R v Fenske (HB), 2016 MBCA 117

Citation: R v Fenske (HB), 2016 MBCA 117 Date: 20161207 Docket: AR15-30-08401 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) C. R. Savage ) for the Appellant ) (Respondent) Appellant ) M. Wasyliw ) for the Respondent - and - ) ) Appeal heard: HARVEY BRENT FENSKE ) June 7, 2016 ) ) Judgment delivered: (Accused) (Appellant) Respondent ) December 7, 2016 On appeal from 2015 MBQB 81 , 317 ManR (2d) 116 BEARD JA I. THE ISSUES [ 1 ] The Crown has appealed 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 accused’s earlier conviction of that offence by a judge of the Provincial Court (the trial judge). [ 2 ] This is a second-level appeal requiring leave to appeal, which was granted on the following questions of law See R v Fenske (HB) , 2015 MBCA 113 (leave decision) (at para 44 ): (

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

This raises the included or additional issue of 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. (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 the Crown’s case where the certificate of analysis was admitted but there was a finding that the Crown had not proved that the breathalyzer tests were conducted as soon as practicable, where there was no motion or application under the Charter [ Canadian Charter of Rights and Freedoms ] to prevent the Crown from relying on that presumption?

II. THE FACTS [ 3 ] The parties have agreed that the underlying facts are as follows (leave decision at para 4): 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. [4] The uncontradicted evidence of the RCMP officer who arrested the accused was that he made no attempt to contact thelocal police forces in either Winkler or Morden, which were not RCMP detachments, to see if the breathalyzer tests could be conductedby either of them. Further, he testified that, while there was an RCMP detachment in Morden, there was no breathalyzer equipmentlocated there.

He said that the closest RCMP detachment with equipment to conduct breathalyzer testing was in Carman. [5] The trial judge found that the breathalyzer tests had been conducted as soon as practicable. The certificate of analysisof the breathalyzer test results was admitted into evidence and the accused called no evidence.

The trial judge applied the presumptionof the blood-alcohol level contained in section 258(1)(c)(ii) of the Criminal Code to find that the accused’s blood-alcohol level was over.08 at the time of the offence (this is sometimes referred to as the presumption of identity), and she convicted the accused of driving over.08. [6] 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 results in the certificate of analysis to establish the accused’s blood-alcohol level at the time of theoffence.

There being no other evidence of the accused’s blood-alcohol level at the time of the offence, he acquitted the accused. III. THE FIRST GROUND: DID THE APPEAL JUDGE ERR IN OVERTURNING THE TRIAL JUDGE’S FINDINGTHAT THE ACCUSED’S BREATHALYZER TESTS WERE ADMINISTERED AS SOON AS PRACTICABLE UNDERSUBSECTION 258(1)(c)(ii) OF THE CRIMINAL CODE? (

i) Standard of Review [7] The standard of review is determined by the nature of the question being reviewed. If a ground of appeal alleges thatthe judge erred in the facts or inferences to be drawn from the facts, that raises a question of fact and the standard of review is that ofpalpable and overriding error. If the ground of appeal alleges that the judge erred in the application or

interpretation of the law, thequestion is one of law and the standard of review is that of correctness. In this case, the facts are not in dispute and there is no argumentthat either the trial judge or the appeal judge erred in their understanding of the underlying facts. [8] In granting leave to appeal, I considered whether this ground of appeal raised a question of law and found that it did. While I adopt that analysis, some further comments are required as this is not a completely settled issue. [9] Canadian Courts of Appeal are in agreement that, where the

interpretation of the phrase “as soon as practicable” is atissue, this raises a question of law. This includes situations where it is concluded that the trial or appeal judge incorrectly interpretedwhat “as soon as practicable” means and applied that incorrect

