R v Goodman, 2021 SKCA 78

Court of Appeal for Saskatchewan Docket: CACR3359 Citation: R v Goodman , 2021 SKCA 78 Date: 2021-05-19 Between: Randall Paul Goodman Applicant/Prospective Appellant (Appellant) And Her Majesty the Queen Respondent/Prospective Respondent (Respondent) Before: Ottenbreit, Barrington-Foote and Tholl JJ.A. Disposition: Leave to appeal granted; Appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr.

Justice Tholl On appeal from: 2020 SKQB 45 , Regina Appeal heard: October 20, 2020 Counsel: Mervin Nidesh, Q.C. for the Appellant Erin Bartsch for the Respondent Barrington-Foote J.A. I. INTRODUCTION [ 1 ] On February 15, 2018, Randall Goodman was convicted by a Provincial Court judge [Trial judge] of driving while his blood alcohol content exceeded the legal limit, contrary to s. 255(1) and 253(1) (

b) of the Criminal Code [ Trial Decision ]. On February 25, 2020, a judge of the Court of Queen’s Bench [Appeal judge] dismissed his conviction appeal [Appeal Decision]. Mr. Goodman seeks leave to appeal the Appeal Decision. [ 2 ] In his notice of appeal, Mr. Goodman alleged that the Appeal judge erred by failing to find that his rights pursuant to ss. 7 , 8 and 9 of the Canadian Charter of Rights and Freedoms had been violated, and by failing to exclude evidence of breath tests as a result of a breach of these rights and his s. 10(

a) Charter rights. He also alleged that the Appeal judge erred by finding that samples of his breath were taken as soon practicable as required by s. 254(3) (now s. 320.28(1)) and, as a result, erroneously found that the presumption specified in s. 258(1)(c) (now s. 320.31) applied. [ 3 ] I have concluded that the Appeal judge erred in finding that the breath samples were taken as soon as practicable. Accordingly, the s. 258(1)(

c) presumption did not apply and Mr. Goodman’s conviction must be set aside and an acquittal substituted. For that reason, it is not necessary to address his Charter arguments. II. BACKGROUND A. Trial Decision [ 4 ] The events that led to this conviction are now long past. Late on the evening of September 4, 2017, Mr. Goodman parked his truck in the parking lot of a bar in northwest Regina. A bystander saw him park, exit his car and enter the bar.

Regina Police Service Constables Fink and McDonald, who had been dispatched to respond to a report of a possible impaired driver who had been refused service by another bar in the area, arrived in the parking lot at 11:28 PM. They observed only two patrons. They approached Mr. Goodman, asked for his driver’s licence, and engaged him in a brief discussion. Observing indicia of impairment, they asked him to accompany them outside the bar. He went willingly. [ 5 ] Constable Fink, who was the lead investigator, concluded shortly after exiting the bar that he had reasonable grounds to believe Mr. Goodman was impaired.

At 11:33 PM, he arrested him, read him his rights to counsel, the approved instrument breath demand, and the police warning. Mr. Goodman handed over the keys to his truck and, at 11:34 PM, Constable Fink radioed for another police unit to assist in impounding it. He called again at 11:41 PM to check when the other unit would arrive and was advised it would be as soon as possible. The other unit finally arrived at 11:54 PM. It had been in southeast Regina when first called and was the only unit available to respond to Constable Fink’s call. Constables Fink and McDonald left with Mr.

Goodman at 11:55 PM, driving directly to the police station and arriving at 12:05 AM. Samples of Mr. Goodman’s breath were taken and his blood alcohol concentration was recorded on a certificate of qualified technician. [ 6 ] Constable Fink testified at the voir dire that he had no difficulty with Mr. Goodman, a “nice fellow” who was very cooperative from the outset. Mr. Goodman was then 65 years of age. The police vehicle had a silent patrolman, a protective device which separates the back and front seats.

It has a small window that can be opened. [ 7 ] Constable Fink nonetheless testified that for reasons of officer safety, he could not have left Constable McDonald with Mr. Goodman’s vehicle and taken Mr. Goodman to the police station on his own. More specifically, he said he had become aware of persons who were handcuffed and in the back seat having crawled through the silent patrolman window and escaped. He said he would not risk

his or his partner’s safety despite Mr. Goodman’s age and demeanour, and that he treated all detainees the same way. He also explained that the Goodman vehicle could not be left unattended, as the police might be liable for damages if anything was stolen or the vehicle was damaged. Further, he said that as Mr. Goodman had been arrested for impaired driving, the police were required by provincial law to impound the vehicle. [ 8 ] Constable McDonald testified that the usual procedure is to stay with one’s partner when they are conducting an investigation and arrest.

