City: Ajax, Ontario
Our Client: Mr. J.G.
Complainant: Durham Regional Police Service
Charge(s): Operation of Motor Vehicle with More than 80mg of Alcohol in 100ml of Blood
Lawyer: L.M. Landry
Background: Late one winter afternoon, not long before Christmas, police were called to investigate a report of a suspected impaired driver driving a pickup truck. The officer spotted the pickup and after following it for a short distance he activated his roof lights and siren. The pickup turned off the road and drove approximately 40 metres up a driveway before coming to a stop. The officer conducted a brief investigation which included a search of the truck, in the course of which he found an open bottle of alcohol within arm’s reach of the driver’s seat. The officer then made a demand to the driver, Mr. J.G., that he give a breath sample into the roadside breath alcohol screening device and called for the device to be brought from the station. When the device arrived, after a lapse of 18 minutes, Mr. J.G. gave his breath sample and registered a “fail.” At that point, the officer arrested him for driving with excess blood alcohol, i.e. “Over 80.” Mr. J.G. was taken back to the station where he provided two more breath samples into the breath machine there and registered two readings of over 120 milligrams of alcohol in 100 milligrams of his blood – well above the legal limit of 80.
Goal: Mr. J.G. was charged with “Over 80,” which is a criminal offence. He had a prior drinking and driving conviction which meant that if he pleaded guilty or lost at trial, he was looking at a minimum of 30 days jail, a three-year licence suspension, a further three years after that of driving with the ignition Interlock device, a mandatory alcohol education/treatment program, a fine and a mandatory victim surcharge. The goal was to fight and beat this charge.
Strategy: On the surface, this case looked like a routine arrest with clear evidence of the offence. Further complicating the trial for us was the fact that Mr. J.G. did not want to take the stand to testify in his own defence. Thus, we would attempt to dismantle the Crown’s case against Mr. J.G. solely through our cross-examination of the police officer during which we would demonstrate that there had been breaches of Mr. J.G.’s Charter rights by the police. We would contend that there had been violations of Mr. T.’s Charter rights under s. 8 (unreasonable search and seizure) and s. 10(b) (right to counsel). We would then argue that the breaches were serious enough to warrant the exclusion of the breath sample evidence – without which there could be no conviction for the offence of “Over 80.”
Verdict: The judge found that we had successfully established that there had been infringements of Mr. J.G.’s s. 8 and s. 10(b) Charter rights by the police, and further, that these breaches of Mr. J.G.’s Charter rights were serious enough to justify the exclusion of the breath machine readings, even though doing so would leave the Crown with no evidence against Mr. J.G. Accordingly, Mr. J.G. was acquitted.