interpretation to the facts. (See, for example, R v Carter (1980), (BC CA), 55 CCC (2d) 405 (BC CA); R v Cander (1981), (BC CA), 28 BCLR 376 (CA); R v Cambrin(1982), (BC CA), 1 CCC (3d) 59 (BC CA); R v Phillips (1988), (ON CA), 27 OAC 380; R v Clarke(1991), 27 MVR (2d) 1 (Ont CA); R v Letford (J) (2000), (ON CA), 139 OAC 387; R v Carey (B) (2006), (ON CA), 215 OAC 151; R v Myrick (NJ) (1995), (NL CA), 130 Nfld & PEIR 144 (Nfld CA); R vNaidu, 2010 BCSC 851, 95 MVR (5th) 91, aff’d 2012 BCCA 150 .) [10] There is, however, a difference of opinion in appellate case law as to whether, where the trial or appeal judge has properlyinterpreted the “as soon as practicable” test, that judge’s determination that the breath samples were taken as soon as practicable in thecircumstances of that case raises a question of law (see Myrick; R v Husain (S), 2010 ABQB 708, 503 AR 125, leave to appeal to AltaCA refused, 2011 ABCA 73 ; Naidu; and R v Burwell (J), 2015 SKCA 37, 472 SaskR 1) or a question of fact (see R v Pearce(1984), 27 MVR 128 (BC CA); Galligan JA in dissent in R v Payne (1990), 38 OAC 161; R v Renda, (ONCA); R vVanderbruggen (M) (2006), (ON CA), 208 OAC 379; R v Burbidge, 2008 ONCA 765, 69 MVR (5th) 159; R vTorsney (2009), 81 MVR (5th) 212 (Ont CA, in chambers); R v Jensen (1982), (NS CA), 55 NSR (2d) 124 (CA); R vCarter (1981), (SK CA), 9 SaskR 1 (CA); and R v Singh (S), 2014 ONCA 293, 318 OAC 232). [11] Most of the cases finding that this constitutes a question of fact pre-date the Supreme Court of Canada’s decision in R vShepherd, 2009 SCC 35 at paras 18-20, [2009] 2 SCR 527, wherein the Court stated clearly that “the application of a legal standard tothe facts of the case is a question of law” (at para 20).

In Shepherd, the Court was considering the “reasonable and probable grounds”requirement to demand a breath sample. [12] Shepherd was recently confirmed 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 [R v Nolet, 2010 SCC 24, [2010] 1 SCR 851] at para. 47). As McLachlin C.J. and Charron J.explained in Shepherd, 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 also 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 JMH, 2011 SCC 45 at para 28, [2011] 3 SCR 197; R v Farrah (D), 2011 MBCA 49 at para 7, 268ManR (2d) 112; R v Wylie, 2013 ONCA 673 at paras 6-7 ; and R v Alex (DH), 2015 BCCA 435 at paras 4-5, 377 BCAC 301.) [13] The question of whether the requirement to take a breath sample “as soon as practicable” constitutes a legal standard wasrecently considered by the Saskatchewan Court of Appeal in Burwell.

Jackson JA undertook a lengthy analysis of the jurisprudence onthis point, looking at decisions both before and after Shepherd. She concluded, at para 85, that “as soon as practicable” in section258(1)(c)(ii) is a legal standard.

While the three judges wrote separate decisions on the substantive appeal, they were in agreement onthis issue. [14] I agree with Jackson JA’s analysis on this point, and I would adopt the findings of that Court that the question of whethera breath sample was taken as soon as practicable in the facts of a specific case is a question of law that is to be reviewed on the standardof correctness. (ii) The Judicial History [15] 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 unreasonablegiven 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 havetaken 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 theseindependent 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 heattended directly to that detachment.

I note that the breathalyzer test was administered within two hours of the arrest of the accused andI find that there was no delay whatsoever in obtaining the breath sample. [16] The appeal judge’s decision is as follows (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 thatthe Winkler police were not RCMP and it was RCMP policy to take any suspects to Carmen [sic] for breathalyzer tests.

No enquiries ofthe 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. Withrespect, that finding reverses the onus of proof. It is for the Crown to present any evidence to show the tests were administered as soonas 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 wasreasonable. 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. (iii) The Parties’ Positions [ 17 ] 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 police station 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 . [ 18 ] The Crown argues that the consequences of the appeal judge’s findings are far-reaching and significant because they will require police forces 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 forces to determine if they have resources to enable the samples to be taken sooner, even if that police station is further away; - police forces will have to consider the prospects of other police forces requiring their staff and equipment to provide breathalyzer testing when making staffing decisions; and - each police force will have to train its staff not only on the use of its own equipment, but on that of other police forces. [ 19 ] 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. [ 20 ] 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. [ 21 ] 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.

