This article originally appeared on The Lawyer's Daily website published by LexisNexis Canada Inc.
October 26, 2017: Today we successfully defended another DUI case. Our client had to swerve to avoid another vehicle which did an impromptu U-turn in front of traffic without looking. That u-turning driver was charged with careless driving as a result of that action. Because our client had to suddenly swerve to avoid t-boning the u-turner, his car ended up striking a telephone pole and was totalled. He did the appropriate thing and reported the accident to police. Upon arrival, police detected the odour of an alcoholic beverage and demanded a breath sample into a roadside screening device. The resulting "fail" resulted in an arrest for "drive over 80". But no rights to counsel were provided upon our client's arrest so that he would know whether or not to speak to a lawyer. The Crown argued that this defect was cured at the station when rights to counsel were allegedly reiterated. But that station rights to counsel did not comply with the Supreme Court of Canada's admonishes in a case called R. v. Bartle. A further problem was the use by the state of statements made by the client which he was compelled to make by virtue of the duty to report found in the Highway Traffic Act. There were also problems with the fact that a proper breath demand was not made at the time the arresting officer made the arrest. The result was that we got halfway through the first day of trial when the Crown agreed to withdraw the criminal charge in return for a plea to careless driving under the Highway Traffic Act.
Our client was charged with two counts of assault and one of threatening death. On Day 1 of the trial a "witness" to these events was shown to have very faulty memories of the events. The complainant testified and cross examination reserved to today. Upon cross examination, numerous inconsistencies were demonstrated and a clear picture emerged. Our client was merely defending himself against repeated assaults by the complainant. By the end of our cross examination there were significant problems with the Crown's case demonstrated. Our client then testified in a forthright fashion about what had occurred. Over lunch the Crown reassessed its case. Upon resuming before the trial judge the Crown invited the court to dismiss all charges against our client.
A new case from the Ontario Superior Court of Justice, R v Fedele 2016, allows victim surcharges to be imposed concurrently. #criminaldefense