2016 WINS

RECENT SUCCESSES 2016

Annual SummaryRecent Successes

 

Scott R. – Nov. 7 – The defendant was charged with Over 80. The judge dismissed the charge after a trial. The judge accepted my argument that the prosecutor had not led evidence of the time of driving. Without this evidence, the Crown could not prove that the first breath test taken at the police station was taken within 2 hours of the time of driving, a statutory precondition that allows the breath readings to apply to the time of driving.

 

Peter A. – October 19 – The defendant was charged with Dangerous Driving.  He engaged in some clearly aberrant driving actions which included making an unsafe turn that caused him to land on somebody’s front lawn.  However, I was able to convince the prosecutor that were the matter to go to trial it was not clear that a judge would conclude that this type of driving is criminal. As a result, a resolution was reached whereby the defendant was allowed to plead guilty to the Highway Traffic Act offence of Careless Driving for a fine and no suspension.  Thereafter, the Dangerous Driving charge was withdrawn by the prosecutor.

 

Dwayne P. – Oct. 31 – The defendant was charged with dangerous driving, flight from police and resist arrest. All charges were dismissed after a trial. The judge accepted the defence argument that the Crown had not proven that the defendant operated a vehicle prior to his arrest. This was fatal to the two driving offences. Since there was insufficient evidence to support those offences, the arrest was deemed unlawful which meant the defendant could not be convicted of the resist arrest charge.

 

Candice B. – Oct. 17 – This case was unusual. The defendant was charged with Over 80. At the end of the trial, I argued that the documents relied upon by the prosecutor to prove the charge were insufficient as they were not original documents. Although the judge agreed with my argument, he decided that the issue ought to have been dealt with at the time the documents were tendered rather than the end of the trial. The judge took responsibility for this and therefore declared a mistrial. This means that the trial was nullified and would have to begin again on another day before another judge. Rather than going that route, a resolution was reached whereby the defendant was allowed to plead guilty to the Highway Traffic Act offence of Stunt Driving-driving more than 50 km/h above the speed limit for a fine and no suspension. Thereafter, the prosecutor withdrew the Over 80 charge.

 

Gary C. – Oct. 14 – The defendant was charged with Impaired Driving and Over 80. At the end of the Crown’s case, the prosecutor invited the trial judge to dismiss the Impaired Driving charge fairly acknowledging that she had not led sufficient evidence to prove that charge. However, she did argue that she had proven the Over 80 charge. I argued that the Over 80 charge had also not been proven. I argued that although the Crown had led evidence that the defendant had blown above the legal limit at the station, the Crown had not proven that the defendant was above the legal limit at the time of driving. The judge accepted my argument. The judge dismissed both charges.

 

Jesse T. – Oct. 12 – The defendant was charged with Impaired Driving and Over 80. We alleged a very serious breach of the defendant’s right to counsel. Specifically, we alleged that the officer twice interrupted the defendant’s conversation with counsel and, the second time, would not allow the defendant to continue his conversation with counsel.  The prosecutor was understandably concerned about the prospects of success that we may have had based on this argument. On the other hand, we were concerned that the argument might succeed on the Over 80 charge but maybe not the Impaired Driving charge. As a result of our mutual concerns, a resolution was reached whereby the defendant was allowed to plead guilty to the Highway Traffic Act offence of Careless Driving for a fine and no suspension. Thereafter, the prosecutor withdrew the Impaired Driving and Over 80 charges.

 

Ryan W. – Oct. 11 – The defendant was charged with Impaired care or control of a motor vehicle. The defendant testified that after leaving a bar, he went into the driver’s seat of his motor vehicle solely to charge up his cell phone after which he intended to call a cab to take him home. Unfortunately, while the phone was charging, he fell asleep and police woke him up and arrested him for being in care or control of his motor vehicle while impaired. The judge accepted the defendant’s evidence that he had no intention of driving. The judge dismissed the charge.

 

Bhanu B. – Oct. 11 – The defendant was charged with Over 80. Part way through the trial, it became apparent that the arresting officer’s evidence regarding his grounds for making a screening device demand was uncertain. Rather than the prosecutor risking an outright acquittal and rather than the defendant risking a conviction, a resolution was reached during a recess. The defendant was allowed to plead guilty to the Highway Traffic Act offence of Careless Driving for a fine and no suspension. Thereafter, the criminal charge of Over 80 was dismissed by the trial judge.

