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23 Jun 2011

As Soon As Practicable: Effect of Forsythe (MCA)(2009)

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This Newsletter is intended to assist lawyers, crown and judges in the relatively complex area of impaired/08 litigation.  It is NOT intended as legal advice for the general public.  The author assumes that the reader not only has a law degree, but commonly engages in criminal litigation and constitutional analysis.  The post can be reproduced in court, or for educational purposes free of charge, but cannot be republished for monetary benefit.  For example, the post can be remitted in court or used to discuss the issues in question in a law school lecture, as long as credit (or blame) for the post is given to Alan Pearse.  It cannot be republished or sold without Mr. Pearse’s specific written permission.  If you have any questions, concerns or insults, please feel free to contact Mr. Pearse directly at 1-866-912-3560, or outside of Alberta (403) 912 – 3560.  Mr. Pearse is not an “Internet” person, and prefers to use the telephone.  He also tends to refer to himself in the third person.



There has been a great deal of debate as to the effect of the Manitoba Court of Appeal decision in R v Forsythe.  In my opinion, the Forsythe decision is in-concurrent with the SCC’s decision in Deruelle.  However, even if one accepts the concept that the MCA can expand the As Soon As Practicable requirement for the demand, even the most generous and expansive interpretation of Forsythecannot encompass a CRF 8 analysis of the As Soon As Practicable requirement for the sample, as the SCC in R v Deruelle clearly states that the sample relates only to the statutory presumption.  As it relates to the sample, the law is completely settled, and no lower court has the ability to modify this.


A.  As Soon As Practicable:   The Short Version

 There are two “as soon as practicable” tests.  The tests are:

1.  Concerning the demand.  Here, the law in Alberta is not settled. It is possible for the crown to suggest that this must be phrased as a Charter argument.

2. Concerning the sample.  Here, the law has already been settled by the Supreme Court of Canada. The issue relates to the evidentiary presumption. It has nothing to do with the admissibility.There is absolutely no requirement that the accused must frame this as a Charter argument.


B.  Basic Overview of the Rules

 There is no such thing as an “as soon as practicable” argument. There are, in fact, two very distinct types of  “as soon as practicable” arguments. They are:

1.  Was the demand taken “as soon as practicable” as per CC 254(3)(a)(ii)?

2.   Was the sample taken “as soon as practicable” as per CC 258(1)(c)(ii)?

For years, the law was very clear that both of these tests were statutory in nature.   R v Forsythe 2009 MBCA 123 modified this analysis. This case states that, in Manitoba, the demand requirement must be phrased as a CRF argument.  This is not currently the law in Alberta, however, it is a fair point for the crown to raise. While I do not agree with the analysis, crown prosecutors are correct to bring this case to a court’s attention.  However, R v Forsythe 2009 MBCA 123 has nothing to do with the sample.  Indeed, as the Supreme Court of Canada has already ruled on this exact point, it would be very unusual if they had. The law on this point is not open to dispute, and it is an error of law for any court to hold that the sample requirement must be phrased as a Charter application.  R. v. Deruelle (1992) 75 C.C.C. (3d) 118 (SCC) is the leading case from the SCC, and deserves a close reading.  The SCC held:

17   The invalid premise that s. 258(1)(c) governs admissibility is at the heart of the interpretational approach of Jones J.A. in the court below. This approach was first advanced by Barry J. in Goodyear, supra, and was stressed by counsel for the respondent during this appeal. The dissenting reasons of Macdonald J.A. provide an apt response to this approach, at pp. 432-433 [N.S.R.]:

 Because alcohol is metabolized by the human body, the result of a breath or blood sample analysis in actual fact is not the same as the alcohol/blood concentration at the time the accused committed the alleged offence. Section 258(1)(c) and (d) provides the Crown with a procedural shortcut in the form of a presumption that the concentration of alcohol in the blood of the accused at the time of the alleged offence was the same as determined by the breath or blood analysis. The benefit of the presumption saves the Crown from calling expert evidence as to what the actual blood-alcohol concentration was at the time the alleged offence was committed based on the results of the analysis of the sample of blood or breath. In order to take advantage of this presumption, the prosecution must establish amongst other things that the breath or blood samples were taken not later than two hours after the alleged offence was committed.

