Given the changes to the Criminal Code that have virtually eliminated the possibility of challenging the validity of breath samples,  the most frequent avenue taken by defence lawyers when defending impaired driving charges is by virtue of  charter motions.

The charter motion below is one that I successfully presented in order to secure an acquittal for my client in November of 2015.

The arresting officer was informed by my client to having consumed his last alcoholic beverage 10 minutes before his arrest. Having received this information, the arresting officer must ensure that at least 15 minutes have elapsed before performing a roadside Breathalyzer test in order to allow residual mouth alcohol to dissipate.

APPLICATION FOR EXCLUSION OF EVIDENCE BY VIRTUE OF SECTIONS 8, 9 and 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

TO ONE OF THE HONORABLE JUDGES OF THE COURT OF QUEBEC OF ST-JEAN-SUR-RICHELIEU, THE PETITIONER RESPECFULLY EXPOSES THE FOLLOWING: 

1. May 25^th, 2014, the petitioner was charged with following accusation:     

On or about May 25, 2014, in Saint-Bernard-de-Lacolle, distrcit of Iberville, did operate a motor vegicle, having consumed alcohol in such a quanity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 millileters of blood, committing thereby the offence punishable on summary conviction provided by sections 253(1)b) abd 255(1) of the criminal code.

2. Officer C, #13347 mentions having seen the petitioner driving in the opposite direction of traffic in the exit at km 6 of the 15 North highway. The officer and her partner Officer Gravel #6151 decide to intercept the petitioners’ vehicle. No time of interception is specified.

3. Officer C mentions having a conversation with the petitioner who allegedly informed her that he took the wrong turn. She then mentions having smelled alcohol from inside the petitioner’s vehicle as well as noticing that his eyes were bloodshot.

4. Shortly after, Officer C claims to have asked the petitioner to provide his driving documents, which according to her, were given without any difficulty.

5. Officer C claims to have asked the petitioner whether he had consumed any alcohol, to which she claims he replied “ two beers”.

6. Following this statement, Officer C states having summoned the petitioner to exit his vehicle and follow her to the patrol car in order to verify his ability to drive. 

7. At 2:10 am, according to officer C, the petitioner was placed inside the police patrol car. Officer C claims to have smelled alcohol from the petitioner’s breath as well as noticing that his eyes were red.

8. Officer G states in her personal notes that petitioner mentioned at 2:10 am having consumed his last beer “about 10 minutes ago”

9. According to both officers C and G, the petitioner was read the order to provide a breath sample in an approved screening device at 2:11 am.

10. At 2:15 am, officer C reports having been provided a suitable breath sample with result “Fail”. It is worth noting that the time noted in officer G’s notes appears originally as 2:11 am and is crossed out to indicate 2:15 am.

11. The petitioner claims that his right to be secure from unreasonable search and seizure as stated under section 8 as well as his right not to be arbitrarily detained or imprisoned under section 9 the Canadian charter of rights were violated for the following reasons:

12.  When officer C asked the petitioner to exist the vehicle, she does not inform him in any way of the reasons for which she is asking him to exit the vehicle. There is no section in the criminal code permitting an officer to make a defendant exit a vehicle and in the circumstances this amounts to a violation of section 10 of the Charter.

13. By asking the petitioner to exit his vehicule and ordering him to enter the policer patrol car, the petitioner was mobilized against himself and it is during this unlawful detention that he was summoned to provide a breath sample for the roadside test. This amounts to unreasonable search and seizure by virtue of section 9 of the Charter.

14. Give the information officers C and G allegedly received at 2:10 am from the petitioner to the effect that he had consumed alcohol 10 minutes ago, the roadside test was more than likely to have been administered within the 15 minutes following the last consumption of alcohol. According to the leading Supreme Court decision of Bernshaw on the matter, the screening device result is known to be unreliable if it is administered within 15 minutes of the last drink consumed by the suspect. The officers have the obligation to delay the road side test until the possibility of an erroneous result be eliminated.

15. The police conduct in this matter constitutes a serious violation of section 8 of the Canadian Charter of Rights.

16. The admission of the evidence discovered by the police would put the administration of justice into disrepute. 

FOR THESE REASONS MAY IT PLEASE THE COURT:

GRANT this petition.

DECLARE that the petitioners right to be secure from unreasonable search and seizure as stated under section 8 of the Canadian charter of rights was violated

 EXCLUDE the evidence obtained from the unreasonable search by virtue of section 24(2) of the Canadian charter of rights and freedoms

Signed at Montreal

March 20TH, 2014

                                                                                                 __________________

                                                                                                ZAYID AL-BAGHDADI                                                                                                     Attorney of the Petitioner

Cases cited:

R c. Parenteau-Rondeau, 2013 QCCQ 13479 (CanLII)

R. c. Lalonde, 2004 CanLII 17215 (QC CS)

R. v. Bernshaw, [1995] 1 S.C.R. 254