Mr. W was stopped not because his driving was concerning, but because a police officer had been monitoring the roads with an Automatic License Plate Recognition Machine (ALPR). The ALPR high lighted licence plates that drove by if they had any kind of “flags” attached to their plates– Mr. W had an expired licence sticker and was pulled over.
The officer requested Mr. W provide a sample for a Breathalyzer test following a conversation with him which led her to believe he had been drinking. The officer claims that he failed, and was subsequently arrested. Throughout this process the officer kept notes, as is standard for police, the quality of which would later be called into question.
The driving prohibitions that would be placed on Mr. W, should he be found guilty, were incredibly strict. From the very beginning he was adamant that his only choice was to fight the charges, and we were determined to fight them on his behalf. Our goal was a complete acquittal.
The Crown’s case was contingent on one piece of evidence and one witness– the notes and testimony of the arresting officer. Our plan was to demonstrate that during her proceedings the officer violated Mr. W’s rights under the Charter of Rights and Freedoms. Specifically, we argued that under s.8, the right against unjust search and seizure, the officer erred in her justification for taking the breath sample. We also argued that Mr. W had not been given suitable access to counsel, noted under s.10(b).
We supplemented this by calling into question the delay in between the arrest and the initial Breathalyzer test, and the delay between arrival at the North Bay Police Station and the Intoxilyzer test, 25 minutes and 40 minutes respectively. We capitalized on the poor quality of the officer’s notes, harkening back to a past case, R. v. Hegedus (2015)where the defence pointed out the amount of inferring the court must do when police notes are poor, and that this creates doubt.
Specifically, we were able to point out that at the beginning of the encounter Mr. W was informed of his right to contact legal counsel, and asked if he wanted to do so. The notes claim his response was “I don’t know”. There are no other mentions of Mr. W discussing duty counsel until the notes point out that counsel was called on his behalf. The officer was unable to bridge the gap between Mr. W not knowing if he wanted to contact counsel, and contacting counsel.
During the cross examination we focused on the violation of s.10(b), and revealed that there were actually major gaps in the officers recollection of the events at the station. The judge was concerned with the inability of the police to prove that the test at the North Bay Police Station was performed as soon as practicably possible. Because of the gaps in the recollection of the events, the Court was unable to conclude that the test was performed as soon as practicably possible and our client was acquitted.