated thatthere is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is incustody: para 13. [44] In R v Vanderbruggen at para 12 and in R v Van der Veen at para 33, Canadian appellate courts have commented that thefoundation for determining whether samples were taken as soon as practicable is whether the police officer acted reasonably. [45] Similarly, in R v Carter, (SK CA), [1981] 59 CCC (2d) 450, 10 MVR 187, 9 Sask R 1 (Sask CA), anappeal involving a trial conviction where no evidence was called to explain a 21 minute delay, the Saskatchewan Court of Appeal heldthat a trial judge should apply common sense and experience when assessing whether the breath samples were taken as soon aspracticable.

The Court further held that when evidence is adduced as to when the accused was first seen either operating or in the care orcontrol of the motor vehicle, the time the demand was made and the times when the samples were taken, that evidence alone is sufficientfor him to determine whether the samples were taken as soon as practicable: para 8. [46] In R v Carter, the Court stressed that at trial, judges are not to take into account only the time period which is unexplained,and need not take judicial notice of particular matters, but rather, should consider the entire time from when the accused was firstobserved driving to when the breath samples were taken in determining whether the samples were taken as soon as practicable. [47] The parties are in agreement that the term “as soon as practicable” has been interpreted broadly and requires a prima facieconcern before an explanation is required.

In R v J(CA), 2004 ABQB 838, 370 AR 76 (QB), the Alberta Court of Queen’s Bench adoptedthe broad approach advocated by appellate courts. The Court stated this issue should be evaluated broadly, in the context of the two hourlimit set out in the Criminal Code. Marceau J. suggested in that case that the correct analytical approach is to first look at the length ofthe delay to determine whether or not it raises a prima facie concern.

If the length of the delay does raise a prima facie concern, the trialcourt is to look at whether the explanation for the delay is reasonable: para 24. [48] Marceau J. specifically mentioned that courts should look at the total length of time to determine if the samples were takenwithin the time limit provided by s. 258: para 24. [49] The Alberta Court of Queen’s Bench echoed this view in R v Husain, where Ross J. emphasized that it is an error of law tofocus exclusively on a particular aspect of the delay, as this is inconsistent with the direction in R v Mudry to apply a flexible andcommon sense approach, and to consider the time to take the sample in the context of the statutory limit: para 36.

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

c) will not avail the Crown. The Crown is not expected to account for every minute of an impaired driving investigation; 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. The higher court authorities cited above lead me to conclude that the test is one of good sense and reason. 10.

Application to the case at bar. [ 51 ] As defined in Housen at para 36 , an extricable error of law is “the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle.” [ 52 ] In the present case, the Crown submits that the trial Judge made several extricable legal errors in determining that the breath samples were not taken as soon as practicable. I will deal with each of the alleged errors in turn. They can be summarized as follows: 1. The trial Judge focused on a single aspect of the overall delay; 2.

The trial Judge conducted a minute-by-minute accounting of time; 3. The trial Judge’s conclusion that the delay did not affect Mr. Evans’ Charter rights is at odds with the principled approach set out in R v J(C.A.) ; and 4. The trial Judge’s reliance on R v Goss was inappropriate under the circumstances. [ 53 ] In addition to these extricable errors of law, the Crown also submits that the trial Judge’s findings of fact were unreasonable and not supported by the evidence. 11.

The trial Judge erred in focusing on a single aspect of the overall delay. [ 54 ] The Crown argues that the learned trial Judge did not consider the amount of delay in the context of the two-hour limit imposed by Parliament and in accordance with Vanderbruggen and J(C.A.) . [ 55 ] Counsel for Mr. Evans submits that in making reference to s. 258(1) (c), which prescribes the two-hour time limit on the taking of breath samples from accused persons, that the trial Judge must necessarily have considered the overall time limit in his judgment.

He further submits that the trial Judge went on to analyse the explanation for the delay and found that 8 minutes of delay were unexplained and therefore unreasonable. [ 56 ] With respect, I cannot infer from the trial Judge’s mere mention of s. 258(1)(c), as the Respondent suggests, that he considered the 8-minute unexplained delay in the context of the two-hour statutory interval. [ 57 ] The Respondent also suggests that the failure to provide an explanation for the delay renders it unreasonable. This is not supported by case law; unexplained does not mean unreasonable .

