R v Fenske (HB), 2015 MBCA 113

Citation: R v Fenske (HB), 2015 MBCA 113 Date: 20151204 Docket: AR15-30-08401 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) C. R. Savage ) for the Applicant ) (Respondent) Applicant ) M. Wasyliw ) for the Respondent - and - ) ) HARVEY BRENT FENSKE ) Chambers motion heard: ) June 18, 2015 ) (Accused) (Appellant) Respondent ) Decision pronounced: ) December 4, 2015 BEARD JA I. THE ISSUES [ 1 ] The Crown has applied pursuant to section 839(1) (

a) of the Criminal Code for leave to appeal the decision of a

summary conviction appeal judge (the appeal judge), whereby the accused was acquitted of the charge of driving with a blood-alcohol level over .08 under section 253(1) (

b) of the Criminal Code . In acquitting the accused, the appeal judge overturned the earlier

summary conviction on that offence by a judge of the Provincial Court (the trial judge). [ 2 ] The Crown’s grounds of appeal are: (

i) that the appeal judge erred in overturning the trial judge’s finding that the accused’s breathalyzer tests were administered as soon as practicable; and (ii) that the appeal judge erred in holding that the presumption in section 258(1) ( c )(ii) of the Criminal Code could not be applied to the Crown’s case. [ 3 ] The accused argues that the Crown’s appeal does not meet the legal criteria for granting leave for a second-level appeal. II.

THE FACTS [ 4 ] The parties have agreed that the underlying facts are as follows: On July 18, 2013 at 9:50 p.m., the [accused] drove from the U.S. to the Winkler office of Canada Border Services Agency (CBSA) (“Winkler border crossing”). The [accused] admitted to the CBSA Officer that he had consumed two cans of beer and an Approved Screening Device demand was made. The [accused] complied, a fail result was obtained and, at 10:05 p.m., the [accused] was arrested for impaired driving. A breath demand was made at 10:12 p.m.

At 10:29 p.m., the [accused] was transported to the Carman detachment of the RCMP, arriving at 11:09 p.m. At 11:35 p.m., the accused provided samples of his breath and was subsequently charged with driving over 80, contrary to section 253(1) (

b) of the Criminal Code . From the Winkler border crossing, Carman is a 40 minute drive and Winkler is a 15 minute drive. [ 5 ] The uncontradicted evidence of the RCMP officer who arrested the accused was that he made no attempt to contact the local police in either Winkler or Morden to see if the breathalyzer tests could be conducted at either of those detachments. Further, he testified that, while there was an RCMP detachment in Morden, there was no breathalyzer equipment located there.

He said that the closest RCMP detachment with equipment to conduct breathalyzer testing was in Carman. [ 6 ] While the accused filed an application alleging that the certificate of analysis should be excluded because there had been a breach of his rights under the Canadian Charter of Rights and Freedoms (the Charter ), that application did not encompass his arguments regarding the

interpretation of the words “as soon as practicable” in section 258(1)( c )(ii) or the availability of the presumption

of identity therein. The presumption of identity refers to the presumption that the lowest breathalyzer reading is conclusive evidence(subject to certain defences that are not applicable here) of the level of alcohol in the accused’s blood at the time of the offence. [7] The trial judge dismissed the accused’s Charter application and also found that the breathalyzer tests had beenconducted as soon as practicable.

The certificate of analysis of the breathalyzer tests was admitted into evidence, the accused called noevidence and he was convicted. [8] The accused appealed the trial judge’s finding that the breathalyzer tests were taken as soon as practicable under section258(1)(c)(ii). While stating that the Crown had to prove that each breath sample had been taken as soon as practicable before it couldrely on the presumption of identity, his argument focussed on whether the breathalyzer tests were conducted as soon as practicable.

Theissue that forms the second ground of appeal as it is now being argued was not raised by either party before the appeal judge. [9] The appeal judge stated that the Crown had the onus to present evidence to prove that the breathalyzer tests wereconducted as soon as practicable.

