If Toronto Police fail to read your right to counsel without delay upon arrest, it is a severe violation of Section 10(b) of the Canadian Charter of Rights and Freedoms. Your criminal defence lawyer can file a Charter application to have the judge exclude the Intoxilyzer breathalyzer results from evidence, which often leads to the Over 80 charge being completely dismissed.
Understanding Charter Rights and Impaired Driving in Ontario
Being arrested for an Over 80 or impaired driving charge in Toronto is a terrifying experience, and in the chaos of the moment, police officers sometimes make critical procedural mistakes 😨. In Canada, you are protected by the Canadian Charter of Rights and Freedoms. When the state takes away your liberty by arresting you, they have strict constitutional duties they must follow immediately .
The most important of these is Section 10(b) of the Charter, which guarantees your right to retain and instruct legal counsel without delay 🧐. If the police forget to read you your rights, read them incorrectly, or delay giving you access to a telephone at the station, they have breached your constitutional rights. In the Ontario Court of Justice, proving this breach is one of the most effective ways to defend against an impaired driving charge .
Step-by-Step Process in Toronto
Fighting an Over 80 charge based on a Charter breach is a highly technical legal process 📍. Whether you were arrested by the Toronto Police Service or the OPP on a 400-series highway, your lawyer will meticulously dissect the timeline of your arrest .
Step 1: Document Every Detail of the Arrest
As soon as you are released from the police station, write down a detailed timeline of everything you remember 📝. Note exactly when you were pulled over, what time the officer placed you in handcuffs, and precisely when they offered you a phone call. These minute-by-minute details are the foundation of your legal defence .
Step 2: Obtain and Review Crown Disclosure
Your Toronto criminal defence lawyer will formally request the Crown disclosure, which includes the arresting officer’s notes and the police cruiser dashboard camera footage 📁. They will look for discrepancies between the officer’s written timeline and the video evidence. If the video shows you sitting in the back of the cruiser for 45 minutes before being read your rights, a clear Charter breach has occurred .
Step 3: File a Formal Charter Application
If your rights were violated, your law firm will draft and file a Notice of Application under the Charter of Rights and Freedoms 💭. This complex legal document is submitted to the Ontario Court of Justice and the Crown Attorney well before your trial date. It formally outlines how the police breached Section 10(b) and demands a remedy under Section 24(2) .
Step 4: The Voir Dire (Trial Within a Trial)
On your trial day, the judge will hold a “voir dire,” which is essentially a mini-trial to determine if your rights were breached 👨⚕️. Your lawyer will cross-examine the arresting officer about their actions. If the judge agrees that a breach occurred, they can exclude the breath samples from the trial entirely, meaning the Crown will have no scientific evidence to prove you were Over 80 .
How Much Does it Cost in Toronto?
Defending an impaired driving charge at trial requires substantial legal work, and understanding the financial commitment is crucial 💵.
| Legal Service | Estimated Cost in CAD | What is Included? |
|---|---|---|
| Pre-Trial Review & Negotiations | $3,500 – $5,000 | Disclosure review, all initial court appearances, and Crown meetings. |
| Drafting the Charter Application | $2,000 – $4,000 | Legal research, drafting the formal Notice, and filing with the court. |
| Full Trial & Voir Dire | $5,000 – $10,000+ | Cross-examining police officers and arguing the case before the judge. |
- Block Fees: Reputable law firms in Toronto use block fees, so you will usually be quoted a total flat rate (e.g., $10,000 to $15,000 CAD) for a complete trial involving a Charter application.
- Cost of Losing: While a lawyer is an investment, losing means a mandatory minimum $1,000 CAD fine, a one-year driving prohibition, thousands in auto insurance increases, and a permanent criminal record.
How Long Does the Process Take?
Raising a Charter defence means your case will proceed to a full trial ⌛. The initial review of police video and notes usually takes 3 to 5 months. Due to current backlogs in the Ontario Court of Justice system in Toronto, scheduling a full trial date with a voir dire generally takes between 12 to 18 months from the date of your arrest .
Frequently Asked Questions (FAQ)
What if the police read me my rights, but I was too intoxicated to understand?
If you were so heavily intoxicated or experiencing a medical episode that you could not legally comprehend your right to counsel, the police have a duty to wait until you are sober enough to understand, or explain it in simpler terms. A failure to do so can constitute a Charter breach.
Does a Charter breach mean the charges are automatically dropped?
No, not automatically. The judge must perform a legal test (the Grant test) under Section 24(2) of the Charter to decide if admitting the evidence would bring the administration of justice into disrepute. If they decide it would, the evidence is excluded, which usually forces the Crown to drop the case.
What if they delayed my phone call to a lawyer for hours?
Police must facilitate your right to counsel “without delay.” If they make you sit in a holding cell for three hours before letting you use the phone, without a valid safety or logistical reason, your Section 10(b) rights have likely been violated.
Can I argue this if I failed the roadside test?
Yes. The roadside screening device (ASD) is just a tool to give the officer grounds to arrest you. Your right to counsel kicks in the moment you are arrested. If the subsequent rights procedure is flawed, the official Intoxilyzer results at the station can be thrown out.
Leave a Reply