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Russell Wangersky: Playing the system

scalesofjustice
scalesofjustice

I know the old saying is “A man’s home is his castle,” but I didn’t think anyone would ever use “A man’s home is his urinal” as a defence in a drunk-driving case. But in the courts, truth is often stranger than fiction.

Russell Wangersky

Here’s a snippet from an Ontario judgment earlier this week: “Daniel Mali drove home while intoxicated, parked his car, and began urinating against his front porch. A police officer responding to a call about a possible impaired driver arrived, walked onto Mr. Mali’s property and began to ask him questions. Mr. Mali initially told the officer that he ‘had to pee’ and did not want to speak to him, but then began to answer the officer’s questions. Mr. Mali submits that when he told the officer he did not want to speak to him, the officer was obliged to leave the property. His failure to do so means that Mr. Mali’s subsequent arrest for impaired driving and a demand for breath samples violated his s. 8 and 9 Charter rights.”

Mali blew almost three times over the legal limit, but wanted those samples thrown out.

The judge didn’t agree.

In another case this week, a different impaired driver wanted breathalyzer evidence thrown out because a police officer failed to turn on the camera in his police cruiser before waking the driver and asking him to step out of his car — even thought the police car was pointing in a different direction, away from the scene.

In yet another, an accused tried to have her charges tossed because the police officer involved took time to finish the written grounds for her arrest before walking her to the breathalyzer room. Thirteen minutes of delay, according to the defence, mean the testing wasn’t done “as soon as is practicable,” and meant the charges should be dropped. The judge in the case disagreed, saying, “Compliance with the ‘as soon as is practicable’ is not something to be measured with a stopwatch, nor does it oblige police officers to proceed with robotic efficiency.”

Ironically, in other drunk-driving cases I have read, the defence has attempted to have cases thrown out because police officers hadn’t written contemporaneous notes about laying charges.

Why are the courts facing such strange challenges? Well, perhaps because they work.

Last week, a case where a woman had been determined to be driving at twice the legal limit was thrown out because, while calculating her impairment, a police officer had required the woman stand on a scale and be weighed.

In that case, the judge found that establishing her weigh constituted a violation of the woman’s privacy, and constituted unreasonable search and seizure.

There are cases where a delay of even a few minutes has been determined to constitute a Charter of Rights violation — one two weeks ago cited a “constitutionally inexcusable delay of approximately 10 minutes.” Faced with fines, driving bans and much higher insurance rates, drinking drivers will use any legal excuse they can.

It’s about time some common sense was injected into drunk-driving cases.

Last summer, the Supreme Court of Canada placed specific deadlines on how long it should take cases to get to court. Perhaps the same court should put its mind on setting precise ways that judges are to interpret whether a delay is reasonable, and what constitutes a violation of sections of the Charter of Rights.

People charged with impaired driving and looking for a way out of punishment are taking up plenty of court time. When their cases are thrown out for thinly based reasons, judges often write that proceeding with the charges would bring “the administration of justice into disrepute.”
I wonder if the opposite isn’t actually the case.

Russell Wangersky is TC Media’s Atlantic regional columnist. He can be reached at russell.wangerky@tc.tc — Twitter: @Wangersky.

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