Impaired driving trial. 42 minute delay between breath samples. Issues as to whether samples taken as soon as practicable, and whether the as soon as practicable argument is a Charter issue requiring notice.

Held: Acquittal.

No evidence explained the delay, and it was not open to the court to take judicial notice of the workings of the breath testing machine. As soon as practicable is not a Charter issue. Rather, as per s. 258 CC, the fact that samples were taken as soon as practicable must be proven by the Crown in order for the presumption to apply. Morrison (2012) ABQB 544 (wherein it was held to be a Charter issue) is obiter, and its “persuasiveness is called into question” by Cote, JA’s reasons for leave: Morrison 2012 ABCA 349.

R. Muenz, Defence Counsel