Impaired Driving

Fatal Accidents Increase Significantly after 4/20 Celebrations

Written on Behalf of Affleck & Barrison LLP

April 20 has become an international holiday where people gather to celebrate and consume cannabis. These mass marijuana festivities usually begin at 4:20 p.m. and continue well into the night.

A recent study has revealed that there was a slight increase in fatal U.S. car accidents on April 20 following an analysis of 25 years worth of data. Studies such as this one provide important information to the Federal and Provincial governments in deterring marijuana impaired driving in anticipation of the legalization of marijuana this summer in Canada.

WHAT DID THE STUDY ESTABLISH REGARDING THE USE OF MARIJUANA AND DRIVING ON APRIL 20?

Researchers from the University of British Columbia and the University of Toronto compared driver deaths on April 20 with deaths occurring on a day of the week before and the week after during the 25 year study of U.S. data. The study confirmed that fatal car crashes were increased by 12% (142 driver deaths) on the evening of April 20. The study also found that the risk of fatal accidents among young drivers (under the age of 21) increased by 38% in the evening of April 20.

Dr. John Staples, lead author and an internist and researcher at the University of British Columbia in Vancouver, stated,

The simplest explanation is that some drivers are impaired by cannabis use, and these drivers are contributing to fatal crashes. There should be very clear messaging to the public: don’t drive high.

Although the study lacks evidence on whether marijuana was involved in any of the April 20^th fatalities (as there was no police data on drug testing to confirm that marijuana was involved), researchers believe that the drug was responsible for some of the crashes.

DOES MARIJUANA USE AFFECT DRIVING?

Although marijuana has the reputation of being a relatively harmless drug, it can have short-term affects on reaction time, motor co-ordination, divided attention, short-term memory and decision-making skills.

Marijuana affects each individual differently based upon factors such as the person’s tolerance, and the strain and potency of the marijuana being used. Some who use marijuana experience a sense of relaxation, while others may experience panic, fear, anxiety or psychosis.

Following alcohol, cannabis is the substance most commonly associated with “driving under the influence”.

In Colorado (one of the first states to legalize marijuana in the U.S.), the number of deaths caused by auto-related accidents involving marijuana increased by 145% from 2013 to 2016. By 2016, 20% of all fatal motor vehicle accidents involved marijuana (in comparison to 10% in 2013).

ONTARIO’S PLAN TO KEEP OUR ROADS SAFE FOLLOWING LEGALIZATION

As we have previously blogged about, Ontario has implemented new measures to keep our roads safe by implementing tougher drug-impaired driving laws.

Ontario has enacted zero tolerance rules prohibiting young (age 21 and under) and novice (G1, G2, M1, M2) drivers from having the presence of a drug in their system. For a first offence, young and novice drivers will face a three-day suspension and a $250 fine. A second offence will result in a seven-day suspension and a $350 fine and all subsequent transgressions will result in a thirty-day suspension and a $450 fine.

Commercial drivers will also be subject to zero tolerance rules prohibiting them from having any alcohol and drugs in their system. For any offence, a commercial driver will face a three-day suspension and a $250 to $450 fine.

Ontario has also introduced escalating monetary penalties to all impaired driving offences starting at $250 for a first offence and increasing up to $450 for third and subsequent occurrences.

RECOMMENDATIONS

As we prepare for the legalization of recreational cannabis in Canada this summer, we should consider ways to avoid driving while impaired and being a passenger with an impaired driver.

We should all be reminded to:

Always have a designated driver; or
Call a friend or loved one to pick you up; or
Call a cab or a ridesharing service; or
Stay overnight and sleep it off.

It is also strongly recommended that we have an open dialogue with our children and reinforce the dangers of driving while impaired by alcohol or drugs. It is also recommended that parents model safe driving behaviour by never driving any vehicle while impaired.

If you have been charged with a driving offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.

Two Ontario Cases Fall Apart As a Result of Police Failure to Immediately Inform of Right to Counsel

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Justice has recently excluded significant evidence in two criminal cases involving impaired driving after ruling that police had violated the accuseds’ Charter rights by failing to immediately inform them of their right to counsel.

In the first case, Justice Craig Parry excluded breath samples from the driver’s trial due to a Charter breach, which resulted in a charge of driving with a blood-alcohol content above the legal limit to be dismissed.

In another case earlier this month, a man was found not guilty of having care or control of a vehicle while impaired by a drug when Justice Scott Latimer threw out the evidence after ruling that police had violated his Charter rights.

RIGHT TO COUNSEL

The right to counsel is a fundamental right included in the Canadian Charter of Rights and Freedoms (“Charter”).

10. Everyone has the right on arrest or detention:

b. to retain and instruct counsel without delay and to be informed of that right;

Under the Charter, the detainee must be informed of the right to retain and instruct counsel “without delay”, which has been interpreted to mean “immediately”. The Supreme Court of Canada has made it clear in the case of R. v. Suberu that avoiding delay helps to protect against the risk of self-incrimination and interference with an individual’s liberty. This obligation also requires police to abstain from obtaining incriminatory evidence from the detainee until he/she has had a reasonable chance to contact a lawyer, or the detainee has unequivocally waived the right to do so.

The police have both an informational duty and an implementational duty upon arrest or detention. The police must both inform the accused of the right to retain counsel and must provide the detainee with a reasonable opportunity to retain and instruct counsel. Justice Abella, speaking for the Supreme Court of Canada in the case of R. v. Taylor, stated:

The duty to inform a detained person of his or her right to counsel arises ”immediately” upon arrest or detention (Suberu, at paras 41-42) and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to counsel at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances.

