R. v. Darrah, 2016 NSSC 187

SUPREME COURT OF Nova Scotia Citation: R. v. Darrah , 2016 NSSC 187 Date: 20160720 Docket: Hfx No. 437115 Registry: Halifax Between: Her Majesty the Queen Appellant v. Thomas Earl Darrah Respondent Decision Judge: The Honourable Justice Gerald R.P. Moir Heard: September 23, 2015 and February 12, 2016, in Halifax, Nova Scotia Counsel: Richard Miller, for the Appellant Mark T. Knox, Q.C., for the Respondent Introduction [ 1 ] One night five years ago, Mr. Darrah drove his ATV deep into the woods next to this home in Hubley. A mechanical failure made the ATV inoperable. Mr.

Darrah met up with other ATV enthusiasts and, thinking he would spend the night with them, had drinks. The group became unpleasant. [ 2 ] Mr. Darrah got a tow several kilometers towards his home. He pushed his ATV another two kilometers to the entrance of the trail he had followed, arriving there just before two in the morning. He met a police officer. [ 3 ] Last year, Her Honour Judge Barbara Beach acquitted Mr. Darrah on charges of impaired driving and driving while over .08. She found the ATV was inoperable when Mr. Darrah started drinking and afterwards.

He was in care and control during the tow, but that happened outside the period for administering the breathalyzer under s. 258 of the Criminal Code . He was not in care or control under s. 253(1)(a), impaired driving, or s. 253(1)(b), driving over .08, when he pushed the inoperable ATV the last two kilometers. [ 4 ] The Crown appeals. It takes issue with some of the judge’s fact-finding, but the main grounds are that she erred “in her

interpretation of what constitutes ‘care and control of a motor vehicle’” and she “erred in law in her application of the facts as to what constitutes the taking of blood samples ‘as soon as practicable’ under

section 258”. Standard of Review

[5] The first ground takes issue with the judge’s application of legal principles to the facts. It is to be reviewed for correctness onlyto the extent that “the decision can be traced to a wrong principle of law”: R. v. Grouse 2004 NSCA 108 at para. 44. See also, R. v. C.E.2009 NSCA 79 at paras. 30, 31, and 35. “Whether the samples were taken as soon as practicable in this case was an issue of fact for thetrial judge.”: R. v. Vanderbruggen, (ON CA), [2006] O.J. No. 1138 (C.A.) at para. 14.

So, the second ground requiresa review for correctness only on the Crown’s argument that the reasons on this point are premised on a wrong principle of law. In allother respects, the reasons are to be reviewed on the standard of palpable and overriding error: Grouse, para. 44. Findings on Credibility [6] The police officer who met Mr. Darrah on his return to the trail entrance was Constable Isabelle Jacques. The Crown alsocalled Constable Cory Smith, who assisted later in the arrest and search of Mr.

Darrah, and Constable Cory Ford, who was qualified asan automotive technician capable of giving opinion evidence on the service, repair, maintenance, and operation of small engines. [7] Mr. Darrah elected to call evidence. The defence called Mr. Darrah, his mother, and Mr. Scott Alexander, who was qualifiedas an expert in small engine diagnosis and repair. [8] Judge Beach found that Mr. Darrah “presented his evidence in a candid and credible manner throughout”. She also said, “I findMr. Darrah’s evidence reliable”.

In addition to those general findings on credibility, she specifically adopted various important parts ofhis testimony. [9] The judge had “some difficulty accepting the evidence of Constable Jacques”. In addition to that general reservation, the judgespecifically rejected important parts of Constable Jacques’ testimony. Findings of Fact [10] Judge Beach heard witnesses on November 8, 2012, June 19, 2013, December 10, 2013, February 17, 2014, and April 17, 2014.She set dates for final submissions, and delivered an extensive oral decision last year. [11] The trial judge characterized Mr.

Darrah’s evidence on inoperability this way: In his evidence, Mr. Darrah stated that he attempted to restart the vehicle but the engine would not turn over, nor did it make any sound.According to Mr. Darrah, he also attempted to use the backup starting mechanism, a pull start, but that also did not work. He wasadamant in his testimony that after his engine unexpectedly and inexplicably shut off it did not start again. Further, he stated he did notknow what was wrong with the ATV at the time. [12] The trial judge accepted Mr.

