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Charge(s): Operating a motor vehicle with a blood-alcohol level over 80mg/100ml of blood
Location: Peterborough, Ontario
Our Client(s): Ms. C
Complainant(s): Ontario Provincial Police
Year: 2019
Lawyer/Paralegal: Dan Lemaire
Dan Lemaire - Criminal Defence LawyerLEARN MORE

Please Note: Past results not predictive of future results.

The Background

Ms. C’s day had started out an exciting one and ended stressfully. She had just attended her first day of college and was driving home on a dark and icy road when her car slid into the ditch, badly damaging the vehicle and leaving her shaken. The police officer called to the scene by witnesses found her still in the car.

The officer asked her several questions, including if she’d been drinking, which she denied. Despite this and the fact that poor weather and road conditions could reasonably explain what had happened, the officer requested Ms. C perform a breath test. The test registered 0mg of alcohol.

Regardless of the road and weather conditions and the test result, the officer requested a second breath test in case the first had been incorrect, as mistakes were possible. The second test registered a fail and Ms. C was arrested and charged with operating a motor vehicle with a blood alcohol level over 80mg/100ml of blood.

Ms. C was read her rights, including her right to counsel, and she requested the officer confer with her parents regarding a lawyer. The officer spoke to Ms. C’s parents, who indicated that they didn’t know any criminal lawyers off the top of their head, so the police contacted duty counsel for Ms. C.

At the police station Ms. C was further tested and released on a promise to appear.

The Goals

Ms. C’s career plan, which she had recently enrolled in college to pursue, would be impossible if she had a criminal record. The Crown’s offer during negotiations included a moderate fine and a one year ban on driving, which would make getting to college incredibly difficult for Ms. C. She was prepared to go to trial to avoid both the criminal record and the strict driving ban, so our goal was success at trial.

The Strategy

The Charter of Rights and Freedoms offers the most powerful protections against misuse of power by police. If one’s rights are violated by police then evidence obtained during the violation can be deemed inadmissible under section 24(2) of the Charter. Dan’s efforts in preparing Ms. C’s defence focused on two clear violations of her charter rights: her section 9 right against arbitrary detention and her section 10(b) right obtain and instruct counsel.

Under section 9 of the Charter, for police to detain or arrest you they must have a reasonable enough justification. Under a section 9 challenge, the Crown bears the burden of proving that detention was justified. We challenged that the police officer, given the circumstances, did not have reasonable grounds to detain Ms. C for that initial breath test.

Under section 10(b) of the Charter, not only does everyone who is detained or arrested have a right to contact and obtain a lawyer, but the police have a duty to instruct you of that right, and to a degree to facilitate your engaging of that right. Once you’ve been detained or arrested the police have complete control over what you are and aren’t able to do, and so since you are unable on your own to search for and contact a lawyer, the police are obligated (to a degree) to enable you to do so.

Ms. C directed police to speak with her parents about obtaining a lawyer. Ms. C’s parents indicated that they did not know a criminal lawyer. Instead of allowing Ms. C or her parents to review criminal lawyers in a phonebook or online, the police bypassed her right and contacted duty counsel on her behalf. In R. v. Willier the Supreme Court of Canada held that your right to counsel included a right to the counsel of your choosing. Ms. C did not have the chance to choose counsel.

Our plan at trial was to challenge the police officers’ violations of Ms. C’s section 9 and 10(b) rights which, if successful, would lead to most of the evidence being deemed inadmissible.

The Results

The trial commenced, and the first day was a great success on Ms. C’s behalf. After adjourning (the trial had not yet finished), the Crown contacted Dan with an offer: if Ms. C plead guilty to Careless Driving, a Highway Traffic Act offence that did not included a criminal record, and agreed to pay a reduced fine and adhere to certain driving conditions, they would drop the Over 80 charge. Taking the deal had the added benefit of reducing costly and time consuming trial. Ms. C agreed to the deal, plead guilty to Careless Driving, paid the small fine, and accepted one year of driving conditions that still allowed her to attend school. Her career wouldn’t be impacted, and she was free to continue with her exciting new college program free of the stress of a criminal charge.


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