Other Driving Offences
R. v. C.G.
ISSUES: Right to Counsel, Appeal Against Underlying DUI Conviction
Girlfriend calls 911
C.G.’s “girlfriend” called 911 to report that he was “drinking and driving” and had “no licence.” Police located his vehicle and arrested him for impaired driving.
After the arrest but before he was given the right to counsel, police asked him if he was licenced. He responded no.
The arresting officer (A.O.) gave him his right to counsel and he responded that he wanted to speak to a lawyer. Before he could do so, however, the following exchange occurred:
C.G.: I guess I won’t be driving for a while now.
A.O.: No, I guess not.
C.G.: Well I’m driving under suspension.
A.O.: So you have no licence?
C.G.: No I’m under suspension.
A.O.: What are you under suspension for?
C.G.: For over 80 – driving over 80.
A.O.: So you’re driving disqualified.
Police confirm licence suspension
Later, at the police station, a record check confirmed that his licence was recently suspended for Drive Over 80. (I subsequently filed an appeal against that conviction.)
As breath tests showed he was under the legal limit, he was charged only with Drive Disqualified and not also with Impaired Driving and Drive Over 80.
Due to a prior conviction for Drive Disqualified, the Crown was asking for 12 months jail and a lengthy driving prohibition. Under the Highway Traffic Act his licence would be suspended for one year.
In plea negotiations, I said that police twice breached C.G.’s right to counsel by asking him about the status of his driver’s licence before he could speak to a lawyer. That this evidence was discoverable by lawful means – police did not have to ask him – made these breaches worse.
Over 80 dropped after appeal
RESULT: After conceding the appeal on the Over 80 conviction behind the driving prohibition and dropping that charge, the Crown accepted a plea to Disobey Court Order for a fine. Not only did C.G. keep his driver’s licence and avoid jail, but because a conviction for Disobey Court Order does not appear on one’s driving record, he also would avoid a hike in his motor vehicle insurance rates.
R. v. O.P.
O.P. was convicted of Impaired Care or Control in 2010.
After later completing the Ministry of Transportation’s remedial program for impaired drivers (Back on Track), he installed an ignition interlock device in his girlfriend’s car (as he did not own a car). However, following a job change as a result of which he no longer needed to drive, he had the device taken out of the car before the interlock condition was removed from his driver’s licence.
One morning he drove his girlfriend to work as she was not feeling well and returned home. After he finished parking, police, mistaking him for someone else, investigated him. He was charged with Drive Disqualified.
At my suggestion, he did 55 hours of community service.
RESULT: The Crown withdrew the Drive Disqualified Charge and accepted a plea to Drive No Interlock contrary to 41.2(11) of the Highway Traffic Act for a fine. He did not lose his driver’s licence.
R. v. M.G.
M.G. was charged with Drive Disqualified after being caught operating a snowmobile. Previously he had been prohibited from driving for life. He had three prior convictions for Driving While Disqualified and had even gone to jail for four months in 2013 following his last conviction. For the new charge, the Crown said was seeking a longer term of imprisonment.
The Crown provided disclosure at court on the first appearance in court. I requested further items, among them a typed copy of the arresting officer’s illegible notes. (The accused has a constitutional right to comprehensible disclosure.) Six months and numerous court appearances later, I still did not get the additional disclosure. The Crown revealed that the file had gone missing. Given the delay and prospective breach of my client’s constitutional right to a speedy trial, the Crown withdrew the charge.
Stunt Driving, Speeding
R. v. M.U.
U.M. was clocked at 165 kph on Highway 401. He was given two tickets, one for stunt driving and the other for speeding. Both would result in steep fines and huge increases in his car insurance rates.
I reviewed the disclosure: there was no defence. I applied for the operating manual for the speed measurement device including the chapters on troubleshooting and maintenance. The Crown disclosed only the section dealing with daily testing of the instrument. I wrote a few times to the Crown again requesting the other relevant parts of the manual. No response.
Before trial I filed a motion seeking a stay of the charges or an adjournment with costs against the Crown for failing to answer my requests for disclosure.
RESULT: On the trial date, the Crown apologized for not answering my requests and offered to reduce the speeding ticket to 49 kms over the limit and to withdraw the stunt charge. Mr. U. was delighted. He was even happier when the officer did not appear and the Crown withdrew both charges.
