What's My Track Record as a DUI Attorney, Impaired Driving Lawyer?
From time to time new clients ask me "What's your track record fighting drinking and driving charges ?" or "What's your success rate as a lawyer ?". As a member of the Law Society of Upper Canada I am bound by the rule that any advertising should not compare services or charges with other lawyers or law firms. I can tell you that I have been a lawyer since 1979 working in Mississauga, Brampton, and the Greater Toronto Area. Much of that time I have spent doing criminal law, as defence counsel and Crown concurrently. In 1981 I was appointed by Order-in-Council as a part-time Assistant Crown Attorney for Peel. My criminal law practice has included many impaired/drunk driving, assault, theft, and Youth Court matters. I do the very best job I can for my clients. I am diligent in my attendances at Court and appointments with clients. I try to answer my own phone. I do a great deal of research on every case. I often use Charter of Rights arguments to challenge police methods of gathering evidence, Court delays, and Crown disclosure. Persons who are morally guilty of an offence often come to me with cases that seem to them to be impossible to defend. I do my best to force the Crown to prove every element of its case. What is most important to you is probably your driver's licence, your job, your family, your good reputation, your ability to travel, and your insurance rates. I will do my best to serve you.
Every case is different. Some outcomes will be successful. Some outcomes will not be successful. If you read about a case or hear about an outcome, please don't assume that similar results will be achieved for you. You and I need to meet in person to discuss your unique situation and I'll do my best to tell you if you have a chance at a defence. I will not be able to guarantee that you will be acquitted but I will apply my knowledge of the law to what you tell me and what we learn in disclosure from the police.
Every client's case is unique. An initial $200 (for 1 hour) consultation is the best way to find out if I can help you. If you don't have a defence I will tell you so. If it is in your best interests to plead guilty I will tell you how we can get the best result. If you want to have a trial there are many avenues we can explore.
Warning: Please note that impaired driving is a very serious criminal offence that is treated very seriously by the Crown and by the Courts. For information as to just how seriously the Courts consider impaired driving please see the comments and table of sentencing cases at the conclusion of R. v. Goudreault in the Ontario Court of Appeal.
Comments, Ratings, and Reviews of my Services Recently (source: submitted by individual former clients at lawyerratingz.com)
April 18, 2017
"i was charged with a DUI crossing the border into Canada, on the Canadian side. i blew a fail- over 80. at the station, both my readings were 100ml - close to the limit. another factor worth mentioning is this was my first ever appearance/ charge. despite this, the crown in the niagara region is especially tough on any sort of DUI charge, hence my chances of a criminal conviction being quite high. i did my research in choosing an attorney extensively- treated it as a research assignment for over a week- my life as it were depended on attaining good representation. luckily, after meeting numerous lawyers and firms, and paying several for initial consultations, i discovered mr. Biss. first of all, mr. Biss, is a one man show. you deal with him directly- no partners, aides, paralegals, etc to filter through. i always had a direct channel of communication with him- via his mobile (which he answered each and every time i called, mind you), skype, and email."
December 18, 2016
"Mr.Biss is a fine defense attorney, he has a personal touch in communicating with potential clients. He is very experienced in the Canadian DUI laws. He also has a very strong penchant on doing the correct thing. Mr.Biss was instrumental in defending my 21 year old daughter in regards to a dui over 80. It was complex because we are from the Buffalo NY. This man is at the top of his profession. Thank you Mr.Biss."
October 18, 2016
"Stephen and I fought an uphill battle for over a year which looked very grim at times. He was very honest, very knowledgeable, and he never gave up. He seems to take everything as it comes and rose to each challenge that came our way. He always came up with creative ways to achieve the result we wanted. We continued to persevere and we had the criminal charge changed to a careless driving charge. I did have to spend a lot of money to resolve this case but at the end of the day it was worth every penny. Stephen's rates are fair but it added up due to several court appearances. I would also like to note that he was very understanding and he had an interest in hearing the struggles that I was experiencing and helped me a great deal extra in dealing with that. As for his behaviour in the courtroom; Stephen seemed to have a sense of calmness at all times. He was extremely polite, and thorough as he flowed through his tasks. Stephen is a force to be reckoned with whom I'd highly recommend."
October 5, 2016
"I was in a very bad and regretful situation with a baby on the way and a very disappointed wife. No idea of what to do until I called Stephen. Stephen was somebody that would tell you the truth (good and bad) and had answers for all of our questions and situations. Stephen was very easy to communicate with and would get back to you right away if you left a message. His knowledge of driving under the influence was above and beyond. I reached a deal with the court that exceeded my expectations due to Stephen. Thank you Stephen"
March 5, 2016
"I would highly reccommend Mr. Biss. I was hoping for a Peace Bond and he got it for me. He is very professional and knowledgeable."
Comments, Ratings, and Reviews of my Services in the Past
"I want to thank you again for effort on my case. Your hard work and intelligent approach are much appreciated. The stress of the whole process really took a toll on me, but what an incredibly more bright future I see in front of me. All the best."
June 18, 2015
"I was innocent and wanted a lawyer that would win my case so I called Mr. Biss, and he successfully had my charges dropped by the crown. I would recommend him to friends and family."
June 7, 2015
"As a Criminal Defense Lawyer, Stephen Biss is straight, persistent, and extremely competent and result oriented. I am a professional myself and can wage for all these qualities. He represented me before the courts in a very a serious matter involving DUI and we came out winners. I would recommend his services to anybody seeking a defense lawyer. He is just about the best one can find"
May 27, 2015
"Stephen Biss did an excellent job representing our son. He was very professional and always kept us informed explaining everything in layman terms and we were very happy with the outcome. We would definately recommend him without a doubt!"
May 26, 2015
"I have nothing than praise for Mr. Bliss professionalism. Very efficient very well prepared and very appreciated by his counterparts in the court room be the crown and/or judges. he obtained for me a reduced sentence which was the best optrion and I am very greteful."
May 10, 2015
"I was charged with a DUI on New Years Day and had blew 200 at the station. Stephen was recommended by one of my friend's parents who practice Criminal Law in Hamilton and I am so grateful to have crossed paths with him. Mr. Biss is a seasoned criminal lawyer with a very calm and soft-spoken demeanour. The prosecutors did not want to settle and wanted to fight this until trial. His professionalism in court separates him from other lawyers who are more theatrical and brash. His price is fair and his persistence is key - a lawyer that will you can trust during a very difficult time in your life. Thanks for everything Stephen!"
Non-identifying Anecdotal Examples of Defence Approaches I Have Used in the Past - Please Do Not Assume They Will Be Successful in the Future
As noted above, every case is different. Some outcomes will be successful. Some outcomes will not be successful. If you read about a case or hear about an outcome, please don't assume that similar results will be achieved for you. Having said that, I often get requests from potential clients as to whether or not I have had experience with a case like theirs before. If they retain me, they need to know that they can't assume that their case will achieve the same result as what has happened in the past. The law is constantly changing, new approaches need to be attempted, and old approaches are sometimes closed by Courts or Parliament. Here are some examples of approaches I have used in the past.
