Defence Strategies

Defence Strategies

Many people often believe that because they have been charged with a drinking and driving related offence that they will ultimately be convicted of the charges and lose their driving privileges. This in not necessarily the case and there are several “typical” defence strategies that are considered on a case-by-case basis:

The Carter Defence

The Carter Defence is based on the assumption that the breath analyzer was not working properly and that there is a possibility that the resulting reading was incorrect. Typically this defence is used when the charged individual is certain that he/she did not consume the amount of alcohol necessary give rise to the breath results achieved.

There is often documented evidence available to assist with this defence strategy. The accused may have a credit card receipt or a bar bill that indicates the amount of alcohol purchased and at what time. In addition, independent witnesses such as a friend or business associate who was present at the time of drinking or the bartender or wait staff can provide independent confirmation of your drinking pattern which will support the Carter Defence strategy.

We at Neuberger & Partners LLP believe in spending a considerable amount of time with potential witnesses, training them in the techniques for being an effective witness. We also employ a unique strategy for preparing the evidence and subjecting the potential witness to mock examinations and cross examinations.

The “Last Drink Defence”

This defence, also referred to as the “Bolus Drinking Defence”, is based on the assumption that the accused individual was stopped by the police a few minutes after “guzzling” their last drink. These circumstances can result in the alcohol not being fully absorbed in the accused body at the time the breath samples were taken.

Rights to Counsel Defence

Occasionally the police do make mistakes and they do not provide the accused with their full array of rights to counsel without delay upon arrest or detention. The authorities are required to ask the accused if there is a particular lawyer he/she wishes to speak with, and they should also provide a telephone and privacy to the accused, depending on the circumstances of the case.

In addition to the common defence strategies, there are often other legal strategies that can be used to get an acquittal. These legal strategies include, but not limited to the following:

Documentation

Did the Police provide you with the proper documentation? Was it complete within the requirements of the law? Was there a Certificate of Breath Technician provided to you? Is any of this paperwork inadmissible in court for any reason?

Breath Sample Analyzer

When was the machine last calibrated? Was it in proper working order? Did the police have “reasonable suspicion” to request a breath sample? How much time past from the time the officer stopped you and the time that you provided the breath sample? Was the individual who administered the test properly certified to do so?

Technical Defences and Charter based Challenges to the Evidence

How much time has past since you were charged? Are you receiving their “day in court” in the timely fashion, as required by law? Was there an abuse of process? Did the officer have “reasonable and probable grounds” for stopping and arresting you? Was there an unreasonable search and seizure of the yourself and/or your vehicle? Did the officer allow counsel of choice?

People often confuse “technicalities” with loop-holes in the law. However, nothing could be further from the truth. These “technicalities” are hallmarks of a well functioning democratic society. Our Charter of Rights and Freedoms provides a rich backdrop against which we can assess police conduct in dealing with the everyday citizen. It is important to ensure that the rights of an accused are fully protected. Often the police intentionally or unintentionally may unlawfully interfere with the rights of an individual. These violations can, if properly argued, result in exclusion of incriminating evidence which will contribute to a person be found not guilty of the offence or offences.

General Defences

  • you were not impaired
  • you have a medical reason for appearing impaired

For detailed no-charge 30 minute consultation, please contact our office.

CONTACT INFORMATION

1392 Eglinton Avenue West
Toronto, ON M6C 2E4
Fax (416) 364-3271

COVID-19 UPDATE

On behalf of Neuberger & Partners LLP posted in COVID-19 on Tuesday March 17, 2020.

At Neuberger and Partners, we are monitoring the COVID-19 situation and have implemented safety measures to ensure the safety of our clients and staff. Our priority is and always will be the health, well-being and safety of our staff, clients and colleagues.

We have put in place various measures to prevent and minimize the impact of COVID-19:

  • In addition to standard hand-washing habits, our staff are washing hands before and after every client interaction;
  • All individuals entering our office will be required to use our hand sanitizer to ensure the safety of our other clients and staff;
  • Regular disinfecting of our offices, public areas, meeting rooms and board rooms as well as increasing the frequency of disinfection of higher-traffic surface areas;
  • If a lawyer or client who has a scheduled meeting is feeling unwell, they will be strongly encouraged to stay home;
  • For the time being, we will avoid greeting clients and colleagues with our usual handshakes;
  • We will make every effort to ensure our firm will be stocked up with extra tissue and alcohol-based hand sanitizer; and
  • We will monitor and stay informed from the Government of Canada and World Health Organization for facts as they become available. We will ensure all staff and team members are educated on symptoms and are well informed on prevention and best practices.

Frequently Asked Questions:

Will the firm still run if there are closures?

  • We are committed to assisting our clients. We remain open to assist our clients at this time (following aforementioned standards for health and safety). For clients who wish to communicate with our firm virtually, we have the technology for virtual meetings and are able to respond to the needs of our clients in a manner best to protect our staff and clients’ health.

Are staff and lawyers set up to work virtually?

  • All lawyers and staff are set up to work virtually and continue to assist clients and one another remotely. All lawyers are available via telephone, email and virtual video conferencing.

What is the court situation? How will we deal with court closures?

  • At this time, the Superior Court of Justice is closed from March 17, 2020 to June 1, 2020 – unless a judge orders otherwise.
    If you have a March matter, your matter will be postponed to June 2, 2020.
    April matters will be postponed to June 3, 2020 and May matters will be pushed to June 4, 2020.
  • Similarly, the Ontario Court of Justice will be closed for 10 weeks for all out of custody matters in criminal practice court. In custody matters will still be addressed. It is unclear if out of custody matters such as trials or preliminary hearings will continue since the courts have left this decision to the discretion of the judges. However, Bail courts will remain open for the time being.
  • The Court of Appeal for Ontario has suspended all scheduled appeals until April 3, 2020. But we are still able to file materials and apply for urgent appeals to be heard.
  • We will advise clients by email of their next Court date.

How can payments be made?

  • Payments can be made via e-transfer and visa payments can be made over the phone.

If I have to deliver something to my lawyer, how shall I go about it?

  • For clients who wish to drop off documents but do not wish to come in contact with any one at the firm, you are encouraged to drop them off in our mail slot in front of our office.

We will be open and available for any questions, comments or concerns. Please call (416) 364-3111 for any further information.

Stay safe and healthy,

Joseph Neuberger