R. V. A.Z.A.
1) Impaired Driving;
2) Driving While “Over 80” mgs.
The client was charged with impaired driving and driving while having a blood alcohol concentration in excess of 80 milligrams of alcohol per 100 millilitres of blood, commonly referred to as a charge of “Over 80” mgs.
Prior to the client’s trial, I filed an Application for an order excluding the results of the Intoxilyzer tests on the basis that the client’s Charter rights had been infringed. I argued that the client’s right to retain and instruct counsel, as guaranteed by Section 10(b) of the Charter, and the client’s right to be secure from unreasonable search or seizure, as guaranteed by Section 8 of the Charter, had been infringed.
The Crown tried to prove the accuracy of the client’s blood alcohol concentration by using an expert report prepared by the Centre of Forensic Sciences. I immediately pointed out to the trial Judge that there was a problem with the report and that it could not be relied upon to prove the accuracy of the client’s blood alcohol concentration. An expert report must be accurate with respect to the particulars on which the expert’s opinion is based. There was a significant piece of information missing from the report. The trial Judge agreed and the charge of “over 80” mgs. was dismissed mid-trial.
The client’s trial continued with respect to the charge of impaired driving. At the conclusion of the Crown’s case against the client, I advised the trial Judge that I was proceeding with an Application for a stay of proceedings on the basis that the client’s right to be tried within a reasonable period of time, as guaranteed by Section 11(b) of the Charter, had been infringed. A total of 2 years and one month had passed since the date on which the client was charged and the date on which the Application for a stay of proceedings was scheduled to be heard.
I argued that the Crown had made a couple of serious missteps during the prosecution that seriously and needlessly prolonged the proceedings. The trial was scheduled to be completed in 1 ½ days. This included the defence Application to exclude evidence on the basis of a breach of the client’s right to counsel and on the basis of an unreasonable search and seizure of the client’s breath. The hearing of this Application required the client to testify. I took approximately only one-half hour to examine the client in-chief. The Crown then embarked on a tedious cross-examination of the client over a period of 4 days. Since only 1 ½ days had originally been set aside to complete the entire proceeding, this caused the completion of the client’s trial to spin out of control.
After receiving the defence documents with respect to the Application for a stay of proceedings, the Crown forwarded a letter stating that the Crown would be entering a stay of proceedings with respect to the charge of impaired driving thereby bringing the matter to a conclusion. The client walked away from the proceedings without a finding of guilt or a conviction on her record.