He says that the Crown simply failed to do so in this case. [ 22 ] I note that, in his submissions 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. (iv) The Law (a) “As Soon As Practicable” in Subsection 258(1) (c)(ii) [ 23 ] This appeal addresses the

interpretation and application of the legal standard of “as soon as practicable” as it is used in subsection 258(1) (c)(ii) of the Criminal Code . The relevant portions of that provision are: 258(1) Proceedings under

section 255 – In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 . . ., (

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, . . . evidence of the result 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 [none of whichare relevant in this case]. [24] While the

interpretation and application of this provision has been the subject of appellate decisions in other provinces,this Court has not had occasion to consider it. [25] In Vanderbruggen, the Ontario Court of Appeal summarized the major principles which appellate and lower courts hadapplied to the

interpretation of the phrase “as soon as practicable” in subsection 258(1)(c)(ii). Rosenberg JA, in a unanimous decision,stated (at paras 12-13): That leaves the question that is at the heart of this appeal–the meaning of as soon as practicable. Decisions of this and other courtsindicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. SeeR. v. Phillips (1988), (ON CA), 27 OAC 380; 42 C.C.C. (3d) 150 (C.A.), at 156 [C.C.C.]; R. v. Ashby (1980), (ON CA), 57 C.C.C. (2d) 348 (Ont. C.A.), at 351; and R. v.

Mudry (1979), 1979 ABCA 286 , 19 AR 379; 50C.C.C. (2d) 518 (C.A.) at 522 [C.C.C.]. There is no requirement that the tests be taken as soon as possible. The touchstone fordetermining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 380OAC 161; (ON CA), 56 C.C.C. (3d) 548 (C.A.) at 522 [C.C.C.]; R. v. Carter (1981), (SK CA), 9SaskR 1; 59 C.C.C. (2d) 450 (C.A.) at 453 [C.C.C.]; R. v. Van Der Veen (1988), 1988 ABCA 277 , 89 AR 4; 44 C.C.C. (3d)38 (C.A.) at 47 [C.C.C.]; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v.

Seed (J.W.), (ON CA), [1998] O.J.No. 4362, 114 OAC 326 (C.A.). In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing inmind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “assoon as practicable” requirement must be applied with reason.

In particular, while the Crown is obligated to demonstrate that–in all thecircumstances–the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailedexplanation of what occurred during every minute that the accused is in custody. See R. v. Letford (J.) (2000), (ONCA), 139 OAC 387; 150 C.C.C. (3d) 225 (C.A.), at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), (BC CA), 1C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v.

Seed at para. 7. [26] Rosenberg JA explained why the “as soon as practicable” requirement must be applied with reason, stating (at para 16): To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect’s blood-alcohol level, should notbe interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when thebreathalyser was first introduced into 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. [27] These principles have been applied by the Ontario Court of Appeal in its more recent decisions in Carey at para 17;Burbidge at para 6; Singh at paras 13-15 and R v Crewson, 2015 ONCA 264 at paras 1-4 . In Burwell, both Klebuc andOttenbreit JJA, for the majority, adopted the Vanderbruggen

interpretation of this provision (see paras 12-13, 18, 119). Burwell hasrecently been affirmed by the Saskatchewan Court of Appeal in R v Prestupa (H), 2016 SKCA 118, 485 SaskR 152. Similar principleshave been applied in the past by other Canadian appellate courts, such as, in addition to those decisions set out in Vanderbruggen, thedecisions in Carter (1980) at para 6; Cander; R v Purdon (1989), 1989 ABCA 297 , 100 AR 313 at para 11 (CA); Jensen atpara 21; R v McCarthy (1981), (NL CA), 35 Nfld & PEIR 40 (Nfld CA) at paras 7-9; and Myrick at para 30. [28] I would adopt Klebuc JA’s

summary of the “as soon as practicable” standard set out in Vanderbruggen (in Burwell at para18): (

a) The phrase “as soon as practicable” means nothing more than that the breath samples be taken within a reasonably prompt timeunder the circumstances.

