Henry’s Case - Over 80 and Impaired Driving Charges Defeated

Over 80 Driving: Operating a motor vehicle with a blood-alcohol concentration that exceeds eighty milligrams of alcohol in one hundred millilitres of blood contrary to section 253(1)(b) of the Criminal Code of Canada.Impaired Driving: Operating a motor vehicle while the person’s ability to operate the vehicle is impaired by alcohol, contrary to section 253(1)(a) of the Criminal Code of Canada.

Henry’s truck was parked in a mall parking lot in the early morning hours. As Henry drove out of the parking lot, an Ottawa police officer stopped him because he believed the truck might be involved in break and enters in the area. Henry admitted that he was coming from a local pub. The police officer demanded a roadside breath test as a result.The roadside breath screening device displayed error codes during the testing of Henry. Henry later blew a “fail” on the roadside device. Henry also had balance problems and slurred speech according to the arresting officer. He was arrested and brought to the police station, where he was required to provide breath samples into an Intoxilyzer machine (commonly known as a Breathalyzer).

At the trial, I applied to have all the evidence in this case excluded because the methods used to obtain it violated the Canadian Charter of Rights and Freedoms. I identified a number of problems with Henry’s arrest:• The officer lacked a legal basis to pull Henry over under the Highway Traffic Act and the Criminal Code of Canada.• The roadside breath testing of the Henry was unreliable. Absent the failure of the roadside device, the police lacked reasonable and probable grounds to arrest Henry.The observations of impairment by the arresting officer also had to be undermined at trial, because people can be convicted of impaired driving even when breath readings are excluded. As a result, the credibility and reliability of the arresting officer had to be challenged by a carefully constructed cross-examination.

The client was found not guilty of over 80 and impaired driving by the Ontario Court of Justice in Ottawa. The cross-examination of the arresting officer established that he was unaware of the different error codes the roadside machine could display. Through the cross-examination of the Intoxilyzer technician the defence showed that some error codes would make a “fail” result unreliable.The arresting officer’s observations of impairment were contradicted by other police officers who testified. In addition, the cross-examination of the prosecution’s forensic toxicologist raised a reasonable a doubt about whether Henry was impaired.The judge excluded all evidence under s. 24(2) of the Charter because Henry’s following rights were violated:• His right against unreasonable search and seizure under section 8 of the Charter.• His right against arbitrary detention and arrest under section 9 of the Charter.

This case shows the importance of retaining a skilled Ottawa criminal defence lawyer who:• Has up- to-date knowledge of Charter arguments and case law.• Is knowledgeable of the science and technical aspects relating to breath testing machines.• Has the cross-examination skills to effectively challenge the police witnesses and toxicologists.

The trial judge ruled:Having considered all of these factors, I am of the view that the evidence should be excluded pursuant to section 24(2) of the Charter. It is important that the Court not condone conduct that demonstrates a clear misunderstanding of constitutional rights. Moreover, it is important that the courts not condone conduct where the authorities decide at random to pull over vehicles without any legal foundation whatsoever. It is also concerning that an officer would come to court and leave the impression after examination in-chief that he had obtained information about crimes being committed in the area in the recent past, only to find out in cross-examination that no such evidence existed at the time the vehicle was pulled over. Based on all of these facts before the Court, I am of the view that all of the observations of the accused made by Constable [Arresting Officer] and the Intoxilyzer technician, the evidence of the fail and the results of the breath samples taken at the station need to be excluded, pursuant to section 24(2) of the Charter.Having excluded the evidence, there is no evidence before the Court to prove the allegations beyond a reasonable doubt. It is also important to note that the signs of impairment observed by Constable [Arresting Officer] were contradicted by the technician’s observations of the accused. Given the quality of Constable [Arresting Officer’s] evidence and for the reasons already mentioned, very little weight can be placed on his evidence.As a result, Henry, you are found not guilty of both counts before the Court.