R v Hunter, 2013 NSSC 389

Supreme Court of Nova Scotia Citation: R v Hunter , 2013 NSSC 389 Date: 2013-12-02 Docket: Ken No. 416329 Registry: Kentville Between: Her Majesty the Queen Appellant v. Amy Colleen Hunter Respondent Judge: The Honourable Justice Gregory M. Warner Heard: September 18, 2013, in Windsor, Nova Scotia Counsel: Jillian E. Fage , Crown Attorney David J. Bright, Q.C., for the Respondent Amy Colleen Hunter By the Court: [ 1 ] This is a

summary conviction appeal by the Crown from the acquittal of the Accused of charges pursuant to s. 253(1) (

a) and 253(1)(

b) of the Criminal Code : impaired driving and failing the breathalyser. The trial occurred on February 14, 2013. The trial judge rendered an oral decision on May 6, 2013. [ 2 ] The Crown’s sole ground of appeal is that the trial judge “misapplied the law to his finding of fact that a nine minute unexplained delay means that the breath tests were not taken as soon as practicable”. The Crown asks this

summary conviction appeal court (“SCAC”) to set aside the acquittal and order a new trial.

[3] The appeal is pursuant to s. 813 of the Criminal Code. Unless the SCAC orders otherwise, a

summary conviction appealis an appeal on the record (Section 821(3) CC). [4] On July 5, 2013, the Crown filed a transcript of the trial judge’s decision of May 6, 2013, but not of the evidence andcounsel’s submissions of February 14, 2013. No request was made to the SCAC to “otherwise order”, pursuant to s. 821(3), or for a trialde novo pursuant to s. 822(4). [5] By reason of Section 822(1), Section 686(4) applies. On an appeal from an acquittal, the appeal court may:

a) dismiss the appeal; or

b) allow the appeal, set aside the verdict and i. order a new trial; or ii. enter a verdict of guilty where, but for the error in law, the accused should have been found guilty. Standard of Review [6] In R v Nickerson, 1999 NSCA 168, Cromwell J.A. described the standard of review to be applied by a SCAC as follows: The scope of review of the trial court’s findings of fact by the

Summary Conviction Appeal Court is the same as on appeal againstconviction to the Court of Appeal in indictable offences: see sections 822(1) and 686(1)(a)(

i) and R v Gillis (1981), (NS CA), 60 C.C.C. (2d) 169 (N.S.S.C.A.D.) per Jones, J.A. at p. 176. Absent an error of law or a miscarriage of justice, the test to beapplied by the

Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported bythe evidence. As stated by the Supreme Court of Canada in R v Burns, (SCC), [1994] 1 S.C.R. 656 at 657, the appealcourt is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determining whether it isreasonably capable of supporting the trial judge’s conclusions. If it is, the

Summary Conviction Appeal Court is not entitled to substituteits view of the evidence for that of the trial judge. In short, a

summary conviction appeal on the record is an appeal; it is neither a simplereview to determine whether there was some evidence to support the trial judge’s conclusions nor a new trial on the transcript. [7] This description has been repeatedly endorsed by the Nova Scotia Court of Appeal; for example: R v RHL, 2008 NSCA100; R v Francis, 2011 NSCA 113; R v MacGregor, 2012 NSCA 18; and R v Prest, 2012 NSCA 45.

This standard of review wasrepeated, without reference to Nickerson, in R v Pottie, 2013 NSCA 68. [8] Where the alleged error involves the application of the law to the facts, the issue is one of mixed fact and law. [9] The responsibility of the SCAC is to review the evidence at trial, re-examine it and reweigh it, but only for the purposesof determining whether it is reasonably capable of supporting the trial judge’s conclusion.

Trial Judge’s Decision [10] The trial judge’s decision summarizes the evidence. [11] Early on May 26, 2012, two police officers were operating a check point for traffic moving in both directions on Highway 2in Elmsdale. The Accused stopped for one of the officers at 2:10 a.m. The officer noticed the usual signs of drinking: odor of liquor onbreath, slurred speech and blood shot eyes. The Accused acknowledged having consumed one drink. She swayed as she walked fromher vehicle to the police car.

She complied with an approved screening device demand at 2:16 a.m. [12] The officer retrieved the device from his trunk, warmed it up and the Accused provided a sample at 2:22 a.m. The deviceregistered a failure.

Between 2:25 and 2:27 a.m., the Accused was informed that she was charged with impaired driving and read thebreathalyser demand, the Charter warning as well as the police caution. [13] At 2:29 a.m., the officer was about to leave the check point for the Enfield Detachment with the Accused when a vehiclegoing in the opposite direction passed through the check point without stopping and nearly striking the other officer. [14] The officer with the Accused in the car “briefly” pursued but lost the other driver, then turned around, passing through thecheckpoint and driving to the Enfield Detachment, a distance of between 5 and 10 kilometers.

