R. v. Donald
Her Majesty the Queen, and
 O.J. No. 3433
Ontario Court of Justice
J.N. Wilson J.
Oral judgment: April 18, 2005.
Charges: S. 254(b) Criminal Code of Canada – Over 80 mg.
Ms. M.A. Alexander, Counsel for the Crown
T.K. Pain, Esq., Counsel for the Accused
REASONS FOR JUDGMENT
1 J.N. WILSON J. (orally): I think you have some difficulties, and you did the best you could, but she did say really twice that she gave him the approved screening demand. Likely at one time, subject to Charter motion, Mr. Pain, likely at one time that was appropriate, but it was not appropriate to use that demand after the fail and she had arrested, given the right to counsel, cautioned him and then made a demand. So the evidence is complete and as I sit here now it may well be that she would have some difficulty with respect to relying on the presumptions as to whether it was pursuant to a 254(3) demand. I know the certificate will often cover that, but she has given evidence that is contrary to that, so a likely result could be that she would not be able to rely on presumptions, but I am quite willing to listen to you. I can tell by your posture that you realize there are some significant issues here just with the way this unfolded.
2 MS. ALEXANDER: Yes. I think there’s clearly an issue as to whether or not the proper demand was even made, and in that respect, Your Honour, I think you should have a doubt as to Mr. Donald’s guilt, and I would invite you to acquit.
3 THE COURT: You are not objecting to that?
4 MR. PAIN: I have no objection.
5 THE COURT: I am willing to listen to you too on the record. We are all of us on the same wavelength basically. I know you questioned her and you came up and looked at it and obviously you had picked up on that, which is a separate issue from the Charter issue of course.
6 MR. PAIN: Yes, Your Honour.
7 THE COURT: As it unfolded live, in my view that is the appropriate thing to do, to dismiss it on the basis suggested by Ms. Alexander, that there would be reasonable doubt with respect to what his readings were at the time of the offence because the Crown would have likely — in fact I find could not rely on the presumptions.
8 MS. ALEXANDER: I missed the last thing you said.
9 THE COURT: I beg your pardon?
10 MS. ALEXANDER: I apologize, Your Honour, for interrupting.
11 THE COURT: That is all right.
12 MS. ALEXANDER: I just missed the very last thing you said. You had started with “likely I could find”?
13 THE COURT: Yes, that you cannot rely on the presumptions and therefore I am left in doubt as to what his blood alcohol level was at the time of the offence, for which there was no other evidence.
14 MS. ALEXANDER: That’s right. Thank you.
15 MR. PAIN: Thank you.
16 THE COURT: Sometimes as things unfold they do not unfold in the order expected. Mr. Donald, I would urge you to be very careful when you are driving motor vehicles, but upon the evidence before me today I am going to dismiss the charge for the reasons that were given.
Click to read L.D.’s testimonial