Circumstances of accident itself were strong indicator of impairment

Accused was driving vehicle that veered off road into ditch and hit embankment, resulting in deceased’s ejection from vehicle, vehicle rolling over onto roof and landing on top of deceased, who died at scene. Witnesses detected odour of alcohol on accused’s breath and heard him say that he had been drinking, but police officers did not detect signs of impairment or odour of alcohol to form reasonable suspicion to justify roadside approved screening device demand or grounds to arrest him for impaired driving. Accused was brought to hospital for medical treatment where blood samples were taken and other medical procedures were completed. Detective obtained search warrant and production order for blood samples for investigation into impaired driving, which showed blood alcohol concentration of 136 mg of alcohol in 100 ml of blood, and medical records, which included cocaine screen of accused’s urine that tested positive. Accused brought application to exclude medical records, blood samples, and urine samples from evidence. Application dismissed. Having regard to amplified record, warrant clearly could have been issued. Information to Obtain contained minor errors, but there was nothing to suggest that errors were intentional and errors would not have had any possible effect on warrant’s issuance . Fact that officers did not notice smell of alcohol or perceive impairment had to be weighed against witness perceptions of odour of alcohol and in conjunction with utterances that confirmed accused had been drinking. Circumstances of accident itself were strong indicator of impairment.

R. v. Poisson (2019), 2019 CarswellOnt 4084, 2019 ONSC 1674, C.F. de Sa J. (Ont. S.C.J.).

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