The two are distinct concepts, and jurisprudence is clear: courts permit some unexplained delay, whereas unreasonable delay serves as a safeguard for the liberty of an accused stopped at the roadside and is not permitted. [ 58 ] In the present matter, the trial Judge made no specific mention of the overall time limit and he did not consider the amount of

delay in the context of the two-hour limit as directed by R v Vanderbruggen and J(C.A.) . With a view to all the circumstances, the delay in the case at bar was insignificant. The first sample was taken a mere 40 minutes after the time of driving. The second sample was taken a mere 61 minutes after the time of driving. This is well within the two-hour limit imposed by Parliament. [ 59 ] I agree with the Crown’s position that the trial Judge placed undue emphasis on a single aspect of the overall delay. The trial Judge’s approach of focusing on a single aspect of the delay magnified the importance of mere minutes.

Such a strict approach is at odds with the practical flexibility called for in the appellate jurisprudence canvassed above. 12. The trial Judge erred in conducting a minute-by-minute accounting of time. [ 60 ] The Crown further argues that the trial Judge applied the incorrect legal standard by conducting a minute-by-minute accounting of time. The Respondent submits that this is a narrow

interpretation of the trial Judge’s decision and fails to consider that the learned trial Judge was simply applying common sense and experience in accounting for the arresting officer’s time between the initial arrest and the formal arrest, Charter and demand - a function which he argues falls within the permissible scope of the trial Judge’s duties as a trier of fact. [ 61 ] I agree with the Respondent that the trial Judge made a finding of fact that there were 8 minutes of unexplained delay throughout the investigation.

However, his conclusion that the delay was unreasonable is inconsistent with the legal standards set out by appellate courts governing what constitutes unreasonable delay, and amounts to an error worthy of judicial review. [ 62 ] While it is true that, as specifically stated by the trial Judge: “the Criminal Code nor the Appellate Courts have set a, in particular, numerical limit” with respect to s. 258(1) (

c) of the Criminal Code , Courts have set out guidelines as to the appropriate method of determining what constitutes “as soon as practicable”. [ 63 ] In Vanderbruggen , for example, the Court provides numerous iterations of the theme that flexible, pragmatic, and broad consideration is to 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 or a minute-by-minute account is required to justify or explain the delay. In fact, the Court specifically states in Vanderbruggen that s. 258 of the Criminal Code should not be interpreted so as to require an exact accounting of every moment in the chronology: para 16. [ 64 ] Approaching the inquiry by conducting a minute-by-minute accounting of time is contrary to the broad approach required by case law. The authorities are clear that the Crown does not have to account for every minute of time that elapsed.

However, the trial Judge examined the 10-minute delay between 10:07 p.m. to 10:17 p.m. and proceeded to parse out each of the officer’s activities into increments: 1. The trial Judge took notice that reading the arrest, Charter , caution and breath demand would have taken the same amount of time as it did in court, approximately one minute. 2. He then found that moving the equipment would have taken “mere seconds” given that there “is no mention of any other equipment” other than the radar unit. 3.

He also found (in the absence of direct evidence on this point) that filling out the tow bill and radioing for a complaint number and to obtain a breath technician would have taken approximately a minute. [ 65 ] By conducting this accounting, the trial Judge concluded there was 8 minutes of unexplained delay, when there was a general explanation for the entire 10-minute period. In examining the officer’s actions down to the minute, the trial Judge did not apply the

correct legal standard. 13. The trial Judge ’s finding regarding Mr. Evans ’ Charter rights vis-à-vis the principled approach to the “as soon as practicable ” requirement. [ 66 ] The third extricable error raised by the Crown Appellant relates to the apparent contradiction in the trial Judge’s finding that

a) the samples were not taken as soon as practicable, yet

b) he concluded that there was no Charter breach in respect of the delay. [ 67 ] The Crown submits that the principled approach in R v J(C.A.) requires the Court to first look at whether the amount of delay raises a prima facie concern. If the delay does raise a prima facie concern, the Court is to consider whether the delay is reasonable in the circumstances. The Crown argues that given the trial Judge’s finding that the delay did not violate Mr. Evans’ Charter rights, the delay should not have raised a prima facie concern in considering whether the samples were taken “as soon as practicable”.

