R. v. Poohachoff Date:, 2012 BCPC 68

Citation: R. v. Poohachoff Date: 20120312 2012 BCPC 0068 File No: 21383 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ADAM CHRISTOPHER POOHACHOFF REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MROZINSKI Counsel for the Crown: S. Patola Counsel for the Defendant: D. Skogstad Place of Hearing: Castlegar, B.C. Date of Hearing: October 21, 2011 Date of Judgment: March 12, 2012 Introduction [ 1 ] Mr. Poohachoff pleads not guilty to charges of driving while impaired by alcohol or while his blood alcohol content was over 0.8 as that is commonly known.

At the conclusion of its case, the Crown entered a Certificate of Analysis which showed Mr. Poohachoff’s blood alcohol content to have been 190 milligrams of alcohol in 100 millilitres of blood at approximately 1:35 a.m. on June 26, 2010. Pursuant to s. 258(1) (

c) of the Criminal Code , the Crown relies on this Certificate as evidence of Mr. Poohachoff’s blood alcohol content when he was stopped at a road check by Constable Smith of the RCMP at 11:10 p.m. on June 25, 2010. [ 2 ] Though the Certificate has been entered as evidence in this trial, Mr. Poohachoff submits that there is nonetheless no evidence on which he could be convicted of either charge. That, he submits, is because the Crown has failed to prove beyond a reasonable doubt that Constable Smith made a breath demand as soon as practicable as required by s. 254(3) of the Criminal Code . It is submitted that the so- called “read-back” provisions of s. 258(1)(

c) of the Code apply only once it is proven beyond a reasonable doubt that police complied with the statutory prerequisites for the operation of that provision, including that a breath demand was made as soon as practicable. The Issues [ 3 ] This no-evidence motion raises two issues. The first concerns the test to determine whether a demand was made “as soon as practicable”. As Mr. Poohachoff notes, the case law diverges on this point. To paraphrase Judge Wood in R. v. Kimmerly (2 November 2009), Duncan 30176-2C (B.C. Prov. Ct.), under the existing case law the phrase “as soon as practicable” has been given both a narrow and a broad

interpretation. [ 4 ] The narrow

interpretation, as represented by what I will call the Walmsley line of cases, is more consistent with the notion that the demand be made forthwith except in extenuating circumstances. The broader

interpretation, as represented by what I will call the Sullivan line of cases, suggests that whatever is done by police before the breath demand is made must be reasonable and logically connected to the furtherance of the impaired investigation. Mr. Poohachoff adds that given the decision of the Supreme Court of Canada

in R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460, which provides that the s. 10(

b) right to counsel must be providedimmediately upon detention, the breath demand must also be read immediately after the s. 10(

b) notice. In other words, the correctapproach after Suberu must be even more narrow than the narrow approach suggested by the Walmsley line of cases. [5] Whichever the correct approach to the “as soon as practicable” requirement, the second issue in this case is whether ConstableSmith made the demand as soon as practicable. The Facts [6] On June 25, 2010, Constable Smith of the Castlegar RCMP detachment was conducting a road check in the Castlegar area whenMr. Poohachoff’s truck approached. Constable Smith waived Mr. Poohachoff, who was travelling with a passenger, over at 11:10 pm.

Constable Smith detected an odour of liquor on Mr. Poohachoff’s breath, and noted that his eyes were bloodshot. He asked Mr.Poohachoff if he had had anything to drink that evening to which Mr. Poohachoff replied he had consumed one beer with his dinner. [7] Because of the symptoms of consumption and the admission of drinking, Constable Smith made a roadside breath demand at11:14 p.m. Mr. Poohachoff complied and blew a fail. As a result of the fail, Constable Smith formed the opinion at 11:15 p.m. that hehad grounds to make a breath demand. He then informally advised Mr.

Poohachoff that he was being detained for investigation ofimpaired driving, that he could call any lawyer of his choice, that he had a right to silence, and that he would be transported back to theCastlegar RCMP detachment for breath testing. [8] Constable Smith testified that he did not formally read Mr. Poohachoff his s. 10(

b) rights or the breath demand from a cardimmediately after he determined he had grounds to make a breath demand for officer safety reasons. Specifically, he testified that he didnot like to look away from the driver and read from a card because it puts his safety in jeopardy.

