Criminal Law

Presser's client acquitted of impaired driving on appeal

By Staff

A London, Ont. man has been acquitted of driving “over 80” after Toronto criminal lawyer Jill Presser established on appeal that he had been incompetently represented by his counsel at trial.

The man was cleared by Ontario Superior Court Justice Kelly Gorman, who called this "one of the rare cases where the constellation of all the relevant factors" was such as to deprive him of justice.

“Trial counsel, whom I recognize was quite junior at the time, was simply inadequately prepared and lacked fundamental knowledge about the underlying nature of the evidence to properly represent (the man),” Gorman writes in her judgment, dated Dec. 13.

The client, a used truck salesman who needs his driver’s license for work, is ecstatic about his acquittal and the reinstatement of his right to drive, says Presser, principal of Presser Barristers.

After his original trial “he felt very disillusioned about the justice system,” she says, adding that his faith has been restored.

In February 2014, Justice Wayne Rabley of the Ontario Court of Justice convicted the man of driving with more than 80 mg of alcohol per 100 mL of blood. Rabley sentenced him to a conditional jail term of 21 days and imposed a 12-month driving prohibition.

The conviction stemmed from a single car accident in London on Feb 10, 2013. Presser's client was driving home alone from a party around 12:50 a.m. when he lost control of his van and hit a traffic standard. He then locked his van and walked to his nearby home.

He later testified that he went on to drink two tall glasses of rye whiskey at home after the accident.

Police visited his residence and two officers took a statement, during which the driver indicated that he had probably had his last drink at the party two or three hours earlier.

At 3:39 a.m., he provided two breath samples and registered 180 mg of alcohol per 100 mL of blood. He was charged with driving "over 80."

At trial, the man's evidence was that the police record of his statement was incomplete and didn't include all of the information he shared with them. He also said that his comments to police were not accurately recorded, and that he and the police misunderstood each other, Presser tells

The two arresting officers conceded at trial that they did not have reasonable grounds to arrest the man without his police statement.

At trial, his lawyer did not challenge the admission of the statement despite being repeatedly questioned on this point by the judge, who directed him to consider whether it was, in fact, inadmissible because it had been compelled under the Highway Traffic Act, Gorman writes.

“Trial counsel maintained that the statement given was admissible because it was given ‘voluntarily,’" Gorman adds.

Presser tells the online legal news service that the trial lawyer’s failure to challenge the statement was his most substantial error.

“He failed to appreciate how significant that statement was leading to the conviction,” she says. "The officers admitted that without the statement they didn't have reasonable and probable grounds to make a breath demand or an arrest. Also, the trial judge relied on the statement to make adverse credibility findings against the client and reject his evidence at trial. So if the statement had been excluded as a compelled statement, there would have been no basis for conviction."

In two affidavits prepared for the appeal, trial counsel stated that he did not focus on excluding the police statement because he was bent on demonstrating that the defendant was co-operative and had nothing to hide, Gorman writes.

The lawyer later admitted that by failing to raise a Charter application to have the statement excluded he had actually undermined his client’s defence, according to the judgment.

In his closing submissions, the trial lawyer sought the exclusion of his client’s breath sample on the basis that the officers did not have reasonable grounds for making the demand.

“The trial judge questioned counsel, asking what he was supposed to do, given that a Charter application had not been made,” Gorman writes.

The judge called a recess and directed the lawyer to read three cases on the issue. When the trial resumed, the lawyer thanked the judge for “enlightening” him and announced he was abandoning his attempt to exclude the breath sample, Gorman writes.

Presser says in an interview that once the trial lawyer realized he had made such a major error he should have asked the court to relieve him as counsel and advised his client to retain another lawyer. “We’re not allowed to just abandon an issue on behalf of our client,” she says.

In an affidavit prepared for his appeal, the client stated that the lawyer-client relationship was marred by poor communication and a lack of preparation.

The trial lawyer did not call expert evidence from a toxicologist to support his client's evidence on post-accident drinking, the judge says. The lawyer explained he did not do so because the Crown expert’s report indicated it could not be relied on if post-offence drinking had occurred, the judge writes.

“We did argue that that was part of the ineffective assistance,” Presser tells the legal news service.

As part of the appeal, Presser filed an affidavit from an expert toxicologist who concluded that, based on the driver's testimony that he had consumed three beers between 7:30 p.m. and 11 p.m. and the two glasses of rye later, his blood alcohol would have been below 80 around the time of the accident.

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