Ontario Criminal


Breathalyzer

Demand for breath (blood) sample

There was no breach of s. 8 of Charter in breath sample demand

Accused was charged with impaired driving offences, stemming from car accident which injured three occupants of another vehicle. Other charges were stayed or dismissed, leaving three counts of impaired driving causing bodily harm. Accused was convicted at trial of these charges. Accused claimed that statements he made to police at scene should not have been admitted as evidence. Accused claimed he was compelled to make statements before being able to consult with counsel. Accused claimed that no proper breath sample demand was made, and that breath sample results should not be admitted. Accused appealed from conviction on this basis. Appeal dismissed. Accused was under no reasonable belief at time of statement that he was compelled to report accident. Accused was not told by officer he had to make statement. Accused did not apply at trial to exclude statements under applicable sections of Canadian Charter of Rights and Freedoms. This ground of appeal failed as result. Third officer inadvertently failed to read breath sample demand to accused at scene. Demand was only made after technician reminded officer of need to do so, at police station. Technician’s demand for breath sample was based on reasonably formed grounds, and was done within three-hour time limit from offence. As technician had no prior notice of what had taken place, demand was made as soon as practicable. There was no breach of s. 8 of Charter in demand that was made.

R. v. Guenter (July 19, 2016, Ont. C.A., K.M. Weiler J.A., M. Tulloch J.A., and David Brown J.A., CA C55574) 131 W.C.B. (2d) 129.

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