He found that, by dismissing the accused’s argument on the basis that there was no evidence that atechnician was available at the other detachments, the trial judge reversed the onus of proof. [10] The appeal judge found that the breathalyzer tests were not carried out “as soon as practicable”, and that, as a result, theCrown was not entitled to rely on the certificate of analysis to establish the blood-alcohol content of the accused at the time of theoffence (the presumption of identity), although there was no legal analysis on the second point.

There being no other evidence in thatregard, he acquitted the accused. III. THE TEST FOR GRANTING LEAVE [11] The accused argues that the grounds of appeal in this matter do not meet the test for granting leave to appeal applicable toa second-level appeal. [12] The test for granting leave to appeal a

summary conviction appeal under section 839(1) of the Criminal Code wasexplained in R v Jacob (JA), 2012 MBCA 19, 280 ManR (2d) 6 (at paras 8-9): The standard of review regarding a

summary conviction appeal under s. 839 of the Code was recently set out by Freedman, J.A., of thiscourt in R. v. R.W.M. (2011), 2011 MBCA 74 , 270 Man.R. (2d) 29; 524 W.A.C. 29; 2011 MBCA 74, as follows (at paras. 23-26): 23 In R. v. McCorriston (G.J.) (2010), 2010 MBCA 3 , 251 Man.R. (2d) 106; 478 W.A.C. 106; 2010 MBCA 3, mycolleague Steel, J.A., set out succinctly the standard of review to be applied in a case like this (at para. 16): The criteria to be met before leave to appeal is granted are well settled and set out in s. 839 of the Criminal Code and in the cases ofR. v.

Schalla (K.T.) (2007), 2007 MBCA 104 , 220 Man.R. (2d) 69; 2007 MBCA 104, at para. 1, and R. v. Langlois (D.J.)(2008), 2008 MBCA 72 , 228 Man.R. (2d) 256; 427 W.A.C. 256; 2008 MBCA 72. They are as follows:

(1) Any ground of appeal must involve a question of law alone.

(2) Even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance.

(3) The arguable case must be of sufficient importance to merit the attention of the full court. Since the case has already been reviewedby a judge of the Court of Queen’s Bench, which is the primary appellate court to review such matters, there should be a compellingreason to allow this second level of appeal. One compelling reason would be that the issue raises matters that are of significance to theadministration of justice or the development of the law beyond this case. See R. v.

Denys (C.D.) (2009), 2009 MBCA 39 ,240 Man.R. (2d) 13; 456 W.A.C. 13, 2009 MBCA 39. 24 This last criterion was explained in detail by Doherty, J.A., in R. R. [2008 ONCA 497, 90 O.R. (3d) 641] (at paras. 20, 24-27): In indictable proceedings, access to the second level of appeal, the Supreme Court of Canada, is very limited. Most appeals to theSupreme Court of Canada in indictable proceedings are governed by ss. 691-693 of the Criminal Code. Except in very limitedcircumstances (where a judge of the Court of Appeal has dissented on a question of law), leave to appeal must be obtained from theSupreme Court.

As well, that court’s jurisdiction is limited to questions of law. The Criminal Code does not set out the criteriagoverning the granting of leave to appeal. In practice, the court grants leave only where the proposed questions of law have a significantpotential impact on the administration of justice beyond the specifics of the case. ...

In addressing the scope of appellate review contemplated by s. 839(1), three aspects of that provision deserve emphasis. First, theappeal is not a second appeal from the trial decision; rather, it is an appeal from the decision of the Superior Court judge. Second, theappeal is limited to questions of law alone. Like the Supreme Court of Canada on indictable appeals brought under the Criminal Codeprovisions, this court cannot revisit factual findings or correct errors of mixed fact and law.

