Late one October night police approached a vehicle that had collided with a traffic signal pole. The roads were slippery from rain, and the driver had attempted to make a turn but slid out and struck the pole. Police found Mr. Z in the driver’s seat, and he immediately explained to the officer that the poor road conditions were the cause of the accident.
The officer asked Mr. Z if he’d been drinking, and after a back and forth Mr. Z said he had consumed one beer much earlier that evening. The officer used this to justify a request for a roadside breath test, which registered a fail. Mr. Z was arrested and brought to a nearby police station for further tests.
While at the station Mr. Z spoke with duty counsel on the phone, provided breath for subsequent tests, and was held for some time in a cell. While in the cell Mr. Z used the washroom multiple times but was uninformed there were cameras that watched the cell even while using the toilet. Mr. Z was eventually released on a promise to appear.
Lawyer Justin Marchand met with Mr. Z two months after the incident to review the documents disclosed by the Crown. During the meeting, we asked what his goals were with the case, and he told us he was willing to go to trial if we thought there was a high likelihood of success, and if not he would consider pleading guilty to get his licence back sooner.
By reviewing the camera footage of the officer speaking with Mr. Z at the scene of the crash, and reading through the recollection of events from both the officer and Mr. Z, Justin concluded that Mr. Z had a strong case. It seemed that the police officer had compelled Mr. Z to self-incriminate while questioning him at the side of the road.
When the police officer believed he smelled alcohol on Mr. Z’s breath he questioned it, but Mr. Z denied it. To get around this denial, the officer pressured Mr. Z into providing a different answer under the guise of investigating an accident under the Highway Traffic Act. While Mr. Z was obligated to be forthcoming about this accident, he was also protected by his right against self-incrimination.
Justin began building his case for trial with this issue as a linchpin. If the judge was convinced that the officer had compelled the self-incrimination the charges against Mr. Z could be dropped.
The case went to trial, during which the Crown decided to offer a deal: if Mr. Z would plead guilty to careless driving, the charges of Over 80 would be dropped. Careless driving is a non-criminal offence in the Highway Traffic Act and comes with a small fine. There is no criminal record involved and no potential for prison time. Mr. Z was happy to accept the deal. He pled guilty to careless driving and had no concerns about a criminal record impacting his life. We advised him that since he was not convicted of any criminal act he could request the police destroy their copies of his photograph and fingerprints. Despite the compelling actions of the police officer, Mr. Z was a free man.