R. v. Gleeson, 2012 ABQB 675

Court of Queen ’ s Bench of Alberta Citation: R. v. Gleeson, 2012 ABQB 675 Date: 20121031 Docket: 110030566P1, 110030566S1 Registry: Calgary Between: Her Majesty the Queen Respondent/Crown - and - Teresa Dawn Gleeson Appellant/Accused _______________________________________________________ Reasons for Judgement of the Honourable Mr. Justice Bruce A. Millar _______________________________________________________ Introduction [ 1 ] This is an appeal from a

summary conviction in the Provincial Court of Alberta. At trial, the Appellant Teresa Dawn Gleeson was convicted of one count of operating a motor vehicle with a blood alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood, contrary to subsection 253(1) (

b) of the Criminal Code, RSC 1985, c C-46 [ Code ]. This appeal concerns whether the Appellant's breath samples were taken as soon as practicable under the circumstances, pursuant to subsection 258(1) (c)(ii) of the Code , and whether the Appellant's breath samples were taken pursuant to a valid breath demand under subsection 254(3) of the Code.

Background [2] On 22 December 2010, Constable Letkeman and his partner, Constable Hutchinson, were patrolling near Sundre, Alberta. At2:10 a.m., Constable Letkeman observed erratic driving on Highway 27. At 2:11 a.m., Constable Letkeman stopped a vehicle operatedby the Appellant. Constable Letkeman observed the smell of alcohol on the Appellant's breath, along with bloodshot, watery eyes.

TheAppellant admitted to consuming alcohol and agreed to provide a roadside breath sample. [3] At 2:14 a.m., Constable Hutchins, in Constable Letkeman’s presence, read the Appellant a roadside breath demand andadministered the roadside breath sample test on an approved screening device. The Appellant provided seven breath samples. The firstsix were not suitable, while the seventh registered an "F". At 2:24 a.m., Constable Hutchinson showed the results of the roadside sampleto Constable Letkeman and explained the meaning of the results.

Constable Letkeman had reasonable grounds to believe that theAppellant's ability to operate a motor vehicle was impaired by alcohol. At 2:28 a.m., Constable Letkeman Chartered and cautioned theAppellant, and made a breath demand. [4] At 2:32 a.m., Constable Letkeman left the scene with the Appellant. At 2:35 a.m., they arrived at the detachment. A breathtechnician was present upon their arrival. [5] The Appellant said she felt sick and asked to use the washroom.

The officers allowed her to use the washroom. [6] The Appellant was taken to an interview room, and was instructed on her rights to counsel, which she waived. [7] Constable Letkeman then took the appellant to the breathalyzer room. The Appellant blew unsuccessfully. The breathtechnician asked Constable Letkeman to return the Appellant to the interview room and wait to be re-called. In the interview room,Constable Letkeman engaged in conversation with the Appellant, monitoring for signs of impairment.

The Appellant was called back andsuccessfully provided two samples, at 3:19 a.m. and 3:41 a.m. [8] At 4:34 a.m., the Appellant was served with a certificate of analysis. At 4:48 a.m., the Appellant was released. [9] The Appellant was charged under subsection 253(1)(

a) and subsection 253(1)(

b) of the Code. The Appellant's charge undersubsection 253(1)(

a) of the Code was dismissed at trial. Trial Judge's Reasons [10] The trial judge, in his oral reasons given 17 October 2011, found the Appellant guilty of operating a motor vehicle while herblood alcohol level exceeded the legal limit of 80 mg of alcohol in 100 ml of blood. The Appellant was sentenced to a $1,100 fine, a 15%victim surcharge, and a 12 month driving prohibition.

The trial judge allowed the Appellant to drive in the last 9 months of her drivingprohibition, conditional on her acceptance into the alcohol ignition interlock device program. [11] The trial judge noted that Contestable Letkeman provided a general explanation of events, but no specific times, for the 44minute period between when the Appellant arrived at the detachment and her first breath sample. [12] Nevertheless, the trial judge found that the breath sample was taken “as soon as practicable”, pursuant to subsection 258(1)(c)(ii) of the Code. He came to this conclusion after reviewing the case law on the

interpretation of “as soon as practicable” as set out in R.v. Van der Veen (1988), 1988 ABCA 277 , 61 Alta LR (2d) 175 (ABCA) [Van der Veen], and R. v. Vanderbruggen (2006), (ON CA), 206 CCC (3d) 489 (ONCA) [Vanderbruggen], and after finding that Constable Letkeman proceededdiligently and acted reasonably.

[ 13 ] The trial judge also inferred that the Appellant's breath samples were provided pursuant to a lawful breath demand under subsection 254(3) of the Code . He came to this conclusion after reviewing case law on the wording of breath demands, Constable Letkeman’s testimony, and the Appellant’s consent to the admission of the certificate of analysis.

