COURT FILE NO.: 18-A12650

DATE: 2022/02/03

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

– and –

MATTHEW D. HOWE Appellant

Carl Lem, for the Respondent/Crown

Mark Ertel, for the Appellant/Accused

HEARD: November 24, 2021 (by videoconference)

SUMMARY CONVICTION APPEAL On appeal from the decision of Justice M. Webber, Ontario Court of Justice, at Ottawa, dated September 1, 2020

corthorn J.

Introduction

[1] Mr. Howe appeals his conviction on a single count under s. 253(1)(b) of the Criminal Code (operating a motor vehicle while in excess of 80 milligrams of alcohol in 100 millilitres of blood).[^1] The date of the offence is September 8, 2018. The conviction was entered on September 1, 2020.

[2] The appellant was acquitted of a count under s. 253(1)(a) (impaired driving). The Crown invited an acquittal and the trial judge agreed that the evidence did not support a conviction on that count.

[3] The trial proceeded on August 10, 2020. Two witnesses were called on behalf of the Crown: the arresting officer (Cst. Irvine) and the Intoxilyzer technician (Cst. Vo). The defence called no evidence. Submissions were made on August 20, 2020. Oral reasons were given by Justice M. Webber on September 1, 2020. The appeal record includes transcripts from August 10 and September 1, 2020. A transcript of the submissions is not included as part of the appeal record.

[4] The focus of Defence Counsel’s submissions at trial was whether the Crown had established that the two breath samples taken from the appellant using an Intoxilyzer were taken “as soon as practicable” within the meaning of s. 258(1)(c), as repealed by the Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21, s. 14.[^2]

[5] That section creates a presumption of identity. It provides that where breath samples are “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 that certain other criteria are met, the prosecution may rely upon a presumption of identity. In the absence of evidence to the contrary, the presumption deems the results of the breath samples to be proof of the accused’s blood alcohol level at the time of the offence.

[6] At trial, Defence Counsel pointed to certain periods of “unexplained delay” in the relevant period; submitted that the Crown had not established that the two breath samples were taken from the appellant “as soon as practicable” within the meaning of s. 258(1)(c); submitted that the trial judge could not take judicial notice with respect to an OPS policy requiring the technician to meet with the arresting officer; submitted that the Crown was not entitled to rely upon the presumption of identity; and requested that the court enter an acquittal on the count pursuant to s. 253(1)(b).

[7] In response, the Crown (not the same counsel as on this appeal) submitted that it was not required to explain every minute that passed from the time of the offence to the completion of taking the second breath sample. The Crown submitted that, when the entire chain of events is considered, it had established that the conditions for reliance on the presumption of identity were met. The Crown requested that a conviction be entered.

[8] The trial judge found that the Crown had established that the samples were taken “as soon as practicable” within the meaning of s. 258(1)(c). Mr. Howe was convicted on the count pursuant to s. 253(1)(b).

The Grounds of Appeal and the Crown’s Response

[9] The appeal is from that conviction. The appellant requests that the conviction be set aside and a new trial ordered.[^3] He raises three grounds of appeal:

a) The trial judge erred by finding that there was evidence to support a conclusion that the two breath samples were taken “as soon as practicable” within the meaning of s. 258(1)(c);

b) The trial judge erred by taking judicial notice of certain matters that were neither so notorious or generally accepted as not to be the subject of debate among reasonable persons nor available from readily accessible sources of indisputable accuracy; and

c) The trial judge erred by considering only whether the first breath sample was taken “as soon as practicable” within the meaning of s. 258(1)(c) rather than considering the entire chain of events until the second sample was obtained.

[10] In response, the Crown’s position is as follows:

a) The trial judge did not make any errors of law when determining whether the two breath samples were taken “as soon as practicable” within the meaning of s. 258(1)(c);

b) The trial judge did not err in taking judicial notice as he did; and

c) This court is required to give considerable deference to the decision of the trial judge.

[11] The Crown asks the court to dismiss the appeal.

A Chronology of Events

[12] There is no dispute with respect to the timing of events from the early morning hours on September 8, 2018, when the offence was found by the trial judge to have been committed, to less than two hours later when the second breath sample was completed.

