Police Constable B arrested Mr. N for DUI based on a failing a roadside breath test the officer demanded after smelling alcohol on his breath while citing him for speeding. While a breathalyzer reading at the police station recorded blood alcohol concentrations of 180 milligrams of alcohol in 100 millilitres of blood, Mr. N’s Mass Tsang lawyer filed a Charter application that alleged a violation of Mr. N’s right to promptly be informed of the right to consult with a lawyer once arrested. This application became the sole focus of the defence’s submissions at the end of the trial.
In his testimony, Constable B attributed the six-minute delay in advising Mr. N of his right to counsul upon arrest to his need to secure the scene. However, the Mass Tsang lawyer used the officer’s testimony and video feed from his body-worn camera to refute this claim. While Constable B claimed it took over a minute to search Mr. N, the video proved the search only took 10 seconds. The video further showed that when Constable B returned to Mr. N’s car to secure the approved screening device and recover some personal items requested by Mr. N, he spent significant time searching the vehicle. Last, during cross-examination, Constable B admitted that he believed he had seven minutes to advise a suspect of his rights to consult based on what his staff sergeant told him.
While Judge C noted in his decision that the Crown had proved the DUI offence beyond a reasonable doubt, he determined that Constable B—an “experienced officer”—failed to operate in good faith. Rather, the judge deemed that the officer violated Mr. N’s Charter Rights through a combination of “unreasonable error and ignorance of the scope of the police’s authority,” which was “negligent if not willful.” In his conclusion justifying Mr. N’s acquittal, Judge C said, “I believe the administration of justice is best served by making it clear in this case that failing to comply with the s. 10(b) Charter informational requirements will be taken seriously by the courts.”
Ms. L was charged with over 80-plus DUI based on blood alcohol concentrations of between 107 and 124 milligrams of alcohol in 100 millilitres of blood. Police initially suspected that Ms. L might have been impaired when they witnessed her parking her car. When she later returned to her car, the officer noticed further signs of impairment, so he stopped her after she turned on the car’s engine and demanded a roadside test, which she failed.
Recognizing some weaknesses in the Crown’s case and knowing that the court had a significant backlog of DUI cases on its docket due to the Covid-19 pandemic, Mass Tsang’s lawyer decided to pursue reduced charges. In negotiations with the Crown, our lawyer pointed out that police should have investigated Ms. L for DUI when they first suspected her of being impaired. While Ms. L may not have failed an earlier roadside test if so demanded, it would have served as a warning that could have made her think twice about driving any more that night.
At trial, the assistant Crown attorney asked the judge to convict Ms. L on careless driving charges with a $1,000 fine, a sentence our attorney agreed with. Ms. L apologized to the court, saying, “I truly believe I have worked very hard to better myself since that day and, if given the opportunity for a second chance, I would be extremely grateful.”
Judge P agreed that the merits of the case met the parameters for careless driving and imposed the recommended sentence, which allowed Ms. L to avoid a criminal conviction. In closing, the judge warned Ms. L and the rest of the court about the dangers of impaired driving. “The reality is that anytime somebody gets behind the wheel of a motor vehicle with alcohol in their system, the prospect for serious issues—issues causing bodily harm or even death—are real.”
Mr. J was charged with impaired driving based on blood alcohol concentrations exceeding the legal limit. Mr. J was initially arrested after police pulled him over for erratic driving and subsequently registered a “fail” reading on an approved roadside screening device. After being granted the right to consult by telephone with his “lawyer,” Mr. J provided two breathalyzer samples at the police station which were both over the legal limit.
During the trial, Mr. J’s defence team sought to exclude the breath samples based on police failure to provide Mr. J with the constitutional right to consult with legal counsel. The defence argued that the Charter Rights violations were based on:
Trial testimony from the paralegal and police supported the defence’s argument. The paralegal, who speaks Tamil, testified that he advised Mr. J that he was not a lawyer and did not provide legal advice during their consultation. The police officer responsible for facilitating the “legal” consultation admitted that he knew the paralegal was not a lawyer but did not advise Mr. J of this fact. He and other officers further stated that they believed the right to counsel could be satisfied by letting a defendant speak to whomever they chose.
