Her Majesty the Queen Respondent/Crown - v. -, 2014 ABQB 677

Court of Queen ’ s Bench of Alberta Citation: R v Cabrelli, 2014 ABQB 677 Date: 20141106 Docket: 130948300S1 Registry: Edmonton Between: Her Majesty the Queen Respondent/Crown - and - Livio Alessandro Cabrelli Appellant/Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A. Yungwirth _______________________________________________________

Summary Conviction Appeal The Honourable Judge Bodnarek Convicted on the 29 th day of October, 2013 ( Docket: 130948300P1) Introduction [ 1 ] The Appellant was acquitted of impaired driving under s. 253(1) (

a) of the Criminal Code , RSC 1985, c C-46, but was convicted of refusing to provide a breath sample under s. 254(5) . [ 2 ] He now appeals that conviction on the grounds that the trial judge erred in concluding that:

a) the breath demand was made “forthwith” under s. 254(2); and

b) the Appellant refused to provide a breath sample. Facts [ 3 ] On May 11, 2013 at about 17:30, Jason Roth was driving eastbound down Whyte Avenue in Edmonton when he noticed a Dodge Challenger enter in front of him onto Whyte Avenue from the right, spinning its tires. He slowed down and continued to follow the vehicle for 10 to 15 blocks through a main thoroughfare and then through a residential area. After observing what he felt to be an erratic driving pattern, Mr. Roth called the police. [ 4 ] Constable Lunde, Constable Nathan Law and Constable Scott Bertolozzi all responded to the call. Cst.

Law was the first to arrive at the location where the Appellant had parked his vehicle near his friend’s residence. [ 5 ] When Cst. Lunde arrived, Cst. Law was speaking with the Appellant. Cst. Lunde walked over to the Appellant’s vehicle and looked in through the passenger window to see if he could view any liquor containers. He could not. He walked behind the Appellant in order to speak with Mr. Roth and as he passed the Appellant, he smelled liquor. [ 6 ] Cst. Lunde spoke with Mr. Roth and arranged to have him complete a witness statement. He then saw to the seizure of the Appellant’s vehicle.

His only interaction with the Appellant was when he walked behind him and smelled liquor. [ 7 ] Cst. Bertolozzi stood with Cst. Law while Cst. Law dealt with the Appellant. [ 8 ] Cst. Law had received updates on his way to the scene. When he arrived at the location of 92A Avenue and Ottewell Road at 18:10, he observed that the Appellant’s vehicle was parked with the rear passenger tire against the curb and the front passenger tire about 16 inches away from the curb. The Appellant was standing outside of the vehicle on the sidewalk. Cst.

Law began talking with the Appellant and told him that the police had a report of his car swerving and that he had been followed from 82 nd Avenue and 95 th Street. The Appellant initially told the officer that he was not in that area, that the vehicle had been there all day, and that he was not sure why he was stopped. Cst. Law asked the Appellant if he had had anything to drink. At 18:12, the Appellant said that he had consumed a Sleeman’s Honey Brown beer one and a half hours previously. As Cst. Law was speaking with the Appellant, he could smell a slight odor of liquor on his breath. [ 9 ] At 18:12, Cst.

Law formed a reasonable suspicion that alcohol was present in the Appellant’s body. [ 10 ] Cst. Law did not have an Approved Screening Device (ASD) with him, so at 18:12, he called for an ASD to be brought to the scene. [ 11 ] At 18:14 hours, Cst. Law read the Appellant the following demand pursuant to s. 254(2) (

b) of the Criminal Code : I am a peace officer and pursuant to the provisions of the Criminal Code , I demand that you provide forthwith a sample of your breath suitable for analysis by an Approved Screening Device. Failure or refusal to comply will result in you being charged accordingly under the Criminal Code . [ 12 ] Cst. Law asked, “Will you comply with this demand?” The Appellant responded, “No, I won’t”. [ 13 ] From 18:14 to 18:21, Cst. Law and the Appellant conversed. Cst. Law explained to the Appellant that if he was not going to provide a breath sample, he would be charged. Cst.

