



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Singh, 2014 ONCA 293

DATE: 20140417

DOCKET: C57549

Laskin, Juriansz and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Sabrina Singh

Respondent

Michael Fawcett and Grace Choi, for the appellant

Bruce Ritter, for the respondent

Heard: February 25, 2014

On appeal from the decision of the Summary Convictions
    Appeal Court dated July 29, 2013 by Justice Patrick J. Flynn of the Superior
    Court of Justice, allowing the appeal from the conviction entered on October
    23, 2012 by Justice G.F. Hearn of the Ontario Court of Justice.

Juriansz J.A.:

A.

Introduction

[1]

The Crown seeks leave to appeal from the decision of the summary conviction
    appeal judge allowing the respondents 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 respondents 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 accuseds 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.

[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 respondents 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 8-11 minutes in this case.

[7]

In assessing that 8-11 minute delay, the summary conviction appeal judge
    declined to apply this courts decision in
R. v. Vanderbruggen
(2006),
    206 C.C.C. (3d) 489 (C.A.), because it was not a case about unexplained delay
    between samples. Rather his analysis reflects a line of cases that considers
    this courts 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]
    O.J. No. 1472 (S.C.).
Blacklock,
which was discussed by both the trial
    judge and summary conviction appeal judge, explained
Bugler
as
    follows:

15      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.

16      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.

[9]

The courts decision in
Bugler
is a four-sentence oral
    endorsement. The courts entire reasons are as follows:

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 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 judges finding
    that the delay was explained was based on a misapprehension of the evidence.
    This court seems to have inferred from the trial judges 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
    courts 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),
    54 O.R. (3d) 21 (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
    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 accuseds 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.

Released: April 17, 2014

(J.L.)                                                                            
    R.G. Juriansz J.A.

I agree John Laskin J.A.

I agree David Watt J.A.


