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Laura was involved in a serious car accident after going through a red-light. Laura was charged with impaired driving, and driving with a blood alcohol content over 80 milligrams of alcohol in 100 milliliters of blood.
Laura went through a red light and crashed into another car. Both cars were severely damaged. Paramedics and police arrived. The police could not smell any alcohol on Laura’s breath and did not notice any signs of impairment. The police asked Laura if she had anything to drink. Laura responded that she had a glass of wine at a party. As a result, the police demanded that Laura blow into a roadside screening device, which she failed. She was arrested and taken to the police station for a Breathalyzer test. At the station, Laura blew over the limit.
Ontario’s Highway Traffic Act requires everyone who is involved in a car accident with injuries or where the damage may exceed $1,000 to report the accident to the nearest police officer and to answer any questions about the accident.At trial, Brett McGarry argued that all Laura’s statements to the police should be excluded because she was forced to incriminate herself by the reporting obligations in the Highway Traffic Act. Brett argued that without Laura’s roadside statement the police did not have legal grounds to demand breath samples.Laura knew that she had a legal obligation to give an accident report to the police if she was involved in a serious car accident. Laura confirmed this belief when she testified at the trial. Laura was an excellent witness because she was thoroughly prepared to testify before the trial by her lawyer.
The judge found that Laura’s Charter rights were violated and excluded all the evidence against her. As a result, Laura was found not guilty of over 80 and impaired driving.
The trial judge ruled:I will now focus on the main argument in this matter, which is the violation as a result of the statutorily compelled statements. Given that absent the admission of consumption, neither officer observed any signs of impairment or smelt any odour of alcohol with the statement found to have been a statement compelled under the Highway Traffic Act and hence inadmissible there were no grounds for Constable Doe to reasonably suspect Laura had alcohol in her body at the time of driving. In fact, Constable Doe conceded this point. As such I find the taking of the statement would be a breach of the right not to incriminate oneself. And the seizure of her breath samples at the roadside and thereafter at the police station would hence be a violation of her rights under section 8 to be free from unreasonable search and seizure. Further, placing Laura in the rear of the police cruiser amounts to a detention in law.[…]In this case Laura had no idea why she was in the police car. She felt she had to be there to be able to answer questions regarding the accident. Given that that the statements of Laura are not admissible and given that there was no other basis to make the roadside demand her further detention must be found to be arbitrary as a detention not authorized by statute. As such, I do find that the accused’s rights under Section 7, 8 and 9 of the Canadian Charter of Rights and Freedoms have been violated.[…]Section 24(2) of the Charter states that the evidence obtained following the Charter breach shall be excluded if it is establishing having regard to all the circumstances that the admission of it in the proceedings would bring the administration of justice into disrepute. In this case, given the seriousness of the Charter offending conduct, that the principle against self-incrimination is a general organizing principle of in criminal law and that the applicable decision is not new in impaired driving or motor vehicle investigations, it is something that should have been known by these officer. There is no good faith. Further given the significant impact on the accused’s Charter protection interests and that the ASD and breath testing was without requisite Criminal Code and Charter grounds results in serious breaches of Section 9 and Section 8. This is conduct the Court must seek to disassociate itself from. Not to do so would weaken the protection against self-incrimination, which is fundamental to the basis tenets of criminal law. I find that to admit the statement and the breath tests would bring the administration of justice into disrepute and it will be excluded.
Brett McGarry Criminal Law
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