(

b) Where a demand for breath samples had been made, there is no requirement that the breath tests be taken as soon as possible. (

c) The touchstone for determining whether the breath samples were taken as soon as practicable is whether the police acted reasonably. (

d) The trial judge is to look at the whole chain of events, bearing in mind what occurred within the two-hour limit prescribed by the Criminal Code . (

e) While the Crown is obligated to demonstrate–in all the circumstances–that breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred while the accused was in custody. (

b) Police Policy and Procedures [ 29 ] There are a number of appellate court decisions that have considered the effect of police policy and procedures as they relate to the taking of breath samples. I will review three. [ 30 ] The decision in Myrick , although released over 20 years ago, is both instructive and applicable to the facts of this case.

In Myrick , the trial judge held that the breathalyzer tests had been taken as soon as practicable in circumstances where the accused had to wait 58 minutes between his arrival at the police station and being transferred into the custody of the breathalyzer technician because the breathalyzer technician had been administering breathalyzer tests to four other suspects during that time period.

There was evidence that the police station usually utilized two breathalyzer machines and that other breathalyzer technicians may have been at the station that evening, but the evidence was also clear that only one breathalyzer technician was actually conducting breathalyzer tests while the accused was at the station. The trial judge in that case found that the delay in administering the tests was more than satisfactorily explained and that the tests were administered as soon as practicable, while the

summary conviction appeal judge found that the appeal involved a question of fact and he refused to intervene. As noted earlier in these reasons, the Newfoundland Court of Appeal held that the appeal involved a question of law and went on to determine whether the “as soon as practicable” standard had been met. [ 31 ] Marshall JA, for the Court, considered the issue in the context of the use of the single breathalyzer that was being operated that evening and also in the context of the potential for using additional equipment and personnel. He stated that subsection 258(1) (c)(ii) raises four points: (

i) The determination of whether a sample was taken “as soon as practicable” is not governed by the two-hour time limit for taking the first sample; that is, it is not intended for the convenience of the police enabling them to commence the tests within the two-hour period when they get around to it.

It sets a time limit beyond which the police cannot rely on the presumption of identity in the subsection, requiring the Crown to call other evidence to establish the blood-alcohol concentration at the time of the offence. (See para 28.) (ii) Even a lapse of time within the two-hour time limit is subject to scrutiny as to whether, in the prevailing circumstances, it was one of unusual duration. If it was, the Crown must provide an explanation for that delay, and the reasonableness of that explanation will hinge on whether the samples were taken “as soon as practicable”.

In Myrick , the Crown acknowledged that the 58 minute delay was unusual and that it was required to provide a reasonable explanation in order to rely on the presumption. (See para 29.) (iii) The reasonableness of the delay does not entail an inquiry into whether the tests were performed as soon as possible. (See para 30.) (iv) The defence did not call any evidence at trial, so there was no evidence to the contrary rebutting the Crown’s proof adduced through the presumption. (See para 31.) [ 32 ] In relation to the use of only one breathalyser machine, Marshall JA found that both the arresting officer and the breathalyzer technician acted as soon as practicable in the circumstances.

He also found (at para 36): Neither can there be any real dispute with the adequacy of the capacity in operation to cope with the heavy demands placed upon it on the morning of Mr. Myrick’s apprehension. This is evidenced by the fact that it was shown to be capable of responding to them and, at the same time, of allowing for the commencement of Mr. Myrick’s testing well within the maximum period of two hours between the time of his alleged offence and the taking of the first sample.

While that time limit is neither intended for the convenience of police, nor does it absolve testings taken within it from inquiry as to whether they were taken “as soon as practicable”, the accomplishment of the tests within the time limit, in the circumstances where it had to respond to heavy demands on it, may, nonetheless, be taken as evidence that the operating capacity that morning was adequate. [ 33 ] Marshall JA went on to consider the defence argument that the failure to provide further equipment and personnel rendered the delay unreasonable, such that the breathalyzer testing was not commenced “as soon as practicable” (at paras 38-42):

In focusing upon this aspect of the inquiry, it must be acknowledged, at the outset, that if there had been other capacity operating at police headquarters, to which the arresting constable had failed to direct Mr. Myrick, his counsel’s complaint would have greater force. However, it will be recalled that the arresting officer testified that there was only one technician on duty at the time and the technician, himself, could not recall if another machine with qualified technician was operational.

