Daniel's Case — Impaired Driving & Over 80 — Dismissed

 

Background
Daniel is a meticulous home renovator. In early 1996, he was expanding. He was just about to purchase a new truck. One evening around that time, he had a few drinks after work. He believed he was fit to drive. The police stopped him for speeding. They had a different opinion. Daniel was arrested for impaired driving. He was also given a breath demand. He produced two readings of 120 mg each. The police added an over 80 charge. Daniel wanted to beat the charges if possible. His livelihood depended on it. Daniel put his expansion plans on hold. We waited. We prepared for trial. Our defence was that Daniel wasn't impaired and that the machine was mistaken. We hired an expert. The expert reported that, based on Daniel's actual alcohol consumption, he should not have blown over 80. We planned to present this evidence at trial. The trial was scheduled for May 28th. I also had another argument. Before trial, I asked that Daniel's case be dismissed because of excessive delay. The Judge did not agree, ruling that the delay was borderline. After the Judge's ruling, I off-handedly asked:  "If we don't get on on the 28th?" The Judge replied:  "I suspect you get a free pass." On May 28th, the Court was overbooked. The trial did not start. There was going to be more delay. I brought Daniel's case back before the same Judge. I asked him to reconsider his earlier ruling. Just as I was closing my submissions, the Judge relaxed in his chair, threw up his arms, and declared:  "You win. I give up."

Daniel's Case
Police Report

Judge's First Ruling

 

 

 

 

 

 

 

Between
Her Majesty the Queen, and Daniel J.

[1997] O.J. No. 6363

Ontario Court of Justice
Newmarket, Ontario
O'Hara J.

Ruling on Charter Motion:  2 June 1997
(60 paras.)

Charges:  

 Impaired Driving& Over 80, Criminal Code, ss. 253(a)-(b)

Counsel:  

 N. Hewak, Assistant Crown Attorney, Newmarket
Craig Penney, Criminal Defence Lawyer, Toronto
O'HARA J.:  (orally) —

 1     THECOURT:    Ms. Trivett.  Do you know the history of this?

 2    MS. TRIVETT:    I was looking at it.

 3    THE COURT:    I can tell you.

 4    MS. TRIVETT:    I'm sure you will.

 5     THE COURT:    Well, I can if you want.

 6     MS.TRIVETT:    I can give you very quickly the Crown's submission which is it appears it was not reached on the 28th of May despite an earlier 11(b) motion on the 20th which was dismissed.  At that time ...

 7    THE COURT:    By me.

 8     MS. TRIVETT:    Yes.  And I - I simply by way of Crown submissions asked Mr. R**** to inquire the earliest possible dates that the officers would be available.  I understand that defence counsel also got dates from Constable H**** ...

 9     THE COURT:    And the date ...

 10     MS. TRIVETT:    ... for both officers ...

 11    THE COURT:    The date.

 12     MS. TRIVETT:    ... last day.  They are available in the near future.  That is the Crown's submission on the 11(b).

 13     MR. PENNEY:    Perhaps I can assist Your Honour with more accurate - more detailed information not necessarily more accurate — on the available dates.  I spoke to Officer H**** on the last day when we came in front of Your Honour because I anticipated either putting it over for a re-opening of the 11(b) for trial.  Officer H****'s leave dates are June 23rd to July 14.  The breath technician's leave dates are August the second to September the ninth.  Officer T****'s leave dates are June the first to 14, 17 to 30 ...

 14     THE COURT:    What's the net result?  What's ...

 15    MR. PENNEY:    The net result ...

 16     THE COURT:    ... the first - trial date ...

 17    MR. PENNEY:    ... Your Honour, ...

 18    THE COURT:    ... we can set?

 19     MR. PENNEY:    ... is that the officers are available for two weeks in the latter part of July - from July 19 to August the first and then there's no availability until September the ...

 20     THE COURT:    Well, we could easily set a trial date in there.

 21     MR. PENNEY:    Okay.  And then ...

 22     THE COURT:    If we should - ...

 23     MR. PENNEY:    There would - there would be ...

 24     THE COURT:    ... if we're going to.

 25    MR. PENNEY:    Yeah.

 26     MS.TRIVETT:    The - T**** is not listed as a Crown witness just so...

 27     MR.PENNEY:    Well, I should show my friend.  There is a letter that was part of the...

 28    MS. TRIVETT:    Yeah, I - I ...

 29    MR. PENNEY:    ... disclosure ...

 30    MS. TRIVETT:    ... realize ...

 31    MR. PENNEY:    ... listing the ...

 32    MS. TRIVETT:    ... that the ...

 33     MR.PENNEY:    ...police witnesses.  And he was on...

 34     THE COURT:    In any event, ...

 35    MR. PENNEY:    ... standby.

 36     THE COURT:    ... the net result is we could set a date in the last two weeks ...

 37    MR. PENNEY:    We - we could ...

 38    THE COURT:    ... of July.

 39     MR. PENNEY:    ... set a date.  There would be problems from a defence point of view, Your Honour, because there was a toxicologist who was, in fact, in court at 4:15 p.m. when this matter was addressed last week.  Before Your Honour makes a formal Ruling I think I'd like to mark as an exhibit the trial list from Wednesday, May 28.  And I've shown it to my friend.  I don't think my friend has any objection.

 40    MS. TRIVETT:    No, that's fine.

 41     MR.PENNEY:    Marking as exhibit one on this motion.  The Guiseppe matter, Your Honour,...

 42     CLERK OF THE COURT:    File it, Your Honour, or do you want it made an exhibit?

 43    THE COURT:    Just - ...

 44    CLERK OF THE COURT:    File it.

 45     THE COURT:    ... just file it.

 46     MR. PENNEY:    Exhibit one.  The Guiseppe matter, Your Honour, was scheduled for an entire day I was told by Mr. St. M**** that morning and that none of the other trials would be heard.

 47     THE COURT:    What happened on that day as I understand it, it just was a ...

 48     MR. PENNEY:    They're in from the west, I believe Your Honour had told me.  Anyhow the matter went on, the - the first matter past the first day.  There was never any issue of getting on 104 court.  We waited around all day, Your Honour, with the toxicologist.  I have a little bit more information, Your Honour, in terms of - Your Honour, I made my submissions last day, I'm not going to repeat myself and ...

 49    THE COURT:    You win.

 50     MR. PENNEY:    ... subject to any questions Your Honour may have.

 51     THE COURT:    I give up.  I said it was right on the edge but it was just barely acceptable.  So they didn't reach it.  Know what I am going to do.

 52     MS. TRIVETT:    June 4th, I believe, is open, is it not?

 53     THE COURT:    Not - not for the officer.  Thank you.

 54     MS. TRIVETT:    Just for the record, what's your decision?

 55    CLERK OF THE COURT:    Stayed it?

 56     THE COURT:    Stayed pursuant to 11(b).

 57     MR. PENNEY:    Thank you, Your Honour.

 58     THE COURT:    So delay went over the - the delay went — the delay was right on the edge.  Upon further examination, after it wasn't reached, it became intolerable to the Court and clearly requires a Charter stay.

 59     MS. TRIVETT:    I suspected it might go that way.

 60     MR. PENNEY:    Thank, Your Honour, thank my friend.

 
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