Impaired Driving, Drive Over 80 mg

R. v. N.S.
October 2018

– Charges Dismissed

Mr. N.S. was returning from the cottage when his car hit the side-view mirror of another vehicle. The driver of that vehicle called 911 and followed N.S. home. When police arrived a few minutes later, he was inside his house. Police knocked on the door and he answered. Police testified that he was unsteady on his feet, slurred his speech and his breath smelled of alcohol. They arrested him for impaired driving after he admitted to being the driver of the car identified by the witness. At the station, he registered breath readings of 200 mg of alcohol in 100 ml of blood.

At trial, I argued that police violated his right to counsel in at least three ways. After arresting him, the arresting officer delayed reading him his rights in order to deal with less urgent matters including sorting out which officer would handle the vehicle tow and the collision report. This ran afoul of the requirement that absent safety concerns police provide the right to counsel immediately.

Second, when the arresting officer told N.S. at the scene that he could call a lawyer for legal advice, N.S. said he needed his cell phone. The officer said he did not take steps to get the phone because it was inside the house and no one was home. At the police station, N.S. spoke to duty counsel, the state-funded lawyer. At trial, N.S. said he’d have preferred to speak to me. While he did not remember my name at the time, he testified that my contact information was stored in his cell phone. I argued that police breached his right to counsel by failing to get his phone.

Third, at the station, after booking N.S., the arresting officer delayed calling duty counsel while he spoke to the breath technician about the reasons for the arrest. I argued this further breached the immediacy requirement.

RESULT: After the witnesses testified, the Crown conceded that police had breached the right to counsel and invited the court to dismiss both charges.

Impaired Driving, Drive Over 80 mg

R. v. V.B.
September 2018

– Charges Dismissed

Ms. V.B. was heading home from work when another driver called 911 to report that her car was swerving. Police were dispatched to investigate a possible impaired driver. Police stopped V.B. and told her that they pulled her over because her driving was “not following that of the Highway Traffic Act.” Police detected an odor of alcohol on her breath and observed that her eyes were glassy. When asked for her documents, she stared silently at the officer for “about five seconds.” Police asked her to exit her vehicle. When she lost her balance while walking, police arrested her for impaired driving.

The arresting officer gave her the right to counsel and she said she wanted to speak to a lawyer. Before leaving the scene, the arresting officer asked her questions including “on a scale of 1 to 10 with one being sober, what do you feel your level of impairment is now?” V.B. answered the questions; some of her answers were very incriminating.

At the station, police left a message for the lawyer she had asked to contact. When the lawyer did not return the call, police called duty counsel, the state-funded lawyer.

After V.B. spoke to duty counsel, she registered breath readings of more than twice the legal limit.

At trial, I argued that police breached her constitutional rights in several ways. They violated her right to be informed of the reason for detention by not telling her they were investigating her for the crime of impaired driving.

Police breached her right to counsel by questioning her about the offence before she could get legal advice. They violated the right to counsel of choice by not giving her the option of calling a lawyer besides duty counsel when the lawyer she initially requested did not call back. She testified that she would have wanted to try one of the lawyers on the list of local lawyers that police said they kept.

Further, police violated V.B.’s Charter right against arbitrary detention by keeping her in custody for about six hours after the breath tests ostensibly to sober up. However, the breath testing officer testified that she could safely have been released into the care of a responsible adult right after the tests. V.B.’s mother told the court that she was available the whole time to come get her and had even called the police station looking for her hours before her release.

RESULT: The court agreed that V.B.’s rights had been violated and dismissed both charges.

Impaired/Over 80- Care or Control

R. v. D.H.
June 2017

– Charges dismissed

A citizen called police to report a possible impaired driver at about 3 am. Police located DH filling gas and arrested him for impaired care or control. At the police station he registered breath test results of 170 and 160 mg%.

Four minute wait for lawyer
Given his right to counsel, he asked to speak to me. Police left a voicemail message and four minutes later, as the call had not yet been returned, offered duty counsel. He agreed and later spoke to duty counsel by phone in the holding room.

At trial DH testified he’d have called a different lawyer had he known duty counsel was not his only other option. An affidavit of that lawyer was filed stating that he was available and that he answers calls in the middle of the night.

Legal consult audible

As snippets of DH’s conversation were audible on the booking room DVD, I requested the Crown to allow me to conduct sound tests at the station. My tests confirmed that a conversation in the holding room could be heard clearly by anyone in the booking area. The booking DVD showed that the one of the investigating officers stood briefly outside the holding room while DH consulted counsel.

RESULT: The breath test results were excluded due to Charter violations. The court found that police failed to accord DH privacy for his phone call, thus breaching his right to consult counsel in private. The court also held that police violated the right to counsel of choice, finding they should have told him he could wait longer for my return call and advised him that besides duty counsel he could call a different lawyer. In addition the court found that the evidence of impairment fell short.