Law testified that on at least three occasions, he explained to the Appellant that he would be charged if he did not provide a breath sample. Cst. Law was satisfied that the Appellant understood that if he did not provide a breath sample, he would be charged. The Appellant continued to say that he had not been driving the vehicle, that he did not know why he was stopped, that he had not done anything wrong, and that he was not intoxicated. [ 14 ] At 18:21, Cst.

Law again read the Appellant the same demand from his notebook, and when asked if he would comply, the Appellant said, “Yes, I will; I have nothing to hide”. [ 15 ] At 18:23, Cst. Law was advised by his sergeant that he was en route with the ASD. [ 16 ] At 18:27, the ASD arrived at the scene (13 minutes after first demand and 6 minutes after second demand). [ 17 ] At 18:29, Cst. Law brought the ASD to the Appellant and explained to him how the instrument was to be used. At that point, the Appellant said, “No, I am not going to blow”. The Appellant then said to Cst.

Law, “Why are you so energetic?” [ 18 ] At 18:30, the Appellant was arrested for failing to provide a breath sample. He was Charter ed and cautioned. He indicated that he understood and that he wanted to call a lawyer. [ 19 ] The Appellant was released at the scene at 19:05. [ 20 ] The Appellant testified. He said that he only had one beer that day. He acknowledged having had discussions with the police officer. He denied having told Cst. Law that the vehicle had been parked there all day. He said that the officer asked him to take a breathalyzer.

He said that he asked if he could get a lawyer, and that the officer told him that he could not have a lawyer with this type of test. [ 21 ] The Appellant said that he spoke with the officer for a lengthy period of time. He said that he did not think that the officer had the right to ask him to do this and he wanted to gain a better understanding. He said that he kept asking, “What does that mean?” and that

he thought that being charged meant a 24 hour suspension. [22] The Appellant testified that he did not say at 18:29 that he was not going to blow. He testified that if anything, he said “I willblow”, and then after that, “I don’t understand why I have to blow”. He said that at no point did he ever say, “No, I’m not blowing”. [23] The Appellant testified that he asked twice to speak to a lawyer and was told that he could not have one at the beginning, andthat if they went to the police station, he could speak with one.

Once he was released, he thought that he did not need one. [24] The Appellant said that he did not know the right thing to do, nor if his rights were being breached, and he needed to getclarification before he made a decision regarding what to do.

He said that he never made a decision and that the officer made it for him. [25] On cross-examination, the Appellant stated that at one point he did decide that he was going to provide a breath sample, butthat he could not do so because the device was not there. [26] Though the Appellant continued to insist that he did not say “No, I won’t” in response to the demand, he agreed that he wasnot going to comply with the demand until he understood what his rights were and the consequences of refusing.

He said that he did notknow what “charged” meant and that the officer never mentioned the Criminal Code. [27] The Appellant stated that he did not know if the limit was .5 or .8, but he was never concerned with blowing over. TheAppellant acknowledged that he understood that the officer was asking him to provide a sample of his breath, and that the ultimate goalin this whole process was to make him blow into the machine. [28] The Appellant stated that he did not want to be charged with refusing to provide a breath sample that day, and this was why heagreed at 18:21 to provide a breath sample.

He further said that he started to question his decision and that he was “not clear”. TheAppellant agreed that he thought that the officer could not ask him for a breath sample if he did not see him driving and that was one ofthe reasons he did not want to provide a breath sample. [29] The Crown suggested to the Appellant that he was not going to blow until he understood the right of the police officers to askfor the sample.

In response, he said that if he had been able to speak with a lawyer and somebody could have helped him who seemed tobe on his side, he probably would have blown because he had not done anything wrong. Trial Decision [30] At trial, defence counsel did not challenge the officer’s grounds to request a breath sample.