Constable Smith testified that he hadhad drivers react violently and flee from the scene when he was unable to give them his full attention. [9] Constable Smith’s experience told him that so long as he could advise the detained person what was going to take place,particularly before putting them into the back of a police cruiser, the person was more likely to cooperate. He added that puttingsomeone in the back of the car without any warning also raises issues of officer safety. This was particularly so in this case given Mr.Poohachoff’s size. [10] Constable Smith also testified that while he and Mr.

Poohachoff were standing outside of their vehicles, Mr. Poohachoff askedrepeatedly for a 24 hour suspension. Constable Smith testified that Mr. Poohachoff also did not want his truck towed, but rather, wantedthe officer to ensure that his passenger drove the vehicle home. At Mr. Poohachoff’s request, Constable Smith spoke to the passengerafter Mr. Poohachoff was placed in the police cruiser. Constable Smith testified that the passenger did not want to take responsibility forthe truck and preferred to leave the scene and walk home. The truck was eventually towed from the scene. [11] After searching Mr.

Poohachoff and placing him in his police car, Constable Smith spoke to the female passenger, and madesome notes at 11:20 p.m. At 11:22 p.m. he started to read Mr. Poohachoff his s. 10(

b) rights, the police warning, and the breath demandfrom a card. He testified that during this time, Mr. Poohachoff was still asking for a 24 hour suspension. Constable Smith testified thatthe discussion slowed him down and prevented him from reading Mr. Poohachoff his rights. It took the officer from 11:22 p.m. to 11:28p.m. to formally advise Mr. Poohachoff of all of his rights and make the breath demand and advise him of the 24 hour suspension. Constable Smith read Mr.

Poohachoff the breath demand at 11:27 p.m. [12] In all, a period of 12 minutes lapse between the time Constable Smith formed his opinion that he had grounds for the breathdemand and the reading of the demand. During that time, I find the following occurred: (

a) At 11:15 p.m., Constable Smith formed the grounds to make a breath demand of Mr. Poohachoff; (

b) For reasons of officer safety, Constable Smith informally advised Mr. Poohachoff of his right to counsel, right to remain silent andthat he would be detained for investigation of impaired driving; (

c) As the two stood outside their vehicles, Mr. Poohachoff pressed the officer for a break (

d) Constable Smith searched Mr. Poohachoff and placed him in the rear of his police cruiser (

e) At Mr. Poohachoff’s request, Constable Smith left Mr. Poohachoff in the police cruiser while he spoke to Mr. Poohachoff’spassenger about driving Mr. Poohachoff’s truck home (

f) Constable Smith returned to the police cruiser and made notes commencing at 11:20 p.m. (

g) At 11:22 p.m., Constable Smith began to read Mr. Poohachoff his rights and the breath demand from a card. He was interrupted byMr. Poohachoff who was still trying to persuade the officer to give him a break; (

h) At 11:27 p.m., Constable Smith advised Mr. Poohachoff of the breath demand. The Statutory Scheme [13] Section 254(3) of the Code provides that if a peace officer has reasonable grounds to believe that a person is committing, or atany time within the preceding three hours has committed, an offence under s. 253 as a result of the consumption of alcohol, the peaceofficer may, by demand made as soon as practicable, require the person to provide as soon as practicable: “...samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood...” [14] Section 258 (1) (

c) of the Code provides that where samples of the breath of the accused have been taken pursuant to a demand

made under s. 254(3), and assuming certain other criteria are met: “...evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at thetime when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of theanalyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of theconcentrations determined by the analyses...” [15] It appears clear that for the purposes of s. 258(1)(

c) a demand pursuant to s. 254(3) is at the very least one made based onreasonable and probable grounds. As Mr. Poohachoff notes, in R. v. Shepherd, [2009] S.C.C. 35, it was held that in order to rely on thebreath sample taken pursuant to s. 254(3), the Crown had to prove beyond a reasonable doubt that the officer had reasonable andprobable grounds to make the demand. By extension, it is submitted, the Crown must also prove beyond a reasonable doubt that theofficer made the breath demand as soon as practicable. [16] Mr. Poohachoff also cites the decision of Judge St. Pierre in R. v. Mellors

(2010) B.C.J. No. 1715, where the court dealt with thequestion whether in the absence of reasonable and probable grounds, a defendant who provided a sample of his or her breath could stillbe convicted of an offence under s. 253(1)(

b) as the Supreme Court of Canada held in Rilling v. The Queen, (SCC),[1976] 2 S.C.R. 183. That in turn led Judge St. Pierre to analyze the role of Rilling in a post-Charter world. In so doing, he concludedthat if the statutory requirement of reasonable and probable grounds was not proven, the Crown could not rely on the read-backprovisions under s. 258(1)(c), and no resort to s. 24(2) of the Charter was required.

