If York Regional Police violate your rights during an “Over 80” arrest in Markham-such as denying you a phone call to a lawyer or waiting too long to administer a breathalyzer-your defence lawyer can file a Charter Application. Under Section 24(2), the judge can exclude the breath readings, often leading to a complete dismissal of the criminal charges.
Being arrested for impaired driving or blowing “Over 80” in Markham feels like an open-and-shut case to most people. If the machine says you blew over the legal limit, how can you possibly fight it? The reality is that an “Over 80” charge is highly technical, and the Crown Attorney must prove not only that you were intoxicated, but that the police gathered their evidence legally.
In Canada, police officers hold immense power, but they are strictly governed by the Canadian Charter of Rights and Freedoms. When the York Regional Police conduct an impaired driving investigation on Highway 407 or local streets, they must follow rigorous constitutional protocols. If an officer makes a procedural mistake, infringes on your right to counsel, or detains you unreasonably, that evidence is tainted.
A skilled criminal defence lawyer does not just look at the final breathalyzer number; they look at every single second of the interaction leading up to it. Here is how a law firm uses Charter breaches to dismantle an “Over 80” charge at the Ontario Court of Justice.
Step-by-Step Process to Prove a Charter Breach
Proving a police violation requires a deep understanding of constitutional law. Your defence lawyer will initiate a specialized legal process to challenge the admissibility of the Crown’s evidence.
Step 1: Analyzing the Police Disclosure
The first step is for your lawyer to obtain full disclosure from the Crown Attorney in Newmarket. This includes the arresting officer’s handwritten notes, body-worn camera footage, and the audio/video recordings from the breathalyzer room at the York Regional Police station. Your lawyer will review this evidence frame-by-frame to establish an exact timeline of your arrest.
Step 2: Identifying the Constitutional Violation
Your lawyer will look for specific breaches. The two most common in “Over 80” cases are:
Section 10(b) Right to Counsel: Upon arrest, the police must immediately inform you of your right to speak to a lawyer and facilitate a private phone call. If they delayed this call or listened in on your conversation, your rights were breached.
Section 8 Unreasonable Search: The police must administer the official breath test “as soon as practicable” (usually within two hours). Unexplained delays at the police station can render the breath test an unreasonable search.
Step 3: Filing a Notice of Constitutional Question
If a breach is identified, your lawyer will formally notify the Crown and the Attorney General by filing a Notice of Constitutional Question. This document details exactly how the York Regional Police violated your Charter rights and formally requests a remedy under the law.
Step 4: Conducting a Voir Dire Hearing
At your trial at the Ontario Court of Justice, your lawyer will request a “Voir Dire”-essentially a trial within a trial. The judge will hear arguments strictly about the police conduct. If the judge agrees that a serious Charter breach occurred, they will apply Section 24(2) of the Charter to exclude the breathalyzer evidence. Without breath readings, the Crown usually has no choice but to withdraw the “Over 80” charge.
How Much Does it Cost in Markham?
Running a Charter defence is legally complex and requires your case to proceed all the way to a trial, which impacts legal fees.
| Full Trial Block Fee | Because Charter applications require cross-examining police officers in front of a judge, you must pay a full trial block fee, generally ranging from $8,000 to $15,000 CAD. |
| Expert Witnesses | If the Charter argument involves the scientific timing of alcohol absorption, your lawyer may hire a forensic toxicologist, costing an additional $2,000 to $5,000 CAD. |
| Crown Negotiations | Sometimes, simply filing a strong Charter notice convinces the Crown to offer a plea to a lesser traffic ticket (Careless Driving) without needing a costly trial. |
How Long Does the Process Take?
Charter defences require massive amounts of preparation and court time. From the date of your arrest in Markham, it typically takes 4 to 6 months just to receive and review all the video disclosure. Once the Notice of Constitutional Question is filed, securing a trial date at the busy Newmarket Courthouse will push the timeline to 12 to 18 months before a judge officially rules on the police breach.
Frequently Asked Questions (FAQ)
Does Section 10(b) apply at the roadside?
No, there is a specific legal exception for roadside screening devices (the small breathalyzer you blow into through your window). You do not have the right to call a lawyer before taking the roadside test. However, you absolutely have the right to counsel before taking the official evidentiary breathalyzer at the police station.
Will a minor spelling mistake in the police notes ruin their case?
Generally, no. Minor clerical errors on a police report do not equal a Charter breach. The courts look for substantial violations of your constitutional rights, such as denying legal counsel or detaining you without reasonable suspicion.
Does the judge have to throw out the evidence if a breach occurred?
No. Under Section 24(2) of the Charter, the judge must apply a legal test (the Grant test) to determine if admitting the evidence would bring the administration of justice into disrepute. If the police breach was minor and made in good faith, the judge might still allow the breath readings.
Can I use my own dashcam footage to prove a breach?
Absolutely. If your personal dashcam recorded audio of the police officer making an unlawful threat or failing to read you your rights properly in Markham, your lawyer will submit this as highly valuable evidence during the Voir Dire.
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