Hamilton driver acquitted of impaired driving charges — despite blowing over legal limit

A Hamilton driver who blew over the legal drinking limit in March 2019 has been found not guilty of impaired driving because his arbitrary detention" at a RIDE program checkpoint was a violation of his Charter rights, an Ontario court has ruled.

Justice J.P.P. Fiorucci wrote in a decision released Monday that he had credibility and reliability concerns" in the evidence two Hamilton police constables gave during a four-day trial heard over the winter.

The officers demonstrated a fundamental misunderstanding of their common-law power" to randomly stop vehicles, he wrote, and breached Charter rights when they failed to demand the male driver blow into an approved screening device (ASD) as soon as practicable."

That - along with what Fiorucci called an unjustifiable delay and suspension" of the man's right to counsel (RTC) - constituted an illegal detention and violation of Charter rights, court heard.

While the man twice blew a blood-alcohol level above the legal limit more than an hour after his arrest - once at a police station - Fiorucci rendered that evidence moot because his initial detainment was unconstitutional."

The traffic stop became an illegal detention, which led directly to an arrest and to the seizure of breath samples and incriminating evidence," he wrote. In other words, there was a strong causal connection between the initial arbitrary detention and the discovery of the incriminating evidence that constituted the entirety of the case for the Crown."

Hamilton police spokesperson Jackie Penman said the service respects the court's decision and has forward the judgment to its professional standards branch for review.

According to a summary of the evidence heard at court, two Hamilton police constables stopped 63 vehicles on March 13, 2019, before a silver BMW rolled up to a RIDE checkpoint on Wilson Street East in Ancaster just after 11:52 p.m.

The man's driving appeared normal, court heard, and neither officer had immediate concerns.

One officer testified that when he approached the man's driver's-side window, he could smell alcohol emanating from his breath. When asked if he had had anything to drink, the man admitted to consuming two pints of beer: one at 7:30 p.m., another at 10:30 p.m.

As the officer questioned the man, he noticed the slurring of letters in certain words, court heard.

By 11:59 p.m., the man was asked to pull over.

Minutes later, when the man was told to step of out the vehicle, both officers testified he was unsteady on his feet and stumbling.

The man denied this claim in his testimony.

Police arrested the man and put him in the back of a cruiser at 12:12 a.m. The arresting officer testified the grounds for arrest were the man's admission to alcohol consumption, smell of alcohol, unsteadiness and slurring of words.

Court heard neither officer on scene had an ASD.

While it's not mandatory for police to have an ASD present when conducting RIDE checks, Fiorucci wrote they are liable to Charter violations if they don't demand a breath sample as soon as practicable."

Fiorucci found the first and only breath demand was made at a police station at 1:21 a.m. - more than an hour after the man's arrest.

One of the requirements of a lawful evidentiary breath demand is that the demand be made as soon as practicable," he wrote.

Accordingly, the man's two breath samples - both of which were over the legal limit - were dismissed as evidence.

Spokesperson Penman said officers are trained to make observations based on experience and not rely solely on a device.

An ASD device is not required to charge an individual with impaired driving," she said. An ASD should not be used to prove impairment, but as a tool used to gather evidence to prove the existence of alcohol in an individual's system."

Fiorucci further ruled the man's Charter rights were violated because he was subject to an unjustifiable delay to his right to counsel.

The random stop in (the man's) case was unconstitutional because the evidence points to (the arresting officer) being dilatory, resulting in a prolonged and unfocused detention and an unjustifiable delay and suspension of (the man's) RTC," Fiorucci wrote.

Sebastian Bron is a Hamilton-based reporter at The Spectator. Reach him via email: sbron@thespec.com