I Cite as: R. v. Trempe, 1992 NSCO 18 ' 1991 C . Y . No . 59 2 8 IN THE COUNTY COURT OF DISTRICT NUMBER THREE BETWEEN: LUC TREMPE APPELLANT - and -HER MA,JESTY THE QUEEN RESPONDENT ' HEARD: At Yarmouth, Nova Scotia, on the 27th day of June, A.D. 1991 BEFORE: The Honourable Judge Charles E. Haliburton, J.C.C. CHARGE: Section 253{b) of the Criminal Code DECISION: The 20th day of January, A.D. 1992 COUNSEL: AndrewS. Nickerson, Esq., for the Appellant Robert M. J. Prince, Esq., for the Respondent D E C I S I 0 N 0 N A P P E A L '
' HALIBURTON, J.C.C. The Appellant was convicted after trial Honour Judge James D. Reardon, J.P.C., of the offence thnt he ... did unlawfully operate consumed alcohol in such concentration thereof in milligrams of alcohol in contrary to Section 253 (b) Canada. The Accused raised the same issue at the time of trial as is raised on the appeal, being "were taken as soon as practicable" and/or whether the Trial Judge "erred in law in holding that the peace officers had provided an adequate explanation for delay between the driving and the time of taking the breath tests". ' The facts are not in dispute. R.C.M.P. officer, happened upon a Jeep motor vehicle stopping on the side of the road at 1:55 a.m. out and standing beside the vehicle, constable inquired if he was indicated that he was simply getting out to urinate. other indices of impairment observed. at all times accompanied by a who ultimately became the breathalyzer operator. At 1:58 a.m., the breathalyzer demand was read and at 1:59 a.m., the Appellant was constables and the Appella::1t arrived at the ' 2:31 a.m. inspite of the fact that the office was distance of only five to seven minutes from the point of arrest. before His a motor vehicle having a quantity that the his blood exceeded 80 100 millilitres of blood, of the Criminal Code of whether the breath samples Learned time of Constable Bouchard, an The Accused was seen getting unsteady on his feet. The having vehicle problems and he There were The police constable was second officer, Constable Barker, placed under arrest. The two R.C.M.P. office at located at a
Constable Bouchard, in his testimony, his testimony that the rear locked. He did not want to leave the vehicle unsecured on the side of the road and he awaited a himself was apparently concerned evidence indicates at page 8 of the transcript, ... It (the tow truck) contacted Constable Leger to come truck to arrive and when he arrived we left. At the police detachment, after 2:31a.m., the Accused was again advised of his right to counsel times by Constable Bouchard whether he wished to call a lawyer. This offer apparently ended wanted to "get it over with". "turned the Accused over" to Constable Barker at 2:35 a.m. breathalyzer certificate which discloses blood alcohol levels obtained at 3:07 and 3:27. Finally, at 3:49 a.m., was served upon the Appellant and explained to him by Constable Bouchard. Section 258 ( 1) of the and expeditious method for the admission of evidence relating to the tests of breathalyzer samples and creates to the blood alcohol level of an Accused person. the section is a derogation "presumption of innocence" . - 2 -explained that delay by J door of the jeep could not be tow truck to remove it. He about this delay. As his was taking too long, so I and wait for the tow and was asked seven or eight when the Appellant indicated he As a result, Constable Bouchard The was admitted into evidence of 110 relating to samples the breathalyzer certificate Code establishes a convenient a presumption as The result of of the common law right to As such, the section is to be J
- strictly interpreted. The portions of s. ' particular prosecution read as follows: 258{1) In any proceedings ... under section 253 (c) where samples of the breath of the accused been taken ~ursuant to a (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, the first sample, after that time, with an interval of at least fifteen minutes samples were taken evidence of the results is ..• proof that the concentration of blood of the accused at the time when the offence was alleged to have been committed was ... the concentration determined by the analyses ... It will be observed ' "processing" of the Accused on the night in question were within the two hour limit. Not only was the first sample taken within that time limit, but processed and released in approximately five minutes less than two hours. It could not be argued that the legislative scheme and the principles which prompted the imposition of a were in any way offended by the ultimate time lapse which place in this case. The Accused was dealt with, with the "certificate"· and he his initial apprehension. It could not be argued that any delay with processing him was inordinate, relative to other persons facing similar investigations. ' 3 258 relevant to this have demand ... if ... in the case of not later than two hours between the times when the of the analyses so made alcohol in the that all aspects of the well he was presumably completely two hour limit took he was served was released within two hours of or was prejudicial to him