Darrah’s evidence that his inoperable ATV was towed for about an hour, during which time “heused the handlebars and brakes to steer the ATV”, assisting the tow. Eventually, the towing driver went his separate way and Mr. Darrah“began pushing his ATV towards his home which was less than two kilometers away”. The judge found Mr. Darrah was in care orcontrol of his ATV during the period of the tow. [13] The second period began about one o’clock in the morning. The trial judge accepted Mr.

Darrah’s testimony that he pushed theinoperable ATV in freezing rain along the trail towards his home, less than two kilometers away. She quoted from his testimony: At approximately 1:00 a.m., according to Mr. Darrah’s evidence, he began pushing his ATV toward his home, less than two kilometersaway (page 22, December 10, 2013). Mr. Darrah was certain that there was freezing rain at that time and said that he took a few breaksfrom pushing the ATV along the way. Mr. Darrah testified that as he pushed the four-wheeler toward Silver Birch Drive he noticed a police car coming down St.

Margaret’sBay Road toward Bridgewater. In his testimony, he described a gate at the front of the trail, about 15 or 20 feet in from the edge of theroad. Mr. Darrah said: I came to a stop as soon as I came through the gate and sat down on the four-wheeler with the lights on the whole time…The RCMPofficer stopped perpendicular to me and just sat there for at least 30 seconds, and I assumed that they were going to ask me a fewquestions. So I patiently waited for them, and my high beams were facing the passenger window. This happened about 1:45 a.m. [14] The trial judge made the following findings: Mr.

Darrah’s testimony was that he had no intention to set the vehicle in motion because it had broken down. Furthermore, Mr. Darrahgave testimony in court that he was pushing the ATV when he saw the police cruiser pull up and was not driving the ATV as suggestedby Constable Jacques. At that time Mr. Darrah took a break and sat on his ATV. I am satisfied that his purpose in sitting in the driver’sseat was not to put the vehicle in motion but to rest. I also find it relevant that the vehicle in question is an ATV and not a car, and Mr.Darrah did not have a passenger or back seat to sit on.

As stated earlier, I find Mr. Darrah’s evidence reliable.

[15] The Crown takes issue with Judge Beach’s findings on operability and pushing. I will return to the facts and evidence on thesesubjects when I dispose of that ground of appeal. [16] Here is the timeline that appears from the police records: 1:45 a.m. Mr. Darrah observes the police cruiser and Constable Jacques observes him seated on his ATV. Constable Jacques demanded a drivers license. She smelled alcohol. Mr. Darrah admitted drinking, but said he had been pushing theATV home. 2:05 a.m. Constable Jacques arrested Mr. Darrah. In the meantime, he had not been free to go. 2:15 or 2:20 a.m.

Responding to Constable Jacques’ request, Constable Smith arrived on the scene and searched Mr. Darrah. 2:38 a.m. With Mr. Darrah secured in the cruiser, Constable Jacques left for the detachment office. 2:46 a.m. They arrived there. 3:11 a.m. Mr. Darrah consulted counsel. 3:20 a.m. The consultation ended. 3:40 a.m. The first sample was taken. It produced a 1.1 reading. 4:01 a.m. The second sample was taken, 1.0. Trial Judge’s Reasoning on Care or Control [17] Judge Beach recognized two issues “whether Mr.

Darrah had care or control of the ATV” and “whether the breath samples weretaken as soon as practicable under section 258(1)(c)(ii)”. We will look first at her reasons on care or control. [18] The judge began by reviewing numerous authorities on the subject. She adopted the

summary in R. v. Minhas, [2013] O.J. No.4675, including paras. 37 and 38: 37 An intention to drive the vehicle is not an essential element of the offence of "care or control": Ford v. The Queen, (SCC), [1982] 1 S.C.R. 231, at pp. 248-49. It is, however, part of the conduct of the accused that is relevant to the determination ofwhether that conduct in relation to the motor vehicle had created a risk of danger: R v. Ruest, [2009] O.J.