In R. v. A. the accused was stopped by police on a hwy entrance ramp. His vehicle had been observed backing up on the ramp to avoid heavy traffic. The officer noted red eyes and slightly slurred speech. The officer arrested Mr. A. for impaired driving and made a breath demand. He was brought to an Intoxilyzer tech and provided samples. He was properly provided with an opportunity to speak to counsel in advance of the tests. At trial defence brought a Charter application and argued that the police lacked reasonable and probable grounds for the arrest and demand. The Court agreed and dismissed both charges of impaired operation and over 80.
In R. v. B. the accused was an Asian businessman who had been in Canada for 2 years. He had learned English in school and used English in his business. He was stopped at a RIDE program and registered a "Fail". At trial he gave evidence that he understood most of what was going on at the time of breath demand and arrest and at the police station. However he had difficulty with words such as "counsel", "retain", and "instruct" citing meanings which were accurate in English but not in the correct legal context. He had spoken to duty counsel in English prior to breath tests and made no complaint. Defence counsel brought a Charter application and argued that where an individual's first language is not English, the police must offer an interpreter. They did not do so. The Court agreed and the over 80 charge was dismissed.
In R. v. C. the accused was read a breath demand and brought to a police detachment for Intoxilyzer tests. He declined counsel or duty counsel. The first breath test was conducted as soon as practicable. While waiting for his second test, another individual was brought into the breath room for breath tests. The second individual was severely impaired and urgently needed to use the bathroom. The police attended with him to the cells. The second individual came back into the breath room and left again with police assistance to contact counsel. In the meantime the breath room, as recorded on video, was left vacant at about the time when the second breath test should have been completed on Mr. C. A significant period later Mr. C. was brought into the room for his second test. The breath tech manually aborted tests of 13 seconds and 19 seconds duration noting them to be inadequate. Thereafter Mr. C. provided a 20 second sample which was considered suitable. Upon argument, the Court concluded that the second sample was not taken "as soon as practicable" and therefore the Crown could not rely upon the presumption that breath readings at the time of breath tests were identical to those at the time of driving. The over 80 charge was dismissed.
In R. v. D. the accused was operating a motor vehicle on a highway. He was arrested and brought to a police detachment for breath tests. Intoxilyzer results were 209 mg/100mL and 191 mg/100mL. Defence counsel requested disclosure of the Internal Intoxilyzer electronic log, alleging that there was "evidence to the contrary" and that the test results were inaccurate. There was also a discrepancy of more than one hour between the time stamps on the video and the officer's notes and Intoxilyzer printout. The internal log would contain details of diagnostic checks, calibration checks, subject tests, and any operational errors. It would also contain time and date stamps for every event which would confirm or refute the officer's evidence as to times. The Crown neglected or refused the request and took the position that the Ontario Provincial Police did not have the technical capability to extract such data. Defence brought Charter applications seeking a stay of proceedings alleging unreasonable delay and breach of the Crown's disclosure obligations. After extensive expert evidence on Intoxilyzers and several days of argument the Court ruled against both Charter applications. A trial was set for a date about 2 years after the original occurrence. On that trial date the matter was not reached due to other matters on the Court list. Rather than asking for an adjournment and another trial date the Crown withdrew the charges of impaired and over 80 citing unreasonable delay.
In R. v. E. the accused had exited from a bar at closing time and was sitting in the driver's seat of his van in a parking lot. He was doing paperwork for his business while waiting for a female friend who worked at the bar. A police officer attended and observed some signs of impairment but not enough to form reasonable and probable grounds for arrest and breath demand. To confirm her suspicions she asked the accused to perform physical co-ordination tests. Thereafter she arrested him and demanded that he return to the detachment for breath tests. He complied. The Intoxilyzer at the first detachment crashed indicating "unable to obtain a stable reference". Police then brought Mr. E. to another detachment and performed Intoxilyzer tests. Mr. E. was charged with impaired and over 80 care or control of a motor vehicle. On the first day of trial the breath tech revealed that the individual tested before Mr. E. on the faulty Intoxilyzer had blown .000. Defence wanted to pursue an "as soon as practicable argument" and sought production of the internal Intoxilyzer log to establish the times and details of the .000 test on the theory that the breath tech should have suspected a faulty instrument and run calibration and diagnostics checks a long time prior to the first instrument error message. The Crown neglected or refused to comply with the disclosure request. Two Charter applications were brought by defence alleging breach of right to counsel prior to the physical tests and breach of the Crown's disclosure obligations. The Court ruled against the defence on the right to counsel issue. The Crown filed a copy of an expert affidavit that had been used in R. v. D. above. Defence sought to cross-examine that expert and the Court agreed. Following an adjournment the Crown did not produce the expert for cross-examination and without explanation stayed the impaired and over 80 charges.
In R. v. F. the accused was driving on the highway and struck a guardrail in construction. The occupants of another vehicle followed him to a parking lot where he attempted to change a tire. Prior to the arrival of police the accused left on foot to seek help. He was found by police a distance away from the vehicle, brought/invited back to his car, indicia of impairment were observed by police, and he was arrested and a breath demand was made. Mr. F. was returned to the station and provided breath samples. At trial, defence brought a Charter application alleging arrest and detention without adequate grounds and without right to counsel during the return to his car. At trial defence cross-examined the civilian witness as to his recollection of time. The Court had a reasonable doubt as to whether or not the Crown had proven that the time of the collision on the highway was within 2 hours of the first breath test. The Crown could therefore not rely on the presumption that the client's blood alcohol concentration at the time of breath tests was the same as at the time of the collision with the guardrail. Mr. F. was acquitted on both the impaired and over 80.
In R. v. G. the accused and his friend drank 2 pitchers of beer at a bar. They shared the pitchers equally. Mr. G. was later stopped at a RIDE program. Mr. G. and his friend both attended Court and gave evidence as to exactly what they consumed and when. The pitcher had been purchased from the bar and measured precisely. The defence obtained expert evidence from a toxicologist that the accused's BAC was 10 to 60 mg/100 mL at the time of the roadside stop rather than the Intoxilyzer 5000C results of 122 and 120. The Court accepted the evidence of Mr. G and his drinking buddy and found that there was "evidence to the contrary" requiring an acquittal of the over 80 charge.
In R. v. H. the client blew 104 mg/100 mL and 94 mg/ 100 mL. Mr. H. was also on medication. On the trial date, after negotiations, the Crown withdrew the impaired and over 80. The client pleaded guilty to careless driving and kept his licence.
In R. v. I the client was charged with impaired/over 80 after his vehicle was found at rest still running in the middle of a highway by an approaching truck driver. The client, who was slumped over the wheel, was awakened and walked to a nearby gas station. Six months later and one month before trial the client was charged with a second impaired/over 80 with high readings. Crown's best position on a plea was 14 days in jail and the Ministry would suspend 3 years. At trial on the first the Crown conceded defeat due to an error in issuing the subpoena to the truck driver and that charge was withdrawn. The client pleaded guilty to the second and received an $800 fine and one year suspension/prohibition after submissions respecting alcohol treatment. The family vacation to Europe scheduled the following day was saved. The client did not go to jail.
