Judge rejects charter violation claim, Sault man to be retried on impaired driving charge

A gavel sits on a desk before the a meeting of the House Justice and Human Rights Committee in Ottawa, Wednesday February 13, 2019. (THE CANADIAN PRESS/Adrian Wyld)

A higher court has struck down a decision by a lower court that acquitted a Sault Ste. Marie man on an impaired driving charge.

The lawyer for the man had successfully argued that his client's charter rights were breached because of delays in administering a breath test that confirmed he had been drinking.

The case stems from a September 2019 incident in the Sault when police responded to a call about a pickup truck in a ditch on Allen Side Road, north of Third Line West.

People at the scene identified the driver, who was sitting on the shoulder of the road.

When the suspect approached police, an officer "was able to smell the odour of an alcoholic beverage on the respondent’s breath," said the court transcript of the appeal.

"At approximately 11:40 p.m., (police) formed the reasonable suspicion that the respondent had alcohol in his body while he had been the operating the motor vehicle, which was beside him in the ditch."

Emergency medical crews arrived, and police waited while the man was assessed by EMS staff.

"The officer overheard the respondent admit to consuming alcohol as opposed to drugs, which reaffirmed his reasonable suspicion that alcohol was in the person’s body," the transcript said.

"The respondent also told EMS that he was wearing his seatbelt, the airbag deployed and that he attempted to swerve to avoid hitting a deer."

After he was assessed – around 11:57 p.m. -- police told him they suspected he had been drinking and administered a breath test. He failed the test and was arrested for impaired driving.

At trial, the defence argued the man's charter rights were violated because the officer delayed administering the test while he was assessed by EMS. The law states the breath test must be administered "forthwith" after police develop reasonable grounds the suspect had been drinking.

Instead, the defence argued police had "detained" him without administering the test.

"The s. 10(a) charter right was infringed because during the first 17 minutes of the respondent's detention, he was not informed promptly of the reason," the defence argued.

"The s. 10(b) charter right was infringed because during the first 17 minutes of the respondent's arbitrary detention, he was also not offered the right to retain and instruct counsel without delay nor was he even informed of the right to be able to do so."

The police officer was "ignorant" of the meaning of the "forthwith" requirement, which led to a number of charter violations, the trial judge ruled, and dismissed the case.

The Crown appealed that decision, and the Ontario Superior Court of Justice agreed. The trial judge erred in ruling the man had been detained beginning at 11:40, when police first suspected he had been drinking, and therefore the breath test should have been administered right away.

Instead, the officer was at an accident scene, the court ruled, and was allowing the suspect to be assessed by medical staff.

'Fatal' error

"The officer had experienced accident scenes in which an involved party appeared to be medically sound only to take a turn," the transcript said. "This was a contextual element that should have formed part of the analysis."

The court ruled the fact police developed the suspicion he had been drinking doesn't automatically mean the man's detention began at that moment.

"There are circumstances where a person may not yet be detained when reasonable suspicion is formed," the court ruled.

"While the officer testified that he wished for the respondent to be examined by EMS, there is no evidence that he controlled or forced the respondent to avail himself of a medical examination by EMS or even communicated with the respondent about it."

In this context, the court ruled the trial judge made a "fatal" error in assuming the man's detention automatically began when police developed the suspicion he had been drinking.

The trial judge should have analyzed whether the man was actually being detained by police while EMS examined him – and there is good evidence he was not.

"There is a reasonable degree of certainty that the acquittal at trial was materially affected by the error outlined above," the transcript said.

"The appeal is allowed. The acquittal is set aside. A new trial is hereby ordered."

Read the full transcript here.