No. 5108 (C.A.). 38 The phrase "care or control" signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whoseability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, asopposed to a remote possibility, of danger to persons or property. The risk of danger (as opposed to the intention to drive) is an essentialelement of the care or control offence: R. v. Boudreault, 2012 SCC 56 , [2012] S.C.J. No. 56 (S.C.C.). [19] She also followed R. v. Mallery, [2008] N.B.J.

No. 72, at para. 52 where one finds a helpful sketch of the law for deciding acare or control issue: …the ultimate task of the trial judge is to decide whether the Crown has met the burden of establishing beyond a reasonable doubt thatthe accused's interaction with his or her vehicle presented a danger or, as it is sometimes phrased, a "risk of danger" or a "risk to publicsafety".

If the facts establish beyond a reasonable doubt a risk of the accused putting the vehicle in motion, either intentionally orunintentionally, or if the facts otherwise support a finding of danger (such as from parking one's car in the middle of a public

thoroughfare), then care or control will have been established. Obviously, this is a general framework. While an intention to drive (to putthe vehicle in motion) is not an essential element of the offence, if proven a conviction may follow. In that regard, the Crown has theoption of invoking the presumption set out in s. 258(1)(

a) of the Criminal Code. If it is established that the accused occupied the driver'sseat, the onus falls on the accused to show that, on a balance of probabilities, it was not for the purpose of setting the vehicle in motion.An accused who fails to rebut the presumption will be deemed to have had care or control of the vehicle and, subject to any otherdefences, a conviction will follow... In applying this general framework, the trial judge must have regard to all of the surroundingcircumstances leading up to the intervention, typically by the police.

Above all else, it is impermissible for the trial judge to isolatecertain facts and to deem those facts sufficient for purposes of establishing a risk to public safety. [20] Her findings about inoperability, pushing until the RCMP cruiser appeared, sitting on the ATV for rest rather than motion, thenature of the vehicle, and the absence of a passenger seat led Judge Beach to conclude, “Mr. Darrah’s evidence given at trial rebuts thepresumption in s. 258(1)(

a) of care or control” except “Evidence showing a risk of danger arising from the impaired accused’sinteraction with the motor vehicle may establish care or control”. Therefore, she embarked on a “Risk of Danger Analysis”. [21] The trial judge began by referring to R. v. Boudreault, 2012 SCC 56 , [2012] S.C.J. No. 56 and said “Parliament’sobjective in enacting

section 253 of the Criminal Code was to prevent a risk of danger to public safety”.

And, “…conduct presenting nosuch risk falls outside the intended reach of the offence…”. [22] The judge referred to three categories for the assessment of the risk: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to person or property. [23] After reviewing further case law and concluding “each case is dependent on its own facts to determine care or control”, the trialjudge provided her “analysis of the risk of danger in the present case”.

It reads: I have found that the evidence presented at trial by Mr. Darrah supports the finding that the ATV was inoperable. While the section258(1)(

a) presumption still applies whether or not the vehicle is inoperable, Mr. Darrah has already rebutted the presumption that heoccupied the driver’s seat with the intention to drive. Mr. Darrah was awake and alert when he was pushing the ATV and when Constable Jacques encountered him and showed no signs ofimpairment with respect to his movements. Where an accused has not yet arrived at his destination the courts generally find there to be an increased risk. However, the distinctivefacts in this case must be considered when weighing risk: Mr.

Darrah only had a very short distance to push the vehicle to his destination,and could not operate the broken ATV. Mr. Darrah had his lights on, which would have made him more visible and reduced risk. While leaving the lights on could be anindication of higher risk, in this case the lights were essential to reducing risk on an unlit trail. The lights were being used as tools forvisibility rather than aiding in the operation of the ATV.

