Provincial Court of Nova Scotia
Citation: R v. Munroe, 2018 NSPC 20
Date: 2018-04-25
Docket: 8102668
8102669
Registry: Halifax
Between:
Her Majesty the Queen
v.
Trevor Paul Munroe
Decision on trial
| Judge: |
The Honourable Judge Elizabeth Buckle |
| Heard: |
December 6, 2018; February 8, 12, March 28, 2018 in Halifax, Nova Scotia |
| Decision: |
April 25, 2018 |
| Charges |
253(1)(a) and 253(1)(b) of the Criminal Code |
| Counsel: |
Ron Lacey, for the Crown Nick Fitch, for the Defence |
By the Court:
Introduction
[1] Trevor Munroe was charged that on or about March 2, 2017, he operated a motor vehicle while his ability to do so was impaired by alcohol and with a blood alcohol level over .08, contrary to ss. 253(1)(a) & (b). At the conclusion of the evidence, the “impaired driving” charge was dismissed at the invitation of the Crown so I am dealing only with the “over .08” offence under s. 253(1)(b).
[2] Mr. Munroe was stopped for speeding. The officer formed grounds and made an ASD demand. Mr. Munroe complied and registered a fail. The officer arrested him, advised him of his charter rights and police caution, and made the demand for a breath sample under s. 254(3). After making suitable arrangements for Mr. Munroe’s vehicle and his passenger, the officer took Mr. Munroe and the passenger back to the detachment to have Mr. Munroe take the breath test.
[3] Mr. Munroe took the test. The Certificate of Analysis, which was admitted on consent, establishes that Mr. Munroe’s readings at the time of sampling were over the legal limit. The total time elapsed between the s. 254(3) demand and the taking of the first sample was approximately one hour and fifteen minutes.
[4] The issue is whether the Crown can rely on the “presumption of identity” in s. 258(1)(c) to establish that Mr. Munroe’s blood alcohol at the time of driving was the same as at the time of sampling.
Position of the Parties and Issues
[5] The defence argues that the Crown cannot rely on the presumption of identity in s. 258(1)(c) unless the preconditions are proven beyond a reasonable doubt. The defence concedes all the s. 258(1)(c) requirements except the requirement that the samples be taken “as soon as practicable” in s. 258(1)(c)(ii). The defence further argues that, in this case, the Crown has not proven that the samples were taken as soon as practicable and, therefore, the presumption is not available to the Crown.
[6] The Crown argues that the remedy sought by the defence is a Charter remedy, requiring a Charter application which was not made in this case. The Crown further argues that if the burden is on the Crown, it has proven beyond a reasonable doubt that the samples were taken as soon as practicable.
[7] The specific issues before me are:
1. Is a Charter application required where the accused wishes to argue that the presumption in s. 258(1)(c) is not available to the Crown because the samples were not taken “as soon as practicable”?
2. If no Charter application is required, has the Crown proven beyond a reasonable doubt that the samples were taken “as soon as practicable” in the circumstances?
Procedural History
[8] Mr. Munroe brought a Charter Application, alleging violations of ss. 8, 9 & 10(b) and seeking exclusion of breathalyzer readings. That application was argued on the basis that the officer lacked reasonable grounds to arrest Mr. Munroe and that Mr. Munroe’s right to counsel of choice was violated. In an earlier decision, I dismissed the Charter Application.
[9] On that voir dire, the Crown called Cst. Greg Keeler and Cst. Paul Pottie and the defence called the accused, Trevor Munroe. Counsel agreed that the evidence on the voir dire would be admitted in the trial and the Crown re-called Cst. Greg Keeler to provide further evidence.
Law and Analysis
[10] The relevant sections are:
s. 254(3) If a peace officer has 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, the peace officer may, by demand made as soon as practicable, require the person
(a) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood
. . .
s. 258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(i) repealed before coming into force,
(ii) each sample was 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,
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was . . . the concentration determined by the analyses . . .
Analysis
Issue 1: Is a Charter application required where the accused wishes to argue that the presumption in s. 258(1)(c) is not available to the Crown because the samples were not taken “as soon as practicable”?
