A Hunch is Just a Hunch – Superior Court

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It was a lesson about using “flimsy grounds” for stopping people on suspicion of texting while driving — an Ontario Superior Court judge has thrown out an alcohol-related conviction and stayed further proceedings.

“This was an investigation that used an initial stop on flimsy grounds which became immediately an investigation of a drinking and driving offence for which admittedly there was not even a hint of articulable cause,” Justice Peter Howden wrote.

“The stop that detained the appellant was done on perhaps slightly more than a hunch but no more than a guess plus assumed facts from subjectively mounted appearance.”

An officer in Collingwood had stopped a driver he thought had a cellphone in his hand while at a red light, last year. The driver was later convicted for refusing a blood-alcohol test.

Lawyer Richard Litkowski, with Hicks Adams LLP, represented Imran Mughal on the appeal of his conviction in R. v. Mughal. The officer “clearly operated on a hunch,” Litkowski said.

The case is R. v. Mughal, 2013 ONSC 7800 (CanLII)

In February 2013, Mughal was pulled over by an Ontario Provincial Police officer during a zero-tolerance enforcement effort of Ontario’s distracted-driving law. The officer said he believed Mughal was texting. He said Mughal was looking downwards with a source of light below.

“The officer mentioned nothing about any arm movement and he could not see his hands,” Justice Howden found.

“There was no evidence of bad or distracted driving or of a communication device being used by the appellant, only an appearance to an officer whose force had a campaign on to get distracted drivers and whose interest therefore was heightened to a point where appearance became all.”

During the stop, the officer smelled alcohol in the car and demanded a breath sample. Mughal refused. The officer later charged Mughal with refusing to provide a breath sample. Mughal was convicted at trial of that charge.

Howden threw out the conviction and stayed further proceedings on the charge.

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