Editor’s note: Corrigendum released on March 6, 2015. Original judgment has been corrected with text of corrigendum appended. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 386 Date: 2014 12 04 Docket: QB 303 of 2012 Judicial Centre: Yorkton BETWEEN: HER MAJESTY THE QUEEN and DAVID JOHN LUNDRIGAN Counsel: Andrew Wyatt for the respondent David Lundrigan self represented, appellant JUDGMENT BARRINGTON-FOOTE J. December 4, 2014 A. INTRODUCTION [1] The appellant, David John Lundrigan, was convicted of having care and control of motor vehicle on April 16, 2005, while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(b) of the Criminal Code, RSC 1985, C-46. He has appealed that conviction pursuant to s. 813 of the Criminal Code. As is more fully explained below, the extraordinary feature of this appeal is that the trial which resulted in Mr. Lundrigan’s conviction which was held March 22, 2012 was the third trial of this charge. For the reasons that follow, have decided to allow Mr. Lundrigan’s appeal, and, rather than ordering fourth trial, to stay the proceedings. B. BACKGROUND: PRIOR PROCEEDINGS [2] This appeal relates to the decision of the trial decision, which is reported at 2012 SKPC 129 (CanLII), 402 Sask 236 [the trial decision]. The trial judge there describes the history of this prosecution, as follows: The facts of the case are unremarkable. It's (sic) tortured progress through the Canadian criminal justice system makes it much more remarkable than the facts. The accused first appeared in court on May 18, 2005, and after numerous failed trial dates, ultimately had his first trial on August 6, 2006. Among other defences, the accused argued at that trial that the roadside demand had not been made forthwith and that the demanding officer should have waited 15 minutes before administering the roadside test. The learned trial judge at the time accepted that argument and acquitted the accused. The Crown appealed that matter to the Court of Queen's Bench; the learned appellate judge granted the Crown appeal and found that in the circumstances of the case, that the demand was made forthwith and that whether or not the accused had consumed beer within fifteen minutes of taking the roadside test was pure speculation. The appeal was granted and new trial ordered. The second trial involved two Provincial Court Judges. Judge Andrychuk heard pretrial motion in regard to the application of the amendments to s. 258(d) of the Criminal Code. Prior to that amendment of the Criminal Code, an accused was able to establish evidence to the contrary by testifying as to consumption just prior to the time of the demand and with the assistance of an expert witness in regard to the absorption of alcohol and if believed by the trier of fact, could put his blood alcohol limit below the proscribed minimum at the time of the driving or care or control. The amendments to s. 258 of the Criminal Code made it much more difficult to establish that defence.: 258(c)(iv) Evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the offence was alleged to have been committed was, if the results of the analysis are the same, the concentration determined by the analysis and if the results are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 millilitres of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 millilitres of blood at the time when the offence was alleged to have been committed. These three things would have to be established by the defendant in addition to his evidence of consumption being accepted as true by the trier of fact. Judge Andrychuk, who heard the application, ruled that the amendments were substantive in effect, therefore not retrospective and that Mr. Lundrigan could in fact lead the standard evidence of his consumption and if believed, his expert would then be able to place the accused's blood alcohol below the prescribed limit at the time of the driving or care or control. Judge Andrychuk retired during that trial and pursuant to sections 669.2(1) and (3) of the Criminal Code, Judge Green was assigned to hear that trial. The matter proceeded to trial before His Honour Judge Green on that basis. Both counsel at that trial submitted that the changes to s. 258 of the Criminal Code regarding evidence to the contrary, effective July 2, 2008, not apply retrospectively to that trial. He found that the accused had rebutted the presumption contained in the section on care or control but that the accused was in actual care or control. He further believed the accused, or at least had reasonable doubt as to his consumption of only one or two beer, despite his relatively high readings and based on his expert's evidence, he dismissed the charge. The Crown again appealed on the basis that Judge Green had found that he could not consider the accused's high readings in regard to the accused's credibility. That appeal was dismissed without written reasons by the learned summary conviction appeal judge and the Crown again appealed. This appeal was heard in the absence of the accused even though he had been served with the Notice of Appeal and Notice of the date of the hearing. Ultimately the Court of Appeal allowed the appeal from the bench, the acquittal was set aside, new trial ordered and that trial was heard before me at Moosomin, Saskatchewan, on March 22, 2012. C. THE TRIAL DECISION [3] The third trial was accordingly held March 22, 2012, resulting in the decision under appeal. There was viva voce evidence at the third trial from the appellant, and from Cpl. Marie Roussel and Cpl. Kelly Guider, the two investigating officers. The evidence also included the following evidence from the first trial: Transcript of evidence, and curriculum vitae, of Leo Walter, Crown expert Transcript of evidence, and curriculum vitae, of Dr. Daniel Sitar, defence expert Transcript of evidence of Cheryl Byrne, defence witness [4] It also included the following transcripts from the second trial: Transcript of evidence of Cpl. Roussel Transcript of evidence of Cpl. Guider Transcript of evidence of the appellant Transcript of the evidence of Jeffrey Allan, defence witness [5] In the trial decision, the trial judge made the following findings relevant to this application, many of which were made by Green P.C.J. at the second trial, and adopted by the trial judge: 1. On April 16, 2005, the appellant was driving from Saskatoon to Winnipeg. He stopped to purchase six pack of beer at Davidson, Saskatchewan, and sometime later, feeling “incredibly tired”, turned south off the #1 Highway to search for quiet back road where he could take nap. 2. While proceeding southbound, the appellant passed two police cars travelling in northerly direction. few minutes later, he turned onto relatively deserted grid road, parked his car in the right lane, leaving enough room for another vehicle to pass in the left lane. There were no signs of life or farmhouses visible. 3. After parking his vehicle, the appellant left the car to relieve himself, taking beer and consuming it while out of the car. He then noticed the police cars returning, and got back in his car, occupying the seat normally occupied by the driver. He observed the police stop at the entrance to the grid road. He pushed the seat back and stretched out. 4. Cpl. Guider then drove up to the appellant’s vehicle. The accused said he was at the vehicle location for approximately ten minutes before the police arrived. As Cpl. Guider approached, he saw the brake lights flash. The appellant had started the vehicle to keep warm, and inadvertently stepped on the brakes as he leaned back in the driver seat. He did not occupy the driver’s seat for the purpose of setting his vehicle in motion, and was planning on resting or sleeping for number of hours. 5. The appellant had applied the emergency brake after he stopped. In order to move his vehicle, he would have to depress the brake pedal, move the gearshift lever and release the emergency brake. 6. Cpl. Roussel followed Cpl. Guider to the scene. She approached the driver’s side of the appellant’s car, and began speaking to him at approximately 8:20 p.m. She noted strong smell of beverage alcohol, and at 8:28 p.m., demanded that the accused provide breath sample by means of an approved screening device [ASD] pursuant to s. 254(2) of the Criminal Code. She had the accused accompany her back to the patrol car, where she administered the test. 7. The appellant failed the ASD, which was calibrated at 100 mg of alcohol to 100 mL of blood. The accused was then taken to the Broadview Detachment of the RCMP. He was administered Intoxilyzer tests at 9:14 p.m. and 9:39 p.m., resulting in readings of 180 and 170 mg of alcohol per millilitre of blood respectively. 8. The appellant gave evidence that the only alcohol he consumed that day was two cans of beer out of the six pack he purchased at Davidson. He also led expert evidence as to his blood alcohol reading. He did so in an attempt to establish so-called “Carter defence”, to overcome the presumption of accuracy in s. 258(1)(c)(iv) of the Criminal Code. However, the trial judge found (at paras. 24-25) that this defence was not available. More specifically, and as noted above, he found that the 2008 amendments to s. 258(1)(c)(iv) applied retrospectively. As such, he found that the appellant was obliged by the amended section to prove three elements to overcome the presumption: that the ASD was malfunctioning or operated improperly, that the malfunction or improper operation resulted in the determination that the appellant’s blood exceeded the approved level, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded that level. As the appellant had failed to provide evidence that could establish these pre-requisites to such defence, the presumption of accuracy applied. 