| near Crescent Valley, B.C. The provincial court judge acquitted the appellant of a separate count of impaired driving. |
[1] This is an appeal from the decision of a provincial court judge convicting the appellant of driving with a blood alcohol concentration of more than 80 milligrams of alcohol in 100 millilitres of blood, arising out of a check-stop in the early morning hours of October 30, 2005, near Crescent Valley, B.C. The provincial court judge acquitted the appellant of a separate count of impaired driving. [2] The provincial court judge’s decision does not set out the circumstances in any detail but the evidence is conveniently summarized, with appropriate references to the transcript, in the respondent’s factum. The appellant does not take issue with the facts or any findings made by the trial judge. It is his position that the entire issue on this appeal is a question of law alone, that the trial judge erred in law, and that this Court is in as good a position to decide the issue as the trial judge was. Facts [3] In the early morning of October 30, 2005, two officers of the Nelson Rural RCMP detachment, in one vehicle, were returning from an investigation and noted a number of cars at the Playmor Hall on Highway 6. There was heavy traffic on the highway. The officers were the only ones working in that patrol area that evening. [4] At about 00:15, the appellant approached the check-stop and was motioned to stop. At that point, the officers already had three vehicles pulled over, and had given each of the drivers a 24-hour suspension. They had called for tow-trucks for those vehicles. [5] One of the officers approached the appellant’s vehicle and requested the appellant’s licence. The appellant was dressed in a Spiderman Halloween costume. The officer became aware of a strong smell of liquor on the appellant’s breath, and noted that his speech was slurred. The appellant had difficulty retrieving his registration from the glove box, but the trial judge decided that any clumsiness could possibly have been a function of his costume, and acquitted the appellant on the impaired charge. [6] At 00:17, the constable read the “approved screening device” breath demand to the appellant. The appellant provided a breath sample, and the result was a fail. The officer advised the appellant he was being detained for impaired operation of a motor vehicle and told him to accompany him to the police vehicle. [7] At 00:20, the officer advised the appellant of his rights and made a breath demand under s. 254(3) of the Criminal Code, R.S.B.C. 1985, c. C-46. Between 00:20 and 00:35, the officer completed a 24-hour suspension under the Motor Vehicle Act, R.S.B.C. 1996, c. 318 explained it to the appellant and called for another tow truck. [8] The officers waited until the first tow truck arrived at 00:57, told the tow truck driver he would have to assume custody of all four vehicles, and left for the detachment in Nelson with the appellant. [9] At 00:59, while en route to the detachment, the officers observed a vehicle crash into a concrete barricade. They stopped, investigated the crash, and picked up that impaired driver and passenger for transport to the police station, leaving the scene of that accident at 01:13. [10] The officers arrived at the detachment at 01:24, and began the observation period preceding the first breath sample at 01:25. The first breath sample was taken at 01:48, and the second one was taken 21 minutes later. [11] From the time of the initial stop at 00:15 to the taking of the first sample at 01:48 was 1 hour and 33 minutes. Issue on appeal [12] Did the trial judge err in holding that the samples of breath were taken as soon as practicable? Relevant statutory provision [13] Section 258 (1) of the Criminal Code provides: In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3), … (c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if … (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, … evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses; [14] In simplified terms, s. 258(c)(ii) allows the Crown to rely, in the specified circumstances, which include taking the samples “as soon as practical” after the alleged offence, on a presumption that the level of blood alcohol at the time the breath samples were taken was the level at the time of the offence. Otherwise, the Crown would have to call expert evidence regarding absorption rates of alcohol in the blood. Is this a question of law or a question of fact? [15] The appellant says whether the samples were taken as soon as practicable is a pure question of law upon which the trial judge is not entitled to deference, and that this court is in as good a position as the trial judge was to examine the evidence and determine if the samples were taken in such a manner as to allow the Crown to rely on the presumption in s. 258(c)(ii). The appellant does not contend that the trial judge applied the wrong test, but asks this Court to come to a different conclusion on the evidence. [16] The respondent says the meaning and interpretation of “as soon as practicable” is indeed a question of law, but whether or not a particular set of circumstances amounts to that is a question of fact. If the trial judge considered the evidence in light of the correct test, then his findings are questions of fact and should be displaced only if they are clearly wrong. [17] Both counsel relied on R. v. Carter (1980), 55 C.C.C. (2d) 405 (C.A.), R. v. Cander (1981), 28 B.C.L.R. 376 (C.A.), and R. v. Cambrin (1982) 1 C.C.C. (3d) 59 (C.A.) to support their respective positions. In Carter, the court said the summary conviction appeal judge, who overturned the conviction by the trial judge, was led into error by having cases cited to him that suggested that the Crown must explain any lapse of time. The