[11] It is important to distinguish the cases where the defence seeks exclusion of the certificate of analysis because the s. 254(3) demand was unlawful from the case before me where the defence is arguing that the Crown cannot rely on the presumption of identity in s. 258(1)(c) because the pre-requisites have not been satisfied.
[12] It appears settled law that where the defence argues that the s. 254(3) demand was unlawful so the certificate should be excluded, it must be done through Charter application: Rilling v. The Queen, [1976]2 S.C.R. 183; R. v. Forsythe 2009 MBCA 123, leave to appeal to Supreme Court of Canada refused, [2010] S.C.C.A. No. 60); R. v. Charette et al., 2009 ONCA 310.
[13] A lawful demand under s. 254(3) requires: reasonable grounds to believe an offence has been committed within the previous 3 hours; a demand made as soon as practicable after the alleged offence; and, that the officer require the accused to provide samples as soon as practicable after the demand. Rilling and Charette dealt with the reasonable grounds requirement under s. 254(3). Forsythe confirmed that Rilling also applies when the defence argues that the s. 254(3) demand is unlawful because the sample wasn’t taken as soon as practicable after the demand. It is important to note that Forsythe is not a case about the availability of the presumptions in s. 258. It addressed the “as soon as practicable” requirement of a lawful demand under s. 254(3), not as a pre-condition to the presumption in s. 258(1)(c). It does not appear that there is appellate authority on whether Rilling applies to the other s. 254(3) requirement - that the breath demand be made as soon as practicable after the offence. However, logic would say that it does and lower courts have found that it does: R. v. Dolezsar, 2010 SKPC 142.
[14] This is not the issue before me. The defence in this case is not disputing that the demand was lawful under s. 254(3) and is not asking that the Certificate be excluded.
[15] The presumption of identity in s. 258(1)(c) is available where:
1. the samples “have been taken pursuant to a demand made under subsection 254(3)”,
2. the samples were taken “as soon as practicable” and not later than 2 hours after the alleged offence and with at least 15 minutes between samples.
3. each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
4. an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
[16] It is now also settled law that the first of these requirements (that samples “have been taken pursuant to a demand made under subsection 254(3)”) does not require the Crown to prove that the demand was a lawful demand: R. v. Alex, 2017 SCC 37. That requirement is satisfied where the evidence establishes that a s. 254(3) demand was made and that samples were taken as a result of that demand. Alex does not say that a Charter application is required where the defence argues that one of the s. 258 pre-requisites have not been met. It focusses solely on what is meant by “pursuant to a demand” and in that context explains why it is not the Crown’s burden to prove lawfulness as a pre-condition to relying on the presumption.
[17] This is not the issue before me. The defence here is not arguing that proof of a lawful demand is a prerequisite to the Crown’s reliance on the presumption.
[18] The defence is arguing that the Crown must prove the pre-requisites in s. 258(1)(c), specifically the “as soon as practicable” requirement, before it can rely on the presumption and no Charter argument is required. In my opinion, this issue is not resolved by the Supreme Court of Canada in Forsythe or Alex and I have been unable to locate any appellate authority or decisions in Nova Scotia that deal with it.
[19] The presumption in s. 258(1)(c) is an evidentiary shortcut for the Crown. It allows the Crown to prove the blood alcohol at the time of driving without having to call an expert. Where the presumption is not available, the Crown can still attempt to prove its case by calling evidence from a toxicologist.
[20] Its purpose was recently described in Alex, at para. 34:
The overriding purpose of the evidentiary shortcuts is to streamline proceedings by dispensing with unnecessary evidence. The preconditions governing the evidentiary shortcuts are concerned with the reliability of the breath test results and their correlation to the accused's blood-alcohol concentration at the time of the offence. The lawfulness of a breath demand has no bearing on these matters. This purpose is distinct from that of s. 254(3), which establishes and defines police powers, including the prerequisites for a lawful breath demand. Although the general objective of the statutory drinking and driving regime is the same, "the specific purposes of each mechanism are different": Deruelle, at p. 672.