The presence of keys in the ignition has been seen as a high risk factor in somecases, but the facts presented in this case indicate that the keys were used to reduce the risk by allowing Mr. Darrah to use his lights. While Mr. Darrah pushed his vehicle along the trail the evidence does not suggest that there were any other individuals on the trail whomay have been at risk; the vehicle was not on the road; Mr. Darrah had his lights on; it was his intention to push the ATV home; the roadto his house was not a busy road; and Mr. Darrah had experience pushing his ATV. Finally, there was no risk that Mr.

Darrah wouldhave changed his mind to drive the ATV because it was inoperable. Mr. Darrah’s readings from the breathalyzer test were low. Mr. Darrah’s ATV was not on a busy highway or on the road. It was 10-15 metres from the road on the “Rails to Trails.” Furthermore,the trail was not open to the public at that time, and there was no evidence to suggest the road was busy where it intersected with thetrail.

There was little to no risk that Mr. Darrah could have unintentionally set the ATV in motion, given the ATV was inoperable, did not rollunless pushed, and the surface was flat. I believe that in this situation the type of vehicle is also a relevant factor. Most of the vehiclesreferenced in the cases are cars or trucks. The nature of the vehicle involved is an important consideration when assessing possible risk.The vehicle in questions was an ATV, weighing only a few hundred pounds. Relative to a car or truck, an ATV would cause less damagedue to its smaller size.

In addressing overall risk, this is an important consideration. The ATV could not move, except manually, becauseit was broken; if it did move as a result of Mr. Darrah pushing it, the risk is insignificant because of the speed at which it was moving,and the risk of the ATV moving on its own is little to no risk. [24] The trial judge quoted again from Boudreault, then framed her conclusion.

The quotation reads: A realistic risk is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference wherethe Crown established impairment and a present ability to set the vehicle in motion. To avoid conviction the accused will in practice facea tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particularcircumstance of the case.

The conclusion reads: I am satisfied by the evidence given at trial, on a balance of probabilities, that the risk was low enough that it did not amount to care orcontrol and Mr. Darrah was not in actual care or control of the ATV as contemplated by the

section of the Code when Constable Jacquesencountered him.

Trial Judge’s Reasons on “As Soon as Practicable” [25] The trial judge started with the general proposition that “Section 258(1)(c)(ii) of the Criminal Code provides a presumption, infavour of the Crown, proving the accused’s blood alcohol level at the time.” She then reviewed authorities on the time limits attached tothe presumption, and pointed out that the breath tests must: (1) be performed “as soon as practicable” after the offence was alleged to be committed, and in addition, (2) the first breath sample must be taken within two (2) hours of the alleged offence. Referring to R. v. Davidson, [2005] O.J.

No. 3474 (S.C.J.), Judge Beach pointed out that the two hour limit is independent of the “as soonas practicable” limit. [26] The judge referred to authorities on the meaning of “as soon as practicable”: R. v. Vanderbruggen, (ON CA),[2006] O.J. No. 1138 (C.A.), R. v. MacInnis, 2003 NSPC 63, a decision of Judge Tufts, and R. v. Thorburn, 2001 NSPC 3, a decision ofJudge Castor Williams. [27] The trial judge reviewed the submissions of the Crown and the defence on this subject. She identified four periods of delay.The first was “A 20-minute delay between the time Mr.

Darrah encountered the police officer… and when he was arrested.” The judgesaid: The Crown argued that this is an irrelevant delay because care and control continued until the time of arrest. As I have stated earlier, thevehicle was inoperable. Therefore, Mr. Darrah was not in care and control of the vehicle at that time. The delay is therefore a relevantconsideration. The Crown submitted no further evidence on why this was a reasonable delay. From the facts I know that ConstableJacques asked for and received Mr.

Darrah’s license and registration, and that Constable Jacques got out of her vehicle and inspected theATV. The 20-minute delay between the times Mr. Darrah encountered the officer and his arrest is an unreasonable delay. Twenty minutes is along delay. There was not enough explanation for the delay and I cannot conclude it to be reasonable. [28] Next there was “A further 12-minute delay while Constable Jacques waited for Constable Ford to arrive.” The judge found itwas a reasonable delay. [29] Thirdly, “A further delay between the time Constable Ford arrived and when Mr.

