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* All identifying information has been altered to protect the identity of the people involved.

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.
The bouncers at an Ottawa pub reported that an impaired female driver was leaving the bar and provided the car’s license plate number. Three Ottawa police officers arrived at Rachel Smith’s home a few minutes later. The car was in the garage with its tail-lights on. Two officers said that they saw the female stumble out of the car and into the home.The police officers walked up the driveway and questioned Rachel Smith’s husband, who was standing inside the garage. The police then entered Rachel’s home, where she was questioned and arrested for impaired driving. Rachel was transported to the police station where she was required to give breath samples.The arresting officer, Cst. Krane, testified at trial that he was justified in entering the home without a search warrant or arrest warrant because:• He was in “hot pursuit” of the suspect.• He formed reasonable and probable ground for the arrest before entering the home, because he saw Rachel stumbling as she exited the vehicle.• Mr. Smith gave him permission to enter the house, contrary to Mr. Smith’s testimony.
Rachel’s Case: Officer’s Testimony Rejected, Client Acquitted of Drinking and Driving

I believed that the warrantless entry into my client’s home was a serious violation of many of her rights under the Canadian Charter of Rights and Freedoms, including:• Unreasonable search and seizure (Section 8 of the Charter)• Arbitrary detention and arrest (Section 9 of the Charter)• Right to silence (Section 7 of the Charter)• To be promptly advised of the reason for detention and arrest (Section 10(a) of the Charter)• Right to counsel (Section 10 (b) of the Charter)However, police officers who are in “hot pursuit” of a suspect do not need a warrant to enter a home to make an arrest. If the judge believed Cst. Krane that he saw Rachel stumbling in her garage he would have the grounds to make an arrest and there would be no violations of her Charter rights.To win the case four goals had to be achieved:• The evidence had to be carefully analyzed to find inconsistencies and implausible elements in Cst. Krane’s testimony to build a successful cross-examination.• Rachel’s husband had to be thoroughly prepared to testify and withstand cross-examination by the prosecution.• All the case law favourable to the accused had to be provided to the judge.• The Charter violations had to be shown as deliberate or negligent breaches, as opposed to having been inadvertent or committed in good-faith.I went to my client’s home to make sure I knew the layout of the scene, in order to effectively challenge the story told by the police. I also had a private investigator take photos and measurements so the judge could see what actually happened.

Cst. Krane’s testimony was rejected by the judge after the defence cross-examination. The judge did not believe Cst. Krane’s testimony that:• He saw Rachel stumbling in the garage• He formed reasonable and probable grounds before entering the house.• Mr. Smith gave him permission to enter the house.The judge found that Rachel’s rights were violated under section 7, 8, 9, 10(a) and 10(b) of the Charter. The judge excluded the breath readings and the observations of impairment by the police officers from the case. As a result, Rachel was found not guilty of over 80 and impaired driving by the Ontario Court of Justice.
The trial judge ruled (orally):I find that there have been several serious Charter breaches, and several issues of credibility and reliability. The officers’ evidence was incomplete, because of the failure to take thorough and complete notes. None of the three officers took any notes, and could not remember the conversation with Mr. Smith prior to the officers entering the house. All witnesses agree that police officers entered the residence ahead of Mr. Smith.I reject Constable Krane’s evidence that he had formed his grounds prior to entering the house, and that he was in hot pursuit of Ms. Smith when he entered the house. If that had been the case, he would not have had to continue his investigation by asking Ms. Smith questions when he entered the kitchen.Constable McNagle’s evidence [the breath technician at the station], is completely inconsistent with Constable Krane’s evidence, that he provided no information concerning the grounds of the arrest to Constable McNagle, and that Constable Swartzman would have met alone with Constable McNagle, establishes that the grounds for the arrest were formed once the three officers were in the kitchen.Constable Bertrand, who could not recall if he was the first officer on-scene, could not identify the female who exited the vehicle as matching the description. Constable Bertrand twice gave evidence of the female exiting the black sedan in the garage. He did not mention that she had any difficulty whatsoever exiting the vehicle or walking into the house. His evidence is completely inconsistent with Constable Swartzman’s and Constable Krane’s evidence that she “almost” fell out of the vehicle, needed the wall for support as she walked to the door, and then stumbled and nearly fell again entering the house.I am not satisfied that any of the officers could identify Ms. Smith, even in the kitchen, as the driver as that person was described by dispatch. The descriptions did not match Ms. Smith in terms of height or the colour of hair or the length of hair. [Description redacted.] The in-court identifications were laboured, at best.None of the officers had taken any notes of what Ms. Smith was wearing, and could not say that she matched the description of the clothing given over the radio. Constable Krane never considered obtaining a warrant prior to entering the house, even though he mistakenly believed that he had four hours to obtain breath samples.All three officers testified that they or one or two of them had conversation with Mr. Smith prior to entering the garage and/or the house. All agreed that they asked Mr. Smith questions concerning his activities that night, whether he had been drinking, and whether the female was his wife, and what she had been doing that evening. None recorded the questions asked, and could not remember the substance of the conversation.The officers were aware of their Charter obligations, and therefore it is aggravating that none of them took notes of the conversation or what exactly took place prior to them entering the garage or the house. The officers did not have the grounds to arrest Ms. Smith prior to entering the house, and did so for the purposes of continuing the investigation. They did so without providing rights and cautions or allowing either Mr. or Ms. Smith the opportunity to speak to a lawyer or even acknowledge that they had a right to speak to a lawyer.I accept Mr. Smith’s evidence that, had he been properly informed of his rights, that he would have refused entry to the house, and would have called his lawyer for advice. I find that the breaches were serious, and the impact of the breaches were serious. I find that to admit the evidence given under sections 7, 8, 9, 10(a) and l0(b) rights would bring the administration of justice into disrepute, and I am therefore excluding the evidence. Ms. Smith is therefore acquitted.
Brett McGarry Criminal Law
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