Ontario Criminal

Charter of Rights

Decision to hold accused based exclusively on breath readings

Accused, charged with impaired driving and driving “over 80,” applied for stay of proceedings. Accused was arrested by off-duty police officer who allegedly saw him driving erratically on busy highway. After speaking with Spanish-speaking duty counsel, accused provided his first breath sample registering reading of 202. His second sample was provided 20 minutes later, producing reading of 192. Based on his breath readings, officer decided to lodge accused in cells at about 100 a.m.. Officer testified that he usually released people when their BAC was around 100 and that he used commonly used elimination guideline of 15 mg. per cent per hour so he thought he would detain accused for about six hours. Accused advised officer that he had work in morning and asked if he could take taxi home or have friend pick him up but was denied. Decision to lodge accused resulted in him being strip searched and, due to shift changes, held until about 1030 in morning. Breach established, but stay not granted. Court found decision to hold accused was based exclusively on breath readings and officer’s opinion of risks generally associated with those readings. Court did not accept that it was due to any specific concern he observed relating to accused nor that he was concerned that accused may drive, or that he did not understand release documents, or issues related to his work following day. Courts have permitted detention until someone sobers up but have instructed police to consider all circumstances and not just breath readings. More informed and objective assessment would likely have led to his release. Despite breach, case was not one of clearest of cases in which stay was justified.

R. v. Carrion-Munoz

(Aug. 28, 2012, Ont. C.J., Borenstein J.) 104 W.C.B. (2d) 35.

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