Issues to be Determined [ 14 ] The issues to be examined in this appeal are as follows: [1] Did the trial judge err in interpreting the standard for “as soon as practicable”, pursuant to subsection 258(1) (c)(ii) of the Code ? [2] Did the trial judge err in finding that the breath samples were taken as “as soon as practicable”, pursuant to subsection 258(1) (c) (ii) of the Code ? [3] Did the trial judge err in admitting the certificate of analysis as evidence? [4] Did the trial judge err in finding that a lawful breath demand was read to the Appellant, pursuant to subsection 254(3) of the Code ? [5] Did the trial judge err in admitting the certificate of analysis for the purposes of subsection 258(1) ?

Summary of Decision [ 15 ] For the reasons that follow, I dismiss the appeal. Statutory Provisions [ 16 ] The relevant portions of subsection 258(1) of the Code read as follows: 258 Proceedings under section 255 (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] [ 17 ] The relevant portions of subsection 254(3) of the Code read as follows: 254(3) Samples of breath or blood 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] Standard of Review [ 18 ] 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 thus subject to a standard of palpable and overriding error, unless it is clear that the trial judge made some error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error in law, subject to the standard of correctness: Housen v.

Nickolaison , 2002 SCC 33 , [2002] 2 SCR 235 at 237-238. [ 19 ] Whether a trial judge properly interpreted the test for “as soon as practicable” pursuant to subsection 258(1) (c)(ii) of the Code is a question of law and reviewable on a correctness standard: R. v. Evans , 2012 ABQB 267 at para 27 . [ 20 ] The higher court authorities generally consider the application of that test to the facts to be a question of mixed law and fact, attracting the palpable and overriding error standard : R. v.

Evans at paras 26-33 . [ 21 ] Whether the trial judge erred in admitting the certificate of analysis as evidence is a question of law, subject to a correctness standard: David Paciocco and Lee Stuesser, The Law of Evidence , 5th ed (Toronto: Irwin Law Inc., 2008) at 22 . [ 22 ] The standard of review for whether the trial judge properly applied the test for a valid breath demand made pursuant to subsection 254(3) of the Code is a question of mixed law and fact attracting the palpable and overriding error standard. [ 23 ] Whether the statutory pre-conditions for the admissibility of the certificate of analysis were met is a question of law and revieweable on a correctness standard: R. v.

Farrell , 2012 ABQB at para 16 [ Farrell ].

Issue #1: Did the trial judge err in interpreting the standard for “as soon as practicable”, pursuant to subsection 258(1)(c)(ii) of the Code? [24] The Appellant submits that the law requires the trial judge to consider whether the delay is "reasonable and necessary", andthat the trial judge in this case failed to consider whether the delay was "necessary". [25] It is settled law that “as soon as practicable” means “within a reasonably prompt time under the circumstances”: R. v.

Mailey,2012 ABQB 267 at para 42 [Mailey]. [26] I accept that the trial judge in this case correctly assessed the meaning of the phrase “as soon as practicable” based on thefollowing evidence: the trial judge read subsection 258(1)(c)(ii) of the Code into the record; discussed the identity presumption and theonus borne by the Crown; relied on the leading Court of Appeal decisions Van der Veen at paras 34-35, and Vanderbruggen at paras 1,12-14, 16; and read the law he relied on from these cases into the record.

Issue #2: Did the trial judge err in finding that the breath samples were taken as “as soon as practicable”, pursuant to subsection258(1)(c)(ii) of the Code? [27] The trial judge found it took 44 minutes from when the Appellant arrived at the detachment to when the Appellant’s firstbreath sample was taken. The trial judge found a general explanation, but no specific times, for the events that occurred within thisperiod. [28] The Appellant submits that there is no basis for a judicial finding that her breath samples were taken “as soon as practicable”.The Appellant relies on: R. v.

McCoy, (SK KB), 86 Sask R 204, [1990] SJ No 657; R. v. Schouten, 56 WCB (2d)444, [2002] OJ No 4777 (ONSC); R. v. Burton, (AB KB), [1988] 89 AR 60, 5 WCB (2d) 279 (ABQB); R. v. Goss,2008 ABPC 10, [2008] AJ No 116; R. v. Robinson, 2010 APBC 272, [2010] AJ No 953; R. v. Mario, 2010 ABPC 305, 36 Alta LR (5th)110 ; R. v. Jonasson, [1997] 35 WCB (2d) 60, 1997 CarswellAlta 647 (ABPC); and R. v. Evans, 2012 ABQB 267 [Evans].

