The Queen v. H.(A.) 2019

 

In Kelowna, after the belated Canada Day fireworks, an experienced police officer was heading back to the detachment to finish off his shift and saw the client’s vehicle pull out of a gravel parking lot.  The officer decided to randomly stop the vehicle to check driver sobriety, which he is lawfully able to do.  Once the vehicle was pulled over, the officer observed an odour of alcohol on  the breath of the client and demanded that she perform a roadside breathalyzer test.  She failed.  Prior to leaving the scene the officer let the client back into her vehicle to get her purse and at that time the officer observed the client try to hide a small flask under the passenger seat.  The officer ended up taking the client back to the police station where she provided samples of her breath well over the legal limit.  She was charged accordingly.  On the first day of trial Mr. van der Walle cross examined the police officer with a view to trying to establish that the combination of the fact that the client had possessed a flask in her car combined with the fact act she tried to hide it from the officer created more that a “mere possibility” that she had consumed alcohol while driving and therefore would have had residual alcohol in her mouth at the time she blew the roadside test, a fact that would have made the Fail reading on the roadside breathalyzer unreliable.  Just prior to the second day of trial , the Crown decided to terminate the prosecution against the client by entering a stay of proceedings to all the charges.  Not guilty.  Client did not testify.