9. In the alternative, the trial judge found that even if he was wrong in concluding that the accused did not provide evidence to the contrary so as to rebut the presumption of accuracy, he had no reasonable doubt as to the guilt of the accused. In doing so, he found that he was entitled to consider the evidence as whole, including the results of the ASD and Intoxilyzer. His conclusions as to reasonable doubt are summarized as follows: 27 In applying the above precepts of law, do not accept the accused's evidence that at most, his consumption of beer were the two beers at the scene. This evidence has no air of credibility. He had driven for several hours, had stopped at the Davidson Bar for something to eat and inexplicably picked up six pack of beer to travel with. He then testified that he was so incredibly tired that he felt he was danger on the road and had to pull off to have sleep. The first thing he does once he pulls off and finds quiet spot in the middle of nowhere is to find can or two of beer and start drinking. This makes no sense to me and reject it as being what really happened. The readings achieved on both the roadside instrument and the subsequent Intoxilyzer readings simply could have not been obtained by the consumption of one or two beer while stopped at the roadside in the manner the accused described. Furthermore the evidence of the Crown expert at the trial before Judge Green established that in his opinion both the roadside instrument and the Intoxilyzer instruments were functioning properly on the date in question and that the only real variable was the self reporting drinking of accused, which he generally finds to be notoriously unreliable. 28 Therefore on the whole of the evidence, including the Intoxilyzer results and the results of the roadside testing, am not left with any reasonable doubt as to the guilt of the accused. 29 In my opinion, he is simply mistaken as to the amount of alcohol he consumed that day, or is deliberately misleading the Court in an attempt to defeat this charge. For these reasons do not accept his evidence as to his consumption and do not find it to be capable of evidence to the contrary. 10. As to care and control, the trial judge agreed (at para. 20) with the reasoning of Green P.C.J., who found that the appellant had rebutted the presumption in s. 258(1)(a) of the Criminal Code that he was in care and control as result of occupying the driver’s seat at the time of the traffic stop. In adopting Green P.C.J.’s reasons, the trial judge adopted the following definition of de facto care and control from Mallery, 2008 NBCA 18 (CanLII), 231 CCC (3d) 203 [Mallery] at para 52: In care or control cases, the ultimate task of the trial judge is to decide whether the Crown has met the burden of establishing beyond reasonable doubt that the accused's interaction with his or her vehicle presented danger or, as it is sometimes phrased, "risk of danger" or "risk to public safety". If the facts establish beyond reasonable doubt risk of the accused putting the vehicle in motion, either intentionally or unintentionally, or if the facts otherwise support finding of danger (such as from parking one's car in the middle of public thoroughfare), then care or control will have been established. [6] The trial judge then cited the following conclusions from para. 14 of Green P.C.J.’s reasons, and summarized his own conclusions from the trial decision as to care and control as follows at para. 19-20: 19 Judge Green addressed this issue in his judgment and found as follows: [14] However, have reached different conclusion about whether the Crown proved risk that Mr. Lundrigan could put his vehicle into motion, intentionally or unintentionally. In R. v. Brahniuk, [2002] S.J. No. 533, the Saskatchewan Court of Appeal found Mr. Brahniuk to be in care or control of his vehicle after starting the engine and locking the doors. While each case depends on its unique circumstances, here, accept that Mr. Lundrigan started his vehicle, adjusted his heater and inadvertently stepped on the brake as he leaned back in the driver's seat. Given his own testimony, depression of the brake would allow his vehicle to be put into gear. Taken together, am satisfied that, at the point the officer found Mr. Lundrigan, there was risk of him putting his vehicle into motion. As result, am satisfied he was in care or control of his vehicle at that point. 20 Once again, find myself in agreement with this reasoning and suffice it to say would have reached the same conclusion as reached by Judge Green and therefore, in my opinion, while the accused has rebutted the presumption, just barely in my opinion, he was definitely in actual care or control. The only thing the accused added to his viva voce evidence before me was the addition of the emergency brake, which would have to be released prior to the vehicle moving. This in my opinion, does not alter the fact that his vehicle was capable of almost immediate movement and as such, created the risk the section is designed to prevent. will leave aside for the moment the obvious question of what condition the accused was in when he drove the vehicle to the spot where it was subsequently discovered by the police and whether that, in and of itself, would constitute care or control. In my opinion, it would, but for the purposes of this case it is sufficient that conclude he was in actual care or control at the time the police officers arrived on the scene. [emphasis added] [7] It was accordingly his opinion that the appellant had care and control not only when he was approached by the police officers, but when he drove the vehicle to the location of the police stop. [8] Finally, the trial judge found that the appellant did not establish an abuse of process as result of the fact there were three trials. The accused did not allege any improper behavior or misconduct by the Crown. However, in the opinion of the trial judge, such evidence was not required. As he notes in the trial decision: 34 To define "oppressive" as requiring misconduct or an improper motive would, in my view, unduly restrict the operation of the doctrine. In this case, for example, where there is no suggestion of misconduct, such definition would prevent any limit being placed on the number of trials that could take place. Prosecutorial misconduct and improper motivation are but two of many factors to be taken into account when Court is called upon to consider whether or not in particular case the Crown's exercise of its discretion to re-lay the indictment amounts to an abuse of process. [9] Relying on Keyowski, 1988 CanLII 74 (SCC), [1988] SCR 657 [Keyowski], he then concludes as follows in para. 35-38 of the trial decision: 35 can only echo what both the Saskatchewan Court of Appeal and the Supreme Court of Canada have stated. While third trial in Mr. Lundrigan's case may stretch the limits of the community's sense of fair play, it does not exceed them. Impaired drivers continue to occupy the public mind in terms of road safety and the unnecessary death and injury that continues to result from individuals who continue to drink and drive despite the draconian increase in financial penalties and loss of driving privileges. This accused has not suffered negative publicity and the proceedings while lengthy have been as result of properly brought and prosecuted appeals which do take time to wend their way through the legal system. 36 In my opinion, the Defendant has not established the relevant factors on balance of probabilities. In fact he concedes at page of his argument at subparagraph that there is no alleged misconduct on the part of the Crown. 37 This issue would have been appreciated by the Court of Appeal which nevertheless ordered new trial, despite the fact that the abuse of process argument was not argued before them. 38 It is my respectful view that the accused has not established an abuse of process and that this is not one of those clearest of cases where the court should direct judicial stay. [10] The appellant was self-represented on this appeal, and raised many grounds of appeal. Those grounds were not fully identified in his notice of appeal, but were fleshed out in his factum and oral submissions. Further, some of the issues were characterized in fashion which reflected the fact that the appellant while remarkably well versed in the law is not lawyer. am, however, satisfied that the Crown understood that the following grounds of appeal all of which are dealt with in this judgment were at issue, and that it was able to respond to those grounds: 1. Did the trial judge err in finding that the appellant had de facto care and control of the vehicle? 2. Did the trial judge err by failing to consider evidence of operator error in the administration of the Intoxilyzer 5000c? 3. Did the trial judge err in finding that the evidence did not constitute evidence to the contrary so as to rebut the statutory presumptions in s. 258(1)(c)(iv) of the Criminal Code, or raise reasonable doubt as to the appellant’s guilt? 4. Did the trial judge err in finding that the 2008 amendments to s. 258(1)(c)(iv) of the Criminal Code were retrospective, and as such, applied to this charge? If so, did that error compromise trial fairness or result in denial of the appellant’s right of answer and defence? 5. Did the trial judge err in law by failing to address or provide reasons in relation to the appellant’s submission that the police stop which resulted in this charge constituted an arbitrary detention contrary to s. of the Charter of Rights and Freedoms [Charter]? 