TORONTO - Rob Ramage is arguing he should get a new trial on charges including impaired driving causing death because his Charter rights were violated shortly after a crash that killed his friend, former NHLer Keith Magnuson.
Suffering from a head injury and on morphine in the hospital after crashing a car, Ramage was not able to give informed consent when a police officer requested a urine sample, he says.
Lawyers for Ramage are to go before Ontario's Court of Appeal on Monday to ask for a new trial, or that his "harsh and grossly disproportionate" sentence be reduced.
Ramage's Charter rights were violated after he urinated into two containers at the hospital following the crash and a police officer seized some, Ramage's lawyer Brian Greenspan writes in a court document filed in advance of the hearing.
The officer didn't have a warrant, hadn't yet given Ramage a chance to speak with a lawyer, didn't advise him he didn't have to comply and didn't determine if Ramage was capable of giving informed consent, Greenspan writes.
"(The officer) knowingly exploited the appellant's custodial and medical status and the exercise of control that he exerted," the lawyer says.
A court document the Crown has filed indicates it will be strongly arguing against the conviction and sentence appeals.
"Mr. Ramage's position at trial was highly speculative, and if true, amounted to a consecutive series of unfortunate events amounting to an unbelievable case of extreme 'bad luck,"' Crown attorney Philip Perlmutter writes.
Ramage, himself a veteran NHL defenceman, was convicted in 2007 of impaired driving causing death, impaired driving causing bodily harm, dangerous driving causing death and dangerous driving causing bodily harm.
He was sentenced to four years imprisonment and was banned from driving for five years. Ramage has been out on bail since then living in the U.S.
Greenspan also contends Ramage's blood sample showing a high blood alcohol level could have been contaminated by an ethanol swab, and the urine containers could have been contaminated, too.
The Crown sounded highly skeptical of that position.
"What is the likelihood that four discrete analyses of three samples of blood and urine, collected separately at varying times in different containers, would produce (blood alcohol content) results three times the legal limit...?" Perlmutter writes.
The Crown conceded the Charter violation, but writes that the trial judge rightly allowed the urine evidence because the officer's conduct fell short of "flagrant or egregious."
Magnuson, 56, was killed when a rental car driven by Ramage slammed head-on into another vehicle just north of Toronto in December 2003. Ramage and Magnuson had just left a funeral reception for another former NHL player, Keith McCreary.
His lawyers also raise several issues with the judge's charge to the jury, which Greenspan says was "overwhelmingly" in favour of the Crown.
"The trial judge, at every opportunity in his charge to the jury, went out of his way to undermine the position of the defence by posing rhetorical questions and offering editorial comments that were often based on a misapprehension of the evidence," Greenspan writes.
Although the judge re-charged the jury on several aspects the damage was done, Greenspan says.
The sentence went against the wishes of Magnuson's family for a conditional sentence and was disproportionate for an upstanding citizen who had no criminal record, Greenspan writes.
Ramage won Stanley Cup rings with the Calgary Flames and Montreal Canadiens. He also played for the Colorado Rockies, St. Louis Blues, Toronto Maple Leafs, Minnesota North Stars, Tampa Bay Lightning and Philadelphia Flyers. Ramage retired after the 1993-94 season.
Magnuson was a rugged defenceman who played his entire 11-season NHL career with the Blackhawks, retiring after the 1979-80 campaign. He also coached the team for a season and a half.