He agreed police officers sometimes work alone and are required to arrest people when doing so. It was his evidence the Goodman vehicle had to be impounded for SGI, as this was an impaired driving investigation.

In his experience, the wait for another police unit could be from 5 to 30 minutes, as there might be only one other unit available working on the other side of the city. [ 9 ] Neither officer testified that there were safety concerns with leaving one officer behind in the parking lot or the nearly empty bar to wait for the second police unit. [ 10 ] The Trial judge did not agree that impoundment was required by provincial law, noting that s. 148(3) (

c) of The Traffic Safety Act , SS 2004, c T-18.1 , provides for either impoundment or immobilization. However, he found “no fault in the police officers choosing to impound the vehicle” in this case, despite finding that immobilization may have been an option. He referred to the fact the police building was ten minutes away and, given that the vehicle was parked outside a bar at midnight, there was a possibility of something untoward happening to it.

He noted that the Regina Police Service was, as he put it, “applying additional resources to balance the need to impound and protect the vehicle with the obligation to conduct breath tests as soon as practicable. In brief, a resort to a second police unit is an organizational attempt to comply with the law and respect a detainee’s rights”. [ 11 ] The Trial judge concluded that the second police unit would have been expected to reach the scene within 12 minutes of being called and that, accordingly, the issue arose from the fact that it took 20 minutes rather than 12 minutes to arrive.

In his view, the issue was with the additional eight minutes that passed while awaiting its arrival. The Trial judge found it was reasonable for Constable Fink to wait for that additional eight minutes, as he had been told at 11:41 PM that the second unit was coming. [ 12 ] The Trial judge dealt next with the safety concerns identified by Constable Fink. He agreed with Mr. Goodman that his “age, stature, position in the vehicle, and demeanour made him an unlikely candidate to successfully use violence against the police officers or to attempt it”.

However, he also commented that “one must be very careful when assessing whether concerns related to officer safety should be discounted”, noting the evidence as to the resourcefulness of people detained in the back of police cars. The Trial judge then summarized his conclusions: At the same time, there may be instances where all the surrounding factors, including the length of delay, compel the separation of the two officers so that detainees can be transported before the second police unit arrives.

For example, in the case of Cole , the fact the driver -- the drive to the police station was only a couple of blocks and that the police officers knew Mr. Cole may have made separation of the officers reasonable. Yet, it -- it is not for me to speculate but to decide the issue on the facts before me. I find that an eight-minute delay in the circumstances was reasonable and it was not incumbent on Constable Fink to leave his partner behind.

Here it is important to bear in mind that as soon as practicable is not equivalent to as soon as possible. [ 13 ] In the result, the Trial judge held that he was “satisfied that the samples were taken within a reasonably prompt time under the circumstances”. The certificate of qualified technician became a full exhibit at trial and the presumption of identity was accordingly applicable, providing conclusive proof that Mr. Goodman was operating his motor vehicle while his blood alcohol concentration exceeded the legal limit. B.

Appeal Decision [ 14 ] In the Appeal Decision, the Appeal judge dealt explicitly with the standard of review relating to the finding that the breath samples were taken as soon as practicable. He found that while the factual findings of the Trial judge were entitled to deference and reviewable on the standard of palpable and overriding error, the application of a legal standard to the facts is reviewable on a correctness standard . [ 15 ] The Appeal judge next dealt with the way the Trial judge had framed the issue; that is, was the additional eight-minute delay justified?

The Appeal judge appears to have rejected that approach, defining the issue as relating to the entire period during which Mr. Goodman sat handcuffed in the back of the police car at the scene: [21] At issue is whether, in these circumstances, a delay of 21 minutes at the scene (13 minutes of which were explained above) violated Mr. Goodman’s s. 8 or 9 rights under the Charter . [ 16 ] The Appeal judge discussed R v Wetzel , 2013 SKCA 143 , 306 CCC (3d) 306 [ Wetzel ], and R v Weichel , 2016 SKPC 157 [ Weichel ], which were cited by Mr.