R. v. D.A.
ISSUE: Incomplete disclosure
D.A. was clocked at 146 kph on the Don Valley Parkway, that is, 56 kph over the posted limit.
Although the police witness appeared for the trial thus enabling the Crown to prove the charge, I complained that disclosure had not yet been completed.
RESULT: To avoid an adjournment, the Crown agreed to reduce the charge to speeding 139 in a 90 kph zone.
Drive No Insurance
R. v. S.L.
– Charge reduced
Ms. L. was ticketed for Drive No Insurance in January 2011. She had just got news that her sister who lives across town had been assaulted but was hesitant about reporting it. Ms. L. said that “without thinking,” she drove to her sister’s and took her sister to police. On the way, police stopped her for speeding (77 kph in a 50 zone), but ticketed her only for driving without insurance. Though sympathetic, the Crown initially said the best plea bargain it could offer was to reduce the fine by a few thousand dollars.
RESULT: After bringing an application to stay the charge for a breach of her s. 11(b) Charter right to trial within a reasonable time, I persuaded the Crown to accept a plea to the lesser offences of speeding and fail to produce insurance card.
Dangerous Driving, Flee Police
R. v. Y.T.
ISSUE: Faulty police records
Y.T. was observed speeding at 2:40 am in the town of Scugog, Ontario. Police signaled him to stop. However, according to police, instead of pulling over, he took evasive action, going through five stop signs and a red light at speeds approaching twice the limit before eventually stopping. Police drew their weapons at the time of arrest and pointed them at Mr. T. According to police, Mr. T. told them he was driving home. “What’s all the commotion?” he asked, “I was driving normal.”
RESULT: After I discovered that police did not keep proper records on the drawing of their weapons in the takedown, the Crown agreed to withdraw the criminal charges and accept a plea to Careless Driving, a $1,500 fine, and a three-month licence suspension.
Dangerous Driving, Flee Police
R. v. Z.A.
– Charges withdrawn
Mr. A. was driving on Queen Street East in downtown Toronto. Upset at another motorist who he says prevented him from making a lane change, he spat on the other car’s window. The other car turned out to be an unmarked police cruiser. It stopped and a passenger rolled down a window, produced a police badge and told Mr. A. to pull over. Police say Mr. A. gave them the finger and drove away. In doing so, according to police, he drove dangerously and nearly caused a collision. A witness said that there was nothing wrong with Z.A.’s driving and that police, in carrying out the arrest, used excessive force.
The Crown offered to take a plea to the non-criminal charge of Careless Driving. However, as Z.A. denied improper driving, I counter-offered with a plea to “fail to obey direction of a police officer” (by not pulling over when requested) contrary to s. 134(1) of the Highway Traffic Act for a nominal fine (and three demerit points) and offered to have Z.A. complete a driver improvement course.
RESULT: The Crown accepted my proposal.
R. v. J.P.
– Charge withdrawn
J.P. was accused of hitting a striker as he drove past a picket line at a community college where he was teaching. The Crown had a solid case.
Crown offered to reduce the charge to Careless Driving with a 90-day licence suspension if Mr. P. also made a charitable donation. Mr. P. refused. He did not want the big insurance increase and six demerit points that would result from a Careless Driving conviction. I counter-offered with a plea to the Highway Traffic Act offences of Fail to Yield to Pedestrian, contrary to section 144(7), and Drive Wrong Way – Divided Highway, contrary to section 156(1)(a). As a licence suspension was not possible in connection with either of these charges, I suggested that we vary Mr. P.’s bail conditions to include a no-driving clause and that we enter the plea 90 days later.
RESULT: The Crown accepted my proposal.
R. v. S.P.
– Charge withdrawn
Police were patrolling a plaza parking lot near Canada’s Wonderland. Police said that they saw a speeding Jeep Liberty make a left turn and fishtail near some pedestrians. It appeared out of control as two of its wheels left the road. Police arrested S.P., a 19-year-old aspiring professional athlete, for Dangerous Driving. They detected alcohol on his breath and had him to a roadside screening test. It showed that he had alcohol in his body. As he was a novice driver, police also issued him a ticket for Class G2 driver with BAC over zero. The Crown screening form ruled out any plea bargain.
RESULT: I persuaded the Crown to accept a plea to improper left turn for a fine of $250 and to withdraw the criminal charge after Mr. P. completed 75 hours of volunteer work.