In excluding the breathalyzer readings and dismissing the DUI charges, Justice B expressed concerns about the “systemic ignorance” displayed by police about what constitutes “consultation with counsel.” The judge further noted that “[t]his issue is not new,” and it’s been addressed by the courts since at least 2008, which in his opinion, “further aggravates the police conduct.”
Ms. R was charged with operation via care or control DUI after police were notified about a potentially impaired driver parked at a conservation area. Based on finding Ms. R in the driver’s seat and a strong odour of alcohol, the responding officer requested an approved screening device test, which she failed. Subsequent breathalyzer testing at the police station registered blood alcohol concentrations (BACs) well above the legal limit.
During the trial, the Crown successfully proved that Ms. R had been drinking, had a BAC well above the legal limit, and was in the driver’s seat, which engages the legal presumption of operation under the Criminal Code. Ms. R also admitted in her testimony that she had turned the vehicle’s ignition on, though only to charge her cellphone.
The defence argued that while Ms. R was in a position in which she could have driven, she did not occupy the driver’s seat for the purposes of setting the vehicle in motion. Instead, Ms. R had been communicating with her aunt by text message to secure a ride home. While slang used in the text messaging made it difficult to interpret the request for a drive, and the aunt could not attend court as a witness, the defence also called into evidence the officer’s patrol car video camera. This showed the arrival of Ms. R’s aunt at the scene immediately after the arrest.
Justice K accepted the defence’s argument based on the text message evidence showing that Ms. R had been waiting for more than an hour for the arrival of her aunt to drive her home. This, the judge agreed, proved that Ms. R had no intention of driving. Combined with the car’s safe position in the parking lot, this showed that Ms. R posed no realistic risk of danger to other people. Finding that the Crown failed to prove the charge beyond a reasonable doubt, Justice K acquitted Ms. R on the care or control DUI charge.
Ms. K was charged with impaired driving based on blood alcohol concentrations more than twice the legal limit. She was initially arrested after police responded to a call about a possible impaired driver in a car that had jumped the curb. After detecting alcohol on her breath, the responding police officer requested that Officer B bring an approved screening device (ASD) to the scene. The subsequent screening resulted in a “fail” reading, and Ms. K was arrested and transported to the police station for a breathalyzer test, with those results forming the basis for the over .80 BAC DUI charges.
During the trial, Ms. K’s defence team sought the exclusion of the breath samples based on three Charter Rights violations:
Trial testimony from the arresting officer and Officer B proved that it took almost 30 minutes for the ASD to arrive and that Ms. K was not properly advised of the reason for her detention at that time. It also established that even though Ms. K had requested to talk to her own attorney, Officer B put her in contact with duty counsel. Finally, Sgt. M testified that Ms. K was kept in custody due to the high BAC readings and that the duty desk never informed him that Ms. K had a sober driver waiting at the station to drive her home.
In dismissing the charges, Justice S completely agreed with the defence. The justice ruled that the detention before the arrival of the ASD was clearly a Charter violation and that Officer B did not just display “a causal approach to the right of counsel,” but “complete indifference.” And last, Justice S found that there “was no exigent, legitimate, or justifiable reason” for Ms. K to have been detained for so long. In conclusion, Justice S found that “the seriousness of the multiple Charter Rights breaches favours exclusion of evidence.”
Mr. M was charged with impaired operation by drug in November 2018 after he rear-ended a stopped motor vehicle at an intersection. Upon exiting his vehicle, witnesses noted that Mr. M had trouble walking and was acting odd, information they conveyed to police upon their arrival. After interviewing Mr. M, Officer P arrested him for impaired driving and made a demand that he submit to an examination by a drug recognition expert (DRE). The DRE determined that Mr. M was likely impaired by a depressant drug and made a demand for a urine sample, which was provided.
