Crown:   B. Davies, Office of the Crown Attorney, Oshawa
Defence:  Craig Penney, Impaired & Over 80 Lawyer, Toronto

¶ 1  THE COURT:  I think Mr. Davies has hit the nail on the head, in this particular case the issue has been narrowed by Mr. Penney to the question of whether or not the tests were taken as soon as practicable. In this case, unlike the cases that were referred to me by Mr. Penney, we do have evidence as to what the police officers did, from the time of the arrest to the time the tests were taken. The issue then becomes for me is whether or not the explanations as provided by the police officers fit the definition of "as soon as practicable".

¶ 2  It's a difficult decision to make because what is as soon as practicable can differ as we can see as it does between counsel but in the final result "the buck stops here" and I will have to make the decision. The legislation under which we are dealing at this time is legislation which provides a number of, as referred to by Mr. Penney as, evidentiary short cuts.

¶ 3  It is almost trite to say that when Parliament sees fit to provide evidentiary short cuts, it is absolutely necessary that the Crown and the police adhere to each and every step as required by the legislation. This case is particularly difficult in that I have the evidence of two officers, who, in my view, did everything possible to see that these tests were taken as soon as practicable. Constable Randall followed procedure absolutely — in my view — perfectly and went to 18 Division as she was instructed by dispatch, and she got there by the most efficient route, straight up Brock Street from where she was, and in my view cannot be faulted in the least and it cannot be said that she didn't do everything in her power to see that the tests were taken as soon as practicable. I am going to come back to that.

¶ 4  Constable Hickey impressed me as an experienced and very competent breathalyser technician. He also impressed me as a man who was prepared to be forthright and honest regardless of what detriment it might inure to the case that is being presented, and I commend him for that.

¶ 5  Going back to Constable Randall, and I will combine this also with Constable Hickey, the question for me now is not whether these officers did what was necessary to see that the tests were done as soon as practicable, but whether or not there was something within the system, if whether there was something systemic in the delay between the time of the arrest and the time of the taking of the tests that put this outside of the test for as soon as practicable.

¶ 6  So, in this case, we have Officer Randall, who is employed by the Ontario Provincial Police, patrolling one of the most heavily travelled corridors in southern Ontario, and we have no breathalyser technician on duty, and that's not her fault, that's not even the fault of the Ontario Provincial Police, I don't know who's fault it is but one must reasonably say that breathalyser technicians ought to be on duty for a busy detachment such as Whitby. Secondly, Constable Hickey, who was on general uniform patrol, was at the scene of an unwanted persons call.

¶ 7  I have no difficulty with the time it took him to clear at that scene, but I question the decision made by dispatch to have him turn around just as he approached 18 Division and then proceed to the south end of Whitby. A decision had to be made by a person who was utilizing the limited resources available to them as to which crime needs the most immediate investigation. A decision was made and that may well have been the right decision to make in the circumstances.

¶ 8  The fact remains that the resources weren't there and weren't available to Constable Hickey to enable him to follow through on the Over 80 investigation. Next Constable Hickey, to his credit, noticed immediately that the timer had been tampered with on the machine, the machine hadn't been turned on and he found himself in the position where he had to rectify that. He also found himself in the position where he had to change the standard because someone had failed to do that, that may have well been because people were shorthanded again, but it does constitute an, if you will, systemic problem that caused the delay.

¶ 9  Taking all of those things together, not just one, but taking all of those things together, in my view the tests were not taken within the spirit of the legislation, as soon as practicable, through no fault of either of these officers and I want them to understand that. It may well be that I am not interpreting "as soon as practicable" correctly, but in my view it is analogous to the situation that we had when there was delay getting to trial — where it was systemic delay which could not be laid at the feet of either side were seen as delays that had to be taken into consideration

¶ 10  Accordingly I find that the test "as soon as practicable" has not been made out. The Crown cannot rely on the presumption, and therefore the accused is acquitted.