They arrived at the Detachment at 2:40a.m. “just 11 minutes after the officer began his brief, unsuccessful pursuit to the north”. At 2:42 a.m. Constable Underhill introduced [the Accused] to the officer who would conduct the breath tests. The first test was taken 24minutes later at 3:06 a.m. Apart from the test itself, there was no evidence of what transpired during that 24 minutes. [15] The evidence of the breathalyser test was introduced by certificate. The technician who performed the test was not presentat trial.

The readings were taken at 3:06 a.m. and 3:27 a.m. [16] The trial judge noted in his decision that at the start of the trial, the Accused’s counsel stated that the only issue as thedelay from the time of driving to the time that the first “blood [sic, breath] sample” was taken.

More specifically, the trial judge statedthat the argument of defence counsel at trial was that the officer’s pursuit of the vehicle with the unknown driver, which had not stoppedat the check point, was unnecessary and resulted in unreasonable delay. [17] The trial judge expressly rejected this submission in his decision, finding that it was the officer’s duty to pursue, and, that inany event, the pursuit only lasted two or three minutes. [18] The trial judge then held that the evidence of the physical condition of the Accused did not establish beyond a reasonable

doubt the impaired driving charge. [19] Respecting the breathalyser charge (s. 254(1)(b)), the trial judge then expressed concern about the unexplained 24 minuteperiod about which, he stated, there was no evidence at trial.

This was the period between the time the officer arrived at the detachmentand turned the Accused over to the technician at 2:40 a.m. and the first reading at 3:06 a.m. [20] The trial judge reviewed a number of cases he felt bound by, including: R v Trempe (NS SC), [1992],111 NSR (2d) 317 (NSCtyCt); R v Russell (NS SC), [1990], 98 NSR (2d) 33 (NSCtyCt); R v Laybolt (NS SC), [1993], 127 NSR (2d) 136 (NSSC); R v MacPhee (NS SC), [1991], 108 NSR (2d) 74 (NSCtyCt) andR v Cook (NS SC), [1994], 130 NSR (2d) 99 (NSSC). [21] From them he drew no clear conclusion as to whether this unexplained delay was unreasonable: some cases showed thirty-two minutes was unreasonable but eighteen or nineteen minutes was not. [22] Because counsel’s arguments before the trial judge on February 14 were not directed at the issue of the unexplained 24minutes at the detachment, the trial judge, partway through his decision, offered to receive further submissions.

Counsel declined anadjournment but made immediate submissions. Counsel for the Accused noted that a video tape made in the breathalyser room at therelevant time was available by the Crown and could have been produced, but was not. The onus was on the Crown to prove all theelements of the offence.

Crown counsel suggested that the Court could take judicial notice of the fifteen minute preparation time for thebreathalyser and that the nine additional unexplained minutes, was within the tolerance permitted because the total time from driving tothe first test was only 56 minutes. [23] The trial judge then resumed his decision. He expressed hesitation about taking judicial notice of a fifteen minute waitingperiod before the first test.

He acknowledged that this practice was well known to judges and lawyers, but judicial notice is not meant tobe taken respecting matters that few in the community (general public) would have knowledge. [24] He concluded: . . . the implication of these cases taken as a group is that when you . . . as soon as you get over 15 minutes of unexplained delay, youhave to start looking carefully. I think every minute that goes up, the Court has to be more likely to reach the conclusion that it’s too longa delay . . .

My feeling is that once you get upwards of 20 minutes, in this case when you get almost 25 minutes, that the delay is simplytoo long. It’s not keeping with what we usually hear. It’s certainly, to come back to the point, it’s definitely not in keeping with what weusually hear without an explanation. Not at all. And the point is somewhere between 19 minutes and 32 minutes.

In my view it hasbeen reached by the time you’ve reached 24 minutes and in my view, as a result of that, even though the total elapsed time was only 56minutes from stop till test, that does not give the authorities the right to say well, okay, in this case then we can relax the standard forwhat we do once we actually get going.

SCAC Submissions [25] The Crown argues that the trial judge should have, as in the cases he cited, taken judicial notice of the fifteen minute“observation period” before taking the first sample and between each sample, and that a further unexplained delay of nine minutes iswell below the threshold for finding that the test was not taken “as soon as practicable”.

