Location: Newmarket Ontario Court of Justice 

BACKGROUND

At 5:42 am, police responded to a suspicious vehicle call in York Region. Information received by the police was that a vehicle had jumped the curb and was stuck in a snowbank for approximately 10 minutes. Officers arrived on scene to find a black SUV stuck in a snowbank. A male was standing in front of the SUV. The male indicated to police that he had just left his family’s home following a family emergency. Police asked the male if he had anything to drink and the male indicated that he had “one drink”. Police demanded a roadside sample of the male’s breath to which he complied. The sample registered a “fail” result and the male was arrested for driving with over 80 mgs of alcohol in 100 mls of blood. 

THE ISSUE 

After initial review of the disclosure, it was determined that there was significant outstanding disclosure including in-car camera footage from the officers who attended the scene in police vehicles. In-car camera footage is vital in determining timelines when assessing whether potential Charter violations exist on any impaired driving related allegation. After all disclosure was received the position of the defence was that there existed a number of Charter violations and legal issues. 

The legal issues on the facts included the potential that the Crown could not prove beyond a reasonable doubt that the client was operating the motor vehicle, nor that he was in the car and in control of the vehicle. Further, even if the Crown could prove operation or care and control, the Crown would have a further duty to prove the vehicle itself was operable. The male was never identified by police to have been operating the vehicle and when police arrived, the male was outside of the vehicle. Additionally, the vehicle itself was lodged in a snowbank with no indication that there was a realistic possibility the vehicle could have been put into motion. 

After careful research, the defence believed that once the Crown met the burden of proof with respect to proving operation, care and control, and operability, the Crown would also have to prove that the client did not drink after driving or shortly before driving, such that he was not impaired at the time of driving but became impaired after driving. 

This is sometimes referred to as bolus drinking. Bolus drinking is not an issue that the Crown has to disprove in every case. However, where there exists evidence of bolus drinking on the facts, the Crown is placed in a near impossible position to disprove that an accused drank large amounts of alcohol right before or immediately thereafter driving. The bolus argument on these facts was strengthened by the fact that a civilian witness reported that the client did not appear impaired immediately following the accident and thereafter there existed evidence of a significant decline in sobriety. 

There were also a number of delays with respect to when police provided the client with his rights to counsel guaranteed upon detention under section 10(b) of the Charter of Rights and Freedoms.  

THE STRATEGY

A detailed memo with case law supporting each triable issue was prepared and shared with the Assistant Crown Attorney to argue for a withdrawal of the charges facing our client. The Assistant Crown Attorney would not withdraw the charges and a trial date was scheduled. An application to exclude the breath tests pursuant to a number of Charter violations was prepared and filed. 

THE RESULT

The trial commenced, and the Crown called its first witness. The first witness was the civilian who confirmed in cross-examination by the defence that the client did not appear impaired immediately after the accident. The second witness the crown called was the arresting officer. This witness confirmed in cross-examination that the client’s sobriety significantly declined after police arrived on scene. The court had now heard evidence consistent with bolus drinking. Following the evidence from the two witnesses, the Assistant Crown Attorney decided not to proceed with the trial and withdrew the criminal charges against our client.