R v Morrison, 2012 ABQB 544

Court of Queen ’ s Bench of Alberta Citation: R v Morrison, 2012 ABQB 544 Date: 20120917 Docket: 100428622P1 Registry: Peace River Between: Kevin Arthur Morrison Appellant - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C.S. Brooker _______________________________________________________ Introduction [ 1 ] On June 11, 2011, following a trial, Kevin Arthur Morrison (the “ Appellant ” ) was found guilty of operating a motor vehicle with a blood alcohol exceeding eighty milligrams of alcohol in one hundred millilitres of blood, contrary to s.253(1) (

b) of the Criminal Code of Canada . [ 2 ] This is an appeal from that conviction.

Facts [ 3 ] On April 11, 2010 the Appellant was returning home from a dance in Hines Creek. He was driving his pick up truck. His wife and his daughter were with him. He was driving on a country road. At this time, Constables Pottage and Blue were patrolling in the area in a marked police car. At approximately 0120hrs, Cst. Pottage observed the Appellant ’ s vehicle driving eastbound with one headlight. He decided to make a traffic stop. He was approximately 200 metres behind the Appellant ’ s vehicle when he activates his siren and emergency lights.

The Appellant continued driving for about ten seconds before stopping after negotiating an “ S ” curve. The shoulder where the Appellant stopped was narrow with the result that after stopping, part of the Appellant ’ s vehicle protruded into the eastbound travel lane. [ 4 ] Cst. Pottage approached the Appellant and spoke to him. Cst. Pottage made some observations and formed the suspicion that the Appellant had alcohol in his body and gave him the demand for a roadside breath sample. The Appellant eventually gave a suitable sample and the ASD device registered a “ fail ” . Cst.

Pottage therefore arrested the Appellant at 0140hrs and read him a formal demand for a breath sample at 0143hrs. [ 5 ] The police decided that because of the position of the Appellant ’ s vehicle on the roadway, it could not be left where it was. They decided it would have to be towed. [ 6 ] The Appellant ’ s daughter only had a learner ’ s driving permit. The Appellant ’ s wife had also been consuming alcohol but Cst.

Pottage never indicated in his testimony that he had formed the opinion that she was in no condition to drive. [ 7 ] The Appellant ’ s wife used his cell phone to call their son Arthur to come to the scene and pick her and her daughter up and take them home. Arthur arrived shortly thereafter and drove his mother and sister home. Meanwhile, the police waited at the scene with the Appellant, for the tow truck to arrive.

About 34 minutes after the Appellant ’ s arrest, the tow truck arrived and the police left with the Appellant. [ 8 ] Once at the police station, two samples of the Appellant ’ s breath were taken using an approved device. The Certificate of Analysis states that the samples were taken at 0300hrs and 0321hrs. However, the printout from the machine itself — which Cst. Pottage testified was an accurate copy — states that the samples were taken at 2:55:05 hrs and 3:16:18 hrs respectively. [ 9 ] At the trial of this matter, the Crown called one witness, Constable Pottage. The defence called one witness, the Appellant.

The learned trial judge took time to consider his decision and rendered it orally on June 22, 2011 at which time he found the Certificate admissible and convicted the Appellant. [ 10 ] Thereafter, the Appellant appealed that conviction, alleging three errors were made by the learned trial judge: (1) finding that the Crown had proved beyond a reasonable doubt that the breath samples were obtained as soon as practicable; (2) made an unreasonable finding of fact that the Crown had demonstrated the requisite grounds to justify a s.254(2) demand; and (3) admitting the certificate of analysis into evidence in the absence of proof beyond a reasonable doubt as to when the breath samples were taken.

Issues [ 11 ] The written and oral arguments advanced by the Appellant and the Crown give rise to the following issues: A. Did the learned trial judge err in concluding that the Crown had proved beyond a reasonable doubt that the breath samples were taken as soon as practicable? B. Did the learned trial judge err by making an unreasonable finding of fact that the Crown had demonstrated the requisite grounds

to justify a section 254(2) demand by the police officer? C. Did the learned trial judge err in law in admitting the certificate of analysis into evidence in the absence of proof beyond areasonable doubt as to when the samples were taken? [12] I will consider each of these grounds in turn in my analysis. Analysis A.

