Rob DeChellis

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 defendant was charged with driving with excess alcohol (over 80 milligrams of alcohol in 100 millilitres of blood).

Paramedics observed a transport trailer truck weaving on the Queen Elizabeth Way and the 427 highway on February 22, 2017, and called 911.

Police located the defendant in the truck at a truck park in Vaughan.

The defendant was arrested and subjected to breath testing.

The Crown proved care and control of the motor vehicle, that breath tests were taken as soon as practicable, and that the breath readings (122 and 114 milligrams) were properly obtained and admissible.

The defendant was found guilty.

The accused was convicted of impaired driving after driving erratically and colliding with a parked vehicle at a red light, pushing it 15 feet into an intersection.

Four occupants were in the vehicle, including a 3-year-old child.

Two occupants suffered back pain requiring physical therapy.

Breath tests showed readings of 202 and 206 mgs/100ml.

The Crown sought a 45-day custodial sentence with probation and an extended driving prohibition.

The defence sought a fine with probation, or alternatively a conditional sentence.

The court imposed a conditional sentence of 3 months followed by 2 years probation and a 2-year driving prohibition, considering the accused's genuine remorse, significant rehabilitation efforts through alcohol and psychological counselling, and the need for general deterrence in the context of impaired driving incidents in the region.

The accused was charged with impaired operation of a motor vehicle and operating a vehicle with a blood alcohol level in excess of 80 mgs/100ml following a collision where she drove into a stopped vehicle at full speed.

The Crown proved reasonable grounds for arrest based on the dangerous driving, physical observations, and odour of alcohol.

The court found breaches of the accused's Charter rights under sections 10(a) and 10(b) due to delayed notification of the change in investigation purpose and failure to advise of right to counsel.

However, the breaches were found to be minor with no real impact on the accused's interests, and the breath test evidence was admitted under section 24(2).

The court found the accused guilty of impaired operation based on both the breath test readings and the pattern of dangerous driving, mental confusion, and impaired faculties demonstrated before and after the collision.

The accused was convicted of criminal harassment contrary to s. 264(3) of the Criminal Code after persistently pursuing a man from her church despite his repeated refusals and the intervention of church officials.

The court found that underlying mental health issues significantly reduced the accused's moral culpability.

The court imposed a conditional discharge with two years' probation, including conditions prohibiting contact with the complainant and church members, requiring attendance at mental health counselling, and imposing a 10-year firearms prohibition under s. 109 and a DNA order.

The accused was charged with criminal harassment contrary to s. 264(3) of the Criminal Code arising from alleged unwanted contact and harassment of a lead guitarist at her church.

The complainant testified that the accused initiated unwanted text messages, entered his vehicle without permission, blocked his vehicle in a parking lot, and engaged in unusual behavior at the church despite repeated warnings from church pastors and police.

The accused testified that she was never given a reason to stop her behavior.

The court found the complainant and Crown witnesses credible and rejected the accused's testimony as unreliable.

The court found that the accused was directly told that her contact was unwanted and that her persistent behavior reasonably caused the complainant to fear for his safety.

The court found the accused guilty beyond a reasonable doubt and also found her fit to stand trial.

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.

The accused was charged with dangerous driving causing bodily harm, leaving the scene of an accident, and theft of property following an incident on January 22, 2012.

The defendant was hired to transport a photo booth for two business partners.

A dispute arose over compensation.

When the defendant attempted to leave with the booth, a friend of the business partners placed himself on the hood of the vehicle.

The defendant drove slowly to escape, and the friend fell off and was injured.

The court found the defendant not guilty of all charges, accepting the necessity defence for the dangerous driving charge and finding the defendant had an honest colour of right claim regarding the booth.

The accused pleaded guilty to three counts of possession of firearms while subject to a lifetime weapons prohibition order contrary to s. 117.01(1) of the Criminal Code.

The defence sought a conditional sentence based on rehabilitation efforts and compliance with bail conditions over several years.

The Crown argued that denunciation and deterrence required a custodial sentence given the deliberate breach of a lifetime prohibition order and the presence of stolen firearms and ammunition.

The court held that imposing a conditional sentence would constitute an error in principle because it would inadequately address denunciation and deterrence for breaches of weapons prohibition orders.

A custodial sentence was imposed together with probation and a forfeiture order.

The defendant was charged with seven firearm and drug offences arising from events on November 20, 2010.

A police officer observed the defendant in a park, conducted a brief investigative stop, and after discovering the defendant was subject to a lifetime weapons prohibition, informed him he would be searched.

The defendant fled, discarding items into a pond during the chase.

The defendant challenged the admissibility of evidence seized, arguing he was arbitrarily detained and denied his right to counsel.

The court found no detention occurred during the initial police-citizen interaction at the cruiser, as the defendant chose to engage with the officer.

The court admitted the evidence, finding the defendant was not deprived of his liberty to choose whether to comply with police requests.

The accused was charged with impaired driving, driving with excess alcohol, and dangerous driving.

The court found that the arresting officer lacked objective reasonable and probable grounds to make a breath demand, resulting in a breach of the accused's s. 8 Charter rights.

Applying the Grant framework, the court excluded the breath test results under s. 24(2).

Without the breath tests and lacking sufficient evidence of impairment or a marked departure from the standard of care, the court acquitted the accused of all charges.