[13] The events from 2:36 a.m. (the approximate time of the offence) to 4:20 a.m. (the completion of the second breath sample) occurred as follows:

2:36 a.m. No earlier than 2:36 a.m., Cst. Irvine observes a vehicle, travelling southbound on Dalhousie Street (near the intersection with Besserer Street), make the first of two abrupt lane changes. Both lane changes are made without any signal and disrupt the flow of traffic.

2:38 a.m. Cst. Irvine makes a traffic stop. When he speaks with Mr. Howe, Cst. Irvine notes the distinct smell of an alcoholic beverage. Cst. Irvine observes that the appellant’s eyes are glossy and that the pupils appear to be dilated more than is normal. On request, the appellant provides his driver’s licence, vehicle registration, and motor vehicle insurance to Cst. Irvine.

2:42 a.m. Cst. Irvine demands that the appellant provide a breath sample using a roadside Approved Screening Device.

2:47 a.m. The appellant provides a breath sample. The result registers a “fail” – meaning more than 100 milligrams of alcohol per 100 millilitres of blood.

2:48 a.m. Cst. Irvine informs the appellant that he is under arrest for “operating a motor vehicle over 80”.[^4] Cst. Irvine requests a back-up unit to assist with the towing of the appellant’s vehicle. Cst. Irvine informs dispatch that a tow is required because he has arrested a driver for operation of a motor vehicle over 80. The receipt of this information prompts dispatch to request that a breathalyzer technician be available at the station.

2:49 a.m. Cst. Irvine relies on the standard wording in his notebook to (a) advise the appellant of his right to counsel, and (b) deliver the standard caution.

2:50 a.m. Cst. Irvine gives the appellant the s. 524 warning.

2:51 a.m. Cst. Irvine demands that the appellant provide a breath sample.

2:54 a.m. Dispatch notifies Cst. Vo that he is required to attend the Elgin Street police station to conduct a breath test.

2:55 a.m. A back-up unit arrives at the scene of the traffic stop. With the appellant in the rear seat of his cruiser, Cst. Irvine leaves the scene of the traffic stop and begins the trip to the Ottawa Police Station.

3:03 a.m. Cst. Irvine arrives with the appellant at the Ottawa Police Station. The appellant is brought in front of the cellblock sergeant and paraded. A special constable conducts a search of the appellant.

3:08 a.m. Cst. Vo arrives at the parking lot of the Elgin Street police station.

3:13 a.m. Cst. Irvine receives a request from the appellant to speak with his counsel.

3:15 a.m. The appellant commences his telephone conversation with his counsel. Cst. Vo enters the breathalyzer technician room. The status screen on the instrument indicates that it is in ready mode. Cst. Vo conducts a self-breath test on the instrument, the results of which are available in less than a minute (i.e., by 3:16 a.m.).

3:18 a.m. The appellant’s telephone conversation with his counsel ends.

3:24 a.m. Cst. Vo conducts a calibration check of the instrument. (Cst. Vo is unable to recall why it took eight minutes, from 3:16 a.m. to 3:24 a.m., between his self-breath test and the calibration check.[^5])

3:25 a.m. Cst. Vo conducts a diagnostic test of the instrument and checks the entire set up to ensure that the quality assurance checks are in working order. Cst. Vo notifies Cst. Irvine that he is ready to take the breath samples from the appellant. Cst. Vo waits in the breath technician room for a response from Cst. Irvine.

3:30 a.m. Cst. Vo begins his meeting with Cst. Irvine. Cst. Vo does not know the specific reason why the meeting did not begin until 3:30 a.m.[^6] During the meeting, Cst. Vo takes notes of the information provided by Cst. Irvine.

3:43 a.m. The meeting between Cst. Irvine and Cst. Vo ends.

3:46 a.m. Cst. Irvine transfers custody of the appellant to Cst. Vo.

3:47 a.m. The appellant informs Cst. Vo that he wishes to use the washroom. Cst. Vo asks the appellant if he is able to wait and use the washroom after the two breath samples are taken. The appellant indicates that he would appreciate being able to use the washroom. Cst. Vo decides to permit the appellant to use the washroom.

