The recent ruling in R v Guenter, [2011] OJ No 2233 is notable for two reasons. First, it deals with a recent hot topic, roadside statements. In recent blogs I reviewed the Ontario Court of Appeal ruling in R v Soules, 2011 ONCA 429 [New & Notable: Compelled Roadside Statements] and the decision of Duncan J in R v Parol, 2011 ONCJ 292 [New & Notable/Quotable Quote: Compelled you say...] where Soules was considered. In Guenter, although Soules is not mentioned - as it had not yet been release - Rutherford J makes the same distinction and point about the breadth and applicability of Soules.
Second, it addresses another recently rejuvenated topic, ASAP in the context of a breath demand.
Peter Guenter was involved in a collision with another vehicle at a T intersection which was controlled by lights. Another motorist called police to report the collision. Upon arrival an officer began to speak with Guenter and eventually arrested him for impaired operation. As part of the grounds for arrest the officer relied upon utterances made by the accused; these included his utterances almost immediately upon the arrival of the officer that his "heart hurts" and that he was the driver. The accused would later explain that his heart hurt because he hit the car and there was a family in it [para 5].
In considering the first issue - what, if any use the Crown could make of the utterances - Rutherford J noted that when the utterances were made the police had not yet formulated any belief or grounds about what had occurred or who was involved [para 38]. Rutherford J further considered the applicability of R v White, [1999] SCJ No 28. On that point he held that there was "nothing in the evidence to suggest that in confirming to Cst. Mathieu that he was the driver of the Pathfinder, Mr. Guenter did so under any subjective belief that he was compelled to do so by the terms of the Highway Traffic Act [para 40]. Accordingly, the utterances were admissible at the behest of the Crown.
In considering the second issue - was the demand made ASAP - Rutherford J, noted that the demand was made by the arresting officer, after being reminded to do so, approximately one hour after arrest. This failure, however, was "simple error, inadvertence, and nothing more". Regardless of this error, however, the Crown had argued that there was a demand made ASAP by the breath technician and accordingly, it need not rely upon that demand [para 33]. Rutherford J noted the decisions cited by the Crown, R v Nassier, [1998] OJ No 2166 (SCJ), R v Dhaliwal, [2005] OJ No 1129 (SCJ) and R v Chilton, [2009] OJ No 3655 (SCJ) and concluded as follows:
In the circumstances of the case before me and in light of these previous decisions in this Court, I see no compelling reason not to find that Cst. Casey's demand that Mr. Guenter provide breath samples constituted lawful demands and suitable preconditions for the taking of the breath samples on which both the certificate tendered and the toxicologist's opinion evidence are based. The breath samples were lawfully taken and the evidence flowing from their analysis is admissible.
DG Mack