Gavin's Case — Over 80 — withdrawn By Crown

Client:  Gavin R., Accused
Complainant:  Ontario Provincial Police — Toronto Division
Charge:  Over 80, Criminal Code, s. 253(b)

Background:  At 45, Gavin was at the height of his career as an investment banker. He was at that stage in his life where one looks back (hopefully) with some satisfaction at one's achievements. At work, he commanded respect, and his efforts were handsomely rewarded. His family life was stable and satisfying. It came as quite a shock when he was stopped by the police at a ride spot check, and was charged with having too much alcohol in his blood. He was suddenly faced with the prospect of a criminal conviction. When I first met Gavin, he was in a semi state of shock, and was grappling with two questions: What just happened? Now what?

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Goals:  The potential impact upon Gavin's reputation, his family life, and his career quickly brought into focus our objective. We must get the charge withdrawn by the Crown or dismissed by the Judge.

Strategy:  In drinking-and-driving cases, the Crown is rarely interested in discussing any outcome that doesn't involve a criminal conviction, and I'm rarely interested in discussing that outcome. This case was no exception. Hence, we prepared for trial, leaving no stone unturned. At the beginning of the case, I explained to Gavin that his case was in the "could win, could lose" category. The time-honoured strategy was simple: dig in our heels, assert every right, and examine every issue. As time wore on, it became apparent that the Crown had dropped the ball in getting their case organized. The primary problem was that the Crown took too long (in my opinion) to provide all the documents and notes relating to the case ( "the disclosure"). If the case had gone to trial, the total delay would have been over 15 months.

Results:  About one month before the trial commenced, the Crown telephoned me to advise that the main officer on the case had left the police force, and they would prefer not to bring him to Court. They offered to withdraw the charge if Gavin plead guilty to "careless driving" under the Highway Traffic Act. Otherwise, they would go through the trouble of bringing the officer to Court, and would prosecute Gavin as planned. I discussed the offer with Gavin. Although Gavin would have welcomed this offer when first charged, Gavin was not in a conciliatory mood after waiting over 15 months to get to trial. Moreover, he was feeling confident given my revised opinion on the strength of the Crown's case. Gavin instructed me to ask the Judge to "throw out" the charge because of the long delay. Technically, this is an application for a "stay of proceedings" under sections 11(b) and 24 of the Canadian Charter of Rights and Freedoms. I prepared and filed the materials. The day before we were scheduled to argue the matter in Court, the Crown telephoned me to advise that they would not be arguing the matter. Rather than fight it out, the Crown withdrew the charge the next morning.

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