WHAT HAPPENED IN THE CASE OF COLIN MITCHELL?

On October 9, 2016, a report was received by police of a possible impaired driver exiting Highway 401 at Highway 8. Constable Karen Marquis received the dispatch and pulled over the vehicle that Colin Mitchell (“Mitchell”) was driving. Mitchell failed a breathalyzer test and was then arrested. The officer waited 11 minutes after the arrest to read Mitchell his rights to counsel. In the back of the police cruiser Mitchell told the officer that he wanted to call a lawyer. He was not allowed to make the call until he arrived at the police station. Mitchell was finally given the chance to make a phone call to duty counsel 51 minutes after being placed under arrest.

On February 22, 2018, Justice Parry found that the officer breached her obligation to inform Mitchell of his right to counsel without delay and breached her implementational duty to facilitate access to counsel at the first reasonable opportunity. Justice Parry concluded that the evidence gathered in this case (the breath samples) was evidence that was attained in a manner that infringed the accused’s right to counsel. Justice Parry stated,

Exclusion of the evidence is the only remedy that can, in these circumstances, prevent bringing the administration of justice into further disrepute. To do otherwise would be to condone a perpetual indifference to the knowledge of the basic obligations created by one of the most important Charter rights.

Justice Parry, therefore, excluded the results of the breathalyzer test due to the delay in informing Mitchell of his right to counsel. The charge of driving with more than the legal limit of alcohol in his blood was dismissed.

WHAT HAPPENED IN THE CASE OF ANDREW DAVIS?

On July 17, 2016, a civilian reported a case of bad driving to the Waterloo Regional Police. Constable Tyler Shipp located the vehicle in question in a parking lot in Waterloo and Andrew Davis (“Davis”) was found in the driver’s seat. The officer spoke to Davis through an open window. Davis had sunglasses on, no shirt and was slightly dishevelled. Davis’ speech was described by the officer as garbled. The officer directed Davis to remove his sunglasses and observed Davis’ eyes to be “swollen, half open, very drowsy”. Another officer, Constable McKenna, arrived on scene to administer a Standard Field Sobriety Test.

Following the sobriety test, Davis was arrested, handcuffed and placed in the back of the police cruiser. Drug paraphernalia, prescription drugs and what the officer thought was a meth pipe were located inside Davis’ vehicle. Eight minutes after his arrest, Davis was read his rights to counsel by police. These rights should have been read immediately following his arrest.

On March 6, 2018, Justice Latimer held that a violation of section 10(b) of the Charter occurred as a result of the police failure to provide Davis with his rights to counsel without delay upon arrest. Due to the Charter violation, Justice Latimer excluded important evidence, including all of the items seized from Davis’ vehicle and his post-arrest statement made to the police. Justice Latimer concluded that the Crown had failed to prove that Davis was impaired by a drug at the time of his care or control of his motor vehicle.

If you have been charged with impaired driving or any other driving offence, contact one of the experienced Oshawa criminal lawyers at Affleck & Barrison LLP for a free consultation. We have a 24-hour phone service for your convenience. Contact our office online or at 905-404-1947.

30 Days in Jail for Man Convicted of Drinking and Driving

Written on Behalf of Affleck & Barrison LLP

An Ontario man, who was convicted of drunk driving (over 80 driving), was recently sentenced to 30 days in jail despite having no criminal record.

WHAT HAPPENED?

In the early morning hours of September 2, 2016, a serious car accident took place in front of the Riverside Inn in Bracebridge, Ontario.

The driver in question, Brandon Greavette, was in a pick-up truck which left the roadway, knocked down a light standard, and damaged vehicles in the parking lot of the Riverside Inn before coming to a stop on top of the dislodged light standard. The airbags of his truck were set off by the impact. One of the front wheels of a small sedan were knocked off the car and the axle and suspension unit were found lying on the roadway.

Greavette, 26 years of age, only suffered minor cuts to his face as a result of the collision. He admitted to a police officer at the scene that he had been the driver of the pick-up truck and that he had been drinking. He had slurred speech, bloodshot eyes, an inability to focus, and an odour of alcohol on his breath and body. He had trouble balancing and stumbled on his way to the police car. Greavette provided two breath samples into a breathalyzer and was arrested at the scene. His readings were 140 and 130 mg of alcohol in 100 mg of blood.

Greavette was convicted of Over 80 driving following his trial on October 19, 2017 and Justice David Rose provided reasons for sentencing on January 10, 2018.

SENTENCING PRINCIPLES IN CANADA

If an accused pleads guilty or is found guilty at trial, the Court must then determine a sentence that is fair given all of the circumstances, the seriousness of the offence, and the offender’s degree of responsibility.

The Court may increase or decrease a sentence when reviewing all of the aggravating and mitigating factors relating to the offender and the offence.

An aggravating factor is something that can serve to increase the sentence, for example the offender’s criminal record. A mitigating factor is something that can serve to decrease the sentence, such as a good work history which can indicate good character.

Under section 718 of the Criminal Code, Canadian courts must impose just sentences that have one or more of the following objectives:

denounce the unlawful conduct and harm to the victim or the community;
deter the offender and others from committing crimes;
separate offenders from society, when necessary;
rehabilitate the offender;
provide reparations for harm done to the victim or the community; and
promote a sense of responsibility in offenders and acknowledgement of the harm done.

SENTENCING JUDGMENT

In making his sentencing decision, Justice Rose took into account various factors including rehabilitation, Greavette’s degree of responsibility, the fact that he was a first-time offender, and deterrence.

