R v Farrell, 2012 ABQB 274

Court of Queen ’ s Bench of Alberta Citation: R v Farrell, 2012 ABQB 274 Date: 20120501 Docket: 101316180S1 Registry: Ft. McMurray Between: Her Majesty the Queen Respondent - and - Lorin Albert Farrell Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. David Gates _______________________________________________________ Introduction [ 1 ] The Appellant, Lorin Albert Farrell, appeals his conviction for operating a motor vehicle with a blood alcohol content that exceeded the legal limit.

The Appellant was convicted following trial on September 13, 2011. He was sentenced to a fine in the amount of $1,500, together with a Victim Fine Surcharge of $225, and was prohibited from driving a motor vehicle in Canada for a period of 12 months. [ 2 ] The Appellant challenges his conviction on the basis of an alleged error of law. Specifically, he says that the Learned Trial Judge improperly admitted the Certificate of Analysis tendered by the Crown pursuant to s. 258(1) of the Criminal Code , when the Crown had failed to establish the statutory pre-conditions for the admission of the certificate.

Further, the Appellant states that the

Learned Trial Judge relied on information contained in the Certificate of Analysis in support of his finding that the requisite pre- conditions of admissibility had been met in this instance. [ 3 ] Alberta jurisprudence holds that there are two statutory pre-conditions for the admission of the certificate: proof that breath samples were taken and proof that the samples were taken pursuant to a demand under s. 254(3) of the Criminal Code . In this case, the Appellant concedes that there was a valid demand.

The issue is whether the Trial Judge improperly relied upon information set forth in the not-yet admitted certificate to conclude that breath samples were taken. [ 4 ] For the reasons which follow, I would dismiss this appeal. Facts [ 5 ] The facts are not in dispute. On October 15, 2010, at approximately 10:00 p.m., Sgt. Vince observed the Appellant operating a motor vehicle in the City of Fort McMurray. Sgt. Vince's attention was drawn to the fact that the Appellant's vehicle did not have its lights on as it was observed exiting the parking lot of the River City Centre, formerly the Plaza Two Shopping Centre.

The Appellant's vehicle was stopped, at which point the lights of the suspect vehicle were activated. Sgt. Vince noted a moderate odor of alcohol coming from the Appellant's breath, though there were no other signs of impairment other than the fact that the vehicle had been operated without lights. The Appellant registered a "fail" on an approved roadside screening device, at which point he was arrested for impaired driving, advised of his Charter rights, and given the breathalyzer demand. He was then taken to the RCMP Detachment. [ 6 ] Sgt.

Vince, after affording the Appellant an opportunity to contact counsel on the telephone, introduced the Appellant to Cpl. Schimanke, an approved technician, who conducted the breathalyzer test on the Appellant. [ 7 ] At trial the Crown called one witness, Sgt. Steven Vince. Sgt. Vince's evidence on this key sequence of events was as follows: Mr. Farrell indicated to me at 2311 that he had completed on the phone; and I asked if he was satisfied with his call. And he said he was. And he was brought to the interview room where I sat with him until the breath samples were taken.

And the breath samples were taken by Corporal Monica Schimanke who is a qualified technician for use on the breathalyzer. And she did obtain those samples at that time. Corporal Schimanke provided me with a certificate of qualified technician which I personally made a copy of. (Transcript: p.8, l. 30-38) [ 8 ] Later, Sgt. Vince provided the following additional evidence: Q So you obtained the breath samples, and you obtained the certificate of analyses. A I didn't obtain the breath samples. Q. Sorry. A. Corporal Schimanke obtained them and produced a certificate to me of those - - of those readings. Q.