Impaired Driving, Drive Over 80

R. v. A.A.
August 2016

– Charges Reduced to Careless Driving

A.A. was pulled over for erratic driving and arrested for impaired driving. Breath tests at the police station showed a blood alcohol concentration of 130 mg in 100 ml of blood.

In preparing for a trial, Mr. A told me he had spoken to a lawyer from the station before the breath tests. While he was on the phone, he said, he could hear police in the corridor outside. Fearing they could hear him too, he curtailed his consultation with the lawyer.

Prior to trial, I filed an application alleging that his right to counsel was violated because of the lack of privacy. The Crown authorized me to visit the police station to check the acoustics.

RESULT: After I confirmed the phone room was poorly soundproofed, the Crown offered to drop the criminal charges and take a plea to Careless Driving.

Impaired Driving, Drive Over 80

R. v. R. D.
March 2016

– Charges Dismissed

ISSUES: Violation of right to counsel (Section 10-b of the Charter of Rights and Freedoms) and right to be free from unreasonable search and seizure (Section 8 of the Charter). Insufficient evidence of impairment

Mr. D. failed to negotiate a turn on a Toronto street and rammed into a pole. A bystander called 911. When police arrived Mr. D. was already in an ambulance. After smelling alcohol on his breath, and noticing red glossy eyes, and slurred speech, police arrested him for impaired driving.

Police read Mr. D. his right to counsel in the ambulance and asked him if he understood. He nodded his head up and down. In conversation, he had trouble with pronunciation and some of his responses were delayed. Police detected an accent. At the hospital police read him his rights again along with a demand for breath samples. This time police asked him to indicate verbally if he understood. He responded “yes.” Did he want to speak to a lawyer? “No, thank you” he replied, “I respect you.” Subsequent breath tests showed that his blood alcohol concentration was over the legal limit.

The officer could not explain why he administered the breath demand over an hour after the arrest. The law requires the demand be made “as soon as practicable.”

At trial I argued that Mr. D., a visitor from Portugal, did not understand the right to counsel in English. His accent, delayed answers, pronunciation difficulty and non sequitir reply when asked if he wanted to speak to a lawyer (“No, thank you, I respect you”) should have alerted police to a language problem. The Crown (of course) disagreed, noting that he clearly indicated that he understood his rights, not just once but twice.

I accessed the hospital records and found that a nurse had noted “language barrier.” Subpoenaed as a witness, she explained medical staff use this expression when a patient does not have a good understanding of English.

RESULT: The court held that police had violated Mr. D.’s right to counsel. The court accepted my argument that police should have recognized his ability to understand English was below par and obtained an interpreter. In addition, the court agreed with me that police delayed the breath demand unlawfully resulting in an unlawful seizure of Mr. D’s breath samples. Because of these breaches of his rights, the court dismissed the charge of Drive Over 80. In addition, the court acquitted Mr. D. of impaired driving, finding the Crown had not proven it beyond a reasonable doubt.

Impaired Driving, Drive Over 80

R. v E.B.
September 2014

– Charges Dismissed

ISSUES: Violation of right to privacy (Section 8 of the Charter of Rights and Freedoms), insufficient evidence of impairment

Toronto OPP stopped Mr. B. after he veered into another lane of traffic. Because he admitted to drinking a beer, police had him exit his car to do a roadside screening test. When he “wobbled” on exiting his vehicle, police dispensed with the test and arrested him for impaired driving.

Police took him to a nearby detachment. In the booking video Mr. B. can be seen standing on one foot, then the other, as he removes his shoes. His balance appears normal. Police testified that his speech was good (no slurring).

While waiting to do breath tests, Mr. B. used the toilet in a holding cell. Unbeknownst to Mr. B. the cell was being monitored and videotaped. After his breath tests (140 mg% and 130 mg%), he again used the cell toilet.

At trial Mr. B. testified that he was shocked and embarrassed to discover that his toilet use had been monitored and taped and that the film showed his genitals. An OPP policy analyst explained that cameras had been installed in 2010 at all detachments in line with inquest safety recommendations following the deaths of several detainees. (After Mr. B.’s investigation, OPP took steps to afford detainees privacy during toilet use with a blanket or hospital gown available upon request.)

The court found that while there were sound reasons for monitoring and taping prisoners, a one-size-fits-all policy was inappropriate.

RESULT: The court excluded the evidence of the breath test results. Further, citing the video of the shoe removal and noting there was no slurring, it found that the Crown had not proven beyond a reasonable doubt that Mr. B.’s ability to operate a motor vehicle was impaired. Both charges were dismissed.

Drive Over 80

R. v T.Z.
September 2014

– Charge Dismissed

ISSUE: Breath tests not taken as soon as practicable

Mr. Z. worked in sales and needed his driver’s licence for work. A conviction would mean looking for a new job.