Goodman for the proposition that it is unreasonable to wait for a tow truck to attend at the scene. He rejected that proposition: [25] However, Wetzel is not to be read as authority for the proposition it is never reasonable for police officers to wait for a tow truck. At para. 22, Richards C.J.S. said: [22] Third, it is clear that a delay caused by waiting for a tow truck does not necessarily create a situation where the sample is not taken as soon as practicable: R. v. Berrecloth , 2012 SKQB 175 ; R. v. Dion , 2010 SKPC 76 ; R. v. Litzenberger , 2009 BCPC 69 ; R. v. Plonka , 2008 BCSC 881 ; R. v.

Ritson , 2008 BCPC 26 ; R. v. Godin , 2007 ABPC 162 ; R. v. Otto , 2000 CarswellOnt 1864 (Ont. Sup. Ct. J.) ; R. v. Hafermehl (1993), 50 M.V.R. (2d) 78 (Alta. C.A.) . (Emphasis in original) [ 17 ] He also commented that Weichel turned on the fact that the officer’s explanation for waiting 35 minutes at the scene was unsatisfactory. In his view, the law is as follows:

[28] The critical point emanating from the case law is that an assessment of whether samples were taken as soon as practicable dependson the particular circumstances of each case. This assessment is highly fact specific and it is best left to a trial judge.

Absent palpable oroverriding error, considerable deference is owed to a trial judge’s assessment of the circumstances. [29] This is highlighted in R v Straub, 2015 SKPC 84 at para 34, 475 Sask R 119: [34] A delay caused by calling a tow truck does not automatically create a situation where the sample is not taken as soon aspracticable: R v Wetzel, 2013 SKCA 143, 427 Sask R 261 [Wetzel]; R v Spice, 2014 SKPC 69, 444 Sask R 304. However, even arelatively short wait for a tow truck can result in a finding that breath tests were not taken as soon as practicable, if calling the tow truckwas unnecessary.

In assessing reasonableness, I must consider whether it was necessary for the officer to call the tow truck, whether thecall was made with reasonable promptness, and whether the officer acted reasonably in waiting as long as he did before taking other stepsto expedite the breath sample procedure: R v Dion, 2010 SKPC 76. This is not determined by a simple calculation of the length of timeinvolved.

The decision must be based on all the circumstances of the case and, in the end, turns on whether the delay has beensatisfactorily explained: R v Deren, 2013 SKPC 117, 426 Sask R 188. (Emphasis added in Appeal Decision) [18] The Appeal judge concluded that the Trial judge had observed the correct legal principles. He noted that he had canvassed thecase law and considered the circumstances. In the result, he found as follows: [33] Against that backdrop, it was open to the trial judge to come to the conclusion he did. Therefore, this ground of appeal must alsobe dismissed. III.

LEAVE TO APPEAL AND STANDARD OFREVIEW [19] The right to appeal the result of a

summary conviction appeal arises pursuant to s. 839 of the Criminal Code. It is limited toquestions of law alone and is exercisable only with leave. In R v Bray, 2017 SKCA 17, Caldwell J.A. summarized the test on anapplication for leave: [2] …Leave to appeal is granted sparingly. In broad terms, an applicant must establish the proposed appeal raises a question of lawthat is either: (

a) significant to the administration of justice generally—i.e., beyond the four corners of the case, or (

b) compellinglymeritorious in the particulars of the case in question. In its deliberations, the Court will consider whether the offence is serious, whetherthe applicant is facing a significant deprivation of liberty and whether denial of leave would result in an injustice going unaddressed. … [20] This appeal is from the Appeal Decision and the issue is whether the Appeal judge erred in finding that the Trial judge did noterr in concluding that the breath samples were taken as soon as practicable. Mr.

Goodman does not allege that the Trial judge erred infinding the facts or as to the meaning of “as soon as practicable” in s. 258(1)(c). The issue is as to the application of that legal standard tothe facts. [21] The appellate case law reflects differences of opinion as to the standard of review relating to this issue.