In R. v. J the client was charged with impaired/over 80 after his vehicle struck a planter in a parking lot. While preparing for trial, defence noticed that the arresting officer had forgotten to make a formal breath demand during the arrest, rights to counsel, and caution. There was no demand until back at the station. The Crown conceded defeat on the over 80 because of R. v. Deruelle. On the impaired the Crown was unable to rely on roadside physicals and statements because of R. v. Milne and R. v. Coutts to prove impairment. The Court had a reasonable doubt on the impaired and the client was acquitted.
In R. v. K. the client was charged with impaired/over80/dangerous driving. Defence cross-examined the investigating officer as to the exact route allegedly followed up a street, through a parking lot, up another street, and through a townhouse complex. Defence hired a professional photographer to make an OJ style video of the route. The video proved that much of the officer's evidence was in error. On the over 80 defence photographed the Intoxilyzer in question and discovered something unusual about its validity as an "approved instrument". The Court had a reasonable doubt and the client was acquitted on all 3 counts.
In R. v. L. the client was involved in a minor accident and had very high blood alcohol readings. She wanted to plead guilty to impaired but was concerned about the possibility of jail or a very high fine. She obtained 4 well-written character reference letters from family friends expressing her remorse and commitment to counseling. She entered a guilty plea at an early opportunity and defence made submissions as to sentence. She received a $700 fine, 1 year driving prohibition, and probation for one year requiring the continuation of counseling.
In R. v. M. the client was stopped at a RIDE program in a rural area. The police forgot to read his Right to Counsel at the scene but stopped and did so on the way to the police station. At trial the Court held that the delay was not long enough to cause the breath tests to be excluded from evidence. The client received a $750 fine and one year driving prohibition. His BAC readings were 140 and 130.
In R. v. N. the client rear-ended a van on the highway. His blood alcohol readings were over 200. The Crown wanted a guilty plea to dangerous driving and impaired driving with 21 days jail plus a fine on a first offence. Defence raised White, Coutts and Milne issues to exclude client's statements immediately after the accident. Defence also challenged the officer's continued interrogation of Mr. N. after he declined to answer questions on the advice of duty counsel. After a four day trial Mr. N. was found guilty of impaired and received a $1000 fine and 1 year driving prohibition. The Crown did not pursue the dangerous driving after the fourth day.
In R. v. O. the client was charged with a second failure to blow into a roadside screening device. The test was conducted on a cold winter night in the police car with the client in the back seat leaning forward to blow into the Alcotest 7410 held by the officer in the front seat. The officer testified that he only heard the tone indicating breath for about 2-3 seconds instead of the minimum 5 seconds required for an adequate sample. The client faced the possibility of a 14 day minimum jail sentence and 3 year minimum licence suspension. Defence called extensive evidence respecting the client's history of untreated and severe asthma. A respirologist was required. Defence conducted research into mouthpiece pressures and asthma patients at the Centre of Forensic Science library. Defence also introduced a video of the client's workplace pollution conditions, made by the client using a video camera in his lunchbox. After a lengthy trial the client was acquitted.
In R. v. P. the client was observed by the bouncer at a bar and a police officer (who happened to be on the scene) walking in an intoxicated state towards his vehicle. The police stopped him, arrested him, and demanded breath samples. At the station the client requested to speak to a specific lawyer. The officer got the name wrong and couldn't find the lawyer in the phone book. The client spoke to duty counsel who told him to insist on video that he had the right to a specific lawyer. Unfortunately the breath room had no working video or audio equipment. After breath tests were completed the accused was lodged in the cells. The officer certified in his notes that he had served documents on the accused in his cell at 6 a.m. With persistence defence obtained the stop action video station log of the client in his cell between 5 a.m. and 7 a.m.. Notwithstanding his notes, the officer never appeared on the video in front of the cell to interact with the client at any time about 6 a.m.. After extensive Charter of Rights applications and the temporary loss of part of the police file, the Crown conceded that they would not prove the Intoxilyzer results. At trial the Court convicted the client of impaired operation on the basis of the observations made by the bouncer and police officer at the bar. The Court accepted the evidence of the officer, notwithstanding defence cross-examination, stating that he could have spoken to the accused and served him with the four documents and yet not be captured on video during one of the 3 to 5 second gaps in the stop action station log. The client received a minimal fine and one year suspension.
In R. v. Q. a young male drove the family van into a hydro pole. He was found by police sitting on the side of the road beside his closed driver's door. His injuries were minor because of the air bag. He failed a roadside screening test and blew significant readings at the police station. On video he freely admitted intoxication. He was charged with care or control over 80. Defence issued subpoenas to the body shop repair persons who had examined the vehicle after the collision. Extensive photos were taken and an accident reconstruction engineer was retained. At trial the Crown conceded that they could not prove care or control because, applying R. v. Wren, the vehicle was inoperable at the moment the police arrived on the scene. Although the client had freely admitted to police that he was driving and apologized profusely for his irresponsibility in driving intoxicated, he had never been asked by police the precise time of the collision with the hydro pole. Notwithstanding R. v. Plank and R. v. Drolet, which would have permitted the Crown to argue driving as an included offence to care or control, the Crown still couldn't prove blood alcohol concentration at time of driving because they did not know the exact time of driving. He was acquitted.
In R. v. R. the accused was a university student in his early twenties. He drank beer with his girlfriend at home and two different bars over a 5 and one half hour period. He was stopped at a RIDE programme. The Intoxilyzer indicated readings of 114 and 111. Based on the recollection of the accused and two witnesses, the toxicologist calculated his BAC at 40 to 98 mg/100ml assuming average elimination rates of 10 to 20 mg/100ml/hour. These numbers contradicted the Intoxilyzer but did not prove a BAC below 80. The expert suggested that he run an experimental simulation of the drinking scenario. As a result, defence discovered that the client eliminated alcohol at the rate of 18.8 mg/100ml/hour, much faster than average. As a result the toxicologist was able to narrow the range of BAC calculation to 44 to 64 mg/100ml at the relevant time. The Court accepted defence "evidence to the contrary" and acquitted.
In R. v. S. the client was charged with a fourth over 80. He also had a previous drive disqualified. The Crown proceeded by indictment seeking at least 6 months in jail. There were problems with Crown disclosure. Prior to the preliminary hearing, defence served subpoenas and sought a testing order requiring that the Intoxilyzer be brought to Court and that a Toronto Police expert attend to extract data from the instrument in the courtroom. Counsel for the police and the government sought an order in Superior Court to strike out the subpoenas. They were not successful inter alia because their application was not brought within the required time limit. The subpoenas remained in force on the eve of the preliminary hearing. The Crown was also concerned that they might not have a reasonable prospect of conviction because the client's request to call a specific third lawyer prior to the breath test had been denied by the officer. The Crown offered and defence accepted an arrangement whereby the client pleaded guilty to two Highway traffic Act charges resulting in an $800 fine and one month licence suspension. The over 80 was withdrawn.
In R. v. T. the client was alleged to have driven his car into the back of a tractor trailer and was found by the truck driver in the driver's seat behind the air bag shortly after the collision . He was charged with "driving", not "care or control". Defence argued that the Crown couldn't prove driving. Breath readings were both over 230. Defence admitted impairment and managed to have the high breath readings excluded due to a mix up between the investigating officer and the breath tech in the breath room as to who did the typing. After legal argument as to whether or not care or control is an included offence to driving and an application for particulars, the Court eventually found that it could infer driving from the circumstantial evidence. The client received the minimum fine and licence prohibition.