6. Should the prosecution be stayed based on the basis that fourth trial would constitute an abuse of process? [11] At the hearing, the Crown conceded that the learned trial judge erred in finding that the 2008 amendments to s. 258(1)(c)(iv), which established three prerequisites to be met by an accused attempting to establish “evidence to the contrary” so as to rebut the statutory presumption of accuracy, were retrospective. Although the learned trial judge was correct as to the state of the law in Saskatchewan at the time he reached that conclusion, the Supreme Court of Canada reached the opposite conclusion in its later decision in Dineley, 2012 SCC 58 (CanLII), [2012] SCR 272. However, that concession did not fully dispose of the fourth ground of appeal. The appellant asserts for reasons that are more fully explained below that this error compromised his right to full and fair trial in fashion that could only be cured by fourth trial. He also submits that fourth trial would constitute an abuse of process, and that stay of proceedings should accordingly issue. E. CRIMINAL CODE PROVISIONS [12] The incident which resulted in this charge occurred April 16, 2005. As such, the relevant Criminal Code provisions are as follows: 253. (1) Every one commits an offence who operates motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, ... (b) having consumed alcohol in such quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. (2) If peace officer has reasonable grounds to suspect that person has alcohol or drug in their body and that the person has, within the preceding three hours, operated motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of motor vehicle, vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of drug, or with either or both of paragraphs (a) and (b), in the case of alcohol: ... (b) to provide forthwith sample of breath that, in the peace officer’s opinion, will enable proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. (3) If peace officer has reasonable grounds to believe that person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (a) to provide, as soon as practicable, (i) samples of breath that, in qualified technician’s opinion, will enable proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood,... (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), (a) where it is proved that the accused occupied the seat or position ordinarily occupied by person who operates motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be; ... (c) where samples of the breath of the accused have been taken pursuant to 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, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by qualified technician, 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 F. ANALYSIS 1. Did the trial judge err in finding that the appellant had de facto care and control of the vehicle? [13] The trial judge found that the accused rebutted the presumption in s. 258(1)(a) of the Criminal Code that the person who occupies the driver’s seat is deemed to have care and control of vehicle. More specifically, he adopted (at para. 20) Green P.C.J.’s reasoning, which included finding that the appellant was planning on resting and sleeping for number of hours before driving to Manitoba, and did not occupy the driver’s seat for the purpose of setting his vehicle in motion. The Crown does not take issue with these findings of fact. [14] Given that the presumption of care and control was rebutted, the trial judge next considered whether the accused had de facto care and control, and found that he did. The appellant takes issue with that conclusion, emphasizing two key themes in his factum. First, the appellant correctly notes that the test to be applied in determining whether the accused has de facto care and control of vehicle is that established by Boudreault, 2012 SCC 56 (CanLII), [2012] SCR 157 [Boudreault], and submits that the trial judge did not apply that test. In Poncelet, 2014 SKCA 30 (CanLII), 433 Sask 237 [Poncelet] Richards C.J.S. commented as follows in relation to Boudreault: 21 The leading authority with respect to the offence of being in care or control of vehicle contrary to s. 253(1) of the Criminal Code is now R. v. Boudreault, supra. ... 22 In its decision, the Supreme Court described the essential elements of "care or control" as follows: (a) an intentional course of conduct associated with motor vehicle; (b) by person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; and (c) in circumstances that create realistic risk of danger to persons or property (para. 33). 23 The Court underlined that the risk of danger must be "realistic" and not just "theoretically possible". It said the risk need not be "probable" or "substantial" and, speaking through Fish J., described the low nature of the risk threshold as follows: [48] need hardly reiterate that "realistic risk" is low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. 24 As to the practical effect of its view of "care or control", the Supreme Court stressed that intoxicated persons found behind the wheel of vehicle will almost always face conviction: [45] As mentioned at the outset, anyone found inebriated and behind the wheel with present ability to drive will and should almost invariably be convicted. It hardly follows, however, that conviction in these circumstances is, or should be, "automatic". conviction will be neither appropriate nor inevitable absent realistic risk of danger in the particular circumstances of the case. 25 should also note that, in the course of its reasons, the Court said the existence of realistic danger is question of fact. [15] Second, the appellant submits that the evidence discloses no more than negligible risk that he would set his vehicle in motion, and that there was accordingly no realistic risk of danger. He notes in this context that he showed no signs of impairment, and thus no realistic risk of an impaired thought process that might lead him to drive. He notes his unwavering testimony that he would not have changed his mind and continued driving. He also notes that he found secure and remote location to park and was actively engaged in “risk mitigation”. He notes that in order to put the vehicle in motion, he would have had to start the car, depress the brake, put the vehicle in gear and release the emergency brake. He also submits that the trial judge erred in adopting Green P.C.J.’s finding that Cpl. Guider saw the brake lights flash as he pulled up to the appellant’s vehicle. The trial judge’s reasons confirm that he took this finding of fact into account in reaching what was, for him, the key conclusion (at para. 20 of the trial decision) “that his vehicle was capable of almost immediate movement”. [16] In my respectful opinion, the learned trial judge’s reasons disclose that he applied the wrong legal test as to de facto care and control. The fact that he did not apply Boudreault and Poncelet is, as in relation to the retrospective amendments issue, entirely understandable. Both of those decisions were issued after the trial judge decided this case. He accordingly applied the legal test outlined in Mallery, which did not call for proof of “realistic risk of danger”, but rather, simple risk of danger or risk of the accused putting his vehicle in motion. He concluded that there was such risk because the appellant’s vehicle was capable of almost immediate movement. [17] It is my view the learned trial judge’s reasons, read as whole, do not disclose that he considered whether the risk was “realistic”. As Fish J. notes in Boudreault, where, as here, the accused does not intend to drive, there are at least three ways in which realistic risk of danger may arise. First, person who is impaired may change his or her mind and proceed to drive despite the lack of current intention to do so. Second, the accused may unintentionally set the vehicle in motion. Third, stationary or inoperable vehicle may endanger persons or property. [18] The trial judge’s reasons do not disclose that he concluded there was realistic risk of danger on any of these accounts, or on any other basis that might suggest realistic risk of danger. There was no evidence of impairment other than the smell of alcohol, and the trial judge accepted the appellant’s evidence that he did not intend to drive. Further, he did not find that there was realistic risk that the appellant could inadvertently depress the brake, put the vehicle in gear and release the emergency break. Rather, he found that the vehicle was capable of immediate movement, and “as such, created the risk the section was designed to present”. The issue is not whether vehicle is capable of movement, but whether there is realistic risk it will be moved. [19] Although Boudreault finds that the determination of whether there is realistic risk of danger is question of fact, the application of the wrong legal test is an error of law. The question, accordingly, is whether the appeal should be granted, or whether it should be denied on the basis of s. 686(1)(b)(iii) of the Criminal Code, which provides that an appeal on question of law may be dismissed if no substantial wrong or miscarriage of justice has occurred. [20] In this case, that engages two issues. First, was there reasonable possibility that the trial judge would have found that the appellant did not have care and control while stopped on the grid road if the error had not occurred? That is the test specified by Bevan, 1993 CanLII 101 (SCC), [1993] SCR 599 in relation to whether there has been miscarriage of justice. The appellant adduced evidence which was accepted by the trial judge that he did not intend to drive his vehicle for number of hours. The appellant parked his vehicle in remote location consistent with such plan. There is no evidence he showed signs of impairment. On the basis of that evidence, it is reasonably possible that the trial judge may have concluded that there was no realistic risk that the appellant would drive while his blood alcohol content exceeded the legal limit. am accordingly unable to find that there was no substantial miscarriage of justice on this basis. 2. Did the trial judge err by failing to consider evidence of operator error in the administration of the Intoxilyzer 5000c? [21] There is, however, second issue, the answer to which disposes of this ground of appeal. As the Crown notes, the appellant had care and control of the vehicle until he parked on the grid road. Further, given that he did so less than two hours before the administration of the Intoxilyzer test, the Crown was entitled to rely on the presumptions in s. 258(1)(c) of the Criminal Code to prove that the appellant’s blood alcohol level was the same at the time of the offence as that disclosed by the breath tests. It was, accordingly, not necessary for the Crown to prove that the appellant had care and control when he was parked in order to prove the offence. As such, the fact that the learned trial judge committed an error of law in relation to the test to be applied in determining whether the appellant had care and control after the appellant stopped did not result in a substantial wrong or miscarriage of justice. [22] The appellant submitted that the Crown is not entitled to prove the offence in this fashion, as this argument was not raised at trial. With respect, do not agree. Following the close of the appellant's case at trial, the Crown notes (transcript, p. 220) that the decision in Shuparski, 2003 SKCA 22 (CanLII), 232 Sask is "extremely important" in relation to the issue of care and control in this case. He then refers to the "critical overlap" period. The Crown thereby signaled that it could prove the offence by proving that the accused drove his vehicle not less than two hours before the administration of the first Intoxilyzer test. Further, this line of reasoning was not only referred to in the trial judge's reasons (at para. 20), but was fully disclosed at pps. 29-30 of the Crown's factum on this appeal. [23] In the result, the appellant cannot claim that this argument was raised for the first time on appeal, or that he was surprised or prejudiced in his ability to respond. There is no suggestion, and no basis to conclude, that the appellant failed to lead relevant evidence as he did not know this issue would be argued. Rather, it is quite clear, based on the evidence as whole including the appellant's admissions as to when he drove to the grid road that the appellant had care and control, not more than approximately ten minutes before he was first approached by the police. The appeal on this ground is accordingly dismissed. [24] Given that there was no evidence of the failure to observe the appellant while the tests were administered, or as to the significance of the failure to do so, the trial judge cannot be criticized for failing to refer to that issue. The appeal on this ground is accordingly dismissed. 