And then what happened? A. Again, I copied it, made sure it was a true copy of the original. And I served that personally on Mr. Farrell. I also explained it to him what the readings were in it. I understand the certificate. I am a breath technician, just not in this province. And then I also served

Mr. Farrell several other documents including his administrative license suspension and whatnot, a 24 hour suspension. Q. During the time that you -- the accused was in the phone room and taking -- giving the breath samples, did you have any other opportunity to observe him ? A. Oh yes. Even on the side of the road and at the back of the car and back at the detachment, I continued to note the smell of liquor from Mr. Farrell himself and his breath. I noticed that Mr. Farrell's eyes were watery. But, again, Mr. Farrell continued through the process to be very polite, cooperative; and Mr.

Farrell continued at the time even after speaking to a lawyer saying that he knew he had made a mistake, and that he shouldn't have been driving because of the alcohol. (Transcript: p. 10, l. 18-40) [ 9 ] The Appellant did not testify and called no evidence. [ 10 ] At trial, the Appellant advanced a number of arguments. First, he argued that the breathalyzer demand did not meet the requirements of s. 254(3) of the Code .

Second, he argued that the requirements of s. 258(1)(4) of the Code had not been met in that there was no evidence before the court that the analysis of each sample was made by means of an approved instrument operated by a qualified technician. He abandoned the first argument when the Learned Trial Judge presented him with the evidence of Sgt. Vince on this particular issue. With respect to the second issue, he clarified this argument by stating that there was insufficient evidence that a breath sample was actually taken. [ 11 ] Mr.

Farrell was convicted following trial on September 13, 2011, by the Honourable Judge Jacques of the Provincial Court of Alberta, for the offence of operating a motor vehicle with a blood alcohol content that exceeded the legal limit, contrary to s. 253 (

b) of the Criminal Code .

He was sentenced to a fine in the amount of $1,500, together with a Victim Fine Surcharge of $225, and was prohibited from driving a motor vehicle in Canada for a period of 12 months. [ 12 ] The Learned Trial Judge gave oral reasons for his decision immediately following the conclusion of the evidence and argument, the essence of which is set forth in the following excerpt: ...the logical inference is that I have to be satisfied by extrinsic evidence that the certificate which clearly states that samples were taken from a certain Lorin Albert Farrell as stated in the certificate of the qualified technician, Constable Schimanke, which certificate I can examine the face of to determine if certain things which are within the exclusive purview of the technician who took the samples, and, therefore from that, I can conclude that the samples were taken from a person named Lorin Albert Farrell at certain times into an approved instrument.

What has to be proven by extrinsic evidence is that, in my view, there is an identity between the accused to whom the officer gave the demand and who is the accused standing before the Court today and the person referred to in the certificate and that is the best I can do in logic in concluding what the Court means by proven by extrinsic evidence that samples were given in the factual matrix.

In assessing that, in my view, I can consider the circumstances and despite his [Marceau J. in R v Jackson] obiter doubts about that, it seems to me that I can draw a strong inference from the fact that the officer testified that he produced this accused to the technician; and that in the course of events, the technician thereafter, proximately therefore, emerges and provides the officer with a certificate of analyses.

I, therefore, conclude in this factual matrix that such extrinsic evidence as is necessary, namely, a proof by circumstantial evidence, that the accused was the person who gave the samples to Constable Schimanke has been demonstrated beyond a reasonable doubt. Transcript, p. 42, l. 8-29 The Legislation [ 13 ] Section 258(1) of the Criminal Code provides as follows:

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

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

g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of aqualified technician stating (

i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician andascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitablefor use with an approved instrument, (ii) the results of the analyses so made, and (iii) if the samples were taken by the technician, (A) [Repealed before coming into force, 2008, c. 20, s. 3] (

B) the time when and place where each sample and any specimen described in clause (

A) was taken,and (

C) that each sample was received from the accused directly into an approved container or into anapproved instrument operated by the technician, is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to havesigned the certificate; (Emphasis Added) Standard of Review [14] The authority of a

summary conviction court is restricted to questions of law: Criminal Code, R.S.C. 1985, c. C-46, s. 830(1);R v Thivierge, 2010 ABQB 29 at para. 11. [15] The appropriate standard of review flows from the nature of the appeal issue: Housen v. Nickolaison, 2002 SCC 33, [2002] 2S.C.R. 235.

