City: Toronto, Ontario
Our Client: Mr. J.
Complainant: Toronto Police Service
Charge(s): Operate Motor Vehicle with More than 80mg of Alcohol in 100ml of Blood.
Trial Lawyer: Richard J. Aitken, B.A., J.D
Appeal Lawyer: Edwin Boeve, B.Sc., M.Sc., J.D.
Background: Mr. J. was a 22 year old Canadian student entering into his 4th year of university in the United States on a golf scholarship. After attending a party in Toronto, he was stopped by the police and arrested for driving with over 80mg of alcohol in 100ml of blood (over 80). Because he was about to leave Canada to re-attend university in the U.S.A., the police decided not to immediately release him from incarceration and held him for a bail hearing as a result of considering him to be a “flight risk.” While in custody, Mr. J. was subjected to two separate strip searches, held for two nights, and subjected to onerous bail terms.
Goal: Given our client’s professional aspirations, it was vital that he not end up with a criminal record.
Strategy: Our firm was of the view that Mr. J.’s rights were violated in any number of manners, including his right to a speedy trial (an infringement of his section 11(b) Charter right), as well as his breath samples on the Intoxilyzer 8000C not having been taken quickly enough. Further, our client was arbitrarily detained in custody and was not provided his protected right to instruct counsel of his choosing at all of the appropriate times (section 10(b) of the Charter of Rights and Freedoms).
At trial, Mr. J was convicted. Mr. Aitken and Aitken Robertson’s team of Toronto criminal defence lawyers felt strongly that a miscarriage of justice had occurred and we advised Mr. J. to appeal his conviction. He accepted our advice and the appeal proceeded. Mr. Edwin Boeve argued the case before Canada’s highest level of courts – the Supreme Court of Canada.
Verdict: Following the trial conducted by Edwin Boeve in the Ontario Court of Justice, Mr. Richard Aitken argued the appeal at the Ontario Superior Court of Justice level in Toronto and was successful in the appeal. This victory changed the law in Ontario as to when Rights to Counsel must be given to detained individuals.
The learned appeal Justice Wilson ruled that the police had to additionally advise Mr. J. of his rights to counsel when they decided to detain him further for a bail hearing. The Crown did not appeal this further and R. v. J. remains the law of Ontario on this issue. While Richard Aitken argued the appeal, the appeal was prepared by Edwin Boeve who generates the majority of the appellate level cases. He has also appeared once in front of the Supreme Court of Canada.
As an aside, we recommended to the client that he consider suing the Toronto Police Service because of how badly his protected Charter rights were violated. Mr. J. accepted our advice, sued the police, and ultimately received a very satisfactory settlement in his case.