Judge finds officer’s inexperience “disturbing”
A “disturbing” lack of experience and training on Charter rights on the part of a Toronto police officer led to impaired driving charges being thrown out at the Ontario Court of Justice, says Toronto criminal lawyer Theo Sarantis.
In R v. N.K., Justice Richard Boivin dismissed the charge because the accused was not advised of a reason for detention and wasn’t provided with his rights to counsel at the appropriate time, among other breaches, the judgment says.
“The police conduct (though not bad faith), the training which the conduct points to and the fettering of their discretion with policies inconsistent with Charter Rights is disturbing,” Boivin says in the judgment.
The accused, represented by Sarantis, an associate with Hicks Adams LLP, was pulled over on Jan. 10 for failing to stop at a red light. An officer at the scene suspected he had consumed alcohol before getting behind the wheel, and arranged for a Breathalyzer test. The readings found he had 140 and 130 milligrams of alcohol in 100 millimetres of blood.
While waiting for the Breathalyzer to arrive at the scene, the driver was not given any other reason for his detention besides running the red light, and was not given the opportunity to call a lawyer, the judgment says.
“The issue of rights to counsel while waiting for an approved screening device comes up pretty often as officers generally don’t seem to equate the wait for the device as a detention that gives the accused the right to consult with counsel,” Sarantis says. “Rights to counsel take on an important role for an accused waiting on a screening device as often the accused doesn’t know why they are being detained and whether they are allowed to refuse the screening device and what happens if they do.”
In his judgment, Boivin says the accused was subject to an unlawful and unreasonable search and seizure.
“He was arbitrarily detained, not told the reason for his detention and his Rights to Counsel were not given or even considered,” the judgment says. “He was brought to the police station and was released more than 3 hours later. I consider the impact upon the Applicant’s liberty interest to be significant.”
While Boivin notes the seriousness of drinking and driving offences, he says when police officers do not follow proper guidelines “they are adopting policies which in effect undermine those rights they are obligated to respect.”
Sarantis is pleased with the outcome of the case.
“The judge felt that the inattention to the protections of the Charter were concerning on the part of the officer and relied partly on that in excluding the evidence of the breath samples,” he says. “The decision struck me as a fair interpretation of the law to the facts of the case.”