Court File and Parties

Ontario Court of Justice

Date: 2018-09-19

Court File No.: Hamilton 17-10334

Between:

Her Majesty the Queen

— and —

Jason Fancey

Before: Justice J.P.P. Fiorucci

Heard on: April 13, 2018

Reasons for Judgment released on: September 19, 2018

Counsel:

• J. Vincelli, counsel for the Crown
• K. Byers, counsel for the defendant Jason Fancey

FIORUCCI J.:

INTRODUCTION

[1] Jason Fancey was charged with Impaired Operation of a Motor Vehicle, contrary to Section 253(1)(a) of the Criminal Code, and Operating a Motor Vehicle with Over 80 milligrams of Alcohol in 100 millilitres of Blood ("Over 80"), contrary to Section 253(1)(b) of the Criminal Code. Both charges arise from a traffic stop which occurred in the City of Hamilton on September 29, 2017.

[2] Prior to trial, Mr. Fancey filed a Charter application seeking exclusion of his breath readings. The prosecution was conducted as a blended voir dire. I heard the evidence pertaining to the alleged Charter breaches blended with the evidence relating to the trial issues.

[3] At the conclusion of the evidence, Crown counsel advised that he would not be seeking a conviction on the Impaired Operation charge. Accordingly, that charge was dismissed. This judgment deals with the remaining Over 80 charge.

[4] Both parties made submissions regarding the Charter application filed in advance of the trial which asserted violations of Mr. Fancey's Section 8 and 9 Charter rights based on the absence of reasonable grounds for the arrest and for the Section 254(3) Criminal Code breath demand.

[5] Mr. Fancey also submits that the breath samples were not taken "as soon as practicable". Therefore, the Crown is not entitled to rely on the presumption of identity in Section 258(1)(c) of the Criminal Code. Since the Crown did not call expert evidence to relate the breath readings back to the time that he was operating the motor vehicle, Mr. Fancey says that there is no evidence of his blood alcohol concentration at that time, and he is entitled to an acquittal.

[6] The Crown contends that the breath samples were taken "as soon as practicable". Furthermore, the Crown submits that, even if the breath samples were not taken "as soon as practicable", the loss of the presumption in Section 258(1)(c) of the Criminal Code is not automatic. The delay in taking the breath samples is subject to Charter scrutiny, and "if a right has been infringed the remedy is to be found in s. 24(2)". I take the Crown's position to be that Mr. Fancey, not having filed an application alleging a Charter violation based on the failure of the police to take the breath samples "as soon as practicable" is not entitled to an acquittal on the Over 80 charge.

[7] My ruling on the "as soon as practicable" issue makes it unnecessary to deal with the Charter issues raised by Mr. Fancey.

THE EVIDENCE

[8] It is not in dispute that 90 minutes elapsed between the time Mr. Fancey was arrested and the time when the Qualified Breath Technician received Mr. Fancey's first sample of breath. The two breath tests were completed 1 hour and 52 minutes after the arrest. The focus of the Defence submission is on the 39 minute gap between Mr. Fancey's arrival at the police station and the first call to Duty Counsel.

[9] The evidence which is material to a determination of the "as soon as practicable" issue can be summarized by way of the following chronology:

