Crown need not account for every minute of delay

Mike Novakowski
May 05, 2014
By Mike Novakowski
When determining whether a breath sample was taken "as soon as practicable," the Crown is not required to call evidence detailing every moment that an accused is in custody. In R. v. Singh a police officer patrolling various licensed establishments stopped the accused at 1:52 am, formed a suspicion Singh was operating a vehicle with alcohol in his body and made an ASD demand at 1:58 am. A suitable sample was provided at 2:00 am, a "fail" was registered and Singh was arrested at 2:01 am for operating a motor vehicle while over 80 mg%.

When determining whether a breath sample was taken "as soon as practicable," the Crown is not required to call evidence detailing every moment that an accused is in custody.

In R. v. Singh a police officer patrolling various licensed establishments stopped the accused at 1:52 am, formed a suspicion Singh was operating a vehicle with alcohol in his body and made an ASD demand at 1:58 am. A suitable sample was provided at 2:00 am, a "fail" was registered and Singh was arrested at 2:01 am for operating a motor vehicle while over 80 mg%.

She was read her right to counsel, cautioned and given a breathalyzer demand at 2:05 am, then taken to the police station. She arrived at 2:22 am and was presented to the breath technician at 3:11 am. The first breath sample of 170 mg% was obtained at 3:22 am and a second sample of 160 mg% was taken at 3:50. She was charged with operating a motor vehicle over 80 mg%.

At trial in the Ontario Court of Justice Singh argued that the second sample wasn't taken "as soon as practicable" after the first breath test, as required by <s. 258 (1) (c) (ii)> of the Criminal Code. In her view, the Crown had failed to specifically explain, by calling evidence, the 28-minute delay between the first and second samples.

The judge rejected the submission, finding the Crown need not explain every minute that Singh was in police custody. He concluded that all of the times were reasonable and that police acted "as soon as practicable." Singh was convicted of over 80 mg%.

Singh successfully appealed to the Ontario Superior Court of Justice. The appeal judge noted that an interval of 17 to 20 minutes between samples was commonly seen in breath sample cases in light of the statutory requirement that there be an interval of at least 15 minutes between the taking of the two samples. In this case, however, there was an unexplained delay of 8-11 minutes. With this unexplained gap between the two tests, the Crown had failed to prove the samples were taken "as soon as practicable." Singh's conviction was quashed and an acquittal entered.

The Crown challenged the conviction reversal before the Ontario Court of Appeal, submitting that the trial judge did not err in finding the samples were taken as soon as practicable. The court agreed. In its view, just because there is an unexplained gap between two samples does not necessarily lead to the conclusion that the "as soon as practicable" requirement wasn't met. The Crown is not required to provide a detailed account of every minute an accused is in custody, including between tests.

<The requirement that the samples be taken "as soon as practicable" does not mean "as soon as possible." It means nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances. A trial judge should look at the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason.

It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused's blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose...

The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably> (references omitted, paras. 14-15).

The trial judge found the samples were taken as soon as practicable. There was no evidence the delay between the two samples was related to the reliability of the test results, nor did the trial misinterpret or misapply <s. 258 (1) (c) (ii)> to the facts of this case.

The Crown's appeal was allowed and Singh's conviction was restored.

Note

Additional facts taken from <R. v. Singh, 2012 ONCJ 665>.

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