Rob De Chellis

In this decision, the Ontario Court of Justice acquitted Franco Tomasone of the charge of refusing to provide a breath sample under s. 320.15(1) of the Criminal Code.

The court found that the Crown failed to prove beyond a reasonable doubt that Tomasone unequivocally refused to comply with a lawful approved screening device (ASD) demand.

The judge emphasized the statutory immediacy requirement for providing breath samples but recognized that some flexibility is warranted when confusion arises, particularly when the right to counsel is suspended during an ASD demand.

The court also found that the officer did not have objectively reasonable grounds to suspect Tomasone had alcohol in his body at the time of the demand, rendering the demand unlawful.

The decision highlights the importance of the timing and clarity of demands and refusals in impaired driving investigations.

The accused was charged with operating a vehicle with a blood alcohol level in excess of the legal limit of 80 mgs following a traffic stop initiated by police responding to a report of an intoxicated person at an LCBO store.

The Crown relied on breath test results showing readings of 160 mgs and 150 mgs.

The defence challenged the admissibility of the evidence on three grounds: the applicability of the presumption of identity under section 258(1)(c) to transitional cases following C-46 amendments; whether the breath tests were taken "as soon as practicable" given a 17-minute delay for facilitating the accused's right to counsel; and whether the Crown proved the requirements for the presumption of accuracy under section 320.31(1).

The court found that the presumption of identity continues to apply to transitional cases, that the delay for counsel was reasonable and did not breach the "as soon as practicable" requirement, and that the Crown proved all elements of section 320.31(1).

The accused was convicted.

The accused was charged with impaired operation contrary to section 253(1)(a) of the Criminal Code and failing to comply with an approved instrument demand contrary to section 254(5).

The Crown relied on evidence of erratic driving observed by an independent witness over a 10-minute period, including lane weaving, failure to respond to traffic lights, and excessive speed.

The accused provided one breath sample showing 142 mgs of alcohol but failed to provide a suitable second sample after approximately nine attempts.

The court found the Crown proved both charges beyond a reasonable doubt based on the credible driving evidence and the accused's deliberate failure to provide the second sample.

The accused was convicted of mischief in relation to religious property motivated by religious prejudice or hatred under s. 430(4.1) of the Criminal Code.

The accused, a member of the Shia Muslim faith, attended a mosque during Ramadan while intoxicated, insulted occupants, and urinated on the mosque steps in front of children and arriving families.

The Crown sought a custodial sentence of 90 days for deterrence purposes.

The defence sought a conditional discharge.

The court imposed a conditional discharge with conditions including 18 months probation, reporting to probation, a prohibition on attending the mosque, and 40 hours of community service within 12 months, finding the circumstances unusual and placing the offence at the lower end of the sentencing scale.

The accused was charged with mischief in relation to a property used for religious worship contrary to s. 430(4.1) of the Criminal Code.

The accused entered a mosque during Ramadan services, insulted Islam and those present, and then urinated on the mosque steps in front of children and families arriving for the service.

The court found the accused's testimony not credible, rejected the defence of necessity, and found that the Crown proved the mischief was motivated by religious hatred.

The accused was found guilty.