3. Did the trial judge err in finding that the evidence did not constitute evidence to the contrary so as to rebut the statutory presumption in s. 258(1)(c) of the Criminal Code, or raise reasonable doubt as to the appellant's guilt? [25] As is noted above, the trial judge erroneously found based on the case law as it then was that the 2008 amendments to s. 258(1)(c)(iv) were retrospective. He then found that the appellant did not present evidence that could establish the three conditions set by those amendments. If that was so, the presumption of accuracy in s. 258(1)(c)(iv) would apply, and there was no need for the trial judge to determine whether, based on all the evidence, there was reasonable doubt as to whether the appellant’s blood alcohol level exceeded the legal limit at the time of the offence. However, he nonetheless determined that issue in the alternative, and found that he had no reasonable doubt. In effect, the trial judge also addressed the issue of evidence to the contrary as if the 2008 amendments did not apply, and as if the appellant had presented evidence to the contrary sufficient to rebut the presumption. Accordingly, the appellant was not prejudiced by the trial judge’s error of law. [26] The issue on this ground of appeal, accordingly, is whether the trial judge erred in concluding that the evidence did not raise reasonable doubt as to the guilt of the accused. The appellant submits that the trial judge erred by misapprehending the evidence, thereby committing an error of law. More specifically, he points to several aspects of the evidence that he says the trial judge did not consider. First, he notes the evidence of operator error. This issue is heavily emphasized in his factum. Second, he notes the evidence that while he smelled of alcohol, he showed no signs of impairment. Third, he notes the evidence of Ms. Byrne and Mr. Allan that he is social drinker, which is relevant to the question of whether he would have shown signs of impairment if he had the blood alcohol readings disclosed by the Intoxylizer. Finally, he says the trial judge did not consider the expert evidence, which gives meaning to the evidence relating to consumption and signs of impairment. [27] In support of his submission that the failure to consider this evidence constituted an error of law, the appellant cited Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193 (Ont CA) [Morrissey], Lohrer, 2004 SCC 80 (CanLII), [2004] SCR 732 [Lohrer], and Harper, 1982 CanLII 11 (SCC), [1982] SCR [Harper], which are leading cases on this issue. In Harper, Estey J. commented as follows: An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. The duty of the appellate tribunal does, however, include review of the record below in order to determine whether the trial court has properly directed itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, discloses lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede. [28] In Morrissey, the Ontario Court of Appeal confirmed (at para. 83) that misapprehension of the evidence may include failure to consider evidence relevant to material issue, mistake as to the substance of the evidence, or failure to give proper effect to evidence. In Lohrer, Binnie J. noted (at para. 1) that misapprehension arises if the trial judge is “mistaken as to the substance of material parts of the evidence”. Estey J. also cites Morrissey with approval, noting that there are three hurdles to be cleared to demonstrate misapprehension of evidence: Morrissey, it should be emphasized, describes stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in conviction". This formulation of the question has been frequently applied. [29] It is fair to say that the learned trial judge’s reasons as to why he decided he had no reasonable doubt, which are at paras. 26-29 of his judgment, are somewhat sparse. Further, failure by the trial judge to deal with or analyze material evidence in his or her reasons can result in the conclusion that he or she has misapprehended the evidence: see, for example, Clouthier, 2012 ONCA 636 (CanLII), at paras 12-16, and Schmidt, 2013 ONSC 6533 (CanLII), where the court set aside convictions as result of the trial’s judge’s failure to analyze important exculpatory evidence. [30] That said, it is my view that the trial judge’s reasons do not disclose an error within the meaning of the third part of the test outlined in Morrissey.  That is, they do not disclose that the trial judge failed to consider relevant evidence relating to a material issue which played an essential part in the reasoning process which resulted in the conviction. The key conflict in the evidence in this case was relatively simple. The trial judge had to reconcile the appellant’s evidence of consumption, and the expert evidence as to the effect of that consumption, on the one hand, and the test results on the other. Given that the ASD and Intoxylizer were operating properly, that evidence could be reconciled only by deciding that there was reasonable doubt as result of operator error, or by concluding that the accused was mistaken or intentionally misled the court as to his consumption. It was for the trial judge to make that decision, based on his assessment of all of the evidence. [31] It is apparent that the trial judge fully appreciated this issue, and that his conclusion that the appellant lacked credibility was the key to his decision. He found (at para. 28) that the appellant’s evidence that he decided to buy six pack of beer at Davidson, and drank two beer immediately after pulling over to sleep and despite being “incredibly tired” lacked an air of credibility, and that it made no sense to him. He took particular account of the test results from the ASD and Intoxylizer in assessing the appellant’s evidence that he drank only two beers, as he was entitled to do: see Fox, 2003 SKCA 79 (CanLII), [2004] WWR 477, at paras 55-58, and 66, and Lundrigan at paras 7-9. Having done so, he concludes as follows: 28 Therefore on the whole of the evidence, including the Intoxilyzer results and the results of the roadside testing, am not left with any reasonable doubt as to the guilt of the accused. [32] This reasoning must also read in the context of the evidence and the reasons as whole. The reasons confirm that the trial judge was aware that there was no evidence of impairment. have no reason to conclude that he did not consider that evidence, merely because he did not specifically refer to it in paras. 27-29 of his reasons. His statement that the Intoxylizer readings could not be explained by the consumption of one or two beers confirms that he was aware of the expert evidence. Further, he specifically refers (at para. 27 of his judgment) to the evidence of the Crown expert, which included evidence as to signs of impairment at certain blood alcohol levels, the effect of drinking habits, and the expert’s opinion that the only real variable was the amount of alcohol consumed. Although the trial judge did not refer specifically to the evidence from Ms. Byrne or Mr. Allan, conclude, based on his awareness of the expert evidence and his reasons as whole, that the failure to do so does not mean he did not consider that evidence. Further, and even if there was such an omission, it did play an essential part in his reasoning. Finally, although the appellant correctly notes that he did not refer to evidence of operator error relating to the Intoxylizer, that omission was appropriate, due to the lack of evidence that there had been such an error, or of its potential effect on test results. [33] In the result, am not satisfied that the trial judge misapprehended the evidence by failing to consider relevant evidence relating to material issue, and that there was an error of this kind which played an essential part in the reasoning process which resulted in the conviction. To the contrary, am satisfied, based on his reasons, that he considered the evidence as whole. [34] would finally note that the appellant’s factum also contains the following submission: It is respectfully submitted that there was more than enough evidence to raise reasonable doubt in the Appellant’s case. The absolute absence of any signs of impairment, the testimony of the Appellant and of the experts, the evidence of the two witnesses for the Appellant and the improper operation of the Intoxilyzer 5000C should have raised reasonable doubt. [35] Although it is my understanding, based on the appellant’s factum, that the issue on this ground of appeal was the misapprehension of evidence resulting in an error of law described above, this statement, together with some of the appellant’s submissions at the hearing of this appeal, suggest that the appellant also intended to appeal based on an error of fact. If that is so, the question would be whether the trial judge’s rejection of the appellant’s evidence that he only had two beers, and his conclusion that the appellant’s blood alcohol content was in excess of the legal limit, should be set aside on the ground specified by s. 686(1)(a)(i) of the Criminal Code. That