Even if this delay did raise a prima facie concern, the Crown contends that the appropriate legal inquiry was whether the delay was reasonable in the circumstances (in accordance with R v J(C.A.) , Vanderbruggen and Van der Veen ). The trial Judge did not consider whether the delay was reasonable in the circumstances, but instead focused on the minute-by-minute accounting of events. [ 68 ] Counsel for Mr.

Evans submits that I am to infer from the trial Judge’s decision that in addressing the delay of 10 minutes from when the arrest was made and the reading of the what the arresting officer described as the formal arrest, Charter and demand, that he had a prima facie concern with the delay. [ 69 ] Here, the trial Judge looked at the delay and concluded that it did not affect Mr Evans’ Charter rights.

In essence, the Crown argues that this should inform the trial Judge’s finding as to whether or not the delay raised a prima facie concern. [ 70 ] In making this argument, the Crown appears to misconstrue two distinct legal analyses. The trial Judge’s determination with respect to the delay in the context of the voir dire was made in respect of the admissibility of the Certificate of Analyses in light of s. 8, 9, 10(

a) and 10(

b) of the Charter considerations; this determination did not concern whether the statutory requirement under s. 258 was met. [ 71 ] While it would seem unusual for the judge to find - that the delay was not significant enough to exclude the Certificate of Analyses as evidence upon a Charter analysis; - yet the delay was so significant that the Crown should not be entitled to rely on the presumption contained in s. 258(1) (

c) to convict Mr. Evans, there may be a valid reason for doing so. In the present matter, the trial Judge reviewed the evidence and the authorities, and concluded there was no constitutional violation as a result of the delay in reading the reasons for arrest, Charter , and demand. This constitutional analysis is distinct from the Criminal Code requirement and involves a separate analysis. [ 72 ] The question which arises is whether a delay which does not engage Charter protection for the accused precludes a prima facie concern being raised under s. 258(1) (c).

It would not appear to me that the two findings are mutually exclusive; in other words, even where a delay does not engage the Charter , it may still be found to raise a prima facie concern in a distinct s. 258(1) (

c) analysis. The trial judge made no extricable error of law on this point. 14. The trial Judge ’s reliance on R v Goss . [ 73 ] In finding the Crown could not rely upon the presumption in s. 258(1) (

c) of the Criminal Code , the trial Judge stated he adopted the Court’s analysis in R v Goss at para 52 . In the Crown’s view, Goss involved a significantly longer period of delay than in this case, and the Court properly focused on whether that delay was reasonable. I agree.

[ 74 ] In Goss , the accused was pulled over at a Checkstop. He provided a sample into a roadside device, failed, and was arrested. The arresting officer read him his Charter rights and a breath demand was made. The officer then proceeded to write his notes and the accused was not brought to the Checkstop bus (which was mere seconds away) for 20 minutes. Ogle PCJ held that this delay was unreasonable. There was no reason why the officer could not have walked the accused to the Checkstop bus and then written his notes. This would not have had any material effect on the quality of the notes.

Consequently, the Court ruled that the samples were not taken as soon as practicable and the Crown could not rely on the s. 258(1) presumption. [ 75 ] The trial Judge erred in relying on Goss , a case that is distinguishable from the case at bar. The length of the delay in this case (10 minutes between 10:07 p.m. and 10:17 p.m.) is much shorter than the one in Goss (20 minutes). As well, the Court found the delay in Goss was unreasonable because the officer could have easily made his notes on the Checkstop bus, which was seconds away. In this case, the delay was reasonable.

There was no way Constable Hough could have transported Mr. Evans without clearing out the equipment from the back of his car. Additionally, it was necessary to radio for a breath technician to ensure one was available so that the breath testing was not delayed at the station. The district office was some distance away, so it was reasonable for the officer to make notes at the scene to ensure they were accurate. [ 76 ] Further, in Goss , the trial Judge properly focused the inquiry on whether the officer’s actions were reasonable.

