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Home > Successes > Fight Traffic Tickets Successes
Successes Fighting TicketsA few examples of how the legal experts at XCOPPER have successfully protected the good driving record of drivers
Driving while not insured At trial, the prosecution called as its principal witness a representative from the named insurer who arrived with an inch-thick legal size file folder. She was sworn in as the third witness for prosecution, after jurisdiction, identification, and the balance of ingredient facts were established through driver 2 and the police officer, including the allowed statement from defendant that he was indeed insured on the offence date. XCOPPER, the agent for defendant, objected to the use of the notes in the file by the witness on two grounds: that prosecution had failed to serve defendant with its requisite notice to do so, and that in the process it became apparent that the witness had never any direct contact with defendant, and had only personally spoken with the officer three days earlier, and consequently secured the information in the file form her computer only the day before trial. The trial Judge had no option but to concur with the XCOPPER agent that said evidence was inadmissible on either ground, and indeed prosecution was inclined to concur and thereby closed its case. The court, in considering whether the accused was indeed insured at the time of the accident had only the accused's own statement to rely on, wherein he indicated emphatically that a policy was in effect. The court accordingly could not require a defense and the charge was dismissed. Failing to stop at a red light The allegations were that defendant was operating a 1997 Buick with two passengers at a high rate of speed on a highway, failed to stop for a solid red light, struck the rear of another motor vehicle lawfully in the intersection, which consequently struck a second vehicle and then a concrete pole support. defendant's vehicle continued without stopping to render assistance or furnish the required information to others involved, and was located by the police a short time later in a parking lot, where three persons were inspecting the damage. The police invited statements from each, but learned only that one of the persons, defendant, was the registered owner. The charges were laid two weeks later, after Police contacted defendant's Insurance company and learned of statements made to the adjuster (of Defense) shortly after the accident, which inculpated him as being the driver, and as having disobeyed a red light. The adjuster was subpoenaed to appear and give evidence at trial, and an abridged copy of his anticipated statement was included in disclosure for the defense. XCOPPER appeared at trial for defendant, and prior to arraignment, and in the presence of the police and the Prosecution, asked the insurance adjuster if it was his understanding that his function was largely, if not exclusively to collect information from, among others, the insurance company's client (Defense, in this case), and to pass that information on to the insurance company's legal department for any of a series of reasons, not the least of which is to represent defendant's interests in any subsequent civil issues. The adjuster agreed completely. At this point it became clear to the Prosecution that the entirety of the adjustor's evidence was protected by solicitor-client privilege and could not therefore be compelled, absent which, of course, she could not prove defendant was the driver at the time of the accident, and accordingly withdrew all charges against defendant. Disobeying a stop sign It was alleged that on a Sunday in July defendant was coming home from a sporting event carrying three passengers and approaching an intersection with which he had only some familiarity. Disclosure indicated the prosecution would be relying on three independent witnesses, who would likely be held by the court as not having any realistic interest in the outcome of the trial, and were also unrelated to each other. prosecution also had the driver of the other vehicle available for testimony at trial and a cautioned statement from defendant taken by the officer at the scene, which if admitted into evidence would both establish defendant as the driver at the time of the accident, and also confirm that defendant did not recall a stop sign at the intersection. XCOPPER was retained shortly after a trial date was received by defendant, and upon receipt of disclosure advised defendant it would be unlikely he would be asked by XCOPPER to give evidence, as defendant's version of events, even if believed, did not qualify as a defense. It was defendant's instruction to XCOPPER to proceed to trial notwithstanding. As indicated by XCOPPER, there was no lesser offence which was agreeable to both prosecution and defense, and, all witnesses present, the charge was read to the accused. Prior to entering a plea, XCOPPER asked to examine the Certificate of Offence, as one was not included in the disclosure package. XCOPPER made the discovery that the date stamped on the face of the certificate as the date in which it was filed with the court, was the date of the Friday, two days before the Sunday's date of the alleged offence. This was pointed out to the trial Judge and accordingly the certificate was quashed as a nullity. Driving while suspended XCOPPER, (also retained on the original criminal charge, for which ultimately an acquittal was