3:48 a.m. The appellant is transferred by Cst. Vo to the custody of Cst. Irvine.

3:49 a.m. After the appellant uses the washroom, Cst. Irvine transfers custody of the appellant back to Cst. Vo.

3:51 a.m. Cst. Vo conducts a system blank test, followed by a diagnostic check, on the instrument.

3:52 a.m. Cst. Vo conducts a system blank test, followed by a calibration check, on the instrument.

3:53 a.m. Cst. Vo conducts a system blank test on the instrument.

3:54 a.m. Cst. Vo conducts a diagnostic check and a system blank test on the instrument.

3:56 a.m. Cst. Vo obtains the first breath sample from the appellant, the result of which is 135 milligrams of alcohol in 100 millilitres of blood.

3:57 a.m. Cst. Vo conducts a system blank test on the instrument.

4:15 a.m. After waiting the requisite 15 minutes between the first and second breath samples, Cst. Vo conducts a system blank test, followed by a diagnostic check, on the instrument.

4:16 a.m. Cst. Vo conducts a system blank test on the instrument.

4:17 a.m. Cst. Vo carries out a calibration check and a system blank test on the instrument.

4:18 a.m. Cst. Vo conducts a diagnostic check, followed by a system blank test, on the instrument.

4:20 a.m. Cst. Vo obtains the second breath sample from the appellant, the result of which is 130 milligrams of alcohol in 100 millilitres of blood.

4:26 a.m. Cst. Vo transfers custody of the appellant back to Cst. Irvine.

[14] The results of the breath samples are not in dispute. The issues on this appeal relate solely to the trial judge’s analysis of the chronology of events and whether the samples were taken “as soon as practicable” within the meaning of s. 258(1)(c).

The Trial Judge’s Reasons

[15] The trial judge referred to the principles set out by the Court of Appeal for Ontario in R. v. Vanderbruggen (2006), 2006 CanLII 9039 (ON CA), 206 C.C.C. (3d) 489, at paras. 12 and 13. The trial judge summarized those principles as follows:

In that decision at Paragraph 12, the Court of Appeal made it clear that there need not be proof that the tests were taken as soon as possible, and that the proper question is whether the police acted reasonably.

The Court is required to look at the whole chain of events, keeping in mind that the Criminal Code allows for an outside limit of two hours from the time of offence to the taking of the first test. The Crown is required to prove that the breath samples were taken within a reasonably prompt time, and further, the Crown is not required to provide a detailed explanation of what occurred during each minute that the accused was in custody. (See Paragraph 13 of Vanderbruggen.)[^7]

[16] The trial judge also referred to the decision of the Court of Appeal for Ontario in R. v. Letford (2001), 2000 CanLII 17024 (ON CA), 150 C.C.C. (3d) 225, at para. 20. He did so to emphasize that a trial judge is required to “look to all of the factual circumstances of the detention and investigation. Clearly the Crown need not explain every or all minutes that elapsed.”[^8]

[17] The trial judge’s analysis includes the following findings:

• The time spent at the scene of the arrest until 2:55 a.m. (when Cst. Irvine left the scene with the appellant in the back seat of his cruiser) was “adequately accounted for” by Cst. Irvine. The evidence in that regard supports a conclusion that “this portion of the investigation was completed rather efficiently.”[^9]
• It was not unreasonable for Cst. Irvine to take eight minutes to travel from the Byward Market area to the Ottawa Police Station on Elgin Street.[^10]
• The time taken from the arrival at the Ottawa Police Station (3:03 a.m.) until the appellant completed his telephone call with his counsel (3:18 a.m.) was “reasonable and efficient when considered in light of [the] enumerable other cases [the trial judge has] reviewed”.[^11]
• The only period of time that caused the trial judge concern was from 3:16 a.m. to 3:25 a.m. Cst. Vo was unable to explain why there was a delay from 3:16 a.m. (when he concluded the first self-test on the instrument) to 3:25 a.m. (when he informed Cst. Irvine that he was ready).[^12] With respect to the significance of this delay, the trial judge said, “[b]ut for the fact that I have not found there to be other significant periods of problematic and/or unexplained delay in this matter, this is the type of delay that could well contribute to a finding that the Crown has not satisfactorily proven that the samples were taken as soon as practicable.”[^13]
• The passage of time from 3:25 a.m. (when Cst. Vo informed Cst. Irvine that he was ready) and 3:30 a.m. (when the meeting between the two constables began), “is most reasonably treated by recognizing that the Crown is not obliged to provide a detailed accounting of every minute that an accused is in custody.”[^14]
• The time taken for the meeting between Cst. Vo and Cst. Irvine (3:30 a.m. to 3:43 a.m.) was “sufficiently explained, and it was reasonable in the circumstances.”[^15] This aspect of the trial judge’s reasons (a) includes his reliance on his experience in “alcohol driving trials”[^16], and (b) is discussed in greater detail in a later section of this ruling.
• From the moment that the breath testing of the appellant began, “it was conducted with reasonable dispatch.”[^17]
• Taking into consideration the amount of time that passed from the time of the arrest (2:38 a.m.) to the time when the first breath sample was taken (3:56 a.m.), “[a]t a macro level, it appears that this investigation was conducted with reasonable promptness or dispatch.”[^18]
• In all of the circumstances, “the samples were in fact taken as soon as practicable”.[^19]

