R v Germanis

R. v. Germanis

[2001] O.J. No. 2935
Ontario Court of Justice — Lampkin J. | Oral judgment: January 18, 2001

Background

On May 6, 2000, at 2:56 a.m. on Steeles Avenue in Markham, police stopped William Germanis. The officer smelled alcohol on his breath and demanded a roadside screening test. After several attempts, Germanis provided a satisfactory sample. The device read "A" — indicating between 0.5 and 99 milligrams of alcohol per 100 millilitres of blood.

Here's the key: Germanis held a G-2 licence, which means zero tolerance for alcohol. The officer issued him a 12-hour licence suspension and charged him under subsection 6(1) of Ontario Regulation 340/94 — driving with blood-alcohol above zero as a G-2 licence holder. The officer never offered Germanis the right to speak to a lawyer before or after the roadside test.

Issues

1. Did the police violate Germanis's Charter right to counsel by not informing him of his right to a lawyer before using the roadside screening evidence against him?
2. Should the roadside screening evidence be excluded because of this alleged Charter breach?

The Charter Rights Argument

Germanis's lawyer argued that once police use roadside screening results as evidence to lay charges, the driver should have been offered his Charter right to counsel under section 10(b). The defence relied on cases like R. v. Milne and R. v. Therens, arguing that roadside tests are "merely investigative tools" — but once you're being charged based on those results, you need access to a lawyer.

The court disagreed. Justice Lampkin found that the Highway Traffic Act specifically addresses this situation through section 48.1. Under subsection 48.1(2), officers can demand screening tests from novice drivers, and subsection 48.1(6) gives the driver options if alcohol is detected. The court noted that Germanis could have demanded a more precise breathalyzer test at the station if he wanted to challenge the roadside result — that's when the right to counsel would kick in.

The judge emphasized that the roadside test showed "some level of alcohol" and the law requires G-2 drivers to have "absolutely no alcohol. Not even point zero five." Since the legislation permits officers to use roadside screening evidence for G-2 violations without offering counsel first, no Charter breach occurred.

Key Takeaway

Novice drivers don't get Charter warnings before roadside screening tests, even when those results are used to lay charges.

If you're a G-2 driver and blow anything other than zero on a roadside device, you can be charged immediately. Your right to counsel only kicks in if you demand a more precise test at the station — but the officer doesn't have to offer that option.