R. v. Vanderbruggen (M.) (2006), 208 O.A.C. 379 (CA)
MLB headnote and full text
Temp. Cite: [2006] O.A.C. TBEd. MR.096
Her Majesty the Queen (respondent) v. Martin Vanderbruggen (appellant)
(C43848)
Indexed As: R. v. Vanderbruggen (M.)
Ontario Court of Appeal
Rosenberg, Cronk and Gillese, JJ.A.
March 23, 2006.
Summary:
An accused appealed his conviction and sentence for driving while having an excessive blood-alcohol level.
The Ontario Superior Court dismissed the appeal. The accused appealed.
The Ontario Court of Appeal dismissed the appeal.
Criminal Law – Topic 1374
Motor vehicles – Impaired driving – Breathalyzer or blood sample – Evidence and certificate evidence – The Ontario Court of Appeal stated that jurisprudence indicated that the “soon as practicable” requirement under s. 258(1)(c)(ii) of the Criminal Code meant nothing more than that the breath tests had to be taken within a reasonably prompt time under the circumstances – The tests did not have to be taken as soon as possible – The touchstone for determining whether the requirement was met was whether the police acted reasonably – A trial judge should look at the whole chain of events bearing in mind that the Code permitted an outside limit of two hours – The requirement had to be applied with reason – While the Crown was obligated to demonstrate that, in all the circumstances, the samples were taken within a reasonably prompt time, there was no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused was in custody – See paragraphs 12 and 13.
Criminal Law – Topic 1374
Motor vehicles – Impaired driving – Breathalyzer or blood sample – Evidence and certificate evidence – The accused was arrested for impaired driving – The arresting officer made a breathalyser demand – At the police detachment, the accused was searched and placed in a cell at 3:10 a.m. – He was turned over to a breath technician for testing at 3:56 a.m. – He was convicted of driving while having an excessive blood-alcohol level – The accused appealed, asserting that the Crown failed to account for the gap between 3:10 a.m. and 3:56 a.m. and therefore failed to show that the breath tests were taken as “soon as practicable” (Criminal Code, s. 258(1)(c)(ii)) – The Ontario Court of Appeal dismissed the appeal – There was an approximate delay of 75 minutes from the time of the offence to the taking of the first sample – Evidence was offered to show that the delay occurred because of the time taken to arrest the accused, to read him his rights, to transport him to the station, for the technician to arrive, to search the accused, to convey the information as to the grounds for the demand and for the technician to prepare the breathalyzer – There was no evidence that either the arresting officer or the technician acted unreasonably – The evidence supported the finding that the tests were taken as soon as practicable.
Cases Noticed:
R. v. Minuskin (S.) (2003), 180 O.A.C. 255; 181 C.C.C.(3d) 542 (C.A.), refd to. [para. 7].
R. v. Phillips (1988), 27 O.A.C. 380; 42 C.C.C.(3d) 150 (C.A.), refd to. [para. 12].
R. v. Ashby (1980), 57 C.C.C.(2d) 348 (Ont. C.A.), refd to. [para. 12].
R. v. Mudry (1979), 19 A.R. 379; 50 C.C.C.(2d) 518 (C.A.), refd to. [para. 12].
R. v. Coverly – see R. v. Mudry.
R. v. Payne (1990), 38 O.A.C. 161; 56 C.C.C.(3d) 548 (C.A.), refd to. [para. 12].
R. v. Carter (1981), 9 Sask.R. 1; 59 C.C.C.(2d) 450 (C.A.), refd to. [para. 12].
R. v. Van Der Veen (1988), 89 A.R. 4; 44 C.C.C.(3d) 38 (C.A.), refd to. [para. 12].
R. v. Clarke, [1991] O.J. No. 3065 (C.A.), refd to. [para. 12].
R. v. Seed (J.W.) (1998), 114 O.A.C. 326 (C.A.), refd to. [para. 12].
R. v. Letford (J.) (2000), 139 O.A.C. 387; 150 C.C.C.(3d) 225 (C.A.), refd to. [para. 13].
R. v. Cambrin (1982), 1 C.C.C.(3d) 59 (B.C.C.A.), refd to. [para. 13].
R. v. Lightfoot (1980), 4 M.V.R. 238 (Ont. C.A.), refd to. [para. 14].
R. v. Renda (G.), [2005] O.A.C. Uned. 191 (C.A.), refd to. [para. 14].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 258(1)(c)(ii) [para. 8].
Counsel:
Patrick F.D. McCann, for the appellant;
Eliott Behar, for the respondent.
This appeal was heard on February 16, 2006, by Rosenberg, Cronk and Gillese, JJ.A., of the Ontario Court of Appeal. Rosenberg, J.A., released the following judgment for the court on March 23, 2006.
