DATE: 20060323

DOCKET: C43848

COURT OF APPEAL FOR ONTARIO

ROSENBERG, CRONK and GILLESE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN Respondent

• and -

MARTIN VANDERBRUGGEN Appellant

Patrick F. D. McCann for the appellant Eliott Behar for the respondent

Heard: February 16, 2006

On appeal from the judgment of Justice Mary Dunbar of the Superior Court of Justice dated June 15, 2005, dismissing a summary conviction appeal from conviction entered and sentence imposed by Justice James A. Fontana of the Ontario Court of Justice on June 7, 2004.

ROSENBERG J.A.:

[1] This appeal concerns the requirements the Crown must meet to rely upon the presumption of identity in a drinking and driving case. The appellant argues that the “as soon as practicable” requirement set out in s. 258(1)(c)(ii) of the Criminal Code was not made out because of what he alleges is an unexplained 46-minute gap. As a result, the appellant submits that the Crown was not entitled to rely upon the presumption that his blood alcohol level at the time of the breathalyser test was the same as at the time of the alleged offence. For the following reasons, I would dismiss the appeal.

THE FACTS

[2] At trial and on appeal to the summary conviction appeal court, the appellant raised a number of issues, including compliance with the Canadian Charter of Rights and Freedoms. However, in this court, the appellant narrowed his issues to the sole question of compliance with the as soon as practicable requirement. As a result, the facts can be briefly stated by way of the following chronology. All events occurred in the early hours of August 9, 2003 in the Village of Cardinal near Brockville, Ontario.

2:40 Constable Barr first notices the appellant driving. 2:48 Constable Barr arrests the appellant for impaired driving. 2:56 Constable Barr reads the appellant the breathalyser demand 2:58 The appellant and Constable Barr leave the place of arrest. 3:04 The appellant and Constable Barr arrive at the police detachment. 3:08 The breath technician, Constable Foley, arrives at the detachment. 3:10 Constables Barr and Foley search the appellant and place him in a cell. 3:56 Constable Barr turns the appellant over to Constable Foley for the breath testing procedure. 4:00 The first breath test is taken.[^1]

[3] The crucial period for the purpose of the appellant’s argument is the 46-minute gap between 3:10 and 3:56. The appellant submits that the Crown failed to adequately account for this period of time and therefore failed to show that the tests were taken as soon as practicable.

[4] Throughout these events, the only people at the detachment were the appellant and the two officers. The only witness at trial was Constable Barr, the arresting officer. She provided the following evidence as to what occurred between 3:10 and 3:56 a.m.

• She could not say exactly when Constable Foley went into the breath technician room. • Once he was in the room, she informed Constable Foley of her grounds for making the breath test demand. • She watched Constable Foley “playing around with the equipment”; Foley told her it should be just a short time before he was ready to do the first test. • She then returned to complete her paperwork. • She did not see Constable Foley engaged in any other duties.

THE REASONS OF THE TRIAL JUDGE

[5] As I have indicated, the appellant raised a number of issues at trial. With respect to the as soon as practicable issue the trial judge stated that “the 46 minutes from the arrival at the station to the first breath sampling” was adequately explained. The trial judge referred to the wait for the breath technician, the search and informing the technician of the grounds for the demand. The trial judge then said the following:

Constable Foley then went to work in the breathalyser room, presumably preparing the machine. The machine was, according to the certificate of analysis, a Borkenstein Breathalyser model 900A, not an Intoxilyzer 5000C. Constable Barr was candid in her testimony that she observed Constable Foley in the breath room doing something with the equipment, but then she left to complete her paperwork. Finally, when Foley was ready, he asked for and received the accused, who was turned over to him, and the first sample was taken at 3:55 as is indicated by the certificate of analysis. The readings, in my view, have been proven by the certificate of analysis.

THE REASONS OF THE SUMMARY CONVICTION APPEAL JUDGE

[6] The summary conviction appeal judge gave very brief reasons to the effect that the appeal could not succeed on the basis of the proven facts.