With theexception of Evans, which dealt with an 8 minute unexplained delay, all of these cases dealt with a 14 minute or greater unexplaineddelay, in which the court held that the breath tests were not taken “as soon as practicable”. [29] The Crown refers to Vanderbruggen.

In this case, the Ontario Court of Appeal held that a general explanation for a delay of46 minutes, as well as a lack of evidence that either the arresting officer or the breath technician acted unreasonably, was sufficientevidence for the trial judge to conclude that the breath samples were taken as soon as practicable in the circumstance: Vanderbruggen atpara 14. [30] Breath samples must be taken in a reasonably prompt manner: Mailey at para 84.

Cases are largely determined on their facts:Mailey at para 83. [31] It is clear that courts are to take a broad approach to this issue, and may accept a general explanation for what occurred duringa given period of time: Mailey at para 83. The Crown is not expected to provide a minute-by-minute accounting of the time periodbetween the offence and testing: Mailey at para 63; Evans at para 50.

Rather, courts are expected to view the time period between theoffence and testing as a whole: Mailey at para 83; Evans at para 50. [32] While Appellate courts have accepted delays upwards of 37 minutes, a 44 minute delay is on the higher end of delays thatcourts have accepted as meeting the “as soon as practicable” test: Mailey at para 85; Vanderbruggen. [33] In this case there was a delay of 44 minutes from the Appellant's arrival at the detachment to the time of her first breathsample reading. The trial judge made the following finding of fact as explanation for the delay:

“In the matter before me, it is clear that the officer proceeded diligently from one step to the next, in his investigation. Now the stop was as 2:10, the first reading that was actually obtained was at 3:19, this is an hour and 9 minutes, and that is well within the two hour limit provided for by Parliament. From the arrival at the station to the time of the first reading, from 2:35 to 3:19, we have evidence of what occurred, just not the timing. The accused was booked in, there was a form completed. The accused asked to and was allowed to use the washroom.

The accused spoke to the officer again regarding her right to counsel and he re-explained that to her and received a waiver of the right to counsel. […] Then - and there was no indication that there was a delay after this - then she was taken before the […] breath tech and the breathalyzer machine, she attempted to blow, apparently three times, and on the request of Constable Bensmiler, the breath tech, was taken away from the machine. It would seem she was unsuccessful.

She was back to the interview room and at […] the request of the breath technician, she was returned again and placed before the machine at some time before 3:19. At 3:19 the first sample was taken.” [ 34 ] I am satisfied that the trial judge did not make a palpable and overriding error to warrant displacing his judgement. There is evidence that Constable Letkeman and the breath technician acted reasonably. This general explanation is also similar in detail to that accepted by the Ontario Court of Appeal in Vanderbruggen .

Issue #3: Did the trial judge err in admitting the certificate of analysis? [ 35 ] The Appellant submits that the trial judge erred in admitting the certificate of analysis as one of the preconditions to the admissibility of the certificate of analysis was not met. [ 36 ] The Crown submits that the trial judge made no error because Appellant's counsel consented to the admission of the certificate of analysis. [ 37 ] A certificate of analysis is admissible as evidence and for the purposes of subsection 258(1) of the Code . [ 38 ] Subsection 258(1) of the Code contains several statutory shortcuts.

For example, subsection 258(1)(

g) of the Code permits the Crown to establish the results of a breath sample analysis by means of a certificate of analysis, and subsection 258(1)(

c) of the Code deems the person’s blood alcohol concentration at the time the breath samples were taken to be the same concentration as at the time the alleged offence was committed. Before these statutory shortcuts can be invoked, the Crown must satisfy a number of preconditions, among them that the breath samples were taken pursuant to a demand made under subsection 254(3) of the Code: R. v.

Lee, 2008 ONCJ 120 , 76 WCB (2d) 764 at para 15 [ Lee ]. [ 39 ] It is well established that if an accused wishes to object to the admissibility of evidence, the time to register the objection is when the evidence is tendered, not at the end of the trial: Lee , at para 8 ; R. v. McNulty (1991), OJ No 2074 (ONCA) at para 8 . To hold otherwise is potentially unfair and prejudicial to the Crown: R. v. Shadoff (1993), OJ No 534 (ON Gen Div) at paras 48-50 . [ 40 ] In the case at bar the Appellant consented to the admission of the certificate of analysis.

The Appellant did not argue that the preconditions for admitting the certificate of analysis were not met until final submissions, and provided little guidance to the trial judge regarding her claim. The Crown also submits prejudice as, if he had known that the admissibility of the certificate of analysis would be called into question, he would have called another witness. [ 41 ] Therefore, I conclude that the trial judge did not err in law in admitting the certificate of analysis as evidence.