The police investigation was by the book except for one small error. Police made a call to duty counsel at the police station so that Mr. Z. could exercise his right to counsel. (Duty counsel is a state-funded lawyer available 24/7 for free legal advice.) However, following his arrest and the reading of his rights, Mr. Z. who told police that he understood his rights, stated that he did not want to speak to a lawyer. In order to protect his rights and unbeknownst to Mr. Z., police called one anyway. When police advised Mr. Z. that a lawyer (duty counsel) was on the phone, he spoke to the lawyer as he “wanted to cooperate.”

The wait for a return call from the lawyer and the legal consultation consumed 19 minutes. Noting that it was a “very close call,” the trial judge found that this delay was unreasonable because Mr. Z.’s waiver of the right to counsel was clear and unequivocal and he never changed his mind about speaking to a lawyer.

RESULT: Concluding that the police had not taken Mr. Z.’s breath samples “as soon as practicable,” the court dismissed the charge.

Drive Over 80, Impaired Driving

R. v D.G.
April 2013

– Charges Withdrawn

ISSUES: Right to trial within a reasonable time (Section 11(b) of the Charter)

D.G. owned an excavation company and had to travel to and from job sites in rural Ontario. He could not afford to plead guilty.

He was charged with Driving Over after an arrest for failing a screening test at a RIDE stop. Unsteadiness and slurred speech led to an additional charge of impaired driving. At a judicial pretrial (meeting between myself, a Crown and a judge), before the trial, the judge commented that it appeared to be a flawless investigation – no defence.

Within days of being retained, I requested disclosure of the printouts from the Intoxilyzer 8000C breath instrument for the breath tests and the accompanying start-up procedures. The Crown disclosed the printouts for the tests, but not the start-up procedures. I asked for them again several times. The Crown knowing that the “delay clock” was ticking and that Mr. G.’s Section 11(b) Charter right to a speedy trial might be in jeopardy, insisted on setting a trial date even though it had not yet disclosed the printouts.

Given their importance and my need to review them in order to determine whether I needed to hire a toxicologist (an expert on the breath instrument), I refused to set a trial date without them. The judge sided with me, resulting in a few more adjournments. The Crown, relying on information from the police, finally responded that the printouts for the start-up procedures were no longer available. However, a month later they turned up – seven months after I had first requested them.

RESULT: Recognizing that the prosecution could be scuttled by the excessive delay in producing a simple piece of basic disclosure and the resulting violation of Mr. G.’s constitutional right to a speedy trial, the Crown withdrew the criminal charges and accepted a plea to Careless Driving.

Impaired Boating, Over 80

R. v J.S.
March 2013

– Charges Withdrawn

ISSUE: Functioning of breath testing instrument (Intoxilyzer 5000C)

J.S. was at his cottage with friends one summer day. He had way too much to drink then slept it off. The following day, he went boating with a few of his friends. A police patrol boat stopped him to check if there were enough life jackets on board. After detecting an odor of alcohol on his breath, police did a screening test and determined that Mr. S. was over the legal limit. After Intoxilyzer tests at a police station, he was charged with operating a boat while Over 80.

The printout for the the calibration check of the Intoxilyzer 5000C performed just before his breath tests was outside the acceptable range. A report by a toxicologist opined that his test results were unreliable. The Crown agreed to take a plea to Careless Boating for a small fine and withdraw the criminal charge. The conviction does not appear on his driving record and as a result has no effect on his car insurance rates.

Refuse Breath Sample

R. v P.J.
June 2012

– Charge Dismissed

ISSUE: Unlawful breath demand (demand not “forthwith”)

Toronto OPP stopped Mr. J. on the on-ramp to Highway 401 after observing some bad driving. Upon detecting a slight odor of alcohol on his breath, police asked him to provide a breath sample into a roadside screening device. Mr. J. made a few attempts but none succeeded in producing a reading. He was charged with refuse breath sample.

At trial, the officer acknowledged that after smelling alcohol on Mr. J.’s breath he did not immediately make a breath demand. Instead, he asked Mr. J. for his driver’s licence, ran a criminal record check, and made notes in his notebook on the events up to that point. After a delay of between 3 to 5.5 minutes, he demanded Mr. J. to provide a breath sample.

RESULT: The court acquitted Mr. J. It found that police inappropriately delayed making the breath demand to make notes.

Refuse Breath Sample

R. v H.P.
May 2012

– Charge Withdrawn

ISSUE: Right to an interpreter (Section 14 of the Charter)

A civilian called police to report a suspected drunk driver. Police located the vehicle and after observing erratic driving, pulled Mr. P. over. On smelling alcohol on his breath, police demanded him to provide a breath sample into a roadside screening device. After numerous unsuccessful attempts, police charged him with refuse breath sample.