Did the learned trial judge err in concluding that the Crown had proved beyond a reasonable doubt that the breathsamples were taken as soon as practicable? [13] The learned trial judge found that it was reasonable for the police to have the Appellant’s vehicle towed and to wait for thetow truck to come and that it was not sensible to expect Cst. Blue to wait for the tow truck and get a ride back in it, so that Cst. Pottagecould leave immediately with the accused for the detachment. [14] The

interpretation of the meaning of the phrase “as soon as practicable” is a question of law for which the standard of reviewis correctness. The application of that test to the evidence is a question of fact for which the standard of review is palpable and overridingerror: R. v. Mailey, 2012 ABQB 138. [15] The requirement that the breath samples be taken “as soon as practicable” does not mean that the samples must be taken assoon as possible: R. v. Van Der Veen (1988), 1988 ABCA 277 , 44 C.C.C.(3d) 38 (Alta. C.A.). Rather, the samples must betaken within a reasonably prompt time in the circumstances: R. v.

Mudry 1979 ABCA 286 at para. 18. In considering this, the trial judgemust look at the whole chain of events: R. v. Vanderbruggen (2006), (ON CA), 206 C.C.C.(3d) 489 (Ont.C.A.) atpara. 13. The crux is: did the police act reasonably in the circumstances? See Vanderbruggen at para. 12. [16] The learned trial judge correctly interpreted the term “as soon as practicable”. [17] However, the Appellant argues that the learned trial judge committed palpable and over-riding error in finding that the policeacted reasonably in waiting for the tow truck and thus the samples were taken as soon as practicable.

This fact finding was made in theface of the uncontroverted evidence that the Appellant was told shortly after his arrest that his vehicle would be towed, that he was thenasked for his cell phone in order that his wife could call Arthur to come and get her and her daughter and that Cst. Pottage never didconclude that although the wife had consumed some alcohol, that she was in no condition to drive. While initially in his cross-examination, Cst.

Pottage claimed that the decision to tow the vehicle came because there was no one else who could move it, heeventually admitted that he “was not sure what the reasoning was” for towing the vehicle. Further, Cst. Pottage testified that he wouldhave allowed the Morrison’s to bring a second driver to the scene to drive the vehicle home but he never said why when Arthur arrivedon the scene he did not ask him to move it to a safe place.

Moreover, the Appellant argues that the learned trial judge committedreversible error in holding that “there’s no evidence that the wife was prepared to drive or that any other person was available to operatethe motor vehicle’ (Transcript p.112/lines 36-39) in that by doing so it had the effect of reversing the burden of proof from the Crown. [18] I agree that the reasons of the learned trial judge appear to place an onus on the accused to prove that Arthur or Mrs.Morrison could have moved the car home or to a place of safety. [19] Several cases cited by the Appellant demonstrate situations where the court obviously viewed the onus as resting on theCrown to prove that obvious alternatives to waiting for a tow truck were not reasonable or practical. [20] In R. v.

Claughton [1998] O.J. 3515 (Ct. of Justice) the court found that a sixteen minute delay occasioned by the policewaiting for a tow truck was, in the circumstances, unreasonable thus leading to the conclusion that the breath samples were not taken assoon as practicable. In discussing the whether the delay was reasonable, the trial judge said at paragraphs 11, 14 and 15.:

[11] However, there were other options readily available and apparent. The owner of the vehicle was seated there as a passenger. Was her blood alcohol concentration under the legal limit? Would she have wanted her motor vehicle to be parked overnight at the side of the road?

Other than the suggestion that the passenger-owner had been consuming some alcohol that evening there was no evidence that her ability to be in care and control of a motor vehicle was diminished, compromised or impaired. [14] The time necessary to have considered these reasonable options would have been minimal as compared to the over fifteen minutes waiting for the arrival of the low [ sic ] truck. [15] Thus the Crown has not proved that the test were done as soon as practicable, and the results of the analyses do not meet the preconditions of s.258(1)c. There will be a verdict of not guilty. [ 21 ] In R. v.

