Ontario Criminal


Breathalyzer

DEMAND FOR BREATH (BLOOD) SAMPLE
Many aspects of officer’s evidence not articulated in his notes

Accused charged with impaired driving, “over 80”, and dangerous driving. Accused applied to exclude evidence based on breach of s. 8 of Canadian Charter of Rights and Freedoms. Officer stopped accused after observing erratic driving at high speed. Officer believed that all five passengers in vehicle were intoxicated. Officer smelled alcohol coming from accused’s breath. Accused told officer he had approximately three drinks. Officer gave no evidence as to walking of accused, his motor skills, eyes, face, or speech. Accused argued officer did not have reasonable and probable grounds to demand breath sample. Application allowed, evidence excluded. Many aspects of officer’s evidence were not articulated in his notes. Officer formed subjective grounds to arrest accused for impaired driving. Driving over speed limit and passing two vehicles without something else did not point inexorably to indication of some impairment. Objective review of officer’s grounds did not meet test. Officer did not have reasonable and probable grounds to make breath demand. While collection of breath samples was relatively non-intrusive, Charter-infringing conduct was serious. Officer had very less intrusive alternative in roadside screening device. Drinking and driving offences were very serious, but nothing took this case into more serious category.

R. v. Tait

(Feb. 7, 2012, Ont. C.J., Bourque J., File No. 11-07244) 99 W.C.B. (2d) 114 (6 pp.).

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