Court of Appeal for Ontario

Citation: R. v. Yatemand, 2007 ONCA 29

Date: 2007-01-19

Docket: C45278

Re: Her Majesty the Queen (Respondent) – and – Reginald Yatemand (Appellant)

Before: Labrosse, Cronk and Armstrong JJ.A.

Counsel: William Watson for the appellant Michelle Campbell for the respondent

Heard & Endorsed: January 18, 2007

On appeal from the conviction entered on January 5, 2004 by Justice Richard Byers of the Superior Court of Justice.

A P P E A L B O O K E N D O R S E M E N T

[1] Clearly, the determination of whether to make a blood demand is the police officer’s. However, it must be based on reasonable and probably grounds. At the time, the appellant was in the hospital. He was being treated for a serious laceration and there was “quite a bit of blood spurting from his head.” The officers did not wish to bring a breathalizer machine into the hospital and interfere with the treatment of the appellant. They were also concerned about their personal safety because of the blood. Moreover, the appellant was belligerent and uncooperative.

[2] In our view, the officers had reasonable and probably grounds to believe that the appellant’s physical condition was such that a breath sample would be impractical.

[3] In light of the physical condition of the appellant, the trial judge made no error in concluding that the officers complied with the requirements of s. 254(3) of the Criminal Code.

[4] The appeal is dismissed.