DATE: 20030616

DOCKET: C32996

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – IGOR DZAJA (Appellant)

BEFORE: DOHERTY and ARMSTRONG JJ.A. and BLAIR R.S.J. (ad hoc)

COUNSEL: Shelley Hallett, for the respondent

Lawrence Ben-Eliezer, for the appellant

HEARD: June 13, 2003

RELEASED ORALLY: June 13, 2003

On appeal from the conviction of Justice B. M. Kelly dated March 10, 1999.

E N D O R S E M E N T

[1] The appellant was convicted pursuant to s. 253(b) of the Criminal Code commonly referred to as driving over 80. The issue in this appeal is whether the breathalyzer test was administered as soon as practicable as required by s. 258 (1)(c) (ii).

[2] The evidence is that the appellant was taken to the police station at 3:16 a.m. and was then “paraded” before the officer in charge. The arresting officer testified that the attendance before the officer in charge was five to ten minutes maximum and was at the upper end of that range.

[3] At 3:59 a.m., a telephone call was placed to duty counsel who returned the call at 4:04 a.m. The first breath test was then administered. On the evidence there is a gap of at least 33 minutes between the attendance before the officer in charge and the call to duty counsel. The only explanation on the record for this gap is that the appellant was seated in the report room while the arresting officer processed some paperwork. It is this gap of 33 minutes which the appellant alleges the trial judge failed to consider in his assessment of whether the breath test had been administered within the time required by s. 258 (1)(c) (ii) of the Criminal Code.

[4] The trial judge in his brief reasons stated:

As far as the times are concerned, he was brought to the station, there was some delay at the scene getting the cab and getting the tow truck, which is understandable. He’s brought to the station. He was paraded. That takes time. There was discussion about his using the phone. The officer got him the phone. He spoke to the duty counsel. It may not have been done as quickly as possible, but I believe the times have been satisfied in this instance and there will be a conviction. The Crown being entitled to the presumption.

[5] The summary appeal court judge simply accepted the trial judge’s reasons.

[6] In our view, the trial judge did err in law in failing to direct his mind to the 33 minute gap and to apply that evidence to the test articulated by this court in R. v. Phillips (1988), 1988 198 (ON CA), 42 C.C.C. (3d) 150 and R. v. Letford (2000), 2000 17024 (ON CA), 150 C.C.C. (3d) 225 which is that the test should be administered “within a reasonably prompt time under the circumstances”. The summary appeal court judge failed to identify this error of law.

[7] We would therefore allow the appeal. The conviction is quashed and a new trial is ordered.

“Doherty J.A.”

“Robert P. Armstrong J.A.”

“R. A. Blair R.S.J. (ad hoc)”