In R. v. U. the client was seen driving in a construction area at high speed. The officer observed erratic driving. The accused was stopped, arrested immediately, and left alone in the police car for 7 minutes without being advised of his right to counsel. On a s. 10b Charter application the Court found a technical breach but refused to exclude evidence of later breath tests since to exclude would bring the administration of justice into disrepute under Charter s. 24(2). There were also errors by the breath tech on the Intoxilyzer Test Record respecting the date when the alcohol standard was last changed. The Court found, however, that the standard solution was suitable and accepted the high breath readings into evidence. The client was found guilty on the over 80 but acquitted on the impaired. Notwithstanding the high readings, previous record, and lengthy trial the Court accepted defence submissions as to sentence and imposed the minimum 14 day jail sentence, to be served intermittently, and ordered the minimum licence prohibition.
In R. v. V. the client drank draft beer at a Toronto tavern. At a RIDE program he was signaled to stop but he drove about 40 feet beyond the officer. Police observed that his speech was slightly slurred, his eyes were bloodshot, and the odour of an alcoholic beverage emanated from his mouth. Police formed the opinion, based on that information, that his ability to operate a motor vehicle was impaired by alcohol. At the police station his breath readings were in the 140s/150s. At trial defence brought an application under the Charter of Rights alleging that the arrest and demand were without reasonable and probable grounds. The Court agreed and excluded all evidence of the breath tests and breath tech. The client was acquitted on both charges of impaired and over 80.
In R. v. W. the client was charged with impaired and over 80. A civilian witness had observed him driving erratically on the highway and called police. OPP followed him through several streets noticing excessively slow speed. When stopped the constable noticed the odour of an alcoholic beverage, and red and glassy eyes. At first the constable intended to use a roadside screening device to see if he had grounds to arrest. He changed his mind after another officer arrived. The client was returned to a police station. All rights, warnings, and demands were given in English. Mr. W. declined the opportunity to contact counsel. Part way through the demand by the breath tech, the officer switched from English to Portugese (their common language) and thereafter all conversation was in Portugese including the breath tests. No one ever thought to read Mr. W. his right to counsel in Portugese. Breath readings were both about 130. At trial the civilian did not attend. Defence argued that the first officer should have continued with the roadside screening device and not concluded he had reasonable and probable grounds. A Charter application was launched based on denial of right to counsel due to lack of an interpreter or rights in Portugese. There was one full day of hard-fought trial. The matter was adjourned for further evidence one month later. During the postponement Crown and defence agreed to settle the matter by a guilty plea to careless driving under the Highway Traffic Act. The client received a $500 fine and no licence suspension (beyond the original 90 days). The criminal charges were withdrawn.
In R. v. X. the client was found in deep sleep behind the wheel of a parked vehicle. Breath readings were quite high. Upon being advised of his right to counsel the accused declined to speak with a lawyer but asked repeatedly to consult with a friend who was a police officer from another detachment. The police refused access to the trusted friend. Defence argued that the right to counsel under Charter of Rights s. 10b was violated arguing that the Oxford dictionary, the Immigration Act of Canada, the Coroners act of Ontario, and other law did not limit "counsel" to "barrister" or "solicitor" but rather included a body of advisors - a defence team. After extensive research, an unreported Peterborough Superior Court case was found which defined "counsel" as "trusted advisor with some expertise". There are a number of Canadian appellate cases where Courts have not commented negatively upon the accused getting preliminary advice from persons who are not lawyers, eg. R. v. Playford. The Court did not agree and found the client guilty citing the French version of s. 10b of the Charter which refers to "avocat". The client received a $750 fine, one year driving prohibition, and the victim fine surcharge was waived.
In R. v. Y. the client was accused of being in care or control of an overturned SUV on Highway 401 while impaired by alcohol. He was found sleeping behind a concrete barrier some distance from the vehicle a long time after the police arrived on scene. There was no eye-witness to the accident. He refused a breath test because he said that he had not been driving. Although that is not a defence to a charge of refusal, we served the Crown with a Charter of Rights application alleging that our client's right to a fair trial had been breached because the police made a demand for a breath test without reasonable and probable grounds as to time and care or control. We also hired a professional photographer and an accident reconstruction engineer to establish that the vehicle was inoperable after the crash. The Crown conceded our arguments and withdrew both charges.
In R. v. Z. an out-of-town client retained a lawyer in his home city. He was charged with having a blood alcohol concentration based on Intoxilyzer readings in the 100s mg/100ml when stopped at a RIDE. The other lawyer obtained a toxicologist's report showing an actual BAC of under 80. Out-of-town counsel successfully negotiated a guilty plea to careless driving under the Highway Traffic Act. We attended and completed the matter at Brampton. The client received a $500 fine with no further licence suspension beyond the initial 90 days. The over 80 was withdrawn.
In R. v. Z.A. the client was charged with dangerous driving, a third impaired driving, a second drive while prohibited, fail to remain at the scene of an accident, and possession of marijuana after being pursued at high speed by angry tow truck drivers through city streets. He was eventually boxed into a dead end. After negotiations, the Crown agreed to withdraw the dangerous driving charge and possession of marijuana charge. On a guilty plea to the other charges, the client received a sentence of 5 months in jail and a three year driving prohibition. The Province of Ontario will suspend his licence for life with faint hope for re-instatement after 10 years. We asked for and received enhanced credit of 2.5:1 for time served at Maplehurst Detention Centre due to the terrible conditions in that institution during the SARS scare.
In R. v. Z.B. the client exited the parking lot of a drinking establishment. Police stopped the vehicle after a short distance. The officer's reasons for the stop were inconsistent as to whether this was a sobriety check or because of suspicion of stolen vehicles in the area. This was not a random RIDE stop. The Court found that the evidence fell short of the Ladouceur test and there was therefore a s. 9 Charter breach. The passenger in the vehicle ran and the second officer gave chase, returning a few minutes later after arresting the passenger for public intoxication. In the interim the client admitted to the officer in charge that he was using the wrong licence plate and as a result was arrested for a provincial offence. There was no right to counsel on that arrest although there was plenty of time to provide it after the second officer returned. Fifteen to eighteen minutes after the arrest and without right to counsel, the officer in charge began to ask questions of the accused which led to a reasonable suspicion of alcohol in the client's body justifying a roadside screening test. The Court found a s. 10(b) breach per R. v. Polashek. Intoxilyzer results, statements, and physical tests were excluded and the client was acquitted. The POA charge was withdrawn.
In R. v. Z.C. the client was stopped for not wearing his seatbelt. The officer spoke to the accused, took his identification, insurance, and returned with a Provincial Offences Notice for traffic court. The officer did not suspect alcohol. Police then embarked on general intelligence gathering, including questions about the contents of a suitcase, questions about where the client had been, and then asked if it was alright to search the vehicle. The client agreed. Police found nothing during the search, but standing near the client smelled alcohol, made inquiries about alcohol consumption, noticed watery eyes and demanded a roadside screening test. The client registered "F" and was returned to the station. BAC readings on the Intoxilyzer were over 280 mg/100ml. Defence argued R. v. Mellenthin and the Court found s. 8, 9, and 10b breaches. The client was acquitted.
