If Calgary Police violated your Charter rights during an impaired driving stop-such as unreasonably delaying your right to speak to a lawyer or lacking lawful grounds for an arrest-your defence lawyer can file a Charter Notice. If successful, the judge at the Alberta Court of Justice can exclude the breathalyzer evidence, often resulting in dropped charges.
Being pulled over on Deerfoot Trail or a quiet Calgary street for suspected impaired driving is a highly stressful experience. 🚨 However, the police do not have unlimited power during a traffic stop. Under the Canadian Charter of Rights and Freedoms, every citizen is protected from unreasonable search and seizure and arbitrary detention. If a Calgary Police Service officer cuts corners, ignores proper procedure, or denies you access to legal counsel, they are breaking the law. In the Canadian justice system, evidence gathered illegally can be thrown out of court.
When facing criminal impaired driving charges (whether as a summary conviction or an indictable offence), your strongest defence often has nothing to do with how much alcohol you actually consumed. Instead, it relies on proving that the police breached your constitutional rights. Exposing these errors requires a deep understanding of complex Charter laws and specific procedural rules. Here is how an experienced impaired driving defence lawyer builds a Charter case to protect your freedom.
Step-by-Step Process for Filing a Charter Challenge in Alberta
You cannot simply walk into the Calgary Courts Centre and complain to the judge that the police were rude. 📍 Proving a Charter violation requires a formal, heavily documented legal strategy known as a Voir Dire (a trial within a trial). Here are the steps your law firm will take.
Step 1: Thoroughly Reviewing the Police Disclosure
The first step happens outside the courtroom. Your lawyer will request and analyze the “disclosure” package from the Crown Prosecutor. This includes the arresting officer’s written notes, the breathalyzer calibration logs, and crucially, the police cruiser’s dashcam and bodycam footage. Your lawyer will watch the video minute-by-minute to see exactly when you were detained and when the officer read you your rights.
Step 2: Identifying Specific Charter Breaches
Your lawyer will look for specific violations. 🔍 For example, Section 10(b) of the Charter guarantees your right to retain and instruct legal counsel without delay upon arrest. If the officer kept you waiting in the back of the cruiser for an hour before letting you call a lawyer, or if they listened in on your private phone call with Duty Counsel, your Section 10(b) rights were breached.
Step 3: Filing a Formal Charter Notice
If a breach is identified, your defence lawyer must draft and file a “Notice of Charter Application” with the Alberta Court of Justice and the Crown Prosecutor. This document legally outlines exactly which rights were violated and states that your defence will seek to have the evidence (usually the breathalyzer certificate) excluded under Section 24(2) of the Charter.
Step 4: The Voir Dire Hearing
During your trial in Calgary, the judge will hold a “Voir Dire.” 🏫 This is a mini-trial dedicated solely to the Charter issue. The arresting officer will take the stand, and your lawyer will cross-examine them aggressively about their procedures. If the judge agrees that a serious Charter violation occurred, they will throw out the breath readings. Without the breathalyzer evidence, the Crown usually has no choice but to withdraw the impaired driving charges.
How Much Does a Charter Defence Cost in Calgary?
Fighting a criminal charge on Charter grounds is legally complex and requires extensive preparation. Criminal defence lawyers in Alberta usually charge a “block fee” covering the entire trial process.
- Trial Block Fees: Defending an impaired driving charge at trial, including filing Charter Notices, typically ranges from $7,500 to $15,000 CAD, depending on the seniority of the lawyer.
- Expert Witnesses: In some cases, your lawyer may need to hire a toxicologist or a breathalyzer machine expert to testify about the unreliability of the police equipment. These experts generally cost between $2,000 and $5,000 CAD.
- Cost Certainty: Unlike hourly billing, a block fee ensures you know exactly how much your defence will cost upfront, regardless of how many hours the lawyer spends watching police videos.
Common Charter Breaches in Impaired Driving Cases
Not every mistake by a police officer equals a dismissed case. 📝 Here is a look at the most common, legally recognized Charter breaches.
| Charter Section | The Right Protected | Example of a Police Violation |
|---|---|---|
| Section 8 | Protection from unreasonable search. | Searching your vehicle trunk without a warrant or probable cause. |
| Section 9 | Protection against arbitrary detention. | Pulling you over based solely on your race or without lawful authority. |
| Section 10(b) | Right to counsel without delay. | Refusing to let you call a lawyer until after you take the breath test at the station. |
How Long Does the Trial Process Take?
The justice system moves slowly. From the date of your arrest in Calgary to the day of your trial at the Alberta Court of Justice, it typically takes 8 to 14 months to conclude the matter. A Charter Notice must be formally filed and served to the Crown Prosecutor at least 14 days before the trial begins, though experienced lawyers usually file it much earlier to encourage the Crown to drop the charges before trial.
Frequently Asked Questions (FAQ)
Can the police do random breath testing in Calgary without suspicion?
Yes. Under Canada’s Mandatory Alcohol Screening (MAS) laws, a police officer with an approved screening device can demand a breath sample from any driver they have lawfully pulled over, even if they do not smell alcohol or suspect impairment.
Does a Charter breach mean my case is automatically dismissed?
No. Even if a judge finds a Charter breach, they must apply a legal test under Section 24(2) to decide if excluding the evidence would bring the administration of justice into disrepute. If the breach was minor and the crime severe, the judge might still allow the evidence.
Do I have the right to a lawyer before taking a roadside breath test?
No. The Supreme Court of Canada has ruled that you must comply with a roadside screening demand immediately. You do not have the right to speak to a lawyer before blowing into the handheld roadside device. You only get the right to a lawyer if you are arrested and taken to the station.
What happens if the officer did not read me my Miranda rights?
In Canada, they are called “Charter Rights,” not Miranda rights. If the officer arrests you but fails to read you your right to counsel and your right to remain silent, any statements you make or evidence gathered afterward could be excluded from trial.
Can I just represent myself and claim a Charter breach?
While legally allowed, it is highly discouraged. Charter jurisprudence is incredibly dense, and drafting a proper legal Notice requires specific citations of case law. Judges hold self-represented individuals to the same procedural standards as trained lawyers.
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