R. v. S.C.
Her Majesty the Queen, and
 O.J. No. 5496
Ontario Court of Justice (Provincial Division)
Harris Prov. J.
July 4, 1997.
Criminal law Offences against person and reputation Motor vehicles Impaired driving Breathalyzer Delay in administering test.
This was a trial of the accused, C., on a charge of impaired driving. C. was arrested, and arrived at the police station at 3:34 a.m. He gave his first sample at 4:10 a.m., and his second sample at 4:33 a.m.
HELD: C. was acquitted. The samples were inadmissible. There was no reasonable explanation for the 34 minute delay. As a result of the delay, C.’s blood alcohol level at the time of driving could not be presumed to have been the same as it was at the time of testing. The police, therefore, did not comply with the Criminal Code requirement that samples were to be taken as soon as practicable.
Statutes, Regulations and Rules Cited:
Criminal Code, s. 258.
S. Hickey, for the Crown.
T. Pain, for the accused.
¶ 1 HARRIS PROV. J. (orally): The one remaining matter is the judgment in the matter before the Court at the present time.
¶ 2 The issue essentially revolves around the presumption of what the case of R. v. St. Pierre calls the presumption of identity; that is, the issue of whether the blood alcohol level at the time of driving should be presumed to be the same as at that at the time of the testing, and that presumption is only available when certain conditions are met and those conditions are as follows:
“Where samples of the breath of the accused have been taken pursuant to a demand made under s. 254(3), if
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 a qualified technician, and
an analysis of each sample was made by means of an approved instrument operated by a 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 analysis;”
¶ 3 Now, counsel has referred me to the case of R. v. Payne, Ontario Court of Appeal, 56 C.C.C. (3d) 548, and I’m reading from Page 552. Justice Griffiths states, giving the majority decision,
“I have no hesitation in concluding that the Trial Judge was wrong in holding that the unexplained delay of nine minutes between 1:03 a.m. and 1:12 a.m. was fatal to the Crown’s case. The first breathalyser test was conducted approximately 39 minutes after the arrest and 44 minutes after the appellant was stopped. These are hardly prejudicial or inordinate delays having regard to the fact that Section 258(1) of the Code allows a maximum period of two hours from the time of the offence to the first sample.”
¶ 4 Now, in the Payne case, the Court was dealing with a delay of nine minutes. Here, I think it is common ground that the officer with the accused reached the station at 3:34 a.m. in the morning at 31 Division, north Yonge Street, and he had a choice between going to an address on the C.N.E. grounds and an address on north Yonge Street, both of which are in Metropolitan Toronto, and it has not been argued at all that he had not picked the shortest distance to travel to get to the nearest breath test. As a matter of fact, counsel has no quarrel with the expediency with which the arresting officer dealt with the accused.
¶ 5 Counsel argues that there are two unexplained delays — one of some 36 minutes from 3:34 to 4:10 a.m., and a further unexplained delay of some eight minutes during the course of taking the breath samples, that is from 4:10 to 4:33, there being only a requirement by statute of 15 minutes.
¶ 6 In my view, the eight minutes taken by itself is not an unreasonable delay. If it were less than 15 minutes, counsel would have an argument that the statutory pre-conditions were not met for the presumption of identity to be given effect to, if the breath tests were not some 15 minutes apart. On the other hand, when they are 23 minutes apart, counsel, in my view, since that is such a short time outside the 15 minute period, counsel should not be in a position to complain that that’s too long a delay. It is, in my view, consistent with the officer, the breath technician, erring on the side of safety to ensure that he has clearly 15 minutes between the two tests and to take 23 minutes is not inordinate delay, it’s not unreasonable delay, and it’s a safety factor to ensure that there is at least 15 minutes so the machine can function properly, and that’s why the 15 minutes is contained in the statute, that is 15 minutes between the two samples. So, in my view, there is no inordinate or unreasonable delay as the case law has defined ‘as soon as practicable’ in the eight minutes from 4:25 to 4:33 a.m. when the second breath sample was taken.
¶ 7 Now, coming back to the delay of 36 minutes, the case law is clear that 36 minutes or any reasonably lengthy period of unexplained delay does not meet the test of ‘as soon as practicable’ in the statute. The question really becomes, what is unreasonable delay for these purposes.
¶ 8 In my view, the test ‘as soon as practicable’ must be ascertained separate and apart from the test that requires the samples be taken within two hours. It seems to me the statute is worded in such a way that the two requirements must co-exist as separate conditions to be observed in s. 258 before the evidence of the result of the chemical analysis becomes proof of the proportion of alcohol in the blood of the accused at the time of the offence.
