City: Toronto, Ontario
Our Client: Mr. G.
Complainant: Toronto Police Service
Charge(s): Operation of Motor Vehicle with More than 80 mg of Alcohol in 100 ml of Blood
Lawyer: Edwin Boeve, B.Sc., M.Sc., J.D.
Background: It was shortly before Christmas in Toronto, when Mr. G. drove through a RIDE check point during the Festive Season RIDE campaign. The time was 1:25 in the morning. He had just left a downtown bar. When asked by the police officer if he had had anything to drink, he candidly replied that he had had a beer. When asked how long ago he said “About 20 minutes ago,” and as far as the officer could later recall, Mr. G. added that he literally had one when he left the bar. Based on this information the officer directed Mr. G. to pull over. At 1:32 the officer made the demand that Mr. G. give a sample into the roadside breath alcohol screening device, and when Mr. G. did so, he blew a “fail.” At this point, as the officer, when he later recounted what happened, said that Mr. G. seemed surprised. The extent of Mr. G.’s surprise caused the officer to become concerned about the possibility that the reading by the device may have been skewed by residual mouth alcohol as it appeared that Mr. G. was uncertain as to when it was that he had had his last drink. If someone very recently had a drink, the alcohol still left in the mouth could cause a spike in the roadside device’s reading of breath alcohol. So the officer decided to run a second breath alcohol screening device test. The officer waited 20 minutes to be sure any residual mouth alcohol would be gone, and at 1:54, had Mr. G. blow again. Again the device registered a fail. At that point Mr. G. was arrested for the over 80 offence and read his rights to counsel. At 2:01 the officer made the demand that Mr. G. provide a breath sample into the more accurate breath alcohol machine at the police station. At 2:07 Mr. G. asked to speak to a duty counsel lawyer. The call was made and he finished getting legal advice at 2:21. Mr. G. then gave his breath samples into the machine; it registered readings of nearly twice the legal limit of 80 mg of alcohol in 100 millilitres of blood.
Goal: Mr. G. had an education, a good work history and a wife who was about to have a baby. If convicted of this offence, he would be hit with a hefty fine and victim fine surcharge, the loss of his driver’s licence and a criminal record. Pleading guilty to this charge was not an option for him. The matter would have to go to trial.
Strategy: This would be a very technical case which would turn on a question of minutes. The principle issue in the case would have to do with the second roadside breath alcohol screening device test. We would raise a Charter challenge and argue that there had been breaches of Mr. G.’s rights by the police under s. 9 (the right not to be arbitrarily detained) and s. 10(b) (right to counsel) of the Charter, in that he had been detained for too many minutes at a crucial point during the RIDE stop, without being given the option to exercise his right to counsel. We would then argue that the breaches of his Charter rights 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: We were successful in our arguments that there had been infringements of Mr. G.’s s. 9 and s. 10(b) Charter rights by the police, and further, that these breaches of Mr. G.’s Charter rights were serious enough to justify the exclusion of the breath machine readings. Mr. G. was acquitted.