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Criminal & DUI Lawyers, including:
Three Former Crown Prosecutors

Right To Counsel Charter Application

Under our Canadian Charter of Rights and Freedoms, one of the most fundamental rights we have is located under Section 10b. This is the right to retain and instruct counsel without delay. This leads to winning many, many criminal trials when you bring an application that your rights have been breached and I’m going to give you an example.

In any DUI or over 80 prosecution, when you’re arrested, the police immediately have to read you that you have a right to retain, instruct counsel and give you an opportunity to afford your lawyer of choice by calling them at the police station and sometimes at the roadside. And what happens is they also have to read you a 1-800 number, which is dedicated government duty counsel. So, for example, if your lawyer choice is not available, you then default to do to counsel gives you legal advice. 

This has to be all done in a timely way, in a proper way and done before the breath samples are taken. So, for example, you get back to the police station and you say, “look, I want to phone Mike Kruse. Well they attempt to phone Mike Kruse but the problem is he’s not available.” Now, the police have to say the right things at the right time and they often make mistakes. They might for example say, “well, we left a message for Mr. Kruse and he hasn’t phoned. Why don’t you call duty counsel?” You would win that case. They’d have to wait an appropriate length of time to get back for Mr. Kruse, to get back to you, for myself, get back to you. 

So, it’s very fruitful area for winning these cases. We, it’s probably one of the most common defence. There’s literally hundreds of different ways your rights to counsel can be breached and it’s a very complicated area of law, frankly. With literally thousands of decisions across Canada. 

Our firm has consistently won in this area. We recognize the issues. It’s a very technical and the police literally pulled their hair up because it’s very difficult for them to pull this off properly. They have, they have to provide you with the right information. They have to assist you with the phone calls– that’s called their implementational duty. And they have a duty to refrain from taking those breath samples until you’ve properly got your proper legal advice.

Just to give you another example, last year, I had a case where the police, they were told a lawyer that my client wanted to phone. The police phoned the lawyer, and they didn’t let it ring long enough. The voicemail didn’t come on. They should have left a voicemail. We delivered an affidavit from the lawyer that he had a voicemail and he didn’t receive any call. So, then the police basically defaulted the duty counsel and put my client on the line with duty counsel. Well, we easily won that case. 

I can give you again literally hundreds of examples including hundreds of examples our firm has won over the year. The exclusion of the breath samples under Section 10b and 24(2) of the Charter, is one of the most powerful defences in a DUI case. And it’s a very consistently winning defence. Once your lawyer has the, the disclosure, he’s going to review it with you and let you know if the defence is viable and whether you should bring it in trial. And if it is viable, believe me, you’re going to have a reasonably good chance of winning your DUI case.

Thank you for joining me today.

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