Time	Event
9:11 p.m.	P.C. Sarah Mayo received a police dispatch call and was on the lookout for a vehicle
9:14 p.m.	P.C. Mayo stopped Mr. Fancey's vehicle near the intersection of Main Street East and Emerald Street South in the City of Hamilton
9:15 p.m.	P.C. Mayo formed the belief that Mr. Fancey's ability to operate a motor vehicle was impaired by alcohol and arrested him for Impaired Operation
9:18 p.m.	P.C. Mayo made a Section 254(3) Criminal Code demand that Mr. Fancey provide samples of his breath into an approved instrument to determine the concentration, if any, of alcohol in his blood
9:19 p.m.	P.C. Nelson Fiuza, the Qualified Breath Technician, was advised that he would be required to take breath samples from Mr. Fancey. P.C. Fiuza was already at Station 10 Central Police Station at this time
9:20 p.m.	P.C. Mayo read Mr. Fancey his rights to counsel. Mr. Fancey advised P.C. Mayo that he wished to speak with Duty Counsel
9:22 p.m.	P.C. Mayo began transporting Mr. Fancey to Station 10 Central Police Station but turned back to return to the scene of the traffic stop to drop off Mr. Fancey's key which the tow truck driver would need to tow the vehicle. The officer did this because Mr. Fancey's vehicle was in a live lane of traffic. P.C. Mayo estimated that this delayed the arrival to the police station "a couple of minutes", "less than five" minutes
9:29 p.m.	P.C. Mayo arrived at Station 10 with Mr. Fancey. P.C. Mayo entered the custody area and then began the lodging procedures
9:33 p.m.	P.C. Mayo provided her grounds for the breath demand to P.C. Fiuza, the Qualified Breath Technician
10:08 p.m.	P.C. Mayo left a voicemail message for Duty Counsel
10:28 p.m.	P.C. Mayo left an additional message for Duty Counsel because they had not received a call back
10:32 p.m.	P.C. Mayo brought Mr. Fancey to a private phone booth where he had an opportunity to speak with Duty Counsel who was on the line
10:39 p.m.	Mr. Fancey indicated to P.C. Mayo from the booth that he was finished his call with Duty Counsel and P.C. Mayo brought Mr. Fancey to the breath room and left him with P.C. Fiuza
10:45 p.m.	First breath sample provided registering 110 milligrams of alcohol in 100 millilitres of blood
11:07 p.m.	Second breath sample provided registering 100 milligrams of alcohol in 100 millilitres of blood
11:09 p.m.	P.C. Mayo escorted Mr. Fancey back to his cell
11:15 p.m.	P.C. Mayo served Mr. Fancey with documents

[10] In the Witness Statement (Will Say) she prepared for this investigation, P.C. Mayo wrote the following about what happened after she arrived at the police station with Mr. Fancey: "At approximately 21:29, we arrived at Station 10 custody. I provided my grounds to the Breath Tech Officer. I then assisted in lodging Fancey in male cell number 19. At approximately 22:08, I left a voicemail message for duty counsel." The only other notation P.C. Mayo made about the time interval between 9:29 p.m. and 10:08 p.m. is in her notebook where she noted that she provided her grounds to P.C. Fiuza at 9:33 p.m.

[11] P.C. Mayo offered various explanations for what may have happened between 9:33 p.m. and 10:08 p.m., but ultimately conceded in cross-examination that she had no recollection of what actually happened during that period of time. When she testified about this period of time, P.C. Mayo was relying on standard practice and what usually happens.

[12] When she was asked whether Mr. Fancey was the only person in line to be seen by the officer in charge of the custody area, P.C. Mayo responded, "I really cannot remember. I would assume that someone else was ahead of us, but I don't have that noted and I, I don't remember".

[13] When she was asked how long the booking procedure for Mr. Fancey took, P.C. Mayo stated, "I don't have that noted, I can tell you how long it generally takes?". P.C. Mayo then testified that the booking procedure generally takes ten to fifteen minutes. In cross-examination, she agreed that the booking could take five to ten minutes but that, in this case, she had no idea how long the booking took because she made no note of it. P.C. Mayo conceded that she did not know when the booking started or when the booking finished.

[14] Although she had no recollection, or note, of when the booking procedure finished, P.C. Mayo testified that her first call to Duty Counsel, at 10:08 p.m., would have been made "immediately" after the booking procedure was completed. During cross-examination, P.C. Mayo agreed with Defence Counsel's suggestion that the basis for her testimony that she made this call immediately after the booking was completed was the fact that it was her "standard" practice to do so.

[15] She went on to testify that "[i]t's standard-like as soon as the prisoner is safely in the custody cell, you make the call to duty counsel". P.C. Mayo testified that if something different had happened in this case, she would have noted it, and she didn't "know what possibly could have happened" since the phone is in the same room where she would have put Mr. Fancey's property.

[16] P.C. Fiuza testified that he received Mr. Fancey from P.C. Mayo at 10:39 p.m. and took him into the breath tech office at that time. P.C. Fiuza confirmed that, although he dealt with other impaired drivers that night, there was no delay going from one impaired to the next impaired.

[17] P.C. Fiuza was ready for Mr. Fancey at 9:19 p.m., the time at which he was notified that he would be required to take breath samples from him. P.C. Fiuza agreed with Defence Counsel's suggestion that he was available to do the breath testing on Mr. Fancey at 9:45 p.m., or 10:00 p.m., if Mr. Fancey had been able to speak to a lawyer before those times.

ANALYSIS AND ISSUES

Is a Charter application required where the Accused submits that the Crown cannot rely on the Section 258(1)(c) Criminal Code presumption of identity because the breath samples were not taken "As Soon as Practicable"?

