City: Ajax, ON
Our Client: Mr. T.
Complainant: Durham Regional Police Service
Charge(s): Operation of Motor Vehicle with More than 80mg of Alcohol in 100ml of Blood (Criminal Code offence) & Failing to Yield (Highway Traffic Act offence)
Trial Lawyer: Jay Nadarajah, B.A., J.D.
Background: A pregnant woman was driving down an avenue on a summer afternoon when she was struck on the driver’s side of her vehicle as she entered an intersection. Mr. T. was identified as the driver of the vehicle that hit her vehicle. The radio call that went out to police was a priority two call, which is understood to mean that the police should respond without undue delay. Police arrived on the scene some minutes afterwards and Mr. T. was placed in the back of a cruiser. The first officer to arrive was in the last hour of his shift and he accepted the offer of another officer to take over the investigation. The second officer attended Mr. T. in the cruiser. The officer formed a suspicion that Mr. T. had alcohol in his body and told him that he would require him to give a screening sample of his breath. The officer then went off to find a roadside breath screening device. Eventually, the officer determined that the local hospital had such a device. Off he went to fetch it. While he was gone, Mr. T. remained sitting alone in the cruiser. The first officer apparently had other things to attend to. When the officer returned with the device 25 minutes later, he made the demand that Mr. T. provide a breath sample. Mr. T. provided a sample, registered a “fail” and was arrested for “Over 80” – the offence of driving with more than 80 mg of alcohol in 100 ml of blood. He was then advised of his rights to counsel and cautioned. He was moved to the second officer’s cruiser in order to be transported to the police station for a second breath sample, this one to be given into the more accurate “Intoxilyzer” breath machine at the station. However, no Intoxilyzer technician was available at that time. Eventually, he was taken to a police station where he briefly got to speak with Duty Counsel, completed a questionnaire with the Intoxilyzer technician and finally gave his breath sample. He “blew” over 130 – well above the legal limit of 80.
Goal: Mr. T. was charged with “Over 80.” With the accident being an aggravating factor, his sentence if convicted of this criminal offence was going to be severe and expensive. Besides the criminal record and driver’s licence suspension, there would be the mandatory fine which was very likely to be considerably higher than the minimum fine of $1000, and on top of that the additional 30% victim fine surcharge. And, not only would his insurance premiums increase sharply if he ever wanted to drive again after his suspension, his current insurance would not cover the accident as the policy would be voided by the drunk driving conviction. Mr. T. needed to have this charge dismissed.
Strategy: This was a complicated and technical case. We had to show that there had been breaches of Mr. T.’s Charter rights by the police that were serious enough to warrant the exclusion of the breath sample evidence – without which there could be no conviction of the offence of “Over 80.” We would argue that there had been violations of Mr. T.’s Charter rights under s. 8 (unreasonable search and seizure) and s. 9 (arbitrary detention) because the demand and the taking of the screening sample were not carried out “forthwith” as the law requires, and under s. 10(b) (right to counsel), as during that period of delay Mr. T. should have been given the opportunity to call a lawyer. He was alone in the first cruiser; he had a cell phone. If the evidence of the roadside device registering a “fail” would be found to have been taken in breach of Mr. T.’s Charter rights, then that evidence could be excluded. Without that evidence, the officer would have had no justification to detain Mr. T. and to make the demand for the second breath sample to be given at the station, thus invalidating the evidence of the “Over 130” sample. Additionally, we would argue that there was also too much delay in getting the second breath sample. According to the Criminal Code, the Intoxilyzer sample at the station had to have been taken “as soon as practicable,” for the Crown to be able to rely on the presumptions that the Intoxilyzer readings represented Mr. T.’s blood alcohol content at the time of driving, or that Mr. T.’s blood alcohol content exceeded the permitted level at the time of driving.
Verdict: The judge agreed that the 25 minute delay was too long, infringing Mr. T.’s s. 8 and s. 9 Charter rights, and further, that during that 25 minute delay while the officer was getting the roadside breath screening device, Mr. T. should have been given the chance to exercise his right to counsel under s.10(b) of the Charter. The officer knew that Mr. T. had privacy and a cell phone while he was sitting in that first cruiser. The judge found that these Charter breaches were serious enough to justify the exclusion of the “fail” evidence and of the evidence of the subsequent Intoxilyzer “Over 130” readings. The judge also found that the further delays before Mr. T. was made to give the breath sample into the Intoxilyzer at the station meant that the “as soon as practicable” test was not made out, and thus the Crown could not rely on the presumptions. In sum, the judge found that there had been breaches of Mr. T.’s s. 8, s. 9 and s. 10(b) Charter rights that were serious enough to warrant the exclusion of all the breath sample evidence. Mr. T.’s criminal charge of “Over 80,” was dismissed. He only pleaded guilty to the relatively minor Highway Traffic Act offence of “failing to yield” – a non-criminal offence – and was fined $85.