A question of law is reviewed on a standard of correctness: R v Muhlbach, 2011 ABQB 9 at para. 5. [16] The issue of whether or not the statutory pre-conditions for the admissibility of the certificate of analysis were met in thisinstance is, in my view, a question of law and, as such, the appropriate standard of review is correctness. The Law [17] The source of the two pre-conditions relied upon here is the Court of Appeal decision in R v Hruby (1980), 1980 ABCA 20, 11 Alta LR (2d) 347, 19 AR 230 (CA).

In that case, the Court was dealing with whether the time limit conditions in s. 237(1)(c) [now s. 258(1)(c)] were pre-conditions to the admission of the certificate. The argument before the Court was that the time limit forwhen a breath sample must be taken, as set out in s. 237(1)(c), was incorporated into the requirements under s. 237(1)(f) [now s.

258(1)(g)] for the admission of the certificate and the facts alleged therein. Haddad JA concluded that the pre-conditions for admittingthe certificate were only those set out in s. 237(1)(f): the making of a demand and the taking of breath samples pursuant to the demand(para 19).

He relied on the decision by the Ontario Court of Appeal in R v Pickles (1972), (ON CA), 20 CRNS 301,11 CCC (2d) 210 (Ont CA), that held that the Court could infer from the evidence that these two pre-conditions had been proved. [18] Hruby was considered by the Court of Appeal in R v Hall (1981), 1981 ABCA 13 , 14 Alta LR (2d) 326, 26 AR 313(CA). In Hall, the arresting officer transported the accused to the detachment and presented him to a technician. The arresting officertestified that he saw the accused blow twice into a machine operated by the technician. The technician did not testify.

The trial judgerefused to admit the certificate of analysis and Hall was acquitted. On appeal, the issue was whether the admissibility of the technician’scertificate required viva voce evidence by the technician proving that suitable samples were taken.

In support of this argument, theappellant Hall, relying on the decisions in Hruby and R v Zebrak (1980), (AB KB), 13 Alta LR (2d) 97 (QB TD),argued that only the qualified technician who actually took the breath samples could provide the evidence required to satisfy the pre-conditions to the admission of the certificate that suitable breath samples were taken. [19] In allowing the Crown appeal, Stevenson JA for the Court noted that Hruby stood for the proposition that the only pre-conditions to admissibility were proof that breath samples were taken and that they were taken pursuant to a valid demand.

He noted thatHaddad JA in Hruby quoted extensively from the decision of the Ontario Court of Appeal in Pickles, and like Haddad JA, he concludedthat the reasoning in Pickles applied. On the facts presented, he concluded that the only reasonable inference to be drawn was that breathsamples were taken pursuant to a demand (at para 15). He went on to note that to hold otherwise would render s. 237(1)(

f) ineffectual. [20] The facts in Pickles were very similar to the facts in the instant case. The arresting officer made a demand to the accusedrequiring him to deliver a sample of his breath into a breathalyzer machine. The officer then took the accused to the detachment andhanded him over to the custody of the breathalyzer operator. At the conclusion of his evidence, the arresting officer tendered thecertificate of analyses to the Court. There was no evidence as to whether the arresting officer was present when the breath samples wereprovided.

The Court concluded (at para. 14): At the conclusion of the testimony of Constable Doidge, the Crown "tendered a certificate of the breathalyzer operator, pursuant tosection 237(1)(

f) of the Criminal Code". Having regard to the special type of operator and the form of certificate that iscontemplated by Code s. 237, this was a significant circumstance with respect to this issue. Thus we are of the opinion that on theevidence before Carson Prov. J. and at the stage when the certificate was tendered to him, the only logical inference which could bedrawn was that a breath sample had been taken from the accused and that it was taken pursuant to a demand proved to have been madeunder s. 235(1).