However, the two following issueswere raised by defence counsel in relation to the refusal to blow charge: 1) whether or not there had been compliance with the “forthwith” requirement under s. 254(2) of the Code as required for a lawfulbreath demand, and 2) whether or not the Appellant had unequivocally refused to provide a breath sample. [31] Dealing first with the “forthwith” requirement of s. 254(2), the trial judge referred to the factors to consider when an ASD isnot immediately available to the detainee as outlined in R v Ross, 2011 ABPC 173, [2011] AJ No 598 as well as the definition of“forthwith” adopted from R v Lackovic (1988), (ON CA), 29 OAC 382, 9 MVR (2d) 229 at 234 (CA): The demand should be made as soon as is reasonably possible, that is, allowing only such delay as is reasonably necessary to enable thepolice officer to carry out his duties. [32] The trial judge found that it took 17 minutes from the time of forming reasonable suspicion until the Appellant was presentedwith the ASD. [33] The trial judge also found that:

a) Cst. Law was not required at law to have an ASD in his possession at the time he responded to the call in this case;

b) Cst. Law took immediate steps to have the ASD delivered to his location;

c) Cst. Law had a reasonable expectation that an ASD would be delivered reasonably promptly and it was, in fact, so delivered. [34] The trial judge noted that there was no evidence regarding the Appellant having access to a cell phone, nor that he would havehad access to a phone in the immediate vicinity. The closest police station was approximately 5 minutes away, but it was not equippedwith a phone room designed for private phone calls to legal counsel. The main station was 20 minutes away.

There was no evidenceadduced as to the availability of a phone at the friend’s residence. [35] The trial judge concluded, based on the evidence before him, that the Appellant would not have had a reasonable opportunityto obtain legal advice during the 15 minute period between the first breath demand and the time he was presented with the ASD. [36] The trial judge also concluded that the 17 minute time period from forming reasonable suspicion until the Appellant waspresented with the ASD met the “forthwith” requirement under s. 254(2).

Given this conclusion, the trial judge declined to consider theCrown’s argument that the “forthwith” requirement was not triggered until the Appellant’s affirmative response to the second ASDdemand at 18:21.

[37] Turning to the second issue of whether or not there had been an unequivocal refusal, the trial judge reviewed the authoritieswhich stand for the proposition that the entire transaction must be considered where there is an ongoing dialogue between an Appellantand the police officer preceding a charge of refusal to provide a breath sample. [38] The trial judge noted that the overall chronology provided by Cst. Law was not in dispute. Rather, the divergence related towhat was said or not said by the Appellant in response to the demands. [39] The trial judge assessed the credibility of both Cst.

Law and the Appellant. He found that the Appellant did not have a clearrecollection of the events that transpired on the day in question. He also expressed concern about the truthfulness of the Appellant insome of his testimony, citing specific examples. In contrast, he found Cst. Law’s testimony to be highly credible. He also rejected theAppellant’s suggestion that Cst. Law had no independent recollection of events of May 11, 2013 outside of what was in his notes. [40] The trial judge found that defence counsel had breached the rule in Browne v Dunn (1893), 6 R 67 (HL), as alleged byCrown counsel.

Specifically, she had not put to Cst. Law key contradictory evidence, being the Appellant’s evidence that he had neversaid “no”. As a result of this finding and the finding related to the officer’s independent recollection of events, the trial judge gave littleweight to the evidence of the Appellant to the effect that at no time did he ever say “no” to the request to provide a breath sample. [41] He also noted that Cst. Law would have had no reason to read a second breath demand if he had received an affirmativeresponse following the first demand. As well, the Appellant was less than truthful with Cst.

Law about the fact that he had just steppedout of the vehicle. [42] The trial judge found that on all of the evidence, he had no doubt that the Appellant uttered the words of refusal at both 18:14hours and at 18:29 hours when presented with the ASD. [43] The trial judge also found that the Appellant’s testimony demonstrated a course of conduct consistent with a lack of intentionto provide a breath sample, because he did not believe the police explanation of their authority, and he would be only satisfied afterspeaking to someone who was “on his side”. [44] Finally, the trial judge referred to the steps set out in R v W(D), (SCC), [1991] 1 SCR 742.