Without further evidence linking the blood alcohollimit of the accused at the time of testing to the time of driving, under Mellors, there could be no conviction. [17] The point that I am to take from Mellors for the purposes of this case is that a demand made as soon as practicable is no less astatutory requirement than that of having reasonable and probable grounds.

As such, if the demand is not made as soon as practicable, itwould follow from the reasoning in Mellors that the Crown cannot rely on the presumption. [18] However, the issue facing the court in Mellors was I find slightly different than the issue in this case.

I find that in this case Imust ask if whether by providing that the Certificate of Analysis is evidence of the accused’s blood alcohol level at the time of drivingwhere the sample has been taken pursuant to a demand under s. 254(3), Parliament intended that there be proof not only that the demandwas made under the section, but also made in accordance with the requirements of the section. Section 254(3) provides not only that thedemand be made as soon as practicable but in respect of the first sample, not later than 2 hours after the time the offence is alleged tohave been committed.

That language underscores the purpose of the

section which is to ensure the sample is reliable evidence of theblood alcohol content at the time of driving: R. v. Freeman (September 14, 2011) Penticton No. 35869-1 (BCPC) at para. 28. [19] Given the critical role of timing in s. 258(1)(

c) it seems to me Parliament could not have intended that the read-back provisionswould operate unless the Court was satisfied beyond a reasonable doubt that efforts were made to make the breath demand and take thebreath sample as soon as practicable under the circumstances but in any event within a certain limited time frame. As such, I am satisfiedthat absent proof, in this case, that Constable Smith made the breath demand as soon as practicable, the Crown cannot rely on the read-back provisions.

The Law respecting the phrase “as soon as practicable” [20] The question then becomes what Parliament intended by the phrase “as soon as practicable”. As Mr. Poohachoff has noted in hiswritten submissions, there is a divergence in the case authorities as to the proper

interpretation of these words. In R. v. Naidu, [2010]BCJ No. 1188, this debate was discussed at some length by Kelleher J. Since it is necessary in order to address the argument raised byMr. Poohachoff on the proper

interpretation of the phrase “as soon as practicable” to outline this divergence, I can do no better than to setout Justice Kelleher’s reasons on this point in Naidu from paras. 19 to 48 as follows: [19] The appellant argues that “as soon as practicable” must be given a narrow meaning, consistent with the fact than an accusedperson’s liberty is restricted during this time. [20] When considering this submission, it is important to consider certain recent changes to the law. On July 2, 2008, the CriminalCode was amended by the Tackling Violent Crime Act, S.C. 2008, c. 6.

The amendment found in s. 19(3) pertains to the length of timeallowed to a peace officer to make a s. 254(3) breath demand after the officer has formed the opinion that a person has breached s. 253 asa result of the consumption of alcohol. [21] Prior to July 2, 2008, s. 254(3) provided that once a peace officer had formed the requisite opinion he or she was required tomake a breath demand "forthwith or as soon as practicable".

On July 2, 2008 the word "forthwith" was removed from the subsection,with the result that the peace officer is now only required to make the demand "as soon as practicable" after the formation of therequisite opinion. [22] Accordingly, the issue raised on this appeal is the proper

interpretation to ascribe the term “as soon as practicable”, keeping inmind the fact that the word “forthwith” has been removed from the legislation. [23] The delay will be reasonable, says the appellant, if there is a rational and logical connection between the duties beingundertaken in the investigation and the delay. The appellant relies on this passage in Walmsley: [49] As in Whitesell, the evidence in this case does not disclose the reason why the delay was necessary.

The officer engaged in thesteps of arresting the respondent in circumstances where it is conceded by the Crown that the arrest was unnecessary. Although Cst.Bevington may have been engaged in the execution of general duties, they were not of the type that had to be performed and discharged,in the circumstances of this case, before the breath demand could be made. [50] Essentially one must ask whether the duties of Cst. Bevington engaged in were the type that had to be discharged before shecould make a valid demand.

