Accused was charged with driving with over 80 milligrams of alcohol in 100 millilitres of blood. At trial, police officer testified that after stopping accused, he made approved screening device demand, which accused failed. Officer arrested accused and read Intoxilyzer breath demand. Readings were 158 and 141 milligrams of alcohol in 100 millilitres of blood. Trial was held, combined with voir dire. At trial, officer was asked by Crown counsel why he arrested accused and what he based arrest on. Officer was not able to answer question because of interjection from trial judge. Officer did not proceed to answer original question. Instead, Crown counsel asked whether there was anything “in addition”. It was at that time that officer referred to fail. Trial judge found that only ground that police articulated for reading breath demand was fail. Trial judge found that officer did not have reasonable and probable grounds for arrest and breath demand. Trial judge excluded evidence contained in breath certificate on grounds that accused’s rights were breached under Canadian Charter of Rights and Freedoms. Accused acquitted. Crown appealed. Appeal allowed. Trial judge misapprehended evidence when he found that “only” ground that officer articulated for breath demand was fail Rather, fail was another ground and was “in addition” to any other grounds relied on by officer. There was other evidence before trial judge capable of explaining why officer made breath demand, including speeding, car stopping in centre of road and smell of alcohol on accused’s breath. As result of trial judge’s misapprehension of evidence, trial judge failed to consider fail result “along with other indicia of impairment” in determining whether requisite objective and subjective components for making demand were present. Trial judge’s misapprehension of evidence played essential part in trial judge’s reasoning process in concluding that there were Charter breaches. New trial ordered.
R. v. Vandendriessche (2017), 2017 CarswellOnt 11791, 2017 ONSC 4192, Victor Mitrow J. (Ont. S.C.J.).