Her Majesty the Queen v. Letford
[Indexed as: R. v. Letford]
51 O.R. (3d) 737
 O.J. No. 4841
Docket No. C33158
Court of Appeal for Ontario
Moldaver, Goudge and Simmons JJ.A.
December 22, 2000
Criminal law–Drinking and driving offences–Driving “over 80”–Requirement that breath samples be taken “as soon as practicable” does not mean that police must arrange to have breathalyzer technician available at every detachment at all times or otherwise organize themselves so as to have breath samples taken as soon as possible–Test is whether breath samples were taken within reasonably prompt time in circumstances of particular case–Crown appeal allowed –Criminal Code, R.S.C. 1985, c. C-46, s. 258(1)(c)(ii).
Criminal law–Drinking and driving offences–Impaired driving –Trial judge excluding breathalyzer results and then acquitting accused of impaired driving on basis that on remaining evidence he could not be satisfied beyond reasonable doubt that accused’s ability to drive was impaired–Trial judge erred in proceeding on basis that breathalyzer results could have been used in support of finding of degree of impairment in absence of expert evidence relating results to that issue –Trial judge may have used wrong test for impairment–Crown appeal allowed.
The accused was charged with impaired driving and driving “over 80” in a small town in northern Ontario. The officer who arrested him was not a qualified breathalyzer technician, and the qualified technicians on staff with the officer’s detachment were not on duty at the time. The officer contacted another detachment, and the first breath sample was taken one hour and 46 minutes after the alleged offences. The trial judge found that the breath samples were not taken “as soon as practicable” as required by s. 258(1)(c)(ii) of the Criminal Code, and acquitted the accused of driving “over 80”. He also acquitted the accused of impaired driving on the basis that, without the breathalyzer readings, he could not be satisfied beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol. The summary conviction appeal court judge dismissed the Crown’s appeal. The Crown appealed.
Held, the appeal should be allowed.
The “as soon as practicable” requirement does not mean that the police must organize themselves to have a breathalyzer technician available at every detachment at all times, or otherwise organize themselves to have breath samples taken as soon as possible. The trial judge in this case was required to assess all the circumstances of the case to determine whether the breath samples were taken within a reasonably prompt time under the circumstances. That assessment had not yet been performed in this case.
With respect to the impaired driving count, the trial judge was wrong in law in proceeding on the basis that he could use the results of the breath test in support of a finding of the degree of impairment, absent expert evidence relating the results to that issue. Moreover, based on the evidence before him after excluding the results of the breathalyzer, the trial judge’s conclusion that he could not find that the accused was impaired, may indicate that he applied the wrong test for impairment.
R. v. Langlois,  O.J. No. 125 (Gen. Div.), consd Other cases referred to R. v. Ashby (1980), 57 C.C.C. (2d) 348, 9 M.V.R. 158 (Ont. C.A.) [Leave to appeal to S.C.C. refused (1981), 37 N.R. 393]; R. v. Clarke (1991), 27 M.V.R. (2d) 1 (Ont. C.A.); R. v. Mudry (1979), 19 A.R. 379, 50 C.C.C. (2d) 518, 5 M.V.R. 23 (C.A.); R. v. Ostrowski,  O.R. 708, 122 C.C.C. 196, 29 C.R. 109 (H.C.J.); R. v. Phillips (1988), 42 C.C.C. (3d) 150, 64 C.R. (3d) 154, 44 C.R.R. 244, 4 M.V.R. (2d) 239, 27 O.A.C. 380 (C.A.); R. v. Stellato,  2 S.C.R. 478, 18 O.R. (3d) 800n, 90 C.C.C. (3d) 160n, 31 C.R. (4th) 60, 3 M.V.R. (3d) 1, affg (1993), 12 O.R. (3d) 90, 78 C.C.C. (3d) 380, 18 C.R. (4th) 127, 43 M.V.R. (2d) 120 (C.A.)
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, ss. 258(1)(c)(ii), 839(1)
APPEAL from a judgment dismissing an appeal from acquittal on charges of impaired driving and driving over 80.
David Finley, for appellant. Richard Guy, for respondent.
The judgment of the court was delivered by
 GOUDGE J.A.:– On September 27, 1998, the respondent, John Kevin Letford, was arrested and charged with having care or control of a motor vehicle while impaired and having a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood.