Third, even if the applicant raises a questionof law arising out of the decision of the Superior Court judge, the applicant must still convince this court (or a judge of this court) thatleave to appeal should be granted on that question of law. Not all questions of law merit a second appeal. These three features of s. 839, all of which are found in the corresponding

section dealing with leave to appeal to the Supreme Courtof Canada in indictable matters, make it clear to me that a second appeal in

summary conviction proceedings should be the exception andnot the rule. There is no sensible criminal law policy that would justify more extensive rights of appeal in relatively minor criminal matters thanthose available in the most serious criminal cases. As the relevant provisions of the Criminal Code indicate, this court’s role in theappellate process in

summary conviction proceedings is similar to the role played by the Supreme Court of Canada in appellateproceedings in indictable matters. Both the parallel statutory provisions and policy dictate that this court should, in exercising itsdiscretion to grant a second appeal in a

summary conviction proceeding, adopt a similar approach to that taken by the Supreme Court ofCanada on applications for leave to appeal in indictable offences. Furthermore,

summary proceedings are intended to be expeditious. Routinely granting a second full appeal on the merits from the trial decision hardly furthers that goal. The requirement that the applicant obtain leave to appeal in s. 839 provides the mechanism whereby this court can control itssummary conviction appeal docket.

Access to this court for a second appeal should be limited to those cases in which the applicant candemonstrate some exceptional circumstance justifying a further appeal. (Underlining added) 25 That explanation has been adopted by this court (see Merasty [2010 MBCA 50, 258 Man.R. (2d) 1], McCorriston and Denys,among other cases). 26 Thus, the standard which must be met by the applicant seeking a second appeal is quite high.

Not only must the applicantdemonstrate a likely error of law by the first-level appeal judge, but they must also show that there is something exceptional about thecase warranting a second appeal hearing. I adopt the test for an appeal of an order of a

summary conviction appeal judge set out by Steel, J.A., in R. v. McCorriston (G.J.),(2010), 2010 MBCA 3 , 251 Man.R. (2d) 106, 478 W.A.C. 106; 2010 MBCA 3, as adopted by Freedman, J.A., in R.W.M. [13] In determining whether a ground of appeal raises a question of law, it is clear and settled law that, where the facts are notin dispute, the application of a legal test to those facts is a question of law in a criminal case.

To state the issue in other words, thequestion of whether the undisputed facts are sufficient to meet the legal test is a question of law. (See, for example, R v Mara, (SCC), [1997] 2 SCR 630 at paras 18-23; R v Kubassek (E) (2004), (ON CA), 189 OAC 339 at paras 11-16; R v Shepherd, 2009 SCC 35 at paras 18-20, [2009] 2 SCR 527; R v JMH, 2011 SCC 45 at para 28, [2011] 3 SCR 197; and R vFarrah (D), 2011 MBCA 49 at para 7, 268 ManR (2d) 112.) [14] This was recently reconfirmed by the Supreme Court of Canada in R v MacKenzie, 2013 SCC 50, [2013] 3 SCR 250,wherein Moldaver J, for the majority, stated (at para 54): Whether the facts as found by the trial judge amount to reasonable suspicion is a question of law (R. v.

Shepherd, 2009 SCC 35,[2009] 2 S.C.R. 527, at para. 20; Nolet [2010 SCC 24, [2010] 1 SCR 851] at para. 47). As McLachlin C.J. and Charron J. explained inShepherd, the logic of which is equally applicable to reasonable suspicion: While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trialjudge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law.

As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem atfirst blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed thatthe application of a legal standard to the facts of the case is a question of law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, atpara. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. . . .

Although the trial judge’s factual findings are entitled todeference, the trial judge’s ultimate ruling is subject to review for correctness. [Underlining added; para. 20.] (See R v Wylie, 2013 ONCA 673 at paras 6-7 (QL); and R v Alex, 2015 BCCA 435 at paras 4-5 (QL).)

[ 15 ] The question of whether the requirement to take a breath sample “as soon as practicable” constitutes a legal standard was recently considered by the Saskatchewan Court of Appeal in R v Burwell , 2015 SKCA 37 (QL). Jackson JA undertook a lengthy analysis of the jurisprudence on this point, looking at decisions both before and after Shepherd . She concluded, at para 85, that “as soon as practicable” in section 258(1) ( c )(ii) is a legal standard. While the three judges wrote separate decisions on the substantive appeal, they were in agreement on this issue. IV.