 Where, as here, the breath or blood sample is taken more than two hours after the commission of the alleged offence, the Crown loses the benefit of the presumption but nothing more, provided the officer who demanded the breath or blood samples formulated a belief that within the preceding two hours the accused had committed a drinking and driving offence.

 The position taken by Barry J., in R. v. Goodyear, supra, as expressed at p. 261 of the report was that the two hour time period stipulated in what is now s. 254(3) of the Code is the same two hour time period prescribed by what is now 258(1)(c). In other words, Mr. Justice Barry interprets s. 254(3) as requiring that the belief, the demand and the breath or blood sample be formulated, given and taken within two hours of the alleged offence. I agree with the judgment in R. v. Pavel, supra, that s. 254(3) cannot reasonably bear such interpretation.

I do not read the presumption sections (ss. 253(1)(c) and (d)) which are purely evidentiary as relating back to the substantive provisions of s. 254(3) of the Code so as to require not only that the requisite belief be formulated within two hours of the alleged offence, but also that the breath or blood sample demand, let alone the taking of such samples, also be done within such two hour period.

As Macdonald J.A. suggests, it is now settled law that a failure to comply with the provisions of s. 258 robs the Crown of the benefit of the presumption therein but nothing more. The evidence obtained is still admissible: see R. v. May (1971), 16 C.R.N.S. 392, [1972] 1 W.W.R. 54, 5 C.C.C. (2d) 213 (Alta. T.D.); R. v. Hamm, supra; R. v. Burnison (1979), 70 C.C.C. (2d) 38(Ont. C.A.). This point was made by this court at the hearing and was conceded by counsel for the respondent. I note, however, that R.M. MacLeod, J.D. Takach and M.D. Segal in Breathalyzer Law in Canada, 3rd ed. (Toronto: Carswell, 1986) at pp. 12-40 to 12-49, suggest that this proposition is still open for debate. In my view, however, the analysis of the Saskatchewan Court of Appeal in Hamm put this issue to rest some years ago.

18   During the hearing of this appeal, counsel for the respondent conceded that s. 258(1)(c) does not govern admissibility. This concession reduced her argument on the breathalyzer scheme to this: the scheme is preoccupied with a two-hour limit, and consequently such a limit should be attached to the making of the demand by the police. However, this is far too tenuous a link to influence the interpretation of the provision in question. The specific objective of s. 254(3) does not depend upon attaching the time limit to the demand. Whether the limiting event is the belief or the demand, the overriding requirement in the subsection is that the sample be obtained as soon as is practicable. Thus, both interpretations under consideration in this appeal will impose some requirement of promptness on the police. However, the interpretation urged by the respondent would be unfair to the police in some circumstances

 [emphasis is mine]

 Ergo, R v Deruelle is very, very clear on this point.  It says that:

1.  The demand requirement relates to admissibility, and

2. The sample requirement relates to the presumption.  The certificate is admissible, but the crown cannot get the benefit of the presumption back.

 The relevant standard is equally clear:  Proof beyond a reasonable doubt.  The Honourable Judge Allen holds as follows in R v Sanche [2003] A.J. No. 1108:

 20      Where the Crown is relying upon the presumption in s. 258(1)(c), the onus is upon the Crown to establish each of the prerequisites in the section beyond a reasonable doubt. If a reasonable doubt is raised as to any of the prerequisites then the presumption is unavailable to the Crown to prove the blood alcohol reading at the time of the offence.


C.        R v Duff and R v Dickinson

What then to make of R v Duff 2010 Carswell 1947?  This is a case decided by the Honourable Judge Semenuk.  Judge Semenuk states:

 63        As I understand this issue raised by Defence Counsel, he submits that the Intoxilyzer Test was not authorized by law because the breath samples provided by the Accused were not provided “as soon as practicable”, as required by the express wording of sections 254(3) and 258(1)(c)(ii) of the Criminal Code. The Intoxilyzer Test not being authorized by law, a Section 8 Charter violation resulted.

