Impaired Driving Charges

Under the Canadian Charter of Rights and Freedoms you have the right to be informed by the police upon your detention of your right to counsel. They must inform you of your rights at the correct time, and offer you an opportunity to speak with a lawyer, either duty counsel or a lawyer of your choice, within a reasonable amount of time. If you request a specific lawyer they must take reasonable steps to put you in contact with that person. If the specific rules about when and how you must be informed of and permitted to exercise your right to counsel are not adhered to, you may have a defence.

There may be a defence based on various circumstances regarding the timing in which events following your detention occur. For example, the police should take an Intoxilyzer breath sample at the police station as soon as practicable—which is not the same as soon as possible. Roadside samples must be taken almost immediately; a delay may therefore result in a defence.

A delay of 18 more months to get to your trial in the Ontario Court of Justice (or 30 months if your trial is in the Superior Court of Justice), for which the Crown Attorney or the court is responsible, may give rise to a defence. Delay” in this context does not include the sorts of inherent delays that occur in all cases, such those caused by waiting to receive the disclosure or completing initial meetings with the Crown, or delays caused on the accused’s behalf. Therefore, it is important that you retain us quickly so that we have the opportunity to create pressure from the beginning. In a case where this defence applies, it forms an absolute defence to all charges. While it is essential to be 100% truthful and fair in the evidence that you provide to your lawyer, the Crown Attorney and the Judge hearing your case, you should also note any prejudice that you have suffered because of the delays.

This defence defines itself. The onus rests on the Crown to prove its case beyond a reasonable doubt. There are many technicalities with regards to what the Crown has to prove in any type of case, but this is especially true in drinking and driving cases. For example, the roadside screening device must be calibrated every 14 days, while the machines at the station must be calibrated every 7 days. The Crown must prove that these requirements have been met. If these requirements are not met, then the reliability of the instruments diminishes, and this can afford a defence. Another example is the requirement that the police have reasonable and probable grounds to make an arrest and in order to justify your detention. Further, they must have these reasonable and probable grounds in order to make a breath demand and take your breath samples at the station. If the Crown cannot prove that there were reasonable and probable grounds, then the Judge may find that the Crown has not proven its case.