R. v. Burwell (J.), 2015 SKCA 37

• Judge: Jackson, Klebuc and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 17, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 37;(2015), 472 Sask.R. 1 (CA)

R. v. Burwell (J.) (2015), 472 Sask.R. 1 (CA);

    658 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AP.056

Jeffery Burwell (appellant) v. Her Majesty the Queen (respondent)

(CACR2265; 2015 SKCA 37)

Indexed As: R. v. Burwell (J.)

Saskatchewan Court of Appeal

Jackson, Klebuc and Ottenbreit, JJ.A.

April 17, 2015.

Summary:

The accused was charged with impaired driving and driving while having an excessive blood-alcohol level. The accused asserted that his ss. 7, 8 and 9 Charter rights were violated. The Crown withdrew the impaired driving charge.

The Saskatchewan Provincial Court, in a decision reported at [2011] Sask.R. Uned. 181, dismissed the application respecting ss. 8 and 9 of the Charter. The s. 7 application was to be dealt with at the close of trial.

The Saskatchewan Provincial Court, in a decision reported at 401 Sask.R. 100, held that the breath tests were not taken as soon as practicable and therefore the Crown could not rely on the presumption of identity in s. 258(1)(c) of the Criminal Code. As there was no evidence proving that he was over .08 at the time that he was driving, the court found the accused not guilty. The court declined to address the alleged s. 7 breach. The Crown appealed the acquittal.

The Saskatchewan Court of Queen's Bench, in a decision reported at 412 Sask.R. 94, allowed the appeal, found the accused guilty as charged and remitted the matter to the trial judge for sentencing. The accused applied for leave to appeal, and if granted, appealed. The following issues were raised: (1) whether the summary conviction appeal judge erred by holding that "as soon as practicable" in s. 258(1)(c)(ii) was a legal standard; and (2) if not, did he err by concluding that the trial judge erred by finding that the first sample was not taken as "as soon as practicable"; and (3) should the summary conviction appeal judge's decision be set aside and the matter remitted to the trial judge to address the outstanding Charter issues.

The Saskatchewan Court of Appeal granted leave to appeal, allowed the appeal and ordered a new trial. Klebuc and Ottenbreit, JJ.A., answered the first two issues in the negative and allowed the appeal based on the third issue. Jackson, J.A., dissenting, answered the first issue in the negative and divided the second issue into two sub issues ((1) did the summary conviction appeal judge give proper effect to the trial judge's findings; and (2) did he err by concluding as a matter of law that the samples were taken as soon as practicable) which he answered in the affirmative. Based on those findings, Jackson, J.A., would have set aside the conviction and restored the acquittal.

