Her Majesty the Queen v. Singh

[Indexed as: R. v. Singh]

Ontario Reports

Court of Appeal for Ontario,

Laskin, Juriansz and Watt JJ.A.

April 17, 2014

120 O.R. (3d) 76 | 2014 ONCA 293

Case Summary

Criminal law — Drinking and driving offences — Driving over 80 — Samples taken "as soon as practicable" — Trial judge not erring in finding that second breath sample was taken "as soon as practicable" despite unexplained 28-minute gap between first and second breath samples — Whether tests administered "as soon as practicable" being question of fact for trial judge — Crown not required to provide detailed explanation of what occurred during every minute that accused was in custody.

The accused was convicted of driving over 80. The trial judge found that the second breath sample was taken "as soon as practicable", as required by s. 258(1)(c)(ii) of the Criminal Code, R.S.C. 1985, c. C-46, despite an unexplained 28-minute gap between the first and second samples. The summary conviction appeal judge allowed the accused's appeal on the ground that the Crown had not met its burden to prove that the breath samples were taken as soon as practicable. The summary conviction appeal judge distinguished prior appellate precedent on the basis that it did not apply where there was an unexplained delay between samples. The Crown appealed.

Held, the appeal should be allowed.

The trial judge appropriately considered the entire time frame and the whole chain of events, and correctly stated that the Crown was not required to provide a detailed explanation of what occurred during every minute that the accused was in custody. The requirement that breath samples be taken "as soon as practicable" means nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances and does not mean "as soon as possible". There was no suggestion in this case that the interval between the two samples was somehow related to the reliability of the results. The trial judge did not err in finding that the second breath sample was taken as soon as practicable. Whether the tests were administered as soon as practicable is a question of fact for the trial judge and the summary conviction appeal judge should not have interfered with the finding of the trial judge who neither misinterpreted the relevant provision nor misapplied it to the facts of the case.

R. v. Bugler, [1997] O.J. No. 2283 (C.A.); R. v. Vanderbruggen, 2006 9039 (ON CA), [2006] O.J. No. 1138, 208 O.A.C. 379, 206 C.C.C. (3d) 489, 29 M.V.R. (5th) 260, 69 W.C.B. (2d) 161 (C.A.), consd

Other cases referred to

R. v. Blacklock, 2008 16199 (ON SC), [2008] O.J. No. 1472, 78 W.C.B. (2d) 145 (S.C.J.); R. v. Timminco Ltd./Timminco Ltée (2001), 2001 3494 (ON CA), 54 O.R. (3d) 21, [2001] O.J. No. 1443, 144 O.A.C. 231, 153 C.C.C. (3d) 521, 11 C.C.E.L. (3d) 46, 42 C.R. (5th) 279, 49 W.C.B. (2d) 475 (C.A.)

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 253(1) (b), 258(1)(c)(ii) [page77 ]

APPEAL by the Crown from the judgment of Flynn J., [2013] O.J. No. 3543, 2013 ONSC 5027 (S.C.J.) allowing the accused's appeal from the conviction entered by Hearn J., [2012] O.J. No. 5056, 2012 ONCJ 665.

Michael Fawcett and Grace Choi, for appellant.

Bruce Ritter, for respondent.

The judgment of the court was delivered by

JURIANSZ J.A.: —

A. Introduction

[1] The Crown seeks leave to appeal from the decision of the summary conviction appeal judge allowing the respondent's appeal from her conviction for operating a motor vehicle while her blood-alcohol level was "over 80", contrary to s. 253(1) (b) of the Criminal Code, R.S.C. 1985, c. C-46. The summary conviction appeal judge concluded that the Crown had not met its burden to prove that breath samples were taken from the respondent "as soon as practicable", as required by s. 258(1)(c)(ii) of the Criminal Code.

[2] The essential chronology is as follows:

2:01 AM the respondent was arrested

2:22 AM the arresting officer and respondent arrived at the police station

3:11 AM the respondent was delivered to the breath technician

3:22 AM the taking of the first breath sample was completed; the reading was 170 mg of alcohol/100 mL of blood

3:50 AM the taking of the second breath sample was completed; the reading was 160 mg of alcohol/100 mL of blood

[3] The respondent called no evidence at trial. The respondent's only argument at trial was that the timing of the breath samples did not comply with s. 258(1)(c)(ii). That section sets out one of the requirements that must be satisfied in order for breath test results to be admitted into evidence as conclusive proof of the concentration of alcohol in the accused's blood at the time of the offence. It requires that each sample be taken "as soon as practicable" after the alleged offence, that the first sample be taken within two hours of the alleged offence and that there be an interval of at least 15 minutes between the two samples. [page78 ]

[4] The respondent took no issue with the time that had passed from the traffic stop to the completion of the first breath test. Rather, the respondent argued that the Crown had failed to prove the second test was taken "as soon as practicable" because it had not called evidence to specifically explain the 28-minute delay between the first and second breath samples.

[5] The trial judge rejected that position. The trial judge considered the entire time frame and the whole chain of events. He commented that the Crown need not provide an explanation for every minute that the accused was in police custody. He concluded that all of the times were reasonable and that the police had acted "as soon as practicable".

