Two court cases fall apart due to charter violations by police

KITCHENER — The prosecution of two recent cases fell apart because of charter violations by police.

Judges in both cases expressed surprise that the officers did not know they had to inform people of the right to counsel immediately after being arrested.

“This issue arises again and again across the province,” said Justice Scott Latimer in one ruling.

Justice Craig Parry referred to “a perpetual indifference to the knowledge of the basic obligations created by one of the most important charter rights.”

Earlier this month, a man was found not guilty of having care or control of a vehicle while impaired by a drug when Latimer threw out evidence after ruling police violated his charter rights.

In another case, a charge of driving with a blood-alcohol content above the legal limit was dismissed after Parry excluded breath samples from the driver’s trial due to a charter breach.

Within a one-month stretch last year, breathalyzer samples in two cases were thrown out due to unlawful actions by police.

In one of the two most recent cases, a civilian called Waterloo Regional Police during the lunch hour on July 17, 2016, to report bad driving. A constable found the car in a parking lot near a McDonald’s in Waterloo. Andrew Davis, 44, of Waterloo was in the driver’s seat.

The officer described Davis’ speech as garbled and his eyes as “swollen, half open, very drowsy.”

“A variety of drugs, mostly prescription, and drug paraphernalia, including what (the officer) thought was a meth pipe, were located in the car,” Latimer wrote in a recap of the case earlier this month.

Another officer, relatively new to the police service, gave Davis a roadside sobriety test and concluded he had grounds to arrest him. He was handcuffed and put in the back of the cruiser.

Eight minutes later, police read Davis his rights to counsel. It should have been done immediately after his arrest.

“It is concerning that a new officer ... who presumably has gone through recent police training was not aware of this constitutional requirement,” Latimer said.

Because of the charter violation, the judge excluded from evidence items seized from Davis’ car and his post-arrest statement to police. He concluded the Crown failed to prove that he was impaired by a drug. Davis was represented by defence lawyer Eric Uhlmann.

On Oct. 9, 2016, around 2 a.m., Colin Mitchell, 34, of Brampton was arrested after an OPP constable got a report of a possible impaired driver exiting Highway 401 at Highway 8. After speaking to Mitchell, the officer demanded he give a breath sample, which he failed.

The officer waited 11 minutes after his arrest to tell Mitchell of his right to counsel. At 2:16 a.m., Mitchell, in the back of the cruiser, told the veteran OPP officer he wanted to call a lawyer. She did not allow him to make a call until he arrived at the police station, Justice Parry said. Mitchell made the call at 2:51 a.m.

Breath tests at the police station showed Mitchell had more than twice the legal amount of alcohol in his blood. Parry, a former defence lawyer, threw out the results due to the delay in informing him of his right to counsel.

“Exclusion of the evidence is the only remedy that can, in these circumstances, prevent bringing the administration of justice into further disrepute,” he said.

“To do otherwise would be to condone a perpetual indifference to the knowledge of the basic obligations created by one of the most important charter rights.”

Parry noted it has been eight years since the Supreme Court of Canada confirmed the police obligation to immediately tell arrested people of their right to counsel.

The judge said the OPP officer testified that although she received online training in the last eight years, she did not recall training on the right to counsel.

“Her evidence suggests that either she is an inattentive student or that the training provided to her is inadequate — neither explanation is satisfactory,” Parry said.

The charge of driving with more than the legal limit of alcohol in his blood was dismissed. Mitchell was represented by defence lawyer Michael Webster.

In a one-month period last year, breathalyzer samples in two cases were thrown out because of unlawful actions by Waterloo Regional Police.

Police must wait at least 15 minutes after a driver’s last drink before ordering a roadside screening test, but in one case the officer waited just 13 minutes.

The judge in the case, Latimer, concluded the driver was unlawfully arrested and unlawfully compelled to provide two breath samples at the police station.

Earlier, Parry ruled an officer breached the charter rights of a man charged with driving with a blood-alcohol content above the legal limit. The officer admitted he didn’t know whether the roadside screening device had been recently calibrated. The officer also failed to give the driver a chance to look for a lawyer.

Parry concluded the driver was arrested unlawfully and detained arbitrarily.