(i) The Statutory Provisions:

[18] The phrase "as soon as practicable" appears twice in Section 254(3) and once in Section 258(1)(c).

[19] Section 254(3) requires a peace officer, who has the requisite grounds, to make a demand to the person "as soon as practicable" to require the person to provide, "as soon as practicable" the breath samples.

[20] If each of the breath samples is taken "as soon as practicable", and the other pre-requisites in Section 258(1)(c) are met, the Crown can rely upon the presumption of identity in that subsection.

(ii) The Distinction between Admissibility and the Crown being unable to rely on the Presumption of Identity in Section 258(1)(c):

[21] There is a distinction between cases where the accused seeks exclusion of the breath readings by means of a Charter application and cases where the accused argues, without a Charter application, that the Crown cannot rely on the presumption of identity in Section 258(1)(c) of the Criminal Code because the breath samples were not taken "as soon as practicable".

[22] Where an accused challenges the admissibility of the breath readings, a Charter application is required. In such cases, if a Charter breach is established, the Court must engage in a Section 24(2) analysis to determine whether the admission or the exclusion of the breath readings would bring the administration of justice into disrepute.

[23] However, where an accused submits, without a Charter application, that the Crown has not established the taking of the breath samples "as soon as practicable", he or she is not asking the Court to exclude the breath readings from the trial evidence. Rather, the accused is arguing that the Crown cannot rely on the presumption of identity in Section 258(1)(c) of the Criminal Code which deems the breath readings to be proof of the accused's blood alcohol concentration at the time of the alleged offence.

[24] In such cases, if the Crown fails to establish that the breath samples were taken "as soon as practicable", having called no expert evidence at the trial to relate the readings back to the time of the alleged offence, the Over 80 prosecution fails because there is no evidence of the accused's blood alcohol concentration at the time of operation or care or control.

[25] On the other hand, if the Crown calls expert toxicology evidence, or files an expert report, at the trial to relate the breath readings back to the time of the alleged offence, the Crown is not relying on the Section 258(1)(c) presumption of identity. Therefore, the Crown need not establish that the breath samples were taken "as soon as practicable."

(iii) "As Soon as Practicable" and the Charter:

[26] In Ontario, there are conflicting authorities on the issue of whether the Charter has a place at the table when discussing the requirement to take breath samples "as soon as practicable." A recent Summary Conviction Appeal Court decision states that it does not.

[27] The cases that have held that a Charter breach may result from the failure to take the breath samples "as soon as practicable" do not mandate a Charter application if the accused is simply arguing that the Crown should not benefit from the presumption of identity in Section 258(1)(c) where no toxicology evidence was tendered to relate the readings back to the time of the alleged offence. Contrary to the Crown's submission in our case, neither does the recent Supreme Court of Canada decision in R. v. Alex.

(iv) The Charter Cases:

[28] There are a number of Ontario trial decisions that have found that the failure of the police to take the breath samples "as soon as practicable" constitutes an unreasonable search and seizure which violates Section 8 of the Charter. These cases find that the requirement to take breath samples "as soon as practicable" is a statutory obligation contained in Section 254(3), quite apart from whether the Crown intends to rely on the presumption of identity in Section 258(1)(c).

[29] In R. v. Nascimento-Pires, the breath samples were taken more than two hours after the driving. As such, the Crown could not rely on the presumption of identity in Section 258(1)(c). A toxicologist report was filed as evidence at the trial to establish the accused's blood alcohol concentration at the time of driving. The accused filed a Charter application claiming that the breath samples were not taken "as soon as practicable," and that, therefore, the breath seizure was unlawful.

[30] In assessing this Charter argument, Botham J. referred to the "as soon as practicable" requirement in Section 254(3), not Section 258(1)(c): "Section 254(3) of the Criminal Code which allows for the compulsory seizure of an accused's breath or blood sample, requires that the seizing officer act as soon as practicable to effect that seizure". Botham J. found that the Crown had failed to establish that the police complied with that requirement, and therefore, failed to establish that the warrantless seizure was lawful. This amounted to a breach of the accused's Section 8 Charter right to be secure against unreasonable search and seizure.

[31] In the course of conducting the Section 24(2) analysis, Botham J. revealed the rationale for characterizing the failure to take the breath samples "as soon as practicable" as a Section 8 breach. It is rooted in the detention which is occasioned once a Section 254(3) demand is made:

In balancing all three factors as I am required to do, I cannot ignore the extraordinary power given to the state by virtue of s. 254(3) of the Code. Where grounds exist to arrest for a drinking and driving offence, the state is empowered to continue the detention of that arrestee solely for the purpose of compelling the provision of evidence to be used in his prosecution. There is a statutory requirement of immediacy not only for the making of the demand but carrying out of the seizure. There is a strong societal interest in requiring strict compliance with pre-conditions attached to the exercise of statutory powers which allow the state to over-ride an individual's security of the person.

