‘This is not going to be good for me’: Ottawa councillor’s breath test video released at impaired driving trial

A 42-minute video of Ottawa Coun. Matthew Luloff providing a breath sample that was entered as evidence at his impaired driving trial last month has been released after CTV News and other news organizations challenged an initial ruling that prevented media outlets from broadcasting exhibits filed at the trial.

Luloff was arrested in July 2024 and pleaded not guilty to 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.

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

Media outlets routinely request and receive exhibits filed in court that are then published and broadcast—from photos of evidence and maps to video and audio recordings

In this case, the judge initially ruled exhibits, like the breath test video, were not allowed to be published.

The defence had argued publicizing the video would impact trial fairness, the administration of justice and be an affront to Luloff’s dignity.

The judge disagreed and ruled the exhibits could be released and used without restrictions.

Justice Michael Boyce said publishing the exhibits, including the video, would not pose a serious risk to the fairness of the trial because all evidence has been heard and it could not taint a jury pool because the case is being tried by a judge alone.

Boyce said releasing the video, the content of which the defence argues was as a result of several breaches of Luloff’s Charter rights, would actually enhance the administration of justice, as the public would be able to scrutinize the exercise of police power.

Boyce further added that while there was no doubt publication of the video “may bring discomfort or even embarrassment,” there was no basis to conclude it would “represent a serious risk and affront to Mr. Luloff’s dignity.”

Boyce said even though Luloff is a city councillor, as a judge, he needed to apply the same standards and tests as anyone else.

“The judge made it clear that in these particular circumstances the freedom of the press is to prevail over any of the concerns that we have on behalf of Mr. Luloff,” said Lawrence Greenspon, Luloff’s lawyer.

“I think the most important thing is even the breathalyzer technician confirmed in her evidence that but for the test results, she noted no effects of alcohol on Mr. Luloff.”

The video

The recording was taken at the Ottawa Police Service’s Elgin Street headquarters on July 6, 2024, and is 42 minutes long. Luloff is present for 37 minutes of it and it shows him providing two samples as well as his interactions with the breath technician.

The video shows Luloff, barefoot in shorts and a t-shirt, entering the room around 1:38 a.m. and sitting down on a bench seat.

The investigating officer says to Luloff, “You’ve spoken to a lawyer?” Luloff replies, “yes” to which the officer asks, “Are you satisfied with the advice you’ve been given?”

“I don’t have any answers to those questions, thanks,” Luloff replied.

The breath technician, Const. Marenda McCutcheon, tells Luloff everything in the room is video and audio recorded “for you and for me.”

Luloff asks if he can go to the bathroom.

“No, not yet,” she replies.

McCutcheon reads Luloff cautions and demands for the testing, asking if he understands.

He said he wouldn’t be answering questions but said, “I acknowledge that you read that statement.”

After providing the first breath sample, McCutcheon told Luloff he had to wait 17 minutes before providing the next one.

“Big problems in Ottawa and I’m the guy you’re…dealing with now,” Luloff said to McCutcheon as he waits.

“Well, not to be a Debbie downer but impaired operating… could be a big deal,” McCutcheon replies.

“Pulling me out of my garage, though,” Luloff said.

“It can be anywhere, doesn’t have to be on the roadway,” the officer responded.

McCutcheon fills out paperwork between breath samples.

“Was there any collision involved in your drive home?” McCutcheon asks Luloff.

“No…literally in my garage ready to walk in the house when these guys like came to my house. "

“When were you last operating your vehicle?”

“I’m not answering that question,” Luloff replies. “I’m sure you’re a lovely human being. I have a lot of respect for the police. I’m just doing as I’m instructed.”

‘This is not going to be good for me’

McCutcheon tells Luloff that this doesn’t make him a bad person.

“I’m a local politician who’s running for federal office so you can think whatever you want… this is not going to be good for me,” Luloff says in reply.

Luloff asks about getting his wallet and other belongings back, and how long his vehicle will be impounded for and the driver’s licence suspended.

“I’m trying to figure out how I’m going to take my kids to daycare in the morning. F--k. I’m so f--ked.”

McCutcheon says she has a few more questions for Luloff.

“Some of it starts with have you been drinking?” McCutcheon said.

“I’m not answering that question. No,” Luloff replies.

“I had been eating Wendy’s and trying to go to bed is what I’ve been doing.”

The witness who called 911 said she had seen a Jeep “swerving everywhere” and followed it to a Wendy’s drive-thru.

“I was driving behind them and beside them and they almost smashed into me. They were driving on the curb and just swerving everywhere,” she told the court.

Before the breath sample results are printed, Luloff asks McCutcheon, “What’s your first assessment?”

“I can’t tell you until I have…as soon as I know I’ll tell you,” she said.

“You asked me a lot of questions, you can’t answer any of mine?” Luloff replied.

Luloff said the officers arrested him “on my property with one foot in the house cuffed me in the garage. I’ll never forget it.”

McCutcheon then tells Luloff his results.

“So, your first test was 179, but we always round it down so it’s 170. That right there is over 80, double. And the second one is 167, rounds down to 160. That’s enough to lay a charge for impaired driving.”

Luloff’s lawyer wants both of the blood-alcohol level readings and what Luloff said to the breath technician tossed due to a number of alleged breaches of his 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 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,” Greenspon said outside of court in January.

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

A verdict is expected on Feb. 27.

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