That being so then, in our view, the certificate ought to have been admitted in evidence... [Emphasis added] [21] The question of whether the two pre-conditions must be proved by evidence other than the contents of the certificate wasraised before the Court in Pickles, but the Court concluded that it was not necessary to decide the point because the evidence wassufficient to draw the inference referred to above.

In obiter, the Court said (at para 13): At the moment, we are inclined to agree with the proposition that the certificate cannot be admitted in evidence until those twoconditions ... have been proved apart from the contents of the certificate.

Putting it another way those two conditions may have to beshown without reference to the certificate, and of course if that is so, the certificate cannot prove them. [22] Thus, while the Court relied on the evidence that the certificate was tendered, it did not rely on the contents of the certificate.It found that the arresting officer’s evidence provided a factual matrix consisting of a demand for a breath sample from the accused,transportation of the accused to the detachment, handing the accused over to the custody of the breathalyzer technician, and finallytendering a certificate of analyses to the Court, that lead to the inference that the pre-conditions had been established. [23] The Appellant here, however, relies on the decision of Marceau J in R v Jackson, 2005 ABQB 268 to argue that the LearnedTrial Judge erred in considering the certificate “by making explicit use of the contents of the Certificate of Analysis to prove a conditionprecedent for the admission of the Certificate.” [Factum of the Appellant, para. 32.] As such, he focusses on the portion of the reasonstwo paragraphs before the transcript reproduced in para. 11, above, namely at p 42, l. 12-14: ...which certificate I can examine the face of to determine if certain things which are within the exclusive purview of the technician who

took the samples, and, there, I can conclude that samples of breath were taken from a person named Lorin Albert Farrell at certain timesinto an approved instrument. I reproduce a slightly longer excerpt to preserve the context.

In my view the excerpt relied upon by the Appellant is not sufficient todemonstrate the reasoning process undertaken by the Learned Trial Judge, and I conclude that these four lines do not reflect his reasonsfor deciding on the admissibility of the Certificate of Analyses. [24] In Jackson, the issue was whether there was sufficient evidence of a proper demand for a breathalyzer test to satisfy thesecond pre-condition. As such, I agree with the Learned Trial Judge that Justice Marceau’s comments in regards to proof that breathsamples were taken is obiter.

Marceau J held that there was insufficient evidence from which the trial judge could reasonably infer that aproper demand had been made. Referring to the Pickles decision (at para. 22) he stated: I have set out the quotation from R v Pickles (1973), (ON CA), 11 C.C.C. (2d) 210 (Ont. C.A.) because it supports thetrial judge's conclusion that an inference can be drawn from a factual matrix that samples were taken, absent a precise statement from thearresting officer that he or she saw the suspect blow into the instrument.

I confess, however, that I have some problem with acertificate, the admissibility of which has not yet been proved, being relied upon as part of the factual matrix that supports theinference that samples of breath were taken. [Emphasis added] [25] Marceau J concluded that Pickles was distinguishable because the issue in that instance was whether a breath sample wasprovided, not whether a valid demand was made.

After concluding that a valid demand was not made, he went on to say, again obiter (atpara 51): I also seriously question whether the fact that a Certificate was produced can be used to infer that breath tests were taken.

This seems tobe deciding upon admissibility of the Certificate by using the certificate as evidence of a condition precedent to its admissibility. [26] The Appellant relies on a number of other decisions, including R v Richmond, 2007 ABPC 189, wherein Tilley PCJ,followed Jackson, but concluded on the evidence before him that it was reasonable to infer that the arresting officer saw the accusedprovide two breath samples.