Prior to the scheduled June 7, 2021 trial date, the defence counsel made an application to stay the proceedings due to the court’s inability to provide Mr. M a speedy trial. The total trial delay was 31 months and one day, far longer than the 18 months mandated by Ontario Court precedence. However, the pandemic represented an “exceptional circumstance” that justified 349 days of the delay, which put the net delay at 19 months and 16 days. Additionally, the Crown argued that the defence was responsible for 58 days of this delay, which would bring the net delay below the 18-month threshold. The case then ultimately hinged on three different delay periods that the Crown argued were caused by the defence
In staying the proceedings, Judge Q agreed with the defence that two of the disputed delay periods were actually caused by the Crown rather the defence. For the first disputed period, the judge ruled that the Crown caused the 22-day delay in scheduling a pre-trial conference by failing to provide requested disclosure. For the second disputed period, the judge ruled that the defence caused a 22-day delay in scheduling another pre-trial conference; however, also noted that it was obvious—and “ironic”—that the Crown was equally responsible for that delay. Thus, Judge Q ruled that only 14 days of delay were caused by the defence, leaving an “unreasonable” 19 months and two days of total net delay. This decision that was not challenged by the Crown.
Mr. B was charged with impaired driving and for intentionally failing to provide a suitable breath sample for analysis. He was arrested during a traffic stop after the arresting officer detected alcohol on his breath. The officer had also determined that bloodshot eyes and slow movements were signs of impairment and Mr. B admitted to having consumed a drink an hour before being pulled. Mr. B was charged with failing to provide a breath sample at the police station after failing to produce sufficient air flow during seven attempts.
On the impaired charges, defence argued that there was no real evidence of impaired driving beyond Mr. B’s admission to having had one drink. Defence further argued that any potential impairment in this case could have been caused by a head injury that Mr. B had sustained the night before, combined with a subsequent lack of sleep due to the injury. I their testimony, arresting officers admitted that Mr. B had a fresh head wound and was displaying signs of extreme fatigue when arrested.
With regard to the breath sample, Mr. B’s defence relied on seven minutes of police video feed to show that police never provided Mr. B with clear instructions on how to provide a proper sample. Defence also highlighted how the police technician halted several efforts even though the machine itself was signalling that Mr. B was producing sufficient air flow.
Justice K accepted the “clear and convincing evidence” that Mr. B was suffering from a head injury and fatigue when stopped by the police. With limited evidence regarding alcohol impairment, he ruled that he could not be sure that any potential impairment was caused by alcohol and thus acquitted Mr. B of this charge. Based on the failure to provide clear instructions and on the premature halting of what would have been successful breath samples, Jude K acquitted Mr. B on the charge of intentionally failing to provide a breath sample.
Mr. M was charged with operation of a motor vehicle while impaired based on breathalyzer readings above the .80 mg legal threshold. Police arrested Mr. M when he failed a road-side screening after being pulled over as part of a purported RIDE program vehicle stop. After being offered the right to consult with the counsel upon arrival at the police station, Mr. M provided breathalyzer samples that proved over the limit.
Two key Charter rights issues that the defence raised during trial were whether Mr. M’s right to “consult counsel of choice” had been denied and whether misleading testimony from the arresting officer, Constable P, compromised his right to a fair trial. On the first issue, testimony from witnesses established that when offered the right to consult with counsel, Mr. M had consulted with a friend who happened to be a paralegal rather than a lawyer.
On the latter point, the defence argued that Constable P’s testimony regarding the RIDE program traffic stop and whether or not Mr. M had consulted with a lawyer were so misleading that it breached the defendant’s right to a fair trial. During testimony and cross examination Constable P gave contradictory statements about numerous elements of the traffic stop and provided misleading testimony about whether he believed Mr. M’s “counsel of choice” was actually a lawyer or just his paralegal friend.
Justice D denied the Charter rights challenge regarding consulting with counsel because Mr. M had expressed satisfaction with the legal advice given prior to the administration of the breathalyzer. However, Justice D ruled that Mr. M’s right to a fair trial was breached by the misleading testimony, noting that “few actions more directly undermine the [integrity and truth-seeking of the justice system] than misleading testimony in court from persons in authority.” As such, the breathalyzer evidence was excluded as evidence and Mr. M acquitted of the charges.