 Judge Semenuk then proceeds to rule as if the issue were a CRF 8 application.  Note that there is no reference to R v Deruelle, and it is not listed in his considered authorities.  More recently, Judge Semenuk gave a similar analysis in R v Dickinson2011 CarswellAlta 11.  Again, he holds:

1        The Accused is charged with over 80 and impaired operation offences. Defence Counsel has given Charter Notice alleging a breach or violation of both Sections 8 and 10(b) of the Charter. Defence Counsel submits that the taking of the second breath sample was not authorized by law as it was not taken from the Accused “as soon as practicable”, as required by Section 258(1)(c)(ii) of the Criminal Code. He also submits that the Accused was not given a “reasonable opportunity” to contact Counsel, and that the Crown has not proven a valid “waiver” by the Accused, of his Charter right to Counsel. Pursuant to Section 24(2) of the Charter, he submits that the Certificate of Analyses, marked as Exhibit ‘C’ for Identification, ought to be excluded from evidence. For the reasons that follow, the Court finds a violation of both Sections 8 and 10(b) of the Charter. Pursuant to Section 24(2) of the Charter, the Certificate of Analyses is excluded from evidence.

 Again, R v Deruelle is not mentioned.  It is suggested that Judge Semenuk may not have had R v Deruelle put before him.  It is respectfully submitted that this may have created authority which is completely at odds with very clear jurisprudence from the Supreme Court of Canada.


D.  Recent Case Law Which Correctly States the Law (Post-Forsythe)

 In R v Buffalo 2010 CarswellAlta 951 the Court of Queen’s Bench holds:

 34        The trial judge also appears to have continued his digression and concluded that the presumption created by s. 258(1)(c) is not a “vital issue” requiring application of the criminal standard before it can be drawn, but if the criminal standard applies, then it had been met and he would invoke the presumption. With respect, I agree with Defence counsel that the standard of proof beyond a reasonable doubt applies to the question of whether the statutory presumption(s) in s. 258 should be invoked, because proof of the pre-conditions contained in s. 258(1)(c) provides conclusive proof of concentration of alcohol in the accused’s blood, subject to evidence tending to show three things. In my opinion, conditions that provide conclusive proof of concentration of alcohol in the accused’s blood constitute a “vital issue”. The Crown conceded this point on the appeal.

R v Husain 2010 CarswellAlta 2217 is also a recent summary conviction appeal.  The court holds:

 48        Had the Trial Judge considered all of the circumstances, he may have concluded that the degree of intrusiveness into the accused’s right to contact counsel was minimal. Further, the 16-minute delay was caused not only by the officer’s action in placing the Respondent in the phone room, but also by the Respondent placing a phone call. The total amount of time of between the first observation and the first breath sample was 53 minutes, well below the statutory limit of two hours. The Trial Judge attributed no negative motive to the officer, noting that “he was doing what he thought was right”. Applying these facts to the legal test stated above, the conclusion as to whether the samples were taken “as soon as practicable” would not necessarily have been the same. Further, had the Crown had benefited from the presumptions contained in s. 258(1)(c), it is plain that the verdict would not necessarily have been the same. This satisfies the Crown’s additional burden as described in Sutton at para. 2.

In R v Mailey 2011 CarswellAlta 55, The Honourable Judge Lamoureux considers R v Duff, but does not follow it on this point.  She correctly states

11        In this case, the Court finds that the Crown has proven beyond a reasonable doubt that the sample of the accused’ breath was taken as soon as practicable in accordance with the provisions of the Criminal Code. A time lapse of 37 minutes from the time the vehicle was stopped to the time of taking the first sample falls within the statutory definition required by the Criminal Code, and the Certificate of Analysis is admitted as proof of the offence with which the accused is charged. The statutory presumptions are not rebutted. The accused is guilty of the offence as charged under section 253(1)(b) of the Criminal Code. As the Court has made these particular findings the issue of procedure is irrelevant to the decision.

Respectfully yours,  

Alan Pearse, Barrister & Solicitor, June 22, 2010.

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