Our Client: Ms. S.
Complainant: Hamilton Police Service & the Crown (Her Majesty the Queen)
Charge(s): “Young Driver – Blood Alcohol Content (BAC) Above Zero” contrary to s. 44.1(5) of the Ontario HTA.
Paralegal: Mark Cardy
Background: Ms. S. was a young woman, and not very big, weighing in at only 120 lbs. She was a licenced driver, but, as her status was that of a “young driver,” was required to maintain a blood alcohol content (BAC) of zero while driving. Among the factors that affect BAC readings are whether you are male or female (all things being equal, females are more susceptible to higher BAC readings) and your weight (the less you weigh, the less you can drink before your BAC hits the legal limit). On the night in question, she had had a drink with dinner much earlier in the evening – stopping at midnight. She was acting as the designated driver for her friends who were going to a party for their friend’s birthday. In the car she had two friends, one being the birthday boy, and his dog. Both friends (but not the dog) had been drinking. Someone had called police to report a possible impaired driver. When she was pulled over, the birthday boy got out and animatedly informed police that is was his birthday. The police officer concluded that both passengers were intoxicated. The officer then had Ms. S. blow into the roadside breath alcohol screening device. The result that the device registered indicated that Ms. S. was not over the legal limit, however it showed that she had a BAC in the “warn” range. As a “young driver” she couldn’t have any alcohol in her system at all. Ms. S. was therefore served a notice of suspension and a provincial offence notice for being a young driver with a BAC over zero. Her licence was suspended on the spot, for seven days. Her dad had to be called to come and pick up the car.
Goal: The consequences of conviction for the offence of being a young driver with a BAC over zero, are a fine of up to $500 and a 30-day driver’s licence suspension. Ms. S. needed to keep her licence for her work and for her volunteer work. The goal was to avoid conviction for this offence.
Strategy: To overcome the charge, we either: had to show that Ms. S. had a zero BAC when she was stopped; or, have the evidence of the breath readings showing the BAC over zero, excluded. There was not enough solid evidence for a finding that her BAC was zero. We would instead try to get the breath sample evidence excluded. One way to get evidence excluded is to mount a Charter challenge and attempt to show that the police had violated certain of the defendant’s rights under the Canadian Charter of Rights and Freedoms, and that these violations justified the exclusion of the evidence obtained by the police. The Charter argument would be heard separately in a voir dire – sometimes referred to as “a trial within a trial.” The voir dire hearing would be heard first. We would bring a motion for relief pursuant the Charter of Rights and Freedoms, under s. 7 (right to life, liberty and security of the person), s. 8 (right to protection from unreasonable search or seizure), s. 9 (right not to be arbitrarily detained or imprisoned), s. 10(a) (right to be informed of the reason for arrest), and s. 10(b) (right to retain and instruct counsel and to be advised of that right without delay).
Result: Our Charter challenge was successful and we were able to have the breath sample evidence excluded. The charge against Ms. S. was dismissed.