Hence, there was ample evidence for the judge to have considered established beyond reasonable doubt that no other facility or personnel were available at the time to test the alcohol level in Mr. Myrick’s body. The inquiry, therefore, rends itself down to questioning whether it was, nonetheless, reasonable to expect additional capacity to have been operational at the headquarters that morning; and, if a holding that the breath samples were taken “as soon as practicable” is sustainable in its absence.

Assistance in resolving the competing points of view raised in response to these questions can be gained from R. v. Samorodny (1993), 44 M.V.R. (2d) 19 (Ont. Gen. Div.) . In that case the issue of whether the breathalyzer test was administered “as soon as practicable” under s. 258(1) (c)(ii) was being tested against a 75 minutes time lapse between arrest and the testing.

The delay was caused partly by the arresting officer by-passing one or more closer police detachments, where the availability of a machine was uncertain, and partly because the technician was occupied with another case on arrival at the officer’s own detachment. In addressing the requirement of practicality, Taliano, J. stated at p. 23: Assuming that facilities and personnel had been available at the closer police detachments, the tests might have been taken more expeditiously, but that is not the test. The test is practicability under the circumstances, and that test has been met.

To require the Crown to go beyond that and to disprove the practicability of other options merely on the basis that those other options might have produced results more quickly, is an unnecessary and unrealistic burden to impose on the Crown. As long as there is cogent evidence indicating that the conduct of the police was reasonable under the circumstances, the Crown has not obligation to prove in addition, that other options were less reasonable.

This reasoning is quite apropos and lends itself directly to the merits of the contention in this case that additional testing capacity should have been operational that morning. In essence, the argument of Mr. Myrick’s counsel, which maintains that the employment of all available resources was necessary before the samples could be regarded as taken “as soon as practicable”, is tantamount to relating the statutory time pre-requisite to possibility rather than practicality.

That standard, as already explained, has not been imported into the prescribed legal pre-requisite to the use of the sample readings as proof of the concentration of alcohol in the blood of an accused at the time of commission of the alleged offence. This is why agreement must be voiced with Samorodny ’s depicting as unacceptable a Crown burden of disproving the practicality of other options which might show the process could have been more quickly completed.

All that is needed, therefore, is cogent evidence of reasonable diligence by the police and of the absence of any inordinate delay in the taking of samples as soon as reasonably practical in the prevailing circumstances. As Taliano, J., asserts in Samarodny , “the Crown has no obligation to prove in addition, that other options were less reasonable”. It may well be that other technicians were occupied with law enforcement duties that night who could have operated other machinery.

To extend the inquiry to whether it was reasonable for such personnel to be engaged in breathalyzer testing, instead of the duties to which they were assigned, would be unreasonable and impose an unrealistic burden upon the Crown. As Crown counsel asserts it would involve an assessment of the deployment of resources by management which, as the trial judge indicates, must be deemed outside of the intent of the legislation. For these reasons, therefore, the premise advanced by Mr.

Myrick’s counsel that the condition of breath samples being taken “as soon as practicable” in s. 258(1) (c)(ii) cannot be addressed independently of additional potential testing capacity, not then in operation, must be rejected. Such a proposition extends the inquiry beyond the limits envisaged by the legislation. The trial judge made no error in this respect when he observed that requiring the court to inquire into how many technicians and instruments were available would be outside the section’s purview.

Neither did the judge err in his ultimate conclusion that in the circumstances of this case these samples were taken “as soon as practicable”. The foregoing analysis shows that he properly applied the law to the circumstances and agreement must be voiced with the Crown’s contention that the appropriate test was applied. [ 34 ] In Burwell , the accused was detained in a rural area for an impaired driving investigation shortly before midnight.