 He was tried by Fitzgerald J. in the Ontario Court of Justice and acquitted on the “over 80” count because the trial judge found that the breath samples taken from him in connection with this charge had not been taken “as soon as practicable” as required by s. 258(1)(c)(ii) of the Criminal Code, R.S.C. 1985, c. C-46. Fitzgerald J. reached this conclusion because he felt bound to follow R. v. Langlois,  O.J. No. 125, a decision of McCartney J. in the Ontario Superior Court of Justice. On the impaired count, he was acquitted because the trial judge concluded that without the breathalyzer readings, he could not be satisfied beyond a reasonable doubt that the appellant’s ability to operate a motor vehicle was impaired by alcohol.
 The Crown’s appeal from Fitzgerald J. to the Summary Conviction Appeal Court was dismissed by Valin J. On the “over 80” count, he found that while the issue of whether the breath samples were taken as soon as practicable involved a question of law, the trial judge did not err in following R. v. Langlois to answer the question. On the impaired count, Valin J. refused to interfere with the trial judge’s finding that the degree of impairment needed to sustain a conviction had not been satisfied.
 With respect, I have concluded for the following reasons that the conclusion that R. v. Langlois required the trial judge to find that these breath samples were not taken as soon as practicable represents an error on a question of law. I am also satisfied that the trial judge erred in law in the approach he took with respect to the impaired count. I would therefore grant leave and allow the appeal.
 During the early morning hours of September 27, 1998, O.P.P. Officers Markic and Forcier, working out of the O.P.P. detachment in Espanola, Ontario, were on general patrol in the neighbouring town of Massey. At that time, they were investigating the respondent on suspicion of being an impaired driver. As a result of their observations, they arrested the respondent and advised him of his right to counsel. Neither of the officers was a qualified breathalyzer technician and although there were three qualified technicians on staff with the Espanola detachment, none were on duty at that time.
 In these circumstances, O.P.P. policy required that the officers contact the North Bay Communication Centre to request a breathalyzer technician from one of the other O.P.P. detachments with which Espanola was “clustered” that night, namely the Sudbury, Kilarney and Dowling O.P.P. detachments. If this did not produce a technician, the next step was to seek assistance from another police service such as the Espanola Town Police, which had one or possibly two technicians. The final option was to call in an off-duty O.P.P. breathalyzer technician from his or her residence.
 Pursuant to this policy, and after arresting the respondent at 1:45 a.m., Constable Markic contacted North Bay at about 1:52 a.m. At about 2:10 a.m., a qualified breathalyzer technician on general patrol near Sudbury was contacted by North Bay and dispatched to Espanola where he arrived at 2:35 a.m., virtually the same time as the respondent arrived with the arresting officers. At 3:15 a.m. the technician finished preparing the breathalyzer machine and at 3:31 a.m. and 3:48 a.m. he took two breath samples from the respondent, producing readings of 200 and 190 milligrams of alcohol in 100 millilitres of blood.
 The Crown proceeded summarily before Fitzgerald J. Its case consisted of the testimony of the two arresting officers and the breathalyzer technician. The defence called no evidence.
 In disposing of the “over 80” count, the trial judge gave the following reasons:
But what is of significance here, of course, is the case of Irene Langlois which appears to be an unreported decision of Mr. Justice McCartney given at Kenora on January the 6th of this year . The issue on that matter was clearly framed, as I understand the law to be, that “the Crown’s evidence must demonstrate that the tests were taken within a reasonably prompt time under the circumstances”, is the wording used by Mr. Justice McCartney. I would have thought that the Crown evidence must demonstrate that the tests were taken as soon as practicable under the circumstances. I have no difficulty with the choice of words. It seems to be saying the same thing to me. But what is of concern to me is that I would have thought — I would have thought — that the matter’s policy, under which the constables were exercising their duty at this time, would be one of the circumstances to take under consideration.
Mr. Justice McCartney appears to take a different view. He says at page 5 of the reasons that have been tendered:
The Crown’s explanation that there [were] no breathalyser operators “available” out of the 4 or 5 attached to the Kenora Detachment is certainly not a sufficient explanation to explain the delay. What happened here seems quite clear to me.
He’s [McCartney J.] making a comment now on the evidence that was given . . . before the trial judge, Judge Fraser:
While the officers actually involved did their level best to comply with s. 258, there were unreasonable and avoidable time gaps due to the failure on the part of their organization to ensure that there was a breathalyzer operator available to ensure no such gaps occurred. The evidence does not suggest there was any lack of resources here — quite the contrary. The problem was a failure to properly organize and mobilize the resources that were available, and it is the respondent [Crown], and not the appellant [Langlois], who must bear the result of that failure.
Now, I would not have thought that to be the law but Mr. Justice McCartney is telling me, in [the Langlois] decision, that it is, and I am bound to follow it. Finding of not guilty [on count number 2].