[32] Therefore, in R. v. Nascimento-Pires, even though the Crown had tendered a toxicologist report to relate the breath readings back to the time of the offence, the prosecution failed because the Court excluded the breath readings from evidence on the basis of the Section 8 Charter breach. There were no admissible breath readings to relate back to the time of driving.

[33] The R. v. Egeli case was factually similar in that the breath readings were obtained outside the two hour limit and the Crown called a forensic toxicologist to give expert opinion evidence relating the breath readings back to the time of the offence. Again, the Crown could not rely on the presumption of identity in Section 258(1)(c) because one of the pre-requisites, the two hour limit, had not been met. The accused raised the failure to take the breath samples "as soon as practicable" as a Section 8 violation. Although the breath readings were ultimately admitted on the Section 24(2) analysis, Cleghorn J. found a Section 8 breach resulted from the failure of the police to take the breath samples "as soon as practicable" as required by Section 254(3). The Court rejected the Crown's submission that the "as soon as practicable" requirement need not be complied with when the Crown is not relying on the presumption of identity in Section 258(1)(c). Cleghorn J. stated that Section 254(3) clearly establishes two temporal requirements for the lawful seizure of breath samples: "the demand must be made as soon as practicable after the officer forms the required grounds AND the samples must also be taken as soon as practicable. This legislative requirement has no connection to the presumption of identity as set out in the Code".

[34] R. v. Jeyabalasingam was another case where the Crown was not seeking to rely on the presumption of identity, but instead called a forensic toxicologist to relate the readings back to the time of the offence. Crewe J. accepted the Defence submission that the police failed to comply with the statutory requirement to take the breath samples "as soon as practicable", thereby violating the accused's Section 8 rights. However, the breath samples were admitted on the Section 24(2) test.

[35] In R. v. Wroniak, Campbell J. found a Section 8 Charter breach based on the failure to take the breath samples "as soon as practicable". Again, this was a case where the Crown had filed a report of a toxicologist relating the breath readings back to the time of the offence, and was not relying on the presumption of identity. The breath readings were admitted into evidence notwithstanding the finding of a breach.

[36] In R. v. McLeod, Brophy J. held that when a Section 254(3) demand is made, there is a burden on the police to act efficiently and "to respond to the situation with some sense of reasonable urgency". The Court in R. v. McLeod was also dealing with a situation where the Crown had filed a CFS report relating the breath readings back to the time of the offence and was not able to rely on the presumption of identity in Section 258(1)(c). Brophy J. noted that the Section 254(3) breath demand which requires the detainee to provide the samples "as soon as practicable" places obligations on the detainee but also on the police:

This would suggest that the samples even after the two hour window are still required to be provided as soon as practicable and that there is no ability on the part of the accused person to create any delay, as they have to respond to the demand. The police control the process and so the burden is on the police to facilitate the accused in providing the samples as soon as practicable. Even after the two hours has elapsed, the statutory scheme says that the compliance with the demand has to be done as soon as practicable. Clearly, the accused cannot determine the schedule for doing that, if he does then he would in all likelihood be charged with a refusal if he created his own schedule and delayed the provision of the samples. Rather the burden remains with the police service to act efficiently.

[37] Brophy J. found a breach of the accused's Section 8 Charter rights on the basis of the failure of the police to take the breath samples "as soon as practicable", as they were required to do by Section 254(3) of the Criminal Code, and excluded the readings after conducting a Section 24(2) analysis.

[38] In a 2014 case, R. v. Dumont, Paciocco J., who was then sitting as a Justice of the Ontario Court of Justice, held that failure to comply with the requirement in Section 254(3) to take the breath samples "as soon as practicable," "makes the search illegal and therefore unreasonable under section 8". However, in R. v. Dumont, Paciocco J. did not engage in a Section 24(2) analysis as this was a case where the Crown had not called expert evidence. Since the Crown was not entitled to rely on the presumption of identity in Section 258(1)(c), there was no evidence before the Court that Mr. Dumont's blood alcohol concentration at the time of driving was over the legal limit, resulting in an acquittal on the Over 80 charge.