In R. v. Z.D. the client was driving a motorcycle in city #1 with a passenger with an M1 novice licence. With more than twice the legal limit of alcohol in his system, he collided with the side of vehicle on a major highway. When taken to the hospital he admitted guilt on the impaired but would not take a breath test. He was charged with impaired, refusal, and operate motorcycle with passenger with M1 licence. A few weeks later he was charged with another incident in city #2: over 80, speeding, and driving an auto with a G1 novice licence with alcohol in his system. Police found marijuana and cash and charged him with possession for the purpose of trafficking. After release on bail he was found at a bar in city #3 thus violating his bail. He pleaded guilty quickly to the over 80 and speeding in city #2 and received the minimum $600 and $100 fine respectively. The Crown withdrew the possession for the purpose charge upon a donation to charity. He pleaded guilty to the breach of recognizance in city #3 and served no more time in jail than what was required to release him on bail. The Crown in city #1 would not negotiate even though we offered a guilty plea to the impaired for a fine. We thereupon set a trial date well beyond the limits of unreasonable delay. The Crown was forced to move the case up early for trial. At the eventual trial in city #1 we got what we had offered the Crown in the first place: a guilty plea to the impaired, acquittal on the refusal, withdrawal on the M1, and a reasonable fine. The Court prohibited him from driving for 18 months and the Province suspended his licence for 3 years. Sometimes sharp pencil negotiations work and sometimes they don't. If pre-trial conferences don't result in a resolution, the lawyer needs to fight for what the client offered to the Crown, get it the hard way at trial, and on sentencing argue that the Crown was being unreasonable. We got the cash back from the police in city #2, including the $200 that they lost.
In R. v. Z.E. the client was charged with impaired and refusal. His vehicle was stuck in a snowbank. Between the first and second breath tests the young officer-in-charge noted on video that he had erred previously on video as to arrest, demand, and right to counsel times. The client thereupon demanded to speak to duty counsel a second time. The breath tech refused the second phone call saying that he was "too busy". The client thereupon refused to blow the second time. The first trial date was set 13 months after the incident. The trial judge found that the 10 1/2 months institutional delay was not enough for a stay of proceedings. We started the trial but there was only time for 1/2 hour of evidence because the docket was overbooked. One month later we returned but that docket was overbooked. Two weeks later we re-attended and this time the Court stayed both charges for unreasonable delay.
In R. v. Z.F. the client's vehicle collided with a light standard and suffered heavy damage. There was evidence that a collision between the same vehicle and another light standard had occurred several km distant and it appeared that the driver had operated the vehicle with the air bags deployed between the two locations. The client arrived at the scene in a taxi a few minutes after the police. Her initial statements to the police at the scene admitting driving were inadmissible since she had not yet been provided a right to counsel . Back at the police station she freely admitted driving. The police cautioned her not to say anything until she spoke to duty counsel. Police forgot to caution her in the breath room that her statements could be used against her in Court. She spoke to duty counsel. Afterwards, she sought assurances that no one would ever see the video of her condition, she was embarrassed. She asked the breath tech to swear that no one would see the video and he did so. She freely admitted driving and expressed remorse on the video. Defence counsel argued that she was too intoxicated to possess an "operating mind" (see Clarkson, Oickle) and she did not have an "awareness of consequences" respecting the making of a statement particularly in view of the inaccurate information given by the police respecting the use which would be made of the video. The Court found that she did have an "operating mind" and that she was "aware of the consequences". Her admissions of guilt after speaking to duty counsel were admitted into evidence. She was convicted on the over 80 and received a $700 fine. Lack of understanding due to intoxication is a difficult defence or Charter argument to raise on a drunk driving charge.
In R. v. Z.G. the accused blew in the 220s. Driving at 6:30 a.m., he narrowly missed a police officer directing traffic and appeared incoherent when stopped. The Court considered that he was a "potential killer" noting R. v. McVeigh. Defence brought an application for an order requiring that the Crown produce proof that the Intoxilyzer simulator and thermometer had been calibrated within the previous 12 months. That application was dismissed after lengthy argument. There were delays in courtroom and officer availability. The charges of impaired and over 80 driving were stayed for unreasonable delay of 10 months less 4 days.
In R. v. Z.H. the accused was charged with impaired and over 80 operation and obstruct police. The client allegedly drove his vehicle into a snow bank, abandoned the vehicle, walked away, met up with his girlfriend, and convinced her to say that she was driving. Over 2 hours after the alleged driving he blew in the 130s and 110s. The Crown was asking for jail in the event of a trial. Because of the two hour time limit the Crown was forced to call an expert toxicologist to prove BAC at time of alleged driving. The Crown was late in serving the required expert notice under Criminal Code s. 657.3. The Crown elected not to proceed with the over 80. The client was acquitted on the impaired since the Court had a reasonable doubt as to the cause of the vehicle going off the road. The client was convicted of obstruct police and fined $1000. He did not lose his licence beyond the initial 90 day ADLS.
In R. v. Z.I. the client was deaf and mute. His English literacy skills were elementary school level. He was charged with impaired driving and over 80. A fail to remain at the scene of an accident charge was pending. He had an old prior impaired. On arrest the police showed him his right to counsel as printed in the back of the officer's notebook. A police officer with some experience with signing was called upon to interpret. The client asked to contact a specific lawyer at the police station. The police tried to phone the lawyer but didn't try very hard and didn't leave a message. Notwithstanding police sensitivity training to hearing impaired needs, and a regional protocol to deal with just such situations, police did nothing to facilitate communication with 24 hour duty counsel through an ASL interpreter or by TTY. They ignored his Brydges right to duty counsel and conducted breath tests. After extensive legal research and ready witnesses from Legal Aid Ontario and the Canadian Hearing Society the Crown was persuaded to withdraw the criminal charges and the client pleaded guilty to careless driving with no further loss of licence.
In R. v. Z.J. the police observed weaving, the client was arrested for impaired driving, and placed in the police car. Prior to right to counsel the police searched his car and arranged for a tow. By the timethe client's rights were read to him, his car containing his Palm Pilot and cell phone had been towed away. Mr. Z.J.'s cell phone directory and Palm Pilot database contained the home and cell phone numbers for a friend and lawyer. At the police station the police gave up looking for the home phone number for the requested lawyer on learning that there were 14 persons with similar names in the Toronto phone book. No attempt was made by the police to obtain further information from Mr. Z.J. as to how to contact the lawyer. The police neglected to use the Internet to search at Canada411. The client accepted duty counsel since there seemed no other choice. At trial and after detailed cross-examination, the Court disbelieved the officer, found a very serious breach of Mr. Z.J.'s right to counsel, and excluded evidence of breath tests. He was acquitted on the over 80.
