Human Rights - ONCJ

The accused was stopped at a mobile RIDE check, failed two Approved Screening Device tests, and was charged with driving with a blood alcohol concentration in excess of the legal limit.

The defence raised five Charter issues: whether the officer had reasonable suspicion for the ASD demand based on odour of alcohol; whether an informal demand satisfied s. 254(2); whether the officer's failure to wait the full 15 minutes before the second ASD test was objectively unreasonable; whether s. 10(b) requires expanded information about accessing private counsel; and whether the officer undermined solicitor-client privilege by referring to legal advice during the Approved Instrument demand.

The court dismissed all Charter applications and found the Crown proved the elements of the offence beyond a reasonable doubt.

The defendant was charged with "over 80" (care and control of a motor vehicle with blood alcohol above the legal limit).

The Crown's evidence showed the defendant was stopped by police in an area known for prostitution and drug offences, based solely on the vehicle "circling" the area.

Following the stop, the defendant was subjected to a roadside screening device demand, which he failed, leading to arrest and breath samples showing 100 and 90 milligrams of alcohol per 100 millilitres of blood (legal limit: 80).

The defence challenged the lawfulness of the initial stop under section 9 of the Charter.

The court found the stop was arbitrary and violated the defendant's Charter rights, and excluded the evidence obtained as a result.

The accused brought a motion for a stay of proceedings pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms, alleging that his right to be tried within a reasonable time had been breached.

The trial commenced in January 2015 and evidence was completed in June 2016, with final submissions heard in November 2016.

The accused's application was brought following the Supreme Court of Canada's decision in R. v. Jordan, which established new presumptive ceilings for trial delay.

The court dismissed the application, finding that while the net delay exceeded the 18-month ceiling, it was justified by exceptional circumstances and the transitional exceptional circumstance applicable to cases substantially completed before Jordan was released.

The defendant was charged with care and control of a motor vehicle while impaired by alcohol and with care and control with a blood alcohol level exceeding 80 milligrams per 100 millilitres of blood.

The Crown's case relied on observations of impairment by the arresting officer and breath analysis results.

The court found that the police failed to conduct the breath tests as soon as practicable, contrary to statutory requirements, thereby eliminating the presumption of identity for the blood alcohol readings.

Additionally, the court found insufficient evidence of impairment based on the totality of circumstances, including video evidence contradicting the officer's testimony regarding the defendant's physical coordination.

Both charges were dismissed.

A voir dire concerning the lawfulness of an arrest and subsequent searches.

The accused was arrested on the 401 highway based on information from a Toronto drug investigation targeting a different individual.

The Crown sought to uphold a warrantless strip search and vehicle search as incidental to arrest.

The court found that police lacked reasonable and probable grounds to arrest the accused, rendering the searches unlawful.

The court also found that the deliberate denial of the accused's right to counsel for 9.5 hours constituted a Charter breach.

Evidence was excluded under section 24(2).

The accused was charged with assault on a peace officer, escape from lawful custody, and failing to comply with recognizance.

The court considered a Charter application to exclude fingerprint evidence obtained during a traffic stop that evolved into an investigative detention.

The accused argued violations of sections 9, 10(a), and 10(b) of the Charter.

The court found that while the initial detention and pat-down search were justified, the officer's attempt to handcuff the accused without reasonable grounds constituted an arbitrary detention in violation of section 9.

However, the fingerprint evidence was admitted under section 24(2) as the breach was minor and technical, the impact on the accused's liberty interest was minimal, and the evidence was vital to the truth-finding process.

The defendant was charged with operating a motor vehicle with an excessive blood alcohol concentration (BAC) after registering a "Fail" on a roadside screening device at a RIDE stop and subsequently providing "over 80" Breathalyzer readings.

The defendant challenged the admissibility of the Breathalyzer evidence on Charter grounds, arguing that the officer lacked reasonable grounds to suspect alcohol in the defendant's body when making the initial roadside screening device demand, thereby violating section 8 rights against unreasonable search and seizure.

The court found that the officer had reasonable suspicion based on the odour of alcohol emanating from the vehicle combined with observations of nervousness and slurred speech, satisfying the statutory standard under section 254(2) of the Criminal Code.

The court also found that even if a Charter breach had occurred, exclusion of the evidence under section 24(2) was not warranted.

