Court File and Parties

Ontario Court of Justice

Date: 2015-03-25

Court File No.: Newmarket 14-02647

Between:

Her Majesty the Queen

— and —

Rafael Inataev

Ruling on Motion for Directed Verdict

Before: Justice Joseph F. Kenkel

Heard on: January 8, March 2, 2015

Counsel:

• Ms. Jennifer Mannen, for the Crown
• Mr. David Genis, for the defendant

KENKEL J.:

Introduction

[1] Mr. Inataev failed an approved screening device test at the roadside and was taken to the police station for breath tests on an approved instrument. His blood alcohol level was found to be almost double the legal limit and he was charged with operating a vehicle with a blood alcohol level in excess of the legal limit, "Over 80". The unusual circumstance in this case is that the officer forgot to read the formal breath demand at the time of arrest, and did not make that demand until much later at the station.

[2] At the close of the Crown's case the defence has applied for a non-suit or directed verdict submitting that the Crown has failed to prove the approved instrument demand was made "as soon as practicable" (ASAP) as prescribed in s.254(3). The defence submits that there is no evidence that the breath samples were taken pursuant to a lawful demand as required to engage the s.258(1)(c) presumption of identity which is essential to the Crown's case. The Crown's position is that there was a valid, timely demand, but in the alternative that failure to comply with the 254(3) demand requirements may raise a Charter issue but does not prevent the Crown from relying upon the s.258 presumptions.

[3] If the Crown is right that a Charter analysis applies, a delayed demand would be a s.8 breach, but the Crown submits that the breach would not lead to a s.24(2) remedy as there was little or no impact on the accused's Charter protected interests. If the Defence position is correct, the failure to prove the statutory pre-condition in relation to the demand deprives the Crown of a presumption necessary to their case without resort to the Charter and the multi-factor balancing in s.24(2).

[4] The defence has served Charter notice with respect to this same issue. This is not a case of trial by ambush, a concern identified in R. v. Charette 2009 ONCA 310, [2009] OJ No.1506 (CA).

The Statutory Framework – Sections 254 and 258

[5] Where an officer has reasonable grounds, s.254(3) provides that the officer may require a person to comply with breath tests by making a demand, "as soon as practicable". The subsection also provides that the breath tests be conducted, "as soon as practicable".

[6] Section 258(1)(c) applies where samples are shown to have been taken pursuant to a demand made under 254(3). That section requires that breath samples be shown to have been taken, "as soon as practicable" in order for the Crown to rely upon the presumption of identity in that section relating the test readings back to the time of driving.

Submissions of Counsel

[7] The defence position may be summarized as follows:

• The Crown has failed to prove that the s.254(3) approved instrument demand was made "as soon as practicable" (ASAP) as required by that section.
• Failure to prove a statutory condition for a lawful demand means the breath samples were not taken pursuant to a demand as required by s.258(1)(c).
• Where the requirements of s.258(1)(c) have not been proved the Crown loses the ability to rely upon the presumption of identity in that section.
• There is therefore no evidence of the accused's blood alcohol level at the time of operation and the charge should be dismissed.
• Binding Summary Conviction Appeal authority holds this is not a Charter issue.
• Trial courts in this province have generally not considered the Charter in this context.
• Appellate and Trial courts don't frame the similarly worded s.258 ASAP requirement as a Charter issue.
• The Crown's approach would potentially put the accused in a worse position for having complied with the demand than if he had refused.

[8] The Crown's response:

• There was a timely demand.
• In the alternative, failure to comply with a statutory requirement in relation to the 254(3) demand may result in a Charter issue, but does not affect the admissibility of the breath test results nor does it deprive the Crown of the benefit of the s.258 presumptions.
• ASAP in s.254(3) is not the same as ASAP in s.258(1)(c).
• The defence position is contrary to binding appellate authority in Rilling and Charette (ONCA).
• The one SCJ delayed-demand decision to the contrary did not consider Rilling or Charette and is therefore not binding on that point.