section provides as follows: 686. (1) On the hearing of an appeal against conviction...the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,... [36] The standard of review applicable to an appeal under s. 686(1)(a) is well established. It was summarized by Popescul J. (as he then was) in Helm, 2011 SKQB 32 (CanLII), 368 Sask 115, as follows: 19 On the factual grounds, the standard of review is whether there is evidence upon which trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99 at para. 74; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381; and R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168. The appellate court ought not substitute its own view of the evidence for that of the trial judge. However, the appellate court is entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining if the evidence was reasonably capable of supporting the learned trial judge's conclusion. See R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.R. 656. [37] As was noted by Ball J. in Kratchmer, 2012 SKQB 117 (CanLII), 392 Sask 262: 23 .. An appeal will be allowed where the trial judge has made palpable and overriding error, but the appeal court must not substitute its own view of the evidence for that of the trial judge, especially in matters involving findings of credibility. (R. v. Andres, 1979 CanLII 2238 (SK CA), [1982] W.W.R. 249 at 251, Sask. R. 96 (Sask. C.A.); R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] S.C.R. 909, [1991] S.C.J. No. 37 (QL)) [38] Applying this standard to the facts in this case, it is clear for essentially the same reasons as those provided in relation to the alleged misapprehension of evidence that the evidence was reasonably capable of supporting the learned trial judge’s conclusion that the appellant’s evidence as to the amount he consumed was untrue. It was open to the trial judge to find that the appellant’s story did not make sense, and lacked an air of credibility. It was open to him particularly given the evidence the ASD and Intoxylizer were functioning properly and the lack of evidence of improper operation to reconcile the conflict in the evidence by accepting what can properly be characterized as the most obvious explanation for that conflict: that is, that the appellant’s evidence of consumption was not true. There was evidence that was reasonably capable of supporting all of these conclusions. There were other explanations available for the lack of signs of impairment referred to in the expert evidence, including an unusual tolerance to alcohol, and long practice at covering up those signs. [39] In the result, am unable to find, based on the evidence as whole that was before him, that the trial judge made palpable and overriding error in finding that he had no reasonable doubt. 4. Did the trial judge err in finding that the 2008 amendments to s. 258(1)(c)(iv) of the Criminal Code were retrospective, and as such, applied to this charge? If so, did that error compromise trial fairness or result in denial of the appellant’s right of answer and defence? [40] would first note that, as is noted above, it is common ground between the appellant and the Crown that the learned trial judge erred in his ruling that the 2008 amendments to s. 258(1)(c)(iv) which established three prerequisites relating to evidence to the contrary were retrospective. The appellant submits that the trial judge’s erroneous ruling on this point compromised his defence in two ways. First, the appellant says that the trial judge, having found that the amendments were effective and that the presumption that the test results were accurate was accordingly essentially insurmountable, was not receptive to the argument that the ASD and Intoxilyzer results were incorrect. In his view, the trial judge’s ability to deal fairly with the appellant’s credibility as to how much he drank was compromised, and he accordingly gave no weight to the expert evidence relating to the effect of drinking two beers. [41] With respect, this argument has no merit. As is noted above, the learned trial judge decided, based on all the evidence, that he had no reasonable doubt as to the appellant’s guilt. In doing so, he considered the ASD and Intoxilyzer results. He was entitled to do so. There is no basis to conclude that he erroneously gave those results undue weight based on his erroneous belief that Parliament had, by amending s. 258, placed very high burden on an accused seeking to attack the presumption of accuracy. As the Crown correctly notes, judges are commonly called upon to make decisions in the alternative. [42] Second, the appellant submits that he was denied the right to make full answer and defence, as the trial judge did not permit him to lead expert evidence relating to the proper operation of the Intoxilyzer. He says that the only way that he will get fair trial is if he has the opportunity to present his case at fourth trial. He then submits that fourth trial would constitute an abuse of process, and that the prosecution should accordingly be stayed. [43] The issue of retrospective application of the 2008 amendments, and their effect on what evidence the appellant should lead, was canvassed in discussion between the trial judge, the appellant and the Crown at the third trial. That discussion, which occurred before the evidence had been led, was initiated by the Crown, as follows: (transcript p. 5, lines to 12) Mr. Wyatt: In addition, the one issue think we need to decide at the beginning of the trial Mr. Wyatt: is the retrospectivity and what the evidence to the contrary issue. (sic) Mr. Wyatt: It makes no sense to wait to the end to do that because the evidence then becomes important, or more important or, sorry, different evidence becomes important. [44] The trial judge then advised the appellant, on the basis of submissions by the Crown, (transcript p.5, line 18 to p.10, line 21) that, as result of decisions of this Court, and he was bound to find that the 2008 amendments to s. 258(1)(c)(iv) applied in this case. As the court then puts it: (transcript p. 9, line 20 to p. 10, line 4) The Court: The amendments of subsection (1) have not eliminated but rather changed the nature of the available defence. It is still open for the accused to call evidence that the pattern of consumption of alcohol was such that breath readings should have been under the legal limit at the time of driving. The effect of the amendment is that an accused must also point to an instrument or operator error that would have resulted in the breath readings, claimed to be erroneous.... [45] The appellant responded as follows: (transcript p. 10, line 22 to p. 12, line 26) Mr. Lundrigan: think that understand where we’re going and I’m I’m -it doesn’t surprise me, wasn’t expecting anything different. just think that now, given the fact that the the the rules have changed and, if you will, the the burden seems to be more on my on my side to establish there was some fallibility in the in the equipment. The Court: That’s correct. Mr. Lundrigan: That leads me to the next query have given the fact that now have to prove the equipment was, at the time, unreliable and that there was in fact, some kind of mechanical error, would have to be position now to call an expert on those devices and while don’t want to hold the court up with with with this, think that would like to reserve the my right to possibly have an expert testify to that in the future, if required. The Court: just don’t know how you’d ever come up with that evidence Mr. Lundrigan. This has been dragging on for too long. This is case from 2005. Mr. Lundrigan: The Court: This is seven year old case so, don’t think I’m going to be, you know, too inclined to grant any further adjournments from either side Mr. Lundrigan: had to ask. You know. So think we should proceed today with the evidence. We should get as far as we can. Mr. Lundrigan: The Court: You can then call the expert. You or actually you’ll be filing the expert’s testimony that you do have. would probably grant you some time to reflect on that but after hear all the evidence, but quite frankly, if can be very candid with you, I’m not sure how any accused gets around that Section 258 requirement. Mr. Lundrigan: Fair enough. The Court: It’s almost impossible. The courts seem to have said that you’d have to almost call in technician on the stand who would say and oh, by the way, that instrument wasn’t working worth hoot that day. What technician is ever going to say that on stand. don’t don’t know how you ever would prove that. You’d have to have some frankly, don’t know how an accused is ever going to surmount that and think that’s why it’s, think, before the Supreme Court on that that issue. As to it has it’s made the hurdle too high, you know. So let’s let’s proceed today on the basis of calling calling and filing the transcript of the evidence of the two witnesses that the Crown did call.... [46] Shortly thereafter, there is discussion of the evidence of Mr. Allan and Ms. Byrne which was led by the appellant in the first trial. The Crown notes (transcript p. 25, line to 11) that much of that evidence deals with the “two drink” defence, which was not available if the 2008 amendments were retrospective. The following discussion then ensued: (transcript p. 25, line 20 to p.27, line 8) Mr. Lundrigan: Is that not defence that’s available to me still even though the the threshold is higher. The Court: Well again, you have to prove those three things so what I’m hearing from Mr. Wyatt is that think don’t know how you’re going to establish that the Breathalyser instrument was functioning improperly on the date in question, given its happened seven years ago. Mr. Lundrigan: Well think at the end of the day, but Your Honour, here’s ultimately I’ll I’ll just cut to the chase. I’m an engineer by by by profession and and so look at things kind of in that fashion. lot of that stuff thought, quite frankly, would still fly. I’m getting the the impression it’s not. The Court: Well, I’m stuck I’m stuck Mr. Lundrigan: Now having said that might might The Court: I’m stuck with the Ontario Court of Appeal and the Supreme Court. Like there’s things that just, you know you’re you’re talking to an entry-level judge here. Okay. Like we’re this is Provincial Court, we’re the low we’re the lowest part of the pile and we have to