 

 

Bryan L. – Oct. 5 – The defendant was charged with Refusing to Provide a Sample in to a roadside screening device.  During the trial, it became apparent to the prosecutor that the arresting officer did not have the proper grounds in law to have demanded a breath sample in the first place.  As a result, the prosecutor invited the trial judge to dismiss the charge.  The trial judge dismissed the charge.

 

Emil K. – Sept. 27 – The defendant was charged with Impaired Driving and Over 80. Both charges were dismissed after a trial. I was able to convince the trial judge that the defendant’s right to counsel was infringed at the roadside before he took a roadside screening breath test. As a result of this ruling, the judge went on to exclude evidence of breath tests taken thereafter at the police station. With there being no evidence of breath results, he dismissed both charges.

 

Todd T. – Sept. 26 – The defendant was charged with Failing to Provide a Breath Sample into a breathalyzer. The charge was dismissed after a trial. I was able to convince the trial judge that the prosecutor’s case failed on 2 grounds. First, the arresting officer lacked proper grounds to make the breath demand in the first place. Second, the evidence disclosed that the defendant was not physically able to comply with the demand for breath samples.

 

Robert H. – Sept. 22- The defendant was charged with Impaired Driving and Over 80. I was able to convince the trial judge that the charges took too long to get to trial. As a result, the judge stayed the charges, which is equivalent to a dismissal.

 

Amir J. – Sept. 14 – The defendant was charged with Over 80. The charge was dismissed after a trial. I was able to convince the trial judge that the arresting officer infringed the constitutional rights of the defendant as the officer lacked the proper grounds in law to demand breath samples from the defendant. I further convinced the judge that the infringement was serious enough to justify the exclusion of the breath readings from evidence. Without that evidence, the Prosecutor’s case failed.

 

Stephanie T. – Sept. 12 – The defendant was charged with Failing to Stop After an Accident under the Criminal Code. A conviction for this offence would have resulted in an entry on the criminal record of the defendant and a minimum 3 year suspension of her driving privileges because of a previous conviction she had for Over 80. I was able to negotiate a settlement whereby the defendant pled guilty to Failing to Remain After an Accident under the Highway Traffic Act and did not have her driving privileges suspended.  The criminal charge was withdrawn.

 

Domenic S. – Sept. 12 – The defendant was charged with Failing to Blow into a Screening Device, Mischief to Property and Assault Police. The prosecutor withdrew all 3 charges. I was able to convince the prosecutor that the demand for the screening device test was unlawful. This meant that the refusal to blow by the defendant was not an offence. I further convinced the prosecutor that this rendered the arrest of the defendant unlawful. As the 2 other criminal charges occurred after this unlawful arrest, the prosecutor rightly chose not to proceed with any of the charges.

 

Asu A. – Sept. 9 – The defendant was charged with Impaired Operation and Over 80.  Because of identification issues, the prosecutor was concerned about his ability to prove the case against the defendant. As a result, the defendant was allowed to plead guilty to the Highway Traffic Act charge of Careless Driving. He had to pay a fine of $1,000.00 and had restrictions placed on his driving privileges for 12 months.  After this plea, the prosecutor withdrew the criminal charges.

 

Amy W. – Sept. 1 – The defendant was charged with Impaired Driving and Over 80. Half way through the trial, the prosecutor became concerned about her ability to prove the case because of frailties in the arresting officer’s evidence regarding the grounds to arrest the defendant. As a result, the defendant was allowed to plead guilty to the Highway Traffic Offence of Careless Driving. She had to pay a fine but did not end up with a criminal record nor was her driving privileges suspended. After entering this plea, the criminal charges were dismissed.

 

 Jordan D. – August 31 – The defendant was charged with Over 80.  During my examination of the arresting officer, I was able to establish that she did not take steps to ensure results of the roadside screening test would yield an accurate result.  At a recess, I negotiated a settlement with the prosecutor whereby the defendant was allowed to plead guilty to the Highway Traffic Act offence of Careless Driving for a $1,000.00 fine and no suspension of his driving privileges.  The prosecutor withdrew the Over 80 charge.  This avoided a criminal record for the defendant and allowed him to keep his job as his job required that he be able to drive.

 

Garrett S. – August 17 – The defendant was charged with Over 80.  I was able persuade the trial judge  that the arresting officer did not have the legal grounds to make a roadside screening demand.  As a result, the judge ruled that the breath tests taken back at the station were not admissible. The judge dismissed the charge.

 

Azad E. – August 12 – The defendant was charged with Over 80.  I was able to persuade the trial judge that the matter had taken too long to get to trial.  The judge stayed the charge (a stay is the equivalent of a dismissal).

