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Richard Aitken Our Client: Mr. N.
Complainant: Ontario Provincial Police (OPP)
Charge(s): Impaired/Over 80/Novice Driver BAC above 0
Lawyer: Richard J. Aitken, B.A., J.D.
Date Charges Withdrawn: January 21, 2016 (on trial date)

Background:  About an hour after dawn on a clear, dry Sunday morning in May, in the heart of Muskoka, police were dispatched to a vehicle roll over. They arrived at the scene to find the vehicle on its roof. The driver Mr. N. and his passenger were standing nearby as was a bystander. Mr. N. was 20 years old and was in cottage country for a weekend away with a buddy. The officer questioned Mr. N. who reported swerving to avoid a rabbit. The officer then questioned him on his recent alcohol consumption and Mr. N. admitted to drinking the night before, approximately five hours prior. The officer therefore demanded that Mr. N. give a breath sample into the roadside breath screening device. He provided a breath sample, registered a “fail” and accordingly was arrested for having over 80 mg of alcohol per 100 ml of blood – a criminal offence. Mr. N. was read his rights, cuffed and put in the back of a police cruiser. He was taken to the detachment where he was turned over to a breath technician to provide samples into the more accurate breath machine there. He “blew” 190 – well over twice the legal limit of 80.

Goal: Mr. N. lived in Toronto and was a commercial painter who painted houses and buildings.  He needed to drive to make his living. A conviction would result in a long driver’s licence suspension, as well as a large fine (probably well over the minimum fine amount of $1000), a 30 % victim fine surcharge and of course, a criminal record. Because of the aggravating factors in his case: the accident and the extremely high blood alcohol concentration, if convicted of this criminal offence, his sentence would necessarily be at the high end of the range of possibilities. Jail was even possible. As well, Mr. N. was under the age of 22 and under Ontario’s graduated licence system his blood-alcohol level when driving had to be zero. If convicted of driving with any alcohol in his blood he would face a fine and a driver’s licence suspension. The goal was to prevent any licence suspension and the criminal record.

Strategy:  According to the Criminal Code, the breath sample at the station had to have been taken not later than two hours after the time when the offence was alleged to have been committed, for the Crown to be able to rely on the statutory presumptions that the breath machine readings represented Mr. N.’s blood alcohol content at the time of driving, or that Mr. N.’s blood alcohol content exceeded the permitted level at the time of driving. If the first breath sample at the station was taken outside this two-hour period, the prosecution would not be able to rely upon the test results alone as proof of the blood-alcohol concentration at the time the vehicle was driven. In Mr. N.’s case, in order to extrapolate back to the alleged time of driving from the breath machine results, the Crown engaged a toxicologist who prepared a report, a copy of which was provided to us. We would argue that this report was not comprehensive enough in that it should have expanded the calculations for other possible times of last driving. For our part, we had to put the time of driving outside the window of the toxicologist’s calculations.

Verdict:  Just before the start of the trial, on the strength of our arguments about the calculations and the time of driving, we were able to reach a plea bargain with the Crown whereby the Crown offered a plea to careless driving. Careless driving is merely a provincial rather than a criminal offence. By pleading to “the careless” Mr. N. would avoid the consequences of a criminal conviction. Significantly he would not have his driver’s licence suspended and he would not have a criminal record. Mr. N. was delighted.