and I’m not bound by the Ontario Court of Appeal but am bound by the Saskatchewan Court of Queen’s Bench that’s ruled on that issue so Mr. Lundrigan: The Court: in regard to the Section 258 issue, it’s much bigger hurdle for any accused now, not just you, any accused that the two beer defence has pretty much gone by the way of the dinosaur. Pretty much out of the question. Unless the Supreme Court, for whatever reason, rules that Section 258 is unconstitutional. But that that haven’t heard they’ve done that yet so as it is as it stands, right now, at this moment, Sections 258 requires you to establish those three pre-conditions in order for successful defence to be offered in regard to the so-called Carter defence or the two beer defence. [47] The appellant submitted that this exchange means that he was denied the right to present expert evidence. As the Crown notes, that is not so. The trial judge ultimately did not have to deal with that question, as the accused did not press the issue. However, it is no surprise that the accused did not pursue the issue. This unrepresented accused was given a very strong message by the learned trial judge that there was no point in leading evidence in an attempt to challenge the accuracy of the Intoxylizer results. Further, and although the learned trial judge initially referred to the fact that the appellant could prove either equipment malfunction or operator error, his comments, taken as a whole, strongly suggest that the only expert evidence that would have been relevant would be evidence relating to equipment malfunction. With respect, that was incorrect. Evidence relating to operator error, and as to the proper operation of the Intoxilyzer, would also have been relevant. That is so regardless of whether the amendments to s. 258(1)(c)(iv) were in force. [48] Although the appellant has not appealed on the ground that the learned trial judge failed to comply with his duty to assist self-represented accused, it is useful to consider that duty in this context. In Harris, 2009 SKCA 96 (CanLII), 331 Sask 283, Richards J.A. (as he then was) summarized the law as follows: 28 ...a trial judge has an obligation to ensure the trial is fair and there is no miscarriage of justice. The right to fair trial is fundamental and is not diminished by person's decision to act on his or her own behalf. This principle, of course, engages potentially challenging responsibility for trial judges as it involves making difficult choices about how far the court can properly allow itself to be drawn into the trial process. Nonetheless, judge in this kind of situation must preserve the integrity of the proceedings. 29 In my opinion, the question of whether self-represented accused received sufficient assistance from trial judge cannot be properly answered by developing and relying on rigid list of steps that judge must undertake when dealing with such accused. Rather, the obligation of judge must be determined with reference to the dynamics of the trial in question, the circumstances of the particular accused and the nature of the charges. The specific initiatives necessary to ensure fair trial will vary from case to case. Fruman J.A. made this point as follows in R. v. Phillips, 2003 ABCA (CanLII), 172 C.C.C. (3d) 285: [22] Perhaps some judges are beguiled by the consistency and simplicity of boiler-plate language. But trials involving unrepresented accuseds are rarely consistent or simple. Their need for guidance varies depending on the crime, the facts, the defences raised and the accused's sophistication. The judge's advice must be interactive, tailored to the circumstances of the offence and the offender, with appropriate instruction at each stage of trial. [23] How far trial judge should go in assisting an accused is therefore matter of judicial discretion: McGibbon,[(1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334] at 347. The overriding duty is to ensure that the unrepresented accused has fair trial. Consistent with that duty, the judge "is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such way that his defence is brought out with its full force and effect". [49] In my respectful opinion, the learned trial judge’s comments fell short of meeting this standard. In the result, we are left in the curious position that the learned trial judge with the best of intentions, and as result of his understandable but incorrect conclusion as to the application of the amendments to s. 258 made comments calculated to influence the accused to conduct his defence in fashion that may have prejudiced the accused. [50] The appellant says that he would have led expert evidence as to operator error, and that his right to full answer and defence was compromised because the trial judge did not permit him to do so. As noted, that overstates the case. Indeed, the appellant did not expressly ask to lead evidence relating to operator error at trial, or otherwise advert to that issue. However, his failure to press the issue is entirely understandable, given that he was advised by the trial judge that the only evidence that could work was evidence of equipment malfunction. He was also told that the trial judge might refuse an adjournment, but that “the two beer defence has pretty much gone by the way of the dinosaur” and is “pretty much out of the question”. [51] In these circumstances, it would be inappropriate to hold the appellant responsible for the failure to press the issue of operator error, or to refuse relief because he did not do so. He was entitled to rely on the learned trial judge. If he had been corrected when he said he had to prove an equipment malfunction, and told that evidence of operator error could also be relevant, he may well have led such evidence. That evidence, which would have related to the alleged failure to observe the appellant to ensure that there was no mouth alcohol present, together with the evidence that mouth alcohol may have been present when the ASD was administered, would have been relevant to the question of the reliability of the test results. The test results were central to the trial judge’s decision as to reasonable doubt. [52] In the result, it is my respectful opinion that the trial judge’s comments compromised trial fairness, thereby resulting in an error of law within the meaning of s. 686(1)(a)(ii) of the Criminal Code. The appeal is accordingly granted on this ground. 5. Did the trial judge err in law by failing to address or provide reasons in relation to the appellant’s submission that the police stop which resulted in this charge constituted an arbitrary detention contrary to s. of the Charter? [53] The appellant says that he took the position at trial that the police had no lawful purpose for stopping his vehicle on the grid road. On that basis, he argued that his right not to be arbitrarily detained pursuant to s. of the Charter was violated. In response, the Crown says that this issue was not properly raised at trial, as it was first raised by the appellant only in his written argument submitted after the trial. It notes that the trial judge summarized the issues both before and after evidence was led, and that this issue was not identified. The Crown also says that it did not fully canvass the evidence relevant to this issue, as it was not aware it had to do so. For these reasons, it submits that this argument should not be considered on this appeal. [54] The Crown’s position is understandable. An accused who seeks an order that evidence be excluded pursuant to s. 24 of the Charter is generally obliged to give reasonable notice of that application. Further, an objection to the admissibility of evidence should be made before or when the evidence is proffered. However, trial judge has the discretion to permit an accused to challenge the admissibility of evidence which has already been received, where the interests of justice so warrant: see Kutynec (1992), 1992 CanLII 7751 (ON CA), 70 CCC (3d) 289 (Ont CA) at para 21. That discretion is particularly significant in the case of self-represented accused: see Howell (1995), 1995 CanLII 4282 (NS CA), 103 CCC (3d) 302 (NS CA). [55] As is noted in Pelletier (1995), 1995 CanLII 3923 (SK CA), 97 CCC (3d) 139 (Sask CA), at para 13, our Court of Appeal has generally refused to hear Charter issues raised for the first time on appeal, if the necessary factual underpinning does not exist. This principle is illustrated by Kay, 2006 SKQB 79 (CanLII), 277 Sask 72, where the court refused to permit Charter application first raised on appeal. It would apply equally on an appeal to this court. [56] However, this is not a case where the alleged Charter breach was first raised on appeal. The issue was raised in the appellant’s brief following trial. That being so, it is my respectful opinion that the learned trial judge was obliged to decide whether he would consider the issue. If he decided to do so, he would have decided whether the breach of s. was made out, and if it was, whether the evidence should be excluded. The Crown suggests that it should be assumed that the trial judge decided the issue was not properly before him, and was not dealt with for that reason. am unable to make that assumption. It is equally possible that the learned trial judge concluded that the argument lacked merit, or that he did not consider the issue at all. [57] As the appellant notes, Sheppard, 2002 SCC 26 (CanLII), [2002] SCR 869 confirms that trial judge has duty to provide reasons. The sufficiency of those reasons is not measured against standard of perfection, or at large. Rather, it is measured on functional basis. As noted by Binnie J., writing for the court: 24 ...the requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be. 25 The issue before us presupposes that the decision has been appealed. In that context the purpose, in my view, is to preserve and enhance meaningful appellate review of the correctness of the decision (which embraces both errors of law and palpable overriding errors of fact). If deficiencies in the reasons do not, in particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention under s. 686 of the Criminal Code. That provision limits the power of the appellate court to intervene to situations where it is of the opinion that (i) the verdict is unreasonable, (ii) the judgment is vitiated by an error