ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA 7733
DATE: 2013-07-29
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Sabrina Singh
Appellant
Tony Sferruzzi, for the Respondent
Bruce Ritter, for the Appellant
HEARD: July 5, 2013
The Honourable Mr. Justice Patrick J. Flynn
JUDGMENT ON APPEAL
[1] This is yet another case where the heart of the trial and the appeal is whether the breath samples were taken at “as soon as practicable”.
[2] In a careful and thorough 20 page Ruling (Reasons for Judgment), the very experienced trial judge laid out the detailed factual chronology of the case and then applied the proper law to that matrix to find the Appellant guilty on the “over 80” charge.
[3] He set out the issue to be determined thus:
Defence counsel raises one issue with respect to the evidence led by the Crown and argues that the samples of breath were not taken as soon as practicable given what seems to be a 28 minute delay between the first and second samples, which delay has not been the subject of any evidence led by the Crown and is an unexplained delay. The issue then ultimately becomes were the tests taken as soon as practicable so as to enable the Crown to rely on the presumption, failing which the Crown’s case will fail.
[4] The learned trial judge found the experienced officer’s evidence to be fair and straightforward and that that officer acted reasonably throughout.
[5] In this case, less than two hours passed from the time of the traffic stop until the time when the second sample was provided.
[6] In spite of the 28 minute unexplained delay between the taking of the samples, the learned trial judge, relying on R. v. Vanderbruggn, 2006 9039 (ON CA), [2006] O.J. No. 1138 (C.A.), found that all of the times were ultimately reasonable and that it would be inappropriate to focus on one aspect of the total time in determining whether or not the tests were taken as soon as practicable. And, relying on Vanderbruggn, he concluded that it is the entire time frame that must be considered.
[7] But Vanderbruggn was not a case about unexplained delay between samples. And the learned trial judge was alive to Regina v. Blacklock, 2008 16199 (ON SC), [2008] O.J. No. 1472 (S.C.J.), which followed R. v. Bulger, [1997] O.J. No. 2283 (C.A.) and considered R. v. Kunaratnam, [2012] O.J. No. 3242 (O.C.J.) in which there were unexplained delays between tests of 32 minutes and 31 minutes respectively and both of which resulted in acquittals. Of course, the learned trial judge was bound by neither of these cases.
[8] In Bulger, the delay between tests was 40 minutes.
[9] One must be mindful that there is a statutory requirement for at least 15 minutes between samples, within the framework of the two hour mandatory completion rule.
[10] Neither counsel took issue with what my brother Fedak J. in Blacklock called the usual practice of 17 – 20 minutes time lapse after the first test. In fact, the trial judge adopted this very standard. Using that model, in this case the delay for which there is a complete lacuna of evidence or explanation is 8-11 minutes beyond that standard.
[11] I must say that defence counsel’s approach to this matter is a paradigm of advocacy. He took no issue whatsoever with any other part of the entire time frame. He got right to the crux: this 8-11 minute gap in the evidence.
[12] The learned trial judge made clear that there was not any explanation at all for the gap. Then, in meeting the issue head on, the trial judge reminded himself that the “as soon as practicable” requirement must be applied with reason. And he says:
“the ‘as soon as practicable’ criterion was enacted to ensure that the presumption operates fairly and that the breath testing leads to accurate results. In enacting this criterion Parliament was concerned with protecting against the manipulation of the results by delaying testing to allow for the absorption of alcohol into the accused’s blood.”
[13] And the trial judge looked at the entire time frame “involved from the time of the offence to the time of the taking of the first sample ... [and found] that the first test was taken as soon as practicable within the meaning of the legislation”.
[14] And while this is a close call, this is where, in my view, the learned trial judge fell into error. Even though he had laid out that the 18 minute delay beyond the 17-20 minute statutory time lapse was totally unexplained, he never did specifically address whether or how the second test was taken as soon as practicable.
[15] While I agree with the trial judge that the law does instruct a trial judge that it is inappropriate to focus on one aspect of the total time, one cannot ignore an unexplained delay beyond the usual 17-20 minutes without shifting or setting aside the Crown onus to prove that both tests were taken as soon as practicable.
[16] While the unexplained time gap here is not as great as in some of the cases, there is no decreed measure of time after which the test cannot be said to have been taken as soon as practicable. Maybe there ought to be.
[17] And so while this is a close case, I must find that the learned trial judge has erred in coming to the conclusion that the Crown has met its burden.
[18] Accordingly, there shall be an order quashing the conviction and substituting a finding of not guilty.
P. J. Flynn J.
Released: July 29, 2013
COURT FILE NO.: SCA 7733
DATE: 2013-07-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Sabrina Singh
Appellant
JUDGMENT ON APPEAL
P. J. Flynn J.
Released: July 29, 2013
/lr