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Charge(s): Driving with Blood Alcohol Over 80mg, Driving while Impaired
Location: Milton, Ontario
Our Client(s): Mr. M
Lawyer/Paralegal: Richard Aitken
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Please Note: Past results not predictive of future results.

The Background

Mr. M, a permanent resident of Australia, worked for a Canadian supermarket chain on a work permit. While driving in the city of Milton, Mr. M was stopped by a police officer who was on proactive traffic enforcement duty. The officer conducted a sobriety test on Mr. M and formed a reasonable suspicion that Mr. M had consumed alcohol. Mr. M was taken to the police station where a legally admissible two-stage breath test was conducted on Mr. M. The accused blew 121 mg of alcohol in 100 ml of blood, and the second time Mr. M blew 116 mg of alcohol. Consequently, Mr. M was charged with the offence under sections 320.14(1)(a) and 320.14(1)(b) of the Criminal Code of Canada, which are both serious criminality offences under the immigration act.

In the initial screening form, the Crown wanted Mr. M to plead guilty to the offence of driving with 80 and over mg of alcohol, contrary to (320(1)(a) of the Criminal Code. The Crown further sought a fine of $1,000 and a twelve-month prohibition.

The Goals

Mr. Aitken was well aware that by pleading guilty to the offence of 320(1)(a), Mr. M would be inadmissible to Canada on the grounds of serious criminality for the next five years. Mr. M would have to leave Canada and lose his job. As a result, Mr. Aitken focused on getting a non-criminal disposition for Mr. M by either through a resolution to a lesser offence under the Highway Traffic Act or an acquittal after a trial in the most cost-effective and timely manner.

The Strategy

The Crown withdrew the criminal charges and agreed to Mr. M pleading to the lesser offence under the Highway Traffic Act, which meant no criminal record or immigration consequences.

Mr. Aitken wrote a letter encompassing the legal and factual issues in the case to the Crown and timed it with the Crown’s covid policy initiated to reduce the backlog in the courts. It was pointed out that the police officer who initiated the traffic stop bungled Mr. M’s Charter right to counsel, as this means informing an individual of his right to have any counsel of choosing and the resources to find one instead of perfunctorily reading the rights. Factually, we identified Mr. M’s work profile novelty and his lack of record either in Canada or Australia, the value he added to his organization, and the fact that he could be deported in case of a criminal conviction.

Mr. Aitken also elaborated on Mr. M’s coherency and responsiveness, and advanced that Mr. M’s reliance on the GPS to navigate caused his car to swerve, which the officer erroneously interpreted as an indicia of impairment. Mr. Aitken expounded to the Crown counsel via the doctor’s letter that Mr. M suffered from a hearing-related condition which caused difficulty communicating and led to a balance disorder akin to “seasickness,” triggering Mr. M to sway while walking. We expounded the above with Mr. M’s unfamiliarity with the Canadian practice of producing documents to a police officer, unlike the Australian method of automatic identification, led Mr. M to act in a way that the officer perceived as strange and possibly impaired.

The Results

Eventually, the merits in Mr. Aitken’s letter outweighed the evidence. Mr. M pleaded guilty to the offence of careless driving under the Highway Traffic Act, which prevented a criminal code conviction that would have triggered immigration consequences. Mr. M was fined $1,000 and was placed under probation for one year. As per the terms of the early resolution, Mr. M was required to install an ignition interlock in his car within three months into his probation for the probation period’s remaining duration.


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