The mitigating factors in this case included the fact that Greavette is a relatively youthful first-time offender who has a supportive family and a good job. However, Justice Rose noted that this was tempered by the fact that Greavette continues to abuse alcohol socially which leads to assaultive behaviour.

In addition, although Greavette has no prior criminal record, the Court noted that he had several driving-related offences (i.e. Provincial Offences Act violations) on file which included four speeding tickets, tailgating, failing to stop at a signal or crosswalk, and careless driving. He had also been ticketed in 2016 for consumption of alcohol in public. These were aggravating factors.

In addition to Greavette’s problematic-driving record, additional aggravating factors included the troubling damage from the collision (including damage to the two vehicles, property damage to the light fixture, and damage to other vehicles in the parking lot at the Riverside Inn).

Justice Rose also noted that there were 6 individuals who walked away from the accident virtually and miraculously unharmed. He emphasized the devastating consequences that drunk drivers have on Canadian society and went on to cite various cases which reiterate that drinking and driving offences are serious crimes and must be treated this way by the courts.

Given all of the above these factors, Justice Rose held that this case calls for a deterrent sentence.

The Pre-Sentence Report “supports the finding that Mr. Greavette accepts responsibility for this offence but has not yet understood that when he drinks bad things happen”.

Justice Rose wrote,

After reflection I have come to the conclusion that neither a fine, nor a conditional sentence order will meet the required principals of sentencing. I do not take lightly the decision to jail a first offender, but after reflection I have determined that the sentence will be 30 days in jail.

In addition to time in jail, Greavette is to be placed on probation for 1 year following his jail sentence, must attend counselling for alcohol abuse and obey a curfew set by the probation officer. He will also undergo an 18 month driving prohibition.

If you have been charged with a driving offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.

OPP Launches 2017 Festive R.I.D.E. Campaign

Written on Behalf of Affleck & Barrison LLP

As the holiday season quickly approaches, there will be many opportunities to celebrate with family, friends and co-workers. During this time of festivities, drivers are reminded of something that cannot be stated enough: Do not drink and drive.

In an effort to reduce impaired driving across the province, the OPP has launched its annual Festive Reduce Impaired Driving Everywhere (R.I.D.E.) campaign. The campaign has already begun, and is running from November 24 to January 2, 2018.

IMPAIRED DRIVING STATISTICS: ONTARIO

So far in 2017, according to the OPP, 37 people have died in collisions on OPP-patrolled roads in which alcohol or drugs were a factor. Of the 37 people killed in these accidents, 19 people were innocent victims.

During the 2016 Festive R.I.D.E. campaign, the OPP charged 562 drivers with impaired driving after performing more than 6,875 R.I.D.E. spot checks throughout the province.

The OPP wants drivers to remember this very important message:

As we gather with family and friends this holiday season, let’s make safety a priority by planning ahead. Whether arranging for a designated driver, taking public transit, or suggesting alternate arrangements for someone you think is impaired – simple steps can ensure everybody arrives home safely.

WHAT IS R.I.D.E.?

R.I.D.E. (the acronym for “Reduced Impaired Driving Everywhere”) is an Ontario sobriety program that was established in 1977 to assist in reducing the number of accidents and injuries resulting from impaired driving.

During the holiday season, and at other times during the year, local Police Services sets up spot checks throughout the province to randomly screen motorists for driving impaired. Police award responsible drivers with R.I.D.E. CHECKS Rewards booklets for obeying the laws.

The intention of a R.I.D.E. road stop is to check for sobriety, as well as valid license, ownership, and insurance; and the mechanical fitness of vehicles.

The R.I.D.E. program provides police officers with the legal right to perform planned roadside checks to identify and charge drivers who are under the influence of alcohol. R.I.D.E. gives officers the right to briefly detain and question drivers even if there are no grounds or probable cause for believing that a driver is over the legal blood alcohol limit, impaired, or has committed any offence.

While officers are not authorized to perform other criminal investigations or searches unconnected with the purpose of R.I.D.E., there are a few exceptions to this rule, for example if there are illegal drugs or contraband in “plain view” in the vehicle.

WHAT IS REQUIRED FOR A POLICE OFFICER TO REQUIRE A BREATH SAMPLE?

When a driver is pulled over for a R.I.D.E. check, a police officer may require a breath sample be given for a roadside approved screening device (“ASD”) if the officer has a “reasonable suspicion” that the driver has alcohol in their body. A “reasonable suspicion” may be based on several factors, for example:

Bloodshot eyes;
Dilated pupils;
Slurred speech;
Odor of alcohol coming from the vicinity of the driver or on the breath;
Red rim watery eyes;
Erratic driving;
Gum chewing;
Driving with open windows in cold weather;
Headlights not being turned on;
Evasive responses to the police officer’s questions;
Leaning away from the window when questioned;
Rolling down the rear window instead of the front window when being questioned by the police;
Uncoordinated movement;
Sleepiness;
Lack of ability to follow simple instructions; and,
Admission of consumption.

The most common reason why drivers will be asked to blow into an ASD at a spot check is when a driver admits that they have had something to drink or consumed drugs prior to driving. The consumption of any alcohol or drugs will form the basis for “reasonable suspicion”.

CONSEQUENCES FOR IMPAIRED DRIVING

The amount of alcohol in your body is measured by the amount of alcohol in your blood. This is called blood alcohol concentration, otherwise known as BAC. Many factors can affect your blood alcohol level, including how fast you drink; whether you are male or female; your body weight; and, the amount of food in your system.