[39] From a review of the above cases, it is clear that the trial decisions that have considered Section 8 to be applicable to the taking of breath samples "as soon as practicable" have been cases where the Crown has not relied on the presumption of identity in Section 258(1)(c).

[40] In cases where the first breath sample is taken outside the two hour limit, or close to the two hour limit in Section 258(1)(c), the Crown will disclose to the Defence that it intends to call viva voce evidence from a forensic toxicologist, or file a report of a forensic toxicologist, to relate the breath readings back to the time of the alleged offence.

[41] Armed with this disclosure, an accused who identifies a potential claim that the breath samples were not taken "as soon as practicable" may choose to file a Charter application, relying on the above authorities, to allege that the failure to do so amounts to a Section 8 violation.

[42] The focus of this type of Charter application is on the wording in Section 254(3) which states that the demand is made to the person "to provide, as soon as practicable" the breath samples. This type of Charter claim has nothing to do with the Section 258(1)(c) pre-requisite that "each sample was taken as soon as practicable" because the presumption of identity is not being considered as part of the case. It is off the table completely by this point.

[43] An accused who claims a Section 8 Charter breach of this type, submits that the wording in Section 254(3) contains a requirement that the police act "with some sense of reasonable urgency," failing which their actions will be subject to Charter scrutiny. The authorities reviewed above have accepted that Section 254(3) imposes such a requirement, and that it is independent of the "as soon as practicable" pre-requisite contained in Section 258(1)(c).

[44] If one accepts the proposition that one of the purposes of the requirement to take breath samples "as soon as practicable" is "to minimize the period of detention of breath test subjects", there may be some force to the argument that Section 254(3) imposes a statutory duty on the police to do so, regardless of whether or not the Crown intends to rely on the presumption of identity.

[45] In R. v. St. Jean, Duncan J. asserts that perhaps the main purpose behind the "as soon as practicable" requirement in Section 258(1)(c) is to minimize the inconvenience and infringement on the liberty of the subject. If that same rationale applies to the "as soon as practicable" requirement in Section 254(3), it may lend support to a Section 8 Charter argument that an unreasonable search and seizure occurs when breath samples are not taken "as soon as practicable".

[46] One can envision a situation where the police unnecessarily delay the taking of the breath samples, and commit other serious Charter infringements. An accused would no doubt argue for exclusion of the breath samples on the basis of cumulative violations of his or her Charter rights. In such a case, does the filing of an expert report or calling of expert evidence absolve the police for their lack of diligence in obtaining the samples, which prolongs the accused's detention? It would appear that the authorities discussed below do not focus on the detention of the accused, but rather on the availability of the "statutory short cut" given to the Crown.

(v) The Cases that Reject the Applicability of the Charter:

[47] As noted above, there is a conflicting line of cases in Ontario, including a recent Summary Conviction Appeal, that holds that Section 8 of the Charter is not engaged when the police fail to obtain the breath samples "as soon as practicable".

[48] In R. v. Vallipugam, the accused alleged a Section 8 Charter violation based on the failure of the police to both make the demand and obtain the samples "as soon as practicable". Again, this was a case where the Crown called toxicology evidence to prove the accused's blood alcohol concentration at the time of the alleged offence. Accordingly, the Crown was not relying on the presumption of identity. Kenkel J. found that the demand was made "as soon as practicable" and the breath samples were taken "as soon as practicable". However, he went on to say the following about the accused's Charter claim:

The s. 8 Charter prohibition against unreasonable search and seizure is addressed by the reasonable grounds requirement in s. 254(3). In this case the police had ample grounds to make the demand and conduct the breath tests.

The Criminal Code provides a shortcut in s. 258(1)(c) whereby the breath test readings at the station are deemed to be the accused's blood alcohol level at the time of driving. Any unfairness in that provision is minimized by the requirement that the breath tests and anything that leads up to them be done "as soon as practicable"….. The defence position isolates each component of s. 254(3) as a separate requirement the failing of which renders the demand invalid. However, when the s. 254(3) ASAP terms are considered in the overall statutory context, I disagree that delay in the timing of an otherwise lawful demand or delay in testing pursuant to an otherwise lawful demand necessarily renders the search illegal and contrary to s. 8 of the Charter.

[49] The reasoning in R. v. Vallipugam was followed by Bhabha J. in two trial decisions where the Crown was not relying on the statutory presumption of identity because toxicology evidence was called, R. v. Jin and R. v. Mazit. These cases hold that no Section 8 Charter argument arises "from the delayed collection of breath samples," because "the reasonableness of the seizure of the breath samples has already been addressed by the requirement that there be reasonable grounds to make the approved instrument demand under s. 254(3) of the Code".

