Gary Stortini

The accused was charged with impaired care or control, over 80 care or control, and possession of crack cocaine following a police investigation that began when officers observed him and a woman in a truck in a laneway.

The accused brought a Charter application seeking exclusion of evidence based on alleged breaches of sections 8, 9, and 10(b) of the Charter.

The court found multiple Charter breaches: an unjustified flashlight search violating section 8; an arrest without reasonable and probable grounds violating section 8; and multiple violations of the right to counsel under section 10(b), including delayed notification of rights, questioning after invocation of counsel, and failure to re-advise on a new charge.

The court excluded all evidence and acquitted the accused on all charges.

The defendant applied for a mistrial after the Crown cross-examined him regarding three previous drinking and driving charges during trial on an "Over 80" charge.

The Crown's stated purpose was to establish the defendant's familiarity with the criminal justice system in response to his Charter voir dire evidence regarding his understanding of the right to counsel.

The court found that while the Crown did not act with improper purpose, the questions were highly prejudicial with minimal probative value.

The court declared a mistrial, finding that a reasonable apprehension of bias existed such that a fully informed observer could reasonably conclude the trial was unfair.