Mr. P. spoke Twi. His English, while functional, was below the level necessary to understand court proceedings. Prior to trial, I discovered that the interpreter who had been scheduled was not fully accredited, but only conditionally accredited. Under an evaluation system established a few years earlier by the Ministry of the Attorney General, interpreters must achieve a score of at least 70 per cent to earn full accreditation. Those with grades between 50 and 70 are deemed conditionally accredited and authorized to perform interpretation for minor court proceedings but not trials. Some judges faced with a conditionally accredited interpreter would conduct a hearing to determine whether the interpreter, notwithstanding his or her test scores, was competent to provide interpretation assistance. Other judges would decline to run a hearing on the basis that a judge is not equipped to assess competence.

Prior to trial I filed an application asking the court to stay the charge on the basis that Mr. P.’s constitutional right to an interpreter was breached by the government’s failure to provide him with a qualified interpreter. Anticipating that the Crown would seek to have the judge conduct a competency hearing, I obtained a report from an expert who had reviewed the test scores of the proposed interpreter. The expert opined that the interpreter was not qualified.

RESULT: Due to the report, the Crown agreed prior to trial to reduce the charge to Careless Driving and even to suspend the passing of sentence. Mr. P. pled guilty and received no penalty.

Impaired driving and Drive Over 80

R. v N.G.
May 2012

– Charges Withdrawn

ISSUES: Rights to disclosure and trial within a reasonable time (Sections 7 and 11(b) of the Charter)

N.G. blew a stop sign at about 2 am on the way home from an office Christmas party. Police stopped him. Their notes describe what happened next: “Had male step out of the vehicle. Male falling over. Male had to be held up. Very very strong odour of an alcoholic beverage coming from the male’s mouth.”

Mr. G. was arrested. After breath tests revealed that his blood alcohol level was 230 mgs of alcohol in 100 mls of blood, nearly three times the legal limit, he was charged with Drive Over 80 mg. and Impaired Driving.

Mr. G. did not appear to have a defence. A conviction would mean the loss of his driver’s licence for at least three years under Ontario law because he had a prior drink-drive conviction. As his work requires driving, a conviction would mean the loss of his job. It would also mean the end of a career for which he had recently completed an 8,000-hour four-year apprenticeship program.

I applied for the breath testing instrument operational records bracketing Mr. G.’s tests and all maintenance records for the breath instrument to try and show that the instrument was malfunctioning or had been improperly modified. Denying their relevance, the Crown refused to provide the records. Mr. G. was forced to wage a two-day court battle with competing Crown and defence experts. Ultimately the judge ordered the Crown to provide most of the requested material.

RESULT: Given the delay due to the disclosure battle and the further delay that would result from providing the contested records, the Crown agreed to take a plea to Careless Driving and withdraw the drink-drive charges. This saved Mr. G.’s licence and career.

Over 80, Impaired – Care or Control

R. v J.V.
February 2012

– Charges Dismissed

ISSUES: Unlawful arrest and breath demand (Section 8 of the Charter)

Oshawa police responded to a call about a “suspicious” vehicle parked on a quiet residential street at about 2:30 am with the engine running. They arrived and found J.V. behind the wheel. Police detected an odor of alcohol on his breath and said his eyes were “glossy” and his face “red and flushed.” There was a half-full can of beer in the centre console. Police asked Mr. V. to exit his car and promptly arrested him for Impaired – Care or Control and made a demand that he do breath tests at the police station. The breath tests revealed a blood alcohol level of 130 mg of alcohol in 100 ml of blood. As a result, he was also charged with Over 80 – Care or Control.

At trial, the judge found that police had jumped to the conclusion that Mr. V. was impaired and that there was insufficient evidence to ground such a belief. As a result, the judge held that the arrest and breath demand were illegal. Accordingly, he also found that the seizure of the breath samples breached Mr. V.’s right against unreasonable search and seziure.

RESULT: The judge threw out the breath test results and dismissed the Over 80 charge. Finding that the evidence of impairment was not enough to establish guilt beyond a reasonable doubt, he also dismissed the impaired charge.

P.S. The same judge recently issued a decision excluding breath test results of 210 and 200 mg in 100 ml of blood after finding that police, in violation of s. 9 of the Charter, could not justify stopping the accused for investigation: see R. v. Caswell. (In Caswell, the arresting officer testified he pulled Mr. Caswell over for going through a stop sign. However, defence counsel produced a map shwoing there was no stop sign at that intersection).

Refuse Breath Sample

R. v V.G.
February 2012

– Charge Withdrawn

ISSUE: Unlawful breath demand (lack of reasonable suspicion)

V.G. was stopped for weaving a few times within his lane at about 2 am along Leslie Street in Toronto.