- At trial, Defence Counsel "delay in excess of an hour. And on that basis, his submission were "not taken in accordance Statute" and, therefore, that the Crown could not avai 1 itself of the evidentiary advantages created by s. 258. The evidence makes it clear that there did pass hour and ten minutes between the time when the demand was and the time when the first breath sample was taken. clear from the cases placed before in each case, an onus upon the authorities to explain any delay. In the absence of such an explanation satisfactory to the Trial Judge, then the results of the tests are not admissible. As the argument of perhaps unfortunate that at the have zeroed in on the "half-hour" that the pol icemen waited at the scene for a tow truck. The evidence discloses that the wait was, in fact, about 25 minutes, minutes lapsed while transporting the Appellant to office and furnishing him counsel. He was turned over to the breathalyzer technician at 2:35 a.m. There was no evidence as to what transpired between 2:35 a.m. and 3:07 a.m, a respect, Defence Counsel has Barker, the technician, was throughout the entire investigation, 4 -argued that there was a Probably an hour and ten minutes". was that the breath samples with the requirements of the and especially the presumption one made It seems me by Counsel that there is, Defence Counsel developed, it is time of trial, he appears to after which ten to twelve the pol ice with an opportunity to contact period of 32 minutes. In thac said only that since Constable in the company of the Accused it should not have been ..J
- ' necessary to keep him under technician for any period of time. that thesis in his argument. In dealing with the properly estimates to be an hour Judge concluded: ... In this particular instance here Bouchard who was able to from the time he apprehended the accused until the time that he was passed over to the breathalyzer technician Constable Barker. He was that he wasn't going to leave an unattended vehicle on the side of the road unti 1 the tow truck arrived. order to make sure that he had accused he then called Constable stand by the immobilized vehicle until such time as the tow truck arrived. The explained before this Court. ' It seems clear from this conclusion that Judge Reardon followed what was the primary thrust of Defence Counsel's addressed himself only to the delay which occurred before parties arrived at the police office. did not address his mind to the after that point and that in failing to do so, he erred in law. The Prosecution, in treat it as "common knowledge" that the breathalyzer technician must observe the accused person for that the mouth of the suspect is empty of foreign objects that he has not burped or regurgitated stomach which could affect the results of the test. ' circumstances, that argument would be more persuasive. 5 - observation as a breathalyzer Crown Counsel has disputed delay which Defence Counsel and ten minutes, the '!'rial we have Constable explain the complete delay concerned, reasonably so, In a sample taken from the Leger to come and delay has been properly (Emphasis added) argument and the I find, however, that he 32 minute delay which occurred its submission, invites me to a period of time to ensure and materials from his In other I think,
- perhaps, one could take judicial notice of the fact that there is a practice by breathalyzer technicians to observe an Accused for a period of 15 minutes before obtaining a that were accepted, it would not explain a which we have in this case Bouchard, who presumably has administering of breath tests even case, established to be a breathalyzer specifically about this point. "common knowledge" alluded to by the transcript, he was asked at line 24: QUESTION: ... how long does it take machine, to warm up the machine? ANSWER: I don't know, I'm not an operator. The evidence offers no clue as to what transpired during this 32 minute period. I accept that Freeman, J.C.C., the relevant law correctly in deciding R. (2d) 33, wherein at paragraph 10 he wrote: [10] The principle that the Crown must prove the test was given as soon well-recognized by the courts and to a number of cases in which acquittals have resulted because time intervals had not been accounted for. shortest of those periods longer than fifteen minutes. [11] I take it to be well-established that when there is no evidence relating to a period of fifteen minutes or more, an acquittal will result. evidence the matter is determined by the trial judge. 6 sample. EvC'n if delay of 32 minutes and, additionally, Constable some familiarity with the though he was not, in this technician, was asked He apparently did not share the Crown Counsel. At page 9 of to prepare the as he then was, stated v. Russell 98 N.S.R. as practicable has been I have been referred The was, I believe, a 1 itt 1 e When there is some a question of fact to be