 His reasons for acquitting on the “impaired count” are very short. He said this:
I cannot come to proof beyond doubt with regard to ability impaired in these circumstances without those readings. Finding of not guilty on count number one for those reasons.
 Valin J. dismissed the appeal of the acquittal on the impaired count as follows:
The first ground of appeal involves an issue of fact. I am not satisfied that the findings of the trial judge relating to the proof of the impairment of the accused cannot be supported by the evidence. It therefore cannot be said that the decision of the trial judge relating to impairment should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.
 Valin J. dismissed the Crown’s appeal from the acquittal on the “over 80” count as follows:
The second ground of appeal involves a question of law. When considering the issue of whether the breath samples were taken as soon as practicable, the trial judge considered and followed the decision of McCartney, J. in R. v. Langlois (released January 6, 1999) (Ont. Ct. Gen. Div.). In my view, in the circumstances of this case, he was justified in so doing. I therefore conclude that the trial judge did not reach a wrong decision on a question of law.
 It is from this decision that the Crown seeks to appeal with leave to this court.
 Section 839(1) of the Criminal Code provides that leave to appeal may be granted on any ground that involves a question of law alone. The finding of Valin J. is, in essence, that the trial judge was correct in concluding that R. v. Langlois compelled the conclusion that the meaning of “as soon as practicable” in s. 258(1)(c)(ii) does not extend to the circumstances of this case.
 In my view this raises a question of law. This court has said on a number of occasions the meaning to be accorded to “as soon as practicable” raises a question of law. See, for example, R. v. Phillips (1988), 42 C.C.C. (3d) 150, 64 C.R. (3d) 154 (Ont. C.A.); R. v. Clarke (1991), 27 M.V.R. (2d) 1 (Ont. C.A.). Moreover, I think that whether R. v. Langlois was misapplied to compel the result reached raises a question of law.
 As I read R. v. Langlois, McCartney J. simply found that, on all the facts before him, the breath samples were not taken as soon as practicable. He did not find, as the trial judge seems to have thought, that to meet the “as soon as practicable” requirement, the police must organize themselves to have a breathalyzer technician available at every detachment at all times or otherwise organize themselves to have breath samples taken as soon as possible. The trial judge here was not bound to reach the same result on these facts that was reached by McCartney J. on the facts before him and in my view, it was an error of law to sanction this misapplication of R. v. Langlois.
 Rather than treating himself as bound to reach the same result as that in R. v. Langlois, the trial judge here was required to assess all the circumstances of this case to determine if the breath samples were taken as soon as practicable, that is, within a reasonably prompt time, under the circumstances. See R. v. Mudry (1979), 19 A.R. 379, 50 C.C.C. (2d) 518 (C.A.), adopted in R. v. Ashby (1980), 57 C.C.C. (2d) 348 , 9 M.V.R. 158 (Ont. C.A.).
 The Crown acknowledges in this case that the time that elapsed between the alleged offences and the taking of the first breath sample (approximately one hour and 46 minutes) was a long time and one that required explanation.
 Where, as here, the way in which the police organized their staff and equipment appears relevant to the time taken until the first breathalyzer test, it and any reason offered for it are matters for the court to consider in determining whether the Crown has met its obligation under s. 258(1)(c) (ii).
 The Crown need not show that the police are organized to take breath samples as soon as possible in each case. However, s. 258(1)(c)(ii) does require that in every case the Crown demonstrate that in all the circumstances, including, where relevant, the way the police are organized and why, the breath samples were taken within a reasonably prompt time.
 Given the approach taken in the courts below, that assessment has not yet been performed in this case. There must, therefore, be a new trial on the “over 80” count.
 With respect to the impaired count, the trial judge was wrong in law in proceeding on the basis that he could use the results of the breath test in support of a finding of the degree of impairment, absent expert evidence relating the results to that issue. See R. v. Ostrowski,  O.R. 708, 122 C.C.C. 196 (H.C.J.). Moreover, in concluding that absent the breathalyzer results, he could not be satisfied beyond a reasonable doubt that impairment had been proved, I think, having regard to this record, the trial judge may not have properly applied the test for impairment as stated in R. v. Stellato (1993), 12 O.R. (3d) 90, 78 C.C.C. (3d) 380 (C.A.), affirmed  2 S.C.R. 478, 90 C.C.C. (3d) 160n. Accordingly, there must be a new trial on this count as well.
 I would therefore grant leave, allow the appeal, set aside the acquittals and direct a new trial on both counts.