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Ottawa Citizen - Officer's testimony leads to dismissal of charges

(2011-10-02)

By Andrew Seymour 

A prosecutor asked a judge to dismiss drunk-driving charges against a ByWard Market bar owner Thursday following a punishing cross-examination that hammered the arresting officer's credibility and left much of his evidence in tatters.

Lawyer Michael Edelson established that the officer and one-time breath technician who arrested John Doherty didn't know the legal grounds for detaining suspected impaired drivers.

Those legal grounds - that an officer has a reasonable suspicion that a person had alcohol in their body in the past three hours - weren't met by Ottawa police Const. Nicolas Benard, who never noted asking Doherty when he had last taken a drink.

Edelson also attacked gaping holes in Benard's notes and played cellblock video that showed Doherty walking in a straight line, appearing steady, even slipping off his shoes with no difficulty.

There was not a "scintilla" of evidence that Doherty, 35, displayed any of the physical signs of being intoxicated that Benard testified he observed before arresting him.

"It would be impossible that all these vivid signs of impairment, that they would have disappeared in 10 to 12 minutes," Edelson put to Benard, who acknowledged Doherty didn't appear to be having any trouble on the video.

Edelson also accused Benard, who was once found guilty of discreditable conduct for calling in sick to court to save a friend and fellow officer who was vacationing in Cuba from testifying, of being an "abject liar" who doctored and backfilled his notes to meet the legal requirements needed to justify his arrest of Doherty.

Edelson argued that the officer, who also admitted to having never read the force's policy on note-taking, was neither a reliable nor credible witness.

Doherty, the owner of Patty Boland's pub, was arrested after Benard came across a minor traffic accident on Nicholas Street near Laurier Avenue at 7: 20 a.m. on Oct. 4, 2010.

Benard said he noticed Doherty had glassy eyes, was stumbling and unsteady on his feet and slurring his words.

Doherty, who told Benard he had had four shots at the bar, failed a roadside screening test. He eventually blew breath readings of 182 and 185 milligrams of alcohol per 100 millilitres of blood. The legal limit to drive is 80.

Edelson was challenging the admissibility of those readings because he alleged the arrest was illegal.

Edelson had just finished his relentless cross-examination of Benard when Crown prosecutor Lisa Miles asked for an extended recess.

"Given the evidence heard by the court to this point, in the Crown's assessment the basic elements of the charge have not been established such that there is no longer a reasonable prospect of conviction," Miles said after the break. "As we have no further evidence available to us on any of the failed grounds, we are electing to call no further evidence and invite your honour to dismiss both charges against the accused."

Ontario Court Justice Patrick Sheppard said he had "little or no difficulty" understanding the Crown's decision before acquitting Doherty of impaired driving and driving with a blood-alcohol level over the legal limit.

"I think that is the very responsible way for the Crown to proceed," Sheppard said before telling Doherty he was free to go.


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