Charter breach leads to dismissal of charges in 2010 impaired driving causing death case

Chilliwack judge rules seizure of hospital records a rights violation in case from Hope, B.C.

A man with a blood alcohol level more than twice the legal limit who crashed a car killing his female passenger had charges against him dismissed Friday due to a breach of his Charter rights.

It was nearly seven years ago that Garett Anthony Saul lost control of his vehicle driving on Highway 1 north of Hope. His vehicle left the road, rolled down an embankment and landed on its roof crushing his female passenger, killing her instantly.

Two hours after the incident, his blood was taken at Fraser Canyon Hospital and found with a blood alcohol content (BAC) of between 0.161 and 0.176, more than twice the legal limit of 0.08. A forensic expert estimated that Saul’s actual BAC at the time of the crash was between 0.183 and 0.219.

The incident occurred on Aug. 9, 2010 and the case dragged on for years, culminating in acquittals in January 2014 on three counts: impaired driving causing death, driving with BAC over .08 causing death; and dangerous driving causing death.

The judge ruled that the Crown could not prove beyond a reasonable doubt that Saul did not engage in bolus drinking. Bolus drinking, or the “last drink” defence, argues that if someone drank a large amount of alcohol right before driving, their BAC might have been below .08 when driving, only rising to the higher level hours later when tested.

The Crown appealed the acquittals and in a unanimous decision on April 14, 2015, the BC Court of Appeal found the trial judge erred in law, and a new trial was ordered.

That trial began in early 2016 at which time Saul’s lawyer Dudley Edwards argued that police violated his client’s Charter rights. That Charter application was based on the fact that after the crash, Saul was taken hospital and a blood sample was taken, but it turned out to be unusable. Then in 2011, investigators got a warrant for Saul’s hospital records to find out what his BAC was after the crash. He did not have a lawyer at that time. In 2014, the Supreme Court of Canada ruled that it violates an accused person’s Charter rights to access hospital records without advice from counsel.

On June 9, 2017, Judge Richard Browning agreed with the defence application and the blood sample was excluded from evidence. Without that, Crown had no other evidence that Saul was impaired at the time of the accident so Browning dismissed the charges.

The sister of the victim wept in court Friday after the decision and was heard to say, “That’s our justice system for you.”


@PeeJayAitch
paul.henderson@theprogress.com

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