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Richard Aitken

City: Sault Ste. Marie, ON
Our Client: Mr. K.M.
Complainant: Ontario Provincial Police (OPP)
Charge(s): Care & Control of a Motor Vehicle / Over 80mg
Lawyer: Richard J. Aitken, B.A., J.D.

Background:  A security guard at a hydro project got a call in the middle of the night from a group of people who said that their truck had slid off the road and needed a tow. He called the police. When the police arrived they found a pickup full of people, completely off the road, in a snow bank. They found sealed cans of Budweiser in the bushes and some cans in the roadway. The police spoke to the person in the driver’s seat. Mr. K.M. was in the passenger seat. The person in the driver’s seat said that he wasn’t the driver, that he just ended up in the driver’s seat after they tried to dig the truck out and that the owner/driver had lost his shoe pushing it out. Mr. K.M., wearing only one shoe, was questioned by the police and they noted that he appeared to be very unsteady on his feet, relied on the door to hold him up when he exited the truck and while walking back to the police car he had to use the side of the truck to keep his balance. When he made it past the end of the truck he had difficulty keeping his balance and once at the police cruiser, he had to use it to steady himself. The police reported that Mr. K.M.’s speech was very slurred and that he had to speak slowly to put together his sentences. The officer reported that when he requested ID from Mr. K.M., it took Mr. K.M. several attempts to remove his driver’s licence from his wallet and that he had to go through several cards before selecting his licence. Mr. K.M. indicated that the other person was the driver, but eventually stated that he was the driver. The officer demanded that Mr. K.M. provide a breath sample into the roadside alcohol screening device and when he did so, the result was a “fail,” indicating a blood alcohol concentration over the legal limit. Mr. K.M. was arrested. He was advised of his rights to counsel. He was handcuffed, frisk searched and placed in the rear of the police cruiser. The officer then demanded a breath sample be given into the device at the police station and Mr. K.M. was transported to the station where he provided a breath sample which registered a blood alcohol concentration reading approaching twice the legal limit. He was charged with “Over 80.”

Goal: Mr. K.M. was a young man, a university graduate with no criminal record. He had a bright future ahead of him until this happened. A criminal record would likely destroy his future job prospects in the particular profession for which he had trained. He could not afford to plead guilty; he had to beat this charge.

Strategy:  We would argue that several of Mr. K.M.’s Charter rights had been violated by the police, including his right to being provided his “rights to counsel” at the appropriate time. For example, we would show that his statements were compelled and provided without the benefit of rights to counsel. We would show that the Crown could not prove when Mr. K.M. was driving or if he was driving at all. There were issues around the alcohol breath screening device that we would attack. We would take apart the officer’s evidence in cross-examination. For the trial we would fly a team to Sault Ste. Marie, then rent a vehicle to get to Wawa (and as usual would not charge for travel time or mileage).

Verdict:  Following the first day of trial in which the officer gave his testimony, we wrote to the Crown and convinced her that our cross-examination of the officer had irreparably damaged the Crown’s case and further, that we could, point by point, dismantle the case against our client, and that therefore there was no reasonable prospect of conviction. Based on the comments in agreeance with our position made by the Crown on the next day of trial, and on the hearing of the evidence on the first day of trial, the charge was dismissed.