City: Oshawa. Ontario
Our Client: Mr. G.
Complainant: Durham Regional Police
Charge(s): Care and Control of a Motor Vehicle while Impaired / Over 80mg
Lawyer: Richard J. Aitken, B.A., J.D.
Background: Mr. G. had been watching the CFL Grey Cup while he hung out with a few of his friends on the night of Sunday November 25 to Monday November 26, 2014. At the time, he was facing a serious financial burden as he was supporting his new, young family. After entering the car with his friends, he turned towards the street from the parking garage but shortly made an additional turn to return to the parking garage. An officer, who was located across the street, grew suspicious that he should be entering the vehicle so late on a Sunday night / early Monday morning on Grey Cup day and decided to investigate. By the time the officer had made up his mind, Mr. G. and his friends had parked the car and were walking from the garage to the front of the building. It was at this time that the officer demanded that they stop and approached Mr. G.. The officer noted that Mr. G. was walking funny, smelt slightly of alcohol but could not satisfy whether he had been drinking as Mr. G.’s eyes were not bloodshot, glassy, or red and he did not have a flushed face which would satisfy a component of the roadside standardized field sobriety testing procedure. Our client complied promptly with every demand the officer made and admitted that he had consumed a small amount of alcohol. The officer then placed Mr. G. under arrest for being in care and control of a motor vehicle while he suspected him to being impaired by alcohol over 80 milligrams in 100ml of blood. Our client was immediately suspending from driving for 90 days and his car was towed and impounded for 7 days. At the police station the client failed the breath test and was then charged with “over 80.”
Goal: Mr. G. wanted to have the charges dismissed due to having his section 8 Charter of Rights and Freedoms being infringed upon, as the officer had no reasonable or probable grounds to conclude that Mr. G. was over 80 milligrams of alcohol. The argument essentially was that it was and unreasonable search and detention.
Strategy: Our strategy was to raise a Charter Application – as an officer cannot stop an individual on private property based on a “suspicion” that they have committed an offence. They would have to satisfy the courts that they had “reasonable and probable grounds” to stop, and detain an individual or else all of the evidence would be excluded, which would include Mr. G.’s statements and breath test readings. There was only one witness to be called in the case: the arresting officer, and Mr. Aitken knew that the officer had not noted that the smell of alcohol had been coming from Mr. G..’s breath but that of “his person.” Furthermore, the police officer had never asked Mr. G.. when he had last consumed alcohol and that there was no roadside device used to test alcohol readings. Lastly, he did not witness as to whether it was Mr. G. who actually drove and parked the car.
Verdict: Our client was acquitted of all charges. The judge concluded that there was no evident reason for the officer to call Mr. G. back to speak with him other than the “hunch” he had. Thus, this was an example of an unlawful detention and the Crown had not demonstrated that the conduct of the officer was a justifiable use of police powers. Lastly, the test was not conducted as soon as practicable. The evidence was ultimately excluded. Mr. G. won on all counts.