[18] I next set out the standard of review and thereafter turn to my analysis of the grounds of appeal.

Standard of Review

[19] The onus to be met by the appellant is set out in s. 686(1)(a) of the Code. The appeal may be allowed if I find that the decision of the trial judge:

a) Is unreasonable or cannot be supported by the evidence (s. 686(1)(a)(i));

b) Is wrong on a decision on a question of law (s. 686(1)(a)(ii)); or

c) Results in a miscarriage of justice (s. 686(1)(a)(iii)).

[20] The standard of review to be applied was established by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. As set out in paragraphs 1, 8 and 10 of the decision in Housen,

• The findings of fact made by the trial judge are to be given deference;
• Those findings may only be set aside if the trial judge made a palpable and overriding error; and
• The standard of review with respect to a question of law is correctness.

Analysis

[21] When determining whether the breath samples were each taken “as soon as practicable after the time when the offence was alleged to have been committed”, the court is required to consider whether the police acted reasonably: Vanderbruggen, at para. 12. That test is to be applied “with reason”: Vanderbruggen, at para.13.

[22] Section 258(1)(c) and the related provisions of the Code were enacted to expedite the trial process, including through the introduction of reliable evidence of an accused’s blood alcohol level: R. v. Singh, 2014 ONCA 293, 120 O.R. (3d) 76, at para. 15. It would run counter to the purpose of the relevant statutory provisions to require “an exact accounting of every moment in the chronology from the time of the offence to the second test”: Singh, at para. 15. The Crown is not required to “provide a detailed explanation of what occurred during every minute that the accused is in custody”: Vanderbruggen, at para. 13.

[23] The grounds of appeal upon which the appellant relies address the following aspects of the trial judge’s reasons:

• The trial judge’s approach to steps taken by one or both of Cst. Irvine and Cst. Vo;
• The trial judge’s treatment of specific periods of the time between the appellant’s arrival at the police station and the taking of the second breath sample; and
• The trial judge’s consideration of the passage of time from 2:36 a.m. to 4:26 a.m. on September 8, 2018.

[24] I deal with these matters in the order in which they are listed above.

▪ Approach to Steps Taken by the Officers

[25] The appellant is critical of the approach taken by the trial judge to the meeting between Cst. Irvine and Cst. Vo. That meeting occurred before the first breath sample was taken; the meeting began at 3:30 a.m. and ended at 3:43 a.m.

[26] Cst. Vo testified that it is a matter of Ottawa Police Service policy and procedure that, as the breathalyzer technician, he is required to meet with the investigating/arresting officer and obtain information related to the arrest.[^20] One purpose served by this meeting is to permit the breathalyzer technician to determine whether a drug recognition officer is also required.[^21] Another purpose is for the breathalyzer technician to ask the arresting officer about their observations of signs of impairment.[^22] Cst. Vo was otherwise unable to provide a specific rationale behind the policy and procedure on which he based his meeting with Cst. Irvine.

