Ontario Criminal

Criminal Law

Charter of Rights and Freedoms

Unreasonable search and seizure [s. 8]

Trial judge erred in Charter analysis in not considering entire situation before constable

Constable received dispatch about impaired driver and stopped accused’s vehicle, noticing alcohol on accused’s breath and his red eyes. Accused had difficulty finding his documat accused blow into approved roadside screening device (ASD) and ASD was administered 13 minutes after accused had been stopped. Accused was arrested for over 80 offence after registering fail. Trial judge concluded that constable had breached accused Canadian Charter of Rights and Freedoms rights under ss. 8 and 9 when he placed accused under arrest. Crown appealed acquittal. Appeal allowed. In determining whether objective component of requisite reasonable grounds had been satisfied, trial judge allowed himself to be diverted into isolating out and only considering effect of constable’s admission that he had not considered possibility of residual mouth alcohol. Because officer did not turn his mind to possibility of residual mouth alcohol did not mean objective component of reasonable grounds had not been met. There was no evidence before trial judge that constable doubted validity of ASD sample. Trial judge erred in his analysis of Charter issue in not considering entire situation before constable to determine whether objective component of reasonable grounds was satisfied. In obiter, trial judge’s exclusion of accused’s breathalyzer results under s. 24(2) resulting in his acquittal were discussed.

R. v. Barr (2018), 2018 CarswellOnt 6258, 2018 ONSC 2417, Lynn Ratushny J. (Ont. S.C.J.).

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