Ontario Criminal


Breathalyzer

DEMAND FOR BREATH (BLOOD) SAMPLE
Crown not required to disprove hypothetic theories not grounded on evidence

Accused appealed conviction for impaired care or control and refusal to provide breath sample. Witness observed tractor trailer driving in erratic manner. Witness testified that truck pulled up to gas pump and that he saw accused, who was swaying and unstable on his feet, trying to put card into pump. When police arrived, witness pointed out accused as driver of truck and then left scene. Officers testified that accused had red-rimmed eyes, slurred speech, and was unsteady on his feet. Officer testified that accused admitted that truck was his and that he was driving it. Officer made demand for breath sample into his approved roadside screening device but accused did not provide suitable sample. Breath technician, who also noted signs of impairment, demanded breath sample into breathalyzer, which accused refused to provide. No keys to truck, vehicle registration, or insurance particulars were ever found on accused or elsewhere. Accused argued that trial judge erred in ruling that only reasonable inference was that he was operator of truck or that he had care and control of it. Accused argued that witness did not see him driving truck or exit its cab. Accused argued that trial judge erred in not considering whether he was gas station attendant or passenger in truck, as either scenario was reasonably plausible explanation and inference that could have been drawn. Accused argued that inference drawn by trial judge was matter of conjecture or speculation and was not reasonable inference on evidence in its totality. Appeal dismissed. Crown was not required to disprove hypothetic theories not grounded on evidence. While accused’s admission that he was driver of truck could not be used to determine identity beyond reasonable doubt, it could be used in regards to reasonable and probable grounds. Given evidence as to erratic driving of truck, fact that accused, who exhibited signs of impairment, was refuelling it, and accused’s admission that he was driver, police had reasonable and probable grounds to make breath demand. Crown did not need to prove beyond reasonable doubt that accused was driver in order to argue that reasonable and probable grounds for demand existed. Trial judge was correct in ruling that reasonable and probable grounds were overwhelming. Trial judge found that there was no other reasonable explanation as to why accused was refuelling truck other than that he had care and control of it. Gas area of truck stop was self-serve facility, finding inconsistent with suggestion that accused could have been gas attendant. Reasonable inference, other than that accused had care and control of truck, would have been matter of conjecture or speculation and would not have raised reasonable doubt. Trial judge did not err and had evidence before him from which he could have drawn facts necessary to support his decision.

R. v. Pozniak (Jan. 5, 2015, Ont. S.C.J., Thomas A. Bielby J., File No. SCA(P) 700/13) 118 W.C.B. (2d) 507.

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