Timing of Approved Instrument (AI) Demand
Delay in Approved Instrument demands affect the statutory presumption set out at section 320.28 (1) (a) of the Criminal Code of Canada.
[38] Section 320.28(1)(a)(i) provides that an officer who has reasonable grounds to believe that a person’s blood alcohol concentration exceeds the legal limit may demand that the person provide samples of their breath for analysis by an approved instrument “as soon as practicable”. If the requirements of this section and s.320.31(1) are met, the results of the analysis are presumed to be an accurate reflection of the person’s blood alcohol concentration at the time the samples were taken. In order to avail itself of this evidentiary shortcut, the Crown must establish that the samples were taken as soon as practicable. This phrase has been interpreted to mean as soon as reasonably possible in the circumstances. An assessment of the entire time frame is required from a bird’s eye view, not a minute by minute accounting of any delay.Mr. Leonard challenged a delay of one hour from approved instrument demand to first breath sample. In the intervening period, 10 minutes were spent searching Mr. Leonard’s truck for evidence, 15 minutes were spent traveling from Omemee to the nearest detachment in Lindsay, 13 minutes were spent lodging him in the cell block and another 16 minutes were spent by PC Lynch, the qualified technician, in readying the approved instrument to receive breath samples from Mr. Leonard. These periods of delay were found to be reasonable.
The trial court in the 2017 case of Balakrishnan referred to direction from the Court of Appeal about “soon as practicable".
[63] It is trite to say that the test for determining if the approved instrument breath samples were provided is not "as soon as possible". The touchstone for determining whether the tests were taken “as soon as practicable” is whether the police acted reasonably. See: R. v. Vanderbruggen, 2006 CanLII 9039 (ON CA), [2006] O.J. No. 1138 at para. 12Notwithstanding the challenges, it is important to be alive to the presence of delay in impaired driving matters.
[64] In R. v. Vanderbruggen, supra, at para. 13, the Court of Appeal for Ontario explained that: In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing 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. In particular, while the Crown is obligated to demonstrate that – in all the circumstances – the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody…
Adel Afzal
Barrister and Solicitor
September 1, 2024
