Police shouldn't have waited for paramedics to do roadside screening, judge rules

A Sault Ste. Marie man no longer faces drinking and driving charges after Ontario Court Justice Romuald Kwolek ruled city police violated a number of his Charter rights.

Anthony Barzan was charged after he was involved in a Sept. 8, 2018 single-vehicle crash in a rural area of the city.

The 35-year-old man's vehicle ended up on its side in a three-foot deep ditch on Allen's Side Road, the court heard during a hearing that took place in July and October.

As a result of his recent finding that there had been multiple "serious" Charter breaches, Kwolek excluded breath sample results and roadside screening device "fail" evidence from the trial.

Defence lawyer Wayne Chorney argued during a voir dire — a trial within a trial to determine the admissabilty of evidence — that his client's rights had been violated in numerous ways.

The judge didn't accept all his submissions, but agreed Barzan's rights to be secure against unreasonable search, seizure and arbitrary detention, to be advised of the reason for his detention and to retain and instruct counsel without delay were breached.

"Having regard to all the circumstances, the admission of such evidence would bring the administration of justice into disrepute," he concluded in a 15-page written decision, which was released about a month ago.

Kwolek found "no bad faith" on the part of the investigating officer, indicating the constable "honestly" felt he shouldn't immediately make a breath demand because he should wait for medical personnel to arrive at the accident scene.

He noted Const. Jacob Rouse testified it was always better to make sure about the accused's well-being before proceeding with a criminal investigation.

The court heard from the two city police officers involved in the probe.

Rouse testified that he arrived at the scene at 11:39 p.m. and during his initial interaction with Barzan noted a strong odour of alcohol on the man's breath.

"Almost immediately" after speaking with the accused, he said he had formed a reasonable suspicion that Barzan had alcohol in his body, but intentionally delayed making a breath demand until Barzan was checked by paramedics.

Rouse made the demand at 11:59 p.m. — two minutes after Barzan was medically cleared by EMS.

Barzan provided a sample and registered a fail.

He was arrested, searched, cautioned and advised of the charges and his right to counsel.

Rouse remained there until another officer arrived to take photographs.

Officers removed Barzan from the scene at 12:11 a.m. and he arrived at the police station 11 minutes later.

At 12:35 a.m., the accused gave Const. Bradley Nickle the name of the lawyer that he wanted to speak to, but the officer was unable to contact him.

Six minutes later, Barzan was able to connect with Chorney, his third choice.

He provided breath samples at 12:53 a.m. and 1:15 a.m. — both of which were over the legal limit.

In his reasons, Kwolek said Rouse's decision to delay making the roadside screening demand was not reasonable under the circumstances.

The judge noted the officer didn't ask the accused if he had suffered any injuries and didn't make any observations that were consistent with injuries.

During his testimony, Rouse had confirmed that he had considered Barzan to be detained after he formed his grounds for the demand and that the accused wouldn't be free to leave the scene.

However, Barzan wasn't advised that he was detained nor was he provided with his rights to counsel for 17 minutes, Kwolek said.

As a result of this delay in making the demand, Barzan's right to be secure from unreasonable search and seizure was violated at the roadside.

This, in turn, triggered breaches of his rights not be arbitrarily detained and to be promptly advised of the reasons for his detention and to retain and counsel with delay, the judge said.

"The accused's Charter rights should not be minimized nor treated lightly."

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