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City: Peterborough, Ontario
Year: 2019
Our Client: Mr. S.
Charge(s): Over 80; Open Alcohol; No Life Jacket
Lawyer:  Dan Lemaire 
Dan Lemaire - Criminal Lawyer
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Case Study: Over 80; Open Alcohol; No Life Jacket

Background Allegations

Police stopped Mr. S. on a jet-ski and noted a sealed can of beer in the cup-holder. The officer suspected that Mr. S. has alcohol in his body and demanded that Mr. S. provide a sample of breath into an Approved Screening Device. Mr. S. registered a “FAIL” and was arrested for operating a conveyance with 80 or greater mg of alcohol per 100 ml of blood contrary to section 320.14(1)(b) of the Criminal Code.

Mr. S. was read his rights to counsel and asked if he had a lawyer he wished to call. Mr. S. indicated that his parents had a real estate lawyer. The police told him that they would call Duty Counsel when they got back to the police detachment.

Crown Position

Plead guilty to “over 80” for a $1,000 fine and a one year prohibition on operating a vessel.


The client wished to avoid having a criminal record.


The Strategy

After negotiations with the Crown, Mr. Lemaire was able to convince the Crown that the police had violated Mr. S’s rights to counsel. Under the Charter of Rights and Freedoms, everyone has the right to retain and instruct counsel without delay and to be informed of that right. As part of that guarantee, detainees have the right to counsel (lawyer) of their choice.

In this case, Mr. Lemaire argued that the police should have allowed Mr. S. to call his parents’ real estate lawyer or call his parents. Although Mr. S. needed a criminal lawyer, the point is that Mr. S. had the right to choose any lawyer he wished – including a real estate lawyer.



The Crown agreed that the police breached Mr. S.’s section 10(b) rights. The Crown agreed to resolve the file with a plea to the charge of “careless boating” under the Small Vessels Regulations of the Canada Shipping Act. Instead of the driving prohibition, criminal record, and $1,000 fine that would have followed with a Criminal Code conviction, the client received a $500 fine and an 11 month prohibition on operating a vessel. Most importantly, the client avoided a criminal record and implications for his driver’s licence. If Mr. S. had been convicted of the “over 80,” he would have lost his ability to drive a motor vehicle because the Ministry of Transportation would have suspended his licence for one year – even though he was charged on a jet-ski. As well, the creative plea saved Mr. S. a massive insurance increase.

Please Note: Past results not predictive of future results.

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