[21] In this paragraph, Moldaver, J., highlights the distinction in purpose between the demand provision and the presumption provision. This same distinction was earlier noted by Judge Fradsham in R. v. Browning, 2015 ABPC 3. Judge Fradsham concluded that the Crown was required to prove the pre-requisites in s. 258(1)(c) before it could rely on the presumption. In doing so, the court provided a rationale for why the requirement of a lawful demand under s. 254(3) should be treated differently than the more technical requirements in s. 258:
41 As I noted above, there is a fundamental difference between non-compliance with the demand provisions (either in respect of the grounds for the demand or the timing of the demand) and non-compliance with the timing of the actual taking of the breath samples (e.g., taking the breath samples as soon as practicable). In my view, that difference justifies finding that the Crown can rely on the section 258(1) presumptions when the deficiency relates to the demand, but that the Crown may not rely on the section 258(1) presumptions when the deficiency relates to how the samples were taken. The former deficiency will not impact on the reliability of the samples and their analyses while the latter deficiency may well impact on reliability.
[22] This distinction is important. Parliament gave the Crown a presumption of identity. The Crown does not have to call an expert where the evidence establishes that the samples were taken in a manner that would provide assurances of their reliability. Where those assurances are not present, for instance where the samples are taken beyond two hours, the Crown would have to call an expert to provide those assurances.
[23] The cases that have dealt with this issue (eg. Dolezsar, R. v. Inataev, 2015 ONCJ 166; R. v. Willette, 2011 ONSC 1055) also stress a further distinction between the cases where the defence attacks the lawfulness of the demand versus the Crown’s reliance on the presumption. That is, when the defence attacks the pre-conditions to the presumption, it is not seeking to exclude evidence. It makes sense for a number of reasons to require a Charter challenge when the goal is to exclude evidence. However, when the defence attacks the pre-conditions for the presumption, the remedy is simply that the Crown cannot rely on that evidentiary shortcut and must call a toxicologist.
[24] Justice Kenkel, in Inataev provides a very helpful discussion on the law on this issue. He was not dealing with this specific issue but addressed it to contrast it with the issue before him which was the issue subsequently dealt with by the Supreme Court of Canada in Alex.
[25] He reviewed post-Rilling cases where the s. 258 “as soon as practicable” requirement had been addressed as an issue of proof for the Crown and without resort to the Charter: R. v Vanderbruggen, [2006] O.J. No. 1138 (CA), R. v. Torsney, [2009] O.J. No. 2638 (C.A.); and, Willette. Later in the decision, he goes on to say, “It has always been open to the defence to dispute proof of the 258 breath tests “as soon as practicable” requirement and the availability of the presumption of identity without resort to the Charter”. (para. 66).
[26] In Willette, the court specifically considered whether a Charter application was required and concluded that it was not. Rather, the Crown had to prove that the samples were taken as soon as practicable before it could rely on the presumption.
[27] In Alex, despite repeatedly referring to the requirements of the s. 258 presumption, the Supreme Court of Canada did not say that an attack on the presumption required a Charter application. In fact, its language suggests otherwise. For example, when discussing the structure of the two presumptions in s. 258, Justice Moldaver said: “Each includes an opening part followed by a specific list of preconditions that must be met before the evidentiary shortcuts can apply.” (para. 27) In my view, referring to the requirements as “preconditions” and suggesting that they must be met before the evidentiary shortcuts can apply is consistent with the onus being on the Crown.
[28] The necessary extension of the crown’s argument in the case before me would be that, absent a Charter argument, the Crown could still rely on the presumption where any of the other pre-conditions in s. 258(1)(c) were not established. For example, where a sample was taken well beyond the 2 hour limit or not into an approved instrument. In my view this would entirely undermine the assurances of reliability provided by the pre-conditions.
[29] So, in conclusion, in my view, the “presumption of identity” in s. 258(1)(c) is only available to the Crown where the Crown proves beyond a reasonable doubt that the samples were taken as soon as practicable as required by s. 258(1)(ii). I recognize that other decisions (eg. R. v. Mizera, 2015 ABPC 49) have come to a different conclusion. Respectfully, I disagree with those decisions.
Issue2: Has the Crown proven the samples were taken as soon as practicable?
