The most frequently violated rights of accused persons under the Canadian Charter of Rights and Freedoms in drinking and driving cases are summarized below. I would be pleased to discuss with you whether your Charter rights were breached.
Click here to read the full text of the Charter.
Arbitrary Detention and Arrest (Section 9 of the Charter)
It is a serious Charter violation if the police did not have sufficient grounds to arrest or detain a person. Arbitrary arrests are serious because they result in people being handcuffed, transported to the police station in custody, detention in a jail cell while awaiting breath testing, automatic license suspensions, and the requirement to give breath samples. Arbitrary arrests may occur where:
• The police make an arrest based on an improperly administered roadside breath machine (e.g., where residual mouth alcohol is present due to recent consumption).
• The police prematurely conclude that someone is impaired based on supposed physical indicia of impairment, without the assistance of a roadside breath testing machine.
• A vehicle is stopped for a purpose unrelated to road safety.
Unreasonable Search and Seizure (Section 8 of the Charter)
Everyone has the right to be secure against unreasonable search or seizure. Absent a law to the contrary, individuals are free to do as they please. By contrast, the police may act only to the extent that they are empowered to do so by law. The state can only force someone to submit to breath testing (i.e., a bodily search) if the police are acting in accordance with the law. Illegal searches may happen where:
• Roadside breath testing is done without a reasonable suspicion that the driver has alcohol in his or her body.
• The police demand that a person provide Breathalyzer samples at the police station without reasonable and probable grounds for an arrest.
• The police do not demand breath samples in a timely manner.
• The police do not use the proper wording for demanding breath samples.
Right to Counsel (Section 10(b) of the Charter)
Everyone has the right on arrest or detention to retain and instruct counsel of choice without delay and to be informed of that right by the police. The right to counsel is important because people who are arrested need immediate advice on how to regain their liberty and to avoid self-incrimination. The right to counsel may be violated where:
• The police fail to advise a detainee of his or her to counsel.
• A person is not provided with access to his or her counsel of choice.
• A person is not permitted to consult counsel before he or she is required to submit to breath testing.
• The chance to speak with a lawyer is improperly delayed.
Life, Liberty, and Security of the Person (Section 7 of the Charter)
Section 7 of the Charter may be violated where:
• The accused’s right to silence was breached.
• Excessive physical force was used by the police.
• A person who is under arrest is detained for an excessive period of time.
• A person arrested for drinking and driving is strip searched without justification.
Lost Evidence (Section 7 and 11(d) of the Charter)
Everyone has the right to make full answer and defence to the charges against them, and to have a fair trial. As a result, if important evidence is lost or destroyed then the charges may be dismissed. This is one reason why it is important to pursue disclosure of all evidence.
An Unreasonably Delayed Trial (Section 11(b) of the Charter)
Everyone has the right to a trial within a reasonable amount of time. If takes too long to get a case to get to trial the charge may be dismissed. This may happen where court schedules are too busy, witnesses are unavailable, or there are lengthy delays in the Crown disclosing all the evidence.
If you need more information on drinking and driving, contact Ottawa criminal defence lawyer Brett McGarry today. I would be pleased to help you understand your charges and defences. I offer free half-hour consultations to anybody facing drinking and driving charges in Ottawa and Eastern Ontario.