City: Whitby, Ontario
Our Client: Mr. H.
Complainant: Durham Regional Police Service
Charge(s): Care or Control of a Motor Vehicle While Impaired by Alcohol & Care or Control of a Motor Vehicle with More than 80mg of Alcohol in 100ml of Blood
Lawyer: Jay Nadarajah
Date of Acquittal: January 6, 2016
Background:On a February night, shortly after midnight, a woman and her husband were driving home when they noticed a vehicle driving erratically. This vehicle was weaving in its own lane, straddling lanes and hitting the curb. The vehicle appeared to have been in an accident as there was damage to the front left tire and fender, and it was smoking and smelled like burnt rubber. As they watched, the vehicle turned into a mall parking lot. The couple were able to record the licence plate number and the husband called 9-1-1. Police arrived minutes later and found the vehicle with the matching licence plate. There was no tire left on the front driver’s side rim. Mr. H. Was found sitting in the driver’s seat with his head slumped to one side. He appeared to be sleeping or passed out. The keys were in the ignition and the vehicle was not running but the ignition was switched on. The officer spoke to Mr. H. and asked him to exit the vehicle. Once outside, the officer noted an odour of alcohol on Mr. H.’s breath. Mr. H.’s pupils were enlarged. He swayed from side to side, despite standing on dry, flat asphalt. Mr. H. told the officer that he had not consumed any alcohol or drugs. Mr. H. was at that point arrested and charged with “Impaired.” This would be his second drinking and driving offence in close to 10 years. He was transported to the police station for breath tests where he “blew” well over twice the legal limit and was also charged with “Over 80.” At trial Mr. H. testified that he had gone to a party where he had consumed alcohol. As he did not want to drive in that condition, he enlisted some people he met at the party to drive him and his vehicle to the mall from where he could get a taxi home. He did not know these people. He sat in the back seat during the drive to the mall. The woman who drove his car called him a cab when she dropped him off, and as it was cold outside, Mr. H. waited in his vehicle for it to arrive. While he waited he moved from the back seat to the front seat because there was insufficient leg room in the back seat. He testified that he had had no intention of driving the car that night. However, Mr. H.’s evidence was different from what he had told the breath technician officer at the police station that February night. Between the breath tests he had said that he was the driver, that he was the lone occupant of the car and that he had been drinking alone and at home. He did not mention being at a party or the group of unknown individuals driving him from the party to the mall and then calling him a cab.
Goal: Mr. H. needed to avoid all the repercussions of the criminal record that would result from conviction of the Impaired and Over 80 offences. As he had a prior drinking and driving conviction, it was important, should he be convicted again, that the new conviction should occur at least 10 years from the previous one, otherwise he would be facing a mandatory 30 day jail sentence. As he drove for a living, he was also very concerned about the loss of his driver’s licence (3 year suspension and 3 years of Ignition Interlock) that would occur were he convicted of these offences.
Strategy: Our strategy was that we would raise a Charter challenge, arguing that several of Mr. H.’s Charter rights had been breached by the police. But, we knew that the case ultimately would turn on the question of whether Mr. H., at the time in question, had “care or control.” We had to overcome the presumption under section 258(1)(a) of the Criminal Code which provides that, if it is proven that an accused was in the driver’s seat, the “accused shall be deemed to have had the care or control of the vehicle unless the accused establishes that the accused did not occupy that seat . . . for the purpose of setting the vehicle . . . in motion.” Accordingly, we would build the evidentiary basis of Mr. H’s position that although he was in the driver’s seat of his vehicle, he not only had not driven drunk, he had had absolutely no intention to do so. As a precaution, we also made sure that the trial was set on a date such that, should he be convicted, the conviction would fall outside the 10 year period so as to avoid the mandatory 30 day jail sentence and the greatly increased licence suspension. By careful scheduling we were able to achieve this necessary delay.
Verdict: The issue came down to whether the judge would believe Mr. H.’s evidence despite the discrepancies between Mr. H.’s statement to the police and his evidence in court. The way the evidence was presented and the arguments about the evidence that we made on Mr. H.’s behalf, led the judge to believe Mr. H. and he was was therefore acquitted of both charges.