R. v. Einarson (K.), (2004) 184 O.A.C. 176 (CA)

• Court: Court of Appeal (Ontario)
• Case Date: March 08, 2004
• Jurisdiction: Ontario
• Citations: (2004), 184 O.A.C. 176 (CA);2004 CanLII 19570 (NS CA);2004 CanLII 19570 (ON CA);70 OR (3d) 286;183 CCC (3d) 19;21 CR (6th) 185;[2004] CarswellOnt 903;[2004] OJ No 852 (QL);184 OAC 176;48 MVR (4th) 85

R. v. Einarson (K.) (2004), 184 O.A.C. 176 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. MR.042

Her Majesty the Queen (applicant/appellant) v. Kristen Einarson (respondent)

(C40288)

Indexed As: R. v. Einarson (K.)

Ontario Court of Appeal

Doherty and Goudge, JJ.A., and Cavarzan, J.(ad hoc)

March 8, 2004.

Summary:

The accused was charged with "blowing over .08".

The trial judge found the accused guilty. The accused appealed.

The Ontario Superior Court allowed the appeal and ordered a new trial. The Crown appealed.

The Ontario Court of Appeal allowed the appeal and restored the conviction at first instance.

Criminal Law - Topic 1386.2

Motor vehicles - Impaired driving - Roadside screening test - Time and place for - Section 254(2) of the Criminal Code provided that a person given an approved screening device demand was to "forthwith" provide a breath sample - The Ontario Court of Appeal ruled: "Bernshaw [S.C.C.] makes it clear that the mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the statutorily approved screening device. Where an officer honestly and reasonably concludes on the basis of available information that he can form no opinion as to whether the driver consumed alcohol within the prior 15 to 20 minutes, the officer is entitled to rely on the accuracy of the statutorily approved screening device and administer the test without delay. That is not to say that another officer might not assess the same situation differently and have legitimate concerns about the reliability of a test administered without a brief delay and act accordingly. In each case, the officer's task is to form an honest belief based on reasonable grounds about whether a short delay is necessary to obtain a reliable reading and to act on that belief."

Cases Noticed:

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 13].

R. v. Grant, [1991] 3 S.C.R. 139; 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181; 67 C.C.C.(3d) 268, refd to. [para. 13].

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; 95 C.C.C.(3d) 193, reving. (1993), 28 B.C.A.C. 247; 47 W.A.C. 247; 85 C.C.C.(3d) 404 (C.A.), folld. [para. 16].

R. v. Domski, [2002] O.J. No. 3544, refd to. [para. 16].

R. v. Pierman (M.B.) (1994), 73 O.A.C. 287; 92 C.C.C.(3d) 160 (C.A.), affd. (1996), 192 N.R. 237; 89 O.A.C. 146; 103 C.C.C.(3d) 382 (S.C.C.), consd. [para. 26, footnote 1].

R. v. Dewald (W.) - see R. v. Pierman (M.B.).

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2) [para. 10].

Counsel:

Benita Wassenaar, for the appellant;

Bruce S. Daley, for the respondent.

This appeal was heard on February 19, 2004, by Doherty and Goudge, JJ.A., and Cavarzan, J.(ad hoc) of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered by Doherty, J.A., and released on March 8, 2004.