The Crown proceeded against Mr. Z.J. on the impaired. Defence hired a videographer to video 1 km of roadway to establish that the road had a serious curve problem and that ALL drivers in optimal conditions had difficulty navigating the yellow lines. Weather records were obtained to prove snow on the road. Evidence was called from the city to establish accident history in the area. A surveyor was retained to conduct a full survey of the entire 1 km. of roadway. The survey established that in places the roadway was narrower than the provincial standard. The Court acquitted on the impaired after indicating that the officer was not believed respecting driving and road conditions.
In R. v. Z.K. the client blew low readings slightly above the legal limit. A neighbour had made allegations about her sobriety.Client had two prior convictions and faced the prospect of lengthy jail and driving prohibition both of which would have destroyed her business. Defence counsel studied the breath room videos and observed three error tones between the subject breath tests including "unstable reference". Defence challenged both the local police and local Crown to take the Intoxilyzer out of service to preserve the evidence and protect the public from false allegations of over 80. Police solicitor agreed to take Intoxilyzer out of service and extract internal data of errors. Crown not happy with that prospect as a precedent for other cases. Crown withdrew over 80 to avoid the precedent and elected to proceed with impaired only.
On subsequent impaired trial many months later defence prepared using video of neighbour harassing client and with meteorological data respecting high pollution levels on day of incident. Crown withdrew all charges on eve of trial.
In R. v. Z.L. the client was involved in an accident on slippery pavement striking several other vehicles. The officer could have used the time between his first contact with the client and the arrival of the screening device to permit access by cell phone to counsel. He had an old prior record and blew in the 150's. Defence sought reasonable disclosure related to Intoxilyzer calibration logs and maintenance logs knowing that they would be refused by the particular Crown's office. Defence obtained enough of such logs under provincial Freedom of Information legislation to establish local police service was using same simulator and same alcohol standard solution for approved screening device calibrations and approved instrument calibrations. Defence also learned that the particular Intoxilyzer and a related Intoxilyzer were suffering power supply issues about the time of the incident. Defence therefore had a very good reason to demand the original disclosure but the Crown continued to refuse due to policy. Defence retained a toxicologist in Misississauga and a power supply expert in New Zealand. Defence brought constitutional applications respecting disclosure, particulars, retrospectivity and constitutionality in the context of the Bill C-2. Crown offered and the defence accepted a guilty plea to careless driving, no further suspension.
In R. v. Z.M. the client was charged with over 80. The defence made reasonable requests for disclosure of calibration and maintenance logs for the Intoxilyzer. The Crown refused. Defence retained an emminent toxicologist. The defence brought an application at trial for a stay of proceedings. The Crown neglected to file responding materials and the investigating officer did not attend. The charge was withdrawn.
In R. v. Z.N. the client was charged with impaired and over 80. The defence sought reasonable disclosure of calibration and maintenance logs. The Crown acknowledged the relevance of these documents but forwarded the disclosure twice to the wrong defence counsel. That disclosure was ultimately provided at noon on the day of trial. The officer in charge had to be elsewhere at 2 pm. The trial was adjourned almost 8 months with the file moving from one Crown to another. The Crown ultimately invited the defence to bring an application for unreasonable delay. Charge stayed on consent after a great deal of work including major constitutional challenges to which the Crown never responded.
In R. v. Z.O. the accused had a true BAC below 80. She was stopped by police on an expressway in Toronto. She and her friends made the mistake of spraying perfume inside the car, using breath strips, and chewing gum. These items in the mouth can inflate screening device results or affect the results or calibration checks on evidentiary breath instruments if a proper 15 to 20 minute waiting/deprivation period is not observed. The maintenance records of the evidentiary breath instrument at the station were questionable. The breath room contained a number of devices, including a modem, that could cause Radio Frequency Interference. It was therefore necessary for the defence to ask disclosure of the complete maintenance and calibration log for the evidentiary breath instrument. Bill C-2 meant that the Intoxilyzer readings in the 140s and 150s were "conclusive proof". Defence and a well-known defence expert challenged the inadequate disclosure and the constitutionality of Bill C-2. A few days before one of the long-scheduled trial dates the Crown announced that he was not available. A trial date was lost. A few days before another long-scheduled trial date the Trial Co-ordinator realized that the Judge was not available. Another day was lost. The defence brought a Charter 11b application and the case was stayed for unreasonable delay.
In R. v. Z.P. the accused had a true BAC below 80. He was stopped by police after being followed for 23 km on various highways in the Toronto area. An off-duty officer driving his own private vehicle had claimed that the accused had cut him off on Hwy 427. The officer pulled up beside the accused and looked at his wife. The off-duty officer followed him at a close distance. The accused was running out of gas and looking from the expressway for gas stations at off ramps. The officer claimed weaving and bad driving. On arrest various officers noted the usual signs of impairment. The client blew significantly over 80. The defence hired three experts from Canada and the United States. The defence indicated at a judicial pre-trial that an extensive C-2 disclosure application would be brought. The Crown withdrew the over 80 to avoid litigating the over 80 disclosure motion, believing that the impaired charge was solid. At trial the Court was presented with video of the roadway taken by the accused and a friend. The defence argued that the off-duty officer was travelling at high speed and reacted to being accidentally cut off. At trial on the impaired, after extensive cross-examination, the Court disbelieved the officers. The client was acquitted.
In Z. Q. the accused conceded on video that he was over the limit. He faced a minimum 1 year driving prohibition followed by a 1 year interlock condition. At trial the defence litigated the sole issue of whether or not the particular Intoxilyzer was an "approved instrument". This particular Peel instrument could be seen on video to have an unusual keyboard and the Test Record revealed an alternate software version number. The police provided a disclosure response including a photograph of an Intoxilyzer 5000 rather than an Intoxilyzer 5000C. The defence made further requests suggesting that the instrument was really an Intoxilyzer 5000EN. A Crown expert photographed the exterior of the instrument and supplied a manual to establish the use of a new keyboard. The manual disclosed was for an Intoxilyzer 5000EN. The Crown expert, who was a member of the Alcohol Test Committee (ATC), revealed a previously unknown modification of the instrument in 2000, and stated in a Report that it was the most recent modification. The defence brought an application for the Intoxilyzer to be made an exhibit for scientific testing. The Court refused, but the Crown in argument agreed to have the interior of the instrument photographed. The photographs revealed an additional modification, an implant circuit board attached to the main processor board. The same Crown expert under cross-examination in another case acknowledged that there was a 2005 modification that had been kept secret (not even the non-ATC member scientists at the Centre of Forensic Sciences knew about it ) until late 2009 or early 2010. The defence brought an application to re-open the request for scientific examination by a defence expert, alleging Crown negligence and seeking performance data. In the interim the Province offered the 3-9 interlock programme and the accused took advantage of it, making further litigation unnecessary. Unfortunately this rogue instrument is still in use.
