Taking Breath Samples "As Soon As Practicable"


In order to relate the results of breath samples taken after a person who is stopped at the roadside and accused of operating a motor vehicle while his or her blood alcohol level exceeds the legal limit, the Crown is required to establish beyond a reasonable doubt that the tests were taken as soon as practicable: after the time when the offence was alleged to have been committed s. 258(1)(c)(ii) Criminal Code.

Identifying small, unexplained gaps in time in hopes that the total takes on some significance ignores the direction provided more than a decade ago in R v Vanderbruggen 2006 CanLII 9039 (ON CA), [2006] OJ No 1138 (CA).

In that case the Court of Appeal explained at paragraph 12 that the s.258(1)(c)(ii) “as soon as practicable” requirement does not mean as soon as possible. The section requires the court to determine whether the police acted reasonably in taking the tests.

The whole chain of events must be examined, bearing in mind the Criminal Code provides an outside limit of two hours from the time of driving to the taking of the first sample.

See R. v. Pollock, 2017 ONCJ 138, per Kenkel J.

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