[9] Both parties agree that the issue in this application is not admissibility but rather the availability of the s.258(1)(c) presumption of identity. Compliance with s.254(3) is not a precondition to the admissibility of breath test evidence. See: R. v. Forsythe, R. v. Lee.

Was There a 254(3) Demand?

[10] The Crown played a portion of a roadside conversation recorded by the arresting officer's in-car video in which the accused asked the officer what would happen next after his arrest and the officer told him that he would be taken to the station and he would "have to do two tests" to see how much alcohol was in his breath.

[11] The Crown submits that there is no particular wording required for a 254(3) breath demand and that the officer's reference to breath tests at the station shows that a timely demand was made.

[12] While I agree with the Crown that no particular wording is required for an approved instrument demand, I disagree that there is evidence of a demand within the meaning of s.254(3) for three reasons: First, the officer on his own evidence did not make a formal demand until later at the station. Second, in the car he was not engaged in making a demand even in informal terms when he referred to the breath tests. He was answering a question from the accused who wondered what would happen next. Reference to breath tests as a next step is not the same thing as making a statutory demand. Third, the officer agreed in cross-examination that the conversation in the vehicle could reasonably be seen as an invitation to perform the tests which would not be the unequivocal demand contemplated by s.254(3).

[13] Mr. Inataev could not have been charged with refusal had he indicated a reluctance to provide a sample based on what the officer said to that point. I find Constable Chong made the only s.254(3) demand at the station over an hour and 20 minutes after the approved screening device fail and arrest for Over 80.

Section 254(3) Demand on Reasonable Grounds - Pre-Charter Cases

[14] The approved instrument breath testing regime was introduced into the Criminal Code by the Criminal Law Amendment Act 1968-69 c.38 proclaimed in force as of December 1, 1969.

[15] Not long after the amendments, in the case of R. v. Showell [1971] OJ No.1657 (HCJ), the Summary Conviction Appeal court was asked to consider the "reasonable and probable grounds" requirement for the approved instrument demand in the predecessor to s.254(3).

[16] The court held at para.14, "the requirement of reasonable and probable grounds of (s.254(3)) is not an ingredient of the demand such that the non-existence of the grounds results in the demand not being a (s.254(3)) demand. Rather, it is a substantive provision setting out a defence for a refusal to give a breath sample. Therefore, even if the demand is made without reasonable and probable grounds it is a (254(3)) demand within the meaning of s.(258(1)(c)) and, therefore, certificate evidence of the results is admissible. See also R. v. Verischagin [1972] SJ No.288 (CA).

[17] In R. v. Rilling, [1975] SCJ No.72, the Supreme Court cited Showell, and Verischagin in finding that the absence of reasonable grounds may afford a defence to a charge of refusal to provide a sample, but it does not render inadmissible breath test certificate evidence. Once the demand is acceded to, the motive for the demand is irrelevant.

[18] Thus in the pre-Charter context, once a driver complied with a 254(3) demand and provided samples, that was sufficient evidence of a demand to engage s.258. It was not required that the trial court review the grounds for the demand nor would that inquiry have been material to the admissibility of the breath test evidence or the operation of the presumptions.

Section 254(3) Reasonable Grounds - Post-Charter Cases

[19] There was much controversy in the early post-Charter era as to whether Rilling remained good law. While it was now open to the defence to bring a Charter application alleging a breach of s.8 where a search was conducted contrary to statutory provisions, some questioned whether the Criminal Code itself must now be interpreted in conformance with the Charter such that failure to comply with the "reasonable grounds" demand requirement must result in exclusion of any evidence obtained even without a Charter application and without a 24(2) analysis.

