R. v. Taylor

7 C.C.C. (3d) 293



On the accuseds trial for impaired driving a certificate of a breathalyzer technician was admitted into evidence. This certificate indicated that samples of the accuseds breath were taken at "1:12 am" and at "1:27 am". The breath tech was not called and there was no other evidence as to the times when the breath samples were taken. In convicting the accuseds of impaired driving the trial judge relied on the readings in the breath tech's certificate as corroboration of the accuseds condition at the time he was stopped by the police officer. The accuseds appeal to the county court was dismissed. On further appeal by the accused to the Court of Appeal, held, MacKinnon A.C.J.O. dissenting, the appeal should be allowed and an acquittal entered



An interval of only 15 minutes is sufficient for compliance the words at least 15 minutes meaning 15 minutes or more. Further, where a certificate of analysis states the precise minute at which the taking of the first sample was completed and the precise minute at which the taking of the second sample was commenced, the first and last minute are not to be rejected in calculating the interval. Each of those times stated will be taken to mean the precise point in time of no duration at which each of the stated minutes commenced. In this case while it was contended that the certificate was open to the interpretation that the times stated therein referred to the completion of the taking of the first sample and the commencement of the taking of the second sample it was at least equally open to a finding on the part of the trial judge that the taking of each sample commenced at a time stated or that the taking of each sample was completed at the time stated. In those circumstances the Crown had failed to meat the burden of proof beyond a reasonable doubt that the requisite 15 minute interval had elapsed.



[24] The duty to inform a detained person of his or her right to counsel arises �immediately� upon arrest or detention (Suberu, at paras. 41_42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee�s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry. <P> [25] This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(b) rights and facilitate access to those rights where requested, both without delay. This includes �allowing [the detainee] upon his request to use the telephone for that purpose if one is available� (Man_ninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a rea_sonable opportunity to do so (see Brownridge v. The Queen, [1972] S.C.R. 926, at pp. 952_53). <P> [28] But the police nonetheless have both a duty to provide phone access as soon as practi_ cable to reduce the possibility of accidental self_ incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(b) does not create a �right� to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity. <P> [32] The duty of the police is to provide access to counsel at the earliest practical opportunity. To suggest, as the trial judge did, that it is presump_tively reasonable to delay the implementation of the right to counsel for the entire duration of an accused�s time waiting for and receiving medical treatment in a hospital emergency ward, without any evidence of the particular circumstances, un_dermines the constitutional requirement of access to counsel �without delay�.

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