In the present case, the trial Judge parsed the 10-minute period between 10:07 p.m. and 10:17 p.m. into increments and then concluded there was 8 minutes of unexplained delay. There was a general explanation for this period, and the trial Judge erred by failing to consider whether this explanation was reasonable. [ 77 ] Parsing the 10-minute delay in the manner described above was improper in light of the higher court authorities which direct a more general approach with respect to “as soon as practicable” requirement and is an error of law. 15.

Findings of fact not supported by the evidence. [ 78 ] In addition to these extricable errors of law, the Crown also submits that the trial judge’s findings of fact were not supported by the evidence. [ 79 ] By doing a precise accounting, the trial Judge found that there was “8 minutes of unexplained delay.” However, the evidence was that there was a 10-minute period of delay with a general explanation. Namely, that Constable Hough moved items from his back seat, radioed for a tow and a breath technician, and filled out a tow bill.

It is speculative to suggest that anything occurred other than Constable Hough’s description of the events in the interval between 10:07 p.m. and 10:17 p.m. [ 80 ] The Crown has highlighted a number of the trial Judge’s findings of fact which were not supported by the evidence: - The trial Judge found that moving the equipment would have taken “mere seconds” given that there was “no mention of any other equipment” other than the radar unit. However, Constable Hough testified that his “equipment and bags” were “strewn all over the back seat.” He had to pile it in the front seat.

There was no direct evidence of how long it took to move the equipment. In cross- examination, it was never put to the officer that the equipment consisted solely of the radar unit.

The trial judge’s conclusion that moving the equipment would have taken “mere seconds” was not supported by Constable Hough’s evidence. - Further, the trial Judge inferred, in the absence of evidence on this point, that filling out a tow bill and radioing for a breath technician would have taken approximately a minute. [ 81 ] These findings of fact meet the palpable and overriding standard required in respect of errors of fact made by a trial Judge. They further serve to limit the deference I must afford the trial decision. 16. Reliance on the presumption in s. 258(1) (

c) in the absence of a Charter breach

[ 82 ] As an alternative ground of appeal, the Appellant contends that the Crown ought not to be prevented from relying on the presumption contained in s. 258(1) (

c) of the Criminal Code in the absence of a finding of a breach of the Charter . Simply put, the Crown takes the position that the issue of whether a breath sample is taken “as soon as practicable” must always be raised within the context of a Charter challenge. [ 83 ] Mr. Evans submits that this position is not supported by the law and takes the position that the Crown confuses the admissibility of evidence with the ability of the Crown to rely on a statutory presumption. He further argues that the Crown is prevented from raising the issue of whether the presumption contained in s. 258(1) (

c) can be addressed in the absence of a Charter challenge for the first time on appellate review. [ 84 ] Given my finding with respect to the first issue raised in this appeal (that trial Judge made extricable errors of law in his decision) I need not address this issue. 17. Conclusion [ 85 ] The trial Judge erred in law in finding that the breath tests were not taken as soon as practicable. He did not consider the delay in the context of all the circumstances; further, he amplified the importance of mere minutes in conducting a minute-by-minute accounting of time.

The arresting officer acted reasonably in taking the breath samples within a reasonably prompt time under the circumstances. The two breath samples were taken 40 and 61 minutes after the traffic stop, well within the 2-hour limit imposed by Parliament. The delay was short and had no impact on Mr. Evans’ Charter rights. [ 86 ] The trial judge applied an incorrect legal test, which constitutes an error of law. Had he applied the correct legal test, the verdict would not necessarily have been the same. Accordingly, the appeal is allowed and a new trial is ordered. Heard on the 16 th day of February, 2012.

Dated at the City of Calgary, Alberta this 24 th day of April, 2012. Bryan E. Mahoney J.C.Q.B.A. Appearances: Eliana Close, Crown Prosecutors Office for the Appellant

Matthew Deshaye, Dunn & Associates and Jeinis S. Patel for the Respondent