[emphasis added] [24] The error the appellant alleges is that the learned trial judge did not ask herself whether the computer inquiries made byConstable Hodgins were duties that “had to be discharged” before “he could make a valid demand”. [25] The appellant says that it is not sufficient that the activities are connected in some way to the investigation of the suspect. Theymust be a necessary part of the officer’s proper investigation of the allegation.

The appellant says there must be a nexus or logicalconnection between the duties performed and the delay occasioned by it. [26] The appellant submits that Sullivan did not change the law as stated in Walmsley. In that case, there was a six to nine minutedelay caused by the need to deal with an intoxicated passenger.

The trial judge in Sullivan noted the person was a potential arrestee,witness or security risk. [27] It is argued by the appellant that the learned trial judge in this case was articulating a new test inconsistent with Walmsley andSullivan that the delay be first, explained, and second, related to the investigation of the accused. [28] The appellant argues there must be a logical nexus or an intervening safety concern such as arose in the Sullivan case. [29] In Walmsley, a concerned citizen reported to the police that he had observed a pick-up truck being driven by someone who wasapparently impaired.

After searching the licence plate number, the police attended at Mr. Walmsley’s residence. The pick-up truck wasparked in the driveway, unoccupied. [30] The police had a discussion with Mr. Walmsley’s wife. As a result of what they learned, he was arrested and handcuffed. Ademand for a breath sample was made. [31] The investigating officer testified “there was nothing to prevent” her from making the demand prior to the arrest, in lieu of thearrest or at any time she formed her opinion in respect of Mr. Walmsley’s impairment.

The Crown conceded that the arrest of Mr.Walmsley was not warranted under the Criminal Code. [32] The trial judge found the demand was not valid for two reasons: first, the arrest of Mr. Walmsley was unwarranted and,second, the officer engaged in activities between the forming of her opinion and the making of the demand that were not necessary. [33] The learned trial judge in Walmsley made a finding of fact: that there appeared to be no good reason why the demand could nothave been made prior to the arrest or even in lieu of the arrest.

The trial judge concluded that the Crown had not justified any delaywhatsoever on the grounds of practicality. [34] On appeal, the court deferred to the findings of fact made by the trial judge: [59] In essence, on the facts of this particular case there was no reason that the demand could not be made forthwith. Examining theevidence in the context of when action was required before the demand could be made it is apparent, again on the facts of this case, thatno action or step was required before the demand could be made.

There was nothing from the circumstances before her, such as difficultconduct by the respondent or his wife, that required the officer to take some sort of investigative steps or fulfill other duties before shecould make the demand. [35] The Walmsley decision represents a conclusion by the appellate court that no error had been demonstrated in the trial judge’sapplication of the legal test: [61] The learned trial judge reviewed the relevant facts, properly applied the principles established in Whitesell, and applied thoseprinciples to the facts as he found them.

There was sufficient evidence before the trial judge on which he could reasonably find that thedemand for the breath sample, in the circumstances of this case, had not been made as soon as practicable. [62] It follows that no error has been demonstrated with respect to the trial judge’s application of the legal test or with respect to thefacts as he has found them. Accordingly, the Crown’s appeal from the respondent’s acquittal is dismissed. [36] Some have read the decision in Walmsley as stating a new test. Paragraph 50 provides: Essentially one must ask whether the duties that Cst.

Bevington engaged in were the type that had to be discharged before she couldmake a valid demand. [37] In my view, that statement must be placed in the context of the decision as a whole. The court was not stating that “as soon aspracticable” means the same as “forthwith”. [38] The conflicting lines of authority on this point were analyzed in R. v. Kimmerly, (2 November 2009), Duncan 30176-2C (B.C.Prov. Ct.), a decision of His Honour Judge Wood. At the time this decision arose, s. 254(3) required the demand to be made “forthwith”or “as soon as practicable”.

The learned Provincial Court judge began by setting out the leading authority, R. v. Whitesell (1998), (BC SC), 32 M.V.R. (3d) 318 (B.C.S.C.). In that case, 26 minutes elapsed between the time the investigating officer cameto the conclusion the appellant had been operating his vehicle while impaired until the demand to provide a breath sample. During those26 minutes, the officer: • Secured the appellant’s vehicle. • Advised him of his rights under the Charter. • Placed him in handcuffs in the police vehicle.