Two officers approached and one asked if he had been drinking. He said no. The officer asked again. He maintained that he had not consumed any alcohol. The officer asked three more times, but Mr. G. kept insisting that he had not had anything to drink.

Police then conferred in private. “He smells like he drank a bottle of cologne.”

“How’s his speech?” the second officer asked. “Clear,” his partner responded.

Police then demanded Mr. G. to provide a breath sample into a roadside screening device to determine if he had alcohol in his body.

While waiting for another cruiser to bring the device, the officers had the following discussion: “I don’t know what it was, certainly cologne. He was driving erratically. Maybe it was distracted driving, maybe he had to go somewhere fast, maybe he was tired.”

Once the device arrived, Mr. G. was given 35 (yes, 35, not a typo) opportunities to provide a sample but he did not succeed in providing one. He was charged with refusing to provide a breath sample.

In pretrial discussions, I told Crown counsel that if there were a trial she would have difficulty establishing that the breath demand was lawful. For the demand to be lawful, police must have a reasonable suspicion that the driver has alcohol in his body. Here police had a suspicion. But was it reasonable? If the demand is unlawful, it’s not an offence to fail to comply. The Crown was not persuaded and said she would take her chances at trial.

Enter the judicial pretrial, the meeting with a judge that must be held in some jurisdictions before you can set a date for trial. I raised the same issue and the judge told the Crown: “While I agree that the erratic driving is concerning, I agree with Mr. Jourard you will have trouble establishing that police had a reasonable suspicion. I think this is worth a Careless [that is, the charge should be reduced to the non-criminal offence of Careless Driving].”

The Crown relented. I persuaded her to take a plea, not to Careless Driving, which would result in a huge insurance increase and six demerit points, but instead to the lesser Highway Traffic Act charge of Improper Lane Change provided my client first complete an remedial education program for drunk drivers. Mr. G. thus avoided the risk and expense of a trial.

Over 80 mg and Impaired Driving

R. v G.D.
December 2011

– Charges Withdrawn

ISSUES: Loss of evidence bearing on legitimacy of detention after breath tests (Charter of Rights and Freedoms, s. 9; Right to make full answer and defence (Charter of Rights and Freedoms, s. 7)

Mr. G. was stopped after a citizen’s complaint and arrested for impaired driving. After he registered breath readings over twice the legal limit, he was also charged with Drive Over 80. He was detained for about 12 hours after his breath tests to sober up. Arguably this lengthy post-test detention was arbitrary and in breach of his Charter rights.

If found guilty, Mr. G., a long-haul tractor trailer driver nearing retirement, would lose his livelihood and no longer be able to retire as planned. Within a month of his arrest, I applied for disclosure, including the videotapes for the cell where he had been held following his breath tests. The Crown after a lengthy delay responded that the tapes had been erased.

Next I applied for disclosure concerning the police camera system to prepare an application for a stay of the charges based on the destruction by police of the videotape evidence. The tapes, I advised the Crown, could have shown Mr. G.’s level of impairment and therefore whether it was necessary to detain him for 12 hours.

RESULT: A few days before the trial, the Crown offered to withdraw the criminal charges and accept a plea to Careless Driving. As Mr. G. would lose his job as a truck driver if convicted of Careless Driving, I persuaded the Crown to accept a plea to Mischief to Property (by rendering property, that is, the motor vehicle, dangerous) contrary to Criminal Code section 430(1)(b) for a conditional discharge. The mischief charge would not show up on his driving record with the Ministry of Transportation. As a bonus, it would not come to the attention of his insurance company either. His motor vehicle insurance premiums would thus be unaffected.

Over 80, Impaired – Care or Control

R. v J.P.
September 2011

– Charges Stayed

ISSUE: Right to an interpreter (Section 14 of the Charter)

J.P. was charged with Impaired and Over 80 – Care or Control. His BAC readings were 180 mg in 100 ml of blood. He had been at a karaoke bar with his wife and friends. Having imbibed too much alcohol, he went to sleep it off in the car. Police were told that his wife was going to drive home. Police said they wanted to talk to his wife. As his wife also had been drinking, she requested a friend who had not been drinking to impersonate her and tell police that she was the wife. Police gave the teetotaler the keys and said no one could drive but her.

Mr. P. was extremely anxious as a conviction would lead to his family’s deportation since he was in Canada on a work permit.

Mr. P. had a defence based on his not having intended to drive, but it was not foolproof.

As Mr. P. spoke very little English, he required the assistance of a Korean interpreter for trial. On his first trial date, the interpreter called in sick and the Crown was granted an adjournment. The judge told the Crown to make sure a fully accredited interpreter was available on the new trial date.

On the new trial date, an interpreter was available, but not fully accredited.