 

Adrian F. – August 12 – The defendant was charged with Dangerous Driving and Flight from Police.  We were able to persuade the prosecutor that they would not be able to prove the identity of the defendant as the driver on the day in question.  The prosecutor withdrew both charges.

 

Julien R. – Aug. 11 – The defendant was charged with Over 80.  During the trial, I cross-examined the arresting officer at length regarding his grounds to arrest the defendant.  It became clear through my cross-examination that the officer lacked the necessary belief to justify a roadside screening test.  After returning from a recess, the prosecutor invited the judge to dismiss the charge as he acknowledged he could not prove his case.  The trial judge dismissed the charge.

 

Venrick A. – Aug. 8 – The defendant was charged with Over 80.  After the completion of the case presented by the prosecutor, I was able to persuade that the prosecutor had led no admissible evidence of the breath samples.  The judge dismissed the charge.

 

Vasos I. – July 19 – Thee defendant was charged with Impaired Driving and Over 80. On the original trial date, the matter had to be adjourned as the arresting officer was not available due to a medical condition. Ultimately, the matter was put to July 19. As of that date, the Prosecutor still had no firm information about when the officer would be returning. As a result, and quite fairly, the prosecutor withdrew the charges. 

 

Thanh D. – July 5 – The defendant was charged with Impaired Driving and Over 80. In a curious sequence of events, the arresting officer was in the middle of my cross-examination at the lunch break but did not return after the break. He advised the prosecutor that he had a personal matter he had to attend to. As result, the matter was adjourned to July 5. On that day, the officer did not return advising the prosecutor that he had mis-diarized the return date. I urged the Judge to “stay” proceedings. A “stay” is the equivalent of a dismissal. Notwithstanding the prosecutor’s protestations, the judge stayed the charges.

 

Christine M. – June 15 – The defendant was charged with Over 80. At trial, after I concluded cross-examining the arresting officer, the prosecutor recognized she would not be able to prove that the defendant was driving at the relevant time. The prosecutor invited the judge to dismiss the charge. The judge dismissed the charge.

 

June 14th – Baldev M. – The defendant was charged with Over 80.  We were able to persuade the Crown that they could not prove this charge.  When the defendant was observed, he was not operating a motor vehicle. He was sleeping in the cab of a truck.  There was also a potential issue that his right to speak to his counsel of choice was infringed.  Recognizing that the case could not be proven, the prosecutor withdrew the charge.

 

Olga K. – June 14 – The defendant was charged with Impaired Driving and Over 80. During the trial, it appeared that the prosecution may have had problems proving the identity of the defendant as the driver on the occasion in question. The matter was adjourned and discussions took place between the prosecutor and me. Ultimately, we agreed upon a resolution that allowed the defendant to plead guilty to the Highway Traffic Act offence of Careless Driving. The defendant was required to pay a fine and she had to drive with an ignition interlock in her car for a period of time. Once the defendant entered her guilty plea to this Highway Traffic Act offence, the prosecutor withdrew the criminal charges of Impaired Driving and Over 80.

 

Sharon A. – June 13 – The defendant was charged with Over 80. During the trial, an issue arose regarding whether the prosecution could prove that the breath tests were taken within two hours of the time of driving, a requirement under the Criminal Code. During a recess, I reached an agreement with the prosecutor. The defendant was allowed to plead guilty to the lesser charge of Careless Driving under the Highway Traffic Act. She was required to pay a fine and to install an ignition interlock device in her vehicle for a period of time. As a result of this resolution, the Over 80 charge was dismissed by the trial judge. This avoided a criminal record for the defendant.

 

Kimberly A. – May 31 – The defendant was charged with Over 80.  The defendant`s readings were relatively low.  Through negotiations with the prosecutor, we were able to reach a resolution whereby the defendant was allowed to plead guilty to the Highway Traffic Act offence of Careless Driving.  The defendant received a fine and a 90 day suspension of her driving privileges.  Once the defendant entered her guilty plea to the Highway Traffic Act offence, the prosecutor withdrew the criminal charge of Over 80.