[20] In R. v. Bernshaw at para. 42 Justice Cory commented that Rilling continued to apply in the absence of a Charter application. "Several provincial appellate courts have taken the position that the Rilling case is still applicable in appropriate circumstances. That is to say where breath samples are obtained without reasonable and probable grounds for the demand, the evidence should only be excluded upon an application by the accused to exclude it pursuant to s. 24(2) of the Charter …This, I think, is the approach that should be adopted."

[21] The Ontario Court of Appeal adopted and has consistently followed the approach recommended by Justice Cory. See: R. v. Anderson, R. v. Gundy, R. v. Charette. In the absence of a Charter application Rilling continues to apply whether the issue is the admissibility of the evidence and the presumption of accuracy pursuant to s.258(1)(g) or the availability of the presumption of identity under s.258(1)(c).

[22] In Charette, Justice Moldaver explained that the Charter/non-Charter dichotomy represents a fair approach. After the advent of the Charter, where an officer makes a demand without reasonable grounds a person accused can challenge the admissibility of the test results under s.8 and seek to exclude those results under s.24(2).

[23] The defence gains an advantage in pursuing a s.8 Charter application in that the burden shifts to the Crown to prove the officer had the required grounds for the warrantless search. Justice Moldaver pointed out that the choice not to file a Charter application in this context too often resulted in "trial by ambush" where non-compliance with the Charter was raised as an issue without notice only after the Crown had closed their case.

The 254(3) Demand ASAP Requirement

[24] Section 254(3) requires that an approved instrument demand be:

• Based on reasonable grounds as defined
• Made "as soon as practicable"

[25] The s.254(3) requirement that the approved instrument demand be made "as soon as practicable" is part of a statutory scheme that along with the 254(3) requirement that samples be provided as soon as practicable and the s.258(1)(c) requirement that tests be taken "as soon as practicable" places a burden on the Crown to show that the breath tests were taken within a reasonably prompt time not later than two hours after operation in order to rely upon the 258(1)(c) presumption relating the test results back to the time of driving. See: R. v. Vanderbruggen, [2006] OJ No.1138 (CA)

[26] In 2008 the Tackling Violent Crime Act SC 2008 c.6 removed the word "forthwith' from the 254(3) "forthwith or as soon as practicable" demand leaving the present ASAP requirement.

Section 254(3) Demand ASAP – Trial Decisions

[27] There was an 8 minute delay in making the 254(3) approved instrument (AI) demand in R. v. Amaral [1993] OJ No.4279 (CJ) as the RCMP waited for a local Peel region officer to continue the arrest. The delayed demand was held not to be "forthwith or as soon as practicable" and the charge was dismissed without reference to the Charter.

[28] In R. v. Palanacki [2001] OJ No.6254 (CJ) Justice Blacklock considered circumstances similar to this case. The breath demand was not made until the station contrary to the requirement in s.254(3). At the close of the Crown's case the defence applied for a directed verdict as the Crown had failed to comply with that section thus depriving the Crown the benefit of the 258(1)(c) presumption.

[29] Anticipating the argument made before this court, His Honour noted at paragraph 24 that there was a basis to argue that R. v. Rilling was inconsistent with the position advanced by the defence. However, the Court followed R. v. McLellan [1978] BCJ No.763 (SC) (a pre-charter case) in holding that Rilling applied to the reasonable grounds component of the demand only. The court found the breath certificate was inadmissible due to the delayed demand.

[30] A 26 minute delay in making the AI demand while the officer had a tow truck remove the car from the road and while the officer waited for the unresponsive accused to stop talking was not "forthwith or as soon as practicable". The court in R. v. Scobie [2002] OJ No.5939 (CJ) held that the officer should have read the demand over the accused's talking. In Scobie a Charter analysis was applied and the court found a s.8 breach. The breath test evidence was excluded under the then "conscriptive evidence" 24(2) test.

