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  Charges Withdrawn

Richard AikenCity:  Kingston, Ontario
Our Client: Mr. C.
Complainant: OPP
Charge(s): 2 counts of Flight from Police, Impaired Operation of Motor Vehicle, Exceed 80 mg Blood Alcohol Content, Dangerous Driving, Driving Motor Vehicle Without Currently Validated Permit (Highway Traffic Act Offence)
Lawyer: R. Aitken

Background: On a frigid January night, just before midnight, an officer in an unmarked car saw two snowmobiles, one on the shoulder of the road and one on its side in the ditch. As he approached, the driver of the downed snowmobile was able to right his machine and drive it to the shoulder. The other snowmobiler waved the officer on, not aware of who he was. The officer had noted the registration number of the first machine but as he approached the other one to take its number, that driver slammed down his visor and accelerated away. The officer felt that neither driver was going to stop so he activated his lights and went after them. However, they turned down a lane way which was not accessible by the cruiser. The officer called for back up and was joined by a second officer. The two proceeded on foot along the snowmobile track. They saw a light coming toward them and set up on the path to stop the oncoming snowmobile. The second officer blocked the path but the driver accelerated past him, knocking him slightly to the side. The officer grabbed the driver’s jacket, was dragged for a bit, but couldn’t hang on. The officers pursued on foot, but soon lost sight of the snowmobile. They continued to follow the snowmobile tracks on foot and then in their cruisers to the back of a residence where they found a parked snowmobile that was still warm to the touch, despite the coldness of the night. The officers went to the door and knocked, later stating that this door had opened. They heard voices in the basement and so they entered and went downstairs where they found two men which they identified as the two snowmobilers that they had been chasing. The men would later say that the police had come in not through an open door but through the basement window. The two men were arrested and handcuffed. One of the men, Mr. C., became our client. He faced four criminal charges (two counts of Flight from Police, Impaired Operation of Motor Vehicle and Exceed 80 mg Blood Alcohol Content) and a provincial offence (Driving Motor Vehicle Without Currently Validated Permit). At the Judicial Pre-Trial the Crown threatened to add the additional criminal charge of Dangerous Driving if we took the matter to trial (rather than accepting a plea bargain on the Crown’s terms). Mr. C. chose to fight the charges and the matter was scheduled for a two-day trial.

Goal: The goal was to avoid a criminal conviction. Mr. C. was initially charged with five offences, four of which were criminal offences. But, because he chose to fight the charges by trial, the Crown added a sixth criminal charge, Dangerous Driving. At trial he would have to beat all five of the criminal charges to avoid a criminal conviction.

Strategy: We would raise a Charter challenge, arguing that several of Mr. C.’s Charter rights had been breached by the police, including, with respect to the warrantless entry of the residence by police, the section 8 right to be secure against unreasonable search or seizure. We would also dismantle the officers’ evidence in cross-examination.

Verdict: After the first day of the two-day trial the Crown offered, and Mr. C. accepted, to settle for a plea to a careless snowmobiling charge (a non criminal provincial offence) for a fine,‏  with the remaining provincial offence charge and all five criminal charges being withdrawn.