 

Melissa S. – April 28 – The defendant was charged with Over 80. During the trial, I was able to elicit a serious contradiction in the evidence of the arresting officer while I was cross-examining her. At the morning recess, after discussions with the prosecutor, an agreement was reached whereby the defendant was allowed to plead guilty to the Highway Traffic Act offence of Careless Driving for a fine and some manageable limitations on her driving privileges. When she entered her guilty plea to the Highway Traffic Act offence, the prosecutor withdrew the criminal charge of over 80.
Anurag S. – April 20 – The defendant was charged with Impaired Driving and Over 80. On the first date for trial, the matter did not proceed because the prosecution provided me with further disclosure on the day of trial. This entitled us to an adjournment and created a difficulty for the prosecution because the next trial date was potentially vulnerable to a delay argument. As a result, a resolution was reached whereby the defendant pled guilty to the Highway Traffic Act offence of Careless Driving for a fine and no suspension. This avoided a criminal record for the defendant and allowed him to maintain his driving privileges. Once he entered his guilty plea to the Highway Traffic Act offence, the prosecutor withdrew the two criminal charges.
Marwan E.  – April 13 – The defendant was charged with Refusing to Provide a Breath Sample into a roadside screening device.  The defendant testified in his own defence.  He maintained that his decision not to provide a sample was because he was relying upon bad advice from another occupant in his vehicle who told him the officer didn’t have the authority to make him provide a sample.  Once he was arrested, the defendant promptly changed his mind and asked for another chance to blow but was refused the opportunity by the arresting officer. Prior to the commencement of oral submissions, the prosecutor very fairly acknowledged to the judge that based on the unusual circumstances of the case, and especially since the defendant offered to blow so soon after he was arrested, the charge ought to be dismissed.  The trial judge dismissed the charge.

 

Zhongkuan G. – April 11 – The defendant was charged with Over 80.  Prior to the start of trial, I was approached by the prosecutor who had concerns about certain technical elements of his case.  Specifically, there was a potential issue about the length of time that had passed before a roadside screening test was administered.  As well, there was an issue about the extent to which the arresting officer had to rely upon a potentially inadmissible statement by the defendant at the roadside after a motor vehicle accident vis a vis the officer’s reasonable and probable grounds for arrest.  As a result, the following resolution was agreed to:  the defendant was allowed to plead guilty to the Highway Traffic Act offence of Careless Driving.  He was fined and put on probation where he could only drive for work purposes during the period of probation.  The criminal charge was withdrawn by the prosecutor.  The defendant had a previous criminal driving offence and a conviction to the criminal charge would have resulted in a lengthy suspension of his driving privileges and possibly a jail sentence so this resolution was particularly advantageous to the defendant.

 

Natasha M. – March 22 – The defendant was charged with Over 80.  This was the second day for trial and the arresting officer was still being cross-examined by me.  For some unknown reason the officer was not present in court and the prosecutor could not find his whereabouts.  Rather than seek an adjournment, the prosecutor agreed to the following resolution:  the defendant was allowed to plead guilty to the Highway Traffic Act offence of Careless Driving.  She was fined and suspended from driving for 90 days.  The Over 80 charge was dismissed.  The defendant was a young woman and avoiding a criminal conviction was her primary concern.  This resolution achieved that objective.

 

Michael H. – March 21 – The defendant was charged with Over 80.  The charge was dismissed after a trial.  The trial judge ruled that the arresting officer lacked a reasonable suspicion that the defendant had alcohol in his body at the time a demand was made by the officer to have the defendant blow into a roadside screening device.  Following this finding, the judge ruled that the breath readings that were obtained at the police station ought to be excluded from evidence.  With no breath readings before the court, there was no evidence that the defendant was above the legal limit at the time of driving.

 

Thomas B. – March 15 – The defendant was charged with Impaired Care or Control of a motor vehicle, Over 80 Care or Control of a motor vehicle and Fail to Stop after Accident.  The defendant had possible defences to all 3 charges.  Although police saw him in the driver’s seat of a motor vehicle after a motor vehicle accident, the defendant had no intention of driving the vehicle.  This potentially a defence when someone is charged with Impaired Care or Control rather than Impaired Operation.  As a result, the prosecutor agreed to the following resolution:  the defendant plead guilty to the Highway Traffic Act offence of Careless Driving.  He was fined $1,500.00 and put on probation for 1 year one of the terms of which was that he could only operate a motor vehicle if he had an ignition interlock installed in his car.  The prosecutor withdrew all 3 criminal charges.  This allowed the defendant to avoid a criminal record and maintain his driving privileges.

 

Cameron J. – Feb. 29 – The defendant was charged with Impaired Driving and Over 80.  Both charges were dismissed after trial.  The judge found that the evidence of impairment was insufficient to prove that count beyond a reasonable doubt.  The trial judge also ruled that the Crown has not proven that the breathalyzer tests were taken “as soon as practicable”, a requirement under the Criminal Code.

