First and foremost, impaired investigations involve a multitude of Charter rights.
When defending a client accused of impaired driving the file is evaluated on a number of factors, with an eye to finding ways in which the police have violated the client’s guaranteed Charter rights.
This evaluation examines what the police have done prior to the taking of the samples, and continues with what occurred after the samples were obtained.
The goal of this is to ensure that the Judge never sees the outcome of the breath testing. In doing this, the prosecution hopes that the results of the breath samples will be eliminated.
Generally, prosecution focuses on what occurred before the police officer took the breath samples. The problem is with the ending of the evaluation, as it denies the client the full protection of the Charter.
More often than not, the police will shockingly hold the accused individual in a jail cell until they are “sober,” even after they take the last breath sample.
What is even more concerning is that this practice seems to be accepted by members of the criminal defence bar.
This is extremely problematic, as it directly violates Section 9 of the Charter which protects individuals involved with the police from arbitrary detention and detention without cause.
With the example of the impaired breathalyzer test, the subject can only satisfy the demands made by the arresting officer after the second breath sample has been provided. In essence, this is once the investigation is complete.
The investigation is only complete after the second sample, and once the investigation is complete, the need for detention is thus eliminated. It is for this reason that there should be no ground for the accused to be detained to further the investigation after the second sample has been taken.
To put it in black and white, no law in Canada says that the accused must sober up in a jail cell.
Being drunk is not a criminal offence. The police need to have more than blood alcohol levels to justify detention. In most cases, there is nothing that should prevent the accused from going home and sleeping off their intoxication in the comfort of their own bed.
The police have limited powers to detain individuals and release should be the norm, not the exception. The law has responded to the reality that police often fail to release accused in accordance with the law. These recent developments in the law have led to the exclusion of the breath sample evidence. However, the recent changes in the law have not addressed the larger issue that police activity often breaches Charter rights, and that such breaches often occur after the samples have been obtained.
The team at Millars Law has successfully argued this point, along with many other aspects of impaired driving laws in court. Millars Law is focused on getting our clients the results that they want and deserve.
The only call that you or a friend needs to make when charged with an impaired driving offence is to the Millars Law team, as we are here to help when you Can’t Afford to Lose.
519 657 1LAW or Info@Millarslaw.com
By: Nick Cake