AS SOON AS PRACTICABLE - 62 MINUTES BETWEEN BREATH DEMAND AND FIRST BREATH SAMPLE NOT REASONABLE

A conviction that was entered by the summary conviction appeal court (R. v. Burwell, 2013 SKQB 20) was set aside and a new trial was ordered (the first trial was R. v. Burwell, 2012 SKPC 114) when the Saskatchewan Court of Appeal concluded that the breath samples were not obtained as soon as practicable:

The officer arrested Mr. Burwell in the Town of Asquith at 12:03 a.m. and at 12:04 a.m. demanded a sample of his breath for the purposes of analysis by an approved breath analysis instrument. The officer then determined that the nearest approved instrument, which was at the RCMP detachment in the Town of Delisle, was not accessible because the Delisle detachment was locked, no staff was on call, and he did not have an entrance key. At 12:09 a.m., the officer undertook to transport Mr. Burwell to the RCMP detachment in Saskatoon where an approved instrument was available. Upon their arrival at the Saskatoon detachment at 12:43 a.m., the officer discovered its approved instrument had not been serviced and was not immediately operational for testing breath samples. Being a qualified technician, he completed appropriate maintenance steps required to make the instrument operational and then obtained a sample of the appellant’s breath at 1:06 a.m. and a second sample at 1:27 a.m. R. v. Burwell, 2015 SKCA 37