Archie's 2nd Case — Drive Over 80 — Dismissed

Between
Her Majesty the Queen, and
Archie A.

Ontario Court of Justice
Toronto, Ontario
Judge Kelly

Dismissed:  13 October 2006
(14 paras.)

¶ 1    MR. PENNEY:  Does Your Honour wish me to deal with both issues, both the proof of the Crown's case and the Charter application? I prefer to deal with the merits of the Crown's case first, frankly, because the Charter application, as much as it has merit, certainly doesn't have as much merit as the application I am going to make now. And I am going to hand Your Honour — I don't know if Your Honour is going to need this — a brief Book of Authorities with respect to the wording of the demand.

¶ 2    Your Honour has heard essentially no evidence with respect to the demand being made under section 254(3), let alone the wording of the demand. So you don't need to get into the Charter application, Your Honour, and section 24(2) and all that.

¶ 3    THE COURT:  Hang on. I thought I did hear about a demand.

¶ 4    MR. PENNEY:  No, no, you specifically did not, Your Honour. And I was watching for it, because it's not in the [police officer's] notes. And, in fact, my friend spotted that as well, and asked the officer "Did you say anything else after the arrest?" to give the officer an opportunity to tell Your Honour that he did, in fact, make the demand, if one was made. And he specifically told my friend "No, I said nothing else."

¶ 5    THE COURT:  Oh, okay, all right.

¶ 6    MR. PENNEY:  If there is no demand made, the presumption can't apply. How can Your Honour find, as a fact, that those samples were taken pursuant to that subsection when there is no evidence that a demand was made pursuant to the subsection? There certainly was no evidence with respect to the wording of it. So that's the Crown's big problem. The two cases I have given Your Honour — there are two Ontario cases, Tabs 1 and 2 — deal with the situation where the officer tesitfies a demand was made, but they don't give the wording in the demand. Even there, it's not sufficient, because you have to have a demand that's made within the section. We don't even have that here. We have no demand. There is absolutely no evidence before Your Honour that there was a valid demand for these samples.

¶ 7    I am arguing section 258(1)(c). Before the presumption can apply, there are a number of criteria. The Crown has to establish that there had to be a demand made under section 254(3). My friend was alive to that issue.

¶ 8    THE COURT:  Yes.

¶ 9    MR. PENNEY:  They also have to prove the samples were taken as soon as practicable. That's been proved, in my submission. Each sample was received from the accused into an approved instrument. That's been proved. An analysis of the sample had been made by means of an approved instrument. That's been proved.

¶ 10    But there has been no proof that a demand was made. That's the Crown's problem. Even consent wouldn't save the Crown here, because you don't have the presumption. There is absolutely no evidence of any demand being made for those samples to be taken — none! And we don't need to go into the Charter and section 24(2) for that. So I think that's the Crown's problem, and I think it's insurmountable. Frankly, I would ask my friend — since she was alive to the issue — to join me in my submission. And that's not a submission I make very often, perhaps once in ten years. But I am going to ask it today because I think it's appropriate.

¶ 11    MS VARADAN:  The Crown was very live to that issue, Your Honour. I think it's clear.

¶ 12    THE COURT:  Yes. No evidence of a demand being made, so the Crown is not entitled to a presumption. So the charge will be dismissed.

¶ 13    MR. PENNEY:  Thank you, Your Honour. I thank my friend as well, Your Honour, for her fairness.

¶ 14    THE COURT:  Thank you.

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