Gardiner [1990] O.J. 2370 (Ct. of Justice - Gen. Div.) the

summary conviction appeal court overturned the trial judge ’ s decision that it was reasonable for the constable to call a tow truck and wait thirty-six minutes for its arrival before taking the accused in for the breathalyser test. There were two or more passengers in the car when it was pulled over. There was no indication that they or any of them were under the influence nor that none of them were not capable of driving the car or that it was inoperable. Despite all of this the officer elected to call a tow truck to have the vehicle removed, and await its arrival.

At page 3 of his decision, the appeal judge states: I find that the calling of a tow truck and waiting for it for 36 minutes when the accused and his car in all probability could have moved to the detachment for the breathalyser testing constitutes unreasonable and unexplained delay in this case and that the testing was not done as soon as practicable as the code requires. [ 22 ] The legislative requirement that the samples be taken “ as soon as practicable ” was enacted to protect the accused. As explained in R. v. Willette [2011] O.J. No.504 (S.C.J.) at paras. 45 - 48 .

Specifically, the court noted at para. 46: The “ as soon as practicable ” requirement was enacted as a protection for the accused, since the presumption operates to fix the accused with a blood alcohol content that existed sometime after the time of driving.

This requirement mandates that the breath test be conducted as soon after the time of driving as reasonably possible [ sic ] in order to ensure that the presumption operates fairly and that the breath test leads to accurate results ... . [ 23 ] In my opinion, the onus is on the Crown, not the accused, to prove that it was reasonable to wait for the tow truck and thus incur a delay of some thirty-four minutes in the taking of the breath samples. As Moshansky, J. noted in R. v. St.

Marie 1993 ABQB — at page 4: “ The onus is on the Crown to establish that it was non-practicable to comply ” . [ 24 ] It my respectful opinion it was an error for the learned trial judge to, in effect, reverse the onus onto the Appellant to show that the wife was capable or prepared to drive.

Further, the learned trial judge erred when he said “ There ’ s no evidence ... that any other person was available to operate the motor vehicle. ” The evidence was clear that Arthur had been called and arrived at the scene and no evidence was given that Arthur could not have moved the motor vehicle off the road to a place of safety. Finally, the learned trial judge failed to address or otherwise consider Cst. Pottage ’ s admission [Transcript p.58, line36 to p.59, line 5]: Q. Well, it – yeah, you weren ’ t concerned about continuation of the events in this case? A.

I wouldn ’ t – I would have no idea but, yeah, I ’ m not too sure. I – we – Q. Okay. A. – just towed it in this case, so – I ’ m not – Q. You just towed it. A. – sure what the reasoning was. Q. And your not sure what the reasoning was?

A. No. [25] The learned trial judge found that Cst. Pottage’s decision to tow the vehicle was reasonable. Yet he fails to deal with theabove admission.

As counsel for the Appellant points out it his written argument: “If the investigating officer himself does not know thereason for towing the vehicle, how can the Trial Judge possibly conclude that he had valid reasons for towing the vehicle?” I agree. [26] In the result, I conclude that the foregoing errors constitute palpable and overriding errors such that the learned trial judge’sconclusion that the breath samples were taken as soon as practicable cannot stand and I must conclude that the Crown has failed to provethat the breath samples were taken as soon as practicable. [27] The Crown submits, however, that even if I conclude that the breath samples were not taken as soon as practicable, it doesnot make them automatically inadmissible.

It argues that a ruling as to inadmissibility can only be made following a Charter analysis. Itrelies on the Manitoba Court of Appeal decision in R. v. Forsythe (J.R.) 2009 MBCA 123 (leave to SCC dismissed [2010] S.C.C.A.No.60) and a number of Alberta Provincial Court decisions which follow it. [28] The Crown notes that the issue of “as soon as practicable” was not included in the Charter notice filed and argued by theaccused at trial.

Accordingly, the Crown submits that absent the Charter notice and having regard to Forsythe, the results of the breathtest are admissible. [29] The Appellant’s response to the Crown’s argument on this point is that while the certificate may be admissible, the Crowncannot rely on the presumption s.258(1)(c) (sometimes referred to as “the presumption of identity”) or the presumption in s.258(1)(g)(sometimes referred to as “the presumption of accuracy”) unless the preconditions set out therein are met. It cites R. v. Smethurst [2011]ABPC 153 and R. v. Willette [2011] O.J.

