The Brampton man accused of crashing a dump truck with a raised bed into the superstructure of the Burlington Skyway bridge while under the influence of alcohol was not given a breath test by police until nearly four hours after the collision, a Hamilton courtroom heard on Tuesday.
That's an hour beyond the time frame allowed in the law, defence attorney David Locke established in cross examination.
In an Ontario Court of Justice at 45 Main Street East in Hamilton, the trial of Sukhvinder Rai entered its fifth day on Tuesday.
Rai, 36, faces charges of impaired driving, driving over 80 mgs, dangerous driving and mischief endangering life in connection with the collision on the Burlington Skyway on July 31, 2014. He's pleaded not guilty to all charges.
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Questions about the timing of the test came with Burlington Ontario Provincial Police Const. Andrew Halliday in the witness box.
'At that point in time I was just a glorified babysitter. I was instructed to sit and watch him.' - Ontario Provincial Police Const. Andrew Halliday
Defense attorney David Locke spent most of the afternoon questioning Halliday about the time he spent with Rai following the collision. The collision took place at 3:35 p.m.
Locke made the case that Halliday "detained" Rai for hours after the collision without charging him or letting him know he was going to be interviewed.
Halliday told the court he was instructed to keep Rai safe and wait until he was told to move him.
"At that point in time I was just a glorified babysitter. I was instructed to sit and watch him," Halliday said.
Locke told Halliday that in order to have a lawful demand, the demand for a breath sample has to be made within three hours of the alleged being behind the wheel,
"And it's your evidence before His Honour that the timing didn't come to your mind, right?" Locke said.
The court heard Halliday brought Rai back to a Burlington police detachment and demanded a breath sample at 7:32 p.m.
The result of the test was a fail and Rai was arrested at 7:36 p.m.
At the end of a long video, the court heard dialogue between Halliday and the breath alcohol technician at the detachment. In the video, the court heard the breath technician ask about the time of the breath test, the time when Rai's rights were given and the time of his arrest. On the tape Halliday said Rai understood him clearly when he was informed of his rights.
Outside of the three hours
"Officer, you were asked the location of the offence. You told the breath technician it was the parking lot of the detachment," Locke said.
"That's the offence for which he was arrested for." Halliday said.
Locke was pacing in between his questions while Rai sat in the front row behind him, watching closely and listening to the Punjabi interpreter sitting beside him.
"I'm suggesting clearly, sir, that you knew darn well that you were way outside the three hours, and that's why you were being cute on the video about saying the time of the offense was in the parking lot," Locke said.
Locke asked if anyone questioned Halliday about the time when Rai was actually behind the wheel. Halliday said no, and added that he was focused on the time when Rai failed the screening device, not on the time of the collision.
"He had been in care and control of a motor vehicle," Halliday said.
"When was that?"
"That was previous to my taking him into my cruiser for safety."
In recordings played for the court, Halliday is heard speaking to dispatch over his radio. Locke noted the time when Halliday acknowledged Rai was being held in the vehicle with him. The time was 4:24 p.m.
Over the radio, the court heard an officer identified as acting inspector Doug Fensk ask Halliday to call him on his cell phone. Locke pushed Halliday for details of the call.
"This was, obviously, a private call between you and another officer about this incident I suggest, I want to know what it was about," Locke said.
"I don't recall," Halliday said.
Fensk is expected to give his testimony in the following days.
The trial continues on Wednesday.