CITATION: R. v. Burbidge, 2008 ONCA 765

DATE: 20081114

DOCKET: C46973

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and MacFarland JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

and

Randy Burbidge

Appellant

V. Rondinelli, for the appellant

James V. Palangio and Frank Au, for the respondent

Heard and released orally: October 28, 2008

On appeal from the conviction entered on January 12, 2007, and the sentence imposed on March 16, 2007, by Justice Terrence P. O’Connor of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant was found guilty after trial in Superior Court on one count of “blowing over” and one count of impaired driving. The trial judge entered a conviction on the “blowing over” charge and stayed the impaired driving charge. He imposed a sentence of 3.5 years and gave some credit for the appellant’s brief pre-sentence incarceration.

The Conviction Appeal

[2] One of the grounds of appeal relates to the impaired driving charge. As indicated above, the trial judge stayed that conviction. Counsel agree that we need address that ground of appeal only if the appellant is successful in setting aside the conviction on the “blowing over” charge. We will address the grounds of appeal relating to that conviction.

[3] Counsel for the appellant advanced several grounds of appeal arising out of the conviction on the “blowing over” charge. He accepts, correctly in our view, that unless he can convince the court that the trial judge erred in holding that the breathalyzer tests were administered “as soon as practicable” as required by the statute, he cannot succeed in setting aside the conviction on that charge.

[4] Counsel focuses on the interval between when the appellant completed his conversation with his lawyer and the completion of the administration of the second of the two breathalyzer tests. The total time interval is thirty seven minutes. In considering whether that gap should have resulted in a finding against the crown on the “as soon as practicable” issue, one bears in mind that the statute requires at least a fifteen minute interval between the first and the second sample.

[5] Police officers called by the crown explained that by chance another driver was at the police station and was required to provide samples of her breath at basically the same time as the appellant was returned to the police station. By pure chance she went first. This meant that the appellant had to be moved back and forth to the cells between the taking of each sample and that he had to alternate his turn on the machine with the other driver. This obviously took some extra time.

[6] Counsel referred us to R. v. Vanderbruggen (2006), 2006 9039 (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.). This authority deals with the meaning of the phrase “as soon as practicable” in section 258 (1)(c)(ii) of the Criminal Code. We emphasize two observations from that judgment. At para. 12, Justice Rosenberg says:

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.

[7] At para. 14, he observes:

Whether the samples were taken as soon as practicable in this case was an issue of fact for the trial judge.

[8] The trial judge addressed the argument that the crown had failed to prove that the samples were taken as soon as practicable. He made findings of fact and based on those findings concluded that the crown had met its burden on that issue. As indicated in Vanderbruggen this was a factual issue for the trial judge and we are not satisfied that he made any error that should cause us to interfere with that finding. This ground of appeal cannot succeed. As acknowledged by counsel if this ground fails the conviction appeal must fail. We dismiss the conviction appeal.

The Sentence Appeal

[9] The appellant has a lengthy criminal record including thirteen prior convictions for drinking and driving related offences. The breathalyzer readings were a little over double the allowable limit. We are not convinced that the trial judge made any error in principle. He does not appear to have accepted the contention that there was any meaningful gap in the appellant’s record. With respect to the life time driving prohibition, we cannot say, again in light of the terrible record, that this imposition of a life time prohibition constitutes any error in principle. We note that should circumstances change and should the need arise, the appellant can apply to the parole board for some variation of this order.

[10] Leave to appeal sentence is granted but the appeal is dismissed.

“Doherty J.A. “K. Feldman J.A.”

“J. MacFarland J.A.”