New & Notable: Looking for Principles in all the Wrong Places

Singh drove while her blood-alcohol concentration was over 80. Singh’s only argument at trial was that the timing of the breath samples did not comply with the as soon as practicable requirement of section 258(1)(C)(ii).  The only time period in question was the 28 minutes that elapsed between the taking of the first and second samples. Singh argued that this time period exceeded the statutory minimum of 15minutes without any evidence to explain the delay.  The trial judge rejected this argument and held that there was no requirement for the Crown to explain every minute. Singh was convicted and appealed.

The summary conviction appeal judge allowed the appeal and expressly declined to apply the binding decision of the Court of Appeal in Vanderbruggen, 2006 CanLII 9039 (CA) because it “was not a case about unexplained delay between samples.”

The Ontario Court of Appeal restored the conviction and in so doing offered some interesting comments about how binding decisions of the Court must be read: R v Singh, 2014 ONCA 293 (CA).

First, “care must be taken to avoid reading unwarranted jurisprudential principles into a decision of the court rendered in” a brief endorsement” [@para 12]

To illustrate this point the Court pointed to the trial judge’s reliance on the Court of Appeal’s endorsement in Bulger. That decision was a four sentence oral endorsement which “does not articulate any proposition of law” [@para 11] nor does it contain “a recitation of the facts that would enable a reader to understand the overall circumstances of the case” [@para 10].

Second, the purpose of such a brief endorsement is “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”[@para 12]

Third, “[w]hen the court intends to articulate jurisprudential principles for the first time, it does so in a written judgment” [@para 12].

By way of example the Court highlighted Vanderbruggen as just such a case [@para 12].

The Court of Appeal concluded that the:

(…) 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.

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" [@paras 14-15].


New & Notable: It is practicable to properly set up the Intoxilzyer

Blake Cote was convicted of driving with a blood alcohol concentration “over 80”. Cote was convicted at trial; he appealed.

He argued that the trial judge erred in law by “failing to consider the evidence as to unexplained delay on the part of the police in taking” samples of his breath. Specifically, on appeal, Cote urged Daley J, sitting as a summary conviction appeal court, to find that the trial judge erred in his consideration of the period of time between the time when the breath technician arrived at the station and the time when the technician began to change the alcohol standard solution in the Intoxilyzer. His appeal was dismissed: 2012 ONSC 5247.

Cote was stopped by police at 12:54 after he was observed running a stop sign. The officer who pulled him over formed a suspicion that Cote had consumed alcohol and asked that a roadside screening device be brought to the scene. The device arrived at 1:01 and Cote registered a fail.

Read More

New & Notable: What does "practicable" mean anyway?

Krishna Naidu was involved in a collision.  Naidu drove through a stop sign.  Perhaps because his BAC was 130 mg%.  Constable Hodgins arrived at 2:42.  He read a screening demand at 2:52.  Naidu failed at 2:53 or 2:55. Hodgins arrested Naidu and made a breath demand at 3:07.  That 12 or 14 minutes became the subject of the trial and ultimately a ruling from the Court of Appeal: 2012 BCCA 150 (SCCA: 2010 BCSC 851).


During those 12 or 14 minutes the officer arrested Naidu, handcuffed him, sat him in the cruiser, spoke to him about pain in his wrist, ran his licence with ICBC and check him on CPIC and finally read him his Charterrights. 


Naidu argued, inter alia, that the CPIC and ICBC checks were not necessary and took the demand outside the ASAP window.  On summary conviction appeal Kelleher J noted that the 2008 amendments to section 254(3) saw the removal of "forthwith" from that section.  This was relevant, held Kelleher J, and points toward a more flexible approach to the issue.  Ultimately Kelleher J agreed with the trial judge that the conduct of the officer was reasonable and the steps taken during that 12 to 14 minutes were connected to the stop and arrest and did not result in the demand being made ASAP.

The Court of Appeal dismissed a further appeal by Naidu.

While making a demand as soon as one forms the requisite grounds for the demand is always best practice, Naidu confirms that so long as you are performing tasks associated with the arrest and processing of the accused - and are able to articulate those steps - which are reasonable, the demand made thereafter will be ASAP.