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Richard Aitken Our Client: Mr. N.
Complainant: Canadian Forces Military Police
Charge(s): Impaired Driving and Over 80mg
Lawyer: Richard J. Aitken, B.A., J.D.

Background:  Mr. N. is a military teacher who had generally demonstrated a high degree of responsibility in our community.  As so many before him, Mr. N. had a momentary lapse in his judgment and decided to get behind the wheel of a motor vehicle after having a few too many drinks. The arresting officer noted that he had witnessed Mr. N.’s vehicle cross the centre line on several occasions and briefly drive south in a northbound lane.  Upon the review of Mr. N.’s disclosure package, as provided to defence counsel by the Crown, Mr. Aitken identified multiple Charter breaches. While the matter was set for a four hour trial, the trial itself never began as a result of the Crown making a deal with Mr. Aitken and Mr. N. to a plea of guilty to a lesser charge. 

            The Crown Attorney for this matter reflects:

 …I’ll just indicate, Mr. Aitken is clearly an impaired specialist as I’m sure Your Honour is aware. There have been quite a number of identified issues that we’ve been in part working our way through with informal interview with one of the officers anyway, and Mr. Aitken is then pointing out the next one and the next one [issues]. So he has shared with me potential issues beyond just that, which is apparent from my read [of] the case law and the Charter applications. So in the end, the Crown is prepared to resolve the matter on a plea to careless driving…

Goal: Seek a withdrawal of the impaired operation/over 80mg charges and have the client enter a plea of guilty to careless driving pursuant to section 130 of the Highway Traffic Act. This conviction on a plea to a lesser charge would not result in a criminal record.

Strategy:  Using Mr. N.’s Charter Application, the defence would rely on multiple breaches to Mr. N.’s protected rights during his arrest. Specifically, the accused was detained at the roadside and police station for a prolonged period of time.  The police detained and arrested Mr. N. without ever forming the applicable reasonable suspicion that an offence was being or had been committed. In addition, at no stage did the arresting officer contemplate if the approved roadside screening device (breathalyzer) was properly calibrated and in proper working order. This was evident as there was no mention of it in his full and complete notes. Lastly, Mr. N.’s right to speak with counsel of his choosing was neglected as only duty counsel was offered to him at the time of the arrest.  Collectively, these breaches would raise a defence to the alleged charges against Mr. N.

Verdict:  Prior to the beginning of the trial, the Crown agreed to a joint submission and plea of guilty to the provincial offence of careless driving. No criminal conviction was entered and the impaired driving/over 80mg charges were withdrawn.

Click Here for the Judge’s Reasons for Judgment