In Ontario (and the rest of Canada), the maximum legal BAC for fully licensed drivers is 80 milligrams of alcohol in 100 millilitres of blood (0.08). Driving with a BAC over 0.08 is a criminal offence.

There are also serious consequences for those found to be driving below 0.08. If you register between 0.05 to 0.08 you are considered in the warn range and will face provincial administrative penalties. These penalties include driver’s licence suspension, remedial alcohol education program, remedial alcohol-treatment program, ignition interlock and, monetary penalties depending upon the number of occurrences.

Drivers who blow over 0.08 milligrams of alcohol in 100 millilitres of blood will immediately have their vehicle impounded for seven days, receive an administrative road side suspension of 90 days, and be required to pay a $198.00 administrative monetary penalty.

If you have been charged with impaired driving or another driving offence, contact our office online or at 905-404-1947 to schedule a free consultation with one of our knowledgeable and experienced Oshawa lawyers. We regularly handle drunk driving and over 80 defence. We have 24-hour phone service for your convenience.

Ontario Announces Zero Tolerance to Prevent Drug-Impaired Driving

Written on Behalf of Affleck & Barrison LLP

We’ve previously blogged about drug-impaired driving, and are now revisiting the topic in light of a recent announcement by the provincial Liberals.

On September 28, 2017, Premier Kathleen Wynne announced that commercial truckers, drivers 21 and under, and novice motorists will face stiff penalties if caught behind the wheel after using cannabis or alcohol.

This announcement was made in advance of the federal government’s plan to legalize recreational cannabis by July 2018.

WHAT IS ZERO TOLERANCE LEGISLATION?

Ontario is the first province or territory to publicize an extensive plan to regulate federally legalized cannabis. These new measures will be in addition to the penalties found under the Criminal Code of Canada for impaired driving convictions (ie. loss of licence, additional fines or incarceration).

Ontario’s zero tolerance legislation will include tougher laws against drug-impaired driving for young drivers aged 21 and under; novice drivers (G1, G2, M1 and M2 licence holders); and all commercial drivers.

Zero tolerance means that drivers should not get behind the wheel if they have any measurable presence of drugs or alcohol in their system as detected by an oral fluid screening device.. The federal government has promised to introduce a screening device and set thresholds for detecting the presence of cannabis in the near future.

PENALTIES, LICENCE SUSPENSIONS, AND OTHER CONSEQUENCES

Ontario’s new legislation will increase monetary penalties for drivers who fail or refuse to perform a sobriety test. It has been proposed that, for a first offence, young drivers and all G1, G2, M1 and M2 licence holders will face a three day suspension and a $250 fine.

For a second offence, these offenders will be subject to a week-long suspension and a $350 fine with all subsequent occurrences facing a 30-day suspension and a $450 fine.

Commercial drivers will also be subject to a zero tolerance policy and could face a three day suspension any time they are caught and fined up to $450.

All other drivers in Ontario who are found to be within the “warn range” with blood alcohol concentration between .05 and .08 or drug impaired and fail a roadside standardized field sobriety test could face up to 30 days licence suspension and up to $450 fines with subsequent occurrences.

Those drivers with blood-alcohol concentrate levels above .08, drug-impaired or who fail or refuse to submit to tests could face a 90-day suspension and $550 fines.

ADDITIONAL PENALTIES ANNOUNCED TO IMPROVE ROAD SAFETY

Legislation will be introduced this fall in Ontario to improve road safety and deter careless and distracted driving.

A new offence will be added to Ontario’s Highway Traffic Act for careless driving causing death or bodily harm. This conviction would lead to a licence suspension of up to five years, fines of between $2,000 and $50,000, up to two years of incarceration and six demerit points.

Drivers who don’t yield to pedestrians would also see increased fines up to a maximum of $1,000.

In addition, fines for distracted driving (ie. using a cellphone while operating a vehicle) would increase from a maximum of $1,000 to up to $2,000 on a second conviction and up to $3,000 for third or subsequent incidents, as well as six demerit points for multiple offences. The first offence would also result in a three day licence suspension and if convicted for a third time would result in a 30 day licence suspension.

Drivers with a G1, G2, M1 or M2 licence who are convicted of three or more distracted driving offences would have their licence cancelled.

These new penalties will be the toughest consequences for repeated distracted driving offences across Canada.

If you have been charged with a driving offence, please call Affleck & Barrison LLP at 905-404-1947 or contact us online. We offer a free consultation and are available 24 hours a day, seven days a week.

Back to School- Bicycle Safety and Criminal Law

Written on Behalf of Affleck & Barrison LLP

As the long summer days get shorter and shorter, across Canada millions of students are returning to school. Returning students means the return of school buses, increased pedestrian traffic around school zones and children riding their bikes to school.

Bicycles Under the Highway Traffic Act

Under Ontario’s Highway Traffic Act (HTA), a bicycle is a “vehicle”, just like a car or truck. As such, cyclists have the same rights and responsibilities as drivers and must obey all traffic laws.

Cyclists must stay as close to the right edge of the road whenever possible, especially when travelling slower than other traffic, which will be the case in most instances. Cyclists who do not obey the HTA may be charged with an offence of careless driving, defined as driving “without due care and attention or without reasonable consideration for other persons using the highway” and may face a fine of $400 to $2,000 and/or potentially up to six months of jail time.

Best Practices for Parents

Parents should remind their children to ride in a single file, complete a shoulder check for vehicles, know how to use hand signals, and watch for cars backing out of driveways and/or pulling onto roads.