These differences wereexplored by Jackson J.A. in her dissenting reasons in R v Burwell, 2015 SKCA 37 at paras 70–73, 323 CCC (3d) 1 [Burwell], and in R vFenske, 2016 MBCA 117, 343 CCC (3d) 438 [Fenske], where Beard J.A. succinctly summarized this issue and the divergence in the caselaw: [9] Canadian Courts of Appeal are in agreement that, where the

interpretation of the phrase “as soon as practicable” is at issue, thisraises a question of law. This includes situations where it is concluded that the trial or appeal judge incorrectly interpreted what “as soon aspracticable” 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), 215OAC 151; R v Myrick (NJ) (1995), (NL CA), 130 Nfld & PEIR 144 (Nfld CA); R v Naidu, 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 Alta CArefused, 2011 ABCA 73 ; Naidu; and R v Burwell (J), 2015 SKCA 37, 472 Sask R 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 (2006), (ON CA), 208 OAC 379; R v Burbidge, 2008 ONCA 765, 69 MVR (5th) 159; R v Torsney(2009), 81 MVR (5th) 212 (Ont CA, in chambers); R v Jensen (1982), (NS CA), 55 NSR (2d) 124 (CA); R v Carter(1981), (SK CA), 9 Sask R 1 (CA); and R v Singh (S), 2014 ONCA 293, 318 OAC 232). [22] In Burwell, Jackson J.A. concluded that this issue was effectively resolved by R v Shepherd, 2009 SCC 35, [2009] 2 SCR 527[Shepherd], which was concerned with the standard of review relating to the existence of reasonable grounds.

Chief Justice McLachlin andCharron J. there confirmed that “the application of a legal standard to the facts of the case is a question of law” (at para 20). Theyemphasized that a trial judge must distinguish between questions of fact and the question of whether those facts are insufficient, at law, toconstitute reasonable grounds. As they observed, “[a]lthough the trial judge’s factual findings are entitled to deference, the trial judge’sultimate ruling is subject to review for correctness” (at para 20). [23] Justice Jackson carefully analyzed the application of this reasoning in Burwell (at paras 74–85).

She held as follows:

[85] In light of this analysis, I conclude that “as soon as practicable” in s. 258(1)(

c) is a legal standard. This means that theinterpretation of the phrase and its application to the facts as found by the trial judge raise questions of law reviewable on a standard ofcorrectness. It follows that the

summary conviction appeal judge did not err when he reached the same conclusions. (Emphasis added) Although separate reasons were written by both other members of the Burwell panel, neither took issue with this statement. [24] In Fenske, Beard J.A. adopted Jackson J.A.’s analysis and conclusion (at paras 34–35). In R v Prestupa, 2016 SKCA 118, 485Sask R 152 [Prestupa], Ottenbreit J.A. cited Burwell for the proposition that “the issue of ‘as soon as practicable’ as referred to in s.258(1)(

c) of the Criminal Code involves a question of law whenever its meaning or the scope of a legal standard is the issue” (at para 12).He also observed that while “what is reasonable, is a question of fact in the circumstances, the reasonableness of the constable’s actionscan only be assessed in the context of the correct application of the appropriate legal test” (at para 17). I take that observation as reflectingthe principle affirmed in Shepherd; that is, that the application of a legal standard to the facts of the case is a question of law, reviewableon a correctness standard.

That is why Ottenbreit J.A. used the phrase “correct application of the appropriate legal test”. As the Court saidin Shepherd, that means the trial judge’s ultimate conclusion is subject to review for correctness. [25] In the result, it is settled law in Saskatchewan that the meaning of the phrase “as soon as practicable” in s. 258(1)(c) – that is,the legal standard expressed by this phrase – and the application of that legal standard to the facts as found by the Trial judge are bothquestions of law reviewable on the correctness standard.

That means that an appellate court must engage in a de novo analysis and, if itreaches a different conclusion than the trial judge, must substitute its own view of the correct answer: R v MacKenzie, 2013 SCC 50 atpara 54, [2013] 3 SCR 250; R v Yates, 2014 SKCA 52 at paras 17 and 74, 311 CCC (3d) 437. In substance, that applies not only to asummary conviction appeal court, but to this Court hearing an appeal from the result of a

summary conviction appeal. [26] This conclusion also grounds this Court’s jurisdiction to consider this appeal, which is limited to questions of law, a pointemphasized in Burwell at paragraph 83. IV. ANALYSIS [27] The Appeal judge correctly found that the standard of review relating to the application of a legal standard to the facts iscorrectness. However, he then dismissed this ground of appeal on the basis “it was open to the trial judge to come to the conclusion hedid” (at para 33).

