Impaired Driving and Refuse Breath Sample
Mr. A. suffered from insomnia. He came to the Peterborough office after being found asleep behind the wheel of his jeep at a busy intersection in downtown Peterborough. At trial, Mr. A. testified that he had not slept for four days consecutively before the incident occurred. He was arrested on the spot after the officer detected a faint odour of alcohol while observing Mr. A. sleeping. When Mr. A. was read his rights to counsel he indicated he did want to speak to duty counsel. Mr. A. was then read a police caution and advised that he did not have to say anything in answer to the charges. Mr. A. listened carefully to the information and then chose to exercise his right to silence from that point forward. He was taken to the Peterborough Police Service Station and was asked by police again if he “still wanted to speak to duty counsel”. Mr. A. simply remained silent. He was then taken directly to the breath room where the breath technician demanded a sample of his breath. Mr. A. continued to be unresponsive and did not participate in the investigation. Mr. A. was charged with refusing a breath sample. Mr. A. was naturally very concerned as he had no previous criminal record.
Mr. A. was charged with Impaired Driving contrary to s. 253(1)(a) of the Criminal Code and Refusing to Provide a Breath Sample contrary to s. 253(5) of the Criminal Code.
The Crown wanted Mr. A. to plead to both refusing to provide a breath sample and impaired driving. The Crown sought the mandatory minimums on both charges resulting in an anticipated fine in excess of $2,500 and a one-year driving prohibition.
Mr. A. lived on a rural property and required his driver’s licence on a daily basis for work, grocery shopping and other essentials.
The first strategy was to provide the Crown with medical documentation of Mr. A.’s condition that affected his sleep. An issues resolution meeting was then conducted where all of the exculpatory features of Mr. A.’s case were highlighted. Mr. A. was seen to have no trouble with his movements and motor functions. The few times he did speak his speech was clear and coherent. It was also argued that Mr. A.’s rights to counsel as per s. 10(b) of the Charter were violated because he had requested to speak to duty counsel and was not placed in the phone room at the police station to do so. The Crown would not withdraw the charge so the matter was set for trial.
Mr. A. was acquitted on both counts (impaired and refuse) after a one-day trial. After the court saw the police station video that showed Mr. A.’s movements and motor functions were uncompromised and hearing evidence from the officers that it did not appear Mr. A. was having any difficulty with his balance and comprehension, the Crown advised the court that it was no longer proceeding on the charge of impaired driving. The court then determined that Mr. A.’s rights to counsel were violated. The presiding justice determined that police were obligated to place Mr. A. In the phone room after he clearly indicated that he wished to speak to duty counsel. His Honour ruled that Mr. A. was entitled to exercise his right to silence and was not obligated to answer any of the officer’s questions about “still wanting to speak to duty counsel”. The presiding justice then excluded the evidence that had been collected after the breach, namely, the evidence of Mr. A. refusing to provide his sample.
Mr. A was elated. He had beaten both charges, he kept his licence and avoided a criminal record.