Her Majesty the Queen, and
Mr. P Fraser, Counsel for the Crown.
Mr. T. Pain, Counsel for Kunnauth Seer.
1 D.G. HACKETT J. (orally):— This is a decision at the completion of a trial into a charge of over 80.
2 At the outset, I want to thank both counsel very much for narrowing the issues in this case and providing me with helpful case law.
3 The onus in this, as in all criminal prosecutions, rests upon the Crown to prove each and every element of the offence beyond a reasonable doubt.
4 The only evidence called at this trial was that of PC Andrew Fidler who was one of a number of officers conducting a R.I.D.E. program on the night in question. Pursuant to that program, the accused was stopped in his motor vehicle and spoken to. As a result of the conversation, PC Fidler formed a reasonable suspicion that he had consumed alcohol and was under the influence of alcohol while operating his motor vehicle. He therefore demanded that the accused blow into a roadside screening device, which he did and Mr. Frye failed. Subsequently, based upon that failure, PC Fidler had reasonable grounds to arrest the accused for over 80. He did that gave him his right to counsel and also the approved instrument demand at 12:08.
5 When asked what tasks PC Fidler performed before they went to the station, PC Fidler only testified that other officers handled the impounding of Mr. Frye’s motor vehicle. PC Fidler then left the scene with the accused at 12:22 and arrived at the nearest police station with a breathalyzer technician at 12:49. There was a reasonable explanation for the delay in going to the station, which was the construction that they encountered en route.
6 At the station, the accused was paraded, duty counsel was contacted and Mr. Frye spoke duty counsel at 1:25. The accused was then taken to the breathalyzer technician at 1:31 and the first test was administered at 1:36, giving rise to a reading of 109 milligrams of alcohol in 100 millilitres of blood. The accused was then returned to the report room and he and the officer waited on the bench for the second test. At 2:06 a.m. Mr. Frye gave the second sample which resulted in a reading of 98 milligrams of alcohol in 100 millilitres of blood.
7 The sole issue in this case is whether or not these two samples were taken as soon as practical. Under s. 258(1)(c) of the Criminal Code, it provides that,
- Where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if 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 15 minutes between the times when the samples were taken. (emphasis added)
8 Then, if other criteria set out in that section is satisfied, the evidence of the results of that analysis is proof of the concentration of alcohol in the blood of the individual at the time of driving.
9 The defence has argued that the Crown has failed to establish beyond a reasonable doubt that these samples were taken as soon as practicable because of two unaccounted for time periods: one between 12:08 and 12:22; and the second between 1:36 and 2:06. The defence argues that there is a total of 29 minutes unaccounted for and that that is a problem for the Crown meeting its onus because it means that the tests were not administered as soon as practicable.
10 The Crown has argued that the first period between 12:08 and 12:22 is in part accounted for. The Crown pointed to the evidence in-chief that the demand was given at 12:08. While that was the evidence in-chief, it was clear in the cross examination that Officer Fidler also agreed that the demand was completed by 12:08 and in that respect, certainly, there is reason to still be concerned about the period of time after 12:08. While the Crown argued that it would take some time after 12:08 to read that demand, which is somewhat lengthy and was done before the Court, in my view, the evidence is not clear enough on that to assist the Crown in that regard.
11 Nevertheless, there is evidence that the officer did have to place Mr. Frye in the vehicle and had to call for the nearest breathalyzer technician. While it was not absolutely clear on his evidence, whether or not he cuffed and put the accused in the rear of the car before or after the arrest and the demand, I do think it is probably reasonable to assume, given that he read the right to counsel from the back of the book and the caution from the back of the book, that they both took place prior to being placed in the rear of the car. I am certainly not able to decide when it was that the cuffing took place. So there is, I think, some evidence that accounts for part of that 14 minutes while placing Mr. Seer in the rear of the vehicle and while making the call to the dispatch to find out the nearest police station with a breathalyzer technician.
12 While the Crown also argued that it was part of Officer Fidler’s responsibilities to make sure that other officers were going to look after Mr. Frye’s vehicle, in my view, there’s an absence of evidence to that effect and I’m not prepared, on the evidence before me, to make that inference. In my view, that therefore is not something that helps to account for the period of time between 12:08 and 12:22.
13 Based upon the officer having to put him into the vehicle and having to make that call to dispatch, there is some period of that 14 minutes accounted for. But in my view, there is still a good 10 minutes that are unaccounted for.
14 There was also some explanation for part of the time between 1:36 and 2:06 that the defence has also put in issue. In that respect, it is quite clear on the evidence that they would have had to have left the breath room and returned to the bench and then left the bench to return to the breath room to commence the next test. However, in my view, it is not reasonable to conclude or assume that those actions would take that full 15 minutes beyond the statutory period of 15 minutes that must occur between the first and the second test. In fact, on the evidence before me, it only took five minutes to move from the phone booth to the breath room to give the first sample. On this evidence, 5 minutes, there is still, in my view, 10 minutes unaccounted for. In total, in my view, there is at least 20 minutes unaccounted for by evidence in this case.
15 The Crown has also, I think, very thoroughly, argued that the principles that are clear in the cases are such that the Crown, obviously, does not need to account for every minute. The test is whether or not the samples were taken within a reasonably prompt time in the circumstances. Mr. Fraser has set out all of the actions of PC Fidler, which indeed indicate that he was aware of time issues and conducted himself in a very professional manner in terms of the timing of all of his other actions. Indeed, his very thorough explanation as to the problem they encountered during the drive to the station and the efforts he made to avoid any further delay in that traffic jam by changing his route supports this submission. At the same time, while certainly I’ve seen Officer Fidler and I have reason to have some confidence in his actions on that particular night, he did, in my view, lose control of the situation at the time when he is waiting for the breathalyzer technician. While everyone knows that 15 minutes, obviously, has to pass between the first and the second test, after that, in my view, there still has to be some explanation for any further delay. While I accept Mr. Fraser’s argument that they do not have to have the individual seated in the chair as soon as that 15 minutes clicks over on the clock, because of the wording of the section, which says “at least 15 minutes”. Nevertheless, in my view, there should be explanations and they should be reasonable explanations. There is some explanation as I described in that there had to be the movement that I described. But why they had to wait beyond that time period and the time it took for these movements, was beyond the control of Officer Fidler and within the realm of the breath tech. He has not testified. The Crown has relied upon the certificate in this case and while I have absolutely no reason to question the good faith of Officer Fidler, given his testimony, his demeanour and the way he conducted himself on this evening, I’m not able to assess the breathalyzer technician. Nor do I think it appropriate to assume for such technical charge, where there are presumptions and requirements that have to be met, that the breathalyzer technician was acting in good faith and was acting reasonably in all of the circumstances.
16 It is therefore my view, based upon all of the evidence, considering all of the circumstances, that the absence of an explanation for these 20 minutes of time is such that the Crown cannot meet its onus of proof and I cannot find that these tests were taken as soon as practicable.
17 Before I finish, I do want to say that Officer Fidler testified in an excellent manner. I wish that was the standard that we were accustomed to in these courts. I also have to say that it is rare that we have the officer who testifies sit in the body of the court for the entire trial. I know this afternoon I asked whether he was staying but he stayed on his own after the morning. He’s still a young officer, after four years on the force, and I do want to say that I respect him remaining because there is so much to be learned in these technical cases from being here. It always troubles me when an officer testifies and then leaves. I think, again, it speaks to the good faith and the professionalism of this officer. I think it has to be commented on because, frankly, it is rare.
18 Nonetheless Mr. Frye, you are acquitted. You are a lucky young man and you better understand how lucky you are. All right, thank you both.