Court of Appeal for Ontario

Citation: R. v. Duris, 2009 ONCA 740

Date: 20091026

Docket: C46131

Before: Moldaver, Armstrong and Epstein JJ.A.

Between:

Her Majesty The Queen

Appellant

and

Dominika Duris

Respondent

Counsel: David Friesen for the appellant Breese Davies for the respondent

Heard and endorsed: October 5, 2009

On appeal from acquittal by Justice L. T. Maisonneuve of the Ontario Court of Justice dated September 28, 2006.

APPEAL BOOK ENDORSEMENT

[1] We are unable to finally decide the s. 8 issue. The trial judge did not determine whether Constable Mann had the subjective belief needed to make the breathalyser demand and we are unable, on this record, to make that determination.

[2] That said, for purposes of the new trial, we are of the view that the trial judge erred in the objective portion of her s. 8 analysis. In particular, she erred in concluding that the only reasonable explanation for the respondent having gone limp was medical. The evidence demonstrates that there was another reasonable explanation, namely, her consumption of alcohol. That explanation, when considered with the other observations made by Constable Mann, including the respondent’s admission that she had consumed alcohol, the smell of alcohol on her breath and her slurred speech, as well as the circumstances surrounding the fatal accident, provided an objective basis for the demand.

[3] Accordingly, we would allow the appeal, set aside the acquittals and order a new trial.