[27] The appellant submits that the trial judge erred by improperly taking judicial notice of the underlying rationale for that policy and procedure. The appellant points to the following passage from the trial judge’s reasons:

I have heard more than enough alcohol driving trials to know that the practice of arresting officers conveying their grounds for arrest to the breath technician prior to the breath samples being taken is in fact commonplace. I do take notice of the fact that this type of interview takes place in near every case. Further, notwithstanding the inability or struggles experienced by the technician in this case to clearly articulate the rationale for such a process, there are multiple rationalizations for such an interview that make such a step a reasonable one to complete.

For instance, should an arresting officer have failed, through inadvertence, to make a formal demand, the demand made by the breath tech, presuming it is made on sufficient grounds, will suffice to render the demand lawful.

The point is, all I need to be satisfied of is that the time used to engage in a conversation with the arresting officer [in which] the arresting officer shares his grounds with the officer who is about to extract the breath samples is time reasonably spent. I am satisfied that this is a reasonable step in the course of the investigation.[^23]

[28] The appellant submits that the trial judge erred by taking judicial notice of matters arising from his involvement in other “alcohol driving trials”.[^24] The appellant relies on the recent decision of the Court of Appeal for Ontario in R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401 and the limits set therein with respect to judicial notice.

[29] For the purpose of his assessment of the complainant’s credibility, the trial judge in J.M. took judicial notice, based on his pre-judicial experience as defence counsel, of the potential behaviour of complainants in sexual assault cases. At paragraph 57, the court summarized its conclusion that the trial judge “overstepped the proper boundaries of taking judicial notice – even tacit judicial notice – of a fact that informed his assessment of the credibility of the complainant.”

[30] In J.M., the court considered both the substantive dimension and procedural dimension of judicial notice. With respect to the former, the court highlighted that “the jurisprudence discloses that the issue is somewhat more nuanced as the expression ‘judicial notice’ captures several different forms of judicial notice”: at para. 32. The court identified three forms of judicial notice.

[31] First, the court identified “[t]acit or informal judicial notice, which involves the trier of fact drawing on common experience, common sense or common knowledge to interpret and understand the formal evidence presented at trial”: at para. 32(i). Second, the court identified “[e]xpress judicial notice”, the type of notice which involves notorious and indisputable facts: at para. 32(ii).

[32] Last, the court identified “[c]ontextual judicial notice”: at para. 32(iii). The court summarized this form of judicial notice as operating “at a generalized level, to provide context, background or a frame of reference to assist the trier of a fact in making case-specific findings of fact”.

[33] I find that the trial judge in the matter before this court took tacit or informal judicial notice, based on his judicial common experience, in assessing the conduct of Cst. Vo and Cst. Irvine meeting, as they did, between 3:30 a.m. and 3:43 a.m. I find that the trial judge relied on what the court in J.M. referred to as his “fund of general knowledge”, a fund which is distinguishable from the type of personal knowledge upon which the trial judge in J.M. relied: at para. 34. I find that there was nothing improper about the trial judge taking judicial notice of the frequency with which meetings between an arresting officer and a breathalyzer technician take place.

[34] I agree with the appellant’s submission that the exploration by the trial judge of the rationale for the meeting between Cst. Vo and Cst. Irvine is problematic. I agree that the middle paragraph of the above-quoted section of the trial judge’s reasons is irrelevant to the circumstances of the matter before this court. The evidence is clear that a formal demand for a breath sample was made by Cst. Irvine at the scene of the traffic stop.

[35] There is, however, nothing in the trial judge’s reasons to support a finding that the trial judge concluded that his example, of an arresting officer failing to make the formal demand for a breath sample, was relevant to the circumstances of the case. I find that the provision of that example does not in any way undermine the trial judge’s reasons.

[36] With the trial judge having taken tacit or informal judicial notice of the frequency with which meetings between an arresting officer and a breathalyzer technician take place, and in the absence of any evidence that would support a finding that such a meeting is unreasonable, I find that it was open to the trial judge to conclude that the police officers acted reasonably in participating in the meeting. It was not necessary for the trial judge to make a more specific finding on that point.