Based on all of theevidence, he did not accept the Appellant’s testimony on this element of the offence and he found that the Appellant’s testimony did notraise a reasonable doubt that the Appellant had made a conscious decision to refuse provide a breath sample. Appellant’s Position [45] The Appellant does not specifically allege a breach of his Charter rights. He argues that the trial judge erred in relying onCharter jurisprudence to evaluate the lawfulness of the demand. [46] The Appellant further argues that the demand was not made “forthwith” as required by s. 254(2).

The Appellant submits thata roadside breath demand is a warrantless search and presumptively unreasonable and that the “forthwith” requirement is an essentialelement which the Crown has not established. “Forthwith” means both that the demand is to be made and the sample providedimmediately and without delay. [47] The Appellant submits that the evidence at trial did not support a finding that the officer had a reasonable basis or expectationthat an ASD would be delivered promptly. [48] The Appellant also argues that the presentation of the device 17 minutes after the officer formed a reasonable suspicion didnot comply with the “forthwith” requirement, and any delay that is not justified will exceed the immediacy requirement and the demandthen becomes invalid.

The Appellant submits that this delay was sufficient to allow the Appellant to contact counsel. [49] Finally, the Appellant submits that the evidence did not support a finding that he unequivocally refused to provide a breathsample. Crown’s Position [50] The Crown submits that the Court did not err in principle in its approach to the “forthwith” requirement. Crown notes thatdefence counsel relies on Charter jurisprudence while at the same time criticizing the trial judge’s reference to Charter cases. [51] The Crown submits that the meaning of “forthwith” in this context is subject to a flexible

interpretation, and it is the entire testwhich must be carried out “forthwith”. [52] The Crown further argues that in these types of situations, an officer must have a reasonable expectation that an ASD will bedelivered promptly. The officer is not required to know where the ASD is located, and who is bringing it in order to form a reasonablebelief. Further, the officer cannot be expected to have certainty regarding the actions of the third party transporting the ASD to the scene. [53] The Crown cites cases in which similar delays have been found to meet the “forthwith” requirement.

The Crown submits thatthe trial judge did not err in finding that there was no reasonable opportunity to consult counsel in the circumstances. [54] Finally, the Crown submits that the trial judge did not err in finding that there had been an unequivocal refusal to provide abreath sample.

Standard of Review [55] A

summary conviction appeal court may set aside a conviction where the verdict was unreasonable, unsupported by theevidence, or wrong on a question of law: ss. 686(1)(a)(

i) and (ii) of the Criminal Code, RSC 1985, c C-46. [56] Where the issue is whether the trial judge’s verdict was unreasonable or cannot be supported on the evidence, the court isentitled to review the evidence, re-examine it and re-weigh it, but only for the purpose of determining whether the trier of fact couldreasonably have reached the conclusion it did on the evidence before it: R v Burns, (SCC), [1994] 1 SCR 656 at para14, R v Yebes, (SCC), [1987] 2 SCR 168, R v W(R), (SCC), [1992] 2 SCR 122. [57] Questions of fact are reviewable for palpable and overriding error.

Questions of mixed fact and law are also reviewable forpalpable and overriding error, unless an error has been made on an extricable legal principle: R v Housen, 2002 SCC 33, [2002] 2 SCR235. [58] The application of a legal standard to the facts of a case is a question of law: R v Shepherd, 2009 SCC 35 at para 20. Aquestion of law is subject to review on the standard of correctness: Housen.

Legislation [59] Section 254(2) of the Criminal Code provides in part: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol ... in their body and that the person has, within thepreceding three hours, operated a motor vehicle ... the peace officer may, by demand, require the person to comply with ... either or bothof paragraphs (

a) and (b), in the case of alcohol: ... (

b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. Analysis 1. Did the trial judge err in finding that the Appellant refused to provide a breathsample? [60] I will deal first with the trial judge’s finding that the Appellant refused to provide a breath sample.