Court of Appeal decided that there was evidence upon which the trial judge could have found the samples to have been taken as soon as practicable, allowed the Crown’s appeal and restored the conviction. [18] In Cambrin, the Court of Appeal said at p. 62: This Court has decided in Carter and in Cander that the phrase “as soon as practicable” does raise a question of law alone. I note particularly the headnote at page 491, which I think accurately summarizes Mr. Justice Hinkson’s statement [in Cander] where it says, referring to his judgment: The meaning of the words, ”as soon as practicable” constitutes a question of law upon which the Crown may appeal to the Court of Appeal pursuant to s. 771 of the Criminal Code. In this case the trial judge properly interpreted the phrase, which merely means within a reasonably prompt time under the circumstances, which is not infringed by a 20 minute observation period. [19] In Cambrin, Craig J.A. went on to say that the summary appeal judge had erred in upholding the trial judge’s acquittal solely on the basis that the Crown had failed to explain the delay. Both judges who wrote for the Court of Appeal in that case were clearly of the view that the evidence disclosed that the results were taken as soon as practicable. Nevertheless, they ordered a new trial because those findings were for the trial judge to make, applying the test properly. [20] In R. v. Rasmussen (1981), 33 B.C.L.R. 25 (C.A.) the Court of Appeal noted that in order for a consideration of “as soon as practicable” to become a question of law alone, the appellant had to argue that there was no evidence upon which the trial judge could have held that the samples were taken as soon as practicable. The court was of the view that there was evidence before the trial judge on which he could have reached the decision he did, and dismissed the appeal. [21] I am of the view that the respondent’s position is correct. The articulation of the correct test is a matter of law. The application of that test to the evidence and the finding of facts that lead to the conclusion that the samples were or were not taken as soon as practicable, within the correct meaning of that phrase, is a question of fact. [22] The meaning of “as soon as practicable,” coming from the three cases cited about and other cases is set out in a conveniently summarized form in R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.) at paras. 12 and 13: (citations omitted from the following excerpt): … Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soon as practicable” requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that – in all the circumstances – the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. Reasons of the trial judge [23] The reasons of the trial judge are brief, and reflect, with one exception noted in square brackets at the appropriate point, the arguments made before the court on the appeal: On Count 2, the defence says that the tests were not taken as soon as practicable because of the following police conduct: (a) setting up a roadblock with just two officers, (b) setting up a roadblock in a place where the vehicles could not be conveniently stopped in a parking lot; had they been stopped in a parking lot, there would have been no need to tow them or at least no need to tow them urgently [the appellant says he did not argue that the vehicles should not be towed; he argued that the officers should not have put themselves in a position where they had to wait for tow trucks to arrive]; (c) continuing to stop other vehicles after the accused was detained; (d) not calling other officers for backup during that process which would have solved the problems that are in the next point; (e) stopping for another accident and arresting individuals, giving them their Charter rights, 24 hours suspensions, thus delaying the accused arriving at the police station. If other officers had been involved, they could have taken over the matter immediately; and finally, (f) waiting for the arrival of the tow truck, although when the tow truck arrived, the officer simply told him he was in charge of the vehicles. It was not clear whether enough tow trucks arrived to take all the vehicles away at once. It was (sic) stated reason for removing the vehicles was that the accused could possibly drive after his arrest. These points must be dealt with individually, and after doing so, their collective effect must be analyzed. A) Officers routinely patrol not only alone but also in areas that are remote from the nearest detachment, and every time they stop a car for a motor vehicle infraction, they are or should be doing seatbelt and liquor checks. So a roadblock with two officers does not create inevitable and wrongful delay. B) There is a need to set up roadblocks where they cannot be avoided by drivers with a reason to avoid roadblocks. No inevitable or wrongful delay flows from the location in which vehicles were stopped in this instance. C) There is no practicable reason why the investigative resources of more than one officer be devoted to an individual non-combative accused in the roadside portion of an impaired driving investigation as there is no good reason why the other officer should not go about his or her other duties. D) In a rural area working nightshift from a rural detachment, backup is problematic at best and there is no evidence that it was practicable to have backup. E) It would have been a dereliction of duty not to deal, at least in a summary fashion, with the accident the other officers came upon as they were taking Mr. Plonka into Nelson for his breath test. Finally, it is dangerous to leave a vehicle parked on the side of a highway. The liability issues are obvious. Towing the vehicle ensures not only that the liabilities are covered but also