Her Majesty the Queen - v. -, 2012 SKPC 148

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 148 Date: September 7, 2012 Information: 24427012 Location: North Battleford, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jaret D. Larlham Appearing: Paul Goldstein For the Crown Brent Little For the Accused JUDGMENT V. H. MEEKMA , J INTRODUCTION [ 1 ] The accused is charged that on or about the 18 th day of June, A. D. 2011, at Biggar, in the Province of Saskatchewan: Count #1 - While his ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code .

Count #2 - Having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, did operate a motor vehicle contrary to section 253(1) (

b) and section 255(1) of the Criminal Code . Count #3, drive while disqualified, was stayed by the Crown. [ 2 ] The accused argues that the breath samples were not taken as soon as practicable, therefore, the Crown cannot rely on the presumption of identity in s. 258(1) (

c) of the Criminal Code of Canada and, alternatively, there was a breach of ss. 8 and 9 of the Canadian Charter of Rights . [ 3 ] The factual basis for the argument was the delay between 8:12 p.m. when the breath demand was read and 9:02 p.m. when the breath technician arrived at the Biggar R.C.M.P. Detachment to obtain the breath samples. Within that time frame, one 11 to 18- minute period remains unaccounted for. FACTS [ 4 ] The Eagle Creek Music Festival was being held a half-hour drive from the Biggar Detachment and additional police officers had been brought in from other detachments to assist.

It was known to the officers on duty that there was to be a breath technician available who would be located at the festival site, a 30-minute drive away on muddy roads. [ 5 ] An officer from Saskatoon arrested the accused in Biggar at 7:58 p.m., having recognized his vehicle from a similar arrest the night before. A breath demand was read at 8:12 p.m. At that time, or within one or two minutes later, other Royal Canadian Mounted Police members arrived on scene and the arresting officer asked them to call the breath technician and a tow truck.

The tow truck was necessary in order to avoid a repetition of the offence, as his arrest the evening prior and suspension of his licence had not deterred the accused from drinking and driving. The Biggar R.C.M.P. members were then called away on another call, but there was no indication to the arresting officer of any further delay in obtaining the breath technician’s attendance. [ 6 ] The tow truck arrived at 8:30 p.m. The arresting officer then departed the scene with the accused.

They waited at the Biggar Detachment from 8:32 p.m. until 8:45 p.m., a further 13 minutes, before local members arrived to let them in and also advised them at that time that the breath technician was on his way. The breath technician arrived at 9:01 or 9:02 p.m. The first sample was taken at 9:14 p.m. and the second sample 20 minutes later. There were a couple of failed attempts due to the accused not blowing hard enough. [ 7 ] According to his evidence, the breath technician received the call to attend the detachment approximately 35 minutes before he arrived at 9:01 p.m.

He made no note at the time, but his best guess was that he received the dispatch at about 8:25 p.m. from the sergeant and he made his way to Biggar as quickly as he could over the muddy roads.

He had indicated to the caller that it would take approximately 30 minutes for him to reach the Biggar Detachment. [ 8 ] Only the arresting officer and the breath technician testified, so we have no explanation from the officers who relayed the request as to why no call was made for the breath technician between 8:12 p.m. or 8:14 p.m. when they arrived on scene and were asked to make the call, and 8:25 p.m. or 8:30 p.m. when the call was actually made.

The delay was a minimum of 11 minutes (from 8:14 p.m. to 8:25 p.m.) or as much as 18 minutes (from 8:12 p.m. to 8:30 p.m.), because no one recorded the exact time of the request or of the call. [ 9 ] It is noteworthy that after the tow truck arrived on scene at 8:30 p.m., the officer and the accused waited outside the detachment for 13 minutes to be let in, then a further 17 minutes before the breath technician arrived. ANALYSIS [ 10 ] Section 254(3) of the Criminal Code provides:

If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) 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, ... And s. 258(1)(c) (the presumption of identity) reads: In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings 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 ofthe first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the sampleswere taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by aqualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, 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, in the absence of evidence tending to show all of the following three things – that theapproved instrument was malfunctioning or was operated improperly, that the malfunction of improper operation resulted in thedetermination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 ml of blood, and that theconcentration 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 theoffence was alleged to have been committed; ... [11] There are two references to “as soon as practicable” in s. 254(3) and a further reference to the same phrase in s. 258(1)(c)(ii).The purpose and context of that wording has been the subject of much judicial comment. [12] Scherman J. in R. v.

Dolezsar, 2012 SKQB 6, noted: “...it is clear that while the same words ‘as soon as practicable’ are usedin each section, they are used with different purposes” (para. 19). The purpose and objective of the demand being made as soon aspracticable in s. 254(3) is to ensure the accused understands from early on what charge he is potentially facing and is irrelevant to theobjective of scientific reliability behind the requirement in s. 258(1)(c) (see paras. 13 to 15). [13] The different purposes behind the two sections was earlier noted in R. v.

Deruelle, (SCC), [1992] 2 S.C.R.663, at page 672: Looking beyond the text of the provision, the breathalyzer scheme of the Code is designed to ensure that breath or blood samples areobtained as quickly as possible after the alleged impaired driving offence. This overriding objective is achieved through variousmechanisms found in specific Code provisions. While the general objective is the same throughout the scheme, the specific purposes ofeach mechanism are different. As such, the fact that the provisions constitute a “scheme” does not mandate a unitary

interpretationcontrary to the language of each individual provision. The two-hour limit in s. 254(3) contributes to the objective of the scheme byforcing prompt police investigation, and by requiring the police to take the sample as soon as practicable. This specific purpose, which

goes to the admissibility of the sample into evidence, can be distinguished from the purpose of the time limit in the presumption section,s. 258(1)(c). The latter provides a procedural shortcut for the police, but only if the breath or blood sample is obtained within two hoursof the alleged offence.

