Location: Hamilton Ontario Court of Justice 

BACKGROUND

An off-duty Hamilton Police officer was travelling on Hwy 403 on his way to work when he noticed a vehicle in the right ditch. The off-duty officer stopped at the roadside and spoke to a lone individual standing beside the vehicle on the right shoulder. The off-duty police officer started to ask the individual questions and communicated the received information to police dispatch, however, did not disclose that he was a police officer. An on-duty Hamilton police officer soon arrived and observed that the vehicle had rolled over in the right-hand ditch. This on duty officer received information from the off-duty officer and had the individual remain in his cruiser for approximately 6 minutes. During this time a smell of alcohol was detected, and a roadside screening device demand was made. The client provided a sample into the roadside screening device, registered a “fail”, and was arrested for operating a motor vehicle with over 80 mg of alcohol in 100 ml of blood. 

THE ISSUE 

After review of all disclosure, it was determined that there were a number of issues. First, the off-duty officer did not disclose that he was a police officer and elicited evidence from the client under the premise that he was not a police officer. This officer then shared this information with police. This created an issue as to whether or not some of the statements made by the client were (1) voluntary, and (2) made in breach of the client’s right to silence. 

Second, the on-duty officer detained the client in the back of his cruiser for at least 6 minutes, during which no rights to counsel were afforded to the client. All accused persons are to be provided their rights to counsel upon detention without delay. Not six minutes later. Third, there was an issue with the calibration date on the roadside screening device. The device was last calibrated outside the manufacturer’s recommended calibration deadline date, and therefore the officer’s reliance on the “fail” result was questionable. 

Finally, the client was never seen operating the vehicle. The client may have been found to be in care and control of the vehicle, but the Crown would then be faced with the challenge of proving a rolled vehicle operable. 

THE STRATEGY

Once disclosure was reviewed and case law research conducted, the defence scheduled and conducted a pre-trial with a Crown Attorney to try and convince the Crown Attorney to concede the very serious issues in the case and withdraw the charge. Many times, this type of strategy is not successful at this stage and judicial input is sought from a Judge during a judicial pre-trial. 

A judicial pre-trial was scheduled next and counsel prepared for it with case law to support the defence perspective on each point of contention. The Ontario Court of Justice Judge agreed that the triable issues were of such a degree that the Crown’s case was significantly weak. 

THE RESULT

Following a pre-trial with an Ontario Court of Justice Judge, the Crown agreed there was no reasonable prospect of conviction and withdrew the charge. The client did not receive a criminal conviction or a driving prohibition.