The defendant was convicted.

The accused was convicted of driving with an excess amount of alcohol in his blood contrary to s. 253(1)(b) of the Criminal Code.

At trial, the accused alleged Charter violations and sought a stay of proceedings or exclusion of evidence.

The court found no s. 8 or 10(b) violation but determined that the accused's s. 9 Charter rights were violated when he was unjustifiably held at the police station for approximately four hours and twenty minutes after the investigation was completed.

The court declined to grant a stay or exclude evidence but considered whether a sentence reduction below the statutory minimum was an appropriate remedy for the Charter breach.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood.

The Crown proceeded summarily.

The accused challenged the admissibility of breath test results under section 24(2) of the Canadian Charter of Rights and Freedoms, arguing the police lacked reasonable suspicion to demand an approved screening device test.

The court found the police officer had objectively reasonable grounds to suspect impairment based on the totality of circumstances, including erratic driving, unusual vehicle placement, placement of air fresheners in unusual locations, and minimal responses to questioning.

The court also found the breath tests were conducted as soon as practicable despite the two-hour-and-twenty-five-minute delay, which was attributable to unusual weather conditions, unavailability of a qualified technician in Burlington, and equipment issues.

The accused was found guilty.

The accused was charged with three offences arising from a motor vehicle accident on October 9, 2012: failing to stop after being involved in an accident knowing bodily harm was caused, impaired driving causing bodily harm, and operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood while causing an accident resulting in bodily harm.

The court found that the accused's vehicle struck a cyclist, causing serious injury.

The Crown's case was significantly weakened by Charter breaches committed by police during the accused's detention, resulting in the exclusion of breath samples and statements.

The court convicted the accused of impaired driving causing bodily harm but acquitted on the other two counts, finding reasonable doubt regarding whether the accused knew or was wilfully blind to having struck a person.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 mL of blood contrary to section 253(1)(b) of the Criminal Code.

The accused brought a Charter application challenging the validity of breath demands made under sections 254(2) and 254(3) of the Criminal Code, and argued that the breath samples were not taken as soon as practicable as required by section 258(1)(c).

The court found that the officer had reasonable grounds to suspect alcohol consumption based on observed driving behavior and the smell of alcohol on the accused's breath.

The court also found that the ASD fail result provided reasonable and probable grounds for the section 254(3) breath demand, and that the presence of empty beer cans in the vehicle did not undermine the reliability of the ASD result.

The court concluded that the breath samples were taken as soon as practicable, considering the lodging process, counsel contact, and the overall timeline.

The accused was found guilty.

The accused was charged with care or control of a motor vehicle with excess blood alcohol.

The Crown proceeded summarily.

The defence sought exclusion of Intoxilyzer readings under Charter section 24(2) based on alleged violations of sections 7, 8, 9, and 10(b).

The court found that the accused was denied a reasonable opportunity to speak with her counsel of choice before providing breath samples, constituting a Charter section 10(b) breach.

The court rejected other Charter arguments regarding the timeliness of the approved screening device demand and the reasonableness of grounds for the Intoxilyzer demand.

However, applying the Grant test for section 24(2) exclusion, the court found that the seriousness of the breach and its impact on the accused's Charter-protected interests outweighed society's interest in adjudication on the merits, resulting in exclusion of the breath samples and dismissal of the charge.

The accused was charged with impaired driving and operating a motor vehicle with a blood alcohol level exceeding 80 mg per 100 ml of blood following a R.I.D.E. stop.

The Crown relied on breathalyzer readings of 150 mg and 140 mg respectively.

The defence challenged both charges: first, arguing insufficient evidence of impairment, and second, arguing the breath samples were not taken as soon as practicable because the police officer contacted duty counsel after the accused had clearly and unequivocally waived her right to counsel, causing an 18-minute delay.

The court found the Crown had not proven impairment beyond a reasonable doubt and that the delay in administering breath tests was unreasonable and unexplained, rendering the presumption of identity unavailable to the Crown.

The accused was charged with Drive Over 80mg, Fail to Stop, and Fail to Remain contrary to the Criminal Code and Highway Traffic Act.

The accused brought a motion for a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms, alleging a violation of his right to be tried within a reasonable time under section 11(b) of the Charter.

