Technology, such as cell phone photos, online posts and dashcam videos, is increasingly presented as evidence in criminal trials. Depending on the nature of this evidence, it can be significant in bringing about a ‘guilty’ or ‘not guilty’ verdict.
In a recent trial, dashcam evidence helped in vindicating a person accused of drunk driving. This case involved the appeal of a licence suspension arising from two drunk driving charges: impaired driving and driving with a blood alcohol concentration in excess of 80 milligrams (‘over 80’). On appeal, counsel for the appellant (the accused) argued that his Charter rights were violated by the arresting officer when: 1) the officer made the arrest without reasonable and probable grounds for doing so; 2) the officer delayed 10 minutes in reading the accused’s right to counsel after making the arrest; and 3) the accused was arbitrarily detained.
The driver in this case was pulled over by police after the officer observed him driving 40 km/hr in a 70 km/hr zone. While speaking with the driver, the officer noted that the accused’s movements were very slow and he fumbled when producing his driver’s licence. The officer also noted that the accused was slurring his words and mumbling. On the basis of these observations, the officer formed the opinion that the driver was impaired by alcohol and arrested him for impaired driving. Upon exiting the vehicle, the officer noticed the strong odour of alcohol. In the police cruiser, the accused was read his right to counsel and police caution, and was given a breath demand. At the police station, the accused was observed having difficulty standing, walking into walls, and continuing to slur his words. The breath samples taken indicated a blood alcohol concentration of 160 and 170 milligrams of alcohol in 100 ml. of blood.
Upon examining the evidence for this case, the appeal Court was concerned by the fact that the officer did not observe any signs of alcohol consumption before making the arrest. The officer did not specifically note the smell of alcohol before arresting the accused and the accused had denied consuming any alcohol. The court found that the officer’s investigation was significantly brief and he failed to consider whether there were any other reasons for the accused’s behaviour, besides alcohol consumption.
A DVD of dashcam footage was included in the evidence presented by police. The DVD revealed that, in the 10 minutes before the arresting officer read the accused his right to counsel, the officer continued to ask several questions although the accused was not yet informed of his rights. The officer also searched the accused’s vehicle before reading the right to counsel.
The Court concluded that the arrest involved a significant breach of the accused’s Charterrights and the police officer’s conduct at the roadside was egregious. As such, it would be unfair to include any evidence that was collected after the arrest. Consequently, the Court found the accused not guilty of ‘over 80’ and also found there was insufficient evidence for a finding of guilt on the impaired driving charge. On the basis of the successful appeal of both drunk driving charges, the accused’s licence suspension was immediately lifted.
In another DUI trial, the case was similarly dismissed after dashcam footage revealed that the evidence in support of an impaired driving charge was weak. In R. v. Bukin (2018), York Regional Police pulled over a driver observed to be driving somewhat erratically. As captured on the cruiser’s dashcam, the officer saw the accused’s vehicle swerve and brake for no known reason and later, when the driver pulled over, his front tire touched the curb. The Court agreed with defence counsel that the evidence for the impaired driving charge was weak and was based on some driving which was only ‘minimally bad’. Relying on the test in R. v. Stellato(1993), the Court concluded that evidence of impairment was sufficiently frail such that it was not proven beyond a reasonable doubt, resulting in acquittal on the charge of impaired driving.
At Kruse Law, we have extensive experience in effectively defending driving-related offences including impaired driving, over 80 and dangerous driving. As such, we are able to employ our considerable skills and various forms of evidence, including video evidence, online posts and any other relevant technology, towards achieving a finding of not guilty or the most favourable outcome depending on the circumstances of your case.