[37] For example, in Vanderbruggen, the Court of Appeal for Ontario accepted the explanation offered as to why one hour and fifteen minutes passed from the time of the offence to the time of the first breath sample as evidence that (a) the officers had acted reasonably, and (b) breath samples were obtained as soon as practicable. At para. 14, the court reviewed the steps taken by the officers in that 75-minute stretch of time. Of note, those steps included “conveying the information as to the grounds for the breath demand and waiting for the technician to prepare the breathalyzer ([the technician] was ‘playing around’ with the machine).”

[38] The critical passage from the trial judge’s reasons quoted at paragraph 27, above, is the final paragraph. In that paragraph the trial judge identified that “the point” is that he need only be satisfied that Cst. Irvine and Cst. Vo acted reasonably in that they did not spend their respective time unreasonably.

[39] The appellant submits that in the absence of evidence as to what the policy is, or as to the rationale for the policy, it was impossible for the trial judge to make a finding that the policy offers a reasonable explanation for the delay from 3:30 a.m. to 3:43 a.m. In making that submission, the appellant fails to consider the evidence of Cst. Vo as to the purposes served by a meeting between the arresting officer and the breathalyzer technician (see para. 26, above).

[40] If the appellant wanted the trial judge to consider the rationale for the policy as a basis upon which to conclude that the officers failed to act reasonably, then it was incumbent upon the appellant to call evidence to support such a conclusion. The appellant did not call any evidence at trial.

[41] In the absence of any evidence upon which to question the reasonableness of the policy and procedure, it was open to the trial judge to conclude that, by following the policy and procedure, the officers acted reasonably by meeting as they did. There is no evidence that they acted unreasonably in doing so. There is no evidence that the officers were anything but “attentive to their duties and to the need to administer the tests to the appellant as soon as practicable”: Vanderbruggen, at para. 14. There is no evidence that either of the officers gave “unreasonable priority to any other task”: Vanderbruggen., at para. 14.

[42] In summary, I find that the trial judge did not err in his consideration of the period from 3:30 a.m. to 3:43 a.m. I find that it was proper for the trial judge to take tacit judicial notice with respect to the type of meeting held in that period. This aspect of the trial judge’s reasons does not undermine his overall analysis of the time that passed from the moment of the arrest to the completion of the second breath sample.

▪ Treatment of Specific Periods of Time

[43] The appellant questions the analysis by the trial judge of the passage of time from 3:16 a.m. to 3:25 a.m. and Cst. Vo’s preparation of the instrument. At para. 4 of his factum, the appellant makes the following submission: “[Cst. Vo] arrived at the station at 3:08 a.m. and the evidence revealed that he could have had the machine ready to take samples by 3:15 or 3:16 a.m. For some reason that was not explained in evidence, [Cst. Vo] did not complete his preparations until 3:25 [a.m.].”

[44] First, I find that the appellant’s submission is an overstatement of Cst. Vo’s evidence. As can be seen from the chronology set out above, Cst. Vo took several steps to ensure that the instrument was ready for the first breath sample to be taken. Those steps included the self-breath test at 3:15 a.m., a calibration check at 3:24 a.m., and a diagnostic test at 3:25 a.m. It was Cst. Vo’s evidence that the results of a self-breath test are typically available within a minute of him providing a sample of his own breath. For that reason, the suggested period of delay is from 3:16 a.m. to 3:25 a.m.

[45] Second, the trial judge did not conclude that but for the lack of a finding that there were other significant periods of problematic and/or unexplained delay in this matter, the delay from 3:16 a.m. to 3:25 a.m. would have resulted in a finding that the Crown has not satisfactorily proven that the samples were taken as soon as practicable. The trial judge’s finding is that, in combination with other significant periods of problematic and/or unexplained delay, the delay from 3:16 a.m. to 3:25 a.m. “could well contribute to a finding that the Crown has not satisfactorily proven that the samples were taken as soon as practicable”.[^25]

[46] “Could well” is not sufficiently definitive to favour of the appellant. It is not possible to know what the outcome would have been had the trial judge identified other significant periods of problematic and/or unexplained delay.

[47] For example, had the trial judge considered it necessary to further analyze the period from 3:16 a.m. to 3:25 a.m., he might have considered that the appellant did not complete his telephone call with his counsel until 3:18 a.m.

