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Charge(s): Impaired Operation of a Conveyance
Location: Toronto, Ontario
Our Client(s): Mr. R
Complainant(s): Bar Security & Toronto Police Service
Year: 2019
Lawyer: Justin Marchand
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Please Note: Past results not predictive of future results.

The Background

Mr. R and his friend left a bar around midnight. While leaving the building the manager and security took note, concerned that they would attempt to drive after drinking. While the two approached their vehicle the plan was not to drive, but to retrieve Stag tickets to sell to their friends, and then to wait for a friend to pick them up. In fact, Mr. R still had an active tab in the bar at the time and had planned to return to the bar before leaving to pay it, and could not leave until he did so. Unaware of this, security called the police.

When the police first arrived Mr. R was standing away from the vehicle having a smoke, and the police focused on Mr. R’s friend. Security redirected them to Mr. R, claiming he was the driver. Mr. R was given a roadside breath test, which registered a fail, and he was arrested and brought to the police station.

At the station, Mr. R, confused as to how his actions amounted to a crime, asked the police questions about the offence he was being charged with, but the police neglected to answer him. He was pushed to contact duty counsel, and eventually released on a promise to appear in court.

The Goals

Mr. R’s case involved breaches of the Charter, errors by police, and conflicting testimony by witnesses. We could use this to negotiate with the Crown in the hopes of having the charges dropped, and if necessary, we could take it to trial. Our goal was either a withdrawal of the charges or, failing that, an acquittal at trial.

The Strategy

Our defence was based on three things: 1) a violation of Mr. R’s s. 10(a) right to be informed of the reason for his arrest, 2) a violation of Mr. R’s s. 10(b) right to contact and retain counsel, and 3) the conflicting testimony evidence between the parties involved.

Under s. 10(a) of the Charter, everyone has the right on arrest to have their charges explained to them. It’s not enough for the police to simply tell you what you’re charged with, if you ask for clarification they’re obligated to provide it. When Mr. R was at the police station he asked the police officer to clarify the details of the offence he was charged with and was brushed off. This is a clear violation.

Under s. 10(b) of the Charter, everyone had the right on arrest to not only contact and retain a lawyer but to choose who that lawyer will be. A longstanding issue with police procedure is “funnelling” to duty counsel; the process of pushing someone to contact the free duty counsel office quickly instead of allowing them time to research lawyers they might prefer. Mr. R informed us he was the victim of such a practice during his arrest.

Finally, the stories of Mr. R and his friend did not align with the stories of the complainant. The complainant alleged that he saw Mr. R start the vehicle and move it forward into another spot. Mr. R refuted this, pointing out that his vehicle was in a parking spot in the far corner of the lot, and it was not possible to pull forward. During a judicial pre-trial, the Crown and Judge both admitted that this was an issue that would be resolved when the security footage from the bar was released.

The Results

The bar footage was no longer available, and so confirming who’s side of the story was accurate became impossible. Luckily for Mr. R, the inability for the Crown to confirm their witnesses’ testimony was a major hit to their likelihood of convicting Mr. R at trial. This combined with the clear Charter violations led the Crown to admit that it was not a strong case, and the charges were withdrawn. Mr. R was ecstatic at the outcome and being saved the high costs of a trial. We advised him that we could apply to have his fingerprints that were on police record destroyed given his non-guilty status, and Mr. R left behind the possibility of being falsely convicted for simply getting Stag tickets out of his truck at a bar.


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