• Contacted the detachment office to arrange for the vehicle to be towed. • Made notes. • Completed the 24 hour suspension notice. • Searched the appellant’s vehicle. • Waited for the tow-truck to arrive. [39] In Whitesell , Levine J., as she then was, sitting as the

summary conviction appeal judge, allowed the appeal against conviction. Paragraph 16 of her reasons provide: [16] The trial judge was correct in considering the particular exigencies of this case to determine if the demand was made as soon as practicable. In doing so, however, he applied the wrong test to the evidence before him. It was not sufficient to determine that the officer was carrying out those duties related to the accused’s case where the evidence failed to show that carrying out those duties related to or caused the delay. The question is whether the demand was given “as soon as practicable”.

The answer must be found in evidence that shows that it was not reasonably “practicable” to make the demand without the delay that occurred. The evidence in this case does not disclose any reason why the delay occurred. [40] Judge Wood said that this decision has been interpreted in two different ways. He referred to Walmsley as a good example of the narrow

interpretation of Whitesell . In that case, the trial judge considered that once the officer has formed the requisite opinion the only justification for any delay is evidence that the officer’s ability to make the demand was frustrated by duties associated with the investigation that could not be postponed. He referred to para. 43 of Walmsley : [43] ...The number of minutes for the delay in making the demand for a breath sample is not the essential criterion....

Rather, what matters is the sort of duties and functions being conducted by the police officer that causes the delay and whether they have to be discharged before the demand can be made. The whole chain of events occasioning the delay must be considered in light of the requirements that the demand be made “forthwith or as soon as practicable”. [41] He then referred to the “other line of authority”: [38] The other line of authority, suggesting a less stringent

interpretation of the test in Whitesell , is perhaps best exemplified by the decision in R. v. Sullivan, an unreported

Summary Conviction Appeal Court decision filed in the Smithers Registry on November 25, 2008, one day before the decision in Walmsley. The reasons indicate that a delay of 6 to 9 minutes occurred between the officer forming the requisite opinion and the demand being read to the accused. During that time the officer took the accused to the police cruiser where he was searched and then returned to speak with the passenger in the accused's vehicle, who was also intoxicated. The officer then returned to his vehicle and read the accused his "rights" before reading the demand. [39] In dismissing the appeal from a conviction for failing to provide a breath sample, the

Summary Conviction Appeal Court judge addressed the appellant's reliance on the decision in Whitesell with the following comments: [10] In my view, Madam Justice Levine, as she then was, could not have intended to set out a test that stipulated that, between forming the opinion of impairment and making the demand, no time could be spent attending to the safety of the person or officer, the safety of the vehicle in question, or providing Charter rights, or providing a means of determining whether, in fact, there has been unreasonable delay by making prompt, contemporaneous notes. ... [12] Thus, I find that Whitesell stands for the following proposition: in interpreting as soon as practicable , it must be determined on the evidence whether there is a reasonable explanation for delay in the circumstances.

Any such reasons for delay must be logically connected to the police officer’s duties in carrying out the proper investigation relating to the issues at hand. Here, that issue is the time period between forming the opinion of impairment and making the demand. I am particularly assisted in my analysis by four decisions: one of this court, R. v. Colbourne ; one of the British Columbia Provincial Court, R. v. Marquette ; and two from the Ontario Court of Appeal, R. v. Vanderbruggen and R. v. Squires .

All of these decisions were decided after Whitesell. [emphasis in original] [42] Judge Wood declined to take the narrow approach. He concluded that the eight minute delay resulted from the officer’s standard practice of advising an impaired driving suspect of the reason for the detention and the right to remain silent and right to retain and instruct counsel. In the circumstances, Judge Wood found the demand was made “as soon as practicable”. [43] In Northrup , 2009 BCPC 348 , 90 M.V.R. (5 th ) 288 , Blake Prov. Ct.

J. explained the line of authority exemplified by the decision in Walmsley on the basis that such cases “give pre-eminence to the term ‘forthwith’ in the

interpretation of s. 254(3). Indeed, it may even be said that the Walmsley analysis allows the phrase ‘as soon as practicable’ to be virtually eclipsed” (at para. 68). [44] At para. 69, Judge Blake noted that the line of authority exemplified by the decision in Sullivan “seems to give primacy to the phrase ‘as soon as reasonably practicable’.

