R. v. Burson, 2018 ONCJ 977

CITATION: R. v. Burson , 2018 ONCJ 977 DATE: November 27, 2018 Court File No. 180657 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN V. CIARAN ELLWOOD BURSON ********** JUDGE’S RULING BEFORE THE HONOURABLE MR. JUSTICE P. WRIGHT On November 27, 2018 at PERTH, Ontario ********** APPEARANCES: A. Macdonald Counsel for the Crown M. MacDonald Counsel for the Accused TUESDAY, 27 TH NOVEMBER 2018: WRIGHT, J: (Orally) By way of background then in relation to the Burson matter, we hear from Constable Wills who first notices the Burson vehicle when it extends very shortly beyond the stop sign leading onto Roger Stevens.

He detects mouth alcohol, has an admission, conducts a test, receives a fail. It is the fail which provides the reasonable and probable grounds. There is a Charter application with respect to the reasonable and probable grounds and the specific issue which the court has to address has to do with the possibility of mouth alcohol which might affect the accuracy of the roadside device. In the case of Becker , which is a decision that I have followed in the past, Justice Boxall points out that there is an ongoing obligation to ensure that once reasonable and probable grounds are obtained that they are still valid.

From paragraph 51 of that decision Justice Boxall says, What would a reasonable officer conclude in all the circumstances? Clearly, given the fact that there was open alcohol within easy reach of the driver that was still cold to the couch and the driver was alone in the vehicle it would be reasonable to draw the inference that the

driver was consuming alcohol including when driving. In fact, the arresting officer conceded in cross examination that this would be a reasonable conclusion. In the context of all the evidence in this case, including the accused’s statement, is it also reasonable that the consumption would have been in the last 15 minutes?” So, Justice Boxall goes on in these circumstances to determine that it would have been reasonable for the officer in that case to conclude that there was the possibility of mouth alcohol and to have conducted a further test after waiting the required 15 minutes.

The case before me I think can be distinguished from Becker . One, there is a passenger. Justice Boxall points out that Becker was alone in the vehicle. Here there is a passenger. The passenger in this case informs that she had been drinking and the alcohol is found on the passenger side. Secondly, in Becker the evidence before the court was that the beer was cold to the touch. That is not the evidence here. Constable Wills believes that it was not cold. He does not rule out the possibility, but his belief is that the beverages were at room temperature.

Thirdly, the investigating officer in this case conducts a residual mouth alcohol disclaimer. This is an explanation which is not required, it is above and beyond the obligation of an investigating officer, but its purpose is to bring home to a driver the risk of there being a false reading in the event of residual mouth alcohol if it is not disclosed. The accused in this case is heard to indicate that he understands, that it’s a non-issue and that the last consumption was an hour before. So, in my view, these are three very significant factors which distinguish the case before me from Becker .

What it comes down to then on the totality we have the subjective belief of the investigating officer. In light of the facts of this case, which as I have indicated distinguish it from Becker , he comes to the conclusion that he could rely upon the result of the fail and that there was no risk of mouth alcohol and, in my view, the investigation officer’s subjective belief in all the circumstances of this case was reasonable and, therefore, I conclude that there was no Charter breach. I will accept the invitation then in light of that ruling to enter a finding of guilt. WRIGHT, J