No.504 (Superior Court) in support. [30] In Willette after observing that compliance with the statutory scheme must be strictly construed, the court observes at paras.50 and 55: 50. As such, before the presumption can be relied on, it is necessary for the Crown to prove that all of the prerequisites listed ins.258(1)(c)(ii) of the Criminal Code of Canada have been met, including that the samples were taken “as soon as practicable”: Wolfe,supra, at para. 13. 55. This is not an issue of exclusion which necessitates a Charter application by the defence.

What is in issue is whether the Crown ispermitted to rely on the “evidentiary assist” provided to them. [31] It does not appear that the court in Willette considered Gundy, Charette, Forsythe or Rilling as those cases are not mentionedin the decision. [32] It would also appear that the Appellant’s position on this point has some support in the New Brunswick Court of Appealdecision in R. v.

Searle (2006), 2006 NBCA 118 , 215 C.C.C.(3d) 374 at para. 25. [33] However, two subsequent decisions of the Ontario Court of Appeal appear to cast doubt on the Searle decision and providesome support for the decision in Forsythe. [34] In R. v. Gundy, 2008 ONCA 284, Rosenberg, JA writing on behalf of the court, observed that the pre-Charter decision of theSupreme Court of Canada in R. v. Rilling (1975), (SCC), 24 C.C.C.(2d) 81 which held that absence of reasonable andprobable grounds does not affect the admissibility of a certificate, was still good law. He then writes at para. 29:

The argument relating to the s.258(1)(

c) presumption runs along similar lines since the opening words are virtually identical [tos.254(3)]: “where samples of the breathe of an accused have been taken pursuant to a demand made under subsection 254(3)”. It wouldseem to me that Rilling is a complete answer to that argument as well: see R. v. Anderson, [2005] O.J. No.1900 (C.A.).

In fact, in hisdissent in Rilling, Spence J. drew no distinction between the admissibility of the certificate or the operation of the presumption ... . [35] The court noted in Gundy that the Searle issue did not specifically arise there stating at para. 40: The Searle issue does not arise in this case. The appellant did not contend here or at trial or at the

Summary Conviction Appeal Courtthat if there is no reasonable and probable grounds the Crown could not rely on the presumption. I should therefore not be taken ashaving decided that issue. I point out, however, that when the matter is before the court for decision, the effect of Rilling will have to beconsidered. [emphasis added] [36] The matter did come before the court in R. v. Charette, 2009 ONCA 310.

There the court of appeal was dealing with twoappeals with a common issue [para. 7]: Absent a Charter application, where an accused has provided breath samples pursuant to a demand made under s.254(3) of the Code incircumstances where the peace officer did not have reasonable and probable grounds for making the demand, is the Crown entitled toavail itself of the presumption of identity in s.258(1)(

c) of the Code? [37] Earlier in the judgment, the court observed: 5. Although not strictly at issue in these appeals, s.258(1)(

g) of the Code is also relevant to the resolution of the common issue. ... [38] Moldaver, JA, writing on behalf of the court says: 31. In sum, the Charter issues, if any, relevant to the application of the presumption of identity, are matters to be determined anotherday. As for the issue at hand, which solely involves non-Charter considerations, I believe that Rilling, which continues to bind this court,provides a complete answer in favour of the Crown. ..... 35.

It is apparent that in sustaining Rilling’s “over 80" conviction, the majority of the court applied the presumption of identity as wellas the presumption of accuracy. ... 37. In Spence J.’s [dissenting in Rilling] view, by virtue of the opening words of both provisions, Parliament intended to limit theavailability of the presumptions in both s.258(1)(

c) and s. 258(1)(

g) to those cases where the arresting officer had reasonable andprobable grounds. In contrast, the majority in Rilling must be taken to have concluded that just as reasonable and probable grounds formaking a demand are irrelevant for purposes of s.258(1)(

g) where an accused has acceded to the demand and provided samples, so tooare those words irrelevant for the purposes of s.258(1)(c). The only other possibility, in the circumstances, is that the majority sustainedan unlawful conviction, a proposition that I refuse to accept. 38. In light of Rilling, I can see no reason why the opening words of s.258(1)(