Referring to Hruby, Tilley PCJ noted that the decision “offers no direction as to the sort of evidence thatmust be led in order to prove that samples were taken” (at para. 11). [27] Similarly, in R v A (JJ), 2005 ABPC 168 Easton PCJ, again following Jackson, held that there must be evidenceindependent of the contents of the certificate that breath samples were taken. In that case, while the officer who testified did not say thathe saw the second sample taken, only that the second sample was provided at a particular time.

The Court concluded that this wassufficient to draw an inference that a second sample was provided. [28] The Appellant also relies on three decisions from British Columbia. In R v van der Schoot, [1985] BCWLD 2671 (BCSC),the Court overturned a trial conviction on the basis of an unreasonable finding of fact by the trial judge. Sheppard Co. Ct.

J. found asinsufficient the evidence of the investigating officer who testified that: “I observed as Constable... proceed with the breath takingapparatus....and I observed him put the results of that test on a Certificate of Analyses and when completed [he] signed the Certificate ofAnalyses and I served it on Mr. van der Schoot”. [29] In R v Taylor, 1986 CarswellBC 669 (BCSC), Hyde J. overturned a conviction where the trial judge relied on the contents ofthe certificate and concluded that the person named in the certificate and the accused were one and the same.

From the very brief writtenreasons of Hyde J., it would appear that the only evidence before the trial court on this issue was the testimony of the arresting officerwho stated that he received a certificate from a qualified technician. [30] Finally, the Appellant relies on the decision of the British Columbia Provincial Court R v Zmud, 2002 BCPC 112, a caseinvolving a fact pattern very similar to the within matter.

In that instance, the investigating officer provided the accused with access tocounsel, observed him for about 20 minutes and then presented him to a qualified technician who “had dealings with him [the accused].”The technician subsequently provided the investigating officer with a completed Certificate of Analyses. Gill PCJ concluded there wasinsufficient evidence to establish a link between the making of the demand and the production of the certificate.

[31] The Crown relies on appellate decisions in British Columbia and Ontario for the contrary position that the contents of thecertificate of analysis can be used as evidence to determine the admissibility of the certificate. In R v Schlegel (1985) (BC CA), 37 MVR 267, 22 CCC (3d) 436 (BCCA), leave to appeal refused [1986] S.C.C.A.

No. 34, Esson JA concluded that the judge,in deciding upon the admissibility of the certificate, may consider its contents in determining whether two breath samples were taken. [32] It was clear from the extrinsic evidence at trial in Schlegel that a demand was made that resulted in a breathalyzer test, andthat it was that test that was the subject matter of the tendered certificate. However, the evidence of the testifying officer was that “abreath sample was taken,” while the legislation required two breath samples.

The County Court judge who heard the first level of appealfound that the trial judge could properly infer that more than one breath sample had been provided from the evidence that the techniciandelivered a certificate to the investigating officer. Esson JA agreed that the evidence was sufficient to support that inference, but wentfurther and concluded it was not necessary as a pre-condition to the admission of the certificate to prove that more than one sample hadbeen taken.

All that was necessary was to establish a link between the demand and the certificate, not the number of breath samplestaken. [33] Esson JA rejected the contention that the Crown was required to lead evidence, extraneous to the certificate, that the accusedhad provided two samples of his breath. He stated: If, as a condition of admitting the certificate, the taking of samples must be proved by evidence outside the certificate, s. 237(1)(

f) wouldnot accomplish its purpose, which clearly is to make it unnecessary to call the technician as witness. By s. 235(i), samples of breath aresuch samples "as in the opinion of a qualified technician" are necessary to enable a proper analysis to be made.

If the taking of sampleshad to be proved by oral evidence, that could only be by the evidence of the technician. [34] Citing the Alberta Court of Appeal decisions in Hruby and Hall, Esson JA went on to find that “the real issue at that stage[the admissibility of the certificate] was whether the necessary link had been established between the demand and the certificate.” (atpara. 18). Earlier in that same paragraph, in describing this required “link,” he stated: What is required is the establishment of a link between the demand and the test which resulted in the analysis.