[30] The Crown’s burden is to prove beyond a reasonable doubt that the samples were taken as soon as practicable following the demand. As such, I remind myself of the general principles that apply in every criminal trial. Proof beyond a reasonable doubt is a high standard and approaches absolute certainty. It is more than probability and more than suspicion. In this case Mr. Munroe testified about what was happening between the demand and the taking of the samples. I have to assess his testimony in the context of the evidence as a whole. Where that testimony is inconsistent with guilt, if I believe it or find that it raises a reasonable doubt, I must acquit. Even if I reject his testimony, I have to examine the remaining evidence that I do accept to determine whether the crown has proven guilt beyond a reasonable doubt.
[31] The phrase “as soon as practicable” was interpreted by Rosenberg, J.A. in Vanderbruggen (paras. 12 - 14):
1. the Crown has to demonstrate that the samples were taken “within a reasonably prompt time” in the circumstances;
2. there is no requirement that the Crown provide a detailed explanation of what happened during every minute from when the demand was made until the samples were taken;
3. as soon as practicable does not mean as soon as possible; and,
4. any explanation for delay must be assessed to determine whether it is reasonable with each case being decided on its specific facts.
[32] Unexplained delay or explained delay where the explanation is not reasonable can, depending on the length, result in a conclusion that the presumption is not available to the Crown. In Nova Scotia, cases refer to a threshold of 15 minutes of unexplained or inadequately explained delay, beyond which the court would find the samples had not been taken as soon as practicable: R. v. Russell (1990), 98 N.S.R. (2d) 33 (C.C.); R. v. Trempe, [1992] N.S.J. No. 601; and, R. v. Williams, 2010 NSPC 27; R. v. Cassidy, (unreported decision of Justice Stewart sitting as SCAC, dated May 29, 2003, NSSC).
[33] In this case, it is not disputed that the s. 254(3) demand was made at 9:00 pm and the first sample taken at 10:15 pm, a total period of one hour and 15 minutes. The time-line, which is also not disputed, is as follows:
8:45 Mr. Munroe was stopped for speeding, there was a brief discussion during which Cst. Keeler detected the odour of alcohol, Mr. Munroe admitted having consumed a drink and Cst. Keeler made the ASD demand.
8:51 - 9:00 Mr. Munroe failed the ASD, Cst. Keeler made the breath demand, arrested Mr. Munroe and provided him with his Charter rights and police caution
9:25 Cst. Keeler departed the roadside with Mr. Munroe and his passenger
9:35 They arrived at the detachment and Mr. Munroe was turned over to the breach tech
9:45 Contact was made with duty counsel
9:54 Mr. Munroe finished his call with duty counsel
9:56 Cst. Pottie read the secondary warning and began the observation period
10:15 1st test
10:37 2nd test
[34] The focus of the defence submission is on the 25 minutes spent at the road-side after the demand. The defence does not argue that the remaining elapsed time was unreasonable.
[35] Cst. Keeler and Mr. Munroe testified about what was transpiring during that period. Not surprisingly, they recall the events slightly differently and have specific recollections of different things.
[36] Cst. Keeler testified that by 9:00 p.m., he had completed the process of advising Mr. Munroe that he was under arrest, reading his Charter rights and the police caution. At 9:25 they left the roadside. His recollection was that the intervening 25 minutes was spent addressing a number of concerns. First, Mr. Munroe advised him that he’d been on his way to the airport to catch a flight and was meeting someone there. He asked for and was given permission to call that person to let him/her know that he would not make it. The other concerns took longer to resolve. One was what to do with Mr. Munroe’s vehicle and the other was what to do with Mr. Munroe’s passenger. Mr. Munroe would have to be transported to the local detachment to take the breath test. The passenger had been consuming alcohol and could not operate the vehicle. Cst. Keeler was concerned about the passenger and the truck and explained this to Mr. Munroe.