that the person under a 24-hour s. 215 Motor Vehicle Act suspension will not be tempted to drive the vehicle. I have no hesitation in finding that, individually and collectively, that none of the arguments made on these facts impinge on my finding that samples were indeed taken as soon as practicable as required by the Code and Mr. Plonka must therefore stand convicted on Count 2 of Information 19319. Positions on Appeal [24] The appellant does not contend that the trial judge applied the wrong test, nor does he quarrel with the trial judge’s findings of fact. He simply says that it is not correct in law to find that those facts conform with the requirement that samples be taken “as soon as practicable.” [25] In particular, the appellant says the actions of the police created a situation in which delay was inevitable. They were the only officers on duty in the area. Despite knowing they had no available assistance to call on, they set up a road block near a social event on a busy night; they located the road block where there was no place to park vehicles that were pulled over; the location they chose necessitated waiting for a tow truck; they were compelled, because they were the only officers in the area, to stop and investigate the accident that happened in front of them. The appellant says the purpose of this section is to ensure that he is detained for as short a time as possible. The delay in all these circumstances was inevitable and unreasonable. [26] The respondent says this case is not concerned with a Charter issue involving the appellant’s detention and minimizing restraint on his personal freedom. This case is concerned with whether the police complied with a statutory provision, the purpose of which is to expedite trials and aid in proof of the suspect’s blood alcohol level (see Vanderbruggen, supra, and R. v. Milos 2007 BCSC 1873. [27] The respondent says the officers acted reasonably throughout, and could not anticipate any of the events that led to the lapse of time between stopping the appellant and taking the first sample, which in any event was well short of the statutory maximum of two hours. The officers were returning from another incident; they came upon a situation that warranted investigation through a road block; they could not anticipate what the results would be or that the appellant would fail a roadside screening test; they were of the reasonable opinion that to leave four vehicles on the side of a dark road in the middle of the night with the keys in them created safety and security concerns; they had already called a tow truck even before stopping the appellant and calling for another truck, and they left immediately upon the first truck’s arrival; they were under a duty to stop and investigate the accident that occurred in front of them, and did so expeditiously, leaving that scene 14 minutes from coming upon it. Discussion [28] Both counsel referred to a number of cases in which particular circumstances have or have not been held to lead to the conclusion that samples were taken “as soon as practicable” (R. v. Brown 2005 BCPC 150; R. v. Hesketh 2003 BCPC 173; R. v. Kubas [1996] O.J. No. 4828 (the latter two decided under s.10(b) of the Charter); R. v. Ritson 2008 BCPC 26; R. v. Hart, (29 August 2007) Williams Lake No. 27405 (BCPC); R. v. Wiens, (14 December 2005) Williams Lake No. 26145 (BCPC)). [29] Each decision is fact specific, with the whole of the circumstances taken into account in order to determine if the interval between arrest and sample was reasonable and the tests taken reasonably promptly under all the circumstances. The appellant puts particular reliance on R. v. Brown, in which the provincial court judge held that it was unreasonable in all the circumstances for the police officer, having stopped Mr. Brown two minutes away from the detachment in Courtenay, to have waited about 15 minutes for the accused person’s vehicle to be towed, when the vehicle was parked in a safe place where it could quickly be checked or dealt with after the samples were taken. [30] The circumstances here are quite different. The appellant was stopped pursuant to a check-stop in a rural area some miles from the detachment. Other cars had been stopped as well. The location, which the trial judge noted was chosen for good reason, raised safety and security concerns for the vehicles if they were left unattended. The decision of the officers to await the arrival of the first tow truck was sensible and reasonable. [31] It is not contested that the trial judge was mindful of the correct legal test. In my view, he also made supportable findings of fact and reached a reasonable conclusion arising from those facts. [32] The police did not set out to create a situation that would inevitably lead to delay, nor could they have foreseen the events that occurred. They had a large area to patrol. They were on a rural highway, some distance from the detachment. They came upon a situation – a busy social event in the early hours of the morning - that required their attention. They performed their duties as they were expected to do, in a reasonable and efficient manner, given a series of unexpected events, including another accident. The time between arrest and sample is accounted for by reasonable explanations for each period of delay. Despite all they had to contend with, the officers obtained the first sample well within the two hour maximum. [33] There was, therefore, sufficient evidence before the trial judge on which he could reasonably find that the sample had been taken as soon as practicable. [34] The appeal is dismissed. “M.A. Humphries J.” IN THE SUPREME COURT OF BRITISH COLUMBIA
Date: 20080707 Between: Regina Respondent And Anthony Plonka Appellant Before: The Honourable Madam Justice Humphries Reasons for Judgment |