g) should be treated as irrelevant where an accused hascomplied with a demand and provided samples but treated as highly relevant in identical circumstances where what is at issue is thepresumption of identity in s.258(1)(c). As a matter of statutory

interpretation, absent express language to the contrary, the same words intwo subsections of the same provision should be treated alike, especially where, as here, the provision is meant to provide a completecode for proceedings involving drinking and driving offences. Giving the same words the same meaning throughout a statute is a basicprinciple of statutory

interpretation: R. v. Zeolkowski, (SCC), [1989] 1 S.C.R. 1378 at p.1387.

[ 39 ] In Forsythe , at para. 9 the court of appeal stated the issue to be whether or not the requirement of 2.254(3) of the Criminal Code that the police take a sample “ as soon as practicable ” was a precondition to the admissibility of the test result.

The court held that it was not and that a challenge to its admissibility must be brought as a Charter application to exclude the evidence. [ 40 ] The Charette, Rilling and Gundy decisions are all mentioned by the court in Forsythe and thus the attempt to distinguish and limit the affect of Forsythe by counsel for the Appellant as well as the learned trial judge in Smethurst must fail. [ 41 ] The decision in Rilling , as well as Charette compel me to conclude that despite my having found that the learned trial judge erred in concluding that the demand for breath samples was made as soon as practicable, and as compelling as the reasoning in Willette appears, absent a Charter notice and challenge, the learned trial judge was correct in admitting the certificates and applying the presumptions of identity and accuracy.

B. Did the learned trial judge err by making an unreasonable finding of fact that the Crown had demonstrated the requisite grounds to justify a section 254(2) demand by the police officer? [ 42 ] In order to make a lawful demand for a breath sample into an approved roadside screening device, the officer must have a reasonable suspicion that the accused has alcohol in his body. As stated in R. v.

Gilroy 1987 ABCA 185 at para. 5 : “ The test is consumption alone and not its amount or behavioural consequence ” . [ 43 ] The test for “ reasonable suspicion ” is: “ whether the subjective and objective observations of the investigating officer taken together would support a suspicion by a reasonable person ... ” : R. v. Orcheski 2011 ABQB 280 . [ 44 ] Parliament has set a deliberately low threshold for the subjective and objective grounds required to justify a demand for a roadside screening device: R. v.

Thomas 2008 ABQB 610 at para. 22 . [ 45 ] The learned trial judge found: Accordingly, based on the whole of the evidence, including the time, the event, being the dance; the failure to stop the vehicle; driving left of centre; the glassy, watery eyes; slow, deliberate movements; the admission, which did not fit what the officer was observing, there is sufficient evidence which, when viewed by a reasonable observer, would support the suspicion formed by the officer that Mr.

Morrison had alcohol in his body. ” [ 46 ] The Appellant ’ s position is that the learned trial judge erred in failing to address the fact that Cst. Pottager ’ s evidence relied heavily on his notes which did not include some of the indicia relied on or were not observed or made before the officer had reached his suspicion; and that the trial judge did not deal with exaggerations alleged to be found in the officer ’ s testimony. Also, given the learned trial judge ’ s admitted confusion over the evidence of Cst,. Pottager as to whether Mr.

Morrison admitted to having had a few drinks (rather than just one at supper) before or after the demand was made, the only safe conclusion is that Mr. Morrison had only admitted to one drink at supper before the demand was made which would, on the authorities cited by the Appellant, not provide objective evidence that the accused had alcohol in his body at the time of the demand.

In the result, the Appellant argues that the learned trial judge erred in his finding that the officer had reasonable suspicion. [ 47 ] The Crown argues that there was evidence in the totality of the circumstances which, when combined with the low threshold required, satisfied the test on both a subjective and objective basis. [ 48 ] I agree with and accept Madam Justice Hughes ’ statement of the standard of review in Orcheski at paras. 15 and 19 (citations omitted):

[15] The standard of review for questions of law is correctness and the standard of review for a factual inference drawn from those factsis palpable and overriding error... [19] I conclude that the legal test for reasonable suspicion is a question of law and the standard of review is correctness ... [49] I cannot conclude that the learned trial judge erred in law in coming to the conclusion that Cst. Pottager had reasonablegrounds to support his reasonable suspicion. While admittedly Cst.

