Jeffrey MacKenzie got out of the driver's side door of a car that was on the shoulder of the 401 express lanes in Toronto. He later would say he was not the driver. Nonetheless, a tow truck driver saw him get out of the driver's seat and when police arrived he was standing in front of the car talking on his phone.
The tow truck driver advised the police that MacKenzie was the driver - something he admitted under cross-examination was an assumption based on what he had observed. The officer made further observations including bloodshot eyes, smell of alcohol and slurred speech.
The officer ultimately made a demand pursuant to section 254(2) of the Code. MacKenzie refused. He was charged with refusal. At trial Caldwell J considered, inter alia, whether the Crown had to prove that MacKenzie was in fact the driver: 2012 ONCJ 424.
Caldwell J recognized that the pre-2008 legislation had been interpreted to required that the Crown prove that the accused was in fact operating or in care or control. However, post-2008, the legislation appeared to only require a reasonable suspicion that the accused operated or had care or control of the vehicle in the preceding three hours.
This language was similar to that used in section 254(3) - a section that the Supreme Court in R v Taraschuk, interpreted to not require proof that the accused was actually operating or in care or control, but merely that the officer had grounds to believe same - in the context of a refusal charge.
Here, Caldwell J held, apply the reasoning in Taraschuk, and on a plain reading of section 254(2), the Crown is not required, for a refusal charge, to prove that the accused was in fact operating or in care or control. Rather, the Crown need only prove that the officer reasonably suspected same.