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MY WINNING RECORD:

1. FROM DURHAM:
 
R. v. D.B. (Pickering)
 
Client arrested due to irregular driving and a failed road side breath test. Taken to the police station where he admits excessive alcohol consumption and provides two breath readings which are twice the legal limit. Charged with impaired driving and over 80.
 
Case dismissed. Judge accepts that insofar as the police needed to rely on the investigative use of the approved screening device there were no reasonable probable grounds to arrest at the scene for impaired driving and therefore the charge laid cannot be proven to necessary standard of proof beyond a reasonable doubt. In relation to the over 80 count, the judge excludes the readings based on the defence argument that the Crown could not prove a “clear and unequivocal” waiver of the right to counsel because of the arresting officer’s poor note taking and the unexplained failure of the Crown to provide the full video record requested of all the accused’s activities at the police station on the night of his arrest.
 
 
R. v. R.P. (Ajax)
 
Client arrested in a parking lot just as he exited a local bar. After failing a roadside breath test was taken to the station where he provided two breath samples which were twice the legal limit. Charged accordingly with over 80.
 
Despite Crown’s initial position which sought a period of jail, case was eventually resolved following a judicial pretrial by way of a plea to the Highway Traffic Act offence of careless driving. Insofar as the entire event had occurred upon private property an issue arose relating to the power of the arresting officer to make a breath demand in circumstances where the motorist was not on a “highway”. There were also an issue relating to a possible arbitrary detention of the motorist based on his previous criminal record which the officer likely discovered by running a license plate check sometime earlier in the day. Lastly, in my discussions with the Crown through previous correspondence and during the meeting in chambers with the Judge, I emphasized that I would seek to exclude the breath readings due to the improper administration of the roadside breath test which took place without any inquiry as to the time of the accused’s last drink. The failure to determine this, which is mandated in officer training, suggested the possibility of a “false positive” test due to unabsorbed residual mouth alcohol thereby bringing into question the officer’s reasonable and probable grounds to arrest.
 
 
 
R. v. D.C. (Oshawa)
 
Client arrested at the scene of a mid afternoon accident near a construction site in a quiet residential neighbourhood. His car had inexplicably rear ended a parked construction vehicle. Damage was extensive and he may have been knocked out in the collision. A neighbour phoned 911, the police arrived and after detecting an alcoholic odour on the motorist breath, arrested him and took him to the station where he provided two breath samples which were both more than three times the legal limit. Client charged with impaired driving as well as operate over 80.
 
Case dismissed. Trial judge grants defence application to exclude breath readings based on a breach of the accused’s right to counsel. Judge accepts that insofar as the arresting officer made no effort to record the supposed waiver of counsel the court was thereby  deprived of an opportunity to determine whether or not the police officer's opinion was objectively justified. Once the excessive blood-alcohol readings were accordingly excluded from the equation, the trial judge agreed with the defence submission that the charge of impaired driving was not proven beyond a reasonable doubt since the concussive facts of the accident may well have contributed to the accused apparent state of “impairment” after the crash.
 
2. FROM SCARBOROUGH:
 
R. v. N.S.
 
Client was in a car accident after leaving a party. Police observed him hit a pole, he was arrested at the scene and provided 2 breath samples which were nearly twice the legal limit. Charged with impaired driving and “over 80”. 
 
Following a four day trial client was acquitted on both counts. The breath readings were excluded due to a breach of his constitutional right to retain and instruct counsel (re denial of contacting counsel through 3rd party). The impaired driving charge dismissed due to conflicting evidence of accused’s demeanour at the scene combined with the possibility that the accident my have occurred  due to the weather.
 
 
R. v. S.R.
 
Client charged with over 80 after police officer apprehends him after witnessing some unusual mid day driving. Officer detects odour of alcohol on driver’s breath and demands a roadside breath sample. Client registers a fail on that device and is arrested and taken to the police station where he registers a blood alcohol reading of nearly three times the legal limit. Client charged with over 80.
 