Courts - Topic 2104

Jurisdiction - Appelate jurisdiction - Issues overlooked by trial judge - The accused was charged with driving while having an excessive blood-alcohol level - The accused asserted that his ss. 7, 8 and 9 Charter rights were violated - The trial judge issued an interim ruling dismissing the application respecting ss. 8 and 9 of the Charter - The s. 7 application was to be dealt with at the close of trial - At trial, the judge concluded that the breath tests were not taken as soon as practicable and therefore the Crown could not rely on the presumption of identity in s. 258(1)(c) of the Criminal Code - The judge found the accused not guilty and declined to address the alleged s. 7 breach - A summary conviction appeal court judge allowed the Crown's appeal, holding that the breath samples were taken "as soon as practicable" - The appeal judge found the accused guilty as charged - The accused appealed - The Saskatchewan Court of Appeal affirmed the appeal judge's findings, but allowed the appeal and ordered a new trial - The trial judge failed to extend to the accused an opportunity to fully address his argument that his s. 7 Charter rights were violated and a stay was appropriate - The court rejected the Crown's assertion that it was incumbent upon the accused to raise the outstanding Charter issue before the appeal judge, even though the Crown had not raised the issue in its notice of appeal or its submissions to the appeal judge - Moreover, the accused was neither required nor entitled to cross-appeal from the trial judge's favourable decision - The Crown also asserted that the accused had to demonstrate that his s. 7 right to full answer and defence had been prejudiced - The accused could only meet those requirements by presenting viva voce and affidavit evidence before the court - The court's role and practice did not include conducting such hearings - See paragraphs 42 to 49 and 142.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - At 11:55 p.m., a police officer (Martin) detained the accused for an impaired driving investigation - The accused blew a "fail" on an approved screening device - At 12:04 a.m., Martin made a breath demand - Martin made inquiries at the Delisle RCMP detachment (the closest detachment) but was advised that no members were working that night and none were available to meet him at the detachment - Martin was a qualified breath technician but did not have a key to the detachment - He transported the accused to the Saskatoon detachment (the next closest detachment that had testing equipment and a qualified technician) - They arrived at 12:43 a.m. - No technician was available to perform the test - It took Martin 10 to 20 minutes to perform required maintenance and prepare the Intoxilyzer - He administered the first test at 1:06 a.m and the second test at 1:27 a.m. - The trial judge found the accused not guilty of driving while having an excessive blood-alcohol level - There was no evidence as to why the Delisle detachment could not accommodate Martin and the accused - Absent evidence on the point, it could not be concluded that travelling to Saskatoon was reasonable - Further, in the 34 minutes it took to travel to Saskatoon, a breath technician should have been able to attend the Saskatoon detachment and prepare, or at least start the process of preparing, the Intoxilyzer - At the time, nobody was responsible for ensuring that the Intoxilyzer was in proper working order - That process was less than satisfactory - The cumulative effect of the delays was that the breath samples were not taken as soon as practicable - As a result, the presumption of identity was lost and the certificate of analysis was not evidence of blood-alcohol content at the time of the offence - A summary conviction appeal court judge allowed the Crown's appeal - The trial judge applied a standard of "as soon as possible" instead of the "as soon as practicable" standard - The reasonable promptness required to meet the latter standard was based on the circumstances which the officer found to exist after the demand was made - Before finding that the circumstance itself was unreasonable, there should be evidence that that circumstance was out of the ordinary in an unacceptable way, which was not the case here - It was unrealistic to suggest that every rural detachment should have a breath technician available 24/7 or to expect breath technicians to remain at the detachment in the off chance they would be required or to expect perfection in the control of the expiration dates on the Intoxilyzer solution - The only thing unusual here was that each of those three minor delays coalesced in the same case - That coincidence was not indicative of a system problem that made the explanation for the delay unacceptable - The breath samples were taken "as soon as practicable" - The Saskatchewan Court of Appeal affirmed the summary conviction appeal court judge's conclusion that the samples had been taken "as soon as practicable", but allowed the appeal on other grounds - See paragraphs 27 to 41 and 117 to 141.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - The Saskatchewan Court of Appeal affirmed a finding that the "as soon as practicable" provision in s. 258(1)(c)(iii) of the Criminal Code created a legal standard - See paragraphs 13 to 26, 66 to 85 and 116.

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - Scope of appeal - [See Courts - Topic 2104 ].

Criminal Law - Topic 7633

Summary conviction proceedings - Appeals - New trials - Grounds - [See Courts - Topic 2104 ].

Cases Noticed:

R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379; 206 C.C.C.(3d) 489 (C.A.), refd to. [paras. 9, 72, 119].

R. v. Letford (J.) (2000), 139 O.A.C. 387; 51 O.R.(3d) 737; 150 C.C.C.(3d) 225 (C.A.), refd to. [paras. 9, 94, 133].

R. v. Carter (1981), 9 Sask.R. 1; 59 C.C.C.(2d) 450 (C.A.), refd to. [paras. 9, 71, 121].

R. v. Finlayson (1974), 21 C.C.C.(2d) 511 (Sask. C.A.), refd to. [paras. 9, 71].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [paras. 10, 62].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 10].

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81, refd to. [para. 10].

Farm Credit Corp. v. Valley Beef Producers Co-operative Ltd. et al. (2002), 223 Sask.R. 236; 277 W.A.C. 236; 2002 SKCA 100, refd to. [para. 10].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [paras. 10, 75].

R. v. Wills (B.) (2014), 318 O.A.C. 99; 308 C.C.C.(3d) 109; 2014 ONCA 178, affd. [2014] 3 S.C.R. 612; 465 N.R. 301; 327 O.A.C. 4; 2014 SCC 73, refd to. [para. 10].