of law and it cannot be said that no substantial wrong or miscarriage of justice has occurred, or (iii) on any ground where there has been miscarriage of justice. [58] In this case, the trial judge did not comply with this duty in relation to the Charter issue. If he had done so, and had permitted the accused to raise the issue, he would have been faced with mixed question of fact and law, which among other things, raised issues of credibility in relation to the evidence of the police officers. That determination is for trial judge. am accordingly unable to determine whether the failure to give reasons, and thus the potential failure to consider the issue at all, resulted in miscarriage of justice. In the result, the appeal should be allowed on this ground as well. 6. Should the prosecution be stayed based on the basis that fourth trial would constitute an abuse of process? [59] Given that have decided that the appeal should be allowed, must decide whether it would constitute an abuse of process for the appellant to face fourth trial. In this case, there is no issue of trial fairness. Accordingly, the particular species of abuse of process at issue is the “residual category”, which is concerned with state conduct that impacts the integrity of the justice system. In Babos, 2014 SCC 16 (CanLII), [2014] SCR 309, the court clarified the approach to be taken in deciding whether stay of proceedings should issue in such cases. Moldaver J., who delivered the opinion of unanimous court, summarized the test to be applied as follows: 32 The test used to determine whether stay of proceedings is warranted is the same for both categories and consists of three requirements: (1) There must be prejudice to the accused's right to fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54); (2) There must be no alternative remedy capable of redressing the prejudice; and (3) Where there is still uncertainty over whether stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having final decision on the merits" (ibid., at para. 57). [60] As to the first element of this three part test, Moldaver. noted as follows: 35 ...when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having trial even fair one will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met. [61] Further, the court confirms, as has been clear since the decision in Keyowski, that while the residual category is generally invoked as result of state misconduct, misconduct is not prerequisite to finding that there is an abuse of process, or to stay. As the court states at para. 37: Circumstances may arise where the integrity of the justice system is implicated in the absence of misconduct. Repeatedly prosecuting an accused for the same offence after successive juries have been unable to reach verdict stands as an example... (see, e.g., R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] S.C.R. 657) [62] Dealing with the second and third elements of the test in the context of the residual category case, the court further notes as follows: 39.. Where the concern is trial fairness, the focus is on restoring an accused's right to fair trial. Here, procedural remedies, such [page325] as ordering new trial, are more likely to address the prejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward. ... 41 ...when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is [page326] isolated or reflects systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits.5 Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered. [63] In this case, there is no suggestion of Crown misconduct. Further, there is no evidence as to who is responsible for the various delays along this tortuous road to justice. The issue is whether the mere fact that there have now been three trials and four appeals in the nine years since the date of the alleged offence constitutes an abuse of process, and if so, whether stay should issue. [64] The courts have wrestled with the calls for stay of third or subsequent trial on many occasions. Indeed, the learned trial judge in this case considered the issue in relation to the third trial, and, relying primarily on Keyowski, found as follows (at para. 35 of the trial decision): 35 can only echo what both the Saskatchewan Court of Appeal and the Supreme Court of Canada have stated. While third trial in Mr. Lundrigan's case may stretch the limits of the community's sense of fair play, it does not exceed them. Impaired drivers continue to occupy the public mind in terms of road safety and the unnecessary death and injury that continues to result from individuals who continue to drink and drive despite the draconian increase in financial penalties and loss of driving privileges. This accused has not suffered negative publicity and the proceedings while lengthy have been as result of properly brought and prosecuted appeals which do take time to wend their way through the legal system. [65] In Keyowski, the issue was whether the appellant should stand trial for third time on charge of criminal negligence causing death. The first two trials ended with hung juries. The trial judge stayed the third trial, decision that was overturned by majority of the Saskatchewan Court of Appeal. Although the Supreme Court of Canada disagreed with the majority of the Saskatchewan Court of Appeal as to whether prosecutorial misconduct was required before stay could issue, it agreed in the result, finding that this was not one of the “clearest of cases” which would justify stay. The court noted that it was serious charge, that the proceedings had not occupied an undue amount of time, and that the accused had not been held in custody. As result, and in the words of Wilson J.: (at para 4) third trial may, indeed, stretch the limits of the community's sense of fair play but does not of itself exceed them. In these circumstances, and having regard to the seriousness of the charge, think that the administration of justice is best served by allowing the Crown to proceed with the new trial. [66] In Jack, 1997 CanLII 356 (SCC), [1997] SCR 334, the court considered an application for stay of fourth trial for first-degree murder charge. The court’s reasoning is of particular interest. The victim disappeared in December 1988. The first trial began in September 1990. Following successful appeal, second trial was held in September 1992, resulting in verdict of not guilty in October 1992. Following successful appeal to the Manitoba Court of Appeal and the Supreme Court of Canada, third trial was held from January to March 1995, resulting in conviction. The appeal of that conviction was refused by the Manitoba Court of Appeal. However, Scott C.J.M. commented as follows in Jack (1996), 1996 CanLII 1889 (MB CA), 113 Man (2d) 260 (QL) (Man CA) [Jack] at para 11: …In my opinion it would be very rare case indeed where putting an accused in jeopardy with respect to serious charge for the fourth time would not constitute breach of sec. of the Charter, and an abuse of process sufficient to warrant judicial stay of proceedings under sec. 24(1) of the Charter. [67] In judgment dated June 20, 1997, Jack, 1997 CanLII 356 (SCC), [1997] SCR 334 the Supreme Court of Canada allowed Mr. Jack’s appeal, but stayed the prosecution. Lamer C.J. commented as follows at para (QL): The appellant has asked for stay of proceedings given the numerous trials and appeals the accused has been subjected to. Since the Court of Appeal of Manitoba gave reasons, with which we are in full agreement, that they would have entered stay had the majority allowed the appeal, stay is therefore entered. [68] In Hunter, (2001) 2001 CanLII 5637 (ON CA), 54 OR (3d) 695 (Ont CA), the Ontario Court of Appeal cited Scott C.J.M.’s statement in Jack with approval, finding that the accused in that case should not be subjected to fifth trial on charge of attempted murder. Over six years had passed since the offence. The court noted that the Crown’s case was not overwhelming, that the appellant had spent lengthy period in custody, and that the appropriate charge may have been assault with weapon rather than aggravated assault and endangering life. [69] In McKenzie, [2004] OJ No 3430 (Ont SCJ) (QL), the court stayed fourth trial on charge of second-degree murder. Approximately seven years had passed since the incident leading to the charge, and the accused had been in custody for four years and eight months. Similarly, in A.L. (2004) 2004 CanLII 32136 (ON CA), 183 CCC (3d) 193 (Ont CA), the Ontario Court of Appeal stayed fourth trial on charge of sexual assault. The accused have been convicted on three previous occasions. As the court there notes, comparing the facts to Keyowski, with the delay was approximately four years: 19 [20] By contrast, in this case, what is proposed is fourth trial. There has been lengthy delay of almost thirteen years (three times the delay in Keywoski). The appellant has admittedly been on bail for most of that time except for having served about month and half of the sentence and this is unquestionably serious charge. We also accept that neither the Crown nor the complainant is responsible for the errors that led to the three successful appeals. However, prosecutorial misconduct is not prerequisite to finding of an abuse of process. See Keywoski at p. 483 and R. v. Conway (1989), 1989 CanLII 66 (SCC), 49 C.C.C. (3d) 289 (S.C.C.) at 302. To continue these proceedings would, in our view, stretch the limits of the community's sense of fair play beyond the breaking point. This is one of those clearest of cases that justify stay of proceedings. [70] See also Huard (1998), 1998 CanLII 27955 (MB QB), 127 Man (2d) 211 (Man QB), where Glowacki J. stayed fourth trial on charge of driving with blood alcohol content in excess of the legal limit. The court referred to the fact that the accused had spent more than $800 on transcripts, now resided in British Columbia, and had his license suspended for period after the third trial. [71] In Badgerow, 2014 ONCA 272 (CanLII), 311 CCC (3d) 26 [Badgerow] (leave to appeal refused), the court reached the opposite conclusion, ordering that fourth trial be held in relation to first-degree murder charge relating to 1981 murder which first went to trial in 2001. The court referred (at paras. 