A judge has found a former Wawa man not guilty of an “over 80” drinking and driving charge.
The Ontario Provincial Police charged Kenneth Brezenski on Feb. 27, 2012 after officers were dispatched to his Highway 17 residence on a domestic dispute call.
In a 14-page decision, released Thursday, Ontario Court Justice Nathalie Gregson concluded that the Crown had not proven its case against the 57-year-old man, who now resides in the Sudbury area, beyond a reasonable doubt .
Gregson also ruled that Brezenski's Charter rights to be secure against unreasonable search or seizure, not to be arbitrarily detained and to retain counsel had been violated.
During a hearing on Aug. 13, the court heard when two OPP officers arrived at the man's home on the February night, he was plowing snow on his property.
When one of the officers spoke to Brezenski, he noted an odour of alcohol on the man's breath.
A few minutes later, they went inside the home at his invitation and spoke with Brezenski and his wife about the domestic call.
At least 12 minutes later, the officers made a request for a breath sample which was to be provided “forthwith.”
In her decision, Gregson said that for officers to make a roadside breath demand, they only require a reasonable suspicion that a driver has alcohol in his or her body.
She also noted that “forthwith” suggests an almost immediate demand.
Both officers knew from OPP dispatch that Brezenski had been drinking and when they arrived observed him driving his vehicle.
Both also detected an odour of alcohol during their interaction with him.
The judge said that based on those factors, the “reasonable suspicion” crystallized within one to two minutes of the officers interacting with Brezenski.
“The officers had an obligation at that time to make the roadside breath demand,” she said.
Since a period of at least 12 minutes lapsed before Brezenski was asked to provide the sample, the breath sample wasn't given on a “forthwith” basis, Gregson said.
Brezenski was detained without authority for a minimum of 12 minutes, not including the time it took for him to blow into the screening device, the judge said.
As well, the officers should have provided him with his rights to counsel when they chose not to make the breath demand outside, she said.
“Unfortunately, in having waited to make the breath demand a series of Charter breaches occurred,” Gregson concluded.
The three sections of the Canadian Charter of Rights, that defence counsel Wayne Chorney argued were violated, all flow from making a breath demand “forthwith.”
“Not making an immediate demand resulted not only in one Charter breach, but in three breaches,” she said.
Describing the breaches in the case as “serious,” she ruled that the breath test results must be excluded as evidence.
By Linda Richardson, Sault Star
Friday, November 8, 2013 3:44:54 EST PMhttp://www.saultstar.com/2013/11/08/jud ... ter-rights