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City: Chatham, Ontario
Year: 2015
Our Client: Mr. N.
Charge(s): Over 80
Lawyer: Richard J. Aitken, B.A., J.D.
Richard Aitken - Criminal Lawyer

Case Study: Over 80

Our client, Mr. N, was a hard working 23 year old man, employed as a bricklayer. It was essential to our client that he keep his driver’s licence so that he could travel from job to jobs sites in the Chatham area.

The Allegations

Sgt. C. received a report of a pickup truck parked at a gas station, when he approached, the driver began to pull away but stopped when Sgt. C. got his attention. Sgt. C. smelled the odour of alcohol and asked the driver (Mr. N.) if he’d been drinking. Mr. N. said that he had not.

Const. L then arrived and Sgt. C requested a roadside screening test. Mr. N. made 2 tries and then a third test which showed a “Fail” result. Const. L. then placed him under arrest.

The Charges

Chatham Police charges of operate a motor vehicle with more than 80 mg of alcohol in 100 ml of blood.

Crown Position

The Crown attorney wanted Mr. N. to plead guilty to the criminal charge of over 80.


We tried initially to convince the Crown attorney to drop Mr. N.’s charges completely or at least reduce them to careless driving so my client’s good paying bricklaying job would be preserved.


After consulting with my client, I set his charges for trial. I prepared a very extensive Charter application, alleging breaches of my client’s Charter rights by police. One of them was quite interesting. When the police gave Mr. N his rights to call lawyer, Mr. N wanted to speak to Walter Phillips, a very prominent local paralegal. Mr. Phillips was formerly a police officer with the Chatham police. Only lawyers can give advice on impaired charges. Paralegals cannot. Despite that, the police let Mr. N. speak to the paralegal. I argued this was a major Charter breach.


The justice said in part “As to the actual implementation of Mr….’s 10 (b) rights it is quite clear that Sergeant K…knew that paralegals were prohibited from acting in a drinking and driving cases. It should have followed from that knowledge on behalf of Sergeant K…that paralegals then could not provide advice in compliance with Section 10 (b) to an accused in such situations. Either Sergeant K…did not turn his mind to this or did not know this. Again, Sergeant K…was not acting out of malice or in bad faith…in fact Sergeant K…was pleasant, helpful and responsive…What Sergeant K…failed to do however, was to ensure that…section 10 (b) rights were protected. In effect Mr. N…was not given the opportunity to exercise his rights.”

Our client was acquitted after a two day trial. He was delighted with our efforts.

Please Note: Past results not predictive of future results.

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