Darrah and Constable Jacques left for thedetachment.” The judge found that this was a twenty-three minute delay. The Crown submitted this was a reasonable delay for theofficer to conduct a search. The judge did not agree. She found that the delay had been “long for the brief pat-down search required”. [30] The Crown also argued that the delay was justified by a need to take time to secure the vehicle, which included waiting for Mr.Darrah’s mother who would store it at their nearby home. Here is what the judge had to say about that argument:

The Crown argued that along with the search Constable [Smith] also had to wait to secure Mr. Darrah’s vehicle. Courts have found a delay associated with waiting to remove a vehicle from the roadside (a 22-minute delay) to be reasonable and part of the officer’s duty. Similarly, a delay of 26 minutes while waiting for a tow truck at the roadside was found to be reasonable given the liability for the abandoned car and safety concerns.

Finally, it has been found to be reasonable for an officer to wait for the tow truck when the second officer who was at the scene is directed to another incident and not available to wait for the tow truck. R. v. Davison , [2001] N.S.J. No. 605 (Prov. Ct.) ; R. v. Otto , [2000] O.J. No. 1854 at paras. 18-21 (S.C.J.) ; R. v. Crockford , [1998] O.J. No. 4474 at para. 6 (Gen. Div.) . Mr. Darrah’s ATV was not on the roadside, there was no tow truck to wait for, and there were three officers on the scene. Constable Jacques could have left with Mr.

Darrah while the other officers remained on site with the ATV while contacting Ms. Darrah. [ 31 ] A fourth delay, while Mr. Darrah and his mother attempted to contact counsel, was found to be reasonable. [ 32 ] Judge Beach reached the following conclusion on “as soon as practicable”: Delays must be assessed in light of the unique set of facts in each case. In reviewing and assessing the facts of each case, I have also considered that these events occurred in a rural setting, in an unlit area, and late at night. From the time when Constable Jacques first encountered Mr.

Darrah and the time they arrived at the station almost an hour had lapsed. Some of the delays at issue can be understood as reasonable; however, the other delays that I highlighted were unreasonable in the circumstance of this case. The “as soon as practicable” requirement has not been met. [ 33 ] As a result, the judge acquitted Mr. Darrah on driving while over .08 and impaired driving. Presumption Where Accused Occupies Driver’s Seat [ 34 ] The Crown argues that the presumption in s. 258(1) (

a) of the Criminal Code applies. The applicable text in s. 258(1) (

a) creates this presumption: where it is proved that the accused occupied the seat… ordinarily occupied by a person who operates a motor vehicle… , the accused shall be deemed to have had the care or control of the vehicle , but with this exception: unless the accused establishes that the accused did not occupy that seat… for the purpose of setting the vehicle… in motion… . [ 35 ] The Crown says “the evidence clearly establishes that the accused was occupying the driver’s seat of the vehicle”. The trial judge found as a fact that Mr.

Darrah was in the driver’s seat, and she held that the first part of the presumption applied. The question for her was whether Mr. Darrah was within the exception. [ 36 ] The Crown argues: The Crown submits that the only way to rebut the presumption of care or control is to show that there was no intention to set the vehicle in motion, and it is clear from the evidence of Mr. Darrah that this was clearly his objective on this occasion. The Crown therefore submits that the accused is unable to rebut the presumption.

The Learned Trial Judge found that the accused rebutted the presumption because he was sitting on the driver’s seat to rest. With respect, a temporary pause in pushing the vehicle does not change the accused’s intent. And further: The Crown submits that this brief pause by the accused does not change his stated intention, no more than an impaired driver who comes to a temporary stop at a stop sign. At no point does the accused attempt to abandon his original intention of putting the vehicle in motion, which would be the only way to rebut the presumption.

The Crown submits that the Learned Trial Judge erred in deciding that the accused had rebutted the presumption of care or control. [ 37 ] The short answer is that the presumption is not triggered by an “intention of putting the vehicle in motion” but by occupying the seat and it is rebutted by showing a purpose in occupying the seat other than for setting the vehicle in motion. The argument advanced by the Crown requires us to bypass an essential element in the exception to the presumption.

