Defence wants key evidence tossed, charges dismissed due to alleged Charter breaches in councillor’s impaired driving case

Testimony wrapped up at the impaired driving trial for Coun. Matthew Luloff. As CTV’s Katie Griffin reports, his lawyer asked a judge to dismiss key evidence.

The lawyer for Ottawa councillor Matthew Luloff argued at his impaired driving trial Wednesday that key evidence for the Crown’s case should be excluded and all charges should be dismissed due to a number of alleged breaches of Luloff’s Charter rights.

“The essence is, firstly, that the driver was not identified that night by a person who was following them and that Mr. Luloff was then subject to an arrest by the police on his own property without any warrant, was denied rights to counsel and taken to the station and underwent a series of tests,” Lawrence Greenspon said outside of court.

“These charter breaches, and in my submission to the judge, are such that the evidence should be excluded and the charges should be dismissed.”

Luloff was charged in July 2024 with one count of operating a vehicle while impaired and one count of having blood alcohol content above 80 mg per 100 ml of blood two hours after ceasing to operate a vehicle. He pleaded not guilty to both charges on Monday after Greenspon’s bid to have the charges stayed due to delay was denied.

The Crown’s first witness who called 911 testified she saw a Jeep “swerving all over the road, hitting the curb like a bumper car” and flying over speed bumps.

The witness followed the Jeep to a Wendy’s that went through the drive-thru then parked.

She says she followed Luloff’s Jeep to his driveway, where it pulled in, but she did not see it turn off or see anyone get out of the vehicle.

An officer who went to Luloff’s house, minutes away from the Wendy’s, said that he could smell a “strong odour” of alcohol on Luloff’s breath and that the hood of the Jeep felt warm, giving him suspicion to administer a breathalyzer test, which Luloff failed.

Greenspon wants both Luloff’s blood-alcohol level readings and what Luloff said to a breath technician in the Ottawa police cellblock tossed.

In court, Greenspon alleged there were seven breaches of Luloff’s rights guaranteed in the Charter of Rights and Freedoms including:

• Police entering onto his property without a warrant.
• Telling Luloff they were investigating a traffic complaint and not an impaired driving complaint.
• Unlawful detention by the way officers parked their vehicles blocking the driveway.
• Searching Luloff’s satchel which contained keys to the Jeep without a warrant.
• Delaying his rights to counsel.
• Forgetting to read a demand for a breath sample until he got to cellblock.

“They follow one another chronologically and the first breach leads to the second, the second leads to the third and so on until ultimately the breath demand at 1:07 a.m. is read long after it should have been,” Greenspon told the judge.

During closing arguments Wednesday, assistant Crown attorney Julian Daller argued Luloff wasn’t unlawfully detained and that officers, who had told Luloff they were investigating a traffic complaint, didn’t immediately have to tell him they were investigating complaints of an impaired driver, which would fall under the Criminal Code of Canada.

Daller pushed back on the defence’s argument that there was no evidence proving Luloff behind the wheel of the Jeep.

“You’ll recall that the breath tech asked at one point ‘was there any collision involved in your drive home?’ The answer was ‘no.’ Implicit in that answer is an acknowledgement that he was driving,” Daller told the judge.

“The other statement that Mr. Luloff made at one point was ‘I have been eating Wendy’s and trying to go to bed is what I’ve been doing.’ So, the fact that he was eating Wendy’s is consistent with [the witness’s] observations of the vehicle in question going through the drive-thru at Wendy’s,” he said.

That evidence is part of the video the defence is seeking to have excluded.

A decision is expected next month.

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