Archie's 2nd Case — Drive Over 80 — Dismissed

Client:  Archie, Accused
Complainant:  Toronto Police Service, 23 Division
Charge:  Over 80, Criminal Code, s. 253(b)

Background:  Archie called me sounding very grave. I instantly recognized his voice. Before he could tell me why he was calling, I asked: "Archie, before you tell me anything, can you answer one question?" He was silent. "Did you apply for that pardon?," I continued. A pregnant pause followed. "I never got around to it," he finally answered. Archie then proceeded to tell me about his arrest on the same charge that we had tackled three years before. I first admonished him about not applying for the pardon (thereby exposing himself to harsher punishment as a would-be second offender). Then we focused on the task at hand. Archie's worries were the same as last time. If he were found guilty, he would receive a minimum of 14 days in jail and a 3-year licence suspension. He was understandably worried about going to jail, losing his licence, and the sky-high insurance rates he could be facing. But he also had a new worry. Since his last time in Court, the Ontario government had added a new consequence for drinking-and-driving convictions. If Archie was convicted and he wanted to drive after the three-year suspension, his car would have to be equipped with a ignition lock-out device to prevent him from drinking and driving. Since this would be Archie's second conviction, he would have to suffer this indignity for three years in addition to his three-year licence suspension.

READ THE POLICE REPORT

Goals:  Again, Archie wanted the charge withdrawn or dismissed.

Strategy:  Very predictably, the Crown had no sympathy for Archie. They considered him lucky to have escaped the noose the last time. Upon reviewing the case against Archie, I discovered what I believed to be a problem with the Crown's case. The police officer had unnecessarily delayed demanding that Archie provide a breath sample into the roadside screening device. The Crown — though acknowledging that this was an issue for trial — refused to concede that the problem was fatal. We would have to go to trial, where the Judge would have to decide the issue. Before the big day, I filed written submissions and other materials outlining my argument, both for the benefit of the Crown and the Judge. I argued that all breath readings should be excluded from evidence because the police had violated Archie's rights. Lawyers call that a Charter application. The Crown responded to my written materials by arguing — very thoroughly, I might add — that my application should be dismissed. They wanted Archie convicted.

Results:  Archie was very nervous on the morning of the trial. But this wasn't a major concern. I didn't need him to testify. As Archie put it, "I just have to sit there and look pretty." I had done my research, had my oral submissions ready, and was primed to do battle. But my argument was cut short. There was a hiccup in the Crown's case. When the officer testified, he didn't say anything about demanding that Archie blow into the breathalyzer machine at the police station. I asked no questions of the police officer. I called no evidence. Next, the Crown and I had to make oral submissions to the Judge. I argued that the Charter application should take a back seat, and that the Judge should dismiss the charge because of this shortcoming. The hiccup proved fatal. The patient succumbed to its injury. Curiously, the mistake was similar to the one in Archie's first case. Afterwards, I told Archie not to count on the Crown and the police making the mistake a third time. "Best way to beat the next charge," I admonished, "is to not drink and drive. And, please, please, please ... apply for that pardon."

READ THE JUDGE'S DISMISSAL
READ ARCHIE'S 1ST CASE