Ontario Criminal

Charter of Rights

That officer targeting accused not only inference to be drawn from conduct

Accused appealed his conviction for driving “over 80.” At trial accused argued that he was arbitrarily detained in breach of s. 9 of Charter when he provided breath sample into approved screening device. Accused argued arresting officer erroneously believed that he had two previous drinking and driving convictions and had engaged in campaign of watching and stopping him for several months before arrest. Accused and two witnesses testified that this was third time same officer had stopped accused within six or seven hours and that he had frequently driven by locations where accused and his truck were located. While officer testified that he stopped accused because his rear licence plate light was out, accused argued officer’s motivation for stopping him was his mistaken belief about accused’s record and that trivial offence like not having tail light out was not sufficient grounds to make stop. Trial judge disagreed, noting that question was “so what?” if officer was harassing accused because he accepted officer’s evidence light was out and found that this provided him with grounds to stop accused. Officer testified that he did not realize accused’s vehicle was that of person he dealt with earlier until after he had pulled truck over. Officer said that he ran accused’s name on CPIC after he had arrested him for driving with consumed excess alcohol and that record he obtained showed 1990 and 1997 convictions for impaired driving. It was not until he was in midst of cross-examination that officer was told accused had no record. Appeal dismissed. Trial judge’s decision was not unreasonable. Officer swore he was unaware of criminal record, wrongly attributed to accused, until after his arrest on excess alcohol charge. Officer remembered stopping accused earlier on seatbelt infraction and had no memory of incident where he pulled over another vehicle, in which accused was passenger, but in which female bartender had been driving. There was no dispute that officer would drive through Legion parking lot, in his words, to show police presence that could make people think twice about driving after drinking. While it was possible officer was targeting accused, that was not only inference to be drawn from that conduct. If it were determined that officer had one improper purpose for stopping accused in addition to Highway Traffic Act (Ont.) violation, it would have rendered stop unlawful. Court agreed with accused that trial judge erred in that regard. However, insurmountable hurdle for accused was trial judge’s reasonable finding officer was not improperly targeting accused.

R. v. Sherrard (Nov. 10, 2014, Ont. S.C.J., Durno J., File No. Guelph CR-13-0250-AP) 118 W.C.B. (2d) 23.

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