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Charge(s): Operating a motor vehicle with blood-alcohol over 80 mg/100ml of blood
Location: Oshawa, Ontario
Our Client(s): Ms. C
Complainant(s): Durham Regional Police Service
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 had planned on a fun evening out with a friend for a few drinks. They were to meet at a local bar, have a good time, and find a ride home safely. The plans took a turn when Ms. C’s friend didn’t arrive, but she made the most of it. She made friendly conversation with a bouncer, consumed only a few drinks, and planned to find a ride home. She and the bouncer discussed contacting Uber, and the bouncer offered to drive her home himself if she was stuck.

The bar closed, and Ms. C was waiting outside in the cold Canadian winter without her jacket, trying to figure out her way home. She didn’t have internet access from her phone and was unable to contact Uber, so she made her way to her car to stay warm.

While sitting in her car Ms. C was approached by police. Thinking nothing of it, as she was not driving the vehicle but merely sitting in it, Ms. C opened the door to speak to the officer. In the parking lot Ms. C was arrested for care and control of a motor vehicle with a blood alcohol level over 80. She had not been read her right to obtain counsel until she had arrived at the police station and waited a lengthy period to speak with the booking sergeant.

Ms. C had recently applied for full Canadian citizenship after living most of her life as a permanent resident and feared that her application could be harmed by these unfortunate circumstances. She sought out Aitken Robertson for counsel and connected with Dan Lemaire.

The Goals

Ms. C had been living in Canada since she was a small child. Now a young adult, she had not yet obtained full citizenship, and so a criminal record could impact her ability to obtain full status. Worse, if she was convicted of a criminal offence, she could face deportation from the country she’d called home for as long as she could recall. Our goal was to avoid criminal sanctions to prevent this dramatic impact on Ms. C’s life.

The Strategy

Dan’s familiarity with Charter rights often serves as a major asset for his clients, and Ms. C is a perfect example of this. After speaking with Ms. C and reviewing the facts of the case, Dan focused his efforts on a violation of Ms. C’s section 10(b) rights.

Section 10(b) reads “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right…” In essence, once you are detained or arrested you not only have the right to contact a lawyer and obtain their services, but the police have an obligation to inform you of this right promptly and to allow you to exercise it.

Under Section 24(2) of the Charter, if the Court determines that one’s rights were violated by the state (including police) while gathering evidence, then said evidence is deemed inadmissible and cannot be used. If most of the Crown’s case is reliant on evidence that is found inadmissible, the loss of this evidence can render their case too difficult to proceed with and the Crown is likely to negotiate or withdraw the charges.

The facts of the case suggested that Ms. C was not given her right to counsel until she had arrived at the police station, long after her arrest. This was a clear violation of her 10(b) right to counsel.

The Results

The Crown agreed that that the potential 10(b) violation was problematic and agreed to drop the Over 80 charges if Ms. C plead guilty to the non-criminal Highway Traffic Act offence of Careless Driving. She was to complete a one day course on safe driving, pay a small fine, and abstain from operating a motor vehicle if her blood-alcohol content was over 0 for a period of 12 months. This agreement was far less costly, time consuming, and risky for Ms. C, and the lack of a potential criminal record protected her residency from being impacted. She agreed to the conditions happily.


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