[6] The summary conviction appeal judge allowed the respondent's appeal. In light of the statutory requirement that there be an interval of at least 15 minutes between the taking of the two samples, he noted, and both counsel accepted, that one commonly sees an interval of 17 to 20 minutes between the two tests. This left an unexplained delay of eight to 11 minutes in this case.

[7] In assessing that eight-to-11-minute delay, the summary conviction appeal judge declined to apply this court's decision in R. v. Vanderbruggen, 2006 9039 (ON CA), [2006] O.J. No. 1138, 206 C.C.C. (3d) 489 (C.A.), because it [at para. 7] "was not a case about unexplained delay between samples". Rather, his analysis reflects a line of cases that considers this court's earlier decision in R. v. Bugler, [1997] O.J. No. 2283 (C.A.) to be the authority that specifically applies to delay between samples.

[8] Illustrative of this line of cases is R. v. Blacklock, 2008 16199 (ON SC), [2008] O.J. No. 1472, 78 W.C.B. (2d) 145 (S.C.J.). Blacklock, which was discussed by both the trial judge and summary conviction appeal judge, explained Bugler as follows [at paras. 15-16]:

In R. v. Bugler, supra, the Ontario Court of Appeal, in a short endorsement, set aside the conviction where there was a 40-minute delay between the first and second breath tests. The conviction was set aside on the basis that there was "no evidence to account for the 40 minutes" that elapsed between the two breath tests, and therefore, "the presumption of the level of alcohol was not available" to the Crown.

Several cases in the Ontario Court of Justice which have followed Bugler dealt with delays ranging from 29 to 38 minutes, and where no evidence was led to show that the second test was taken as soon as practicable.

[Emphasis in original]

[9] The court's decision in Bugler is a four-sentence oral endorsement. The court's entire reasons are as follows [at para. 1]:

The trial judge clearly felt that in this case an exploration was called for to account for the 40 minute delay between the first and second tests. The explanation he "accepted" was a misapprehension that the appellant was on [page79 ]the phone with his lawyer during that time. In fact there was no evidence to account for the 40 minutes and if the trial judge had appreciated that he would undoubtedly have concluded that the requirement of the Code had not been met and the presumption of the level of alcohol was not available. There was no other evidence of the alcohol level of the accused and it follows that the conviction must be set aside and an acquittal entered.

[10] As can be seen, these brief reasons contain no recitation of the facts that would enable a reader to understand the overall circumstances of the case, how the 40-minute delay between tests fit into those circumstances, or why the court was satisfied that the trial judge "clearly felt that in this case an exploration was called for to account for the 40-minute delay between the first and second tests". On appeal, it was established that the trial judge's finding that the delay was explained was based on a misapprehension of the evidence. This court seems to have inferred from the trial judge's reasons that in the absence of a proper explanation he would have concluded that in the circumstances the "as soon as practicable" requirement had not been met and so entered an acquittal.

[11] Bugler should not be read to stand for the proposition that an unexplained gap between the two tests, viewed in isolation without considering the whole chain of events, can support the conclusion that the "as soon as practicable" requirement was not met. Bugler does not articulate any proposition of law.

[12] While all decisions of this court are binding, care must be taken to avoid reading unwarranted jurisprudential principles into a decision of the court rendered in an endorsement as brief as in Bugler. Such endorsements are intended primarily to simply pronounce a decision for parties who, having been present in court during the argument of the appeal, will understand the thrust of the court's reasoning. When the court intends to articulate jurisprudential principles for the first time, it does so in a written judgment. Vanderbruggen is such a case. This court has expressed this caution before. See the remarks of Osborne J.A., at para. 36 of R. v. Timminco Ltd./Timminco Ltée (2001), 2001 3494 (ON CA), 54 O.R. (3d) 21, [2001] O.J. No. 1443 (C.A.):

Reasons of this Court given by "endorsement" are mainly directed to the immediate parties. Endorsements, like all judgments of this court, have precedential value but they should not be construed to support broad overarching principles which are not specifically addressed in them.

[13] The summary conviction appeal judge was wrong to distinguish Vanderbruggen on the basis that it was not a case about the unexplained delay between the two samples. Vanderbruggen is the governing authority. There, Rosenberg J.A. stated, at para. 12, that the question at the heart of the appeal was the [page80 ]meaning of "as soon as practicable". He discussed the meaning of the phrase generally, and it is apparent that that discussion encompasses the time between the two tests. Justice Rosenberg referred to "the tests" and "the breath samples", at para. 13. He said that the Crown was not required to provide a detailed explanation of what occurred "during every minute that the accused is in custody". That statement obviously applies to the time between the two tests because the accused remains in custody in that interval.

[14] That trial judge drew and applied the correct principles from paras. 12-13 of Vanderbruggen. 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.

[15] 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. As Rosenberg J.A. said in Vanderbruggen, at para. 12, "The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."

[16] Finally, Vanderbruggen also provides, at para. 14, that "Whether the samples were taken as soon as practicable . . . [is] an issue of fact for the trial judge." The trial judge found they were. There was, in this case, no suggestion that the interval between the two samples was somehow related to the reliability of the results. The summary conviction appeal judge had no basis to interfere with the decision of the trial judge, who did not err in interpreting s. 258(1) (c)(ii) or in applying that provision to the facts of this case.

[17] I would grant leave to appeal, allow the appeal and restore the conviction entered by the trial judge.

Appeal allowed.

End of Document