Background: It was a slow night for Barrie police and Constable W. was doing what he sometimes did in those circumstances. He was parked outside a local night spot in the hope of catching impaired drivers as they were leaving. On that late September night he spotted a black Mercedes exiting the parking lot adjacent to the bar. He decided to follow. He followed the Mercedes onto the highway where he reported observing it twice touch the white shoulder line. That was enough to induce him to pull the Mercedes over. After he had done so, he asked the driver, Mr. M., to get out of the car. Mr. M. did but he left the parking brake off and the vehicle, which was a standard shift, began to roll backwards. He was able to hop back into the car and stop it before it could hit the police cruiser parked behind him. Mr. M. was then placed in the back of the cruiser during which time it was reported that he had an odour of alcohol on his breath. The roadside breath testing device was brought out and when Mr. M. blew into it he registered a “fail.” He was at that point charged with the offence of “Over 80” and then transported to the police station where he gave breath samples into the breath alcohol testing machine at the station and blew well over the legal limit of 80 mg of alcohol in 100 ml of blood.
Goal: To avoid conviction. The matter would proceed to trial.
Strategy: At trial we had to have the breath sample evidence excluded as without that evidence there could be no conviction of the offence. We would approach this problem in two ways. We would attempt to show that there had been breaches of Mr. M.’s Charter rights by the police that were serious enough to warrant the exclusion of the breath sample evidence. We would also challenge the reliability of the officer’s account, especially with respect to the timing of the taking of the breath samples. Section 258(1)(c) of the Criminal Code, is a provision that allows the Crown an evidentiary “shortcut” in proving what the blood alcohol level of an accused was at the time of driving. The Crown only gets to use this shortcut if certain conditions are met and one of them is that the breath sample must be taken “as soon as practicable after the time when the offence was alleged to have been committed.” That question of the timing of the taking of each sample from Mr. M., is what would be at issue in the trial. We would systematically dismantle the officer’s evidence in cross-examination to counter the Crown’s contention that this timing condition was met.
Verdict: We were successful in showing that the officer’s evidence about the timing of the taking of the breath samples was not reliable. Therefore the judge excluded the breath sample evidence (without which there could be no conviction). Mr. M. was acquitted.