entereDefense) was contacted and retained on this matter. At trial, the officer indicated in his evidence-in-chief, his reasons for stopping defendant, as outlined above, and consequent to laying the charge, made application to the Ministry of Transportation for documents in support of this position. That document, being a certified copy of the 90 day Administrative Driver License Suspension (ADLS) notice, of which a copy was served on defendant when he was charged with the Sec. 253 offence, along with the appropriate cover letter under the hand and seal of the Registrar of Motor Vehicles, was entered as the only exhibit relied upon by the prosecution. In cross examination XCOPPER inspected the exhibit, and as an “X” appeared in the box marked “ Certificate Attached” under Sec 5 of the ADLS document, asked the officer only if he requested of the ministry all of the documents germane to this case and if exhibit one constitutes everything provided. He answered “Yes” to both. XCOPPER did not call evidence for the defense. XCOPPER argued that this is a situation completely unlike a suspension arising from an unpaid fine, where it is straightforward and academic, if applicable, for the defense to prove the suspension wasn't in effect by calling evidence that the fine (or fines) in question were paid prior to the offence date. To require prosecution to prove beyond its ministry records that the fine was not paid is both unreasonable, and by practical standards, impossible. Here, prosecution is offering evidence which in essence, has officer A, being the officer at trial having reasonable and probable grounds (R&PG) to believe that sometime earlier Officer B had R&PG to believe that defendant provided at least two samples of his breath into an approved instrument, and in excess of 80 mgs %, in compliance to a demand from Officer C. The results of that testing are recorded in a document entitled “Certificate of a Qualified Technician” which was acknowledged as being referred to as having been attached, at least once upon a time, to Exhibit One. XCOPPER further argued that, just as it is impossible in the unpaid fine example for prosecution to prove defendant did not pay the fine(s) prior to the offence date, it is equally inappropriate to require XCOPPER to prove that defendant, at any time did not, in fact, provide samples in excess of 80mgs. That is entirely a Prosecution obligation, and, as it is the absolute foundation of the suspension, it is integral to the Prosecution's establishing its prima facie case. The coup de grace to prosecution's case was the point that the certificate in question was at one point attached to the suspension notice, but at trial was most conspicuous in its absence. XCOPPER persuaded the court it was obliged to draw an adverse inference from that most telling hole in the prosecution, and that prosecution had not therefore met its burden of proof. Accordingly, defendant was acquitted. Driving under influence D was the designated driver of his group of friends, although he does not deny consuming alcohol in some quantity. His vehicle entered a R.I.D.E. (Reduce Impaired Driving Everywhere) program, and was promptly required to provide a breath sample into an Approved Screening Device (AS Defense). defendant provided a sample of breath into the “Drager Alcotest 7410 GLC”, which indicated numerically a BAC of 24 mgs %, and was promptly charged with being in breach of regulation 340/94 of the HTA. At trial, the prosecution relied only on the testimony of the officer, who indicated that consequent to smelling alcohol on the breath of defendant, coupled with certain admissions from defendant, he formed a reasonable suspicion that defendant had alcohol in his person in some quantity, and thereby made the ASD demand. He indicated that defendant was completely co-operative and demonstrated no signs of impairment whatsoever; while his three passengers were thoroughly intoxicated. Cross- examination revealed the following: 1) that the officer was also a qualified Breathalyzer/Intoxilyzer technician, frequently relied upon to calibrate screening devices, during which process there is in fact no way to calibrate the device in the operative range of 0mgs % to 49mgs %. 2) that he did not ask defendant how long it had been since he'd last consumed alcohol, despite knowing that the manufacturer warns that if alcohol was consumed in last 15 minutes, the device would also measure mouth alcohol, thereby giving an unreliably high reading, and 3) that only one test was performed on defendant and that the charge was laid exclusively from its results. XCOPPER, acting as agent for defendant, and relying at least in part, on R vs. Milne and R vs. Coutts , argued as follows: 1) That the Drager Alcotest 7410 GLC does appear on the Governor General-In-Council's List of Approved Roadside Screening Devices, but as such, serves only the function of an investigative tool, to determine if the police officer has the subsequent authority to make a demand on the accused to provide samples into an approved instrument as set out in section 254(3) of the Criminal Code of Canada .. 2) That the officer, having taken only one test disallows prosecution its presumption of accuracy as, at best, the approved instrument, will measure one's BAC from a ratio in the breath alcohol, its accuracy is held as reliable only if two samples, taken as required, are within 20 mgs% of each other. If the second sample falls outside 20 mgs %, a third sample is required to restore the presumption. 