Dr. S. Krishnan

The accused was charged with operating a motor vehicle with more than 80 milligrams of alcohol in 100 milliliters of blood.

The trial judge found that the officer had reasonable and probable grounds to arrest the accused for impaired care or control based on the totality of circumstances, including the accused's disorientation, admission of drinking, odour of alcohol, and the manner in which the vehicle was parked on a highway.

However, the trial judge found that the officer breached the accused's Charter rights under section 10(b) by failing to inform him of his right to counsel immediately upon arrest, instead delaying 16 minutes to administer an Approved Screening Device test.

The trial judge excluded the breath sample evidence under section 24(2) of the Charter, finding that admission would bring the administration of justice into disrepute.

The accused was acquitted.

The appellant appealed his conviction for driving with excess blood alcohol, arguing the trial judge erred in rejecting his 'straddle evidence' and reversing the burden of proof.

The appellant had consumed a large amount of alcohol shortly before driving (bolus drinking) and provided a toxicologist's report suggesting his blood alcohol level might have been below the legal limit at the time of driving.

The Superior Court of Justice dismissed the appeal, finding the trial judge correctly applied Supreme Court of Canada jurisprudence, which holds that general elimination rates rarely defeat the presumption of identity under section 258(1) of the Criminal Code.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood on June 19, 2010.

The defence challenged the validity of the approved screening device demand under section 8 of the Charter and sought exclusion of the breath test results under section 24(2).

The defence also argued that evidence of late consumption of alcohol (bolus drinking) immediately before the RIDE stop raised a reasonable doubt regarding the accused's blood alcohol concentration at the time of driving.

The court found the officer had reasonable suspicion to make the demand and dismissed the Charter application.

On the trial issue, the court accepted the accused's evidence regarding his consumption pattern but found that "straddle evidence" (evidence showing blood alcohol concentration could have been either above or below the legal limit) was insufficient to rebut the statutory presumption of identity under section 258(1)(d.1) of the Criminal Code.

The accused was convicted.