 

Richard R.  – Feb. 26 – The defendant was charged with Impaired Driving and Over 80.  The evidence revealed during the trial that the arresting officer observed and error code on the screening device that ought not to have appeared.  Because of uncertainty about the proper functioning of the screening device, the prosecutor agreed to the following resolution:  the defendant was allowed to plead guilty to the offence of Careless Driving under the Highway Traffic Act and was fined.  The Impaired Driving and Over 80 charges were dismissed. This allowed the defendant to avoid a criminal record and maintain his driving privileges.

 

Darren N. – Feb. 23 – The defendant was charged with Impaired Driving and Over 80.  The matter has been up for trial once but could not be reached.  Just prior to the second date for trial, the prosecutor provided late disclosure that required the matter to be adjourned again.  I was able to convince the prosecutor that there was now a strong likelihood that a judge would throw both charges because of delay.  As a result, a resolution was reached whereby the defendant was allowed to plead guilty to the less, non-criminal charge of Careless Driving under the Highway Traffic Act.  There were restrictions put on his driving privileges for several months but he was allowed to continue driving for work and other purposes for which he needed his driving privileges.  He was also required to pay a fine.  The prosecutor withdrew the criminal charges of Impaired Driving and Over 80.

 

Matthew B. – Feb. 11 – The defendant was charged with Impaired Driving and Over 80.  During the trial, several problems of a technical nature became apparent in the evidence of the police.  During a recess, I was able to convince the prosecutor that there was a very real risk that both charges would be dismissed by the trial judge because of these technical problems.  An agreement was reached whereby the defendant was allowed to plead guilty to the lesser, non-criminal charge of Careless Driving under the Highway Traffic Act.  He was required to pay a fine.  The prosecutor withdrew the criminal charges of Impaired Driving and Over 80.  As a result, the defendant did not lose his driving privileges nor did he end up with a criminal record.

 

Wayne Y. – Feb. 1 – The defendant was charged with Refusing to take a roadside screening test.  The matter had been up once for trial but could not be reached and had to be adjourned to a second date for trial.  I was able to convince the prosecutor that there was a real chance a judge would throw the matter out for taking too long to get to trial.  An agreement was reached whereby the defendant was allowed to plead guilty to the lesser, non-criminal offence of Careless Driving under the Highway Traffic Act.  He was given a brief 90 day suspension and a fine.  The prosecutor withdrew the criminal charge of Refusing to Provide a Sample into a screening device.

 

Allan T. – Jan. 28 – The defendant was charged with Over 80.  I was able to convince the trial judge that the defendant’s right to counsel had been infringed because he was not given the opportunity to speak to a lawyer before taking the roadside screening test.  Although usually a driver is not entitled to speak to a lawyer before taking a roadside screening test, I was able to convince the judge that this was one of those rare circumstances where he was so entitled.  The trial judge dismissed the Over 80 charge.

 

Gurjinder S. – Jan. 27 – The defendant was charged with Impaired Driving and Over 80.  I was able to persuade the trial judge that while the defendant was clearly impaired and over the legal limit after his arrest, the prosecution had not proven that he was either impaired or above the legal limit at the time of driving.  As a result, the trial judge dismissed both charges.

 

Semir H. – Jan. 25 – The defendant was charged with Over 80.  The trial began late in the day and could not finish. I was able to convince the prosecutor that what little evidence was called that day by the officer was problematic because of a technical problem related to the officer’s use of the roadside screening device. Moreover, the next date for trial was available was so far into the future that there was a very strong possibility the judge would have thrown the charge out for delay.  As a result, the prosecutor brought the matter back before the trial judge and had the charge withdrawn.

 

Laura M. – Jan. 15 – The defendant was charged with Over 80.  The defendant had relatively low readings although they were above the legal limit.  After negotiations with the prosecutor, it was agreed that the defendant could plead guilty to the lesser, non-criminal charge of Careless Driving under the Highway Traffic Act.  She was required to pay and fine and had certain restrictions placed on her driving privileges for a period of several months but she was able to maintain her driving privileges for work purposes.  The Over 80 was withdrawn.

 

Tung W. – Jan. 12 – The defendant was charged with Over 80.  We were able to convince the judge that the matter had taken too long to get to trial.  As a result, the trial judge stayed the charge which is the equivalent of a dismissal.

 

Gary H. – Jan. 8 – The defendant was charged with Over 80.  During the trial, I was able to convince the trial judge that the defendant’s right to be free from unreasonable search or seizure had been infringed.  I was further able to convince the judge that the infringement was serious enough that it justified an exclusion of the breath samples from evidence.  Without any evidence of the breath readings, there was no evidence to support the Over 80 charge. The trial judge dismissed the Over 80 charge.