In all of the cases cited by the trial judge, theunexplained delay exceeded nine minutes before a finding of inordinate delay was made. [26] The Crown refers the Court to the analysis of Justice Rosenberg of the Ontario Court of Appeal in R v Vanderbruggen, (ON CA), 2006 CarswellOnt 1759. [27] The Accused submits:

a) Whether the breath sample was taken as soon as practicable is a question of fact or mixed fact and law.

b) An appeal on a question of fact does not entitle this Court to reconsider the issue de novo. The standard of review in thiscase is palpable and overriding error.

c) The Crown is only relieved of the duty to produce expert evidence (that is, rely upon the certificate without calling thetechnician) if the Crown establishes that the sample was taken as soon as practicable pursuant to s. 258.

d) Several decisions in other courts have found unexplained delay for as few as twelve and twenty-two minutes to mean thatthe demand was not made as soon as practicable.

e) There is no rule of law that determines, essentially, the factual question.

f) The Crown’s argument that the Court can accept the practice of waiting fifteen minutes as reducing the unexplained delayto nine minutes ignores the Crown’s failure to account for any of the twenty-four minutes. The evidentiary burden is on the Crown toaccount for the delay. That evidentiary burden might be less onerous for shorter delays than longer delays.

g) The Crown knew at the beginning of the trial that the only issue was whether the test was taken as soon as practicable, andchose not to explain the delay, even though the officer who arrested the Accused was present at the detachment and a video existed,which could have been tendered to show what transpired in the breathalyser room between 2:40 a.m. and 3:06 a.m.

h) There is no legal requirement that a judge take judicial notice of the fifteen minute observation period before the first test. Any determination that the fifteen minute observation period was reasonable must be based on evidence. Whether to take judicial noticeof a fact in a particular matrix is a discretionary decision of the judge.

Analysis and Decision [ 28 ] The focus of the submissions by the Crown and the Accused are on:

a) whether the fact of twenty-four minutes of unexplained delay at the detachment before the first sample was taken could form the basis for a trial judge’s determination that the first test was not taken as soon as practicable; and,

b) whether the trial judge should take judicial notice of a fifteen minute observation period by a technician before the first test. [ 29 ] Based on the case law submitted by the parties, I am not prepared to find that twenty-four unexplained minutes at the detachment before the first sample is taken to mean, or should mean, in and of itself (that is, per se ) that the first breath sample was not taken as soon as practicable. [ 30 ] The analysis of the policy of the “as soon as practicable” provision in s. 258 of the Criminal Code made by Justice Rosenberg for the Ontario Court of Appeal in R v Vanderbruggen (a case where the accused unsuccessfully appealed a conviction despite a forty-six minute gap between his arrival at the detachment and being turned over to the technician), mitigates against an overly technical analysis.

At paras 12 to 16, the Ontario Court of Appeal writes: [12 ] That leaves the question that is at the heart of this appeal—the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. . . . There is no requirement that the tests be taken as soon as possible.

The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. . . . [13] In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind 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 “as soon as practicable” requirement must be applied with reason.

In particular, while the Crown is obligated to demonstrate that—in all the circumstances—the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. . . . [14] Whether the samples were taken as soon as practicable in this case was an issue of fact for the trial judge. . . .

In my view, the Crown adduced sufficient evidence before the trial judge from which he could conclude that the police acted reasonably and that the breath samples were taken as soon as practicable in all the circumstances. In this case, there was an approximate delay of one hour and fifteen minutes from the time of the offence to the taking of the first sample.

The following evidence was offered as explanation for this delay: time was taken in arresting the appellant, reading him his rights, transporting him to the station, waiting for the technician to arrive, searching the appellant, conveying the information as to the grounds for the breath demand and waiting for the technician to prepare the breathalyzer (Foley was “playing around” with the machine). There was no evidence that either the arresting officer or the technician acted unreasonably.

The record only shows that they were attentive to their duties and to the need to administer the tests to the appellant as soon as practicable.

There was no evidence that the officers gave unreasonable priority to any other task. [15] Given that there was sufficient evidence upon which the trial judge could conclude that the samples were taken as soon as practicable, the appellant has not shown that this court should disturb his finding. [16] To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect’s blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology.

We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament’s purpose in facilitating the use of this reliable evidence. [ 31 ] This appeal is an appeal on the record. [ 32 ] The Court did not order that the appeal proceed:

a) without a transcript of the trial evidence; or,

b) as a trial de novo . [ 33 ] The sole ground of appeal is that the trial judge misapplied the law to the facts. Without a transcript, the Court cannot review the factual basis of the trial judge’s decision. This Court cannot fulfill its function of reviewing the evidence for the purposes of applying the standard of review because of the absence of a full transcript of the trial, absent an order pursuant to s. 821(3) or 822(4). [ 34 ] The appeal is therefore dismissed. Warner, J.