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.
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
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.