[50] André J., sitting as a Summary Conviction Appeal Court in R. v. Mawad rejected the argument that a failure to take the breath samples "as soon as practicable" amounts to an unreasonable search and seizure. The Appellant argued that the Trial Judge had erred by failing to find that his Section 8 Charter rights had been breached. The Appellant relied on R. v. Nascimento-Pires. Again, this was a case where the Crown called a forensic toxicologist at the trial and was not relying on the presumption of identity.

[51] André J. stated, "I fail to see how a statutory short cut given to the Crown to prove a charge of "Over 80" against an accused can be elevated to a violation of his or her constitutional rights". The Court held that the failure to take the breath samples "as soon as practicable" did not amount to an unreasonable search and seizure because the arresting officer and breathalyzer technician had the requisite grounds to make the breathalyzer demand to Mr. Mawad. André J. went on to say that "[t]he situation may have been different had they lacked the grounds to make the demand".

[52] It is clear that the Court in R. v. Mawad viewed the requirement in Section 254(3) that the subject provide the breath samples "as soon as practicable" as a means of assisting the Crown in availing itself of the Section 258(1)(c) presumption of identity, and not as a separate statutory obligation on the police which could attract constitutional scrutiny. Other Ontario cases have followed the reasoning in R. v. Mawad.

[53] Since there is no decision from the Ontario Court of Appeal on the subject, R. v. Mawad would appear to be binding authority for trial courts.

(vi) The Non-Charter Cases: Where the Crown Relies on the Presumption of Identity:

[54] Recent Ontario cases have rejected the notion that the "as soon as practicable" issue is a Charter issue when the Crown seeks to rely on the presumption of identity in Section 258(1)(c), which is what the Crown must do in Mr. Fancey's case since it did not tender expert forensic toxicology evidence to relate the breath readings back to the time of the alleged offence.

[55] In R. v. Willette, the Summary Conviction Appeal Court Judge stated that the as soon as practicable issue "is not an issue of exclusion which necessitates a Charter application by the defence". In this case, the Crown had called no expert evidence to relate the breath readings back to the time of the alleged offence. The Crown submitted that, even if the Trial Judge erred in finding that the breath samples were taken as soon as practicable, absent a Charter application at trial, the breath samples were admissible and the presumption of identity in Section 258(1)(c) applied. The Summary Conviction Appeal Court held that no such Charter application was required and that the presumption of identity would not provide the "evidentiary assist" to the Crown.

[56] The leading case of R. v. Vanderbruggen dealt with the Section 258(1)(c) "as soon as practicable" issue as a non-Charter issue. As Kenkel J. noted in R. v. Inataev, subsequent decisions of 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." He refers specifically to the decisions of R. v. Torsney and R. v. Singh.

[57] As Kenkel J. stated in R. v. Inataev, "[i]t 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". That is what Mr. Fancey has done in this case.

(vii) Is a Charter Application Required in Mr. Fancey's Case by R. v. Alex?:

[58] In his written submissions, Crown counsel submits that if Mr. Fancey's "breath samples are found not to have been taken 'as soon as practicable' loss of the presumptions is not the automatic result". The Crown argues that "[r]ather the delay is then subject to Charter scrutiny and if a right has been infringed the remedy is to be found in s. 24(2)". The Crown relies on the 2017 Supreme Court of Canada decision of R. v. Alex, and the Manitoba Court of Appeal case of R. v. Forsythe.

[59] In R. v. Alex, the Supreme Court of Canada did not deal with the issue of whether a Charter application is required where the accused submits that the breath samples were not taken as soon as practicable. Nothing in the Court's decision suggests that, where the breath samples were not taken as soon as practicable, the Crown can continue to rely on the Section 258(1)(c) presumption of identity unless the accused is successful in excluding the breath evidence by way of a Charter application.

[60] In R. v. Alex, the Supreme Court of Canada dealt with the issue of whether the Crown must establish that the Section 254(3) breath demand was a "lawful" demand before it can take advantage of the "evidentiary shortcuts" contained in Sections 258(1)(c) and 258(1)(g) of the Criminal Code. The Court stated: "[t]he central question in this appeal is whether the opening words of each s. 258 evidentiary shortcut- "where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)"- refer specifically to a lawful demand made under s. 254(3), which, among other things, is predicated on the police having reasonable grounds to make the demand".