It bypasses “for the purpose of” in “the accused did not occupy the seat… for the purpose of setting the vehicle… in motion”. Mr. Darrah’s intent to push the ATV before and after resting had nothing to do with his purpose in occupying the driver’s seat. [ 38 ] However, the Crown argues further that taking the seat just before exiting the trail was not the time for measuring Mr. Darrah’s purpose. “The presumption in s. 258(1) (

a) will apply if the accused initially occupied the vehicle for the purpose of putting the vehicle in motion.” “[T]he relevant time to determine the intention of the accused would be when he first occupied the driver’s seat, or in this case, when he left the cabin.” Apparently, it would make no difference that he was forced to leave the driver’s seat and to push the inoperable ATV two kilometers.

[39] (I do not see where this argument was advanced before Judge Beach.) [40] The Crown says its position is supported by R. v. Hudson, [1989] A.J. No. 227 (C.A.), R. v. Tidsbury, [1997] A.J. No. 1196, R.v. Hatfield, (ON CA), [1997] O.J. 1327 (C.A.), and R. v. Whyte, (SCC), [1988] 42 C.C.C. (3d) 97(S.C.C.). None of those cases involved an accused who moved out of the driver’s seat, let alone abandoned the driver’s seat. [41] The Crown says that it was artificial to divide the assessment into two periods, the one during which Mr.

Darrah was arrestedfor impaired driving and the other before the two hour cut-off for administration of breathalyzer tests. It alleges a failure to consider theevidence on a whole and cites R. v. Rudge, 2011 ONCA 791 (C.A.). Respectfully, this argument ignores an essential divide in the facts:abandoning the driver’s seat. [42] The presumption might have applied without possibility of rebuttal during the tow. However, that was in the past by almost anhour and two kilometers of pushing when Mr. Darrah sat on the seat again.

This time, to take advantage of the only useful purpose theseat could afford, rest. [43] The Crown’s argument ignores the nexus in s. 258(1)(

a) between “the accused occupied the seat” and “the accused shall bedeemed to have had care or control”. The occupying that matters is occupying at the time of the offence for which the accused wasarrested and subjected to breathalyzer tests. [44] There was no error in principle underlying Judge Beach’s reasoning about the presumption. The presumption was correctlyassessed as of when the accused occupied the driver’s seat at the time of his detention and arrest. Before that, it had been a long time anda long distance since the accused last sat in his ATV. Actual Care or Control and Risk [45] R. v.

Boudreault, 2012 SCC 56 , [2012] S.C.J. No. 56 established that a realistic risk of danger to persons or property isessential to the offence of care or control of a motor vehicle by an impaired person. The Crown refers to para. 41 of Boudreault andargues that Mr. Darrah’s pushing the inoperable ATV to the place where he rested and his intention to push the ATV from there to hisnearby home satisfies the requirement of a realistic risk of danger. [46] Justice Fish wrote for the majority in Boudreault.

The passage relied on by the Crown is at para. 41 of Justice Fish’s reasons.“A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger.” And he concluded, “Accordingly,an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control.”Taken literally, these words mean that an intention to push an inoperable ATV, or an inoperable electric two-wheel Segway for thatmatter, always constitutes a real risk of danger. [47] This is not what Boudreault stands for.

Taking what is said at para. 41 as immutable calls into question Justice Fish’s alternateexpressions for “set in motion”, such as “intention to drive” in para 42. When he speaks of immediacy at para. 46, “Anyone who isintoxicated and in a position to immediately set the vehicle in motion faces conviction on those facts alone.”, a running motor comes tomind. A literal reading of para. 41 seems to contradict para. 49, “The accused may escape conviction, for example, by adducingevidence that the motor vehicle was inoperable…”. [48] A drunken Mr.

Boudreault got into the driver’s seat of his pickup truck and turned on the engine to warm himself on a frigidnight in Jonquière, Québec. He waited for the taxi service that would safely take him home, safe from the dangers of drunk driving andsafe from freezing. The factual context included a pickup truck. Not the sort of thing a drunken person could push along a road withoutrisk. [49] The assessment of risk is highly circumstantial.