In Y.B., Y.C., Y.P., and Y.S. the accused persons each faced 1 year absolute driving prohibitions plus 12 months interlock. Y.C. also faced a dangerous driving conviction. The defence combined 4 matters (2006, 2008, and 2009) to mount disclosure, particulars, retrospectivity, and constitutional challenges. After 9 days of disclosure motion including 6 days of expert evidence, the Court ruled against disclosure to the defence stating that undisclosed calibration and maintenance logs inter alia, were "clearly irrelevant" to issues at trial. The Crown offered Y.S. a guilty plea to careless driving which he accepted. The Crown offered Y.B. a guilty plea to careless driving which he accepted. The Crown offered Y.C. a guilty plea to careless driving which she accepted. At the trial for Y.P. the Crown sought to introduce previously disclosed and undisclosed (until the eve of trial) calibration and maintenance logs into evidence as part of their case on the Charter section 8/24(2) application. The defence objected noting the Court's earlier decision. The Court granted latitude to the parties. The defence then used the previously disclosed calibration and maintenance logs to cross-examine another breath tech called by the Crown. In the interim the Province offered the 3-9 interlock programme and Y.P. took advantage of it, making further litigation unnecessary.
In Z.R. the accused was a newspaper pressman who used inks and cleaning solvents containing chemicals that could act as interferents. He was stopped by police while exiting a bar shortly after his last drink. He had a potential rising alcohol defence. The Crown offered and he accepted a guilty plea to careless driving.
In Z.S. the accused operated a commercial charter fishing boat. He had been working all day in confined quarters using a cleaning solvent. Armed with an expert's report the defence acknowledged impairment but the Crown and defence agreed that the high BAC readings would not be read into evidence.
In Z.T. the accused was tested on the same instrument as Z.Q. The Crown withdrew the over 80 to avoid litigating the approved instrument issue, believing that the impaired charge was solid. In the interim the Province offered the 3-9 interlock programme and Z.T. took advantage of it, making further litigation unnecessary. The Crown and defence agreed that the high BAC readings would not be read into evidence.
In Z. U. the defence discovered that Toronto Police was using an Intoxilyzer in which Toronto Police had modified the software and installed an implant to the processor board. The client originally faced 1 year absolute prohibition plus12 months interlock. In the interim the Province offered the 3-9 interlock programme and Z.U. took advantage of it, making further litigation unnecessary. Unfortunately the rogue instrument is still in service.
As you may have read, in July of 2008, Parliament enacted new legislation amending section 258 of the Criminal Code of Canada to eliminate what some people had called "the two beer defence". Up until July 2008 innocence was a defence to a charge of over 80, if the accused could raise a reasonable doubt by giving viva voce evidence as to his or her drinking scenario combined with expert opinion from a toxicologist putting true Blood Alcohol Concentration (BAC) below 80. The proponents of Bill C-2 thought that Canadians were abusing this defence of innocence, also known as the Carter defence.
At first glance, Parliament did not, however, change the offence itself, the delict of having more than 80 milligrams of alcohol in 100 millilitres of blood while driving or while having care or control of a motor vehicle. Parliament, appeared to change only the evidentiary provisions to make it more difficult to establish innocence. New C-2 requirements for defence included evidence of operator error or machine malfunction combined with evidence of causation by the operator error or the machine malfunction of the difference between the indicated but false BAC above 80 and the true BAC below 80.
Such additional proof by the defence will be almost always impossible unless:
1. The public have full access to information about the pedigree of "approved" evidentiary breath instruments used by police, including the evaluations that led to their approval and subsequent modifications to hardware and software.
2. The defence has access to the calibration and maintenance records of the particular machine.
3. The defence has access to all documentation by video, paper, or error messages of instrument malfunction and operator error.
4. Defence lawyers, Crowns, and Judges have the necessary level of comprehension of the normal operation and improper operation of evidentiary breath testing instruments.
These instruments are machines and they are not infallible. Unfortunately very few lawyers and Judges have experience as breath alcohol technicians. Unfortunately very few lawyers and Judges have experience with the idiosyncrasies of breath machines that are easily fooled by mouth alcohol, RFI, interferents, and negligent maintenance and calibration. Lack of real standards, inadequate audit of protocol, expert opinion outside of expertise, and poor documentation by police officers are serious issues that threaten the fairness of Canada's breath testing system. Hardware and software modifications need to be controlled as they are in New Jersey since the Chun case. Defence experts require access to new "approved instruments" and full disclosure of instrument documentation for independent replication of Alcohol Test Committee Evaluations.
Unfortunately myths about "approved instruments" abound.
Having regard to the difficulty of entering an "innocence" defence, the best approach is to hire a lawyer who understands the law and the machines to thoroughly investigate the available disclosure in the context of Freedom of Information applications to see just how poorly the police complied with the Alcohol Test Committee Standards, their training, and the manufacturer's recommendations. The good news for accused persons (not for the taxpayers) is that most police services are not following protocol and are leaving the Crown wide open to technical defences. After your lawyer has thoroughly investigated the disclosure (especially the breath room video) you can make a decision within Ontario's 3 month window (for 3 months absolute prohibition followed by 9 months interlock Stream A on a guilty plea v. a Stream B 6-12 trial) as to just how valuable your innocence, criminal record, insurance, and driver's licence really are. You don't have to bow to pressure and plead guilty immediately. You can carefully consider your options with a skillful lawyer's help. Retain a lawyer to dig into the matter and only after careful consideration make your decision.
Z.V. was charged in late 2009, well after the Bill C-2 legislation. During the breath test, Mr. Z.V. noticed a sticker on the side of the Intoxilyzer 5000C that said that the instrument was last serviced in 2007. He complained to the qualified technician who told him not to worry because his lawyer would get all that information in disclosure. He blew slightly above 100. We offered a guilty plea to careless driving but the Crown refused. We requested disclosure of maintenance records. The Crown refused saying that such records were clearly irrelevant. Their refusal of disclosure was consistent with that taken by the Judge in Y.B., Y.C., Y.P., and Y.S. above. We asked for disclosure of the full alcohol standard log. The Crown provided disclosure of a single line from the log. They refused disclosure of any other line from the log arguing the decision in Y.B., Y.C., Y.P., and Y.S. Unfortunately for the Crown, they provided us with the wrong line from the log and flatly refused to disclose the rest of the log, including the correct entry. The Crown discovered the mistake at trial during cross-examination of the breath tech. They then tried to introduce evidence that they had told us was clearly irrelevant. We argued abuse of process. The Court adjourned the trial treating the issue as late disclosure. The adjournment was for 5 months. We commenced an unreasonable delay application under Charter section 11B. The Crown offered us a guilty plea to careless driving under the Highway Traffic Act with no further licence suspension and we took it. The client saved his job in the construction industry.
Z.W. was charged in 2010 long after Bill C-2. The Crown did not call an expert witness. That was a mistake. Breath readings were 160 and 160. The defence deliberately did not retain an expert witness. The Crown was therefore required to rely on the new Bill C-2 presumption section 258(1)(c) to prove that BAC at time of driving was the same as BAC at the time of breath tests. The investigating officer was new. He forgot to make the Intoxilyzer demand until several minutes into his drive with Z.W. back to the police detachment. At the detachment neither he nor the staff sergeant bothered to phone duty counsel for 30 minutes. Z.W.'s conversation with counsel was therefore delayed. The breath tests followed 20 minutes later but within the two hour limit. The Crown sought evidence from the investigating officer and the breath tech as to when the Intoxilyzer was ready, suggesting that the tests couldn't have been performed earlier anyway. Unfortunately for the Crown a close review of the breath room video showed that the Intoxilyzer was ready to receive a sample long before Z.W. spoke to duty counsel. The breath tech in cross-examination admitted that he DELIBERATELY DELAYED the stand-alone diagnostics and stand-alone cal. checks until AFTER DUTY COUNSEL CALLED BACK. The Court found that the breath tests were not taken "as soon as practicable" and the Crown's case failed. Z.W. was acquitted.
