ONTARIO COURT OF JUSTICE
Central West Region
Brampton Ontario
B E T W E E N :
HER MAJESTY THE QUEEN
-and-
STEPHEN BEATTIE
REASONS FOR JUDGMENT
Duncan J.
1. The defendant is charged with exceed 80, offence date June 30 2008.
2. The basic facts are simple: The defendant was stopped by police around 12:50 on a Monday afternoon after he was seen to turn left across oncoming traffic. The officer detected a smell of alcohol on the defendant’s breath and noted a rosy face. The defendant admitted drinking, albeit the previous day. The officer suspected that the defendant had alcohol in his body and read an ASD demand at 12:52. He did not have an ASD and radioed for one to be brought to the scene of the stop. The officers who responded did not have one either and had to go to the Division to pick one up. The defendant waited at or in his own vehicle. He was not read his rights to counsel. The ASD arrived at 1:09 and the test was conducted at 1: 12pm, 20 minutes after the demand. The defendant failed, was arrested and read his rights to counsel. He was taken for breath testing and gave samples at 2:10 and 2:37 betraying 240 milligrams of alcohol in 100 millitres of his blood.
3. With respect to his right to counsel after arrest, the defendant was asked at the roadside if he had a particular lawyer that he wanted to call he said that he did, he didn’t know his name but that it was “in my phone” [1]. There was no further discussion, in particular, the officer did not ask the defendant if he had the phone with him and the defendant did not tell the officer that it was sitting on the front seat of his car [2] or ask to get it. At the police station he was offered a lawyer’s book and was offered duty counsel. The defendant declined. In the breath room, the technician said to the defendant that he understood that he had a lawyer but didn’t know his name. The defendant answered that he would have to provide a sample anyway “so what’s the point”. The technician went over the rights to counsel again and the defendant declined opportunity to contact duty counsel or a private lawyer from the phone book.