THE TRIAL AND APPEAL DECISIONS The Trial Judge’s Decision [ 16 ] The trial judge’s decision is as follows: I deal now with the issue of the delay in obtaining the breathalyzer sample. Upon being arrested, the accused was transported to the Carman R.C.M.P. detachment where a breathalyzer sample was obtained.

Defence counsel argues that the delay in transporting the accused to that location, approximately 40 minutes away, was unreasonable given that both the Winkler Police Service, located approximately 13 to 15 minutes from the border, and the Morden Police department, located about 9 miles from Winkler, are both equipped with breath testing equipment. He argues that the R.C.M.P. officer should have taken steps to access the equipment operated by those police departments. With the greatest of respect, I find that there is little merit to this argument.

There is no direct evidence that either of these independent police services had breathalyzer technicians on duty on the night in question, nor was there any reason for this R.C.M.P. officer to have made those inquiries. He was aware that the R.C.M.P. breathalyzer technician was at the Carman detachment and he attended directly to that detachment. I note that the breathalyzer test was administered within two hours of the arrest of the accused and I find that there was no delay whatsoever in obtaining the breath sample.

My conclusion therefore under all of the circumstances is that no Charter breach has been established under any of the sections raised by the accused. Having concluded that there are no Charter breaches, it is unnecessary for me to consider and apply the Grant test to the admissibility of the evidence. The Appeal Judge’s Decision [ 17 ] The appeal judge’s decision is as follows ( 2015 MBQB 81 , 317 ManR (2d) 116 at paras 23-28 ): The delay complained of here is a period of 25 minutes during which the accused was transported between Winkler and Carmen [ sic ] in order for the breathalyzer test to be administered.

The only explanation offered for not taking the accused to Winkler was that the Winkler police were not RCMP and it was RCMP policy to take any suspects to Carmen [ sic ] for breathalyzer tests. No enquiries of the Winkler police force were made to determine if a technician was available to administer the tests to the accused. The Learned Trial judge dismissed this argument on the basis that there was no evidence that a technician was available. With respect, that finding reverses the onus of proof. It is for the Crown to present any evidence to show the tests were administered as soon as practicable.

If there was a delay, the Crown must explain why the delay was reasonable and justified in all the circumstances. RCMP policy is an appropriate consideration in assessing whether or not any delay on administering a breathalyzer test was reasonable. However, police policy does not override the requirements of the Criminal Code . No explanation was given as to why it would not have been reasonable to request the assistance of the Winkler police force. No evidence was led that the tests could not have been administered in Winkler or Morden.

No evidence was led that a breathalyzer technician was not available in Winkler or Morden. Other than the bare assertion that it was against RCMP policy, there is no explanation for the delay which occurred in transporting the accused between Winkler and Carmen [ sic ]. It is impossible from the record to determine if the delay occasioned by transporting the accused to Carmen [ sic ] rather than administering the test in Winkler was a reasonable decision or justified in the circumstances. As a result, I find that the breathalyzer tests taken from the accused in this matter were not taken “as soon as practicable”.

The result of that finding is that the Crown is not entitled to rely on the certificate of analysis in order to establish the blood-alcohol content of the accused at the time of the driving. There being no other evidence tendered to prove the quantity of alcohol in the accused’s blood, this essential averment of the charge is unproven. The accused is therefore entitled to be acquitted of the charge before the court. V.

THE FIRST GROUND: WERE THE BREATHALYZER TESTS ADMINISTERED AS SOON AS PRACTICABLE? [ 18 ] The first criterion for granting leave to appeal is that the ground of appeal must involve a question of law alone. The facts related to the taking of the breathalyzer samples in this case are simple and not in dispute. This ground of appeal asks whether those facts were sufficient to meet the legal standard of the breathalyzer tests having been administered as soon as practicable after the time of the offence.