In R. v. Z.X., the Intoxilyzer 8000C printout revealed that three times the Intoxilyzer 8000C instrument suffered an "AMB" failure. Evidence of impairment, however, was overwhelming with very dangerous driving. An application was served on the Crown for a stay of proceedings on the over 80 charge because no defence expert is permitted to own or study an Intoxilyzer 8000C. Rather than litigate the over 80 stay issue the Crown agreed to a guilty plea to impaired driving without the high Intoxilyzer readings (three readings in upper 200s) being read into evidence. The information was amended to delete the words "or a drug". Z.X. registered for counselling. He did not go to jail but received a $1500 fine. He will be able to drive again with interlock in 4 months.
In Z.Y., there was very bad driving on an expressway and breath readings were almost twice the legal limit. There was a near miss to a police officer outside his cruiser. The client has a very responsible employer who arranged extensive residential alcohol counselling. Z.Y. amazingly and diligently completed residential counselling in less than 90 days following arrest. He received a $1400 fine. He will be able to drive again with interlock in 5 months.
In Z.Z., the client was charged with over 80 (excess alcohol) with breath readings of slightly above 100 on an Intoxilyzer 8000C, an instrument that the police consider state-of-the art. The client had been drinking but because of rising alcohol concentration between driving and breath tests HE WAS NOT GUILTY of over 80 while driving. The client asked us to attempt to negotiate a guilty plea to careless driving under the Highway Traffic Act with no criminal record and no further licence suspension. The Crown Attorney said NO! The client knew that a criminal conviction for over 80 would destroy his long term career plans working for government. Notwithstanding the Crown's counter-offer of a guilty plea to over 80 but 3 months absolute prohibition from driving followed by 9 months interlock the client realized that he could not compromise his long term future. He dug in his heels and retained us (together with one of Canada's top expert toxicologists) to fight. The expert calculated the client's true BAC below the legal limit yet the machine said he was guilty. After 8 months of fighting very hard for the client's innocence, the Crown backed down and agreed to HTA careless driving with a $1200 fine and probation for 12 months with 0 BAC while driving and driving only for work purposes during the first 6 months. The public interest was served and the client's career was saved.
In X.A., X.B., X.C., X.D., and X.E. during 2012, the clients have been charged with over 80 or over 80 and impaired driving. In each case one of Canada's top toxicologists has identified concerns with respect to the protocols followed by the subject test breath tech and/or the breath tech who changed the standard alcohol solution. Our expert has also identified possible simulator or Intoxilyzer 8000C malfunctions. Unfortunately our expert cannot attend the same Intoxilyzer 8000C factory certification courses that Crown experts have attended in 2008 and 2010. Unfortunately our expert cannot test the same or an identical Intoxilyzer 8000C to attempt to replicate the malfunction. The manufacturer and the Canadian distributor will not sell an 8000C to a defence expert. That means that if a Crown expert and a defence expert both take the witness stand to talk about the reliability of the automatic systems on the Intoxilyzer 8000C, a Court is much more likely to prefer the evidence of the Crown expert. It means that the defence will usually lose because it cannot retain an expert in private practice who owns an Intoxilyzer 8000C or who has factory certification on an Intoxilyzer 8000C. We therefore brought extensive applications for stays of proceedings in these cases. We think this situation violates sections 7 and 11(d) of the Charter of Rights.
In X.A. the Halton Crown backed down (didn't proceed) on the over 80 charge, went ahead with the impaired charge, and the client was acquitted.The Halton Crown was concerned that the Court might go ahead with an order limiting the evidence coming from the Intoxilyzer 8000C or grant a stay of proceedings.
In X.B. the Brampton Crown agreed to photos being taken of the Port Credit OPP breath room. At trial the Crown withdrew the over 80 rather than face the prospect of a stay of proceedings and the client pleaded guilty to HTA careless driving. The client needed to keep his driver's licence and be criminal conviction-free for work purposes. He was placed on probation for a few months limiting his driving to work and other essentials.
In X.C. the Brampton Crown went ahead with the impaired driving without prosecuting the over 80. The client was convicted on the impaired. The judge granted the MINIMUM fine and the MINIMUM driving prohibition mentioning the unfairness of Ontario's Intoxilyzer 8000C system.
In X.D. the Halton Crown did an excellent job of fighting very hard for a conviction on the over 80. After several days of argument, however, the Court has ordered that photos be taken of a Halton breath room and that the Crown produce disclosure that up until the ruling it considered irrelevant. The Halton judge ordered disclosure of an alcohol standard log, identification of the simulator and its maintenance records, identification of the simulator thermometer and its maintenance records, and records of the standard alcohol solution change. After a lengthy trial the client was convicted.
In X.F. at Barrie, Ontario the defence vigorously fought for disclosure of maintenance records. Once received it was revealed that a local police officer had conducted his own re-calibration of the optical bench. This is a procedure that should have been conducted at the manufacturer or the Canadian Authorized Service Centre in an ISO17025 Calibration Laboratory. The Crown conceded that they would have difficulty with their case and agreed to a careless driving disposition under the Highway Traffic Act.
In X.G. at Toronto, Ontario the issue was disclosure of internal Intoxilyzer 8000C data in paper form or in electronic raw text data form. After two years of litigation the Court ordered that Toronto Police Service provide the electronic data. Ultimately the matter was resolved with a third offence being treated as a first.
In X.H. at Toronto, Ontario the Crown's office agreed to comply with the Court order from X.G.. The Crown was amenable to the disclosure requested but Toronto Police Service did not comply. The Crown agreed to a careless driving disposition under the Highway Traffic Act.
In X.I. at Toronto Old City Hall, the Crown agreed to a careless driving disposition under the Highway Traffic Act.
In X.J. the Brampton Crown conceded that there was a problem with the location of the stop and the authority of the police officer to make a screening device demand. The Crown agreed to a careless driving disposition under the Highway Traffic Act.
In X.K., at trial in Brampton, the Court found a date defect problem with the Certificate of the Qualified Technician and acquitted.
Parliament has adopted new legislation, Bill C-46, in an attempt to eliminate almost any defence to DUI. It remains to be seen whether these new sections will be circumscribed through Charter of Rights litigation. Don't give up, make sure you get good legal advice, and keep fighting for what you think is right.
Copyright 2018 Stephen Biss
470 Hensall Circle, Suite 303
905-273-3322 or 1-877-273-3322
Advertisement. Any legal opinions expressed at this site relate to the Province of Ontario, Canada only. If you reside or carry on business in any other jurisdiction please consult a lawyer, solicitor, or attorney in your own jurisdiction. WARNING: All information contained herein is provided for the purpose of providing basic information only and should not be construed as formal legal advice. The author disclaims any and all liability resulting from reliance upon such information. You are strongly encouraged to seek and retain professional legal advice before relying upon any of the information contained herein.