Police officer was looking for suspected impaired driver and he encountered accused, who had several passengers in his truck. Officer detected odour of alcoholic beverage on accused’s breath after he had him exit vehicle. Accused told officer that he had been drinking and accused failed roadside test. Accused was then arrested for impaired driving, he was handcuffed, placed in back of police cruiser and he was informed of his right to counsel. Accused wanted to speak to specific lawyer but when he arrived at station he told officer he no longer wanted to speak to lawyer. Accused’s blood alcohol readings were 110 and 107 mg in 100 ml of blood. Trial judge found that accused’s rights under ss. 8, 9, 10(a) and 10(b) of Canadian Charter of Rights and Freedoms were violated and excluded evidence. Accused acquitted. Crown appealed acquittal. Appeal dismissed. Critical issue was why officer stopped accused in first place. Judge found that accused was stopped pursuant to criminal investigation and not pursuant to Highway Traffic Act (Ont.) (“HTA”). Crown wanted to re-characterize this finding of fact found by judge but it could not do so in this appeal. Officer was looking for particular person, who was not accused, and who was driving green pickup truck, which was also not accused because he drove burgundy pickup truck. Consequently, his detention of accused was arbitrary. Judge found this violation was sufficiently egregious so as to require after-acquired evidence, namely roadside breath sample and observation evidence about alcohol on accused’s breath, to be excluded from trial. Since HTA did not apply judge applied appropriate tests related to accused’s ss. 8 and 9 Charter rights to exclude evidence. This was sufficient to acquit accused. Judge also did not err in his analysis of s. 10.
R. v. Gardner (2017), 2017 CarswellOnt 14771, 2017 ONSC 5175, Fitzpatrick J. (Ont. S.C.J.).