In R. v. Stoney, 2015 ONCJ 740, an Ontario man was acquitted of drinking and driving because of his treatment by the police in custody. He was arrested around 3:30 pm, but not released from police custody for another 12 hours. The judge entered a stay of proceedings because the man’s Charter rights were violated, describing the conditions he was held in as follows:

9     After failing to accommodate the defendant’s need to urinate, the situation was aggravated by subsequent actions and non-actions by the police. First, the urination situation was not unique and clothing changes or “bunny suits” were available at the station. Yet the defendant was not offered or given one. The arresting officers say they told the custodial officers that the defendant had wet himself (as did the defendant) but the information was either over-looked or ignored.

10     Again it is suggested that the defendant should have been more vocal. But I think it is understandable that he would not want to draw additional attention to his embarrassing situation particularly when he likely would not know that a change of clothing was available.

11     Next the situation was then compounded by his being kept in custody for 9 hours in that condition. While detention for that length of time could be justified given the Intoxilizer results, such lengthy detention in wet pants would prolong the discomfort and indignity of the situation even in reasonably comfortable custodial conditions.

12     But the custodial conditions were far from reasonably comfortable and in fact aggravated the situation. Aside from being small and very Spartan — a tiny concrete box with a concrete slab for a “bed” – the cell area was, I find, unreasonably cold. The defendant testified that he was freezing and shivering- that it was very cold to the point of being painful. His evidence is supported by the cells video in which he is seen wearing only a T shirt and the wet jeans. (He had been wearing a winter coat and sweater on arrest — couldn’t he have kept at least the sweater?). He shows all the signs of being uncomfortably cold including trying to put his arms and head inside his T shirt for whatever warmth that might provide. Eventually he asked for a blanket and after more than half an hour was given a thin yellow plastic sheet. He said it did not help. The cells officer could not say how effective these “blankets” are since he had never tried one.

Ottawa Impaired Driving Lawyer

Charged with drinking and driving in Ottawa? Contact Ottawa criminal lawyer Brett McGarry to discuss the best defence for your case.