To the extent that the trialjudge’s conclusion on this issue involved findings of fact or questions of mixed fact and law, his conclusions are subject to review forpalpable and overriding error. [61] The trial judge referred to case law for the proposition that the entire context must be considered in determining whether anaccused refused to provide a breath sample. [62] The Appellant does not suggest that this approach is wrong in law.

Rather, the Appellant argues that the evidence that theAppellant changed his mind at times throughout the interaction is evidence of confusion, indecision and equivocation in all of thecircumstances, and that Cst. Law relied solely on his notebook to testify regarding the Appellant’s responses to the demands. [63] The Appellant relies on R v Goldring, 2013 ABPC 138, 563 AR 344 as a similar case of equivocation.

However, the accusedin Goldring never provided a definitive response to the demand. [64] The trial judge pointed out that the overall chronology of events and associated timelines were not in dispute, and that thefactual divergence in the evidence provided by the Appellant and Cst.

Law related solely to what was said or not said by the Appellant inresponse to the first demand for a breath sample, and upon being presented with the ASD. [65] He went on to assess the credibility of both witnesses and found that the Appellant did not have a clear recollection of theevents, could not recall timelines relative to key events in his interaction with Cst. Law, and could not recall many specifics regarding hisdiscussion with Cst. Law. The Appellant could not recall being presented with the ASD and being advised how to use it.

The trial judgefound certain aspects of the Appellant’s testimony to be untruthful. [66] The trial judge found Cst. Law’s evidence to be highly credible and accepted his evidence, including his testimony that heread the standard police demand two times directly from his notebook, and his recollection, after referring to his notes, of the exactstatements of the Appellant after the first demand and when he was presented with the ASD.

He found that the Appellant said “No, Iwon’t” in response to the first demand, and “No, I am not going to blow” when the ASD was presented to him. [67] The trial judge completed a careful analysis of the evidence of both the Appellant and Cst. Law. He considered the overallcredibility of the parties, and properly instructed himself in accordance with R v W(D). [68] In the course of his analysis, the trial judge found a breach of the rule in Browne v Dunn.

The Appellant says that defencecounsel was not required to put the Crown on notice of every detail, and the trial judge erred in finding breach of the rule based on thefailure to put the precise comments that the Appellant never said “no” to the officer. In my view, this evidence was at the heart of the

matter on the refusal charge, and the trial judge did not err in taking into account that Cst. Law had not been given an opportunity toaddress it. [69] In any event, however, I am satisfied that the result would have been the same, as the trial judge had already concluded for avariety of reasons that the Appellant’s testimony was not reliable or credible and ultimately that it did not raise a reasonable doubt. Thetrial judge had the opportunity to see and hear the witnesses firsthand and explained his findings in this regard.

Those findings areentitled to considerable deference. [70] Having thoroughly considered the evidence before him on the issue, the trial judge found that the Appellant twice uttered thewords of refusal: at 18:14, and again at 18:29 when presented with the ASD. [71] I find no palpable and overriding error by the trial judge in this regard. Further, the evidence was fully capable of supportingthe factual findings made by the trial judge in relation to this issue. Finally, I find that there has been no error made on an extricable legalprinciple in making these findings. 2.

Did the Trial judge err in finding that a lawful demand was made incompliance with s. 254(2)? [72] Generally speaking, the question of whether police met the temporal “forthwith” requirement in s. 254(2)(

b) is a question oflaw and therefore subject to review for correctness. [73] The first issue raised by the Appellant relates to the Trial Judge’s reliance on Charter jurisprudence. The Appellant purportedto raise this issue outside of the context of a Charter challenge, and asserts that the trial judge erred in evaluating the facts “under thelens of the Charter standard”. [74] In the Charter context, where evidence is obtained as a result of a warrantless search or seizure, the onus is on the Crown toshow that the search or seizure was reasonable: R v Shepherd, 2009 SCC 35, [2009] 2 SCR 527.

A search will be reasonable if it isauthorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable. [75] In R v Woods, 2005 SCC 42 at para 29, [2005] 2 SCR 205, Fish J. for the Court held that the "forthwith" requirement of s.254(2) is inextricably linked to its constitutional integrity, as it addresses the issues of unreasonable search and seizure, arbitrarydetention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10 of the Charter.

