Court File and Parties

Court File No.: 12 01328/12 90000122-00 Date: 2012-05-23 Ontario Court of Justice

Between: Her Majesty the Queen — and — Tajinder Chahal

Before: Justice Peter J. Wright

Heard on: May 23, 2012

Counsel

For the Crown: S. Kumaresan

For the Accused Tajinder Chahal: P. Lindsay

Reasons for Judgment

P. Wright J.: (Orally)

[1] The evidence from the prosecution witnesses creates, in my mind, a delay. It is unexplained and somewhere between 30 minutes at the minimum, up to 60 minutes at the maximum. In either case it is far outside the permissible limits that were set by Justice Rosenberg in R. v. Vanderbruggen, [2006] O.J. No. 1138.

[2] It is no longer required that every single minute has to be explained, but there has to be a general understanding of what is going on. Mr. Chahal was arrested at 1:06, according to Constable Salami. That is when the dispatcher would have been notified. That is when the dispatcher would have ultimately caused the chain of command to activate a request for a qualified breathalyzer technician.

[3] If that had happened here, I would be surprised. The overwhelming preponderance of evidence seems to suggest that it was not until somewhere between 2:15 to 2:20 that Constable Hawthorn even knew that his services would be required in relation to this matter. He said that he was notified at 2:15.

[4] It is unclear in cross-examination, or even in-chief, what happened at 2:20, whether it was at 2:20 that Constable Hawthorn was handed the sheet by Constable Salami that informed him the arrest took place at 1:06 or whether he knew it at 2:15.

[5] If the booking took a total of five minutes we are well over an hour with really no explanation. If the booking took 30 minutes, which runs all the way from 1:15 to 1:45, we are still at a half an hour with no explanation because even at 2:15, on the short end of Constable Hawthorn's evidence, against the long end of Constable Salami's evidence at 1:45, there is a 30 minute unexplained delay while Mr. Chahal was sitting in the cells.

[6] If Constable Salami is off by 25 minutes, every single additional minute of delay adds to that 30 minutes of delay. In other words, if the booking took place five minutes after they arrived at the station, so it would be done at 1:20, in which case there would be 40 minutes, plus at least 15 minutes, which is more than an hour delay.

[7] The best case scenario for the Crown is that at 1:45 the booking involving Constable Salami concluded and that at 2:15 the information went to Constable Hawthorn. That is the best case. Half an hour of unexplained delay.

[8] The worst case for the Crown is that the parading was finished at 1:20 and that Constable Hawthorn did not really know about this case until 2:20. That is an hour of unexplained delay.

[9] Even if there existed some explanation, and I don't have it, for the 30 to 60 minute delay, it is clear from Constable Hawthorn that there can be simultaneous testing done on this machine so that if candidate 'A', and I am not even clear if an unknown candidate 'A' really and truly did precede the defendant here, there is nothing that would have prevented Constable Hawthorn from conducting simultaneous tests on candidate 'A', the unknown candidate, and the defendant here.

[10] Now Constable Hawthorn speculated that there could be problems in the room with ventilation, but there is no evidence that that occurred. I can conclude, and I do conclude, the reason that there was a delay was that Constable Hawthorn simply did not know until sometime between 2:15 and 2:20 that there was a man who had been arrested at 1:06, driven to the station at 1:15 and had been waiting for the better part of an hour to be tested. I think that is clear from the evidence that the entire 30 to 60 minutes delay goes unexplained.

[11] The missing link here is how long the parading took. If it took five minutes, the delay is an hour. If it took thirty minutes, the delay is a half an hour. That is far too much time to be left just drifting. It sounds like things were busy, sounds like the paperwork just did not get communicated promptly and this defendant was left drifting for between 30 to 60 minutes in a cell somewhere.

[12] The breath test here was not conducted "as soon as practicable". As a consequence, the Crown is deprived of the ability to rely upon the presumption contained in the Criminal Code.

[13] I conclude, on what I have heard and the evidence here, this test was not taken as soon as practicable, given the timelines, given the jurisprudence in Vanderbruggen and other cases from the Court of Appeal. While the certificate has value, it is not available for purposes of the proof of the truth of its contents.

[14] The Crown did not call a toxicologist, for instance, to tell me what the information in the certificate means in terms what the reading would have been at the time the defendant was driving. The certificate does not go in as evidence. The Crown has not established the proof of this offence. Without the certificate you have no evidence, Ms. Kumaresan, about the over 80 charge. Do you agree?

MS. KUMARESAN: Yes.

THE COURT: So, that is that.

MR. LINDSAY: Thank you, Your Honour. Could I ask Your Honour's indulgence for a moment?

THE COURT: Yes. What do you want to do about the other charge? And by the way, not guilty, dismissed, is my result.

Released: May 23, 2012

Signed: Justice Peter J. Wright