Over-80 charge dropped after judge rules police breached dri

The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all areas and levels of government. It is designed to unify Canadians around a set of principles that embody those rights.

Over-80 charge dropped after judge rules police breached dri

Postby Thomas » Fri Dec 14, 2018 3:51 pm

Over-80 charge dropped after judge rules police breached driver’s charter rights

OPP officer used screening device that had not been checked within mandated period

A drinking and driving charge against a Cambridge man was dismissed after a judge ruled police breached his charter rights by arresting him without proper grounds.

At 9 p.m. on June 9, 2017, Shawn Rowland, driving a pickup truck, was stopped in Puslinch Township at a RIDE program run by Cambridge OPP. Const. Richard DeVilliers said he smelled alcohol on Rowland and described Rowland's face as flushed and his eyes as red and glossy.

Rowland, 53, failed a roadside approved screening device (ASD) test and was arrested for driving with more than the legal amount of alcohol in his blood. At the police station, a breath test showed he had 99 milligrams of alcohol in 100 millilitres of blood. A second test showed 92 milligrams. The legal limit is 80.

OPP policy calls for accuracy checks on roadside devices every 15 days. When he used the device on Rowland, DeVilliers did not realize it had not been checked since May 22, 2017 — more than 15 days.

"Do you agree with me you shouldn't have been using that ASD?" Rowland's defence lawyer asked DeVilliers in Guelph court.

"I agree, yes," he replied.

"It wouldn't be reasonable to rely on the result of that ASD given your OPP policy and training, right?" he was asked.

"That is correct, yes," DeVilliers said.

Justice Gary Hearn ruled last week that Rowland's charter rights were breached.

Although DeVilliers "may very well have had the subjective belief necessary to form his grounds for the arrest of Mr. Rowland, I find ultimately that that belief was objectively unreasonable," the judge said.

"A reasonable person standing in the shoes of the officer would have known of the OPP policy and would have followed that policy to ensure the reliability of the tests. Objectively, it cannot be concluded that the officer acted reasonably in all the circumstances."

Hearn made it clear DeVilliers was not acting in bad faith, but he cited a 2010 case where a judge declared: "The reputation of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers who stop and detain motorists in order to perform ASD tests must execute their duties efficiently, competently and accurately."

The effect of breaching Rowland's charter rights was not minor, the judge said.

"Mr. Rowland was arrested, placed in a cruiser, handcuffed, taken to a detachment, subjected to further breath tests and detained for a period of time," Hearn said.

The judge ruled police also breached Rowland's charter right to have a reasonable chance to contact a lawyer of his choosing.

Because of the charter breaches, Hearn excluded from evidence the results of breath tests taken at the police station.

"To do otherwise, in my view, would bring the administration of justice into disrepute given the facts of this particular case," the judge said.

With the results of breath tests excluded, the Crown could not prove its case and the charge was dismissed.

gpaul@therecord.com

https://www.therecord.com/news-story/90 ... er-rights/
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