Pottager’s testimony was less than crystal clear on some of thematters referred to in the Appellant’s argument, there was ample evidence in his testimony to support the trial judge’s fact findings.

It isup to the trial judge to pick, chose and weigh the evidence, particularly where some it may be confusing or even contradictory. [50] Further, as to the Appellant’s argument that an admission to one drink of alcohol at supper would not give rise to a suspicionof there still being alcohol in the body many hours later, I respectfully agree with MacDonald J.’s comments in Thomas at para. 50: I agree with the comments of Provincial Court Judge G.M. Meagher in R. v.

Dunn, 2007 ABPC 160 at para. 16, where he stated, in part: The admission of consumption is sufficient to raise a reasonable suspicion of alcohol in the body. If an accused person admits toconsumption, it is not necessary for a police officer to challenge or clarify the type, quantity or timing of the consumption. Once anaccused admits consumption it is reasonable, based on the objective standard, for a police officer to have a suspicion of alcohol in thebody.

It is not necessary for the police officer to evaluate or, indeed, believe additional information offered by the suspect driver in orderto satisfy the subjective and objective standards for reasonable suspicion of alcohol in the body at this stage of the investigation. [51] As the learned trial judge noted in his reasons [transcript p.110]: —it is obvious from the nature and substance of Mr. Foster’s question and the officer’s reply that the officer was seeing other things thatdid not fit with the one drink answer provided by Mr. Morrison. The officer, in my view, is not required to believe Mr.

Morrison, and it would be an error, in my view, to require the officer to be doingroadside calculations on admitted amounts which in this case because of other indicia are suspect to the officer, and then, as a result ofthose calculations conclude that the individual, Mr. Morrison in this case, would no longer have alcohol in his body. [52] I agree. [53] I conclude that the learned trial judge made no error in concluding that on the whole of the evidence, there was sufficientevidence which, viewed by a reasonable observer, would support the officer’s suspicion that Mr.

Morrison had alcohol in his body.Accordingly, this ground of appeal must fail. C. Did the learned trial judge err in law in admitting the certificate of analysis into evidence in the absence of proof beyond areasonable doubt as to when the samples were taken? [54] The Appellant contends that the learned trial judge erred in entering into evidence the certificate of analysis and thereafterapplying the presumption under s.258(1)(g). The basis of the error alleged is that the certificate indicated that the two samples weretaken at 03:00 and 03:21 and the evidence of Cst.

Pottager, aided by the printout from the breath test ticket which came from theapproved instrument, was that the samples were taken at 02:55 and 03:16 hours respectively. Counsel refers to R. v. Egger (SCC), [1993] 2 S.C.R.451, R. v. Hruby [1980] A.J. No.574 (C.A.) and R. v. Shadoff [1993] O.J. No.534 (Gen.Div.). [55] The Crown’s position in this issue is that the learned trial judge was correct in finding that there was no reasonable doubt raisedby the print out and he was therefore correct in admitting the certificates and the times therein became evidence of the fact by virtue of

s.258(1)(

g) of the Code . [ 56 ] The learned trial judge, in dealing with this issue, said this at page 113 of the Transcript: Then considering whether the difference on times of the certificate and the instrument raises a reasonable doubt as to the time the samples were taken. It does not. The certificate of analyses states the time of the samples to be three and 3:21. The officer was shown a copy of the printout from the instrument which he acknowledged as an accurate copy. It showed the times to be 2:55:05 and 3:16:18. ... In any event, section 258(1)(

g) deems the time on the certificate as the evidence of the facts alleged. To point to a document from the instrument which sets out different times than shown on a certificate, without any evidence of the accuracy of those times on the printout and without any evidence as to how those times are related to the times on the certificate does not raise a reasonable doubt. They ’ re simply a statement of two times without any evidence so as to link those times with those – with the times on the certificate or raise any reasonable doubt as to the time on the certificate. They simply do not raise a reasonable doubt.