The court found that the total delay of 16 months and 17 days, comprising 13 months and 16 days of institutional and crown delay, substantially exceeded the Morin guidelines.

The primary cause of delay was the crown's failure to provide a working copy of the in-car camera video, which was essential disclosure.

The court found that the applicant acted diligently throughout and that the crown's inaction and poor communication regarding the video constituted unreasonable delay.

The court inferred prejudice based on the length and nature of the delay and granted the application for a stay of proceedings.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood.

The defence brought an application alleging breaches of the accused's Charter rights under sections 8 and 10(b).

The court found that the officer lacked reasonable suspicion to demand an approved screening device test, constituting a violation of section 8.

Additionally, the court found a breach of section 10(b) rights to counsel, as the accused clearly expressed dissatisfaction with duty counsel but the officers failed to provide a meaningful opportunity to consult with alternative counsel.

Under section 24(2) analysis, the court excluded the breath test evidence due to the seriousness of the police conduct, the significant impact on the accused's Charter-protected interests, and the minimal nature of the offence.

The charge was dismissed.

A police sergeant was charged with sexual assault for conducting a strip search of a detainee in police custody.

The detainee, arrested for public intoxication, became violent and assaultive during a pat-down search, kicking and injuring a female cellblock attendant.

The sergeant subsequently cut off the detainee's shirt and bra using safety scissors while she was restrained on the floor.

The Crown alleged the strip search was retaliatory and conducted without lawful authority.

The defence argued the search was justified by exigent circumstances and conducted for valid law enforcement purposes.

The court found the search was justified under section 25 of the Criminal Code based on the constellation of exigent circumstances, including the detainee's violent and assaultive behaviour, the need to complete the search for weapons and contraband, and the practical impossibility of waiting for another female officer.

The charge was dismissed.

The accused was charged with impaired driving and "over 80" following a R.I.D.E. spot check.

The Crown relied on an Approved Screening Device (ASD) breath test failure and subsequent Intoxilyzer breath samples.

The defence challenged whether the officer had reasonable and probable grounds to arrest based on the ASD result, whether the officer breached the accused's Charter rights under sections 8, 9, and 10(b), and whether evidence should be excluded under section 24(2).

The court found that while the officer was entitled to administer the ASD test without delay, he breached the accused's rights by delaying 12 minutes before providing section 10(b) rights and by failing to make the breath demand "as soon as practicable" as required by section 254(3) of the Criminal Code.

The court excluded the breath test evidence under section 24(2) and acquitted the accused on both charges.

The accused was charged with care or control with excess blood alcohol and impaired care or control following a motor vehicle incident.

The Crown proved both offences beyond a reasonable doubt based on evidence of erratic driving, manifest signs of impairment, and breath analysis results.

The accused brought a Charter application alleging police misconduct including improper handcuffing, an allegedly planted drug baggie, failure to preserve cell video evidence, and an improperly conducted strip search.

The court found that while some police conduct was disrespectful and the Crown breached its disclosure obligation regarding the video, these breaches did not warrant a stay of proceedings or exclusion of evidence.

The court found the accused guilty of both charges.

The accused was arrested for driving with excess alcohol after failing an approved screening device.

Following arrest, he provided his lawyer's name and two phone numbers to the arresting officer.

The officer attempted to contact the lawyer but was unsuccessful, and subsequently called duty counsel instead.

The accused spoke to duty counsel for approximately four minutes.

The central issue was whether the accused's right to consult with counsel of choice under section 10(b) of the Canadian Charter of Rights and Freedoms was violated.

The court found that the officer's evidence regarding her attempts to contact the accused's lawyer was unreliable and that the accused was effectively denied the right to consult with counsel of choice.

The court excluded the breathalyzer results and acquitted the accused.

The accused was charged with possession of oxycodone, possession of oxycodone for the purpose of trafficking, and failure to comply with his recognizance.

The accused pleaded guilty to the failure to comply charge but brought a Charter application to exclude evidence of the drugs seized by police.

The court found that the accused was arbitrarily detained in violation of section 9 of the Charter and that the search of his person was unreasonable in violation of section 8 of the Charter.

The court excluded the drug evidence under section 24(2) of the Charter, finding that admission would bring the administration of justice into disrepute.

The accused was acquitted on the first two counts.