Steven's Case — Over 80 — Withdrawn

Client:  Steven K., Accused
Complainant:  Toronto Police Service, 52 Division
Charge:  Over 80

Background:  Steven was found driving with too much alcohol in his blood. He wasn't drunk, nor was his ability to drive impaired by alcohol. He was only charged with "over 80," not with "impaired driving." There were no aggravating circumstances. Steven's readings were low. All the same, if convicted, he faced at least the minimum sentence: a $600 fine, a one-year driving prohibition, and a one-year ignition lock-out condition on his drivers' licence.

READ THE POLICE REPORT

Goals:  Steven wanted to beat the charge.

Strategy — Round One:  When I first spoke to Steven by telephone, I asked him to prepare a comprehensive statement. I needed to know the facts, and I wanted him to commit his recollection to paper while the events were still fresh in his mind. I asked him to include every detail — from the first sip of alcohol right up until the police released him. I also told him not to worry about "being helpful." I was after the facts, not argument. When we met, Steven handed me his statement. Within a few minutes, I had spotted the problem that eventually led to his salvation. The police officer had conducted a pat-down search before Steven provided his roadside breath sample. While it was possible that the police officer could have had grounds to conduct this pat-down search — for example, if officer safety was an issue — I suspected that such grounds did not exist. When I later received the disclosure, there were no police notes justifying the pat-down search. As the trial date approached, I filed Charter materials arguing that the breath-sample evidence should be thrown out because of a violation of Steven's rights. The basis for my argument was as follows: firstly, Steven should have been given his right to counsel under section 10(b) before the pat-down search; and, secondly, the pat-down search violated his rights under section 8 to be free from unreasonable search and seizure.

Results — Round One:  The Crown never responded to my argument. I had given them 18 days notice. Under the Court Rules, the Crown had an obligation to respond. As a result of this failure, the Judge adjourned the matter on the understanding that the Crown would respond as required. We scheduled a new trial date. This adjournment added over 5 months of delay.

READ THE COURT TRANSCRIPT OF THE ADJOURNMENT

Strategy — Round Two:  The total delay was now 13 months and 28 days, enough to justify arguing excessive delay. As the second trial date approached, I filed a second Charter application under section 11(b), seeking that the charge be thrown out because of the unreasonable delay in reaching trial.

Results — Round Two:  The morning of the second trial arrived. I walked into Court ready to do battle, but I was quickly disarmed. The Crown approached me, and reported that they would not be proceeding. The matter was quickly called. The charge was promptly withdrawn. As you can read in the transcript linked below, the Judge did not agree with the Crown's decision.

READ THE COURT TRANSCRIPT OF THE WITHDRAWAL