3) The accuracy is further questionable as the screening device is unable to be calibrated below 50 mgs %. The officer at best, can only claim he then had reasonable and probable grounds to believe the offense was committed. The section, however, has no arrest provision like 254 (3) of the Criminal Code for the purpose of securing the actual trial evidence. Consequently we are left with the fact that prosecution wishes to rely of the results of one roadside screening test to qualify as enough evidence to require an answer to the charge. In Milne and Coutts , however, the Supreme Court of Canada ruled that roadside screening devices are to be held as a reasonable breach of one's right to protection against self inculpation, arbitrary detention, and right to counsel (of choice), only if it is of no evidentiary value at trial. The court agreed with XCOPPER that the statute, though well intentioned, appeared intrinsically flawed, and excluded the totality of prosecution's evidence. The accused was accordingly acquitted on an application for a directed verdict. Using a radar warning device A stern demand made for its prompt surrender was met only with raised eyebrows and childlike declarations of innocence. The officer demanded both occupants from the vehicle as he was about to commence a search, which would last until the device was located. The passenger, defendant's mother, elderly and recently bereaved, was visibly upset by the invasion. Moments passed before the officer emerged empty- handed and growing progressively frustrated. He demanded its immediate surrender or else both persons would be arrested for Obstructing Justice . Immediately defendant's mother began to cry, at which point, defendant provided the small black box from his mother's purse. It was seized and tagged, and an offence notice and receipt were issued to defendant. XCOPPER was retained and a trial date was secured. XCOPPER served the requisite notice on the prosecution of its intention to have prosecution's evidence excluded pursuant to section 24(2) consequent to alleged breaches of defendant's section 7,8,10b & 11d charter rights. At trial, the officer conceded that he both genuinely believed that had defendant and his mother not surrendered the device, a charge of Obstruction was warranted, and he would indeed have arrested them had the device not been surrendered. He also conceded it was only a strong suspicion that what he'd glanced at was a radar warning device, and was only convinced after his original demand, by which time of course, it was already hidden and not therefore available for inspection before forming his reasonable and probable grounds. The device was entered into evidence, conceded by XCOPPER as being only that which was seized from defendant at the roadside. XCOPPER called both defendant and his mother in defense, the thrust of whose evidence was their absolute belief that they would be imprisoned if they refused to comply with the officer's demand, at which point, they'd be personally searched and the device would be found in any event. defendant surrendered the device from his mother's purse only to prevent her from going to Jail. XCOPPER offered Regina vs. Laval from the Quebec Supreme Court for consideration, wherein it was held under virtually identical circumstances, failure to comply with such demand failed on all tests to constitute obstruction, and further to which, argued it was never Parliament's intention that its supreme penal code be held as a Damoclean Sword over its citizens to facilitate compliance with demands under provincial statutes. This formed the basis for the Charter application under section 8 wherein the evidence requested for prosecution was secured by a means not provided for in statute or in common law, and having so established, to allow its admission would serve no other purpose than to bring the administration of justice into disrepute. It was further argued that by his own admission while the officer had the authority to stop defendant's vehicle, the further detention to search was on such tenuous authority as not to survive section 7 scrutiny regardless of whether of not a device had been found. Finally, as the officer's belief, with respect to the potential of an Obstruct charge not being formed for the first time from this occasion, and it not being disputed defendant and his mother were clearly detained, it was incumbent on the officer to give defendant his rights to retain and instruct counsel long before his threat to resist. The Trial Judge reserved judgment, as she had difficulty with respect to the allegations of Charter Breaches when the device was in fact hidden by someone other than the person charged. Ultimately, however she reasoned that the evidence relied upon for conviction by prosecution was surrendered by defendant not to exculpate himself from prosecution under a statute, but only to protect his mother from what would have been both immeasurably traumatic and completely devoid of legal foundation. She determined therefore that to admit the device into evidence, notwithstanding its establishment as indeed being a radar warning device, would be in her judgment, an irreconcilable breach of defendant's right to a fair and impartial hearing as guaranteed under the Charter , and thereby excluded the device from evidence, and dismissed the charge without a ruling on applications under section 7,8,or 10b.
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