Further, in interpreting the"forthwith" requirement, a court must bear in mind not only Parliament's choice of language, but also Parliament's intention to strike abalance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. [76] It follows that whether or not the Appellant has framed the issue as a Charter breach, the Charter jurisprudence informs theinterpretation of “forthwith”. [77] Further, there is nothing in the trial judge’s reasons to suggest that he applied an incorrect onus.

He correctly enunciated andexpressly applied the “beyond a reasonable doubt” standard in concluding that the Crown had established the elements of the offence. [78] The second issue raised by the Appellant relates to the need for delivery of the ASD to the scene and the officer’s expectationthat the ASD would be delivered promptly. The Appellant argues that a demand made by a police officer who is without a device and isunable to ensure its arrival within a reasonably necessary amount of time, does not meet the requirements of s. 254(2). The Appellantconcedes that Cst.

Law was not required to have an ASD in his possession while out on patrol, and that he took immediate steps torequest delivery of an ASD. However, he argues that “forthwith” means that both the demand is to be made, and the sample provided,immediately and without delay [79] Cst. Law’s evidence was that at 18:12, when he requested the ASD, he expected the ASD to be delivered very shortly and thathis sergeant was usually very good about getting an ASD to them.

In R v Schneider, 2008 ABQB 779, Verville J. held that in caseswhere the officer must call for the equipment, some delay is reasonable, and it is reasonable for the officer to rely on the assurances ofanother officer to the effect that the ASD will be delivered promptly. The trial judge found that Cst. Law reasonably believed the ASDwould arrive promptly. [80] The Appellant takes issue with the trial judge’s acceptance of Cst. Law’s testimony that he expected the ASD to arrive veryshortly as his sergeant was usually very good about getting one to the officers.

The Appellant says that the trial judge erred in finding onthis basis that the officer had a reasonable basis or expectation that an ASD would be delivered promptly. [81] The Appellant points to cases in which the demanding officer was provided with the following information at the time ofrequesting an ASD: a device was available, it would be delivered, the identity of the person delivering, the location from which it wasbeing delivered, and the estimated time of arrival. [82] The Appellant says that Cst.

Law’s second demand 9 minutes after forming the reasonable suspicion, and presentation of thedevice 17 minutes after the forming a reasonable suspicion did not comply with the “forthwith” requirement. [83] The Appellant says that this case must be distinguished from those in which the ASD arrived on site within 3 to 10 minutes,and the delay in this case was much closer to the 30 minute absolute maximum imposed in R v Grant, (SCC), [1991] 3SCR 139.

The Appellant cites R v George (2004), (ON CA), 189 OAC 161, [2004] OJ No 3287 (CA) in which an 18minute delay from the time of the demand to the taking of the sample did not meet the “forthwith” requirement. [84] The trial judge found beyond a reasonable doubt on all of the evidence that the Appellant uttered the words of refusal at both

18:14 and at 18:29. I have already determined that the evidence is fully capable of supporting the trial judge’s conclusion in this regard. [85] In the case of R v Degiorgio, 2011 ONCA 527, the appellant argued that she was under no legal obligation to comply withthe demand and, therefore, did not commit an offence contrary to s. 254(5) by refusing. Essentially, the appellant argued that althoughshe refused to comply with the demand, there was no evidence that the officer was in a position to administer the ASD test “forthwith” ashe did not have access to an ASD.

Laforme J.A. for the Court held: 50 … If the demand is otherwise proper and the outright refusal occurs during the "forthwith" timeframe, the accused's 10(

b) rightsare not engaged and cannot affect the accused's liability under s. 254(5). In Côté and Grant, the refusals were made outside of the"forthwith" timeframe and consequently did engage Charter rights.

