R. v. Astaire
Her Majesty the Queen, and
 O.J. No. 5988
Ontario Court of Justice
W.J. Blacklock J.
Oral judgment: October 13, 2005.
Charge: S. 253(b) – Criminal Code of Canada
D. Carruthers, Esq. Counsel for the Crown
T.K. Pain, Esq. Counsel for the accused
REASONS FOR JUDGMENT
1 W.J. BLACKLOCK J. (orally): This is the view I take of this issue, right or wrong, or indifferent.
2 The Supreme Court of Canada has made it clear, in my view, that I have to be satisfied of those pre-requisites to the applicabilities of the presumption beyond a reasonable doubt. I have always thought, to be frank, that is odd, but that is my understanding of the laws annunciated by the Supreme Court of Canada. That is a high standard of proof.
3 While I cannot speculate about matters that are not in evidence before me, I am entitled to assess the quality of the overall record to determine whether or not that high standard of proof, proof beyond a reasonable doubt, has been made out.
4 Here, even if everything was perfectly in sync on the facto of this case, I am talking about a test that was taken no more than three minutes inside the two hours, which is a pre-requisite to the presumption back in this case. It is also clear on the evidence before me that there were other time devices available to the investigating officer, that on her own evidence, she may well have had recourse to, in coming up with the time of the stop, namely, the first time, eight oh-nine in this case, a clock in the cruiser. There is complete silence in the record as to whether or not that timepiece was in sync with the other timepieces, which appeared to have been used in this case. Ordinarily, that may not be enough to raise a reasonable doubt about whether or not the test was taken within two hours. But when I am talking about a time line as fine as three minutes, in my view, it does leave the court in a state of reasonable doubt about whether or not the test was taken within the two-hour time limit. Consequently, the presumption back does not apply in this case and consequently, the only charge being over eighty, that charge must be dismissed.