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R. v. B. H

Impaired, over 80 and Speeding

The client was stopped for speeding and arrested for impaired. The key issue in the trial court arose from the absence of any direct evidence of a breathalyzer demand being made pursuant to applicable provisions of the Criminal Code. The trial judge also ruled that he could not infer the making of a demand. Notwithstanding that ruling Mr. H was convicted at trial of both impaired driving and over 80 because “the objection “came too late”. Both convictions were reversed on appeal where the appellate judge agreed with the defence submission that the trial judge misconstrued the legal issue raised by the absence of evidence of the breath demand and held that “on a proper construction of those sections, no objection from the defence was necessary.”


R. v. K. M

Care and Control – Sleeping in car

Ms. M was found passed out behind the wheel and was charged with care and control when she blew over at the station. In cases such as this where a driver is found occupying the driver’s seat they are presumed to be in care and control unless they establish that they didn’t enter the vehicle for the purpose of setting the car in motion. In the course of a comprehensive judgment fully examining the applicable legal principles of care and control, the judge found Ms. M did just that, “In all of the circumstances, I am not satisfied that care or control has been proven beyond a reasonable doubt. The risk envisioned by the Supreme Court in Boudreault is one that is real and realistic, not just theoretically possible. In its judgment, the court provided examples of situations where an acquittal would be warranted as there was no realistic risk of danger. Among those examples was “use of the vehicle for a manifestly innocent purpose”.8 I have found as a fact that Ms. Minor entered her car only because her cell phone had died and she needed to charge her phone. She occupied the driver’s seat and activated the engine for the sole purpose of charging her phone — which, in my view, was an innocent purpose.”


R. v. D. K

Over 80 – Car Crash

In response to a BOLO (be on the look out) call the police tracked down Mr. K as he was driving home, and they observed him crash his car into a wall. After being treated for injuries at the scene a demand for a roadside breath test was made, which he failed, and he was charged with over 80 after blowing over again at the station. Although he was permitted a call to duty counsel at the station, he had previously asked to speak to his supervisor, a former high ranking Toronto police officer, in order to get a referral to his own personal counsel. The police called the supervisor but when he called back they refused to allow him to speak privately to Mr. K and, in fact, didn’t even tell the detained man that the call had been returned. In these circumstances the judge had no problem excluding the breath readings due to a flagrant breach of the right to counsel, “There was a policy of the York Regional Police, expressed by PC Zaiser, but originating in Sgt. Kemp that third parties were not allowed direct contact with the charged person and were not entitled to know the charge faced by the person. This appears to be in the context of a person wishing to contact the third party to access counsel of choice. Further it is in the context of the York Regional Police making the calls to facilitate counsel of choice. This policy makes no sense.”


R. v. A. D

Over 80 – Car accident – smell of alcohol

After a night of drinking Mr. D rear ended a TTC car and was arrested for over 80 after he failed a roadside breath test. The winning issue in the case related to the failure of the officer to explain to Mr. D, after he smelt alcohol on his breath, that he was no longer being investigated for just a traffic accident but that he was a suspect in a criminal investigation of impaired driving. Under cross examination the officer admitted that after detecting alcohol he questioned Mr. D about where he’d been and what he had to drink and that these admissions provided the basis for making the roadside breath demand. Based on that evidence the judge at trial agreed that Mr. D’s right to be informed of his reason for detention was thereby violated and she excluded the breath readings. The Crown appealed but was unsuccessful because the appellate judge was unable to “conclude that the trial judge misapprehended the evidence in finding that the arresting officer based his ASD demand primarily on the utterances of the Respondent.”


R. v. K.P

Over 80 – Speeding, Odour of alcohol

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. D. R

Over 80 – Right to Counsel

After being arrested in a parking lot client was taken to the station where he blew over. The case turned on his testimony that he made it clear to the arresting officer and the booking officer that he wanted to speak to his wife to arrange a lawyer with expertise in defending DUI cases. Although the Crown called the arresting officer whose evidence the judge unequivocally accepted the Crown didn’t call the booking officer. The judge thereupon dismissed the case due to a breach of Mr. R’s right to counsel finding that, “the Applicant said he spoke to the booking officer while Constable Pallett had left to set up the approved instrument. The evidence of Constable Pallett is that he left the Applicant from 11:17 p.m. until 11:28 p.m., which provided ample opportunity for the Applicant to have made the request of the booking officer.”


R. v. P. B

Over 80 – Parking Garage

After a minor collision with another car in the underground parking garage of his building one of the parties in the other car called the police. The police smelled alcohol on Mr. B’s breath and demanded that he provide a roadside breath sample into an approved screening device. The result on the approved screening device was a “fail”, and he was arrested and taken to the station where he blew over. The judge agreed with the defence that the Crown failed to establish that Mr. B’s samples were taken within the 2 hour window of opportunity and that they were taken as soon as practicable. Accordingly, the Crown lost the benefit of the presumption of identity and Mr. Burke was entitled to rely on a Carter defence. The key to winning this case was the cross-examination of the Crown’s expert from the Centre of Forensic Science that they had to call due to the delay in taking the breath samples. In effect the witness for the Crown became the best witness for the defence given her testimony that based on the drinking pattern testified to by Mr. B, his blood alcohol content would have been under the legal limit.


R. v. M. B

Over 80 – RIDE Program

Client stopped in a RIDE Program and arrested for “0ver 80” after failing a roadside breath test. He subsequently blows over at the station. Based on my cross examination of the officer’s lack of training on the use of the roadside breath test the charge dismissed due to breach of client’s right to be secure against unreasonable search and seizure based on judge’s finding that the officer’s “ignorance of the device he was using was so profound as to make his reliance on it objectively unreasonable.”


R. v. D. M

Impaired – Reasonable and probable grounds

Ms. M. was stopped late at night when she was returning home from a night at the casino. The officer noted some irregular driving and attributed unsteadiness to her at the roadside which justified an arrest for impaired and the provision of a breath demand. The trial judge ruled otherwise holding that the observations fell short of acquiring the requisite reasonable and probable grounds to make a lawful breath demand and in turn, to arrest the defendant for impaired operation. In particular he accepted the defence argument, based on a careful review of the police video, that at least some of the supposed instability was in fact caused by the officer, “PC Aukum a testified that after handcuffing the defendant, she had be assisted into his vehicle. Having viewed the videotape which depicts her movements upon arriving at the sally port and entering the detachment, I find that the defendant was restricted in her ability to move due to the handcuffing itself. In other words, it was the Officer’s actions in handcuffing her which lead to her “unsteadiness” as opposed to any pre-existing unsteadiness which may have arisen as a result of alcohol consumption.
533 Queen Street East, Toronto, Ontario, Canada, M5A 1V1

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