As such, it is concerned with the quality of the evidence obtained by the police, rather than its admissibility. [14] La Forest J. goes on at page 674: As Macdonald J.A. suggests, it is now settled law that a failure to comply with the provisions of s. 258 robs the Crown of the benefit ofthe presumption therein but nothing more. The evidence obtained is still admissible: see R. v. May (1971), (AB KB),16 C.R.N.S. 392 (Alta. S.C.); R. v. Hamm, supra; R. v. Burnison (1979), (ON CA), 70 C.C.C. (2d) 38 (Ont. C.A.).This point was made by this Court at the hearing and was conceded by counsel for the respondent.

I note, however, that McLeod, Takachand Segal in Breathalyzer Law in Canada (3rd ed. 1986), at pp. 12-40 to 12-49, suggest that this proposition is still open for debate. Inmy view, however, the analysis of the Saskatchewan Court of Appeal in Hamm put this issue to rest some years ago. [15] R. v. Hamm (1974), (SK CA), 15 C.C.C. (2d) 32, (Sask. C.A.), referred to in Deruelle, supra, held thatcertificate evidence is still admissible when the test is taken outside of the two hours, but the presumption does not apply and there mustbe expert evidence relating the results to the time of the offence. [16] R. v.

Carter (1981), (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.), clearly states that not taking the samples assoon as practicable after the alleged offence does not affect the admissibility of the certificate, but the ability to rely on the presumption(para. 5). [17] The pre-Charter case of R. v. Carter, supra, continues to be referred to and applied. See R. v. Dolezsar, supra, R. v. Burwell,2012 SKPC 114, and R. v.

Yates, 2012 SKPC 104. [18] I am satisfied that the law in Saskatchewan continues to be that no Charter challenge to admissibility is required for defenceto successfully argue against the availability of the presumption of identity. [19] The question then becomes whether each sample was taken as soon as practicable as required in s. 258(1)(

c) in order for thepresumption of identity to apply. There was no expert evidence to read the results back to the time of the offence, therefore, if thepresumption is not available to the Crown, it is not necessary to consider whether there was a breach of the Charter of Rights and theappropriate remedy. [20] Not every minute must be explained and accounted for. Carter, supra, states: 9 The requirement that the samples be taken as soon as practicable is one which must be applied with reason.

As I read the section, aslong as the delay, if there is one, is explained to the satisfaction of the judge, there may be reliance on the presumption in paragraph (iv)as long as the samples are taken within the two hour limit. It would only be when the learned trial judge concluded there was a delay notsatisfactorily explained, or such delay prejudiced the accused that the court would deny the prosecution the right to rely on thepresumption in paragraph (iv). [21] In R. v. McCoy, (SK KB), [1990] S.J.

No. 657, Gerein J. adopted the view that “as soon as practicable”meant “as soon as reasonably can be expected” and noted that what is reasonable depends upon the particular circumstances of each case.Once the time lapse is considerable or unusual, then the Crown must explain the delay. [22] In this case, we have an unusual delay from the time of the breath demand (8:12 p.m.) to the time of the test (9:14 p.m.). Thetime lapse is significant enough to require an explanation. [23] Waiting for the tow truck to collect the vehicle and prevent a further offence was, in the circumstances of this particular

[23] Waiting for the tow truck to collect the vehicle and prevent a further offence was, in the circumstances of this particularaccused, reasonable.

Waiting for the attendance of the breath technician who the arresting officer knew was 30 minutes away was, in thecircumstances of that evening (the music festival, which was a strain on resources, and the arrangements that had been made ahead oftime for the officer to be on call and available to attend the detachment as required), also reasonable. [24] It is that anticipated delay of 30 minutes for the breath technician to arrive, already known to the officers involved, whichthen combined with a further unexplained delay of between 11 and 18 minutes when that technician was not radioed to attend asrequested that in my opinion takes the delay in this case outside the realm of “reasonable”.

The 11 to 18-minute lapse cannot beconsidered in a vacuum. Were it the only delay, it may not be unreasonable, or even unusual. As Gerein J. notes in McCoy, supra, “Thiswould obviously be the situation where the court is looking at some 5 to 10 minutes.” But it was not the only delay, and the officers whowere assigned to make the call were aware of that. The breath technician himself, fully cognizant of the time it would take him to driveback to Biggar over muddy roads, testified that he returned as quickly as he could. He recalled the sergeant radioing him to come back assoon as he could make it.

But no one gave an explanation as to why there was the 11 to 18-minute delay in making the call, and thesecircumstances call out for that kind of detail. There was mention that the officers went on another call, but nothing suggested it was anemergency, and the arresting officer had no reason to anticipate any further delay. [25] “As soon as practicable” does not mean “as soon as possible”. The trial judge must look at the whole chain of events anddetermine whether the tests were taken within a reasonably prompt time under the circumstances.

See the reference to R. v.Vanderbruggen (2006), (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.), in R. v. Berrecloth, 2012 SKQB 175, paras. 19 to20, and R. v.

Duchek, 2012 SKPC 7, para. 32. [26] I find, as did Labach PCJ in Burwell, supra, the cumulative effect of the delays is that the accused’s breath samples were nottaken as soon as practicable, resulting in the loss of the presumption in s. 258(1)(c), without which there is no evidence of theblood/alcohol concentration of the accused at the time of driving. [27] There was also insufficient evidence of impairment of his ability to operate a motor vehicle in order to support a conviction oncount #1. CONCLUSION [28] The accused is acquitted of both counts. _________________________________ V. H. Meekma, J