SECTION 254(3) - BREATH DEMAND COMPLIED WITH - CONVICTION RESTORED
Sunday, November 24, 2013 at 1:06PM The contentious issue in this case involved the evidence concerning who read the breath demand to Mr. Wylie. Both of the officers at the scene testified that a breath demand was made at 1:12 a.m. on June 8, 2011. However, each testified that the other had actually made the demand. The Ontario Court of Appeal provides officers with a useful summary of the requirements for a breath demand:
All that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable. There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the “who, what, where and when” of the demand. R. v. Wylie, 2013 ONCA 673
A word of advice to officers: keeping better notes of who actually read the breath demand will avoid this argument being raised at trial in the first place. Counsel will find this case useful as it is yet another case that confirms that the 1975 Rilling case is still good law:
Moreover, [Mr. Wylie] complied with the demand. In accordance with R. v. Rilling, absent a Charter challenge, compliance with the demand provides a complete answer in the Crown’s favour.