ANALYSIS

The Scope of the Appeal

[7] There is a jurisdictional issue. Under s. 839 of the Criminal Code, on an appeal to this court the appellant is limited to grounds of appeal involving questions of law alone. The appellant argues that the failure of the appeal judge to provide reasons for dismissing the appeal involves a question of law alone. Relying on R. v. Minuskin (2003), 2003 11604 (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.), the appellant argues that the appropriate remedy is for this court to consider the grounds raised before the appeal judge, including grounds involving questions of fact or mixed fact and law. If those grounds were bound to fail, it is open to this court to dismiss the appeal notwithstanding the error of law respecting the adequacy of reasons. However, if any of those grounds would have succeeded, it is open to this court to give the remedy that the appeal judge should have given and either dismiss the charge or order a new trial. For the purpose of this appeal, I am prepared to assume that the appellant has made out the error of law alleged and that it is therefore open to this court to consider the grounds of appeal raised before the appeal judge.

The Meaning of “as soon as practicable”

[8] Section 258(1)(c)(ii) of the Criminal Code is part of the scheme to ease proof of the concentration of alcohol in the accused’s blood for inter alia proving the “over 80” offence in s. 253(b). Section 258(1)(c)(ii) provides that where the breath samples were taken “as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken” then, provided certain other conditions are fulfilled, the prosecution may rely upon the presumption of identity. This presumption simply deems the results of the breath tests to be proof of the accused’s blood alcohol level at the time of the offence in the absence of evidence to the contrary. Thus, in this case, although the first test was not taken until more than one hour after the appellant drove the vehicle, that test is deemed to show what his blood alcohol level was at that time of the driving.

[9] The appellant submits that the trial judge made several palpable and overriding errors in his assessment of the facts and that, in any event, the Crown failed to show that the tests were taken as soon as practicable.

[10] First, the appellant submits that the trial judge misapprehended the evidence since he included in the 46 minutes several events that occurred before 3:10 a.m. when the 46-minute period began to run. I agree with the appellant that these were palpable errors but they were not overriding. The trial judge described the wait for the technician as occupying “a few moments”. It is apparent that he did not attach any great significance to this time. It is true that the trial judge also seems to have included the time taken to search the appellant and place him in the cell but, again, this was a relatively short time (two minutes according to Constable Barr). These errors would not have been significant in determining the ultimate issue of whether the tests were taken as soon as practicable.

[11] The appellant submits that the trial judge also erred in taking judicial notice of the time taken to prepare the breathalyser. This submission is based on the statement set out above where the trial judge noted that the machine was a breathalyser rather than an Intoxilyzer. In my view, this is not an indication that the trial judge took judicial notice of the workings of the breathalyser, assuming that the trial judge was not entitled to take judicial notice of that fact. It seems to me that this is merely a comment by the trial judge and an answer to a question he posed to Constable Barr at the end of her testimony. At that time, he asked the officer if she knew what kind of machine Constable Foley was using. The officer did not know. However, examination of the qualified technician’s certificate discloses that the machine was in fact a Breathalyzer Model 900A.

[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. See R. v. Phillips (1988), 1988 198 (ON CA), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 1980 2920 (ON CA), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. 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. See R. v. Payne (1990), 1990 10931 (ON CA), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 1981 2063 (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, 1998 5146 (ON CA), [1998] O.J. No. 4362 (C.A.).

[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. See R. v. Letford (2000), 2000 17024 (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R.. v. Carter, supra; R. v Cambrin (1982), 1982 353 (BC CA), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.

[14] Whether the samples were taken as soon as practicable in this case was an issue of fact for the trial judge. See R. v. Lightfoot (1980), 4 M.V.R. 238 (Ont. C.A.) and R. v. Renda, [2005] O.J. No. 1453 (C.A.). 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.

DISPOSITION

[17] Accordingly, I would grant leave to appeal, but dismiss the appeal.

Signed: “M. Rosenberg J.A.”

“I agree E.A. Cronk J.A.”

“I agree E.E. Gillese J.A.”

RELEASED: “MR” March 23, 2006

[^1]: The certificate actually shows that the first test was taken at 3:55. However, there was a five-minute discrepancy between the watches used by the two officers. I have used Constable Barr’s times.