By law, every cyclist under the age of 16 must wear an approved helmet. In fact, according to the Highway Traffic Act, it is a parent or guardian’s duty not to authorize or permit a person to ride a bicycle under the age of sixteen unless he/she is wearing a bicycle helmet.

For adults over 18, while it is not compulsory to wear helmets, wearing one can greatly reduce the risk of permanent injury or death, and can set a positive example to your children.

Requirements for Cyclists

By law, every bicycle in Ontario must be equipped with:

A bell or horn in good working order;
At least one braking system on the rear wheel capable of skidding that wheel on dry, level pavement;
A white front light (visible from a distance of at least 150 metres);
A red rear light or red rear reflector;
Two strips of white reflective tape on front forks (each strip to be 125mm by 25mm);
Two strips of red reflective tape on rear forks.

These requirements are mandatory if you are riding between half an hour before sunset and half an hour after sunrise, or anytime visibility has been reduced to the point where you cannot see 150m ahead. Failure to comply with these requirements can result in a fine.

If you are stopped by a police officer, cyclists are required by the HTA to provide their name and address or proper identification. A police officer may arrest an individual who does not comply with providing proper identification.

Rules vary in different communities regarding whether it is lawful to cycle on the sidewalk depending upon a municipality’s bylaws. Toronto is preparing to adopt a cycling bylaw which stipulates that “no person age 14 and older may ride a bicycle on a sidewalk”. Persons found cycling on a sidewalk 14 or over may be charged a fine. Riding on a sidewalk puts pedestrians at risk and motorists crossing intersections or driveways do not usually look for cyclists on the sidewalk.

Drivers must be very cautious of bicycles and may be subject to penalties should they not follow the law. For example, a driver may be subject to a fine for failure to leave a minimum of one metre distance when passing a cyclist.

Another form of protection for cyclists codified in the HTA pertains to the improper opening of a vehicle door (for driver or passenger). Everyone is required to take precaution to ensure that the act of opening a vehicle door will not interfere with the movement of or endanger any other person or vehicle. Anyone who is found guilty of this offence is liable to a fine of not less than $300.00 and not more than $1,000.00.

Operating a Bicycle While Intoxicated

There are laws in place in Ontario where you can be charged with driving under the influence while operating a bicycle. Although there appear to be gaps in the HTA regarding impaired riding of a bicycle, you can be charged under the Liquor License Act (LLA).

The LLA states that it is against the law to be “in a place to which the general public is invited or permitted access” while in an intoxicated condition. Public intoxication is a criminal offence in Ontario and comes with harsh consequences such as a fine or in most severe cases, jail time. If you are swerving in and out of lanes, biking erratically and not paying attention to your surroundings, a police officer will have cause to stop you and you may be asked to perform a sobriety test.

To speak with an experienced criminal defence lawyer about your legal rights, please contact Affleck & Barrison LLP online or at 905-404-1947. We maintain a 24-hour call service to protect your rights and to ensure that you have access to justice at all times.

Police Violate Man’s Charter Rights by Allowing News Crew to Film Him at a RIDE Stop

Written on Behalf of Affleck & Barrison LLP

An Ontario man was recently acquitted of impaired driving after a judge found that his Charter rights had been violated when police permitted a TV camera to film him giving breath samples and speaking to a lawyer on the phone at a RIDE check.

What Happened?

In May 2016, York Regional Police set up a RIDE stop in Richmond Hill using a mobile testing truck. Members of the media were invited to be present as a “ride-along”. The ostensible purpose of this arrangement was to demonstrate that, despite recent high-profile incidents involving impaired drivers, drunk driving continues to be an issue in York Region.

When the man in question was pulled over, a Global News crew was present on site and filmed the man being taken into the RIDE truck, providing breath samples, and telling officers that he had only had one drink. The man also spoke briefly to a reporter after he gave his breath samples and called counsel. The segment later aired on television.

The man’s breath samples showed results of 152 and 146 milligrams of alcohol in 100 milliliters of blood- almost twice the legal limit. He was charged with Driving Over 80.

The Camera Crew

At trial, the man testified that the Global News crew filmed him the entire time he was in the breath room in the RIDE truck, and while he was calling duty counsel in a small phone booth located inside the truck.

The man claimed that he had asked the police officer administering the breath test whether the cameraman could leave, but was told that the police had given him permission to be there. He claimed that he found this intimidating.

The man further testified that when he called counsel he told the lawyer that he was being filmed. The lawyer was surprised. The man said that the camera was so close that even if he turned around inside the small phone booth the camera was still about an inch away. The man testified that he wanted to ask the lawyer questions but could not because he was being recorded. He asked the cameraman to turn the camera off, but the cameraman refused, telling the man that the crew had permission to be there. The man was told that neither his face nor his name would be shown on TV. He was later clearly shown on the news segment.

Charter Violations: Blood Samples Inadmissible

Justice David Rose concluded that the man’s Charter rights to counsel and to be free from unreasonable search and seizure had both been infringed, making the breath samples inadmissible. The man was acquitted.

The judge noted that the rights violations were “particularly serious” since the order to permit the news crew to film had come from an unknown police official, stating:

What aggravates the seriousness of the charter violations in this case is that there appears to have been no input from the actual officers on scene about what might happen if a TV news crew were allowed inside the RIDE truck…no witness personally took responsibility in the evidence to explain the rationale for Global TV being in the RIDE truck.