¶ 9 I am mindful of what Justice Griffiths said in Payne, and in my view, that is an obiter statement. It is not reflective of any particular concern with delay period. In my view, that particular aspect of the decision was not necessary for the purposes of deciding whether or not nine minutes was unexplained delay. That was the only issue before the Court, and the Court went on to say the periods of time from arrest to the time where the accused was at the station and in a position to take the breath test, were hardly prejudicial or inordinate delays. No-one is claiming in this case, the case at bar, that there is prejudicial or inordinate delay after the point where Mr. C. is in the station.
¶ 10 In my view, if the statute were to require that ‘as soon as practicable’ be modified by the concept that the delay was not to be unreasonable or prejudicial or inordinate as Justice Griffiths indicates, then the statute would have stated and articulated those concepts. In fact, the statute says only ‘as soon as practicable’ as a distinctly different condition from the condition that the tests be taken within two hours.
¶ 11 To imply a prejudicial test in the case at bar would simply vitiate the whole effect of ‘as soon as practicable’ and the test would simply collapse into one simple question of whether the condition of the tests being taken within two hours had been met. In my view, ‘as soon as practicable’ as a condition rests entirely on its own footing separate and apart from the two hour test and one is not modified by the other in terms of any question of whether, even if there is some unreasonable delay, I have to ask whether it is prejudicial or inordinate. In my view, that is not in the statute. That is obiter in the Payne case, and that’s not something that I would take into account since the ‘as soon as practicable’ condition exists on its own footing and does not modify or become secondary to the two hour delay period that is also a condition.
¶ 12 Now, in this case, Constable Fitzgerald, who in my view did everything that a responsible and competent officer is required to do, indicated that at 3:34 a.m. when he arrived at the station, he did his notes and waited for a technician. There was some period of time required for booking, but aside from that, he simply waited for the technician, and some time before 4:10, the technician arrived. Now, I have no way of knowing whether it was seconds before 4:10 or minutes or ten or fifteen minutes, and I have no way of knowing how long a booking process takes. It may be a moment or two, it may be ten or fifteen minutes, but the case law is very clear, I’m not to speculate.
¶ 13 In my view, it would be safe in assuming that a booking process would take a minute or two and that we’re probably looking at about a 34 minute delay, but even at that, I have to consider whether or not that is unreasonable unexplained delay.
¶ 14 Having regard to a long line of cases from Altseimer to Phillips to Payne and all the decisions that have been provided to me by defence counsel, in my view there is an unbroken line of authority that once the delay is over approximately 30 minutes, especially unexplained delay, without any admissible evidence, there is generally a recognition in law that that is not ‘as soon as practicable’ as required by the statute.
¶ 15 I have looked at a number of decisions in the case book provided by defence — there is Lightfoot, Porter, McCauley, and in particular, Randall Jobe, a decision of the Honourable Justice Rapson, a 1984 decision, and it is clear from that decision that the Appellate level decisions have insisted that Trial Courts not speculate on what might be involved in the delay that is unexplained, for example, where a police officer is waiting at the station for a breath test to take place. I could guess that perhaps it would take some time, significant time, to prepare the breathalyser. I could guess that maybe the breath technician came from some distance, but as to delay that Constable Fitzgerald had to spend at the station waiting for the breath technician, unless the breath technician comes along and explains that or there is some admissible evidence covering that period of time, I just don’t have any basis for concluding it is a reasonable amount of delay. I guess with that amount of delay showing on the Crown’s case, it might have been necessary to call the breath technician or somebody that could explain this delay, but in my view, in spite of the fact that all the other aspects of the case have been proven beyond a reasonable doubt, I am not satisfied that the issue of ‘as soon as practicable’ has been proven beyond a reasonable doubt.
¶ 16 I am satisfied on the evidence of 34 minutes (or even something slightly less if I could guess about a minute or two involving booking, a minute or two involved in setting up a breath machine which, in fact, I’m not allowed to do), there is at least a half an hour here of unexplained delay, and in my view, it does not meet the test of ‘as soon as practicable’ or as the case of Phillips and other decisions such as Wonicott say ‘as soon as is reasonable’ and since that condition exists independently and equally with all other conditions that are prerequisites to the presumption of identity, in my view the evidentiary prerequisite has not been proven beyond a reasonable doubt of ‘as soon as practicable’ and I’m going to dismiss the charges.