After he failed the roadside test, the officer called the closest police detachment to conduct the breathalyzer test, but the detachment was closed and no one was available to let him in to do the testing himself, so he had to drive to Saskatoon. On arriving, there was no breathalyzer technician on duty, so the officer had to conduct the test himself. As he prepared the machine, he determined that the solution was out of date, so he had to change it.

As a result of these delays, the first breath sample was taken over an hour after the accused was first detained. [ 35 ] In Burwell , the trial judge found that the samples were not taken as soon as practicable because there was no evidence on which to find that the delays were for a valid reason. In his view, this was because the Crown failed to provide evidence of a valid reason for the closer detachment being closed with no staff on call or for the Saskatoon detachment not having a breathalyzer technician available and the machine ready to go. The

summary conviction appeal judge set aside the acquittal and substituted a conviction on the basis that the standard applied by the trial judge was that of “as soon as possible” because of the possibility that the test could have been administered earlier if police resources had been organized differently, rather than “as soon as practicable”. He found that the breath samples were taken as soon as practicable and he convicted the accused.

[36] Klebuc and Ottenbreit JJA agreed with the appeal judge. Ottenbreit JA, writing for himself, stated (at para 140): In such a case, where the actions of the officer are not in themselves unreasonable and the first sample is taken without pushing thetwo-hour limit, it was not necessary for the Crown to explain why the Delisle detachment was unavailable or why there was no onetasked at that time to keep the solution current.

To require the Crown to address this issue in the context of this case wrongly elevatesthe onus on the Crown to what may be described as the “as soon as possible” standard. [37] In effect, both majority decisions indicated that, in the absence of a concern that an unreasonable amount of time wastaken due to the implementation of a police policy or because of the way the police force is organized, the Crown is not required topresent evidence to explain the reason for the organization or the choice of one policy over another.

Jackson JA, in dissent, was of theview, not shared by the majority, that the length of the delay in the facts of the case called for an explanation, which was not provided. As a result, she concluded that the trial judge did not err in law in finding that the breath samples were not taken as soon as practicable. [38] In Carey, the first breath sample was not taken until approximately 1 hour and 50 minutes after the accused’s caraccident.

The delay was explained by the fact that the police arrived at the scene approximately an hour and ten minutes after theaccident because it was a busy night and because the initial call did not mention that alcohol was involved. The trial judge accepted theexplanation, indicating that the Crown did not have to explain further the reason for the delay. Juriansz JA quoted the

summaryconviction appeal judge, who held that the explanation that “we were busy that night” was not a sufficient explanation, stating (at para8): If, as, (was) held by the Court of Appeal in Letford, the real reason behind the delay lies in police unavailability then the Crownhas to show the way in which the police are organized and why they are organized that way as part of an obligation to explain why thedelay is reasonable. [39] The Ontario Court of Appeal held that the

summary conviction appeal judge misapplied Letford and erred in requiringthe Crown to produce additional evidence regarding how the police were organized.

In addition to reiterating the comments ofRosenberg JA in Vanderbruggen relating to the breath-sample provisions being interpreted reasonably in a manner consistent withParliament’s purpose of facilitating the use of breath-test evidence, Juriansz JA, for the Court, also stated (at paras 15-16): . . . [T]he basic question for the court in this case, as it was in Letford, is whether, in all the circumstances, the Crown hasdemonstrated that the breath samples were taken as soon as practicable.

Letford stands for the proposition that the Crown may meet theburden by calling evidence of police organization but need not do so if other evidence is sufficient. In my view, the arresting officer’s testimony that it was a busy night and that other calls were waiting coupled with the fact thatthere had been no suggestion in the initial call that alcohol might have been involved in the accident was capable of supporting a findingthat the delayed police arrival was reasonable in the circumstances.