Justice Rose also commented on the irony of the situation, stating:

What is regrettable in this case is that otherwise reliable evidence of blood alcohol content of a motorist is excluded because York Regional Police saw apparent wisdom in giving Global News access to the RIDE truck (where the breath samples were taken).

…

An effort to publicize a fairly routine police alcohol driving interdiction program will result in an acquittal. The irony is not lost on me.

After the decision was issued, a spokesman for York Regional Police told the Toronto Star that corporate communications for the police service has made changes to its policies to ensure that media is more closely supervised while on ride-alongs.

A Global News executive told the Star that their journalists are trained to “balance the rights of accused persons with the public’s right to know”, further explaining that the crew “operated in plain sight with police authorization, keeping as low a profile as the environment allowed.”

If you have been charged with impaired driving, driving over 80, or any other driving offence, contact one the experienced Oshawa drunk driving lawyers at Affleck & Barrison LLP for a free consultation. We have 24-hour phone service for your convenience. Contact our office online or at 905-404-1947.

Judge Dismisses Drunk Driving Charges Because Police Officer Assaulted Suspect

Written on Behalf of Affleck & Barrison LLP

In a recent decision, an Ontario judge found that a Toronto police officer had assaulted a man that had been arrested for drunk driving, and showed a “lack of honesty” with respect to what happened that therefore, violating the man’s Charter rights. The results of breath tests taken the night in question were not admissible, and the charges against the man were dropped.

The Night in Question

The man was stopped at a RIDE program and arrested after her blew over 80. He was taken to a police station for further breath tests.

After he took the first breath test upon arrival at the station and blew over the limit, he was handcuffed to a bench outside of the testing room while he waited for the second test. A police officer waited with him (the detaining officer). While the man was waiting, his girlfriend, who had been in the car with him, and who accompanied him to the police station, became upset and vocally agitated, causing what the officers described as “a ruckus” at the front desk. After being contacted by the front desk, the detaining officer asked the man to speak to his girlfriend on the phone to calm her down. The man refused.

At that point, the officer allegedly became so aggressive that as he held the phone up to the man’s ear to get him to speak to the girlfriend, he grabbed the man by the collar, pushed him back and forth, and, in the process of doing so, hit the side of the man’s head with the phone, causing him to bang his head on the wall six or seven times, and injured his collarbone.

The man also claimed that he had asked to use the washroom when he arrived at the station, but that the police officer who arrested him (the arresting officer) had told him that he could urinate in the squad car.

In response to the man’s allegations, the detaining officer claimed that he held the phone up to the man’s ear, and that when the man pushed aside the officer’s hand, it accidentally “snapped back” and hit the man on the side of the head. The officer denied the rest of the man’s allegations.

After this telephone incident, the man took his second breath test, which again registered over 80. The police charged him.

Video Evidence

In-car video from the squad car, introduced at trial, showed the arresting officer telling the man that he is the same age as the officer and that he can “hold it”. He then raised his voice and suggested that the man should urinate in the back seat if he “has to go so bad”.

Video from the testing room shows the man telling the breath technician that the detaining officer “was a problem”, and mentioned something about being punched by an officer. The man appears shaken on the video.

The Decision: Assault

Charter Violations

The issue at trial was whether the police had breached the man’s s. 7 (life, liberty and security of the person) and s. 12 (cruel and unusual punishment) Charter rights.

The man’s defense lawyer argued that the detaining officer had violated his s. 7 rights when he assaulted the man while trying to persuade him to speak to his girlfriend.

The judge was perplexed with the detaining officer’s version of events, stating that the officer’s “evidence about the incident and about what happened afterwards was vague and at times evasive.” The officer claimed that he had spoken to the man about the incident afterwards and had checked for injuries. He also recalled that the man may have mentioned injuries but could not recall whether this was immediately following the incident, or later. He had not made any notes about the incident or about anything that happened afterwards. The judge noted:

I find this difficult to understand. This was an important episode; one about which an officer would be expected to make notes. This shows a lack of diligence with regard to the incident and perhaps an effort to obfuscate it.

The judge also noted that there were two photos submitted as evidence that depicted a significant red mark on the man’s left collarbone. There were no injuries to his head. The judge found it “odd” that the man would not have suffered any head injuries given his allegation that it had hit the wall several times. The man had not offered any explanation for this at trial. However, the judge noted that this alone did not cause him to disbelieve the man about the assault, stating:

I find that [the man] testified in a credible manner. Any flaws in his evidence are not sufficient to cause be to disbelieve his account of the assault. This was a very traumatic event. It is understandable that in those circumstances one might not speak as accurately as one would in a calmer setting.

The Officer’s Evasiveness and Lack of Honesty

The judge also took issue with the officers’ behavior for several reasons. Firstly, the detaining officer’s response to the man’s request to use the bathroom was not sympathetic. Furthermore, the officer demonstrated a “belligerent and demeaning attitude” toward the man by asking him to urinate in a police car.

In addition, the officer had demonstrated evasiveness and lack of honesty by denying to the court that he had said this, and only admitting it once the video evidence was presented. The Judge noted:

I find it hard to believe that [the officer] would have forgotten that he said this to [the man]. It is an astonishing thing to tell someone. Consequently, I find that his testimony on this point was evasive and lacked the candour that one rightfully expects of a witness testifying under oath or affirmation.

The judge ultimately determined that the officer had assaulted the man.

Additionally, the judge found that the officer had used more force than was necessary to accomplish his purpose (which had been to get the man to speak to his girlfriend to calm her down). The man had had no obligation to speak with his girlfriend.

