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City: Whitby, Ontario
Year: 2018
Our Client: Mr. M
Complainant: Durham Regional Police
Charge(s): Operation of a motor vehicle with a blood-alcohol level over 80mg per 100 ml of blood
Lawyer: Edmund Chan
Edmund Chan - Criminal Lawyer
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Case Study: Evidence Inadmissible and Charge Dismissed – Over 80

Background Allegations

Husband, father, and dedicated business owner, Mr. M. is a lot of things, but he is not a criminal.

On an early February afternoon Mr. M. was pulled over by the police under suspicion that he was texting while driving. After a series of questions, the officer told Mr. M. that they believed they could smell alcohol on his breath at the time. Mr. M. agreed to provide a breath sample into an approved screening device, which registered a blood alcohol level over 80.

Mr. M. was handcuffed and placed in the back seat of the officer’s vehicle where the officer informed him of his right to counsel. This exchange included the officer asking Mr. M. if he had a specific lawyer in mind, and when Mr. M. replied that he did not, the officer proceeded to inform him of duty counsel. The officer’s shift directly to recommending duty counsel convinced Mr. M., who does not have a background in constitutional law, that he either needed to know a specific lawyer or rely on duty counsel, or else he would forgo his right to counsel.

At the police station Mr. M. contacted duty counsel, agreed to further testing, and was charged with operating a motor vehicle over 80.

Goal

Mr. M.’s business required him to travel around Canada and interact with law enforcement. A licence suspension and a criminal record would have been devastating to his business, and by extension, the well-being of his family. He told us that he would be happy if his charges could be plead down to careless driving.

Our goal would be to either obtain a plea deal with the Crown that removed the criminal charges, or else we would take the case to trial and try to have Mr. M. acquitted.

The Strategy

If the police obtain evidence against you, but in doing so violate one of your protected Charter rights, the evidence will be deemed inadmissible by the Court and cannot be used. If that evidence is central to the Crown’s case against you, losing it can effectively ruin their ability to prove your guilt beyond a reasonable doubt.

Under s.10(b) of the Charter anyone who is detained or arrested has a right to obtain and instruct counsel, and to be informed that they have this right. The Supreme Court of Canada in R. v. Bartle held that this conveyed three obligations on police:

(1) Police must inform those they detain, without delay, of their right to counsel, and the availability of legal aid and duty counsel;

(2) Police must provide those who wish to exercise this right a reasonable opportunity to do so and;

(3) Police must avoid eliciting evidence from the detained party until they have had a reasonable opportunity to exercise their right.

The matter proceeded to trial. When Mr. M. told the officer that he did not know of any specific lawyer he wished to contact, the officer informed Mr. M. only of the availability of duty counsel. He was not given access to a phonebook to look up lawyers he might want as his legal representation. We submitted that, even though it was not the officer’s intent, the words used to inform Mr. M. of his rights convinced him that his only options were to contact duty counsel or to waive his right. We submitted that the police unintentionally funnelled Mr. M. to duty counsel without giving him an opportunity to look up potential legal counsel of his choosing, and that this violation of his s10(b) rights should compel the Court to deem all evidence obtained after this conversation inadmissible. This would take most of the Crown’s evidence away and would hopefully leave the Court and jury with a reasonable doubt.

The Result

The Court held that Mr. M. had a right not only to call a lawyer, but “also the related right to a reasonable opportunity to choose the lawyer with whom to consult”. It was noted that the infringement of the right was not excusable just because Mr. M. had the opportunity to speak with duty counsel, because the right includes the ability to freely select one’s legal representation.

The evidence collected after Mr. M. told the officer he accepted duty counsel as his representation was deemed inadmissible, and the charges of over 80 were dismissed. Mr. M. left the courtroom that day without fear that a criminal record might harm his business or his family.

The right to a lawyer means the right to a lawyer of your choice.   It is a right deserving of constitutional protection.  Any police practice which tends to undermine this right should be challenged vigorously in court!” – Edmund Chan

Please Note: Past results not predictive of future results.

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