Whether the Intoxilyzer Tests Were Taken as soon as practicable


Paragraph 258(1)(c) of the Criminal Code provides that evidence of the results of the analyses by an Intoxilyzer of samples of breath of a defendant are proof of the concentration of alcohol in his or her blood at the time of the alleged offence if, among other things, each breath sample was taken "as soon as practicable after the time the offence was committed".

In order to take advantage of this statutory presumption the Crown must prove beyond a reasonable doubt that each of its requirements have been met. As Justice Hill held in R. v. Walker, [2006] O.J. No. 2679,

Compliance with the statutory scheme must be strictly construed where the prosecution is relieved of the obligation of adducing expert evidence on the subject.

There is no requirement that the tests be taken as soon as possible. Nor does the provision require an exact accounting of every moment in the chronology.

·            The provisions of s. 254(2) should not be interpreted to require an exact accounting of every moment in the chronology.

·            The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.

·             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.



R. v. Vanderbruggen, 2006 CanLII 9039 (ON CA), [2006] O.J. No. 1138, 206 C.C.C. (3d) 489,

The requirement that the samples be taken as soon as practicable means "nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances."

R. v. Singh, 2014 ONCA 293 (CanLII), at para. 14 [2014] [the Court of Appeal reiterating the Vanderbruggen decision].

 These notes of caution by the Court of Appeal do not, however, diminish the requirement of s. 254(2). The analysis which trial courts are required to undertake is not one in which every unjustified minute of delay is totted up, with the resulting sum being analyzed to determine whether the requirement has been met. At the same time, however, the analysis is not whether the total delay seems reasonable without analysis of the reasons therefor. The inquiry is fact-specific. Just as the Court of Appeal held in R. v. Quansah, 2012 ONCA 123 (CanLII), that there is not a rule of a standard 15 minute allowable period of delay in administering the ASD test, there is not a rule of a standard permissible period of delay in administering the Intoxilyzer test. A fact-specific inquiry requires that significant periods of delay be identified and the Crown be required to justify them.

As Durno J. held in R. v. Schouten, [2002] O.J. No. 4777,

… each case must be examined on its own facts. One hour and forty-six minutes could be "as soon as practicable": R. v. Letford (2001), 2000 CanLII 17024 (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.). One hour and thirty minutes might not be "as soon as practicable" in another: R. v. Lightfoot, (1980), 4 M.V.R. 238 (Ont. C.A.).


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