Breathalyzer Results Not Admissible

Lastly, the judge determined that, per s. 24 of the Charter, the results of the breath test had been “obtained in a manner that infringed or denied any rights of freedoms guaranteed by the Charter”, noting:

… this was a grievous breach of [the man’s] rights under s. 7 of the Charter. An assault on a person in custody while handcuffed to a bench to try to persuade him to do something that he has no obligation to do is indeed a grievous breach of the person’s rights under s. 7 of the Charter.

Furthermore, the conduct of the police officers further exacerbated this breach. Neither the arresting officer nor the detaining officer had been forthright with the court. In addition, neither of them had “responded responsibly” to the man’s report of assault or done anything to follow up, investigate, or report the incident to their superior officers. The judge concluded:

…the impact of the breach on [the man’s] Charter-protected interest of the security of his person was gravely impacted by being assaulted by one of the police officers that was holding him in custody.

The results of the breath tests were therefore excluded. Since there was no other evidence against the man on the charge of blowing over 80, the judge found him not guilty and dismissed the charges.

Depending on the specifics of your situation, an impaired driving or drive over 80 conviction can have significant consequences, including jail time, fines, loss of your driving privileges, and damage to your reputation in the community. If you have been charged with drive over 80, contact our office online or at 905-404-1947 to schedule a free consultation with one of the Oshawa impaired driving lawyers at Affleck & Barrison LLP. We have 24-hour phone service for your convenience. Our experienced lawyers to handle your defence with diligence and expertise.

Police Did Not Trespass and No Charter Violation For Arrest of Drunk Driver Who Was Peeing on His Front Porch

Written on Behalf of Affleck & Barrison LLP

In a recent decision, an Ontario judge found that a man who was arrested while peeing on his front porch after an officer received reports of a drunk driver in the area had not been arrested or held in violation of his Charter rights, and the officer had not been trespassing when he made the arrest.

What Happened?

The man in question, Mr. Mali, drove home while intoxicated, parked his car on the driveway, and began to pee on his front porch. A police officer who had responded to a call about a possible drunk driver walked onto Mr. Mali’s property and began to ask him questions.

Mr. Mali initially responded by telling the officer that he “had to pee” and that he did not want to speak with the officer. He eventually began to answer the officer’s questions, and was arrested for impaired driving and taken to the station.

Mr. Mali provided three breath samples at the police station, which revealed that his blood alcohol content (BAC) was almost three times the legal limit. After providing the samples, Mr. Mali was placed in a cell for approximately six and a half hours and then released.

At trial, Mr. Mali’s counsel argued that when Mr. Mali informed the officer that he did not want to speak with him, the officer had been obliged to leave, and that his failure to do so, and Mr. Mali’s subsequent arrest and demand for breath samples violated Mr. Mali’s s. 8 Charter rights to be free from unreasonable search and seizure. The fact that he was held for six hours in a cell at the police station was “overholding” and violated his s. 9 Charter right not to be arbitrarily detained. Mr. Mali’s counsel argued that the breath test results, the statements made by Mr. Mali on the night of his arrest, and the observations made by the police on the night of the arrest should be excluded as evidence as a remedy for the supposed Charter violations.

Justice Schrenk dismissed the Charter application, and found Mr. Mali guilty on two counts of driving while impaired.

The Court’s Reasoning

The Arrest and Breath Samples

Mr. Mali’s defense counsel argued that his arrest on private property and subsequent request for a breath sample violated Mr. Mali’s s. 8 and s.9 Charter rights.

Case law has clearly established that it is permissible for a police officer who has a legitimate basis for entering a driveway- such as seeing a driver driving erratically, and following the driver back to a destination to ensure they have arrived safely before detaining them- to do so. That officer has implied permission to enter onto the property.

In this case, defense counsel for Mr. Mali accepted that the officer was entitled to enter onto Mr. Mali’s property; however, when Mr. Mali informed the officer that he did not want to speak with him, this withdrew the implied invitation, and the officer then became a trespasser.

Justice Schrenk disagreed with this argument for two reasons.

Firstly, there had not been a “clear expression of intent” that Mr. Mali did not wish to communicate further with the officer. Rather, Mr. Mali had stated that he “had to pee” and “didn’t want to talk”. While this could potentially be interpreted as a complete refusal to speak, a more reasonable interpretation is that Mr. Mali did not want to speak until he had finished urinating. Mr. Mali’s subsequent willingness to answer questions made such an interpretation even more reasonable.

Secondly, even though the officer may not have had grounds to arrest Mr. Mali when they initially engaged in conversation, he did once he realized how intoxicated Mr. Mali appeared. Had this interaction taken place on the road, the Highway Traffic Act would have given the officer the authority to detain Mr. Mali. While the Act does not apply on private property, there is a related common law right to detain someone on their private property, as long as the police officer is lawfully entitled to be on the property. It’s clear, based on existing caselaw, that once a police officer has entered onto private property under an implied invitation and arrests a person, that officer can then remain on the property in order to complete the arrest even if the implied invitation is later withdrawn:

In this case, Cst. Leal lawfully entered the property to conduct an investigation. Even if Mr. Mali withdrew the implied invitation, he was by then lawfully detained and Cst. Leal was entitled to remain on the property to continue that detention and to arrest Mr. Mali once he had grounds to do so.

Justice Schrenk concluded that there was no s. 8 violation in this case.

“Overholding” at the Station

After being detained at the police station, Mr. Mali provided three breath samples. The last breath test was administered at 3:28 a.m. He was released around six and a half hours later, at 9:49 a.m. Mr. Mali’s defense counsel argued that this was an instance of “overholding” which violated his s. 9 Charter rights.

