Ontario Criminal

Charter Of Rights

Arresting officer’s decision to place accused in cell before breathalyzer tests unjustified

Trial of accused for drinking and driving offences. Accused was bartender. When she completed her shift she remained in bar and she consumed four glasses of wine before she drove home. Police officer pulled her over and he detected small hint of alcohol on her breath. He had her take screening device test and he was surprised when she failed. She was not handcuffed during trip to police station. At station she was placed in cell and she went through process of removing her bra, which was standard procedure. She had breathalyzer test and she gave her samples at 1214 a.m. and 1240 a.m.. She was then returned to her cell to await completion of paperwork. Documents were completed by 200 a.m.. Accused was not released until 500 a.m. because arresting officer had practice of holding charged impaired drivers until they could make good decisions. Officer did not explain to accused why she was being held in cell. Accused acquitted. Arresting officer’s decision to place accused in cell before breathalyzer tests were conducted was unjustified and it violated accused’s right under s. 9 of Canadian Charter of Rights and Freedoms. Based on accused’s rational, polite and co-operative behaviour demand that she surrender her bra violated her s. 8 Charter rights. Because this took place before breathalyzer testing occurred it had temporal and causal connection to test results. It was not reasonable that 26 minutes elapsed between taking of first and second samples and it violated statutory requirement that samples were to be taken as soon as practicable. Evidence was excluded because of improper police conduct in this matter.

R. v. Bouchard

(Nov. 24, 2011, Ont. C.J., Fraser J., File No. 110260) 98 W.C.B. (2d) 318 (8 pp.).

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