What a bunch of incompetent idiots. Can you imagine if this happened in the Marco Muzzo crash? Someone should lose their job over this, but won't.
Breath tests showing that an Ontario man had more than twice the legal limit of alcohol in his bloodstream five hours after he crashed his dump truck into the Skyway bridge have been ruled inadmissible as evidence.
On Monday at the Ontario court of justice in Hamilton, Judge Fred Campling ruled the tests and their analysis inadmissible because they were collected more than three hours after the collision. That delay amounts to a violation of an accused's rights under the Canadian Charter of Rights and Freedoms, Campling ruled.
Sukhvinder Rai faces numerous charges including impaired driving, driving over 80 mgs, dangerous driving and four counts of mischief endangering life in connection with a collision on the Burlington Skyway on July 31, 2014. He's pleaded not guilty to all charges.
Campling said excluding the breath samples will result in an acquittal on the over-80 mgs charge and likely an acquittal on the impaired driving charge. It could also have some impact on the dangerous driving charge and the mischief charge.
Campling wasn't convinced by Crown arguments that the evidence should be allowed because of the unique circumstances of the crash and the chaotic "mess" officers encountered on the bridge.
Since the trial began March 2, the court has heard testimony from several OPP officers who interacted with Rai. Two of those officers, Const. Andrew Halliday and Const. Hermano Clerigo, testified they forgot about the three-hour window in which they were legally allowed to demand a breath sample from Rai.
The crash happened at 3:35 p.m. and the demand for a breath sample didn't come until after 7 p.m.
Halliday, who held Rai in the back of his police vehicle for hours following the crash, did not notice the smell of alcohol on Rai's breath until after 7:10 p.m.
'They made a mistake'
Campling quoted Section 8 of the charter — which states everyone has the right to be secure against unreasonable search or seizure — and said the officers violated this right when they obtained breath samples outside of the legal three-hour window.
He then cited section 24(2) of the charter, which says evidence obtained through a violation of an accused's charter rights will be inadmissible in court.
"They did not follow the law. They made a mistake," Campling said, speaking of the officers.
"To me, it would be strange, approaching Alice in Wonderland strangeness, and unconscionable if the police and the Crown were better off for making a mistake than they would have been if they had followed the law.
"Accordingly, I rule your breath samples and the analysis of them inadmissible."
Campling made his ruling without hearing arguments from the defence.
The crash caused roughly $1.2 million in damages and closed the Skyway for four days over the August long weekend in 2014.
Not a normal investigation
Last week, Clerigo, a breath technician with the Burlington police detachment, testified that Rai registered a score of 226 mg per 100 ml of blood on a breath test taken roughly five hours after the collision.
In Ontario, it's illegal to drive with more than 80 mg of alcohol in 100 ml of blood.
Assistant Crown attorney Todd Norman argued the breath test results should still be admissible. While conceding police made several errors while dealing with Rai, the breaches stemmed from the chaos and uncertainty officers faced on the bridge following the crash.
Halliday said he didn't think about the three-hour window when he demanded a breath sample from Rai, something Norman said was believable when the situation on the bridge was taken into account. This was "completely atypical of a normal impaired investigation and that has to affect the way police officers do their jobs," he testified.
Campling agreed the incident was a departure from a typical roadside impaired investigation, but added the circumstances don't make the breath tests any less illegal.
Campling said if officers had followed the law, the only evidence about alcohol would be the smell of an alcoholic beverage on the accused's breath several hours after the collision, and the liquid in a bottle in the truck that smelled like an alcoholic beverage.
The trial continues on Tuesday.
http://www.cbc.ca/news/canada/hamilton/news/skyway-bridge-crash-judge-cites-charter-rules-out-breath-tests-1.3490223