The Crown said that there are no fully accredited Korean interpreters in Ontario (a dearth since rectified), and only two conditionally accredited ones. (Conditionally accredited interpreters have received scores of between 50 and 70 on one or more sections of the three-part qualifying exams. The Ministry of the Attorney General guidelines authorize them to assist in minor matters but not trials.) The Crown urged the judge to conduct an inquiry into the qualifications of the interpreter and decide whether he was capable of interpreting for Mr. P.’s trial. I objected. The judge declined to conduct such an inquiry and adjourned the trial.

At the third trial date a conditionally accredited interpreter was available. The Crown again urged the judge to conduct an inquiry into his competency. I objected. The judge held that without a fully accredited interpreter to interpret for Mr. P. at the competency hearing, he could not conduct one.

RESULT: The Crown agreed that once Mr. P. had completed alcohol abuse counseling it would ask the court to stay the charges.

Impaired driving, Drive Over 80, and Dangerous Driving

R. v A.D.
May 2011

– Charges Withdrawn and Dismissed

ISSUES: Raising a reasonable doubt

At 4 am on a Sunday A.D. ran a red light at what police said was twice the speed limit. Police gave pursuit and said his car drifted over the centre line and back. They pulled him over and had him walk back and forth to observe his balance. He appeared unsteady and given other indicia of alcohol consumption (odor of alcohol on his breath, glassy eyes, and slurred speech) he was arrested for impaired driving. At the station, he registered breath readings of 130 mg in 100 ml of blood. The breath technician made a note that his balance appeared sure. He was also charged with Drive Over 80 mg and Dangerous Driving.

Prior to trial, I brought a motion for disclosure of records for the breath instrument. To avoid litigating and believing it had a strong case on the other two charges, the Crown withdrew the Over 80 charge.

At trial, to fight the Impaired Driving charge, I brought a motion to exclude the evidence of observations of unsteadiness on the basis that the officer had Mr. D. walk back and forth in order to observe his balance prior to making a breath demand. I argued that these were compelled sobriety tests the results of which could not be used to prove impairment but were admissible only to form the grounds needed to justify the arrest (see R. v. Milne) The Crown conceded that this evidence should be excluded.

Under cross-examination, I showed the arresting officer a road-sign photo taken near the scene of the arrest. He agreed it indicated that the posted speed limit was higher than what he had testified. He also agreed that Mr. D. may only have been speeding about 30 kms over the limit. He conceded that except for running the red light and drifting over the centre line, Mr. A.’s other driving was proper. He told the court that Mr. D. had told him that he had gone through the stop light because he was in a hurry to get home. The Crown objected to this statement going in as it was hearsay but the judge admitted it as a declaration contrary to self-interest (that is, an admission to wrongdoing).

RESULT: Mr. D. was acquitted on all charges. The judge found that while the driving was probably careless it fell short of dangerous. While he suspected Mr. D.’s ability to operate a motor vehicle was impaired by alcohol, without the evidence of unsteadiness and with an explanation other than alcohol impairment for running the stop sign, he was not satisfied beyond a reasonable doubt.

Refuse Breath Sample

R. v D. T.
November 2010

– Charge Withdrawn

ISSUES: Violations of rights against unreasonable search and arbitrary detention (Sections 8 and 9 of the Charter)

Mr. T. had parked his car at a friend’s house on a quiet residential street in Toronto. His friend called him at 10:30 pm to say he might get a ticket because the car was close to a fire hydrant. But Mr. T. was not allowed to drive between 8 pm and 6 am. The driving curfew was a term of probation imposed after a conviction for Careless Driving (reduced from a prior drink-drive charge). Not wanting to get a ticket, he decided he’d take a chance and move the car to a legal parking spot nearby. While he was driving, police who happened by ran his plate and saw that the registered owner was not supposed to be on the road at that time. Police also discovered that the registered owner was subject to further probation conditions, including that he not have any alcohol in his body while driving. Unfortunately, Mr. T. had just consumed a few beers.

Police signalled Mr. T. to pull over. Police asked, “Are you D. T.?” Mr. T. did not respond. Police immediately arrested him for “failing to identify” himself.

Police verified his identity by his driver’s licence. Within minutes of the arrest, police detected the odor of alcohol on his breath. “Have you had anything to drink tonight?” they asked. “A couple,” he replied. Police then demanded that he provide a breath sample into a roadside screening device. Mr. T. refused.

Having verified his identity, police told him that he was under arrest for Fail to Comply with Probation and Refuse Breath Sample.

Rather than release Mr. T. from the scene, police took him back to the station where they strip searched him. Several hours later he was released from the station.

At trial, I brought an application to have the charges stayed for violations of his Charter rights.

The arrest was unlawful and violated his section 9 Charter right to be free from arbitrary detention. While police may arrest a person for failing to identify, they may do so only if they see the person commit an offence. Since police did not know if the driver was Mr. T. they lacked reasonable grounds at the time of arrest to believe he had committed an offence (driving in breach of his probation).