In this case, the appellant's outright refusal followed immediatelyafter the demand and within the "forthwith" timeframe. … 53 There is a well-established line of authority holding that where an accused is charged with refusing to provide a sample, the Crowndoes not have to prove that the sample could in fact have been taken in accordance with the provisions of the Criminal Code to secure aconviction on a charge of refusing to comply with the demand: see R. v. Lemieux (1990), 41 O.A.C. 326 (C.A.); R. v. McCauley (1997),1997 NSCA 139 , 161 N.S.R. (2d) 154 (C.A.); R. v.

Wilson (1999), 1999 BCCA 110 , 121 B.C.A.C. 111 (C.A.).… 65 The offence created by s. 254(2) is complete upon the refusal.

In the face of such a refusal, the police are not obliged to carry on asif there had been no refusal and the court is not obliged to speculate as to what might have happened had the police officer carried on.The offence is complete upon proof that the preconditions to the demand in s. 254(2) existed, the officer demanded a sample "forthwith",and the appellant unequivocally refused, without any reasonable excuse, to provide that sample. [86] This reasoning is sound. [87] In this case, the trial judge found that the Appellant expressed a first refusal at 18:14, being two minutes after Cst.

Lawformed the reasonable suspicion. [88] Accordingly, the first refusal clearly occurred within the “forthwith” timeframe, however that timeframe is assessed. At thatpoint, the offence created by s. 254(5) was complete.

On the authority of Degiorgio, it is not necessary to analyze what took place withthe ASD after the first refusal in order to assess the reasonableness of the officer’s belief prior to that refusal. [89] However, in this case, given the somewhat unusual circumstances that occurred after the first refusal, I will go on to assessthe impact, if any, of those circumstances on my conclusion that the offence was complete after the Appellant’s unequivocal refusal at18:14. [90] A second demand for a breath sample was made at 18:21. The Appellant complains that the second demand was not madeimmediately upon Cst.

Law forming the reasonable suspicion. Further, by the time Cst. Law made the second demand, 9 minutes hadpassed since he had phoned in the request for the ASD. The Appellant argues that Cst. Law had made no further inquiries in the interim,and therefore he did not have a basis for a reasonable belief that the ASD would be delivered within a reasonable period of time. [91] The facts in this case are somewhat unusual, and the entire context must be considered.

The discussion from 18:14 to 18:21and the second demand essentially provided the Appellant an opportunity to avoid being charged for his first categorical refusal at 18:14.The same demand was read at 18:14 and 18:21. The second demand was, in fact, a reiteration of the first demand. It was not based on anew suspicion, but on the suspicion which had justified the first demand. The Appellant was well aware of the reason he had beendetained from the time of the first demand at the very latest.

In my view, it would be entirely illogical to find in the circumstances thatthe second identical demand was invalid because it was not made immediately. [92] Further, there was nothing in the evidence before the trial judge to suggest that Cst. Law did not still reasonably believe at18:21 that the ASD would be delivered without any significant delay. The Appellant responded to the demand at 18:21 by saying that hewould comply. At around 18:23, Cst. Law was advised by his sergeant that the ASD was on its way. [93] Cst.

Law presented the ASD to the Appellant at 18:29, and the Appellant again refused to provide a breath sample. The trialjudge found that the Appellant refused because he did not believe the police had authority to demand a sample in this situation, and hewould only be satisfied after speaking to someone “on his side”, which was the tenor of the conversation which had been occurringbetween Cst.

Law and the Appellant. [94] The trial judge correctly stated the principle to the effect that the demand should be made as soon as is reasonably possible,that is, allowing only such delay as is reasonably necessary to enable the police officer to carry out his duties. Here, there was a delay of15 minutes from the first demand until presentation of the ASD to the Appellant and 17 minutes from the formation of the suspicion untilthe presentation of the ASD to the Appellant. [95] As previously stated, the trial judge considered the reasons for the delay, and the reasonable expectations of Cst.

Lawregarding delivery of the ASD. There was no evidence that any of the delay was attributable to the personal choice or convenience ofCst. Law. [96] The trial judge considered whether or not the Appellant would reasonably have been able to consult with counsel whilewaiting to be presented with the ASD – the Appellant’s argument being, that if an officer is not in a position to require that a breathsample be provided by the accused before any realistic opportunity to consult counsel, then the demand does not meet the requirementsof s. 254(2).

