City: Sarnia, ON
Our Client: Mr. M.
Complainant: Ontario Provincial Police
Charge(s): Operation of Motor Vehicle While Impaired by Alcohol & Operate Motor Vehicle with More than 80mg of Alcohol in 100ml of Blood.
Trial Lawyer: Jay Nadarajah, B.A., J.D.
Background: Two civilian witnesses came upon Mr. M.’s vehicle immobilized in a ditch with two wheels off the ground. They stopped to assist and believed that Mr. M., who was in the driver’s seat, was intoxicated. They called 911. The police officer who arrived at the scene arrested Mr. M. for Impaired Operation of that vehicle. But in the evidence there was no reference at all to the officer turning her mind to the questions of the timing of the driving and the timing of the accident or even to the issue of whether Mr. M. was in care or control of the vehicle. Mr. M. was then transported to the nearest OPP detachment in order for him to provide a breath sample. While there he exercised his right to counsel and called a paralegal. While he was consulting by telephone with the paralegal, the officer interrupted to make sure that he was really talking to “counsel.” A little later, the breath machine officer interrupted Mr. M. and told him that that was it, his call was done, and made Mr. M. hang up immediately in order to take him to give a breath sample. This officer did not give Mr. M. any advance warning that his call was going to be cut off and nor did he give him to time to “wrap up” his consultation with his counsel. He was then taken to give a breath sample.
Goal: As Mr. M. was charged with both “Impaired” and “Over 80,” he needed acquittals on both charges to avoid a criminal record.
Strategy: For the Impaired we needed to show that the Crown could not prove the time of driving nor, given the immobilized state of the vehicle, that Mr. M. had had care or control of the vehicle. An officer has to have reasonable grounds to believe that a person was operating a motor vehicle while Impaired or Over 80 within the preceding three hours in order to demand that the person give a breath sample. We planned to show that the officer did not have the required reasonable and probable grounds. For the Over 80 we had 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 (without which there could be no conviction of the offence of over 80).
We planned to show, through cross-examination, the inconsistencies in the accounts of the two civilian witnesses as to the time of driving. As well, we wanted to drive home the point that the officer did not turn her mind to the issues of the “time of driving” and “care or control” and did not even take steps to investigate (for example by feeling if the hood was still warm). Furthermore, we needed to have the blood alcohol concentration readings from the breath machine excluded. To achieve this, we would raise s.10(b) of the Charter – the right to counsel – and argue that Mr. M. was denied this right when the officers interrupted and then cut short his phone call to counsel. Under s. 24(2) of the Charter, evidence obtained by the infringement of a Charter right, in certain circumstances, could be excluded.
Verdict: The judge found that there was a lack of evidence about the timing of any alleged driving, or of care or control, as the officer had not turned her attention to these issues and as the two civilian witnesses testified as to different times an hour apart. The judge also found a s.10(b) breach when the second officer abruptly cut off Mr. M.’s call to his counsel. In terms of the s. 24(2) analysis, the judge agreed with us that the s.10(b) Charter breach was serious enough to warrant exclusion of the breath sample evidence. Mr. M. was acquitted on both charges.