He reached that conclusion because, in his view, the Trial judge had considered the appropriate legal principles andreached a conclusion after considering all the circumstances. [28] With respect, this reasoning discloses an error. The Appeal judge did not decide whether the Trial judge was correct byengaging in the necessary de novo analysis.

Although he found that the Trial judge correctly identified the legal standard and applied it tothe facts, the Appeal judge did not decide whether the Trial judge did so correctly. [29] Even if he had not so erred, I would be obliged to identify the legal test and apply it to the facts as found by the Trial judge. Thelegal test – that is, the meaning of “as soon as practicable” in s. 258(1)(c) – was summarized by Ottenbreit J.A. in Prestupa: [16] The legal meaning of the phrase “as soon as practicable” is well established and was addressed by this Court in Burwell.Therefore, I need not explain it in detail.

It simply means the breath samples must be taken within a reasonably prompt time in thecircumstances. In other words, the Crown does not need to prove that breath samples were taken as soon as possible to satisfy the “as soonas practicable” requirement (at paras 35, 99, 102, and 119-120): see also R v Singh, 2014 ONCA 293 at para 14, 310 CCC (3d) 285. Theupshot of this is that, depending on the circumstances, breath tests can be taken as soon as practicable, even if they could have been takensooner.

The legal test is flexible and grounded in common sense. (Emphasis added) [30] This statement of the test was adopted in R v Vanderbruggen (2006), (ON CA), 206 CCC (3d) 489 (Ont CA)at paras 11–12 [Vanderbruggen], on this point, which was cited with approval in Wetzel at paragraph 90. See also Fenske at paras 25–28.In Burwell, Klebuc C.J.S. summarized the reasoning in Vanderbruggen on this point as follows: [18] … (

a) The phrase “as soon as practicable” means nothing more than that the breath samples be taken within a reasonably prompt time underthe 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 bythe Criminal Code. (

e) While the Crown is obligated to demonstrate—in all the circumstances—that breath samples were taken within a reasonably prompttime, there is no requirement that the Crown provide a detailed explanation of what occurred while the accused was in custody. [31] In R v Peepeetch, 2018 SKQB 65, 23 MVR (7th) 257, Kalmakoff J. (as he then was) emphasized the significance of theexplanation given by the police, citing R v Carter (1981), (SK CA), 59 CCC (2d) 450 (Sask CA), for the propositionthat “the key question is whether any delay is satisfactorily explained” (at para 42).

He also addressed the significance of delay caused bya decision to wait for a tow truck and, in reasoning that is the same in substance as his reasoning in R v Straub, 2015 SKPC 84, 475 Sask R

119, held that it turns on the facts: [34] A delay caused by calling a tow truck does not automatically create a situation where the sample is not taken as soon as practicable: R v Wetzel , 2013 SKCA 143 , 427 Sask R 261 [ Wetzel ]; R v Spice , 2014 SKPC 69 , 444 Sask R 304. However, even a relatively short wait for a tow truck can result in a finding that breath tests were not taken as soon as practicable, if calling the tow truck was unnecessary.

In assessing reasonableness, I must consider whether it was necessary for the officer to call the tow truck, whether the call was made with reasonable promptness, and whether the officer acted reasonably in waiting as long as he did before taking other steps to expedite the breath sample procedure: R v Dion , 2010 SKPC 76 . This is not determined by a simple calculation of the length of time involved.

The decision must be based on all the circumstances of the case and, in the end, turns on whether the delay has been satisfactorily explained: R v Deren , 2013 SKPC 117 , 426 Sask R 188. [ 32 ] Similarly, I agree with Tochor J.’s comment in R v Kernaz , 2020 SKQB 223 at para 19 , 66 MVR (7th) 26, that “whether a 17- minute delay awaiting a tow truck is, or is not, unreasonable, will depend entirely on the facts of each case.