Case dismissed. Defence application to stay the proceedings granted based on Crown’s unexplained delay in providing full video disclosure.
 
 
3. FROM DOWNTOWN TORONTO
 
R. v. K.P. (College Park)
 
Client stopped for speeding while driving late at night on the Don Valley Parkway. Officer detects an odour of alcohol on the accused’s breath and arrests him after he fails a roadside breath test. Once at the station the accused provides two breath tests which are both more than twice the legal limit. Charged with over 80.
 
Charge stayed by the Crown prior to trial. Decision to do so unrelated to the merits of the case but done so because of the Crown’s acknowledged failure to respond to various defence disclosure requests in a timely fashion. The defence relied on the Crown’s responsibility to provide full disclosure in relation to the maintenance and calibration of both breath devices as well as all of the client’s videotaped activities on the night of his arrest including the footage from the cruiser video cam at the scene.
 
 
R. v. T.S.  (Old City Hall)
 
Client arrested after a 911 call relating to a disabled vehicle at the side of the road on a major highway. When police attend the motorist displays obvious signs of impairment and is arrested. At the station he thereupon provides two breath samples both well over twice the legal limit. Charged impaired driving and over 80.
 
Charges dismissed. Despite the fact that the civilian witness was willing and able to testify at the trial the defence successfully argued that the unexplained failure of the Crown to disclose the civilian’s 911 call compromised full answer and defence because the witness could not be confronted with whatever inconsistencies there may have been between that contemporaneously, recorded account and trial testimony which would have been well over a year later. This necessitated an adjournment of the trial which resulted in a breach of the accused right to a trial within a reasonable time.
 
 
 
4. FROM NEWMARKET
 
R. v. D.H.
 
Client had been drinking and was involved in a serious accident after he ran a stop sign on a rural road. Both vehicles were written off and he was taken to the hospital by ambulance. Police conducted a forensic examination at the scene which involved the warrantless seizure of the “black box” in the client's car. An expert report concluded that the accused’s vehicle had been traveling at a dangerously high rate of speed on the dark and wet country roads. Client charged accordingly with impaired driving, over 80 and dangerous driving.
 
All charges dropped in exchange for a plea to careless driving. Crown conceded at pretrial that over 80 would be difficult to prove due to marginal readings, accepting the recognized 10% error tolerance of breath device. Crown also accepted that the accident reconstruction report may not be admissible due to the unauthorized seizure of the black box from the accused vehicle.
 
R. v. M.S.
 
Client subject to a traffic stop in the early morning hours on a residential street. Smells of alcohol and has a large stain on his shirt which he can't explain. Police check shows that he is also on a recent probation order. He is unable to explain either where he's been or where he's going and during the course of the roadside investigation his behavior and demeanor rapidly deteriorates. He registers a fail on a roadside breath device and is taken to the station where his behavior is so bizarre that after the breath tests that he is taken to a local hospital to be assessed for a drug overdose. Charged with impaired driving, over 80 and fail to comply with probation.
 
All charges dismissed. Over 80 withdrawn prior to trial because of defence refusal to adjourn trial to accommodate Crown’s expert witness who was needed because the breath tests had been taken more than two hours after the time of driving. The fail to comply was withdrawn on the first day of trial because the defence objected to the admissibility of photocopied court records offered in support of proving the terms and fact of the probation. Lastly, the impaired driving charge failed because the case, which had been scheduled for a full day, started late due to the Crown’s prioritization of other cases and then, when it couldn’t be finished that day, couldn’t be rescheduled to continue for another six months.  Defence application to stay for unreasonable delay accordingly granted on that return date.
 
 
5. CASES ELSEWHERE IN ONTARIO
 
R. v. R.M. (Lindsay)
 
Client found in a disabled vehicle in a country ditch following a civilian 911 call. Upon arrival of police the accused was obviously impaired.  At the police station he provided breath readings which were nearly four times legal limit. Client charged with care and control of a motor vehicle while impaired and over 80. Given client’s lengthy, related criminal record, Crown seeks lengthy jail term and proceeds by indictment.
 
