If Halifax police violate your rights under the Charter of Rights and Freedoms, your lawyer can apply to have the breathalyzer results excluded. Sections 8 (unreasonable search) and 10(b) (right to counsel) are the most common defences used to win impaired driving cases.
Getting pulled over and charged with impaired driving in Nova Scotia is incredibly frightening. However, being charged does not mean you are automatically guilty. The police must follow strict rules when gathering evidence against you.
The Canadian Charter of Rights and Freedoms protects you from unfair police conduct. Whether you were stopped by the Halifax Regional Police in Dartmouth or the RCMP in Sackville, a violation of your Charter rights can completely dismantle the Crown’s case against you.
Step-by-Step Process for a Charter Defence in Halifax
Running a successful Charter defence requires strategic planning. It is a highly technical legal argument usually handled by an experienced criminal defence lawyer. Here is how the process generally unfolds at the Halifax Provincial Court.
Step 1: Analyzing the Disclosure Package
Your lawyer will carefully read the police notes, watch the booking room videos, and listen to any audio recordings. They are looking for mistakes, such as officers delaying your right to call a lawyer or demanding a breath sample without proper legal grounds.
Step 2: Filing the Notice of Charter Application
If a rights violation is found, your lawyer will draft and file a formal Charter Notice with the court and the Crown prosecutor. This document explains exactly which rights were breached and what evidence should be excluded, which is usually the breath readings.
Step 3: Conducting the Voir Dire
A voir dire is a trial within a trial. The judge will hear evidence specifically about police conduct. The arresting officers will take the stand and your lawyer will cross-examine them to highlight their mistakes. If the judge agrees your rights were violated, the evidence may be thrown out, often resulting in a Not Guilty verdict.
Common Charter Violations in Impaired Driving Cases
Police officers must balance public safety with your constitutional rights. ⚔ When they make errors, it can lead to a successful defence. Here is a breakdown of the most frequent violations.
| Section 8 (Search and Seizure) | Police must have specific legal grounds to demand a breath or blood sample. If they demand a sample purely on a hunch, without reasonable suspicion or without using an approved screening device correctly, it is an illegal search. |
| Section 10(a) (Right to be Informed) | Upon arrest, officers must immediately tell you why you are being detained. A significant delay in explaining the charges can be a rights violation. |
| Section 10(b) (Right to Counsel) | You must be given a reasonable opportunity to speak with a lawyer in private. If police listen to your call, or rush you off the phone, your right to counsel has been breached. |
How Much Does a Charter Defence Cost in Halifax?
Defending an impaired driving charge at trial involves significant preparation. While you cannot put a price on keeping your freedom and your driver’s licence, you should be prepared for the financial investment.
- Lawyer Fees: Taking a case to trial with a Charter application generally costs between $7,000 and $15,000 CAD. Complex cases involving toxicologists may cost more.
- Court Filing Fees: Filing motions is generally part of the criminal court process and does not incur separate filing fees for the accused.
- Expert Witnesses: If your defence requires a forensic toxicologist or a breathalyzer expert, expect to pay an additional $2,000 to $5,000 CAD.
How Long Does the Process Take?
A full trial involving Charter arguments is rarely resolved quickly. In Halifax, it typically takes 12 to 18 months from the date of your arrest to finish the trial. However, if the Crown notices a massive flaw in the police evidence early on, they may drop the charges much sooner.
Frequently Asked Questions (FAQ)
If police didn’t read me my rights, is my case automatically dismissed?
Not automatically. Your lawyer must prove to the judge that the breach was serious enough that admitting the evidence would bring the administration of justice into disrepute.
Can I represent myself in a Charter application?
While it is possible, it is highly unadvisable. Charter law is extremely complex and requires a deep understanding of case law and the rules of evidence.
Does a Charter violation erase my roadside suspension?
The immediate licence suspension from the Registry of Motor Vehicles is separate from the criminal charge. However, winning your trial can allow you to reinstate your driving privileges sooner.
What is a section 10(b) privacy breach?
If you call your lawyer from the police station and an officer stays in the room where they can hear your conversation, your right to privacy has been violated.
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