Given that this question involves the application of a legal standard to the facts of the case, it is, clearly, a question of law. [ 19 ] The second criterion for granting leave is that, even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance. [ 20 ] The Crown’s position is that the appeal judge erred in his determination of what was practicable by finding that the police should have been in a position to explain the “delay” caused by transporting the accused to Carman instead of looking for a police detachment located closer to the Winkler detachment at which the breathalyzer tests could have been conducted with less delay.

It says

that making such inquiries was not practicable and, therefore, not required on the facts of this case and that the appeal judge erred in finding that such inquiries should have been made.

It says that this had the effect of raising the standard from “as soon as practicable” to that of “as soon as possible.” In support of its position, it points to the facts and decision in the case of Burwell . [ 21 ] The accused’s position is that there was a delay caused by the decision to transport the accused to Carman for the breathalyzer tests and that the Crown had the onus to explain how that delay was reasonable, including explaining why inquiries were not made to conduct the tests at a closer police detachment.

He says that the appeal judge was correct to find that the trial judge reversed the onus of proof by requiring the accused to prove that the breathalyzer test could have been conducted at a closer detachment. [ 22 ] The accused argues that the minority decision of Jackson JA in Burwell is to be preferred and, in any event, that case is based on its own facts and is of no assistance in this case. [ 23 ] In my view, this ground of appeal does raise arguable questions of substance.

The first is whether the appeal judge erred in finding that the trial judge reversed the burden of proof by finding that there was no evidence that a technician was available at a closer police detachment and thereby incorrectly placed the onus on the accused. [ 24 ] The second arguable question of substance in this ground of appeal is whether the appeal judge erred in finding that the breathalyzer tests were not taken as soon as practicable because the Crown did not call evidence to explain why it was reasonable to conduct the breathalyzer tests in Carman instead of at a closer detachment. [ 25 ] The third criterion for granting leave is that the arguable case must be of sufficient importance to merit the attention of the full court. [ 26 ] The Crown argues that the consequences of the appeal judge’s findings are far-reaching and significant because they will require policing agencies to drastically alter their procedures for administering breathalyzer tests, including: - when estimating the time required to obtain a breath sample, a police officer will have to consult with other police agencies to determine if they have resources to enable the samples to be taken sooner, even if that agency is further away; - police detachments will have to consider the prospects of other police agencies requiring their staff and equipment to provide breathalyzer testing when making staffing decisions; and - each police agency will have to train its staff not only on the use of its own equipment, but on that of other police agencies. [ 27 ] The accused argues that this ground of appeal does not raise any new or novel issues.

His position is that the law states that the Crown bears the onus of having the necessary evidence to prove that a delay in administering a breathalyzer was reasonable within the facts of the case and that was the basis of the appeal judge’s finding. The Crown simply failed to do so in this case.

His position is that this ground of appeal is not of sufficient importance to merit the attention of the full court. [ 28 ] I note that, in his arguments before the trial judge, counsel for the accused argued that he had succeeded on this point in other cases, so this is not an argument that is unique to this case. [ 29 ] I find that this ground of appeal will have an effect beyond this case on both policing practices and the evidence that a Crown must produce to meet the standard of “as soon as practicable” within section 258(1) ( c )(ii).

Thus, I find that it is of sufficient importance to merit the attention of this Court. VI. THE SECOND GROUND: THE AVAILABILITY OF THE PRESUMPTION OF IDENTITY IN SECTION 258(1)( c )(ii) OF THE CRIMINAL CODE [ 30 ] A review of the transcript of the arguments before the trial judge shows that the issue of the availability of the presumption of identity in the event of a finding that the breathalyzer tests were not conducted as soon as practicable, absent a Charter application to exclude the evidence, was not argued before her.

Further, she did not consider that issue. [ 31 ] The appeal judge did not carry out any analysis to determine whether the presumption was available. After finding that the breathalyzer tests had not been conducted as soon as practicable, he made the conclusory finding that the Crown could not rely on the certificate of analysis to prove the charge. [ 32 ] The result is that, this issue not having been considered in any substantial way, it does not come before this Court as a second-level appeal.

