Ontario Criminal


Breathalyzer

APPROVED SCREENING DEVICE
Stay not justified at law because effect of breach was minimal

Appeal by Crown from decision of trial judge who stayed proceedings against accused. Accused was charged with driving with blood alcohol level above legal limit. Police officers stopped accused’s vehicle after it did not stay within its lane and accused was found to exhibit signs of impairment. He failed roadside screening test and he was transported to police station where his breath readings were both 220. At 1:33 a.m. accused was returned by breath technician to one of officers who arrested him. Accused was given opportunity to phone his father and he was lodged in cell at 1:40 a.m.. He was not released until 9:15 a.m.. Judge found that charge was proven. She also found that accused had been held overly long in custody and granted stay because there was overholding in breach of s. 9 of Canadian Charter of Rights and Freedoms. Appeal allowed. Judge’s reasons for finding overholding and breach of s. 9 were sufficient for meaningful appellate review and judge did not err when she found that accused’s s. 9 rights were infringed by delay in releasing him. However, judge did not provide reasons for imposing stay and effective appellate review could not occur. Appeal succeeded on this ground. Judge did not err when she found that accused’s s. 9 rights were infringed by delay in releasing him. She erred, however, when she found that appropriate remedy for s. 9 breach was stay. Stay was not justified at law because effect of s. 9 breach on accused was minimal. Judge did not err when she accepted evidence of roadside screening device and s. 8 was not breached for officer had reasonable and probable grounds to request breath sample. Information available to officer at time that accused provided roadside sample was sufficient to ground both his subjective and objective belief that device worked properly. There was no evidence that it was unreliable and even though he later learned that device was not calibrated within 14 days did not change this conclusion. Officer had reasonable and probable grounds to request breath sample. Accused was convicted but due to s. 9 breach fine was reduced from $1,000 to $500. He was also subject to one-year driving prohibition.

R. v. Coyle (Nov. 7, 2013, Ont. S.C.J., J.A.S. Wilcox J., File No. CR-13-01 AP) 110 W.C.B. (2d) 192.

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