194-196) to the reasoning in Jack, finding that it did not have to decide whether as suggested by Scott C.J.M. fourth trial for serious offence will generally be an abuse of process. It emphasized that the Crown did not have the opportunity at the first three trials to present certain highly probative and admissible evidence. It also emphasized that stay will be granted on the basis of abuse of process falling within the residual category only in exceptional and very rare circumstances. Further, as the court notes: 202 The comments in Jack that fourth trial of serious charge would be very rare can, in my view, be reconciled with these observations. Proceeding with fourth trial for murder may, in some cases perhaps many cases fall within the "exceptional and very rare" cases in which stay is warranted. [72] Badgerow demonstrates that stay is not automatic merely because an accused has been tried three times. The decision turns on the facts. The question, accordingly, is what factors should be taken into account. In his dissenting judgment in Keyowski, (1986) 1986 CanLII 157 (SK CA), 49 Sask 64 (Sask CA), Bayda C.J.S. identified the following non-exclusive list of factors (at para 35) which has been referred to in subsequent cases: (1) How many previous opportunities has the Crown had to present its case to jury on the charge in issue? (2) How serious is the charge in terms of loss of life, injury, loss of property? Is the mental element of the charge one of intent or recklessness? (3) How strong is the Crown's case? Are the chances reasonably good that fresh jury will reach verdict? Has the Crown overcharged? (4) Would the failure to proceed with the trial before fresh jury create danger to the public by reason of the accused's character and background? How strong is the possibility of repetition of the offence by the accused? (5) What punishment in terms of incarceration, emotional stress, pangs of conscience, loss of dignity and self respect, loss of income, legal costs and the like, has the accused undergone to this point? (6) Has the prosecution generally shown fairness and competence in handling the proceedings? (7) What length of time has elapsed since the proceedings were first instituted? (8) What is the physical and mental health of the accused? (9) What are the views of the complainant? [73] In this case, it is my view that there would be prejudice to the integrity of the justice system that would be manifested or aggravated if the appellant is tried a fourth time. That is so despite the fact that there was no prosecutorial misconduct, no punishment yet visited on the appellant, and clear and compelling public interest in prosecuting offences of this kind. The toll in property damage, injury and death resulting from the scourge of impaired driving has been strongly, frequently and properly emphasized by the courts in this and other provinces. Although the appellant, unlike the accused in Badgerow, is not charged with one of the most serious of criminal offences, driving with blood alcohol content in excess of the legal limit is serious offence. [74] However, 9 ½ years have now passed since the incident resulting in the charge. That is an extraordinarily long time to live with prosecution. Further, the facts are less serious than they are in some cases combining alcohol and driving. The appellant showed no signs of impairment. He recognized that he presented danger, and had pulled onto side road with the intention of sleeping before continuing his journey. There was no injury or loss of life, and thus no complainant other than the Crown representing the public interest. There is no evidence that there will be fresh danger to the public if the accused is not convicted. [75] As to the second element of the test, there is no other remedy capable of redressing the prejudice to the integrity of the justice system. In my view, fourth trial, almost decade after the incident at issue, would stretch the limits of the community's sense of fair play beyond the breaking point. The only way to avoid that result is to order stay. [76] To the extent that there is any doubt remaining, it is also my view that the balancing of interests called for by the third test confirms that this is one of those “clearest of cases” which call for a stay of proceedings. My reasons for that conclusion are those referred to in relation to the first and second elements of the test. would also note that stay based on the extraordinary facts of this case will not send signal to the public that the court takes drinking and driving offences any less seriously than it has in the past. F. CONCLUSION [77] The appeal is allowed, and it is hereby ordered that the proceedings against the appellant are stayed. J. B.A. BARRINGTON-FOOTE QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 386 Date: 2015 03 06 Docket: QB 303 of 2012 Judicial Centre: Yorkton BETWEEN: HER MAJESTY THE QUEEN and DAVID JOHN LUNDRIGAN Counsel: Andrew Wyatt for the respondent David Lundrigan self-represented, appellant CORRIGENDUM DATED March 6, 2015 BARRINGTON-FOOTE J. to JUDGMENT DATED December 4, 2014 (2014 SKQB 386) [1] Paragraphs 21, 22 and 23 of my judgment dated December 4, 2014 shall be amended to read as follows: [21] There is, however, second issue, the answer to which disposes of this ground of appeal. As the Crown notes, the appellant had care and control of the vehicle until he parked on the grid road. Further, given that he did so less than two hours before the administration of the Intoxilyzer test, the Crown was entitled to rely on the presumptions in s. 258(1)(c) of the Criminal Code to prove that the appellant’s blood alcohol level was the same at the time of the offence as that disclosed by the breath tests. It was, accordingly, not necessary for the Crown to prove that the appellant had care and control when he was parked in order to prove the offence. As such, the fact that the learned trial judge committed an error of law in relation to the test to be applied in determining whether the appellant had care and control after the appellant stopped did not result in a substantial wrong or miscarriage of justice. [22] The appellant submitted that the Crown is not entitled to prove the offence in this fashion, as this argument was not raised at trial. With respect, do not agree. Following the close of the appellant's case at trial, the Crown notes (transcript, p. 220) that the decision in Shuparski, 2003 SKCA 22 (CanLII), 232 Sask is "extremely important" in relation to the issue of care and control in this case. He then refers to the "critical overlap" period. The Crown thereby signaled that it could prove the offence by proving that the accused drove his vehicle not less than two hours before the administration of the first Intoxilyzer test. Further, this line of reasoning was not only referred to in the trial judge's reasons (at para. 20), but was fully disclosed at pps. 29-30 of the Crown's factum on this appeal. [23] In the result, the appellant cannot claim that this argument was raised for the first time on appeal, or that he was surprised or prejudiced in his ability to respond. There is no suggestion, and no basis to conclude, that the appellant failed to lead relevant evidence as he did not know this issue would be argued. Rather, it is quite clear, based on the evidence as a whole - including the appellant\'s admissions as to when he drove to the grid road - that the appellant had care and control, not more than approximately ten minutes before he was first approached by the police. The appeal on this ground is accordingly dismissed. J. B.A. BARRINGTON-FOOTE
The appeal was allowed, and rather than order a new trial, the charge was stayed. The issues were decided as follows: 1) the trial judge was found to have applied the wrong test as to de facto care and control of the vehicle. The appeal on the first ground was dismissed, however, because the Crown could rely on the presumption in s. 258(1)(c); the accused had been driving 10 minutes before the stop and within two hours of the breath tests, so whether he was in de facto care and control at the time of the stop was irrelevant and did not result in a miscarriage of justice; 2) there was no evidence of the failure to observe the appellant while the breath tests were administered, nor was there a suggestion of the significance of the failure to do so, therefore, the appeal on that ground was dismissed; 3) the trial judge also addressed the issue of evidence if the 2008 amendments did not apply and the appellant was therefore not prejudiced in this regard. The appellant nonetheless argued that the trial judge erred in law by misapprehending evidence. The appeal court concluded that the trial judge did not err in law because his reasons did not disclose that he failed to consider relevant evidence relating to a material issue;  4) the Crown conceded that the 2008 amendments did not apply retroactively. The appeal court found that the trial judge was incorrect in giving a strong message to the unrepresented appellant that there was no point in tendering evidence on the accuracy of the Intoxilyzer results. The trial judge’s comments strongly suggested that the only expert evidence that would be relevant would be with respect to equipment malfunction and not operator error. The appeal was granted on this ground because the trial judge’s comments were found to compromise trial fairness resulting in an error of law; 5) the s. 9 Charter breach was not raised by the appellant at trial but it was raised in his brief following trial, and therefore the appeal court found that the trial judge was obliged to decide whether or not to consider the issue. The appeal was also allowed on this ground because the trial judge did not comply with his duty to consider the issue and the appeal court could not determine whether the failure to give reasons resulted in a miscarriage of justice; and 6) there was no issue of trial fairness. The appeal court concluded that there would be prejudice to the integrity of the justice system that would be manifested if the appellant had a fourth trial. Nine and a half years passed since the offence date and the facts of the case were less serious than some drinking and driving cases. Also, there was no other remedy available to remedy the wrong. The balancing of interests also led the court to conclude that this was one of those clearest of cases calling for a stay of proceedings.