[61] A "lawful" breath demand pursuant to Section 254(3) of the Criminal Code requires:

1. That the demand be made by a peace officer;
2. That the peace officer have reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under Section 253 as a result of the consumption of alcohol; and
3. That the demand be made as soon as practicable.

[62] At trial, Mr. Alex argued that the police lacked one of the three requirements of a "lawful" demand, the reasonable grounds to make it. Instead of seeking to exclude the evidence by way of a Section 8 Charter challenge, Mr. Alex argued that the absence of reasonable grounds for the demand deprived the Crown of the Section 258 evidentiary shortcuts.

[63] In R. v. Alex, the majority of the Supreme Court of Canada held that the Crown is not required to prove the lawfulness of the breath demand in every case before it can rely on the statutory presumptions. An accused who seeks to challenge the lawfulness of the breath demand must bring a Section 8 Charter challenge and seek exclusion of the evidence pursuant to Section 24(2).

[64] Moldaver J. noted that this applies in cases where the accused challenges any of the three requirements of a lawful demand:

In combination with s. 24(2), s. 8 provides an effective recourse for challenging the lawfulness of breath demands and a meaningful remedy in the form of excluding the breath test results. Thus, s. 8 also addresses my colleague's concerns about ensuring that police are "conforming to the requirements of the law", including the "other requirements of s. 254(3), such as the requirement that the demand be made by a peace officer or that the demand be made as soon as practicable".

[65] If the accused is successful in excluding the breath evidence on the Charter application, that would end the matter and "[r]esort to the evidentiary shortcuts will be a non-issue".

[66] The R. v. Forsythe case does not assist the Crown with its submission that the accused must bring a Charter application to raise the "as soon as practicable" issue. In R. v. Forsythe, the Manitoba Court of Appeal ruled that compliance with the requirement that the police take the accused's breath samples "as soon as practicable" is not a pre-condition to the admissibility of the breath readings. An accused who seeks exclusion of the breath results must challenge their admissibility by way of an application for exclusion under the Charter.

[67] At most, R. v. Forsythe provides authority for the proposition that the failure of the police to take the breath samples "as soon as practicable" can be characterized as a Charter breach which might result in exclusion of the breath evidence with a proper Charter application filed by the Defence. R. v. Forsythe does not hold that a Charter application is required in every case where the accused simply argues that the Crown should not be entitled to rely on the presumption of identity.

Has the Crown Proven that Mr. Fancey's Breath Samples were taken "As Soon as Practicable"?

[68] In order to rely on the presumption of identity contained in Section 258(1)(c) of the Criminal Code, which deems the results of the breath tests to be proof of the accused's blood alcohol concentration at the time of the offence, in the absence of evidence to the contrary, the Crown must prove, inter alia, that "each sample was taken as soon as practicable after the time when the offence was alleged to have been committed".

[69] The phrase "as soon as practicable" means "nothing more than that the tests were taken within a reasonably prompt time under the circumstances". The Ontario Court of Appeal, in the leading case of R. v. Vanderbruggen, held that "[t]here 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". The Court of Appeal also noted that "[i]n 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".

[70] The Crown is not required to "provide a detailed explanation of what occurred during every minute that the accused is in custody". However, lengthy periods of delay require an explanation. Courts have held that "[i]t is incumbent on the Crown to put forward an explanation where the delay is significant". Where no evidence is led to account for significant delays, the Court can find that the "as soon as practicable" requirement has not been met, and that the presumption is, therefore, not available to the Crown.

[71] A delay between the arrival at the police detachment and the call to counsel, without an adequate explanation, can result in a finding that the "as soon as practicable" requirement has not been met.

[72] In R. v. Dzaja, the Ontario Court of Appeal quashed a conviction for Over 80 and ordered a new trial where the trial judge erred in failing to direct his mind to a 33 minute gap between the attendance before the officer in charge and the call to Duty Counsel. The only explanation on the record for this gap was that the appellant was seated in the report room while the arresting officer processed some paperwork. The arresting officer had testified that the attendance before the officer in charge was five to ten minutes maximum and was at the upper end of that range.

[73] In R. v. George, the officer made no notes, and could not recall how long the parade took. The Court acknowledged that parading the accused would take some time, but there was no evidence of how long it actually took. There was no evidence why there was a 19 minute delay between the arrival of the accused at the police station and the call to Duty Counsel. Hryn J. found this delay to be largely inadequately explained. This, together with other periods of delay which were not adequately explained, resulted in a finding that the Crown had not met its onus to establish that the samples were taken "as soon as practicable".

