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Guilty of a Lesser Offence – No Criminal Record

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City: Oshawa, Ontario
Our Client: Mr. T.
Complainant: Durham Regional Police Service
Charge(s): Operate Motor Vehicle with More than 80mg of Alcohol in 100ml of Blood.
Trial Lawyer: Jay Nadarajah, B.A., J.D.

Background: Counsellor Nadarajah centred her focus on three main charter arguments: (i) that the demand for Mr. T. to provide a sample into an approved screening device did not follow forthwith from the officer forming the suspicion that Mr. T. had alcohol in his body and thus breached sections eight and nine of the Canadian Charter of Rights and Freedoms. (ii) that the arresting officer’s failure to establish a firm time of Mr. T.’s last driving rendered both his ASD and Intoxilyzer demands invalid, thus also breaching both sections eight and nine of the Charter. (iii) that Mr. T. was not provided with his rights to counsel or the opportunity to exercise them prior to complying with the ASD demand when circumstances dictated that he should have been, amounting to a breach of section 10(b) of the Charter.

The court also undertook a review of whether the overall delay in the case between the alleged time of driving and the ultimate Intoxilyzer test was such as to deprive the Crown of the ability to rely on the presumption of identity that is in section 258(1)(c)(2) of the Criminal Code.

Dealing with the ‘forthwith’ issue, the learned Justice indicated that a 23-minute delay in getting an ASD to the scene where the ASD is located only two minutes away, is in fact a breach of Mr. T.’s Charter rights. The arresting officer failed to intimate Mr. T.’s rights to counsel during this 23-minute delay and as such, while Mr. T. waited for 23 minutes inside the police cruiser (with his cellphone). Mr. T., had he been cautioned properly, could have been seeking legal counsel during this time. On the matter of whether the Intoxilyzer testing was carried out “as soon as practicable,” there was the abovementioned 23-minute delay in the police cruiser, there was also a further 17-minute delay while awaiting instruction on which division to attend. The learned Justice found that both the 23-minute and 17-minute periods of delay were inordinate in the circumstances and could have been completed in approximately half the time.

Where there is a Charter application in a criminal matter, the learned Justice must apply the facts of the case to the tripartite test in Regina v Grant (2009) S. C. R. 32, which effectively determines (i) the seriousness of the Charter infringing state conduct, (ii) the impact of the breach on the Charter protected interests of the accused, and (iii) society’s interest in seeing these matters tried on their merits. The learned Justice applied the facts, and on the basis of the violations of section 8 (everyone has the right to be secure against unreasonable search or seizure), section 9 (everyone has the right not to be arbitrarily detained or imprisoned), and section 10(b) (everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right), the Charter application to exclude all the breath results was allowed.  Consequently, there was no other evidence of Mr. T.’s blood alcohol level and the charge was then dismissed.

Goal: Client was seeking to avoid a Criminal conviction by pleading to a Highway Traffic Act offence.

Strategy: Counsellor Nadarajah sought to reduce the criminal conviction by addressing a number of Canadian Charter of Rights and Freedoms violations. Specifically, Counsellor Nadarajah pointed the judge to violations relating to Mr. T.’s rights to counsel, the delay in administering a roadside breath test, and missing copy.

Verdict:  As in the goal, the criminal conviction was avoided and our client pled to the provincial offence of fail to yield.