Mr. W comes from a touching success story of a man struggling in life but managing to achieve personal and professional success. Like most of us, he had a few rough years. He was unable to hold long term employment and his financial situation was a constant source of stress. Despite this he managed to secure a job he loved which earned him more than enough to live comfortably. He maintained a volunteer position coaching hockey and earned awards for his community service. Mr. W was a role model in his community.
At the time of his mistake Mr. W was living with his brother to save money to purchase a home of his own. He was working on building his own business based on his love of hockey, and through hard work and determination he’d earned himself a new job with a raise that could make his goals a reality.
Like most of us, Mr. W made a mistake, and he was charged with operating a motor vehicle with a blood alcohol level over 80.
Mr. W’s position as a hockey coach, his new job, and his future goals to start a business and own a home were at risk. He’d been convicted for the same offence once before and knew a second conviction could be worse. Mr. W showed immediate remorse and began attending alcohol counselling of his own volition. He was prepared to do what he had to in order to get his life back on track, and we were going to help. If we could have the charges reduced to a provincial offence like careless driving his job and personal life would be minimally impacted.
We had two powerful tools on our side when building a defence for Mr. W: the Charter and his self-driven choice to obtain counselling for drinking. We would raise Charter challenges to the seizing of Mr. W’s breath in the road size testing in order to have the evidence deemed inadmissible. If the Crown believed their key evidence was going to be off the table at trial, and they saw that Mr. W had taken responsibility for himself via counselling, we would be in a good position to get a plea deal.
We started our Charter challenge with the delay between Mr. W’s stop and the time of his roadside breath testing. Because of that six minute period we could make three Charter challenges: the right against unreasonable search or seizure (section 8), the right against arbitrary detainment (section 9) and the right upon arrest or detention to retain and instruct counsel without delay, and to be informed of that right (section 10b). During those six minutes Mr. W was being searched without a warrant, which could constitute a breach of the right against unreasonable search. The fact that he was being held on no more than suspicion of intoxication and it took time before the IntoxilyzerTM could confirm the suspicion could constitute a breach of the right against arbitrary detainment. During those six minutes Mr. W was not instructed of his right to counsel, nor given the chance to contact counsel; a breach of his right to obtain and instruct counsel.
We leaned into the right to counsel breach again regarding Mr. W’s situation after his arrest. He informed us, and his information was supported by the arresting officers’ notes, that he had been pushed towards duty counsel (legal services offered for free) without being given a chance to consider who he wanted as legal representation. He was not given the chance to review options via phonebook or a list of criminal defence lawyers, and the police called duty counsel for him when he was unable to name a lawyer off the top of his head. The Ontario Court of Appeal in McAllen held that your section 10b to counsel included the right to counsel of your choosing. The Supreme Court of Canada in Prosper held that a detainee who wanted to exercise his 10b rights conveyed a responsibility onto his arresting officer to provide additional information as needed, such as a phonebook, in order to properly utilize that right. By not assisting Mr. W in finding counsel of his choosing and assuming he wanted duty counsel, the police violated his 10b rights.
Overall, we had a strong case for a Charter challenge to have evidence deemed inadmissible.
The charge was lowered from the criminal charge of Over 80 to a provincial highway traffic offence of Careless Driving, which Mr. W. agreed to plea to. Mr. W’s career and volunteer position wouldn’t be in jeopardy from a criminal record, and he was free to continue working towards his goals of owning a home and starting a business.