- 7 I have been refE:!rred ' Counsel as well as some legal writings which discuss the meaning of "as soon as practicable". finding of fact for the Trial Judge; was evidence before him which explained the delay. is no evidence here to explain a me that those considerations are without relevance. In a split decision in ( 2d) 251, the Alberta Court of minute delay between arrival at taking of a test rendered the test admissible. there was a 40 minute lapse between arrival at the detachment and the turning over of the ' technician. The first breath test was taken 12 minutes later. The majority considered that the by hearsay evidence that (1) the street was very active at that time; ( 2) no breathalyze:r technician time; and (3) the breathalyzer technician would arrive shortly. The minority judgment rendered excluded the results of the breathalyzer under the provisions of the section because of his view explaining the 40 minute delay was inadmissible. The British Columbia Court of Appeal was also split in their decision reported as~· v. Cander that case, it was argued that the 20 minute "observation period" was "a matter of policy". A Accused in that case at 10:05 p.m. -to a number of cases by both What is practicable would be a assuming always that there Since there 32 minutes delay, it appears to R. v. Van Der Veen 11 M.V.R. Appeal determined that a 50 a police detachment and the In that case, Accused to the breathalyzer 40 minute delay was explained was avai 1 ab 1 e at that by Harradence J .A., would have that the hearsay evidence 59 C.C.C. (2d) 490. In formal demand was given to the and the first breath sample
- taken at 10:26. In that case, the intervening 21 minutes, the the qualified technician. Included in that period of approximately "investigational guide for impaired drivers" completed. There was testimony that the balance of the time prior to the breath testing was observation of the respondent to ensure that he neither burped nor belched as the witness understood that such actions would affect the police officer testified that is a matter of policy. In Cander, the breath test was administered 21 minutes after the demand and 31 minutes after initial contact with the Lambert, J.A., in his dissenting opinion, minute delay for observation of breath test could not be countenanced contained in the relevant section; administered "as soon as practicable". practice of observing an Accused sufficient explanation of the reasons for establishing such a practice. I refer to the Cander case because it involved a 21 minute delay and not because of the manner in which the delay was explained. Whether the "subjective" or "objective" basis and/or whether an established "policy" can be accepted as consequence on this appeal where explanation. 8 there was evidence that during Accused was delivered over to 21 minutes was a 5 minutes during which an was filled out or spent maintaining an breathalyzer reading. The such observation period (Emphasis added) Accused. concluded that the 20 the Accused before taking the under the admonition that the test was to be He concluded that the for 20 minutes was not a delay in the absence of the 20 or 20 minutes was explained on a an explanation is not of any the Court was left with no
- 9 In conclusion, it may very well have been that in fact ' the breath sample was taken practicable, bearing in mind degree of reasonableness and is not to be equated with as as possible. It may well be actions of both police officers reasonable having regard to all the circumstances. or unfortunately, there is no finding to that effect. I am conscious of the fact that in R. 56 C.C.C. (3d) 548, the Ontario Court of Appeal (Griffiths J.A.) reversed the finding of the "'unexplained delay of nine minutes ... was fatal ' case'" and entered a conviction. consistent with the proposition enunciated Russell that an unexplained delay threshold. An unexplained delay of that threshold. In the circumstances, delay of 32 minutes drives me to the conclusion that the breath sample was not taken "as soon cannot rely on the provisions of s. 258(l)(c)(ii) Certificate of Analysis is inadmissible as evidence against the Accused. The appeal will, acquittal entered. -from the Accused as soon as that practicable imports some soon that the facts were that the involved were eminently Fortunately evidence which would permit a v. Payne (1990) Trial Judge who found an to the Crown's This would seem to be by Judge Freeman in of 15 minutes approaches a 32 minutes is well beyond I conclude that the unexplained as practicable"; that the Crown and that the therefore, be allowed and an
- 10 -DATED at Digby, Nova Scotia, this 20th day of January, ~ A.D. 1992. ~~:~ JUDGE OF THE COUNTY COURT OF DISTRICT NUMBER THREE TO: Mrs. Diane Hamilton Clerk of the County Court P.O. Box 188 Yarmouth, Nova Scotia B5A 4B2 Mr. Andrew S. Nickerson Chipman, Fraser, Pink & Nickerson Barristers and Solicitors P.O. Drawer 580 Yarmouth, Nova Scotia B5A 4B4 Solicitor for the Appellant Mr. Robert M. J. Prince Senior Crown Attorney P.O. Box 550 Yarmouth, Nova Scotia B5A 4B6 Solicitor for the Respondent CASES AND STATUTES CITED: Section 258(1) of the Criminal Code R. v. Russell 98 N.S.R. (2d) 33 R. v. Van Der Veen 11 M.V.R. (2d) 251 R. v. Cander 59 C.C.C. (2d) 490 R. v. Payne (1990) 56 C.C.C. (3d) 548
'•, \. 1\PR lB 1991 -·- • ·~ADA PROVINCE OF NOVA SCOTIA CASE 1190342 IN THE COUNTY COURT OF DISTRICT NUMBER THREE ON APPEAL FROM PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN, RESPONDENT - and -LUC TREMPE, APPELLANT HEARD BEFORE: His Honour Judge James D. Reardon, J. P. C. (;LACE HEARD: Yarmouth, Nova Scotia DATE HEARD: February 22nd. 1991 CHARGE: That at or near Hardscratch Road, in the County of Yarmouth, Nova· Scotia, on or about the 27th. day of October, 1990 did unlawfully operate a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to Section 253 (b) of the Criminal Code of Canada. COUNSEL: Lloyd Tancock, Crown Attorney AndrewS. Nickerson, Esq., for Defence ' C A S E 0 N A P P E A L
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