It was unnecessary for the Crown to call a senior officer from thedetachment or the dispatcher on duty to explain how the police were deployed to the various patrol areas or to provide details about whatother calls occupied the police that night. . . . [emphasis added] [40] Other appellate decisions dealing with police policies and procedures or resource allocations that delay the taking of thebreath samples are: Phillips; R v Hafermehl (1993), 50 MVR (2d) 78 (Alta CA); R v Wetzel (DB), 2013 SKCA 143, 427 SaskR 261;Clarke; R v Konechny (1989), (SK CA), 75 SaskR 145 (CA); R v Mudry (1979), 1979 ABCA 286 , 19 AR379 (CA); Cander; R v Carruthers (1982), 15 MVR 143 (BC CA); Burbidge; Pearce; and Noftall v R (1982), 17 MVR 108 (Nfld DistCt), aff’d on this point (1982), 39 Nfld & PEIR 174 (Nfld CA).

In none of these cases was it argued that further evidence was requiredto explain why the police did not have additional resources or personnel at hand to either perform the breathalyzer tests or to take overthe other investigations. [41] There are many lower court decisions on this issue that have come to contradictory conclusions on the Crown’sobligation to explain police policies and procedures.

The appellate decisions, however, establish that some delay caused by a policeforce’s allocation of resources or the manner in which the police force is organized will generally be considered reasonable if theallocation of police resources or the organization of the police service is itself reasonable in light of the two-hour time limit for taking thefirst sample and all of the other circumstances. Further, if that is the case, a reasonable amount of delay caused by following thosepolicies or procedures will generally be acceptable.

In those circumstances, no further evidence will be required by the Crown to explainwhy the police force’s resources were not allocated in a different way, why the police were not organized in a different way or why a

different policy was not adopted. The appellate courts have concluded that requiring such explanations would elevate the standard from one of “as soon as practicable” to one of “as soon as possible”. Additional explanations would thus only be required if the police force’s resource allocation, policy or procedures appear unreasonable to the trial judge in the circumstances of the case. (

v) Application to the Facts [ 42 ] When determining whether the breath test was administered as soon as practicable, one starts by looking at the entire series of events. In this case, the RCMP officer explained what occurred from the moment that the accused first came to the attention of the authorities, through the administration of the breathalyzer tests and until the accused was driven to his home in Carman, following his arrest and release. There were no unexplained delays at all. The process up until the first breathalyzer test took 1 hour and 45 minutes.

While this is close to the two-hour limit in subsection 258(1) (c)(ii), it is within that time frame. [ 43 ] The appeal judge stated that he was unable to determine whether the decision to conduct the breathalyzer tests in Carman was reasonable because the Crown did not lead any evidence to explain the RCMP policy to take the accused to Carman instead of asking for assistance from the police in Winkler. That decision must be considered in the context of the evidence and circumstances of the case. What was the evidence regarding the RCMP officer’s decision?

The RCMP officer had no information as to whether a breathalyzer technician would be available in either Winkler or Morden. Further, he said that the RCMP does not work with the local police forces except in an emergency, so there are no regular channels of communication for regular police work.

What he did know, without having to make any inquiries, was that there was a breathalyzer and a technician available in Carman and that he could get the accused to that location from Winkler in 25 minutes. [ 44 ] Was it reasonable to expect the officer to attempt to have the breathalyzer tests done at either Winkler or Morden? Given that both are small communities and the equipment belonged to the local police forces, it was questionable whether a breathalyzer technician would be at the station at 10:30 p.m. on a weeknight.

Thus, the officer would have had to call around to locate a technician and, if one could be found, determine whether he or she was available to do the tests and, if so, whether it could be done there more quickly than going elsewhere.

Requiring the officer to make those inquiries may have reduced the time taken to administer the tests, but, depending on the results of those inquiries, it could also have extended the time, perhaps beyond the two-hour limit because, if unsuccessful, he would then have been required to take the accused to Carman. [ 45 ] Involving different police forces introduces a larger set of complexities as there are issues of different work and equipment standards, the availability of the breathalyzer technician to attend court, if necessary, and scheduling to accommodate work from other police forces, to name a few.

I agree with the Crown that the consequences of requiring officers from one police force to consult other forces would add complexity to the process and risk increasing, rather than decreasing, the delay. [ 46 ] I am of the view that, in the circumstances of this case, especially the rural location and the time of day, the actions of the RCMP officer were reasonable. While it is possible that the breathalyzer tests could have been administered sooner at Winkler or Morden, that is far from certain and attempting to do so could well have been unsuccessful, leading to an even longer delay.