Again, it may be argued that this second line of cases allows the term ‘forthwith’ to become virtually redundant in the analysis.” [45] In Judge Blake’s view, the July 2, 2008, amendments have brought an end to this “battle”, providing interpretive primacy to those authorities which have focussed on the reasonably practicable requirement in s. 254(3): 70 In my view, it is the attempt to grapple with the two seemingly contradictory time limitations contained in s. 254(3) that lies at the heart of the divergence in the case authorities in recent years.

Fortunately, however, it seems to me that the battle has been brought to an end as a result of the recent legislative amendment. One of the terms vying for interpretive supremacy, the word "forthwith", has been

neatly removed from the battlefield by legislative enactment. [46] I am not at all sure that Walmsley represents anything more than the

summary conviction appeal justice deferring to findings offact by the trial judge. But if Walmsley and Sullivan are not consistent, I am in respectful agreement with Judge Wood’s analysis inKimmerly and with his conclusion. [47] I conclude that the learned trial judge correctly applied the law to the facts as she found them. [48] To accept the appellant’s submission is to virtually read “forthwith” back into s. 254(3). The computer queries were related tothe investigation of the appellant and took a reasonable amount of time. I am unable to say that there was any unreasonable delay.

One ofthe decisions which the court in Sullivan referred to is R. v. Vanderbruggen, (ON CA), 29 M.V.R. (5th) 260, 206C.C.C. (3d) 489, (Ont. C.A.). The court in that case said this at para. 16: [16] To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect’s blood alcohol level, shouldnot be interpreted so as to require an exact accounting of every moment in the chronology.

We are now far removed from the days whenthe breathalyzer was first introduced in Canada and there may have been some suspicion and scepticism about its accuracy and value andabout the science underlying the presumption of identity.

These provisions must be interpreted reasonably in a manner that is consistentwith parliament’s purpose in facilitating the use of this reliable evidence. [21] In Naidu, Justice Kelleher found that a demand was made as soon as practicable even though there was a 12 minute delaybetween forming the opinion and making the demand during which time the officer arrested the accused, placed him in the policevehicle, read him his Charter rights and conducted a records check on the in-vehicle computer.

Like Judge Wood, Justice Kelleher wasclearly of the view that the phrase as soon as practicable means that police must not engage in unreasonable delay but that so long aspolice are taking reasonable steps towards conducting their impaired driving investigation, the breath demand need not be madeforthwith before any other logical aspect of the investigation. [22] Mr.

Poohachoff submits that Naidu is no longer good law because Suberu requires that the accused be read his or her s. 10(b)Charter rights immediately, without delay upon investigative detention subject to officer or public safety or other justifiable limitationpursuant to s. 1 of the Charter. Moreover, Mr. Poohachoff adds that Justice Kelleher did not refer to Justice Dillon’s reasoning in R. v.Memisevic 2010 BCSC 203 , [2010] B.C.J. No. 2299 (BCSC).

In Memisevic, at para. 20, Justice Dillon agreed with JusticeKerr in Walmsley that the question regarding a breath demand must be whether it was reasonable to make the demand without the delaythat occurred. In other words, Memisevic falls on the side of what Judge Woods described in Kimmerly as the narrow view of s. 254(3). Given his reasoning, particularly at para. 46, I do not see how a reference to Memisevic would have changed Justice Kelleher’s decisionin Naidu. [23] The real thrust of Mr. Poohachoff’s

interpretation argument rests on the more recent decision of the SCC in Suberu. In that case,it was held that subject to concerns for officer or public safety, and other justifiable limitations, police have a duty to inform a detainee ofhis or her right to retain and instruct counsel immediately upon detention. Mr. Poohachoff submits that since the breath demand is onthe same card as the s. 10(

b) right to counsel notice, it follows from Suberu that police must not only inform persons detained forinvestigation of impaired driving of their right to counsel immediately upon detention, they must also read those persons the breathdemand immediately (presumably following the s. 10(

b) reading). In other words, following Suberu, the language in s. 254(3) must beinterpreted effectively to mean forthwith except in the event of officer or public safety - an even more narrow reading of the

section thanthat provided in the Walmsley line of cases. [24] I do not find that the obligation with respect to advising persons of their s. 10(

