Man pleads guilty after drinking and driving acquittal overturned

A Sault Ste. Marie man, facing a new trial after a local appeal court judge overturned his acquittal on drinking and driving charges, has pleaded guilty to an offence stemming from the September 2018 incident

Anthony Barzan, 37, was convicted of having control of a vehicle while "Over 80" when he appeared in the Ontario Court of Justice last week.

Justice Melanie Dunn imposed a $1,000 fine and prohibited him from getting behind the wheel for 12 months.

A second count of impaired driving was withdrawn following his guilty plea.

Barzan was charged Sept. 8, 2018 after his pickup truck ended up on its side in a three-foot deep ditch on Allen's Side Road.

The single-vehicle crash occurred just north of Third Line West and was reported to police shortly after 11:30 p.m.

During a 2019 trial, Ontario Court Justice Romuald Kwolek acquitted him of the charges, ruling that there had been multiple "serious" breaches of Barzan's Charter rights.

The judge found his rights to be secure from unreasonable search and seizure and arbitrary detention, to be advised of the reason for his detention, and to retain and instruct counsel without delay had been violated.

Police had delayed making a roadside breath demand for 15 minutes while Barzan was being checked by paramedics.

The officer testified that in his initial interaction with Barzan, before he was assessed by EMS, he had noted a strong odour of alcohol on the man's breath.

Kwolek excluded breath sample results and roadside screening device "fail" results from the trial and acquitted Barzan.

The Crown appealed the decision in the Sault's Superior Court of Justice.

In March of this year, Justice Annalisa Rasaiah heard the appeal and released her decision on July 26.

She set aside the acquittal and ordered a date be set for a new trial.

Rasaiah disagreed with the lower court's ruling that the city police officer's decision to delay making the roadside breath demand was unreasonable in the circumstances.

She said all circumstances must be considered.

While there must be no delay beyond what is reasonably necessary to enable the police officer to discharge his or her duties, when making a demand "in unusual circumstances a more flexible interpretation may be given," Rasaiah wrote in her 10-page decision.

There was a fatal error in the lower court's legal analysis and finding in the contextual circumstances of this case, she said.

Rasaiah concluded there is a reasonable degree of certainty that the acquittal at trial was materially affected by error.