Kevin Donald made three mistakes on August 13, 2010. First, he was driving while he was suspended. Second, he drove poorly; speeding and driving in an erratic fashion which caught the attention of the police. Third, he was impaired; his BAC at the time of testing was 160 mg%.
When officer Lonsberry stopped Donald it did not take long to form a reasoanble suspicion that Donald had alcohol in his body. He was unsteady in his walk and had a strong odour of alcohol coming from his breath. He ultimately failed a roadside screening and later provided two samples of his breath.
At trial Donald argued, inter alia, that the officer did not have reasoanble and probable grounds because the Crown failed to establish, through the officer that the roadside screening device used was an "approved device". The officer's evidence on this point was that the device was an "approved device", an "Alcotest". The officer was able to provide the serial number as well. The officer was unable, however, to provide the precise description of the device.
The trial judge rejected that argument. Citing R v Gundy, 2008 ONCA 284 the trial judge held that "the only proper inference to draw from the evidence is that Cst. Lonsberry was using an approved screening device..." [para 26]. The trial judge rejected the Charter motion and convicted Donald: 2010 SKPC 123. Donald appealed.
Ball J sat on the summary conviction appeal: 2011 SKQB 408. Ball J agreed with the approach taken by the trial judge and dismissed the appeal:
DG MackIn this case the trial judge also relied on R. v. Gundy, supra, to draw the inference that the Alcotest device used by Cst. Lonsberry was an ASD under the Regulations. I find that on the evidence before him the inference drawn by the trial judge was reasonable and consistent with recent judicial authorities [para 24].