[31] A 15 minute delay in making the breath demand while attending to other tasks was found not to comply with the then "forthwith or ASAP" 254(3) requirement in R. v. Jalovec [2004] OJ No.5980 (CJ). While the court dismissed alleged Charter breaches, the non-compliance with the s.254(3) forthwith requirement was sufficient to lead to the dismissal of both charges before the court without resort to the Charter or 24(2).

[32] A ten minute delay between arrest and the reading of rights to counsel and the breath demand led to exclusion of the breath test evidence in R. v. Tran [2005] OJ No.6280 (CJ). The delay in reading rights to counsel was held to be a Charter s.10 breach which led to exclusion without a 24(2) analysis. The court also found that the breach of the s.254(3) forthwith/ASAP condition also resulted in the breath test evidence being inadmissible.

[33] R. v. Singleton [2006] OJ No.4332 (SCJ) was another case where the officer forgot to read the breath demand after the approved screening device (ASD) fail and arrest. There was a 29 minute delay until the demand was read at the station. The court dealt with the delayed demand as a non-Charter issue. The court held at paragraph 28 that the delayed demand was unlawful, rendering the certificate inadmissible and depriving the Crown of the s.258 presumptions.

[34] In R. v. Killen [2006] OJ No.4592 (CJ) the officer also forgot to read the demand at the time of arrest leading to a 25 minute delay. In that case, as here, the accused asked why he was being taken to the station and the officer referred to breath tests as the next step without making a demand. The court followed Palanacki on the Rilling issue and held that given the failure to prove a timely demand that Crown was not entitled to rely upon the 258(1)(c) presumption. A motion for directed verdict was granted on the Over 80 charge.

[35] The opposite conclusion was reached in R. v. Harizanov [2010] OJ No.3948 (CJ) where in the context of a 27 minute delay in the making of the 254(3) demand the court held that the principle in Rilling in regards to the s.254(3) reasonable grounds requirement applies equally to the ASAP requirement in that same section.

With regard to the legislative scheme that Parliament has elaborated in the Criminal Code to control drinking and driving, it does not make any sense that these two prerequisites, which are contained in the same section (s. 254 (3)), would be subject to different tests or be treated differently regarding the effect of non-compliance with them. There does not appear to be any rationale for such a finding in the Criminal Code or in the cases that have interpreted s. 254 (3).

[36] Where there was no evidence of any s.254(3) demand being made in R. v. Monsivais 2012 ONCJ 106, [2012] OJ No.951 (CJ) the court found that a statutory condition precedent to admissibility was not proved such that the certificate evidence was not received and the Crown could not rely upon the presumption in s.258(1)(g).

[37] In R. v. Hawkins [2013] OJ No.1103 (CJ) a 10 minute delay in making the breath demand was found not to comply with the 254(3) ASAP requirement. The certificate of the analyst was excluded from evidence on that basis. The court also found in the alternative that the delayed demand breached s.8 of the Charter and along with other breaches would result in exclusion under s.24(2).

[38] A 2 minute delay in reading the breath demand following right to counsel advice was found to comply with the statutory ASAP requirement in relation to the demand in R. v. Nivet [2014] OJ No.1994 (CJ). Following Singleton and Killen the issue was dealt with as a statutory matter only without reference to the Charter issues discussed elsewhere in the case.

[39] The cases cited generally support the defence submission that trial courts have tended to treat delayed AI demands as a non-Charter issue. Scobie and Harizanov are the exceptions in applying a Charter-only analysis. However, most of the trial decisions did not consider whether Rilling would apply. The one early case that considered the issue – Palanacki – held that Rilling did not apply. More recently the Rilling issue was considered in Harizanov with the benefit of the Court of Appeal rulings in Gundy and Charette. Justice Bovard in Harizanov held that Rilling does apply to both requirements of the s.254(3) demand.