After he refused to provide a breath sample, his further detention was also arbitrary because there were no grounds to justify it. Police, under section 497(1.1) of the Criminal Code, could only detain him if they needed to establish his identity, secure or preserve evidence relating to the offence, prevent the continuation or repetition of the offence or the commission of another offence, or ensure the safety and security of any victim of or witness to the offence. None of these grounds applied.

The strip search was unlawful, and thus breached his Charter right to be free from unreasonable search as there were no reasonable grounds to justify it. Had he been held for a bail hearing, necessitating contact with other prisoners, a strip search would have been acceptable (see the Supreme Court of Canada ruling in R. v. Golden.)

RESULT: On the morning of trial, the Crown withdrew the criminal charge of Refuse Breath Sample. In return, Mr. T. pled guilty to the Provincial Offences Act charge of breaching his probation (not a criminal offence). He was sentenced to six months of further probation with the statutory conditions only: not commit any offences, attend court if and when required to do so, and notify the court of any change in address.

Impaired Driving, Drive Over 80

R. v D.B.
October 2010

– Charge Withdrawn

ISSUES: Right to counsel of choice: Charter of Rights and Freedoms, section 10(b)

After a night of celebrating his graduation from flight school, Mr. B. decided to drive a friend back to his hotel at about 3 am. Police stopped him for speeding and crossing the centre line. Police notes said his eyes were glassy and that his speech was slightly slurred. He was arrested for impaired driving.

Mr. B. registered breath readings of 210 mg of alcohol in 100 ml of blood. A drinking driving conviction would end his anticipated career as a pilot.

Upon arrest Mr. B. requested to speak to his uncle who was an immigration lawyer. At the station, before the breath tests, he repeated his request. Police asked him for the uncle’s number. He said it was stored on his cell phone. Instead of getting his phone which had been left in his car, police responded: “I’m not sure how much help your uncle will be able to help with this kind of legal problem since he is an immigration lawyer. If you wish, you can speak to duty counsel. Do you want to speak to duty counsel?” Mr. B. agreed to do so.

Prior to trial, I brought a motion arguing that police had breached Mr. B.’s Charter right to counsel of choice by not taking reasonable steps to contact his uncle. The Crown denied the breach.

RESULT: Moments before the trial commenced, the prosecutor agreed to take a plea to Careless Driving for a fine and six-month licence suspension given the strength of the Charter argument and the weak evidence of impairment.

Impaired – Care or Control, Refuse Sample

R. v. M.M.
May 12, 2010

– Charges Quashed and Dismissed

ISSUES: Improper procedure in laying amended charge; exclusion of compelled roadside statement (Section 7 of the Charter)

Mr. M. was coming home from a bar when he drove off the highway into a ditch. Passersby who did not witness the accident but saw the car on its roof called police. When police arrived Mr. M. was in the back of an ambulance. Police asked him if he was the driver and he said yes. Reeking of alcohol, he was arrested for impaired care or control. At the police station, after 17 unsuccessful attempts to provide a breath sample, police concluded he was faking and charged him with Refuse Breath Sample. He also was charged with Impaired – Care or Control.

Prior to trial, the Crown substituted a charge of Impaired Driving for Impaired Care or Control by filing a new charging document with the court.

When the trial commenced, I argued that the Impaired Driving charge should be quashed because contrary to the requirements of the Criminal Code no notice had issued requiring him to face that charge. The court agreed. (This argument, rejected in 2013 in a different matter by the Ontario Court of Appeal, is no longer available. See R. v. Ladouceur)

I had filed an affidavit from Mr. M. in which he said he understood that he was required to identify himself as the driver because he had been in an accident (the Highway Traffic Act requires drivers to provide police with information needed to complete an accident report). The court found that since the statement was statutorily compelled, it could not be used by the police to form grounds for the breath demand. (See R. v. Soules)

RESULT: The Refuse Sample charge was dismissed after the court accepted my argument that without Mr. M.’s admission, police did not have reasonable grounds to believe that he was the driver. Without reasonable grounds, the breath demand was unlawful and Mr. M. was not obliged to comply.

Drive Over 80

R. v P.M.
April 2010

– Charge Stayed

ISSUE: Breach of right to trial within a reasonable time (Section 11(b) of the Charter)

Mr. M. was stopped at a RIDE stop and arrested after failing a roadside screening test. He was charged with Drive Over 80 after breath tests at the police station produced results of 140 mgs in 100 ml of blood.

I promptly requested the Crown to disclose the maintenance and calibration records for the Intoxilyzer breath instrument used in Mr. M.’s tests. However, these were not disclosed until the day before the trial. The trial started, but part way through my cross-examination of the breath technician (officer who conducts the tests), I asked for an adjournment in order to consult my toxicologist about the records I had just received as they were relevant to questions I intended to ask the breath technician. Although the Crown did not concede the records were relevant to determining whether the Intoxilyzer was functioning properly, the court granted the adjournment.

