Ms. D’s case is a perfect demonstration of why Aitken Robertson’s criminal defence lawyers so adamantly pursue claims of violated Charter rights.
Ms. D, a young woman working as a server, got to her home which she shared with her parents, where she had a few glasses of wine. Shortly after, she found police in her kitchen, where she was accused of drinking and driving. The alcohol on her breath was from the drinks she’d consumed after arriving at home.
In their investigation of Ms. D, police violated a number of protected Charter rights. They searched private property without a warrant, unreasonably detained Ms. D, allowed a long period of time between detention of the reading of rights to elapse, and funnelled Ms. D to duty counsel preventing her from choosing her own lawyer.
Even before we received disclosure from the Crown it was clear that the police had violated several rights and that Ms. D had a strong case to challenge her charges.
Ms. D made it clear to us during our initial meetings that her greatest concern was avoiding the loss of her licence. While our greater goal was to help Ms. D avoid criminal sanctions at all, we aligned our focus on obtaining an outcome that did not result in the loss of Ms. D’s licence. A reduction to a non-criminal offence that did not include a complete ban on driving would be an acceptable outcome.
Once Dan Lemaire began reviewing the facts of Ms. D’s case it became apparent that there were several clear violations of protected Charter rights by police present.
Section 9 of the Charter protect your right against arbitrary detention or imprisonment. Police officers must have reasonable grounds to detain you. The detention of Ms. D appeared to be investigative in nature, in that they were using the detention to search for potential violations of the law, rather than in response to one they were already aware of.
Section 10(a) of the Charter protects your right to be informed promptly upon detention or arrest of the reason for said detention or arrest. There was a significant delay between Ms. D’s initial detention by police on her private property and her being informed of the reason. Section 10(b) of the Charter protects your right to obtain and instruct legal counsel promptly upon detention or arrest. As above, there was a significant delay between Ms. D’s detention and her being read this right and given the opportunity to contact counsel. Once Ms. D was given her right to counsel she was significantly prevented from seeking out the counsel of her choice, and instead funnelled to duty counsel. The Supreme Court of Canada has held many times that the 10(b) right to counsel protects not only your right to have counsel, but your right to choose which counsel you will have. Preventing you from making this choice is a clear violation.
Section 8 was possibly the most egregiously breached protected right in this case. Section 8 protects your right against unreasonable search and seizure and prevents police from searching you or your property without a warrant. Ms. D insisted that for the police to have reached her door they would have had to climb over a locked gate. Doing so without a warrant is clear trespassing and thus a violation of Ms. D’s section 8 protections. Further, the police did not remain in the doorway when they reached the house, but entered Ms. D’s kitchen, which without a warrant or invitation is a second violation of section 8.
With such a significant list of Charter violations our strategy would be to request the Crown drop the charges in order to avoid wasting time and money on a trial that would likely see their majority of their evidence deemed inadmissible.
The Crown realized during negotiations that their case had major concerns. Their initial offer to drop the charges to Careless Driving, a non-criminal offence, included a hefty fine, a revoking of Ms. D’s licence, 50 hours of community service, and probation.
After our discussions about Charter violations they adjusted their offer by reducing the fine by 5/6ths, removed the community service entirely, and reduced the revoked licence to a mere restriction that required Ms. D. refrain from driving with a BAC above 0. Happy that she would not lose her licence and with the additional benefit of the lowered fine and removal of the community service, Ms. D. accepted the offer and plead guilty to Careless Driving.