Drive Over 80: Appeal against conviction

R. v. S.R.
April 2016

ISSUE: Ineffective assistance of counsel

S.R. was pulled over on Highway 407 after a citizen reported erratic driving. An arrest for impaired driving ensued and a demand for breath samples. Back at the station, S.R. said he wanted to exercise his right to counsel and asked to speak to a lawyer who had helped him in the past with traffic tickets. Police got the lawyer on the phone and the lawyer told S.R. not to worry, he’d get the case “tossed.”

S.R. registered breath readings over the legal limit, but not by much: 110 and 100 mg of alcohol in 100 ml of blood. Afterward, S.R. asked the lawyer to represent him. At the lawyer’s suggestion, they met at a gas station parking lot where S.R. gave him a $3,500 cash retainer.

Several months later, the lawyer contacted S.R. and the following exchange by text messages occurred:

Lawyer: We have court… wed and yu have to be there. 9am …
SR: Have to be there?
Lawyer: Yes
SR: Is this the last court date?
Lawyer: It should be
SR: OK. I will see I there
Lawyer: Ok. Get a ride in case you lose lic. Just being precautious
SR: Huh???? What do u mean???
Lawyer: Lol
SR: Please tell your joking
Lawyer: it’s a trial. I have to be precautious…but I’m positive it will go well
SR: …please tell me your joking
Lawyer: Its trial. I have faith chill. Good crow [sic] good judge just being cautious.
SR: … we need to talk, when is a good time to call
Lawyer: Dep 2500$ …. Text me when done and has to be by transf or direct dep cash. No cheques cuz they hold funds. Got that
SR: Yes

At court two days later, S.R. reminded the lawyer that he wished to avoid a criminal record. As he worked for a bank it could hurt his career. The lawyer said he had reviewed the disclosure (investigation file) and there was no defence. Although the readings were low, he said, the Crown would not drop the criminal charges and take a plea to Careless Driving. The lawyer said it was best he plead guilty for the minimum fine and a reduced driving suspension. Acting on this advice, S.R. pled guilty to Drive Over 80 for a $1,000 fine and a one-year driving prohibition (the minimum). The impaired driving charge was withdrawn.

Fast forward two years. S.R. contacted me to defend charges of driving under suspension and driving with overly tinted windows. Although the driving in question occurred after the one-year driving prohibition expired, his licence was still suspended as he had not completed the Ministry of Transportation’s Back on Track remedial program.

I reviewed the investigation file from the Drive Over 80 case. I found that in breach of his right to privacy, a cell DVD showed him urinating. I interviewed a witness who had been with him before his arrest who said he appeared sober. The lawyer had not interviewed any witnesses and apparently had not reviewed the DVD either. Had the Crown been alerted to these and other potential defences it might have agreed to accept a plea to Careless Driving and drop the criminal charges.

I filed an appeal and sought leave to do so over two years past the 30-day deadline. The Crown agreed that an extension should be granted.

RESULT: In subsequent negotiations, the Crown conceded that trial counsel had provided ineffective assistance. It consented to granting of the appeal and the charge was sent back for a new trial. Subsequently, the Crown agreed to reduce the Drive Over 80 charge to Careless Driving.

Post-script: After the Crown conceded the appeal, I persuaded the provincial prosecutor to withdraw the Drive Under Suspension charge and accept a plea to the tinted windows charge for the minimum fine of $60.

Drive Over 80: Appeal against conviction

R. v. M. M.
August 2013

ISSUES: Insufficient reasons for judgment; ineffective assistance of counsel

M.M., in Canada on a student visa, was charged with Drive Over 80 after registering breath test results of 110 mgs in 100 ml of blood. He understood that unless he successfully defended the charge, he’d be deported. (Unless you’re a landed immigrant or citizen, a criminal conviction for any indictable offence will result in your removal from Canada.)

Mr. M. retained counsel who told him not to worry. Drinking and driving, the lawyer said, was a minor charge and would not affect his immigration status. When the case got to court, the Crown gave the lawyer copies of the police notes (disclosure). But the lawyer never met with Mr. Mr. to review them or even tell Mr. M. that he had them. Although he received a video from the investigation at the police station, he never watched it.

Prior to trial the lawyer did not file any applications alleging violations of Mr. M.’s constitutional rights though the disclosure showed arguable breaches of his rights to be free from unreasonable search and seizure and against arbitrary detention.

The lawyer contacted Mr. M. the night before the trial and told Mr. M. to meet him at his office the next morning. At the meeting, Mr. M. asked the lawyer what his trial strategy was. The lawyer responded he would “try a few things.” The lawyer never told Mr. M. he had a right to testify in his own defence and never explained the trial process. At the opening of the trial when the clerk of the court asked Mr. M. “how do you plead, guilty or not guilty,” Mr. M. was confused. The lawyer interjected, “not guilty.”

At trial, two policemen, the arresting officer and breath technician, testified. The lawyer cross-examined both very briefly. At the end of the Crown’s case, the lawyer argued that the breath tests had not been conducted as soon as practicable. The judge rejected the argument, finding that the police actions were “expeditious” and the investigation “perfect.”

I appealed on a few grounds including that the lawyer had provided ineffective assistance. He failed to make arguments that were available on the evidence. He also failed to inform Mr. M. that he had a right to testify in his own defence and leave that decision up to him.

RESULT: The Crown conceded the appeal and agreed that Mr. M. was entitled to a new trial. Pointing out that Mr. M. had already served out his one-year driving suspension following conviction, I persuaded the Crown not to reprosecute and to stay the charge.

Drive No Insurance: Appeal against conviction

R. v. S.L.
January 2012

ISSUE: Judge failed to assist unrepresented defendant

Ms. L. went to trial unrepresented on a charge of Drive No Insurance. She was convicted and fined $6,500 (the minimum fine is $5,000).

Ms. L. had left her car at her boyfriend’s home in August 2009 along with a spare key (“in case he needed to move it,” she had testified). He did not know she was uninsured. One morning, without notifying her, he used her car to drive to work because his own car was out of gas. Police pulled him over and after determining that he had permission to use her car, charged her with Drive No Insurance.

I appealed, arguing that the court did not provide her the assistance necessary to ensure a fair trial. If you go to trial without a lawyer, the court must, for example, explain to you the elements of the offence that the Crown has to prove. Also, it should explain your right to cross-examine and the mechanics and purpose of cross-examination.

RESULT: The court allowed the appeal and ordered a new trial. (Fortunately for Ms. L. the Crown did not re-prosecute.)