Article Originally Published on December 19, 2018 by Advocate Daily.
A client’s acquittal on an impaired driving charge — because the investigating officers had no reasonable suspicion to justify a roadside breath sample — is extremely unusual in these circumstances, says Toronto criminal lawyer Aaron Harnett.
In fact, “winning a drinking and driving case on this basis is very rare, the legal equivalent of catching a unicorn with your bare hands,” explains Harnett, principal of Aaron B. Harnett Criminal Defence Lawyer.
Ontario Provincial Court Justice Louise Botham dismissed an over-80 charge against his client after finding her s. 8 Charter rights were violated when officers took a sample of her breath.
The judge ruled the results of the driver’s breath test must be excluded from evidence to preserve the reputation of the administration of justice, even though they revealed levels of alcohol in her system well over twice the legal limit.
And with the ruling coming so close to the enactment of new impaired driving laws that allow random roadside breath testing, Harnett says it may be the last successful defence on those grounds for a while.
“That unicorn is now extinct,” he tells AdvocateDaily.com.
Portions of Bill C-46 came into effect this month, removing the requirement that officers must have a reasonable suspicion before making a roadside demand for breath testing, as long as they are carrying a device with them.
Harnett says the provisions are certain to face constitutional challenges, but they will take some time to work their way through the courts.
His client was pulled over shortly after exiting Highway 401 in Toronto after police received reports of a vehicle driving erratically, according to a court transcript.
One of the two officers on the scene made a demand for a breath sample on an approved screening device (ASD), even though his colleague reported in notes that she had detected only a sweet smell and cigarettes in the vehicle, and despite the driver’s denial that she had consumed any alcohol.
Following a fail on the ASD, a detailed breath test revealed a blood alcohol level of 180 milligrams per 100 millilitres of blood.
The judge said she was troubled by “significant contradictions in the evidence of the two investigating officers,” with each recalling themselves as the primary interrogator. She rejected the demanding officer’s claim at trial that he smelled alcohol at the time of the stop, noting that it was not supported by his contemporaneous notes.
“I strongly suspect that given the nature of [the defendant’s] driving he made the demand to see if [she] had been drinking, but that in my view does not take the officer’s actions any higher than a hunch or mere suspicion,” Botham wrote, finding the s. 8 breach was established.
Moving on to her analysis of whether the breath test evidence should be excluded, the judge ruled the breach was a serious one.
“I find that the state’s offending conduct falls much closer to that of an intentional breach of constitutional rights than inadvertency and as such it supports an order of exclusion,” Botham concluded.
“These kinds of successes are very rare, and the police fully deserved the smackdown they got from her honour in this case,” Harnett says.
He says the high reading on his client’s test made the decision to exclude the evidence even more rare.
“But given the officers’ conduct, both on the road and in court, it was the most appropriate judicial response,” Harnett says.