Over the years I’ve represented a lot of clients, significantly number of clients who claim that they’ve been beat up by the police either during the arrest or after the arrest for no reason. Believe it or not, this does happen in Ontario. I’m sure some of those clients weren’t telling the truth, but I know for a fact that others were because the judge found that to be the case. So what happens is in the situation, one of the most common areas that this happens in its impaired driving or DUI cases I find, and I’ve handled a number of those types of cases over the years. So let’s say we can show that the client has sustained a broken nose or broken arm or other things like that. And we’re able to demonstrate that the police did this without cause, they were just police brutality. Well, in this particular case, if you can demonstrate that in court to a balanced probability if you think you can, I brought it, I’ve successfully done this in several cases over the years.
You bring what’s called, you apply to bring a stay at proceedings under the Canadian Charter of Rights and Freedoms for abuse of process under Section seven, for example, your rights have been breached.
It’s a difficult thing to pull off because you have to convince the judge that your clients version of events should be actually believed over the police. It’s your burden to prove that you have to prove that your balance probability and you also have to show that the force use wasn’t just trifling. I mean, if a person received a bruise or two, they’re probably not going to throw out the DUI but if you can show a broken arm or broken nose or some bruising or some serious issues in this regard you can. I had one case that the police didn’t realize it, but they were being filmed in the background by a citizen and that’s how we won it, in face the Crown decided to withdraw that case and I believe the police should have been disciplined in that case, but they weren’t. So it’s a tricky case to pull off. In many cases. I’ll tell the client look there’s five witnesses against you. We don’t have any other witnesses. It’s gonna be a lot of money to defend that. It’s up to you. But are you really going to be believed over five police officers? Well, it depends.
I mean, if it’s one against one, sometimes we can win that case. Sometimes it’s a numbers game if we don’t have extreme evidence it’s of course, you have to need physical injury evidence of.
What did the police say in these cases? Of course, he attacked us first. We’re, you know, subduing improperly using reasonable force, blah, blah, blah. Well, we’ve all seen those videotapes across North America. I have not represented a case that significant but I’ve been involved in some pretty serious cases, including broken arms, broken noses over the years, and I’ve won a few of them. I’ve lost a few of them to which I thought, you know I understand why the judge would do that because of the three witnesses testified against one and the judge couldn’t quite find that the accused version should be believed over the police officer to a balance of probability.
So in this type of charter application, it uses a different burden. The Crown’s not proving the case beyond a reasonable doubt on the accused, its the accused on a pre trial motion, who has to show that the officers are essentially lying to balance of probability and beat them up un-warrantly. Now, if the judge finds that and finds there’s an injury, for example, that’s half significant, then they can stay the proceedings, which means effectively It’s dismissed. It’s as if it’s a win. That’s done under Section what’s called Section 24 (1) of the Charter.
So that’s an interesting, it’s not a defense, but it’s an interesting charter right in Canada, but it’s a difficult thing to pull off even if you are legitimately beaten up by the police mean. Let’s face it, a lot of judges prefer police word unfortunately over the accused in Ontario or Canada. And that’s just the way it is unfortunately, and the burden is essentially switch it’s much easier to win a criminal case at trial with proof beyond a reasonable doubt. To prove the balance of probability that the police beat your client up