That link is established byproof that the breathalyzer test dealt with in the certificate was made pursuant to the demand. Whether the evidence is sufficient for thatpurpose is a matter to be determined by the ordinary rules of evidence including the power of the Court to draw inferences. [35] In my view, it is relevant to note that Esson J.A. relied on the decision of Stevenson J.A. in Hall in support of his analysis ofthe statutory pre-conditions to the admissibility of the certificate.

He stated (at para. 23): What Stevenson J. [sic] called the “question of suitability” is essentially the same question as that of the number of samples. It is truethat, in Hall, the stated case recited that the accused “seemed to blow twice.” But I think it is clear from the language of Stevenson J.A.that nothing turned on that at [sic] fact.

The significant fact was that the arresting officer, by testifying that the accused was placed incharge of the qualified technician for the purpose of administering a test, provided the necessary link between the demand and the“samples.” [36] While Esson J.A. ultimately held that it was “appropriate and necessary” to consider the content of the certificate as well asthe extraneous evidence - a decision at odds with Alberta authority - I nonetheless find his analysis of this statutory pre-condition to becompelling and highly persuasive. [37] The Respondent also relies on two decisions from the Ontario Court of Appeal.

In R v Boyce (1997), 26 MVR (3d) 238 (OntCA), the Court heard an appeal from the

Summary Conviction Appeal Court in which Laforme J. quashed a conviction on the basis thatthe two pre-conditions had not been proved without reference to the certificate. The trial judge in that instance heard evidence that theaccused was stopped at a check stop; failed a roadside test; was arrested; and a demand for a breathalyzer test was made.

The arrestingofficer told the breathalyzer technician the grounds for arrest and turned over custody of the accused to the breathalyzer technician.Twenty-two minutes later, the breathalyzer technician returned the accused to the arresting officer’s custody and delivered to thearresting officer the certificate of analyses under consideration. The arresting officer was not cross-examined on his evidence and thebreathalyzer technician did not testify.

[38] The

Summary Conviction Appeal concluded that the trial judge had erred in inferring that the grounds for arrest werecommunicated to the technician since there was no evidence that this was communicated in the presence of the accused. The Court ofAppeal’s decision was very brief; it summarized the facts and concluded that “the only logical inference from these facts is that sampleshad been taken and had been taken pursuant to a demand” (para 4).

The Court of Appeal then restored the convicted entered in ProvincialCourt. [39] The Ontario Court of Appeal also addressed this issue, indirectly in my view, in their 2006 decision in R v Vanderbruggen(2006), (ON CA), 206 C.C.C. (3d) 489, where the issue under consideration was the proper

interpretation andapplication of the words “as soon as practicable” found in s. 258(1)(c)(ii) of the Code. What is significant, in my view, is that the factpattern in Vanderbruggen is very similar to the within matter. In that instance, the arresting officer, the only witness at trial, testified asto her grounds for suspecting that the accused was impaired, as well as the circumstances of the arrest and the making of thebreathalyzer demand. She also testified as to turning the accused over to the qualified technician and then returning to completepaperwork.

The Court of Appeal, as well as the courts below, then turned to the Certificate of Analyses for evidence as to the time of thefirst sample. Implicit in the Court of Appeal’s conclusion upholding the conviction is their satisfaction that the testimony of the arrestingofficer combined with the Certificate of Analyses provided the necessary link between the demand and the samples. Analysis [40] In my view, it is well-settled in Alberta as a result of the Court of Appeal’s decisions in Hruby and Hall that two pre-conditions must be established before a Certificate of Analyses can be admitted under s. 259(1)(g).

Relying on the Ontario Court ofAppeal decision in Pickles, our Court of Appeal has said that these pre-conditions can be proved by inference from extrinsic evidence,including evidence of the fact that the qualified technician presented the investigating officer with a certificate.