When the trial resumed five months later, I asked the court to stay the charge because it was taking too long to finish the case.

RESULT: The court rejected the Crown’s argument that since it had never conceded the relevance of the records, it should not be penalized for the delay occasioned by the time needed for their review by my expert. The charge was stayed.

Over 80 – Impaired/Care or Control

R. v K.B.
January 2010

– Charges Dismissed

ISSUES: Identity of the driver

Ms. B. called me at the office on a Sunday morning. She had just been arrested for Impaired Driving and Drive Over 80 mg after her vehicle had rear-ended another car at a stop light. She registered breath readings of 200 mg in 100 ml of blood. She insisted that though she was in the car, someone else had been driving. We immediately went to the accident scene to try and find evidence to support her claim. There was none.

I called the arresting officer that day and said I was investigating the possibility that someone else had been driving. He told me that she had admitted to being the driver.

At trial I applied to exclude her admission from the evidence on the grounds that she felt obligated by law to identify herself as the driver because she had been involved in an accident. To admit this compelled statement would violate her right under s. 7 of the Charter (see the decision of the Supreme Court of Canada in R. v. White. The Crown agreed not to rely on the statement.

The first witness, Mr. C., was the driver of the vehicle that had been struck. He testified that after he was hit he immediately turned around and saw Ms. B. in the driver’s seat and that there was no one else in the vehicle. As she was unsteady on her feet, he called police.

He told the Crown he was “100 per cent” certain that she was the driver. He left the scene after agreeing to email police a statement later. The statement he emailed to police, which had been disclosed to me prior to trial, used the same expression: “100 per cent certain.”

In cross-examination, he testified that the day after the accident, the arresting officer telephoned him and asked him if he was “100 per cent certain” that Ms. B. was the driver. Mr. C. said that he was.

Ms. B. testified that she had been at a bar near her residence, that another patron (“Mark”), noticing she was drunk, had offered to drive her home and that she had accepted. However, she said he was unfamiliar with standard transmission and rear-ended Mr. C. She said that Mark departed immediately and was gone when Mr. C. exited his car. She added that while waiting for police to arrive, Mark returned with a coffee for her and gave her his green jacket for warmth. Indeed, the police booking DVD showed her wearing a green jacket.

The trial was adjourned and I recalled Mr. C. to the stand. He said that he had refreshed his memory before testifying by reviewing the statement he had emailed to police. He said he had it with him and produced it. It did not contain the expression “100 per cent certain.” The arresting officer scrambled to find the printout of the email he had received from the witness. It contained the term “100 per cent certain.” Mr. C. had revised his initial email after printing a copy for himself and before sending it to police.

RESULT: Ms. B.’s evidence and the revelation that Mr. C. had changed his statement to police after the investigating officer had conveyed his concerns about the driver’s identity raised a reasonable doubt as to whether she had been the driver. The court dismissed the charges.

Impaired Driving, Drive Over 80

R. v. N.R.
November 2009

– Charges Stayed

ISSUES: Emails showing possible police collusion purged (Section 7 Charter right to make full answer and defence)

A recent university graduate, Ms. R. was charged with Impaired Driving and Drive Over 80 mg. She registered breath readings of 200 mg in 100 ml of blood. A criminal record would derail her career. She appeared to have no defence.

At the start of the trial, an order excluding witnesses was made prohibiting witnesses from discussing their evidence with one another.

Two officers were on scene when she was stopped for investigation of erratic driving at about 1 am. The first officer testified that it took her “40 seconds” to retrieve her licence from her wallet. This was not in the officer’s notes. Although the arrest had occurred a year earlier, he said he remembered this.

The second officer also said it took Ms. R. “40 seconds” to find her licence. This was not in her notes either. I asked the officer if she knew that the first officer had given the same evidence. She said she did not. She denied discussing her evidence with the first officer.

The trial was adjourned so that the first officer could be questioned further about the coincidence in the evidence. Just before the proceedings resumed, the officer told the Crown he knew there was an issue regarding the “40 seconds.” The Crown disclosed this to me.

I cross-examined the officer and he denied discussing the case with the second officer after her testimony. If they had both testified that it took “40 seconds,” he said, it was because that is actually what they both had observed. He denied any collusion. At that point, I was granted an adjournment and in the interim applied to the Crown for disclosure of all emails exchanged between the two officers. The police said that they had been “purged.”

I brought a motion for a stay arguing that the destruction of the emails breached her Charter right to make full answer and defence by preventing her from determining whether the officers had colluded.

RESULT: Declining to fight the motion, the Crown stayed the charges.