“Overholding” claims are common. Caselaw has clearly established that police are entitled to hold someone for a period of time after a breath test is administered, but only if the decision to hold that person is made for legitimate reasons and based on proper considerations. Such considerations, known as “Price factors” after the case they appear in, include:

The person’s BAC;
The person’s level of comprehension;
Whether the person was charged with impaired driving;
Whether the person had a suspended license;
Whether there was a responsible individual to pick the person up;
Whether the person has a criminal record;
Whether the person has any outstanding charges;

The officer in charge can make an informed decision about when to release the person based on the above and other factors. A number of factors should be considered, and the release decision should not be made based on BAC alone.

In this case, the police officer in charge of the station on the evening Mr. Mali was detained testified that he considered the Price factors in deciding when to release Mr. Mali. The officer who relieved the initial officer in charge around 5:45am, testified that it was his general practice to consider the BAC of a detained person by assuming that the person eliminated alcohol at a rate of 15mg per 100 ml of blood per hour. Additionally, it was his general practice to have a cells officer check on detainees every thirty minutes and report their observations of a prisoner’s sobriety. Here, in applying the general calculation of alcohol elimination, Mr. Mali’s BAC would still have been significantly over the legal limit upon his release at 9:49am.

Justice Schrenk found that in these circumstances, he was not persuaded on a balance of probabilities that Mr. Mali was held in violation of his Charter rights.

The Charter application was dismissed.

If you have been charged with impaired driving or another driving offense, contact our office online or at 905-404-1947 to schedule a free consultation with one of our knowledgeable and experienced Oshawa lawyers. We regularly handle drunk driving and over 80 defence. We have 24-hour phone service for your convenience. Our office is located within walking distance of the Durham Consolidated Courthouse.

Drunk Driver with License Suspension Receives Jail Time after Causing Death of Cyclist

Written on Behalf of Affleck & Barrison LLP

A 23-year old Toronto woman, who has repeatedly been caught driving while impaired, has been sentenced to seven years in prison following an accident that killed a cyclist in June 2015.

On June 11, 2015, after drinking heavily, Darya Selinevich was driving down Finch Ave. W. at almost twice the speed limit. Yong Kang, a 44-year old man, was cycling along the same stretch of road. Selinevich struck Kang, then continued to race through the residential neighbourhood, swerving around a police car and through a red light, before abandoning her vehicle (still running) in a strip mall parking lot and fleeing on foot.

History of Drunk Driving

Selinevich should not have been driving on that June evening. One month prior to Kang’s death, she had received a one-year license suspension for driving while intoxicated.

Selinevich had been driving south on the DVP and was pulled over for speeding. She informed the officer that she was in a hurry to get downtown Toronto as her friend was “contemplating suicide”. The officer informed dispatch of the alleged emergency, and then administered a breathalyzer after detecting a strong odour of alcohol on Selinevich’s breath. The sample registered double the legal limit of alcohol in her system. Selinevich was so intoxicated during that previous incident that she blacked out at a police station.

In addition to the one year suspension, Selinevich was fined $1,200 with the Judge telling her that “thankfully, no one was hurt by your actions”.

At the time of her arrest, Selinevich’s social media accounts depicted several glorifications of dangerous driving and drinking and driving, with several photos depicting a driver holding a wine bottle, a speedometer showing 202.5km/h with the caption “best fuel economy hahaha”, and a R.I.D.E. poster stating that a bus, cab, police car or ambulance were reliable methods of getting home when intoxicated to which Selinevich had added the caption “option 5, my car”.

In handing down the sentence, Justice Leslie Pringle considered Kang’s death, Selinevich’s failure to stop at the scene, her failure to stop for police, her refusal to provide a breath sample, and the fact that she was driving while disqualified from doing so.

In acknowledgement of time she has already served since the June 2015 crash, Selinevich has 4 ½ years left on her 7 year sentence. Justice Pringle told Selinevich, “you are clearly someone who is intelligent. You are clearly someone who has the potential to learn from the horrendous crimes that have been committed in this case…good luck”.

Tougher Recent Sentences for Drunk Drivers

The sentence marks a return to tougher sentencing for drunk drivers. Detective Constable Arthur Lane, of Toronto Police Traffic Services, stated that he’s “glad to see that the sentences now are starting to move up in duration” particularly as they had been lower in previous years, adding that “society’s looking at these cases in a more serious light, and that’s going to be helpful”.

Last March, Marco Muzzo was sentenced to 10 years in prison following a horrific crash that killed three children and their grandfather north of Toronto. Muzzo had originally faced the potential of life in prison after he pled guilty to four counts of impaired driving causing death, and two counts of impaired driving causing bodily harm.

In 2009, Lawrence Bush, an unlicensed drunk driver in Ontario, was sentenced to 12 years in prison following a 2009 crash that killed one of his friends, who died after the car they were travelling in landed upside down in a stream. At the time of the incident, Bush had been out on bail for a previous impaired driving charge.

Ontario has some of the toughest laws against impaired driving in the world, and has recently introduced amendments to expand the scope of those laws. An impaired driving conviction can have a significant impact on someone’s life, including jail time, fines, loss of driving privileges, as well as damage to a person’s career and reputation.

If you have been charged with impaired driving, contact our office online or at 905-404-1947 to schedule a free consultation with one of our knowledgeable and experienced Oshawa lawyers handling drunk driving and over 80 defence. We have 24-hour phone service for your convenience. Our office is located within walking distance of the Durham Consolidated Courthouse.