R. v. Danychuk (W.), (2004) 184 O.A.C. 131 (CA)

• Judge: Sharpe, Armstrong and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 27, 2004
• Jurisdiction: Ontario
• Citations: (2004), 184 O.A.C. 131 (CA)

R. v. Danychuk (W.) (2004), 184 O.A.C. 131 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. FE.087

Her Majesty The Queen (appellant) v. William Danychuk (respondent)

(C39898)

Indexed As: R. v. Danychuk (W.)

Ontario Court of Appeal

Sharpe, Armstrong and Blair, JJ.A.

February 19, 2004.

Summary:

The accused was convicted for failing to provide a breath sample for analysis by an approved screening device (ASD). The accused appealed.

The Ontario Superior Court, in a decision reported [2003] O.T.C. 255, allowed the appeal and acquitted the accused. The Crown appealed.

The Ontario Court of Appeal allowed the Crown's appeal and restored the conviction.

Criminal Law - Topic 1386

Motor vehicles - Impaired driving - Roadside screening test - Excuse for refusal - A police officer requested that the accused provide a breath sample for analysis by an approved screening device (ASD) - The officer removed the ASD from the front passenger compartment of his cruiser, removed it from its packaging, plugged it in to warm it up while making the demand - The accused unequivocally refused to provide a sample - A summary conviction appeal court judge acquitted the accused, holding that the officer had not made a valid demand under s. 254(2) of the Criminal Code since the ASD was not proven to have been available "forthwith" to be tested and presented to the accused - The Ontario Court of Appeal held that the judge erred - Nothing in s. 254(2), either expressly or by implication, mandated that, before a demand may be made, the ASD must be warmed up and tested as operational and the police officer must have explained the process and the consequences of a failure to comply - See paragraphs 1 to 19.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - The Ontario Court of Appeal stated that "a timely demand [that a motorist provide a breath sample for analysis by an approved screening device] is validly made pursuant to s. 254(2), in my opinion, where (a) the individual to whom the demand is made has been operating a motor vehicle, or has care or control of that vehicle, (b) the peace officer who makes the demand reasonably suspects that the individual to whom the demand is being made has alcohol in his or her body, and (c) the police officer is ultimately in a position to require that the breath sample be provided before there is any realistic opportunity to consult counsel. Where, as here, there has been an outright refusal to provide a breath sample, it is not a prerequisite to such a demand that the Crown establish the approved screening device was present at the scene, tested and ready to accept a sample, or that the police officer presented the device to the driver and explained the purpose of the test and the consequences of a failure to provide a sample." - See paragraph 26.

Criminal Law - Topic 1386.1

Motor vehicles - Impaired driving - Roadside screening test - Demand - [See Criminal Law - Topic 1386 ].

Criminal Law - Topic 1386.3

Motor vehicles - Impaired driving - Roadside screening test - Refusal - [See Criminal Law - Topic 1386 ].

Cases Noticed:

R. v. Latour (P.) (1997), 101 O.A.C. 108; 34 O.R.(3d) 150 (C.A.), refd to. [para. 15].

R. v. Seo (1986), 13 O.A.C. 359; 54 O.R.(2d) 293; 25 C.C.C.(3d) 385; 27 D.L.R.(4th) 496 (C.A.), refd to. [para. 15].

R. v. Bernshaw (N.), [1995] 1 S.C.R. 254; 176 N.R. 81; 53 B.C.A.C. 1; 87 W.A.C. 1; 35 C.R.(4th) 201; 95 C.C.C.(3d) 193, refd to. [para. 15].

R. v. Cote (1992), 54 O.A.C. 281; 6 O.R.(3d) 667 (C.A.), refd to. [para. 16].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85; 63 C.R.(3d) 1; 40 C.C.C.(3d) 411, refd to. [para. 16].

R. v. Matar (T.), [1999] O.T.C. 113 (Sup. Ct.), refd to. [para. 18].

R. v. Lemieux (1990), 41 O.A.C. 326 (C.A.), refd to. [para. 20].

R. v. McCauley (N.J.) (1997), 161 N.S.R.(2d) 154; 477 A.P.R. 154 (C.A.), refd to. [para. 20].

R. v. Wilson (R.B.) (1999), 121 B.C.A.C. 111; 198 W.A.C. 111 (C.A.), refd to. [para. 20].

R. v. Higgins (M.D.) (1994), 92 Man.R.(2d) 142; 61 W.A.C. 142 (C.A.), refd to. [para. 20].

R. v. Reimer (1980), 4 M.V.R. 270 (Sask. Q.B.), refd to. [para. 20].

R. v. Sawicki, [1972] 6 W.W.R. 755 (Sask. C.A.), refd to. [para. 20].

R. v. Kitchemonia (1973), 12 C.C.C.(2d) 225 (Sask. C.A.), refd to. [para. 20].

R. v. Sullivan (1992), 1 B.C.A.C. 312; 1 W.A.C. 312; 65 C.C.C.(3d) 541 (C.A.), refd to. [para. 20].

R. v. Yake, [1992] O.J. No. 682 (Gen. Div.), refd to. [para. 20].

R. v. Gutierrez (R.), [2001] O.T.C. 687; 21 M.V.R.(4th) 183 (Sup. Ct.), refd to. [para. 20].

R. v. Farkas, [2002] O.J. No. 4682 (Sup. Ct.), refd to. [para. 20].

R. v. Lumley, [1988] O.J. No. 2521 (Prov. Ct.), refd to. [para. 25].

R. v. Weir (1989), 78 Nfld. & P.E.I.R. 260; 244 A.P.R. 260 (Nfld. T.D.), refd to. [para. 25].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2) [para. 14].

Counsel:

Mary-Ellen Hurman, for the appellant;

Joseph P. Fiorucci, for the respondent.

This appeal was heard on January 27, 2004, before Sharpe, Armstrong and Blair, JJ.A., of the Ontario Court of Appeal. Blair, J.A., delivered the following decision on February 19, 2004.