Trial counsel operated under erroneous assumption that roadside statements were admissible

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Trial counsel operated under erroneous assumption that roadside statements were admissible

Accused appealed conviction for “over 80”. Accused was stopped by police and indicated that he had consumed few beers. Results of breath tests were 110mg of alcohol per 100ml of blood. Accused told his counsel that he had consumed two glasses of sake as opposed to few beers. Because of discrepancy, accused’s trial counsel did not pursue “Carter” defence. Accused’s counsel believed that accused’s statement to police at roadside was admissible and that his credibility would be negatively affected if he testified that he had consumed sake as opposed to beer. Trial counsel admitted that he was mistaken about admissibility of roadside statements. Accused argued that his trial counsel misunderstood case law which resulted in failure to raise “Carter” defence. Accused argued that because he had potential “Carter” defence, there was reasonable possibility that verdict would have been different. Appeal allowed, conviction quashed, new trial ordered. Accused’s trial counsel operated under erroneous assumption that roadside statements were admissible to undermine accused’s credibility. Trial counsel failed to obtain information about accused’s alcohol consumption, discuss possibility of accused testifying at trial, order disclosure of records relating to intoxilyzer, and retain expert toxicologist. Error in trial counsel’s interpretation of case law informed his decisions for defence. Based on information provided by accused, he would have had viable Carter defence. Given that Carter defence was not pursued, there was ineffective assistance of counsel. While consumption patterns and expert calculations to challenge breath readings were significantly restricted by amendments to Criminal Code, defence was open to accused on materials provided. There was conflicting evidence with respect to whether intoxilyzer was malfunctioning or was operating improperly. There was evidence from expert toxicologist that accused’s blood alcohol concentration at time of driving was below legal limit. There was evidence which could possibly rebut presumption in s. 258(1)(c) of Code. There was reasonable possibility that verdict could have been different but for ineffective assistance of counsel. Reasonable person would find that appearance of fairness of trial was undermined and verdict was unreliable.

R. v. Lam
(Feb. 23, 2012, Ont. S.C.J., Kelly J., File No. SCA 199/09) 100 W.C.B. (2d) 4 (6 pp.).

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