Feb 22, 2012 - 5:32 PM
On trial. Rick Vaive (centre) checks his cellphone as he leaves the Newmarket courthouse with lawyer Calvin Barry (left) and Vaive's wife, Joyce. Torstar file photo
Former Toronto Maple Leafs great Rick Vaive told different stories to police officers who arrested him for impaired driving and during his court case, the Crown said today.
Mr. Vaive is charged with impaired driving and driving with more than 80 milligrams of alcohol in 100 millilitres of blood after a traffic stop in 2009. He has pleaded not guilty.
After being arrested by York Regional Police in Vaughan July 14, 2009, Mr. Vaive told York officers he had consumed one beer before he got into his truck following a golf game in Gravenhurst, prosecutor Jon Fuller told the court. However, while testifying, Mr. Vaive admitted to drinking six beers, he added.
Also, when questioned by York officers, Mr. Vaive admitted to one rest stop, Mr. Fuller said. But, during the trial, Mr. Vaive testified he had stopped several times, he noted.
Mr. Fuller also argued it is odd Mr. Vaive’s travelling companion, Bill Derlago, testified he did not see a large urine stain on Mr. Vaive’s shorts, which Mr. Vaive testified had appeared after a second rest stop between Gravenhurst and Vaughan.
Mr. Derlago reportedly testified he believed Mr. Vaive was fit to drive.
“It’s noticeable,” Mr. Fuller said of the stain when Mr. Vaive was pulled over by York police. “It’s something that isn’t in dispute that it’s there.”
Mr. Fuller suggested two possibilities: either the stain appeared after Mr. Vaive dropped off Mr. Derlago in Vaughan or Mr. Derlago missed the stain. If the latter is true, the power of Mr. Derlago’s observations during his testimony should be questioned.
Earlier in the day, Mr. Vaive’s lawyer, Calvin Barry, picked through testimony and records of several witnesses and argued to the court his client’s rights, including those protecting the right to contact a lawyer and against an unreasonable search, were violated.
When York police pulled over Mr. Vaive’s vehicle in Vaughan, the former hockey player called a civil lawyer, who said he needed criminal counsel. The civil lawyer told a York officer he would try to reach a criminal lawyer for Mr. Vaive, Mr. Barry said.
The officer did not suspend the impaired driving investigation while that criminal lawyer was being contacted and, instead, began obtaining breath samples from Mr. Vaive, Mr. Barry said.
That was a “shortcut” that violated Mr. Vaive’s right to get proper legal advice, Mr. Barry said.
Thus, the breath samples, which reportedly showed Mr. Vaive’s blood-alcohol level to be nearly double the legal limit, should be excluded and he should be found not guilty, Mr. Barry said.
However, Mr. Fuller took aim at Mr. Barry’s reasoning, arguing that based on a York officer’s testimony, Mr. Vaive never expressed discontent with the legal advice he received.
And Canadian high courts have ruled police are not required to maintain the quality of legal advice received by an accused person once contact with a lawyer is made, Mr. Fuller added.
Besides, Mr. Vaive testified he was aware of the existence of duty counsel but did not want to use that free legal service, he noted.
That was his choice — not a breach of his rights, Mr. Fuller said.
York Regional Police received a call about a suspected impaired driver in the Pine Valley Drive and Hwy. 7 area in Vaughan, July 14, 2009 after a man was spotted getting into a vehicle at a plaza.
The caller saw the vehicle head south on Pine Valley, then west on Hwy. 407, police said.
As the vehicle exited at Hwy. 427, York police stopped it, investigated Mr. Vaive and arrested him.
Mr. Vaive had was returning from a golf game in Gravenhurst.
Fernando Bernardo, who phoned police that day, testified in February he made the call after seeing a man struggling to stand in a parking lot.
When Mr. Bernardo spotted the man in the lot, he thought he may be ill, court heard. But when the man leaned against a pickup truck before climbing behind the wheel, it was clear he wasn’t sick, he testified.
A sentencing date is not yet available.
http://www.yorkregion.com/news/article/1302916--closing-arguments-in-vaive-case
