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Charge(s): Operation of Motor Vehicle While Impaired by Alcohol & Operate Motor Vehicle with More than 80mg of Alcohol in 100ml of Blood
Location: Oshawa, Ontario
Our Client(s): Mr. A
Complainant(s): Ontario Provincial Police
Year: 2016
Lawyer: T. Edmund Chan
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Please Note: Past results not predictive of future results.

The Background

Sometime very early one mid-August morning, the Ministry of Transportation cameras capture a scene of a male talking on his cell phone sitting on the grass beside a vehicle in the ditch on the shoulder of Highway 401. A witness had reported seeing a car that had been in an accident. Ambulance and police were dispatched to a personal injury single motor vehicle collision. When police arrived they found a young man fitting the description from the camera footage. The young man said he that he had fallen asleep on his way home from his girlfriend’s. He did not need the ambulance. The police, believing that they observed signs of intoxication, demanded that he give a breath sample into the roadside alcohol screening device. He did so and registered a “fail.” He was arrested. The handcuffs that they put on him were tight and hurt his wrists. Later at the police station, he gave a breath sample into the device there and registered a blood alcohol level above the legal limit. The police charged him with impaired driving and with “Over 80.”

The Goals

Mr. A had a college education, no criminal record and a good job as a skilled industrial worker. He needed to be able to drive to get to his jobs. Losing his licence because of a drinking and driving conviction would mean losing his livelihood. Moreover, as a young person just starting out, the criminal record that went with such a conviction would limit his career prospects for life. He was charged with two offences: impaired and Over 80 – and he had to beat both.

The Strategy

Would be two-pronged: 1) a Charter challenge on the issue of unreasonable delay; and 2) an evidentiary challenge to raise a reasonable doubt around the credibility of the officers and the evidence of the timing of the offence (a technical point in the Over 80 offence).

The Results

The judge did not find the officer’s evidence credible, nor the evidence of the time of the incident and/or collision. The judge was therefore not satisfied that the Crown had proven its case beyond a reasonable doubt and both the impaired and the Over 80 charges were dismissed.


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