Kathryn Hull

The Crown appealed a summary conviction decision that dismissed charges of impaired driving and driving with blood alcohol over the legal limit.

The trial judge found that Intoxilyzer samples were not taken “as soon as practicable” under s. 258(1)(a)(ii) of the Criminal Code due to an unexplained ten‑minute delay between the request for an approved screening device and the officer’s arrival at the scene.

The Crown argued the trial judge misapplied the law, particularly the principles from appellate authority addressing the “forthwith” requirement for roadside screening device demands.

The appeal court held that the trial judge applied the correct legal test and reasonably assessed the circumstances in concluding that the delay was unexplained and rendered the breath samples non‑compliant with the statutory requirement.

Deference was owed to the trial judge’s factual findings.