Ontario Criminal


Breathalyzer

Time element
Demand for alcohol screening device sample was made forthwith

Accused was convicted of driving “over 80.” Accused applied for leave to appeal summary conviction appeal decision upholding his conviction, arguing that trial judge erred in finding that arresting officer’s demand that accused provide sample of breath into alcohol screening device (“ASD”) was made “forthwith”, as required by s. 254(2)(b) of Criminal Code and submitted that 13-minute delay in obtaining ASD coupled with his roadside detention triggered his right to be provided with s. 10(b) caution. Leave to appeal denied. Principles of law relating to whether ASD sample has been taken “forthwith” are well established and do not warrant any restatement. Application of these principles to facts of this case had no significance to administration of justice beyond four corners of this case. No error was found in summary conviction appeal judge’s conclusion that trial judge considered and applied relevant factors in determining that there was no realistic opportunity for accused to consult with counsel during 13-minute delay. Evidence supported arresting officer’s assumption that nearby officer would deliver ASD shortly.

R. v. Rienguette (June 8, 2016, Ont. C.A., G.R. Strathy C.J.O., S.E. Pepall J.A., and C.W. Hourigan J.A., CA C61121) Leave to appeal decision at 124 W.C.B. (2d) 379 was refused. 131 W.C.B. (2d) 325.

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