Mr. N was charged with operating a motor vehicle while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(b) of the Criminal Code, i.e., he was charged with the offence commonly referred to as “Over 80.” The circumstances were unremarkable. Sgt. C was on general patrol on a Friday evening in early spring. He was dispatched regarding an erratic driver and eventually located Mr. N’s vehicle which was parked at a service station. The vehicle was not moving, but was running. After obtaining the usual driving documents from Mr. N, and conducting some checks, the officer noticed an odour of alcohol coming from Mr. N’s breath or from the vehicle. Another officer, P.C. L arrived on the scene and was asked to read a roadside demand for a breath sample and to perform the roadside breath test with the Mr. N. Sgt. C did not record a time when P.C. L was asked to read the demand and perform the breath-screening test, although it was likely five or six minutes after Sgt. C had located Mr. N’s vehicle. Mr. N was given his rights to counsel, the caution and a demand that he accompany the officers to give a breath sample into the device at the police station. When asked if he wished to speak to a lawyer, he replied yes, and gave the name of a paralegal that he wished to contact. Although he was advised that the person he wished to contact was a paralegal and it was suggested by an officer that if it were him he would call Legal Aid, Mr. N still wished to call this person and said that if he spoke to this person, he wasn’t interested in calling anybody else. What Mr. N didn’t know and nobody told him, was that a paralegal cannot represent someone charged in a drinking and driving offence and therefore could not give advice about such charges. Mr. N gave his breath samples into the breath alcohol analysis device at the police station and “blew” 179 and the 171 – readings indicating a blood alcohol concentration (BAC) well over twice the legal limit of 80.
In the winter Mr. N worked in snow removal. If he pleaded guilty within 89 days of being charged, he could be eligible for a shorter – three month – driving suspension followed by a period of driving with the Ignition Interlock device. If he did that, his three-month period of driver’s licence suspension would fall in the middle of the winter and he would lose the snow removal work or at least a lot of it and would then have to have the Ignition Interlock device installed on his plow truck for another nine months. On the other hand, waiting for a trial date in the spring meant that he could get his driver’s licence back after the end of the administrative suspension imposed upon arrest, and he would then be permitted to drive until his trial in the spring and would be able to drive plow all winter. Mr. N could not afford to lose his snow removal business. He chose to take the matter to trial. The goal was to avoid conviction.
Negotiating a plea deal to have the Over 80 charge knocked down to the non-criminal charge of “Careless Driving” to avoid a criminal conviction, was out of the question because of Mr. N’s high BAC readings – he blew over twice the legal limit. Having a BAC reading that is twice the legal limit is considered an aggravating factor and as such triggers more severe penalties. To avoid a criminal conviction, the only option was to fight the charge at trial. The only way to beat this Over 80 charge would be to have the evidence of the breath readings showing the high BAC, excluded. To convince the court that this evidence should be excluded we would argue, among other things, that in obtaining this evidence, the police did not follow the procedures required under the Criminal Code. We would also mount a Charter challenge and attempt to show: a) that the police had violated certain of Mr. N’s rights under the Canadian Charter of Rights and Freedoms; and further, b) that these violations justified the exclusion of the evidence obtained by the police. The sections of the Charter that we would raise would be s.8 (unreasonable search and seizure), s. 9 (unreasonable detention), s. 10(b) (right to counsel) and s. 24(2) (exclusion of the evidence obtained by the violations would be justified).
We were able to argue successfully that: the police officer did not make the breath demand to Mr. N within the time prescribed by law which is “as soon as practicable”; the officer delayed too long in giving Mr. N his constitutionally protected right to counsel (s. 10(b) of the Charter); and, Mr. N was not given the opportunity to exercise his right to counsel as although he was permitted to call his paralegal as he requested, he was not informed that a paralegal could not give advice about an Over 80 charge. The combination of these breaches of Mr. N’s rights was enough, according to the judge, to justify the exclusion of the breath sample evidence under s. 24(2) of the Charter. Mr. N was acquitted.