[40] The conclusion in Harizanov is consistent with recent trial decisions in other provinces. For example in R. v. Manji [2013] AJ No.1085 (PC) the court considered a breath demand delayed 7 minutes after arrest. After a detailed analysis of the case law post Rilling, Judge Fradsham concluded at paras.66-67:

If the absence of the reasonable and probable grounds referred to in section 254(3) does not prevent the admission into evidence of the breath tests results, and does not prevent the Crown from relying on the presumptions set out in section 258(1), then I cannot see how the failure to make the demand "as soon as practicable" … could be held to change the characterization of the demand so that it no longer was a section 254(3) breath demand.

In my view, the ruling by the majority of the Supreme Court of Canada in R. v. Rilling supra. , logically compels me to conclude that a failure to make "as soon as practicable" the section 254(3) breath demand does not change the characterization of the breath demand, that is, it remains a "demand made under section 254(3)", and, if the other requirements of the section are met, the section 258(1) presumptions are available to the Crown.

[41] In R. v. Browning [2015] AJ No.55 (PC) Justice Fradsham confirmed at paragraph 34 the same finding with respect to a s.254(3) demand, but he went on to find that the different s.258(1)(c) ASAP requirement is not a Charter issue. As discussed further below, that finding is consistent with the case law in this province.

Section 254(3) Demand ASAP - Appellate Cases

[42] The only Summary Conviction Appeal case referred to on point does not apply a Charter analysis. In R. v. Laws [2011] OJ No.4261 (SCJ) the Summary Conviction Appeal court held that the first proper breath demand was issued by the breath technician at the station some 40 minutes after arrest. The trial court held that the demand was contrary to the requirements of s.254(3) and therefore the breath test evidence obtained pursuant to that demand was inadmissible.

[43] The narrow question put to the Summary Conviction Appeal court in Laws was whether the demand at the station made by the breath technician shortly after the technician received grounds was a valid s.254(3) demand that cured the omission at the roadside. The matter was held to be one of judicial discretion and the appeal against the trial court's decision on this point was dismissed. (See the discussion below about whether demands made later at the station can cure the omission at the roadside.)

[44] The Laws decision is consistent with the approach submitted by the defence, but the Crown is correct that the issue in this case, whether a breach of a 254(3) requirement is necessarily a Charter issue, was apparently not addressed by either party in Laws and was not considered by the court.

[45] The Court of Appeal mentioned a delayed breath test demand in R. v. Lachappelle 2007 ONCA 655, [2007] OJ No.3613 (CA). The issue was discussed under the heading (2) The Charter Arguments (e) Constable Randall did not make the breath demand as soon as practicable … The court upheld the trial judge's factual finding that the demand was made ASAP so the issue of Charter analysis for a delayed AI demand was not discussed.

[46] In R. v. Wylie [2013] OJ No.5019 the Court of Appeal considered a case not of delayed demand but where there was ambiguity as to which officer actually read the demand. The court noted that once the court found a valid demand was made, the "who, what, where and when" is not required. Once the trial court found a valid demand was made that fact was as a matter of law sufficient to bring the Crown within s.258(1) (c) of the Criminal Code. In accordance with Rilling, Charette and Forsythe, "absent a Charter challenge, compliance with the demand provides a complete answer in the Crown's favour".

Does a Later Demand at the Station Satisfy the Statutory Requirement?

[47] Where the arresting officer forgets to make a breath demand, but that officer conveys grounds to a breath technician at the station who then makes a breath test demand, is that a valid 254(3) demand as the second officer made it "as soon as practicable" after he or she received grounds?

[48] In R. v. Krawcar [2002] OJ No.2307 (SCJ) the summary conviction appeal court considered the former "forthwith or as soon as practicable" demand requirement in 254(3) and held that the section does not require the demand be made by the arresting officer. A timely demand made by the breath technician after he or she receives grounds is sufficient to comply with 254(3). The summary conviction appeal courts in R. v. Dhaliwal, R. v. Chilton and R. v. Guenter, and the trial courts in R. v. Hillis, R. v. Kyoz apply the same reasoning.