The effect of the appeal judge’s requirement that the Crown lead evidence to explain why it would not have been reasonable to request the assistance of the Winkler police force is to have the Crown explain why the tests could not be carried out as soon as possible, which is the wrong test. [ 47 ] This finding is in keeping with that of Taliano J in R v Samorodny (1993), 44 MVR (2d) 19 , being that it is an unnecessary and unrealistic burden on the Crown to require that it disprove the practicality of other options merely on the basis that those options might have produced results more quickly (see para 33 herein).

When considering whether a breathalyzer test has been administered within a reasonably prompt time, it is important to keep in mind the purpose of these provisions, being “to expedite trials and aid in proof of the suspect’s blood-alcohol level,” such that they “should not be interpreted so as to require an exact accounting of every moment in the chronology.” Further, “[t]hese provisions must be interpreted reasonably in a manner that is consistent with Parliament’s purpose in facilitating the use of this reliable evidence.” (See para 27 herein.) [ 48 ] The facts of this case are strikingly similar to those in Prestupa .

In that case, an RCMP officer chose to take the accused to his home detachment, where he knew the equipment and a technician were available, instead of calling closer detachments to inquire about the availability of equipment and technicians at those locations. The trial judge found that the breathalyzer tests had not been conducted as soon as practicable and acquitted the accused. The

summary conviction appeal court overturned the acquittal and entered a conviction, which was upheld by the Court of Appeal. Ottenbreit JA, for the Court, stated (at paras 19-20): The trial judge erred by requiring the constable to inquire outside of his detachment area whether a breath machine was accessible and calibrated on the basis that there was a possibility that the tests might have been taken sooner. . . .

Evidence of the possibility of breath machines or technicians closer than the one chosen by an officer or the failure of an officer to inquire about that possibility, without more, is not determinative that the breath tests were not done as soon as practicable. The test, “as soon as practicable,” is not honed to such a fine point. The test is grounded in common sense.

In the circumstances of this case, the trial judge’s conclusion that the constable acted unreasonably by failing to inquire about the possibility of taking breath samples in Lanigan or in Watrous was the product of an error in law; namely, her misapprehension of the “as soon as practicable” test and her application of the “as soon as possible” test. [ 49 ] In my view, the trial judge in this case made no error when she found that there was no delay, which I take to mean no unreasonable delay.

Further, I do not agree that she reversed the burden of proof by stating that there was no evidence that a technician was available. She was required to look at all of the circumstances of the case, and that was one of them. Similarly, in Prestupa , Ottenbreit JA noted, as part of the facts, that there was no evidence that any of the suggested detachments were staffed or had qualified technicians on the night in question (see para 6).

[ 50 ] As stated above, I am of the view that the appeal judge erred by applying the wrong test when he stated that the Crown was required to explain why it was not reasonable to request the assistance of the Winkler police force because that is asking why the breathalyzer test was not carried out as soon as possible rather than determining whether it was carried out as soon as practicable. [ 51 ] When one applies the “as soon as practicable” standard to the facts in this case, it is clear that the breath tests were carried out reasonably promptly and, therefore, as soon as practicable in the circumstances, consistent with the decision of the trial judge.

IV. THE SECOND GROUND: THE AVAILABILITY OF THE PRESUMPTION OF IDENTITY IN SUBSECTION 258(1)(c) (ii) OF THE CRIMINAL CODE [ 52 ] Given my finding that the breathalyzer tests were carried out as soon as practicable, the presumption of the blood-alcohol level under subsection 258(1) (c)(ii) applies and it is not necessary to consider the second ground of appeal. Declining to deal with the second ground of appeal is made more compelling in this case because it is being raised for the first time on appeal and there is no decision by a lower court for this Court to review.

This Court would be making its decision as a matter of first instance, which is something that is, and should remain, a rare occurrence. V. CONCLUSION [ 53 ] For these reasons, I would grant the Crown’s appeal, set aside the acquittal by the appeal judge and confirm the conviction by the trial judge. JA I agree: JA I agree: JA