R. v. Hiebert (R.A.) (2004), 255 Sask.R. 56; 2004 SKQB 387, refd to. [para. 13].

R. v. Carey (B.) (2006), 215 O.A.C. 151; 83 O.R.(3d) 49 (C.A.), refd to. [paras. 14, 121].

R. v. Samorodny (1993), 44 M.V.R.(2d) 19 (Ont. Gen. Div.), refd to. [para. 14].

R. v. Nicholls (2006), 69 M.V.R.(5th) 190 (Ont. Sup. Ct.), refd to. [para. 26].

R. v. Payne (1990), 38 O.A.C. 161; 56 C.C.C.(3d) 548 (C.A.), refd to. [para. 26].

R. v. Mailey (P.O.) (2012), 537 A.R. 263; 2012 ABQB 138, refd to. [paras. 26, 80].

R. v. Mudry (1979), 19 A.R. 379; 50 C.C.C.(2d) 518; 1979 ABCA 286, refd to. [paras. 34, 102].

R. v. Chrisjohn, 2011 ONSC 383, refd to. [para. 34].

R. v. Devlin, [1993] O.J. No. 3393 (Gen. Div.), refd to. [para. 34].

R. v. MacMillan (2004), 9 M.V.R.(5th) 221; 2004 ONCJ 258, refd to. [para. 34].

R. v. Potts (1982), 66 C.C.C.(2d) 219 (Ont. C.A.), refd to. [para. 36].

R. v. Ilyassov (E.), [2013] O.T.C. Uned. 5252; 2013 ONSC 5252, refd to. [para. 39].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 48].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 48].

R. v. McCoy (1990), 86 Sask.R. 204 (Q.B.), refd to. [para. 60].

R. v. Tarr (L.) (1998), 168 Sask.R. 161; 173 W.A.C. 161 (C.A.), refd to. [para. 71].

R. v. Jensen (1982), 55 N.S.R.(2d) 124; 114 A.P.R. 124 (C.A.), refd to. [para. 72].

R. v. Ford (J.B.) (2008), 234 Man.R.(2d) 103; 2008 MBQB 298, refd to. [para. 72].

R. v. Carter (1980), 55 C.C.C.(2d) 405 (B.C.C.A.), refd to. [para. 73].

R. v. Cander (1981), 59 C.C.C.(2d) 490 (B.C.C.A.), refd to. [para. 73].

R. v. Myrick (N.J.) (1995), 130 Nfld. & P.E.I.R. 144; 405 A.P.R. 144 (Nfld. C.A.), refd to. [para. 73].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 75].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 76].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 78].

R. v. MacKenzie (B.C.), [2013] 3 S.C.R. 250; 448 N.R. 246; 423 Sask.R. 185; 588 W.A.C. 185; 2013 SCC 50, refd to. [para. 78].

R. v. Torsney (2009), 81 M.V.R.(5th) 212 (Ont. C.A.), refd to. [para. 79].

R. v. Singh (S.) (2014), 318 O.A.C. 232; 310 C.C.C.(3d) 285; 2014 ONCA 293, refd to. [paras. 79, 120].

R. v. Stevens (K.B.), [2010] B.C.T.C. Uned. 1573; 2010 BCSC 1573, refd to. [para. 80].

R. v. Elliott (M.E.), [2013] B.C.T.C. Uned. 2169; 55 M.V.R.(6th) 224; 2013 BCSC 2169, refd to. [para. 80].

R. v. Buffalo (M.D.) (2010), 480 A.R. 284; 2010 ABQB 325, refd to. [para. 80].

R. v. Plonka (A.), [2008] B.C.T.C. Uned. 548; 2008 BCSC 881, refd to. [para. 80].

R. v. Albus (C.) (2014), 450 Sask.R. 136; 2014 SKQB 219, refd to. [para. 80].

R. v. Friesen (C.) (2012), 407 Sask.R. 282; 2012 SKQB 488, refd to. [para. 80].

R. v. Sword (J.C.) (2015), 466 Sask.R. 108; 2015 SKQB 9, refd to. [para. 80].

R. v. Beharry (M.), [2014] O.T.C. Uned. 848; 2014 ONSC 848, refd to. [para. 80].

R. v. Wetzel (D.B.) (2013), 427 Sask.R. 261; 591 W.A.C. 261; 2013 SKCA 143, refd to. [para. 82].

R. v. Labadie (M.) (2011), 277 O.A.C. 153; 2011 ONCA 227, refd to. [para. 82].

R. v. Johnson (L.C.) (1986), 49 Sask.R. 217 (C.A.), refd to. [para. 82].

R. v. Langlois (I.) (1999), 89 O.T.C. 150 (Gen. Div.), refd to. [para. 106].

R. v. Dzaja (I.) (2003), 173 O.A.C. 14 (C.A.), refd to. [para. 106].

Counsel:

Michael W. Owens, for the appellant;

Erin L. Schroh, for the respondent.

This appeal was heard on October 22, 2014, by Jackson, Klebuc and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal.

The decision of the court was released on April 17, 2015, with the following opinions:

Klebuc, J.A. - see paragraphs 1 to 50;

Jackson, J.A., dissenting - see paragraphs 51 to 113;

Ottenbreit, J.A. - see paragraphs 114 to 143.