Know Your Rights: DUI Cases

Some Toronto criminal lawyers base their entire practice around DUI or drinking and driving cases. These cases often involve technical defences and can include challenging the functionality of the roadside test device or breath room devices, this is also known as challenging the readings.

When the police stop a driver at either a ride spot check or for a highway traffic stop, police can make a demand for a breath sample or to blow into the roadside test device, called an ASD (approved screening device). It registers a pass or a fail, or a warn. If the person under investigation fails the roadside test, they are taken to a police division with a Breathalyzer machine. This part of the testing for blood alcohol must be done by a Officer who is a trained breath technician. The device used at most Police Stations is often Intoxilyzer. If you blow a warn at the roadside in Ontario, you are given a three day suspension and your vehicle may be towed.

In many cases the police may not have had the required grounds to compel the person to give a breath sample, and in those cases the charge may be defended by way of a Charter challenge, pursuant to section 8 of the Canadian Charter of Rights and Freedoms. There are also a number of cases where persons under detention are not told why they are being detained, are detained without being given their rights to counsel or are not allowed to call Counsel. This violates sections 10(a) and 10(b) of the Charter.

Care and Control cases can be much different. In these cases, the defence is not whether the person had been drinking but whether or not they occupied the driver’s seat for the purposes of driving or were a danger to the public by being intoxicated in the vehicle. In these cases the defence often admits that the defendant had been drinking but call evidence to show that they were in their vehicle for warmth, to wait for someone, or for another innocent purpose and there was no real risk of danger to the public.

If you are charged with a DUI, drinking and driving, or care and control offence it is best to consult with a lawyer about your case, as there may be a defence available to you. However, if you are in the position that you want to resolve the matter by way of a guilty plea there is an ignition interlock program available to allow a person to drive after only three months of suspension. Provided all fines are paid, you can have an ignition interlock device installed and get your licence back.

Police Use of Force in Dealing with the Mentally Ill

The shooting of Sammy Yatim brought police treatment of emotionally disturbed person (EDPs) to the forefront of the public eye. There were cries for change long before this tragedy but they were largely ignored.

The mistreatment of persons considered EDP or mentally ill by police has been highly publicized in the media in the recent past. Many cases have led to an examination of police conduct and use of force in the context of Police interaction with mentally ill persons. The Justice system in many ways has failed to address the special needs of mentally ill accused. Toronto has seen a number of tragic situations, and as a Toronto Criminal Defence lawyer I want to see change.

The death of young Ashley Smith, only 19, while in custody, led to a corner’s inquest, where the Jury ruled her death a homicide. Following that inquest, we saw the Inquest into the deaths of Sylvia Klibingaitis, 52, Michael Eligon, 29, and Reyal Jardine-Douglas, 25, who were all killed during interactions with Police. That Jury also ruled these three deaths homicides and made a number of important recommendations about changes to the way police interact with people who are or suspected of being mentally ill.

These recommendations are much needed but they are not new. As a defence lawyer member of the downtown Toronto HSJCC committee, and several other mental health committees and panels, I have taken part in discussions surrounding the need for changes to police policy in dealing with persons who are mentally ill for years now. Police training is inadequate and the guidelines for use of force and dealing with persons with mental illness do not require the police to first try to de-escalate or use other non-confrontational techniques. These are changes that must be made to improve police interactions with some of the most vulnerable members of our society.

The police will only be held accountable when public outcry can no longer be ignored. Some steps have been taken in the recent past, for example, the Toronto Police created the MCIT program, a mobile crisis intervention team stationed at each division, it is a team comprised of a nurse and a police officer who attend calls that have a mental health element. However, these teams are small and under funded especially in Toronto, Canada’s largest city with the most homeless and indigent.

The trial of James Forcillo, represented by Toronto’s go-to lawyer for Police Officers, Peter Brauti will be a barometer of how the public feels about the police excessive use of force in the apprehension of persons exhibiting signs of mental illness. The Sammy Yatim tragedy will hopefully lead to changes in the way police are trained to handle these situations. Police Chief Bill Blair appointed retired Supreme Court Justice Frank Iacobucci to prepare a report with recommendations on the Police Use of Force model. The outcome of Forcillo’s trial and the findings of the report on the Use of Force will be worth watching out for in 2014.