BREATH DEMAND - A DEMAND AT THE POLICE STATION WAS NOT AS SOON AS PRACTICABLE

The officer forgot to make a breath demand at the roadside. The breath technician made a demand 40 minutes later at the police station. Since the breath demand was not made as soon as practicable, the Crown was not entitled to rely on the presumption.  

The Crown argued, that the breath demand by the technician could cure the earlier error. The Crown found support in two cases called R. v. Dhaliwal, [2005] O.J. No. 1129 (SC), and R. v. Chilton, [2009] O.J. No. 3655 (SC). In those cases the courts held that the technicians' demands were made as soon as practicable because they were independent demands made on the technicians' 'own' formulation of reasonable grounds.

The appellate court concluded that the timeliness of the demand was a factual matter to be determined on a case specific inquiry. The decision by the trial judge that the demand was not made as soon as practicable  was within his discretion to make and the acquittal was upheld. R. v. Laws, 2011 ONSC 3964 

REFUSAL - NO SECOND CHANCE

After an ASD demand the accused asked about the consequences of refusing and was told that the penalties were the same as impaired driving or driving while over 80. The officer asked the accused if he was willing to provide a sample. The accused said he was not and  then was arrested. While still at the roadside, the accused asked for a second chance to provide a sample but the officer did not respond.

The first issue was whether the words, "Are you willing to provide a breath sample?", changed the original breath demand into an inquiry rather than a demand. The court held that when looking at the entire context the comments did not alter the meaning of the original breath demand.

The second issue was whether or not the officer should have given the accused a second chance. In Ontario there is a line of authority that suggest an officer is obligated to give the accused a second chance where it is 'fair and convenient'. However, in British Columbia when the refusal is unequivocal the offence is made out and the officer does not have to give the accused a second chance. The court was careful to distinguish between cases where the refusal is unequivocal and those where it is less clear(feigned attempts). R. v. Komenda, 2011 BCPC 0245

IMPAIRMENT - OBSERVATIONS OF THE TECHNICIAN SAVE THE DAY

The court excluded the breath tests because the investigating officer did not have sufficient grounds to make the demand. However, the court found the accused guilty of impaired driving by also relying on the observations of impairment made by the qualified technician.

Note: Despite the lack of grounds to make a breath demand, the court held that the continued detention of the accused was justified to investigate his horrendous driving. R. v. Lutchmedial, 2011 ONCA 585

CREDIBILITY - FAILURE TO TAKE NOTES RESULTS IN ACQUITTAL

The accused was charged with refusal. The officer said that he asked the accused whether her comment, 'That's it", meant she was refusing. There was nothing in his notes to indicate he in fact asked the question nor what her response may have been. When questioned further, he said that he knew he had done it because he had an independent recollection of doing so. The trial judge commented that the officer's testimony in cross-examination was surly and argumentative. He said that a failure to record every important event is not fatal to an officer's credibility and is sometimes understandable. However, the judge said that where the lacklustre note taking skills are justified with a righteous indignation and defence, of "I have an independent recollection of these events", that is not satisfactory. R. v. Navarro, 2011 ONCJ 359

SECTION 7 - FAILING TO TELL AN OFFICER WHY YOU APPEAR DRUNK WHEN YOU ARE NOT, IS NOT A CRIME

The accused was charged with impaired driving. He testified that when police approached his vehicle he was experiencing an attack related to a chronic illness called malignant hypothermia. He even called medical evidence. The trial judge did not buy his story. The judge said that if he had been suffering an attack, surely he would have told the officer that  or at the very least showed him his medic-alert bracelet. The appellate court disagreed with the trial judge. The court held that the trial judge improperly drew an adverse inference from the accused's right to silence. Essentially, the accused had the right not to say anything and because he chose to exercise that right, the court could not use his silence against him. R. v. Bowen, 2011 ONSC 4904. 

Another trial judge made a similar error when he found that if an accused had genuinely been suffering an anxiety attack at the time that she was asked to provide a sample, she would have told the officer that. R. v. Rivera, 2011 ONCA 225