WHEN TO TALK AND NOT TO TALK: Voluntariness in the Context of Drinking and Driving

WHEN TO TALK AND NOT TO TALK: Voluntariness in the Context of Drinking and Driving

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

Defending impaired driving and over 80 cases often involves a challenge to the actions of police officers holding up their conduct to the scrutiny of the Charter. One such area is the right to remain silent and to advise from counsel. Technology has yielded digitally recorded real time evidence showing the interaction between the police and the detainee while in the police station. This has a dual affect. All actions of the detainee are captured for all to see at a trial but similarly the officers are constrained in their actions, thereby resisting making any threats or promises to induce statements. When a person enters the “breath room”, the intoxilyzer technician will routinely advise of the right to speak to counsel without delay and will delay the tests if a request is made by an accused to speak to either private or duty counsel. As well, the primary and secondary caution will be given prior to any tests being administered. In the past any conversation between two tests had been regarded as admissible evidence since the detainee has been given the rights and caution and voluntarily chosen to answer the questions. A recent decision of Regina v. Duong , the Honourable Mr. Justice H. Chisvin ruled that the answers provided between the two tests were not voluntarily as Mr. Duong was not re-cautioned after the 1st sample was obtained.

In most Ontario jurisdictions, there is a standard form utilized with questions relating to how, what, when and how long details of alcohol consumption. A further question confirming the accused had been operating the motor vehicle when stopped by the police is in included in the form. At trial, a Crown prosecutor will make application to tender those utterances to either prove the necessary elements of the offence(s), or to rebut “evidence of the contrary”.

Mr. Duong was arrested with impaired operation of a motor vehicle as a result of being involved in an accident. Mr. Duong was not proficient in English. The technician had another officer act as translator prior to taking the first sample. After the first sample was taken, the officer immediately began asking the standard questions in English and without the secondary caution being re-administered. His Honour confirmed that “although there is no obligation to repeat the caution, the failure to do so may, in some circumstances, result in a finding that the answers given were not voluntary.” He then observed that to an accused”…this had the appearance of being a seamless process and objectively could be seen as part of the entire testing procedure.” After being told that the accused must provide two samples of his breath, it flows that an accused would feel compelled to answer such questions that are inevitably inculpatory.

This decision is both consistent and an extension of Regina v. Pomeroy , wherein the Honourable Mr. Justice Casey Hill, sitting as a summary conviction Judge, confirmed that although there is no obligation in law, the failure to do so “… may result in an adverse finding and exclusion of answers” . Even though Justice Hill refused to overturn the trial judge’s finding that the statements were voluntary, there is judicial recognition that an accused must understand the extent of his/her jeopardy during each stage of the investigative process.

Although it may seem polite to answer the officer’s questions, there is no substitute for adhering to the right to remain silent.

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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