[48] The trial judge might also have looked at the time taken for Cst. Vo to complete the instrument check prior to taking the second breath sample. That process began at 4:15 a.m. and concluded between 4:18 a.m. and 4:20 a.m. (the latter being the time at which the second breath sample was taken). What would the trial judge have thought of the ‘unexplained’ nine minutes if he had turned his mind to the three to five minutes taken for the second instrument check to be completed?

[49] In any event, I have found that the trial judge did not err in his approach to the nine minutes from 3:16 a.m. to 3:25 a.m.

▪ Consideration of the Passage of Time

[50] The trial judge correctly identified that the question to be asked was whether the police acted reasonably.[^26] He also correctly noted that the Crown was not required to provide a detailed explanation as to what transpired during each segment of time while the appellant was in custody.[^27] Throughout his reasons, the trial judge considered the efficiency with which the officers attended to their respective duties.

[51] The trial judge considered the passage of time from the moment of the arrest to (a) when the first breath sample was taken, and (b) when the second breath sample was concluded. The trial judge reflected on the entire chain of events. He did not fall into the trap of searching for an explanation for each minute of time that passed. The trial judge concluded that, “[a]t a macro level, it appears that this investigation was conducted with reasonable promptness or dispatch.”[^28]

[52] The ground of appeal upon which the appellant relies in an effort to undermine the trial judge’s overall approach to the passage of time from the moment of the arrest to the completion of the second breath sample does not serve to undermine the trial judge’s overall or “macro level” approach.

[53] I find that the trial judge did not make any error in his overall approach to the passage of time.

Disposition

[54] The appeal from the decision of the trial judge is dismissed.

Madam Justice Sylvia Corthorn

Released: February 3, 2022

COURT FILE NO.: 18-A12650

DATE: 2022/02/03

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

– and –

MATTHEW D. HOWE Appellant

ruling on a sUMMARY CONVICTION APPEAL

Madam Justice S. Corthorn

Released: February 3, 2022

[^1]: R.S.C. 1985, c. C-46. All section numbers referred to in this ruling are from the Criminal Code unless otherwise identified.

[^3]: In the notice of appeal, the relief sought is that the appeal be allowed and an acquittal entered or, in the alternative, that the appeal be allowed and a new trial ordered. When the appeal was argued, Mr. Howe’s counsel confirmed that Mr. Howe is no longer seeking the first of the two alternative forms of relief. The request made on the appeal is limited to an order allowing the appeal and directing a new trial.

[^4]: Trial, p. 14, l. 15-16.

[^5]: Trial, p. 47, l. 10.

[^6]: Trial, p. 47, l. 24 to p. 48, l. 3.

[^7]: Reasons, p. 2, l. 21 to p. 3, l. 5.

[^8]: Reasons, p. 3, l. 16-21.

[^9]: Reasons, p. 5, l. 24-29.

[^10]: Reasons, p. 6, l. 4-9.

[^11]: Reasons, p. 7, l. 12-13.

[^12]: Reasons, p. 13, l. 20-26 and p. 15, l. 5-9.

[^13]: Reasons, p. 15, l. 10-15.

[^14]: Reasons, p. 13, l. 28 to p. 14, l. 1.

[^15]: Reasons, p. 8, l. 3-6.

[^16]: Reasons, p. 8, l. 29 to p. 9, l. 23.

[^17]: Reasons, p. 11, l. 19-23.

[^18]: Reasons, p. 14, l. 29 to p. 15, l. 3.

[^19]: Reasons, p. 15, l. 18-19.

[^20]: Trial, p. 48, l. 26 to p. 49, l. 31.

[^21]: Trial, p. 65, l. 30 to p. 66, l. 5.

[^22]: Trial, p. 49, l. 4-8.

[^23]: Reasons, p. 8, l. 29 to p. 9, l. 23.

[^24]: Reasons, p. 8, l. 29 to p. 9, l. 4.

[^25]: Reasons, p. 15, l. 9-15.

[^26]: Reasons, p. 2, l. 24-25.

[^27]: Reasons, p. 3, l. 2-4.

[^28]: Reasons, p. 15, l. 1-3.