Our client, Mr. K, was found stranded on a rural road in the dead of winter. He was located in the early hours of the morning in the middle of a snowstorm by another motorist. Mr. K, had been trying to wave other vehicles down for help because his vehicle would not start. The motorist called for assistance and police attended. When police arrived on scene, Mr. K was outside of his vehicle asking for police assistance. At that point officers detected the odour of alcohol on Mr. K’s breath. He was issued an approved screening device demand and ended up blowing a fail reading. He was arrested and taken to the Kawartha Lakes OPP station. At the station Mr. K was asked if he would like to speak to a lawyer. Mr. K stated that he would like to speak to Richard Aitken from the firm Aitken Robertson. Mr. K was then put into cells as police phoned our firm. Given the hour of the morning Mr. K was, naturally, exhausted. He lay down on his jail cell bench, curled up in the blanket he had been issued and went to sleep. While Mr. K was asleep, police decided they had waited long enough for a lawyer from Aitken Robertson to phone back. Police then phoned duty counsel who returned their call within minutes. Once duty counsel was on the line, Mr. K was awakened from his sleep and taken to the telephone room. He was then handed the phone and told he could speak with duty counsel. After speaking to duty counsel he was taken to the breath room where he expressed that he wasn’t “necessarily satisfied” with the advice he had been given by duty counsel. Police proceeded with the breath tests anyway. Mr. K provided samples of his breath that resulted in readings in excess of 80 milligrams of alcohol per 100 ml of blood.
Mr. K was charged with Care or Control over 80, contrary to s. 253(1)(b) of the Criminal Code of Canada.
Crown Position: The Crown wanted Mr. K to plead to care or control over 80. This was Mr. K’s second alcohol related driving offence in only a few years. Mr. K would have been subject to the mandatory minimum penalty of 30 days jail and a 2-year driving prohibition. Mr. K had also pled guilty to other impaired driving charges that occurred after this particular allegation. If Mr. K was to be found guilty, the Ontario Ministry of Transportation would have suspended his licence for life.
Mr. K had just completed his apprenticeship as an auto mechanic. He required his licence for work in order to transport and test vehicles. Given that the Crown was unwilling to have Mr. K plead to a lesser offence under the Highway Traffic Act, the only choice was to beat the charges at trial.
Mr. K’s version of events was different from the account provided in the arresting officer’s notes. Mr. K said he was never given the choice of which lawyer he could speak to after Aitken Robertson didn’t call back but the officer’s notes said clearly that Mr. K chose duty counsel. After reviewing all of the police station video, it was clear that Mr. K was asleep when the decision was made to call duty counsel. The video showed officer waking Mr. K up, putting him in the phone room and handing him the phone. This amounted to a violation of Mr. K’s rights to counsel under s. 10(b) of the Charter of Rights and Freedoms. We filed Charter notice and prepared for trial. Mr. K expressed that he had wanted Aitken Robertson because he used Richard Aitken before, he trusted the firm and he knew we did “a lot of DUI cases”. In our opinion this made the Charter application even stronger. Lastly, a transcript was prepared of Mr. K’s conversation with the breath technician where he clearly expressed that he was not satisfied with duty counsel.
At trial the arresting officer’s story was challenged with video clips that contradicted his evidence. In the end, it was admitted that police did not consult Mr. K before calling duty counsel when nobody from Aitken Robertson called back. The officer agreed that he made the decision as Mr. K slept. Further, the transcript of Mr. K’s discussion with the breath tech was also used in cross-examination. The breath technician admitted that he should not have taken samples from Mr. K until he was satisfied with the legal advice he had been given.
After the video evidence and transcript were submitted at trial, the Crown decided to call no further evidence and invited a dismissal. The presiding justice then dismissed the case, stating that the breach of Mr. K’s rights to counsel was serious and would have favoured exclusion. With no breath samples to rely upon. Mr. K was acquitted of Care or Control over 80.
Mr. K was naturally ecstatic. He avoided jail and having his licence revoked for life.