That said, I will go on to consider whether it meets the criteria for leave as a second-level appeal. [ 33 ] The first criterion is whether this ground of appeal raises a question of law. This issue deals with the

interpretation of the provisions of a statute that does not raise any evidentiary issues, which is a question of law. [ 34 ] The second criterion is whether this ground of appeal raises an arguable case of substance. [ 35 ] The Crown argues that the question of the availability of the presumption of identity that is raised in this case has, effectively, been resolved by the Ontario Court of Appeal in R v Charette (

K) et al , 2009 ONCA 310 , 247 OAC 369 , and by the Quebec Court of Appeal in R v Anderson , 2013 QCCA 2160 (QL) . [ 36 ] The Crown acknowledges that there is a difference between those cases and this, in that those cases dealt with the issue of the availability of the presumption of identity where there were no reasonable and probable grounds to make a breathalyzer demand, while this case deals with the availability of the presumption of identity if there is a finding that the demand was not made “as soon as practicable”.

Its position is that those cases are the same as this case, however, in that the certificates of analysis were admitted in each case and there was no application under the Charter to exclude the presumption in any of the cases.

[37] The Crown’s position is that both “reasonable and probable grounds” to make a demand and whether the demand wasmade “as soon as practicable” are pre-conditions to a valid demand.

As such, it argues, the availability of the presumption of identityshould be approached in the same manner for both pre-conditions and that to hold otherwise would lead to unnecessary confusion andcomplexity in the law. [38] The Crown acknowledges that there are differing appellate court decisions as to whether an accused can simply assertthat the presumption of identity has statutory requirements that are independent of the Charter that must be met before the Crown canrely on the presumption.

In that regard, it notes the decisions in R v Carter (1981), (SK CA), 9 SaskR 1 at para 5(CA); and R v Searle (JM), 2006 NBCA 118 at para 25, 308 NBR (2d) 216. It argues that these are dated and should not be followed. [39] The accused argues that Charette does not apply in this case because the question here is not whether the certificate ofanalysis is admissible but whether, even if the certificate of analysis is admitted, the Crown must still prove that the breath sample wastaken “as soon as practicable” before it can rely on the presumption of identity.

In other words, he says that the presumption can only beapplied if the certificate of analysis is admitted and the samples were taken “as soon as practicable”. His position is that the Charter isirrelevant to this analysis. [40] It is of note that this Court accepted and followed the Charette decision in R v Forsythe (JR), 2009 MBCA 123, 251ManR (2d) 90. Forsythe dealt with the question of whether a finding that the breath samples were taken “as soon as practicable” was apre-condition to the admissibility of the test results.

This Court found that, where the accused took the breathalyzer tests, the resultswere admissible even if the Crown could not prove that the tests were administered “as soon as practicable”.

It held that, in order to havethe results excluded, the accused would have to bring a motion in that regard under the Charter. [41] I find that this ground of appeal, while similar to that in Forsythe, is sufficiently different that it raises an arguable case ofsubstance. [42] The third criterion is that the case must be of sufficient importance to merit the attention of the full court. [43] Similar issues have been found to merit the attention of the full court in Charette and Forsythe. Thus, I find that theissues in this ground of appeal also merit the attention of the full court. VII.

CONCLUSION [44] For these reasons, I would grant the Crown’s motion for leave to appeal and grant leave to appeal on the followinggrounds: (

i) Did the appeal judge err in overturning the trial judge’s finding that the accused’s breathalyzer tests were administered as soon aspracticable?

This raises the included or additional issue of whether the appeal judge erred in finding that the trial judge reversed theburden of proof by finding that there was no evidence that a technician was available at a closer police detachment and therebyincorrectly placed the onus on the accused. (ii) Did the appeal judge err in holding that the presumption in section 258(1)(c)(ii) of the Criminal Code could not be applied to theCrown’s case where the certificate of analysis was admitted but there was a finding that the Crown had not proved that the breathalyzertests were conducted as soon as practicable, where there was no motion or application under the Charter to prevent the Crown fromrelying on that presumption?

JA