Issue #4: Did the trial judge err in finding that a lawful breath demand was read to the Appellant, pursuant to subsection 254(3) of the Code ? [ 42 ] The Appellant submits that there is insufficient evidence that a valid breath demand was made pursuant to section 254(3) of the Code .

[43] The Crown submits that the trial judge relied on Constable Letkeman’s testimony and made a reasonable factual inference. [44] The Crown must prove beyond a reasonable doubt that a valid breath sample demand was made pursuant to subsection 254(3)of the Code: R. v. Keddey, 2010 ABPC 209, [2010] AJ No 970 at para 18. [45] A breath demand does not have to take a particular form, so long as it is stated in such a way so as to clearly impart to theperson to whom it is given exactly what is required of them: R. v. Fox, 2006 ABQB 173 , [2006] AJ No 260 (ABQB) at para 7[Fox].

In some cases, a generic answer given by a police officer may be sufficient, and in other cases, it may be insufficient, but theweighing is particularly within the jurisdiction of the trial judge: Fox at para 7. A trial judge is entitled to consider the words andcircumstances of a particular case, and draw a reasonable inference whether a proper demand was made: R. v.

Jackson, 2005 ABQB 268at paras 40-41. [46] The trial judge, after discussing the law regarding the wording of a valid breath demand, held as follows: “Now Constable Letkeman’s evidence in this matter, he certainly did not expressly read into the record, the demand that he made to theaccused. He indicated that ... he read in the demand as set out in the impaired check sheet, but he was not asked by the Crown and did notread it in. Initially when he gave evidence, he gave evidence that he arrested, Chartered and cautioned her at the scene, they then locked up thevehicle, returned to the station.

There is ... no evidence at that point of a demand. Ultimately Crown asked him, did you make a demand?He said yes, I made it at 2:28 in the sequence of things. So his evidence came in sporadically. And what did you do? I read from achecklist. ... I note that [the Appellant's lawyer] […] consented to the admission of the certificate of analysis. The certificate of analysis and the factsset out are deemed […] true in the absence of evidence to the contrary, one of those is set out in the certificate of analysis, is that thesamples were provided pursuant to the lawful demand.

In all the circumstances, I […] believe I can infer and do infer from the evidence Ihave heard, that - and it was not significantly argued strongly by [the Appellant's lawyer], that the samples were provided pursuant to alawful demand under Section 254(3).” [47] I conclude that the trial judge did not make a palpable and overriding error in finding that a valid breath demand was madepursuant to subsection 254(3) of the Code. The law on breath demands gives the trial judge a great deal of latitude in drawing aninference whether a breath demand is sufficient.

Even absent the evidence of the certificate of analysis, the facts in this case fall withinthe boundaries of an acceptable factual inference.

Issue #5: Did the trial judge err in admitting the certificate of analysis for the purposes of subsection 258(1)? [48] The Appellants submit that the trial judge erred in finding a breath demand solely on the basis of the certificate of analysis. [49] If this had been the case, the trial judge would have committed an error in law. [50] There are two pre-conditions for admitting a certificate of analysis for the purposes of section 258(1): the making of ademand, and the taking of breath samples pursuant to a demand: R. v. Hruby (1980), 1980 ABCA 20 , 11 Alta LR (2d) 347 at352; Farrell at para 40.

The making of a breath demand is at issue in this appeal. [51] The issue regarding the admissibility of the certificate of analysis at this stage is whether the necessary link between thebreath demand and the certificate of analysis is made: Farrell at para 46. That link is established by proof that the breathalyser test dealtwith in the certificate of analysis was made pursuant to the breath demand: Farrell at para 34. The existence of this link must be

determined on the totality of the evidence: Farrell at para 46.

While the court cannot rely on the contents of the certificate of analysis as proof that a breath demand was made, this pre-condition can be proved by inference from extrinsic evidence, including that fact that the certificate of analysis has been produced within the context of a chain of events: Farrell at paras 40, 43. [ 52 ] As noted above, the trial judge did not make a palpable and overriding error in finding that there was sufficient evidence for him to infer that the breath samples were made pursuant to a breath demand under subsection 254(2) of the Code .

The evidence is that the trial judge considered all of the circumstances, including Constable Letkeman’s testimony. [ 53 ] Therefore, as the two statutory pre-conditions are satisfied, the trial judge made no error in law in properly admitting the certificate of analysis for the purposes of subsection 258(1) the Code . Conclusion [ 54 ] This appeal should be dismissed. Heard on the 24 th day of September, 2012. Dated at Calgary, Alberta this 31 st day of October, 2012. Bruce A. Millar J.C.Q.B.A. Appearances: Ian D. McKay Fagan & McKay for the Appellant/Accused Andrew Barg Alberta Justice for the Respondent/Crown