Keep it in – Minor Breaches of the Charter are Okay with the Court

Keep it in – Minor Breaches of the Charter are Okay with the Court

On behalf of Neuberger & Partners LLP posted in Drunk Driving on Tuesday February 23, 2010.

There is no doubt that impaired driving is a serious social issue affecting Canadians across Canada. The consequences of a conviction for impaired driving can have long lasting implications for an individual. This is partly why impaired driving cases account for the largest percentage of cases litigated in the Provincial courts. Charter jurisprudence has matured within this context. Consequences for Charter breaches such as the right to speak with counsel of choice, or an unreasonable seizure of breath have traditionally resulted in exclusion of the breath readings with little analysis of s. 24(2).

A recent decision of Mr. Justice Ducharme sitting on an appeal of an acquittal of an Over 80 charge in Regina v. Padavattan, [2007] O.J. 2003, has been heralded by some Crown Attorney as a pivotal decision establishing that a breach of Charter rights does not mean that conscriptive evidence (breath samples) must always be excluded. Indeed this judgement garnered considerable media attention as being noted in a Toronto Star article of July 13, 2007 as “Precedent-setting drunk-driving incident expected to have major impact on other cases.”

Mr. Padavattan had pulled up to a McDonald’s drive through and appeared drunk to the cashier. Police were called and when Mr. Padavattan was stopped, police made a demand under s. 254(2) of the Criminal Code for a roadside breath sample. The officer who had formed the suspicion that Mr. Padavattan had previously consumed alcohol called for another officer to attend with the breath machine. At trial the defence brought an Application to exclude the results alleging an unreasonable seizure of the accused’s breath. The second officer did not testify and the issue was whether the Crown was required to prove that the officer who physically administers the test must have the reasonable suspicion. The trial court found that since there was no evidence that the administering officer had a reasonable suspicion, the accused’s right was violated and the readings were excluded. The Crown appealed.

The routine exclusion of breath samples has generally be based on the view that the Supreme Court of Canada has articulated an automatic rule of exclusion for conscriptive evidence that impacts trial fairness, Regina v. Stillman (1997), 113 C.C.C. (3d) (S.C.C.). However, in recent years many lower court decisions such as Regina v. Richfield (2004), 178 C.C.C. (3d) (Ont. C.A.) have found that exclusion of evidence, as a general rule, may provide a disproportionate remedy. Justice Ducharme wrote that “Given the public acceptance of the use of breath samples to fight drinking and driving cases …. the exclusion of the evidence would have a negative impact on the reputation of the administration of justice.” This was because the breach was of a very minor nature (p. 29).

Crown Attorneys have however seized upon this language to argue that “technical” breaches ought not to result in exclusion of evidence. However, rather than resetting the course of Charter jurisprudence in impaired driving cases, this decision does little more than remind courts that the Collins factors must be examined when determining whether exclusion of evidence is an appropriate remedy. Further, Justice Ducharme found that as long as the investigating officer had a reasonable suspicion, the requirements of s. 254(2) were met and that there was no Charter breach, but if his analysis was wrong and there was a violation of s. 8 of the Charter, the evidence ought not to be excluded. The must discussed s. 24(2) analysis thus occurs within the context of a hypothetical breach on facts that would not and should not constitute a Charter violation.

Post Padavattan, Provincial trial courts are still excluding evidence when Charter violations are found. In impaired driving cases, the focus is typically on whether or not there has been a violation of the Charter rights of an accused. Although going forward closer attention may be paid to the factors under s. 24(2), the vast majority of Charter violations tend to revolve around serious fundamental issues that can never been characterized as merely “technical” and will continue to result in exclusion of conscriptive evidence.

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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