Breath tests not taken “as soon as practicable” where police contacted duty counsel, on his own volition, after accused waived counsel.

R. v. Sharma, [2014] O.J. No. 1289 – this case out of Ontario raised a couple of key issues that should serve as a reminder to those officers practicing poor “note-taking” habits.  

I will summarize this case in point form in order to get to the key issues:

  • 11:42 p.m. – The defendant’s car approached the R.I.D.E spot check.
  • 11:43 – The police Constable read the defendant the approved screening device demand.
  • 11:45 – The defendant registered a “fail” and was arrested.
  • 11:48 – The defendant was read her rights to counsel and waived her rights.
  • 11:50 – The defendant was read the breath demand.
  • 12:02 – The defendant was transported to the police station.
  • 12:15 – The defendant arrived at the police station.
  • 12:16 – Brought through booking.
  • 12:19 – First bathroom trip.
  • 12:23 – The defendant was escorted to the report room.
  • 12:30 – The police constable placed a call to duty counsel.
  • 12:39 – Duty counsel called back and a conversation occurred between the defendant and the duty counsel lawyer.
  • 12:41 – The defendant exited the privacy booth and went to the breathe room.
  • 12:47 – First breath sample was taken from the defendant.
  • 1:12 a.m. – Second breath sample was taken from the defendant.
  • Note: there was a second bathroom trip at some point between 12:23 and 1:12.

This case hinged on two issues, which essentially was decided by the officer’s notes, or in this case, the lack thereof. The defendant originally waived her right to consult with a lawyer. The police constable testified that the defendant later changed her mind about speaking with a lawyer, and as a result, he contacted duty counsel for her to obtain legal advice. The police constable did not include in his notes that the defendant changed her mind on exercising her right to speak to counsel. On this issue, the police constable testified purely from memory. The defendant testified that she never requested to speak to duty counsel. She explained that she never did change her mind on this point and that the police officer acted on his own volition and certainly not at her request.

The judge relied upon R. v. Davidson, [2005] O.J. No. 3474, which addressed the issue where police occasioned a call with duty counsel, on their own volition, after a clear waiver of right to counsel was given by the accused. Dawson J. held in Davidson at para. 21:

“If the waiver is clear and unequivocal it is not reasonable, as a matter of law, for the police to contact duty counsel, thereby delaying the administration of the breath tests.”

In the case at hand, the officer testified that the defendant had changed her mind with regards to right to counsel at the station, upon being given her right to counsel a second time. For these reasons, the police constable put the accused on the phone with duty counsel. This did not appear anywhere in his notes. The Honourable Justice Aston J. Hall said that the case law is quite clear that absence of notes by a police officer in relation to pivotal issues diminishes the weight attached to their evidence, as discussed in R. v. McGee, [2012] O.J. No. 523 at para. 66. Duncan J. in R. v. Zack, [1999] O.J. No. 5747 (Ont. C.J.) held that:

“In this day of full disclosure, it cannot be an acceptable explanation for an officer to say ‘I did not note it because I would remember it’.”

Feldman J. in R. v. Lozanovski, [2005] O.C.J. 112, 64 W.C.B. (2d) 630 at page 3 said the following:

“It is important to the proper functioning of the judicial fact finding role that significant facts be recorded by the police and not left to the whim of memory.”

In R. v. Odgers, [2009] O.J. No. 2592 at para. 16, Fournier J. stated:

“It goes without saying that the absence of notes on an important factor is relevant to an officer’s credibility. As a result, the courts have on occasion been reluctant to attribute much weight to evidence adduced viva voce by an officer, in the absence of corroborating written references in that officer’s notebook.”

The absence of notes is clearly relevant to the officer’s credibility, as the Court of Appeal stated in R. v. Fisher, [2005] O.J. No. 1899:

“[T]he notes, and in particular the absence of the important fact as to the origin of the odor of alcohol, were relevant to the officer’s credibility.”

Wright J. in R. v. Hayes, [2005] O.J. No. 5057 at para. 9:

“For an officer to come to court and simply say I have an independent recollection doesn’t cut it in this court. Not in front of me. Not in front of Justice Duncan and I suspect probably not in front of very many judges anymore.”

The Honourable Justice Aston J. Hall said for the police constable to come to court and testify that he simply did not record in his notes, something as important and significant as right to counsel, because he was multi-tasking was concerning and he could not place any weight on his viva voce evidence that the defendant asked to speak to duty counsel. On the other hand, said the judge, the defendant gave her evidence in a straightforward manner and her recollection of events, other than the disputed with respect to “change of mind “regarding right to counsel, was largely consistent with the officer’s version of events. In light of these reasons, the judge said he had no reason to disbelieve the defendant’s evidence, and he accepted the evidence of the defendant and found that there was a clear and unequivocal waiver with respect to her right to counsel and that she never changed her mind with regards to this waiver.

Justice Hall said where the delay occasioned by the call to duty counsel is unreasonable, it is effectively unexplained. In these circumstances, the defendant clearly and unequivocally waived her right to counsel without ever changing her mind. Therefore, the eighteen minutes delay in administering the breath test was unreasonable and effectively unexplained. The eighteen minutes was a substantial amount of delay in light of the two hour guidelines, said the judge, and therefore the breath tests were not administered “as soon as practicable” and cannot be relied on by the crown under the presumption of identity.

Justice Hall found the defendant not guilty of impaired driving and not guilty of over 80.





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