drunk driving

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.

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.