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Charge(s): Operating a Motor Vehicle with Blood Alcohol Over 80
Location: Parry Sound, Ontario
Our Client(s): Mr. H
Complainant(s): Ontario Provincial Police
Year: 2020
Lawyer/Paralegal: Richard Aitken
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Please Note: Past results not predictive of future results.

The Background

Like many others, Mr. H had a drink at a bar one evening and felt he was sober enough to drive home. Unfortunately, Mr. H encountered a RIDE check on his way home. Having just come from the bar the police suspected he’d been drinking and requested a BreathalyzerTM test. One casual night out for Mr. H ended in the police station with a charge of operating a motor vehicle with a blood alcohol level over 80. He was connected with duty counsel and released on a promise to appear in court.

The Goals

Mr. H wanted to avoid the criminal charges. We recognized the unfortunate circumstances Mr. H had found himself in and established a clear goal: have Mr. H’s charges reduced to a non-criminal charge.

The Strategy

Being the supreme law of Canada, the Charter is often our most reliable asset in criminal defence. If the police violate any Charter provision in stopping Mr. H, taking his breath, arresting him, or processing him, evidence can be deemed inadmissible and the Crown would be more likely to make a deal for a lesser non-criminal charge. Richard Aitken, the firm’s founder, put over three decades of experience to work examining the police officers notes and records for Charter violations.

We addressed the actual seizing of Mr. H’s breath, which must be justified by the Crown at trial or else it violates section 8 of the Charter: the right against unreasonable search and seizure. If the Crown cannot prove the search was reasonably justified on the notes and testimony of the officers the breath sample would be inadmissible and the Crown would lose key evidence.

We also addressed the multiple periods throughout the night that Mr. H was made to wait; to take the test, to contact legal counsel, etc. Under section 9 Canadians have the right against arbitrary detainment. If the police intend to hold you, even briefly, they must have justification. When you’re detained you also have a right to contact legal counsel and a right to be informed of this right, under section 10(b). The wording in 10(b) is rather specific, you have a right to retain and instruct counsel “without delay”. If the police do not allow you to contact counsel immediately then evidence obtained afterwards could be deemed inadmissible. Throughout the night Mr. H was delayed in various ways and put in contact with duty counsel instead of being asked which lawyer he wanted to speak to. These were potential Charter infringements that could weaken the Crown’s case substantially.

The Results

The Crown agreed to a plea deal. Mr. H pled guilty to careless driving, a non-criminal offence, and walked away without a criminal record.


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