City: Oshawa, Ontario
Our Client: Mr. Hd.
Complainant: Durham Regional Police Force
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 & Sexual Assault
Lawyer: Edmund Chan, B.A., J.D
Date of Acquittal: December 8, 2011
Background: Late one summer night, police received a call about a woman who had run into a Tim Horton’s saying that she had just been sexually assaulted by a man who was at that moment outside the store. Some of the Tim’s employees surrounded the man’s vehicle and prevented him from leaving. The man himself also called police, reporting that people were blocking his vehicle and he didn’t know why. But, when police arrived, he was no longer there. The police continued down the street, caught up with the man, Mr. Hd., who was driving slowly and pulled him over. The officer said to him: “Well, let’s hear about what happened at Tim Horton’s.” Mr. Hd. responded that nothing had happened and that he did not know what this was about. The officer continued to question him, asking Mr. Hd. if this was a woman he knew or a prostitute, if he had had a female in his car and if he had dropped off a prostitute. (That particular Tim Horton’s was in an area used by sex workers.) Mr. Hd. kept insisting he didn’t know what this was about and that there had been no female. The officers then thought that they smelled alcohol on Mr. Hd.’s breath and so demanded that he blow a sample into the roadside breath alcohol screening device. Mr. Hd. said that he did not drink but when he provided the sample, he registered a fail. The officer informed him that in his whole policing career, he had never before seen someone who does not drink fail a roadside screening test. At this point another officer approached and informed the first officer that there had been an allegation by a female that Mr. Hd. had grabbed her buttocks at the Tim’s. The officer asked Mr. Hd. if he at least knew the female as it would be “very creepy” if he had just walked up to a female and grabbed her buttocks. Again, Mr. Hd. insisted that he had no idea what any of this was about. Mr. Hd. was transported to provide samples into the breath machine at the police station. Those samples registered readings over the legal limit for blood alcohol. Mr. Hd. was charged with “Impaired,” “Over 80” and Sexual Assault.
Goal: Mr. Hd. needed to avoid all the repercussions of the criminal record that would result from conviction on the Impaired and Over 80 offences as well as from the Sexual Assault charge. As a master tradesman, having such a criminal record would likely ruin him professionally. And, although he had a pardon from a previous drinking and driving offence, a second offence would still result in a three year driver’s licence prohibition and a three year period of having to drive with the Interlock device on his vehicle’s ignition. Not being able to drive was just not an option in his line of work. The consequences of the Sexual Assault charge would be even worse: a jail sentence, the giving of a DNA sample and registration in the sexual offender registry.
Strategy: Our strategy would include raising a Charter challenge, arguing that several of Mr. Hd.’s Charter rights had been breached by the police. In terms of the Impaired charge, the strategy would be evidentiary. We would, through cross-examination, have to undermine the police officers’ evidence describing Mr. Hd.’s impairedness. With respect to the Over 80 charge, we would argue that there had been periods of delay with regards to the breath tests at the station. According to the Criminal Code, pursuant to an officer’s demand for a breath sample, the sample must be “taken as soon as practicable after the time when the offence was alleged to have been committed.” The Crown must prove beyond a reasonable doubt that the police took the breath sample reasonably promptly. For the Sexual Assault charge, the evidence of the female complainant would be challenged for inaccuracies and inconsistencies.
Verdict: We were able to: raise a reasonable doubt that the police evidence showed that Mr. Hd. was impaired by alcohol; prevent the Crown from proving beyond a reasonable doubt that the breath samples had been taken “as soon as practicable”; and, raise a reasonable doubt with respect to the Sexual Assault charge. Mr. Hd. was acquitted of all three charges.