Case Study: Reduced – Impaired Driving, Refusal to Provide Breath Sample, and Novice Driver BAC over Zero
On January 9, 2019, as early as 6:00 am in the morning, an officer was dispatched to Third Road East in the City of Stoney Creek with regards to a single motor vehicle collision. The officer arrived on scene and observed a motor vehicle turned sideways on the road with the front end in a ditch. To the east of the vehicle was an open field. The front end was in the ditch, front tires in water and the rear tires on gravel at the side of the road. There was a male occupant in the passenger’s seat of the vehicle. There was only one other person nearby, an unidentified off duty firefighter that stopped to check on the well-being of the male. The male attempted to unlock the door three times with no success. It took the male a few more tries before he got that door unlocked. The male was slurring his words and when the door opened, a strong odour of an alcoholic beverage was on his breath. The male attempted to get out but was unable to stand up. The male was escorted to the police cruiser and handcuffed. He was arrested for Impaired Operation of a motor vehicle.
If Mr. T. was convicted of the offences noted above, he would suffer various penalties including but not limited to a criminal record, a driver’s licence suspension, a driving prohibition order, a mandatory fine of around $2,000, increases in insurance premiums and the potential difficulty in obtaining insurance and/or employment in the future. The goal became to avoid a criminal conviction of the specific offences he was charged with.
There were some challenges in this case for the Crown Attorney to overcome. As defence lawyers, we wanted to show the Crown that the elements of the offence could not be proven beyond a reasonable doubt. We would argue that the allegations of Mr. T. being in the driver’s seat cannot be proven. We would highlight that no witness actually saw Mr. T. behind the wheel of the vehicle. Finally, we would point out that if the Crown could not prove that Mr. T. was behind the wheel, it would be difficult to make out the offence of Care of Control.
A second issue we would raise would be a Charter breach of right to counsel. During the observation of Mr. T.’s video disclosure, we noted that Mr. T. was not offered the right to speak to a counsel as constitutionally guaranteed by the Charter. Mr. T. very clearly stated, during the breath room portion of the procedure where breath samples are provided, that he was confused and needed to speak to a lawyer again. Mr. T. was denied this request. We would challenge this denial and breach of Charter right.
The judicial pre-trial judge agreed with the defence’s position. The Crown conceded that operation could not be proven and that Mr. T.’s Charter rights were breached. The officer failed to facilitate communication with counsel following Mr. T.’s request. Both the judge and the Crown acknowledged that there was no likelihood of conviction. We were able to significantly reduce the charge to a less serious one.
Mr. T. was able to walk away without a criminal record. Mr. T. pled guilty to a lesser offence of obstruct police. He was given a conditional discharge, a 1-year probation order including the requirement to complete community service hours and a 12-month driving prohibition with the exception of driving to school, work and for volunteer service. Mr. T is not required to disclose any criminal record, for example, during a job search; that is one of the many benefits of a conditional discharge to a non-driving offence. Mr. T. avoided any increase in insurance premiums or paying a hefty fine.