The trial judge noted that there was no evidence regarding access to a cell phone, or to a phone in the immediate vicinity,

the closest police station was not equipped with a phone room designed for private phone calls to be made to legal counsel, and the mainstation was 20 minutes away. The trial judge concluded that the Appellant would not have had a reasonable opportunity to obtain legaladvice during the 15 minute period between the first breath demand and the time he was ultimately presented with the ASD. [97] The trial judge found, in essence, that the circumstances in evidence did not show a “realistic feasibility of completedconsultation with counsel” during the time frame in question, nor did they show that Cst.

Law “ought reasonably to have been aware ofthe facts creating such feasibility”: R v Shaw, 2012 ABCA 63 at para 6, 524 AR 107. The trial judge did not err in his conclusion in thisregard. [98] The Court of Appeal appears to have rejected the proposition that the relevant time frame includes the pre-demand delay: R vMegahy, 2008 ABCA 207 at paras 10-19, 432 AR 223.

Even accepting the Appellant’s arguments to the contrary, the trial judge’sconclusion regarding the feasibility of consultation would be sound based on the evidence before him whether the time frame consideredwas 15 or 17 minutes. [99] Having considered all of the evidence of the circumstances in this case, the trial judge concluded that despite the delay, thedemand fell within the parameters of s. 254(2). [100] The Supreme Court’s decision in R v Woods, 2005 SCC 42 , [2005] 2 SCR 205 is of little assistance to the Appellant.In that case, a breath sample was provided at the station an hour after the accused had been arrested for having failed to comply, andafter he had consulted counsel.

The Crown chose not to charge on the failure to comply, and sought to rely on the late breath sample asproviding the basis for a breathalyzer sample. The Court found that the breath sample fell entirely outside the scheme contemplated in s.254(2). That scheme contemplates screening tests performed at or near the roadside and temporary interference with a driver’s rights atthat time. [101] In contrast, the refusals in this case occurred at roadside while the Appellant’s rights were temporarily suspended. [102] The case law in this area is highly fact driven.

While lesser delays have taken demands outside of the s. 254(2) in some cases,each case must be examined having regard to its particular facts. [103] A lawful demand was made at 18:14. There was an unequivocal refusal by the Appellant to provide a breath sample. Furtherdiscussions then took place between the Appellant and Cst. Law and a second demand was given to the Appellant at 18:21. This was 7minutes after the first demand was made and had the effect of allowing the Appellant an opportunity to change his mind and provide abreath sample.

At that point, the Appellant agreed to provide a breath sample but the ASD was not there.

When the ASD arrived 6minutes later and was presented to the Appellant at 18:29, he again refused to provide a breath sample. [104] What occurred after the first demand and refusal at 18:14 must be considered in light of the trial judge’s finding that theAppellant’s testimony demonstrated a course of conduct consistent with a lack of intention to provide a breath sample, because he did notbelieve the police explanation of their authority, and he would be only satisfied after speaking to someone who was “on his side”. [105] Therefore, though I am of the view that the basis for a charge under s. 254(5) existed after the first refusal at 18:14, I am also ofthe view that the Appellant’s refusal to provide a breath sample at 18:29 also occurred after a lawful demand was made and that in thesecircumstances, the 17 minute period from forming reasonable suspicion until the Appellant was presented with the ASD and againrefused to provide a breath sample, complies with the “forthwith” requirement in s. 254(2). [106] For the foregoing reasons, I conclude that the trial judge did not err in finding that a lawful demand was made in compliancewith s. 254(2) of the Criminal Code.

Conclusion [107] The appeal is dismissed. Heard on the 20th day of May, 2014. Dated at the City of Edmonton, Alberta this 6th day of November, 2014.

D.A. Yungwirth J.C.Q.B.A. Appearances: Sarah N. DeSouza Dawson Stevens Duckett & Shaigec for the Appellant/Accused Jean-Paul Quenneville Alberta Justice for the Respondent/Crown