[74] Notwithstanding the fact that Mr. Fancey was arrested a short distance from the police detachment where he ultimately provided his breath samples, he provided his first breath sample 1 hour and 30 minutes after his arrest. It took 1 hour and 52 minutes for the breath testing to be completed. This significant passage of time requires me to examine all of the circumstances to determine whether the Crown has established that the tests were taken within a reasonably prompt time, and whether the police acted reasonably.

[75] The 39 minute gap between Mr. Fancey's arrival at the police station and the first call to Duty Counsel represents over a third of the time it took to obtain the first sample from him. Although P.C. Mayo testified that she remained in the custody area with Mr. Fancey until the breath testing started, the only note she made was that she provided her grounds to the Breath Tech at 9:33 p.m. and assisted in lodging Mr. Fancy in a cell. There was no evidence presented that would permit me to make a finding of fact that the actions of the police in this 39 minute interval were reasonable.

[76] At some point, during this 39 minutes, the booking process took place. However, P.C. Mayo was unable to assist the Court with how long that took because she had no independent recollection of when it started and when it was completed, nor did she make any notes regarding the duration of the booking process. Again, this complete lack of evidence about what tasks the police were completing on Mr. Fancey's case during this interval is unsatisfactory.

[77] Furthermore, there was no explanation offered for why the police delayed calling Duty Counsel until 10:08 p.m., even though P.C. Mayo knew at 9:20 p.m., at the scene of the traffic stop, that Mr. Fancey had requested to speak with Duty Counsel. It is common knowledge that these calls to Duty Counsel are not always returned promptly.

[78] P.C. Mayo suggested that it is standard practice to make the call to Counsel immediately after the booking process was completed. To the extent that this is standard practice, there was no reliable evidence that this standard practice was followed on this occasion. P.C. Mayo testified that she would have made a note if it was not followed. Unfortunately, in the circumstances, it is difficult to accept P.C. Mayo's evidence in this regard because she had no independent recollection of what happened in that time period, and made virtually no notes about this significant gap of time in the impaired driving investigation.

[79] If it is indeed the standard practice of the Hamilton Police Service to delay the initial call to Counsel until the booking process is complete, perhaps the desirability of such a practice should be re-evaluated, especially in the context of the duties of the police to proceed with reasonable dispatch in impaired driving investigations.

[80] Mr. Fancey's case is illustrative. Having waited 39 minutes to make the initial call to Duty Counsel at 10:08 p.m., a further 20 minutes elapsed before P.C. Mayo decided to leave an additional message for Duty Counsel at 10:28 p.m. because they had not received a call back.

[81] There is no evidence as to what occurred during this additional 20 minute interval. Of course, it is reasonable to infer that, between 10:08 p.m. and 10:28 p.m., the police were waiting for a return call from Duty Counsel so that Mr. Fancey could exercise his constitutionally protected right to consult with counsel. However, in the circumstances of this case, where the police delayed the initial call to Duty Counsel, and the Qualified Breath Technician was available to administer the breath tests to Mr. Fancey, I question whether it was reasonable for the police to wait 20 minutes for a return call without any further action. If the police did take any action in this time interval, there was no evidence as to what that was. For instance, there was no evidence as to whether the police gave any thought to making the second call earlier than 10:28 p.m. based on what they knew to be the typical response time from Duty Counsel. I note that Duty Counsel returned the second call within 4 minutes, at 10:32 p.m.

[82] In my assessment of the "as soon as practicable" issue, I also considered the 2 to 5 minute delay occasioned by P.C. Mayo returning to the scene of the traffic stop to deliver the keys for the vehicle so that the vehicle could be towed. This delay was negligible. Furthermore, I find that P.C. Mayo acted reasonably when she returned to the scene for this purpose because the vehicle was in a live lane of traffic on a busy street, which could have potentially created a danger for others using the roadway.

[83] The Crown has failed to establish that the breath samples were taken "as soon as practicable". My finding is based on the unexplained 39 minute gap in time between the arrival at the police station and the initial call to Duty Counsel, and the insufficient explanation for the 20 minute wait to make the second call to Duty Counsel. Therefore, the Crown is not entitled to rely on the presumption of identity in Section 258(1)(c) of the Criminal Code. There being no other evidence relating the breath readings back to the time of operation of the motor vehicle, Mr. Fancey is found not guilty of Over 80.

Released: September 19, 2018

Signed: Justice J.P.P. Fiorucci