It depends on “the particular circumstances of the case” (para. 48). “Theexistence or not of a realistic risk of danger is a finding of fact…” (para. 50). [50] I agree with Judge Beach that the essential holding in Boudreault is that conduct proved by the accused not to present a realisticrisk of danger to public safety “falls outside the intended reach of the offence”. The Supreme Court did not create a categorical exceptionfor risk-free pushing.

To the contrary, “The nature of the vehicle involved is an important consideration when assessing possible risk.”,as Judge Beach said. [51] No error in principle underlays the trial judge’s reasoning on risk of danger. As Soon as Practicable [52] The main submission for the Crown on this issue begins: There is no requirement for the Crown to account for every moment, nor is the Crown obligated to take the sample as soon as possible.The issue is whether or not the police have acted reasonably in the circumstances.

This standard has been confirmed on many occasions.The trial judge should look at the evidence as a whole to determine whether or not the police were reasonably prompt under thecircumstances. It would be an error in law to undertake a microscopic analysis of different time periods instead of considering theevidence as a whole.

The Crown says that the trial judge “did undertake this microscopic analysis of four different time frames instead of considering theevidence as a whole.” This was “the wrong analysis”. “[W]hen all of the evidence, and the proper time period is analyzed, the policewould be seen as having acted reasonably prompt in the circumstances…”. [53] In support of its general statement of the law, the Crown refers extensively to R. v. Vanderbruggen, (ON

CA) , [2006] O.J. No. 1138 (C.A.). Mr. Darrah does not disagree with the principles stated in that case. He says the principles were properly applied. [ 54 ] “As soon as practicable” in s. 258(1) (

c) of the Criminal Code “means nothing more than that the tests were taken within a reasonably prompt time under the circumstances” (para. 12). [T]he 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. (para. 13) Furthermore, “… the Crown is obligated to demonstrate that… the breath samples were taken within a reasonably prompt time” (also, para. 13).

However, “there is no requirement that the Crown provide a detailed explanation of what occurred every minute that the accused is in custody.” (para. 13). [ 55 ] The appellant cited R. v. Daley , [2005] O.J. No. 1176 (C.J.) , but the statement of principle at para. 35 of that decision is too weighted by policy to be consistent with “means nothing more than that the tests were taken within a reasonably prompt time under the circumstances” in Vanderbruggen . [ 56 ] The appellant also relies on para. 14 of R. v. Dechamplain , [2001] O.J. No. 2293 (C.A.) .

The Crown need only prove reasonable diligence and the absence of inordinate delay. And, R. v. Papa , [2006] O.J. No. 1497 (S.C.J.) where a fourteen minute period lead to “A microscopic analysis of this short time period is not appropriate.” (para. 72).

And, it relies on other authorities that are consistent with Vanderbruggen . [ 57 ] Abandoning the pejorative “microscopic”, an analysis of various periods with their various reasons for slowing a process is essential in constitutional cases about speedy trial, civil cases when interim remedies are not followed by trial soon enough, and criminal cases about administration of breathalyzer tests. The decision under appeal shows a careful analysis of relevant periods and a careful assessment of reasonableness in reference to each. [ 58 ] The decision does not stop there.

After analyzing the time between detention and testing into four rationally distinct periods and providing findings about the reasonableness of delay in each, the trial judge expressed her conclusion as quoted above. The conclusion shows that she looked at “the whole chain of events” to decide whether “the tests were taken within a reasonably prompt time under the circumstances”. There is no error in principle underlying this assessment. Challenges to Findings of Fact [ 59 ] On care or control, the Crown argues that testimony of Constable Jacques “easily satisfies the elements of care and control” and that of Mr.

Darrah “clearly shows that he was in care or control”. I see no palpable and overriding error in the trial judge’s unfavourable assessment of Constable Jacques’ credibility or her assessment of Mr. Darrah’s testimony about care and control. In particular, she made no palpable error in concentrating her attention on the period after the tow when Mr.