b) right to counsel can be applied to Parliament’sintentions under s. 254(3) merely because the RCMP have chosen to print the wording of the breath demand on the same card as the rightto counsel advise. I do not see how this policy of the RCMP in any way informs this court of the intention of Parliament. In addition, asnoted in Naidu, the courts must attach some meaning to the removal of the word “forthwith” from the section. It would be a retrogradestep to now interpret the

section as if it was intended to mean forthwith when clearly that is not the intention of Parliament. [25] The remaining question on this issue is which approach to the

interpretation of the phrase “as soon as possible” must be adoptedby this court. Though there are conflicting authorities, I find that I am bound to follow the decision of Justice Kelleher in Naidu. Apartfrom being the most recent decision by the BC Supreme Court on this issue, Naidu comprises a far more extensive canvass of theapplicable case law regarding the phrase “as soon as practicable” as that is to be applied for the purpose of s. 258(1)(c). It is apparentfrom the review of the considered law in Naidu that the majority of the cases favour the

interpretation given this phrase by JusticeKelleher. With the greatest of respect for the competing line of case, I find also that I am convinced Justice Kelleher’s approach iscorrect. [26] I find that the test to be applied to the phrase “as soon as practicable” is not forthwith except where officer or public safetyrequires otherwise.

Rather, the question for the court is whether there is a reasonable explanation for delay in the circumstances bearingin mind that any such reasons for delay must be logically connected to the police officer’s duties in carrying out the proper investigationrelating to the issues at hand. It remains to be determined whether Constable Smith made the demand as soon as practicable in all thecircumstances. Was the demand made as soon as practicable? [27] In the twelve minutes between the time Constable Smith formed the opinion that he had grounds to make a breath demand andthe making of the demand itself, Mr.

Poohachoff was informally notified of his Charter rights, the police warning, and that he was beingdetained for investigation of impaired driving. He was also searched, however briefly, and placed in the back of Constable Smith’spolice cruiser. Throughout this time, Mr. Poohachoff tried to discuss with the officer the possibility of his getting a 24 hour suspensionrather than proceeding with the impaired investigation. At Mr. Poohachoff’s request, Constable Smith spent time speaking to Mr.Poohachoff’s passenger regarding his vehicle. Constable Smith then spent time making notes in relation to the investigation.

Some timewas wasted while Mr. Poohachoff pled for a break as he sat in the back of the police cruiser interrupting Constable Smith as heattempted to read to him the various formal demands.

[ 28 ] I am satisfied that Constable Smith gave a full account of his dealings with Mr. Poohachoff that evening before reading him the breath demand. All of his time was spent in my view on matters necessary for officer safety, in furtherance of the investigation, or at the behest of Mr. Poohachoff who is not entitled to benefit from any delay he caused. [ 29 ] In R. v. Freeman , Judge Cartwright acquitted the accused of an over 0.8 charge on the grounds that there was no evidence in the case to explain the five minute delay after the officer formed his grounds to make a breath demand.

The evidence in Freeman was that the officer simply preferred to wait five minutes to place the accused in the police car but there was no evidence as to why the officer preferred this practice. [ 30 ] At para. 29 of Freeman , Judge Cartwright wrote that rather than have no explanation for the delay, the officer could have preferred to put the accused in the police car for fear the accused would flee, or be uncooperative. She added that the officer could have been worried about officer safety, or the need to watch the accused closely as the demand was read so he understood.

All of these reasons, she wrote, would have been acceptable. [ 31 ] In this case, the court has evidence as to why Constable Smith preferred to delay the reading of the formal breath demand until Mr. Poohachoff was securely lodged in the back of his police car. The court has evidence as to why Constable Smith took the time before putting Mr. Poohachoff in the police car to give him an informal warning of his rights and an outline of the process he could expect to undergo. The court has evidence that some considerable time was taken up by Mr.

Poohachoff’s attempts to persuade Constable Smith to let him go with a 24 hour suspension and more time taken up while Constable Smith tried to address Mr. Poohachoff’s concerns about his vehicle. [ 32 ] In all the circumstances of this case, I find that the breath demand was made by Constable Smith as soon as practicable. It follows that the Crown may rely on the presumption of identity provided for pursuant to s. 258(1) (

c) of the Criminal Code . [ 33 ] For these reasons, I am dismissing Mr. Poohachoff’s no-evidence motion. ______________________________ The Honourable Judge L. Mrozinski