In considering this fact,the court is not considering the content of the Certificate of Analyses, but rather that a certificate has been produced to the arrestingofficer within the context of a chain of events related by the arresting officer relative to an impaired driving investigation. [41] A similar conclusion was reached in R v McGee (1979), (ON SC), 11 CR (3d) 145, 45 CCC (2d) 520 (OntHC) (at para 9): In my view, the tendering in evidence of the certificate, quite apart from its contents, was a fact upon which, together with the otherfacts proven, the Provincial Court Judge could arrive by inference or on circumstantial evidence at the conclusion that a sample had beentaken. [Emphasis added] [42] The Appellant relies heavily on the decision in Jackson.

In my view, Jackson is distinguishable from this case on severalgrounds, including the fact that in Jackson the trial judge expressly relied on the contents of the certificate. Here, the Learned TrialJudge relied on the fact that a certificate was produced, but did not rely on the contents, as part of the factual matrix. [43] I agree with Marceau J. that a court cannot rely on the contents of the certificate as proof that a breath sample was taken indetermining whether that same certificate is admissible.

While the BC Court of Appeal in Schlegel held that a trial judge could haveregards to the contents of the certificate to establish admissibility, this comment was, in my view, obiter, given the conclusion of EssonJA that the evidence at trial was sufficient to support the trial judge’s decision and that it was unnecessary to prove that two breathsamples were taken. [44] In my view, the decisions in Richmond, A (JJ), and Taylor are consistent with my findings here.

In regards to Taylor, I agreethat the mere receipt of a certificate from a qualified technician, without more, is not a sufficient basis to draw the inference. With respectto the decision of Sheppard Co Ct J in van der Schoot, I note that this case was decided several months before the B.C. Court of Appealreleased its decision in Schlegel. Arguably, the decision in van der Schoot was overruled by Schlegel.

In any event, I would distinguishvan der Schoot on the basis that the facts in the within matter were more complete in terms of the factual connection between the actionsof the arresting officer and those of the qualified technician. Like the decision in van der Schoot, I would note that the decision in Zmudappears to be inconsistent with the B.C. Court of Appeal’s decision in Schlegel.

To the extent that the facts in Zmud are similar to thefacts here, I respectfully disagree with its conclusion. [45] In my view, the facts in the Pickles decision present almost precisely the same factual matrix relied on by the Learned TrialJudge in the within matter. However, in this case the arresting officer provided more evidence than that in Pickles, since he testified thatthe technician provided him with the certificate that he tendered to the Court. I would observe that the arresting officer also testified that

breath samples were taken from the Appellant, a fact that seems to have been lost in the Learned Trial Judge’s discussion of the legal issues before him. [ 46 ] My review of all of these decisions leads me to the conclusion that Esson J.A. correctly identified the issue in Schlegel when he stated that “the real issue at that stage [the admissibility of the certificate] was whether the necessary link had been established between the demand and the certificate.” In my view, the existence of such a link must be considered on the totality of the evidence.

I am satisfied that the Learned Trial Judge correctly concluded that the necessary factual matrix had been established in this instance through the evidence of Sgt. Vince, including his evidence that he received a Certificate of Analyses from the qualified technician after turning the Appellant over to that qualified technician. In my view, it was not necessary for Sgt.

Vince to have been present when the breath samples were actually taken in order for this statutory pre-condition to be met. [ 47 ] I conclude that the Learned Trial Judge made no error in law in finding that there was sufficient evidence before him to infer from the evidence presented at trial that breath samples had been taken from the accused pursuant to a demand under s. 254(3), and that therefore the Certificate of Analyses was properly admitted. Conclusion [ 48 ] Accordingly, the appeal is dismissed. Heard on the 13 th day of February, 2012.

Dated at the City of Edmonton, Alberta this 30 th day of April, 2012. M. David Gates J.C.Q.B.A. Appearances: Steven P. Hinkley for the Respondent Jamil Sawani for the Appellant