[37] Cst. Keeler explained that it was dark and he didn’t want to leave the passenger on the side of a 100 series highway without a drive. Normally, the officer would arrange for a tow truck but Mr. Munroe knew someone. Cst. Keeler said that Mr. Munroe was cuffed in the front and he let him have his own cell phone to make calls to see if he could make arrangements for the truck. Cst. Keeler recalled that Mr. Munroe made several calls and was not immediately successful. In cross-examination he said he believed that Mr. Munroe made more than two calls and one of them may have been to his father but he was not specifically listening. While Mr. Munroe was making calls, Cst. Keeler was writing his notes and taking care of some other things he had to do.
[38] Eventually, Mr. Munroe advised Cst. Keeler that he’d found someone who would tow the truck to the detachment, pick him up there and drive him home. It was agreed that he would leave the key in the wheel well so they would not have to wait for the tow truck.
[39] Cst. Keeler decided he would take the passenger back to the detachment rather than leave him on the side of the road waiting for the tow truck. It took a bit of time to make that decision since it wasn’t normal procedure. Initially he wasn’t prepared to transport the passenger and was hoping there was someone who could come pick him up. Ultimately, he decided it wasn’t appropriate to leave him on the side of the highway in the dark waiting for a ride. Then he had to clear the passenger seat of the police car so the passenger could sit there.
[40] Mr. Munroe’s recollection of what transpired at the roadside is not very different than the officer’s. He confirmed he wanted to call the person he was travelling with and wanted to call a specific tow truck driver. He recalled that he reached both of those people quickly. He confirmed that the officer didn’t want to leave his passenger in the vehicle but thought it was because the officer believed he’d been drinking. He testified that he called the tow truck driver a second time from the police car after the officer told him what the mile marker was for where he’d left his truck.
[41] So the main difference in their recollection is whether Mr. Munroe was successful on his first attempt to reach the tow truck driver. Cst. Keeler was not paying specific attention to what Mr. Munroe was doing so where their evidence differs as to the number of calls, I accept Mr. Munroe’s recollection.
[42] I find that during 25 minutes at the roadside, post-demand, the following took place: Cst. Keeler explained to Mr. Munroe that he would be taken back to the station; Mr. Munroe asked to call his travel companion and called that person; there was a discussion about what to do with the truck and the passenger; Mr. Munroe asked to call a tow truck driver he knew and called that person; Cst. Keeler considered whether to take the passenger to the detachment, leave him at the roadside or wait for the tow truck to take him; and, once the decision was made to take the passenger to the detachment, Cst. Keeler cleared space for the passenger in the front seat of the police vehicle and left the key in the wheel well for the tow truck driver.
[43] The defence argues that the evidence does not account for the approximately 25 minutes at the roadside so we are left with at least some period of unexplained delay.
[44] The case law does not require the police to explain every second or minute of delay. The explanation provided which includes the time taken to make phone calls, discuss the situation and for the officer to think about what was reasonable adequately accounts for the 25 minutes at the roadside.
[45] I am also required to consider whether the explanation offered is reasonable in the circumstances. In my view, it was reasonable for the officer to take time to consider the options. The defence argues that he should have done that faster. It is possible that he could have but, in my view, the fact that he didn’t does not result in a conclusion that the explanation was unreasonable.
[46] There is no evidence here of any ulterior motive for the delay, such as the unavailability of a breath technician. The undisputed evidence is that the breath technician was available and was already at the detachment when Cst. Keeler arrived there with Mr. Munroe. I can see no benefit to the officer in waiting at the road side.
[47] The delay in this case was caused primarily by the officer’s attempt to accommodate Mr. Munroe and his passenger. Things would have moved more quickly if the officer had simply called the regular tow truck used by the police and left the passenger on the side of the road to wait for the tow truck. However, the result would have been that a person who had been consuming alcohol would have been left in a vehicle on the side of a 100-series highway, in the dark. The passenger would have had to make arrangements to get home from wherever the tow truck operator took him. Mr. Munroe would have had to find transportation from the detachment to his home.
[48] In the circumstances of this case, there is an adequate explanation for the delay and that explanation is reasonable. As such, I am satisfied beyond a reasonable doubt that the samples were taken as soon as practicable and the presumption is available to the Crown and there will b a conviction for the offence of driving with an illegal blood alcohol limit, contrary to s. 253(1)(b) of the Criminal Code.
Elizabeth A. Buckle, JPC.