Darrah pushed his ATV two kilometers towards his home. [ 60 ] On the presumption, “The Crown submits that the evidence clearly establishes that the accused was occupying the driver’s seat of the vehicle.” I have already commented on the notion that it was an error in principle not to extend the period for which the presumption applies back to when Mr. Darrah accepted a tow. No palpable and overriding error appears in the assessment of the testimony. [ 61 ] The Crown also takes issue with the trial judge’s findings on risk of danger. “Had Mr.

Darrah continued on… his stated course of action… he would have wound up in the middle of a residential street, without any lights, in the middle of a freezing snow storm.” As I said, the trial judge found the ATV was inoperable, “Mr. Darrah only had a very short distance to push the vehicle to his destination”, “Mr. Darrah had his lights on”, “the road to his house was not a busy road”, and so on. These findings are supported by the evidence and they ground her conclusion on risk. [ 62 ] The assertion that Mr. Darrah would have been “without any lights” requires that one reject Mr.

Darrah’s testimony on this subject, and Constable Jacques’ for that matter, and accept an opinion given by Mr. Darrah’s expert witness during cross-examination.

The expert said that the battery would burn out during the tow and the push, if the lights were on and the engine not functioning. [ 63 ] An opinion on how long a battery would last in an ATV when the engine was not running, but the ATV was being pushed in gear, seems remote from the notice of expert opinion evidence given by the defence to the Crown, which notice was the subject of discussion between counsel and the court when the expert’s area of qualification was being settled.

In any case, it was for the trial judge to determine how much of the expert’s evidence to accept, and she did not have to explain every step and turn taken in her assessment of the evidence. [ 64 ] The Crown also takes issue with the finding that the twenty minute delay between when Constable Jacques demanded Mr.

Darrah’s driver’s license and put him under arrest was unreasonable. “[T]o make such a finding is to impose an impossible standard on the police to obtain the samples prior to the police officer forming her reasonable and probable grounds to make the demand in the first place.” That was not the argument made at trial by the Crown. At trial it said that Mr. Darrah was in care or control the whole time, which was said to justify the twenty minute delay. [ 65 ] The evidence is that Constable Jacques called Mr. Darrah to her cruiser and demanded he pass her his driver’s license, vehicle

registration, and proof of insurance. He gave her the license and went back to the ATV to search for the other documentation. She followed him. He removed his helmet and she said “you’ve been drinking.” He admitted it, “so then I arrested him.” The police records show this took twenty minutes. Why it took so long is not explained. [ 66 ] The Crown also argues that the finding calls into question police policy about officers traveling alone and officers of the same sex as the suspect being called in to perform a personal search.

Respectfully, this argument confuses the first period with the second, in which Constable Jacques and Mr. Darrah waited for Constable Smith. That period was found to be reasonable. [ 67 ] There is no palpable and overriding error in the finding that the time it took to arrest Mr. Darrah was unreasonably long. [ 68 ] The Crown also takes issue with the finding that a further delay of twenty-three minutes to conduct the personal search and to move the ATV was unreasonable. It pointed out the duty police have to secure property. Respectfully, this argument ignores Judge Beach’s reasons.

The delay was “long for the brief pat-down search required”, and Constable Jacques could have taken Mr. Darrah to the detachment while Constable Smith secured the vehicle. [ 69 ] On inoperability, “the Crown submits that in any event it is the Crown evidence which is to be preferred.” Respectfully, the argument following that statement invites this court to retry the case and substitute my assessment of the evidence for that of the trial judge, including her findings on credibility. An appeal is not an opportunity to renovate the facts: R. v. C.E. cited above.

There was no palpable and overriding error in the trial judge’s assessment of the evidence on inoperability. Conclusion [ 70 ] There was no error in principle at the heart of Judge Beach’s application of facts and law on actual care or control, presumed care or control, or the requirement for testing as soon as practicable. To the extent that the Crown’s arguments attack findings of fact, a review at the standard of palpable and overriding error shows there are no grounds for interference. [ 71 ] Therefore, the appeal is dismissed. Moir, J.