[49] While a trial court must consider the demand by the breath technician, the court is not required as a matter of law to find the later demand sufficient. It's open to the court to find that breath technician's demand does not comply with 254(3). The finding is a factual one within the discretion of the trial court. See: R. v. Laws, R. v. Howe.

[50] In this case the breath technician who made the demand at the station was also the arresting officer who forgot to make the demand at the roadside so the Krawcar line of cases does not apply.

Section 258 and Breath Tests ASAP Are Different

[51] From the pre-Charter era onward, trial and appellate courts in this province have treated the s.258 "as soon as practicable" breath test requirement as part of the overall statutory scheme for timely tests, but independent of the s.254(3) breath demand requirements. To rely upon the s.258 presumptions, the Crown must prove compliance with the requirements set out in that section.

[52] In R. v. Wolff [1976] OJ No.694 the Court of Appeal considered a case where the trial court had referred to the 2 hour limit but not further considered whether the samples were taken as soon as practicable where the tests were within the two hours. The court held that the pre-requisites were distinct and that, "It is incumbent on the trial judge, prior to exposing an accused to the presumption in s. 237(1) (c), to find as a fact that the several preconditions to its use set out in subparagraphs (c) (ii), (iii) and (iv) of that section were fulfilled."

[53] The court further held that in what is now s.258(1)(c), the ASAP requirement was independent of the lawful demand requirement. In an apparent reference to Rilling, the court said, "The certificate of analysis referred to in s. 237(1) (f) of the Criminal Code is admissible in evidence once there is independent proof that the sample of breath to which the certificate relates was taken from the accused pursuant to a demand made under s. 235(1) of the Code. … Recent authority places the matter beyond doubt."

[54] While the court in Wolff held that the certificate of breath analysis was properly admitted, the conviction at trial was quashed as there was no finding that the breath tests were taken, "as soon as practicable" and thus the Crown was not entitled to rely upon the presumption of identity.

[55] From 1976 we may fast forward 30 years to the current leading s.258(1)(c) "as soon as practicable case", R. v. Vanderbruggen, [2006] OJ No.1138 (CA). Justice Rosenberg noted at paragraph 2 that there were several issues raised at trial including Charter issues, but on appeal the appellant argued only "compliance with the as soon as practicable requirement" which was dealt with on a non-Charter basis.

[56] Subsequent ASAP decisions from the Ontario Court of Appeal continue to discuss the s.258 "as soon as practicable" requirement as an issue of proof independent of the Charter. See: R. v. Torsney, R. v. Singh.

[57] This point was explicitly considered in R. v. Willette [2011] OJ No.504 (SCJ) where an 18 minute delay at the station was found to breach the s.258 ASAP requirement. The Summary Conviction appeal court in Willette held that exclusion of the breath test results does not require a Charter application. At paragraph 55, "This is not an issue of exclusion which necessities a Charter application by the defence. What is in issue is whether the Crown is permitted to rely on the "evidentiary assist" provided to them."

[58] The applicability of Rilling to the s.258 ASAP requirement was mentioned as an outstanding issue in R. v. Makacek [2015] OJ No.332 (SCJ) but as the appeal was decided on other grounds the court did not rule on that issue.

Delayed Demand - Analysis

[59] The delayed demand at the station in this case is contrary to the s.254(3) requirement that the demand be made, "as soon as practicable".

[60] Rilling instructs that breath tests taken pursuant to a 254(3) demand are admissible in evidence at trial even if the officer making the demand did not comply with the "reasonable grounds" requirement of that section. In Charette the Court of Appeal noted that in sustaining Rilling's conviction, the Supreme Court admitted the breath test evidence and applied the s.258(1)(c) presumption of identity as well as the s.258(1)(g) presumption of accuracy. The Court of Appeal rejected the argument that Rilling applied only to the presumption of accuracy but not to the presumption of identity.