The evidence of – the evidence in the certificates as to times is the evidence deemed by

section 258. The evidence of the other two times do not, in my view, raise a reasonable doubt as to the times on the certificate. [ 57 ] The manner in which the Appellant has formulated this ground of appeal is to raise an error in law. The standard of review is thus correctness. To the extent that the Appellant seeks to challenge the finding of fact ie. that the trial judge did not have a reasonable doubt, then the standard of review is palpable and over- riding error . [ 58 ] In my view, the learned trial judge did not err in law in admitting the certificates of analysis.

I do not interpret two of the cases relied upon by the Appellant — Egger and Hrudy – as supporting the Appellant ’ s position that the certificates were not admissible. Egger makes it clear that the question of admissibility of the certificates is unrelated to the availability of the presumption and admissibility does not depend upon meeting the conditions for the presumption: para. 14.

Other comments of the court at para. 32 are instructive: 32. ...The effect of satisfying the burden of proof of preliminary facts to the admission of evidence is only that the evidence is admitted; it determines neither the weight of the evidence nor the guilty of the accused. This occurs in the next step of the process during which the Crown must satisfy its legal burden. ....

The effect of the presumption in this case is to provide conclusive proof of the accused ’ s blood alcohol concentration at the critical time, in the absence of evidence to the contrary . ... [ my emphasis]. [ 59 ] In Hrudy too the certificates were found to be admissible. At para. 17 the court notes: 17.

Upon proof of those two elements – that is, the making of a demand and the taking of breath samples pursuant thereto – the prosecution is then in a position to tender the certificate in evidence and if it appears regular on its face, in that it contains all the statements dictated by s.237(1)(f), it becomes admissible. [ 60 ] The court in Hrudy , quoting an Ontario court of appeal cases goes on to say: In the first place, it is not necessary, before such a certificate is received, to prove by extraneous evidence those matters set out in s.237(1)(c)(ii), (iii), (iv); and secondly, once a certificate is admitted, it does prove more than that which is deemed to be proved by virtue of s.237(1)(f)(ii).

It is quite evident, then, that the defence is entitled to rebut the presumption created by (c), (f), as to the truth of those matters contained in the certificate of analyses, by “ evidence to the contrary ” as permitted by s.237(1)(c). One of the elements to be proven and presumed correct by the certificate is the time when each sample was taken. Like other elements which can be proven that

way it is open to the defence to challenge and rebut the accuracy of the statements as to time. ... [ 61 ] In Shadoff , the judge held that if the times are stated in the certificate, even if they are stated ambiguously or unclearly, the certificate should be admitted.

But he also states (at para. 33): If before the tendering of the certificate there is evidence adduced which conflict with the “ times ” stated in the certificate, then the trial judge should not accept the certificate as admissible unless he is satisfied beyond a reasonable doubt that the time stated in the certificate is correct. [ 62 ] With respect, the learned trial judge ’ s comment at para. 33 of Shadoff appears to be in conflict with the decisions in Egger and Hrudy , both of which decisions are binding on me. [ 63 ] In any event, it is clear from the learned trial judge ’ s reasons in the case before me and quoted above, that he considered the other evidence elicited by the accused ’ s counsel on cross- examination as to different times shown on the printout but that that evidence did not raise a reasonable doubt in his mind as to the correctness of the times set out in the certificates.

He thus clearly appreciated that the times set out in the certificates were presumptively correct in accordance with the

section of the Code , but that the defence could lead evidence to the contrary in order to try an raise a reasonable doubt on the element of correctness of the time stated. Here, the evidence did not raise a reasonable doubt in the learned trial judge ’ s mind.

That weighing of the evidence was uniquely withing the trial judge ’ s purvue and discretion and I see no basis for interfering in his finding that no reasonable doubt had been raised. [ 64 ] Accordingly, the learned trial judge did not err in admitting the certificate of analyses nor in finding that the times the samples were taken were as set out in the certificate. Conclusion [ 65 ] For the reasons set out in the foregoing analysis, this appeal must be dismissed. Heard on the 27 th day of April, 2012. Dated at the Town of Peace River, Alberta this 4 th day of September, 2012. C.S. Brooker J.C.Q.B.A.

Appearances:

Timothy E. Foster, Esq. For the Appellant Bruce Ritter, Esq. For the Respondent