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Charge(s): Care and Control of a Motor Vehicle while Over 80 mg
Location: Oshawa, Ontario
Our Client(s): Ms. M
Complainant(s): Durham Regional Police Service
Year: 2016
Lawyer: Richard Aitken
Criminal Lawyer Richard AitkenLEARN MORE

Please Note: Past results not predictive of future results.

The Background

Ms. M had been at a local bar having a few drinks with a friend of hers.  As a result of being sexually harassed by a fellow patron (a tow truck driver), our client left the bar and drove to McDonald’s for a snack.  The tow truck driver followed her out, and called the police to report a possible DUI. The reality is that the tow truck driver was hoping that our client would be arrested so he could tow the car and impound it for seven (7) days – perhaps earning $1,000 in the process.

As a result of an anonymous tip, the police showed up and our client failed the roadside screening device (breathalyzer).  She was then arrested and transported to the police station for further breath testing.  Ultimately, Ms. M’s readings were 169 mg and 160 mg – considerably over the legal limit.

From the time of her arrest, until the time of arrival at the police station, our client told the police that she desperately needed to use the washroom.

The Goals

Ms. M was meaningfully employed in the construction industry.  However, she was also on the short list to be hired by a major local company, and if hired, our client would have been set for life – with a considerable income, a great pension, and full benefits.  It was essentially her dream job.  However, a criminal record as a result of a conviction for a DUI would have been detrimental and could have ended her chances of being hired. We needed to avoid a criminal conviction.

The Strategy

At trial, we had to somehow keep the breath readings out of evidence.  With that in mind, we researched our file, our client’s personal circumstances, and recent case law updates to develop an optimal strategy.  We filed a Charter of Rights and Freedoms application alleging that our client’s rights had been violated in many respects by the police.

Mr. Aitken thought that the best argument dealt with the notion that the police were viewing the closed-circuit monitoring of prisoners for the entire time they spent in the jail cells.  There was no privacy – even when using the washroom – and there was little warning to our client, and other detainees, were being video-taped at all times.

Our firm obtained the cell-block video and reviewed it with Ms. M. She was utterly shocked to see herself using the toilet on film.  At one point, he bare bottom and upper thigh was briefly exposed on camera and the video also revealed that at one point a mail officer brought some toilet paper to where Ms. M was being held, even while she was currently on the toilet.  The video was quite offensive and it was quite a humiliating experience for our client.

Mr. Aitken argued before the judge that this was an evident breach of our client’s protected right to privacy, especially since she was a women.

The Results

The judge followed the reasoning in a recent Oshawa case that had been argued by Mr. Nathan Baker, a former-lawyer at our firm, and Ms. M was acquitted.  His honour found that Ms. M’s privacy rights had been infringed and excluded the evidence.  With no admissible evidence, the judge had no other option but to render an acquittal.


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