Client acquitted by a jury at trial. Defence elected trial by jury trial because of the accused’s record which was successfully suppressed due to the “overly prejudicial” effect it would have on the jury. Accused was thereby able to testify in order to rebut the presumption that he had entered his vehicle for the purpose of setting it in motion and the jury fairly determined that issue without being distracted by accused’s multiple convictions for similar crimes.
 
R. v. KUMARASAMY  [2002] O.J. No. 303  (Brampton)
(not reported in CANLII (www.canli.org)  but many decisions found therein refer to this case)
 
After being pulled over late one night in Brampton due to irregular driving, Mr. Kumarasamy was arrested for impaired driving and taken to police station for the purpose of providing breath tests. Upon his arrest, he asked for counsel. He repeated that request at the police station. The detainee wanted to speak to a specific lawyer but did not have the phone number “readily available”. Police did not ask the lawyer’s name. They made no inquiries to try to contact him. They refused to allow the prisoner to call a friend to get his lawyer’s phone number. He was instead put in touch with duty counsel. He then refused to provide a breath sample. Although the trial judge acquitted on the impaired driving charge he nevertheless convicted on the refuse charge. 
 
APPEAL
 
I argued the summary conviction appeal in the Superior Court of Justice in Peel. Justice Durno allowed the appeal and in so doing made these observations:
 
¶ 7. The officer agreed the appellant had said a number of times that he wanted to speak to his own lawyer. He continued, “if he did have a number that he could readily provide us, we would have put him in contact with that person”. When asked why no further inquiry was made, the officer said, “At that point, he had already been in contact with duty counsel.” The officer’s opinion was the appellant was entitled to legal counsel, and he had already received it.

¶ 9. … the technician … keeps saying, while he did not speak to his own lawyer, he did speak with duty counsel. In the video, the appellant did not express any dissatisfaction with duty counsel, nor did he indicate he failed to understand the direction from the police.

¶ 13. The appellant admitted he never gave the police the lawyer’s name, but noted they never asked for it. He did not know the counsel’s name at the time.

¶ 20. Since the trial, the Court of Appeal released the judgment in R. vs. Littleford … which is instructive on the issues to be determined. That judgment, in addition to R. v. Mayo, establishes that there is no breach of s. 10(b) of the Charter if the detainee speaks to duty counsel after asking to speak to their own counsel, where the police first attempt to contact private counsel and are unable to do so. Unless the appellant did not understand the rights from counsel, had received inadequate legal advice, and still sought to contact his or her counsel, or the police conduct interfered with the detainee’s ability to assert the rights, there is no violation of s. 10(b).
 
¶21. What the cases do not establish is that police officers can go directly to duty counsel when a detainee wants to contact his or her counsel of choice. With respect, I disagree with the trial judge’s conclusion that the police are not obliged to contact counsel of choice where a detainee has spoken to duty counsel. The availability of duty counsel 24 hours a day cannot be used to trump a detainee’s right to counsel of choice. (Emphasis added.)

¶ 29. On this record the appellant sought his own counsel before he spoke to duty counsel, and the officers did nothing to assist him in his efforts to contact Mr. Engel. They erroneously felt they could use the duty counsel as a short cut to circumvent the right to counsel of choice, or felt that as long as a detainee spoke to any lawyer they had complied with s. 10(b). On either analysis the officers were wrong.
 
¶ 30. Even if the appellant had not asked until after he spoke to duty counsel, he had the right to have police facilitate that contact, provided he was honestly attempting to obtain legal advice: R. vs. Keeley, [1996] O.J. No. 2306 (Ont Ct. Prov. Div).
 
¶31. The evidence of the refusal should be excluded as there was a clear violation of s. 10(b). The admission of the evidence would affect trial fairness. The violation was serious.

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