In some cases, 17 minutes or more will not be unreasonable; in other cases, 17 minutes or less may be considered unreasonable”. [ 33 ] The Trial judge adverted to the correct legal test, referring to Vanderbruggen and Burwell . He emphasized the importance of the explanation offered by the Constables, noting Constable Fink’s evidence that he believed they were obliged to impound the vehicle, that he was concerned with the risk of damage to or theft from the vehicle, and that he thought it was unsafe to separate from his partner. Further, it is apparent that he did not simply accept those explanations.

He assessed whether they were reasonable. That was the correct approach. As Jackson J.A. said in Burwell : [88] …The questions for the trial judge and the appellate judge were whether the length of the delay required an explanation and whether, having regard for the explanation given and the whole of the evidence , the first sample was taken as soon as practicable. (Emphasis added) [ 34 ] However, and with the greatest respect, I disagree with the conclusion reached by the Trial judge. He did not find that the Constables were obliged to impound the vehicle. He found he did not have the evidence to do so.

Nor did he find that there were reasonable concerns as to damage to or theft from Mr. Goodman’s vehicle. He said only that the possibility that something untoward might happen was greater than in R v Cole , 2015 SKPC 109 [ Cole ], as Mr. Goodman’s vehicle was parked outside a bar at midnight and the police station was ten minutes away. [ 35 ] Further, the facts in Cole are not a benchmark. There was no evidence that the parking lot was a dangerous place to leave a vehicle, or, for that matter, a police officer, for the brief period necessary to await the arrival of another police unit.

Based on the evidence, the bar and the parking lot were very quiet places at the relevant time. Indeed, Constable Fink did not testify that he had concerns about the safety of Mr. Goodman’s vehicle based on an assessment of the circumstances. Rather, it was his evidence that he had followed his invariable practice. [ 36 ] Similarly, the Trial judge did not find that Constable Fink’s claim that he might be in danger if he alone drove Mr. Goodman to the police station was reasonable.

Although he commented that “one must be very careful when assessing whether concerns relating to officer safety should be discounted”, he did not find that Mr. Goodman constituted a risk. Rather, he found that Mr. Goodman was an unlikely candidate to attempt to use violence. Based on the evidence, that would appear to be the only available conclusion.

To reiterate, the Trial judge made the following comment about the possible separation of the two Constables: …[T]here may be instances where all the surrounding factors, including the length of delay, compel the separation of the two officers so that detainees can be transported before the second police unit arrives. For example, in the case of Cole , the fact the driver -- the drive to the police station was only a couple of blocks and that the police officers knew Mr. Cole may have made separation of the officers reasonable.

Yet, it -- it is not for me to speculate but to decide the issue on the facts before me. I find that an eight-minute delay in the circumstances was reasonable and it was not incumbent on Constable Fink to leave his partner behind. … [ 37 ] To the extent this passage suggests that the question is whether the circumstances must be such as to “compel” the separation of the Constables, it sets the bar that the Crown must clear too low when there is delay that needs to be explained.

The Crown must demonstrate that officer safety concerns were reasonable in these circumstances . [ 38 ] It is also my view that the Trial judge asked the wrong question. The question was not whether an eight-minute delay was justified. The delay from the time Mr. Goodman was secured in the back of the police car to the arrival of the second unit was 21 minutes. That is the delay at issue.

It would beg the question to decide that the issue excludes the time that would normally have been expected to pass before a second unit arrived, as it must first be determined whether it was reasonable for both Constables to wait for a tow truck at all. [ 39 ] For these reasons, I conclude that the Crown has not demonstrated that the officers acted reasonably in the circumstances. The explanation offered by the officers for their decision to wait for a second police unit was not satisfactory, as there was insufficient evidence of danger to Mr. Goodman’s vehicle or to either officer to ground that explanation.

Cast in terms of the legal test, that means that the breath samples were not taken within a reasonably prompt time in the circumstances. As such, the decision that they were taken as soon as practicable was an error of law. [ 40 ] As a result of the 21-minute delay occasioned by the Constables choosing to wait for a second police unit to arrive, the breath tests were not administered as soon as practicable. Accordingly, the presumption specified in s. 258(1) (

c) did not apply and, absent that presumption, the evidence was insufficient to support a conviction. V. CONCLUSION [ 41 ] In the result, I would grant leave to appeal, allow the appeal, set aside Mr. Goodman’s conviction for driving while his blood

alcohol content exceeded the legal limit and substitute an acquittal. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Tholl J.A.” Tholl J.A.