In light of Rilling, I can see no reason why the opening words of s. 258(1)(g) should be treated as irrelevant where an accused has complied with a demand and provided samples but treated as highly relevant in identical circumstances where what is at issue is the presumption of identity in s. 258(1)(c). As a matter of statutory interpretation, absent express language to the contrary, the same words in two subsections of the same provision should be treated alike, especially where, as here, the provision is meant to provide a complete code for proceedings involving drinking and driving offences.

[61] Considering Rilling, Charette, Forsythe and Lee, both counsel agree that failure to comply with the "as soon as practicable" demand requirement in 254(3) does not render breath test evidence inadmissible. With due respect to those trial decisions that found breath test inadmissible in this context, I agree with counsel that the issue is not one of admissibility.

[62] If a breach of the central reasonable grounds requirement in 254(3) does not affect the admissibility of the breath test evidence or the availability of the presumptions pursuant to s.258, then what comes of a breach of another 254(3) requirement - that the timing of the demand be "as soon as practicable"?

[63] Applying the reasoning in Charette, as a matter of logic and consistency there is no reason why the rule that applies to the most important pre-condition of the s.254(3) demand (reasonable grounds) should not apply to the timing requirement in that section.

[64] Rilling held that the s.258 presumptions were properly applied at trial even where the central condition of a lawful 254(3) demand was not complied with. To engage the presumptions in s.258, all the Crown need show is that a 254(3) demand was made and samples were obtained pursuant to that demand.

[65] As mentioned above, few trial courts have considered this issue and those who have differ in the result. The one Summary Conviction Appeal decision involving similar facts does not refer to, consider or rule on the Rilling issue. I agree with the Crown that there is therefore no binding authority on this point. Recent trial decisions post Charette and Gundy have concluded that Rilling applies in this context.

[66] Why have trial courts rarely considered the Rilling issue in relation to the timeliness of the 254 breath demand? It may be because the s. 258(1)(c) requirement in relation to the breath tests uses identical wording – "as soon as practicable". It has always been open to the defence to dispute proof of the 258 breath tests ASAP requirement and the availability of the presumption of identity without resort to the Charter. As breath test ASAP cases are far more common than forgot-to-read-the-demand ASAP cases, it's perhaps understandable that the 258 test is often applied without discussion to the different 254(3) requirement.

[67] Judge Fradsham recently described the reason for the difference in the provisions this way:

…There is a fundamental difference between non-compliance with the demand provisions (either in respect of the grounds for the demand or the timing of the demand) and non-compliance with the timing of the actual taking of the breath samples (e.g., taking the breath samples as soon as practicable). In my view, that difference justifies finding that the Crown can rely on the section 258(1) presumptions when the deficiency relates to the demand, but that the Crown may not rely on the section 258(1) presumptions when the deficiency relates to how the samples were taken. The former deficiency will not impact on the reliability of the samples and their analyses while the latter deficiency may well impact on reliability.

[68] I agree with his Honour's characterization of the two different tests and I find his interpretation consistent with Rilling, Gundy, Charette, Forsythe and Wylie. I find the trial decisions in Harizanov and Manji persuasive on this point.

[69] As the defence points out, it's possible that in the rare case where the arresting officer forgets to make a timely demand, and where the evidence at trial otherwise does not lead to 24(2) exclusion to remedy the s.8 breach, that an accused might have been better off refusing the demand. The same result would obtain though if the Crown had not proved the reasonable grounds component of the 254(3) demand so that circumstance is not a basis upon which to distinguish Rilling.

Conclusion

[70] There is direct evidence that a s.254(3) demand was made. That fact as a matter of law is sufficient to satisfy the demand requirement in s.258(1) (c) of the Criminal Code. Counsel agree that there is otherwise sufficient evidence to meet the Shephard test. The motion for non-suit or "directed verdict" is dismissed. Given the Charter application, the delayed demand issue remains to be considered in that context.

Released: 25 March, 2015.

Justice Joseph F. Kenkel