R. v. B.R.B.

(Calgary Court of Justice - Assault/Impaired Driving/Refusal/Drugs). B.R.B. -- a person without a prior criminal record - pled "not guilty" and scheduled a two-day trial in relation to charges of assault, impaired care or control of a motor vehicle, refusing to comply with an approved screening demand and simple possession of cocaine.  This was an interesting case involving an unfortunate incident that triggered a police response at a house party in Calgary. Notwithstanding the number of charges and the prima facie strong case for the Prosecution, David Chow -- BRB's Calgary criminal lawyer -- could not resolve the case prior to trial and recommended that BRB plead "not guilty". 

This case was not unlike many other cases where police become involved: a house party turned bad. In this case, after an evening of partying, there was some rough housing that resulted in allegations of assault against BRB and an attack that resulted in BRB receiving some facial injuries. BRB was sitting in a motor vehicle outside of the residence awaiting police arrival. It was cold outside and the vehicle was running, with the heat on, but had no moved. When police arrived, notwithstanding the obvious injuries sustained by BRB, they immediately arrested the accused. In Canadian law, police must advise the arrestee of his or her s. 10(b) right to counsel on detention or arrest. In BRB's case, rather than providing right to counsel, police made an approved screening demand. BRB agreed to provide a sample but also tried to explain that there was no intention to drive, while pointing out how the obvious facial injuries were caused. BRB was sitting in the motor vehicle naked from the waste up and not wearing any shoes. In law, once a person is arrested, the police must refrain from collecting evidence until (1) the right to counsel has been offered and (2) if the accused wishes to contact a lawyer, police must hold-off conscripting evidence until the right to counsel has been satisfied. During the exchange, BRB requested the chance to speak with a lawyer. The request was ignored. Police later properly searched BRB and located a small amount of substance presumed to be cocaine (a Schedule 1 substance). 

BRB's defence was very interesting. With respect to the incident in the home, BRB had a solid self defence claim. Self defence is a defence of justification permitting the use of reasonable force to repel an attack. BRB also had a mens era defence -- claiming a lack of intention to assault during some innocent play. The defence also filed a Charter Notice seeking the exclusion of evidence relating to the breath demand and even if the Charter defence was rejected, that BRB did not actually refuse the breath sample. With respect to the very small amount of purported narcotics, there was no certificate of analysis to prove the nature of the substance seized. BRB also had a valid basis to cross-examine the Prosecutions witnesses -- many of whom were intoxicated at the time of the incident. Finally, was not alone; for there were witnesses who supported BRB's defence to what transpired at the house party. 

In short, while this was a challenging case for the defence, it was also a very challenging case for the Prosecutor. In law, the Prosecutor is responsible for proving the case "beyond a reasonable doubt". Proof beyond a reasonable doubt requires proof closer to absolute certainty rather than proof on the balance of probabilities. The defence is only required to raise reasonable doubt. This standard of proof exists to protect all accused from wrongful conviction. 

BRB was compliant with the bail order imposed at the time of release. This helped BRB because it was a factor that, along with BRB's lack of criminal record, that inspired the withdrawal of the charges. 

An important lesson from BRB's case is that it is not unusual for the defence to look quite bleak on an initial reading of the evidence. The best criminal defence lawyers will breakdown each charge in a thoughtful manner and will apply the full arsenal of defences at the appropriate stage of the case. 

David Chow is a former Crown Prosecutor, now criminal defence lawyer in Alberta with over two-decades of real trial experience. While David's general philosophy is that the criminal justice system is a far from perfect human system where trial should be avoided if at all possible, he has also run hundreds of trials. He has cross examined thousands of police, experts and other witnesses. David has successfully defended clients across the entire criminal spectrum, including homicide, manslaughter, other serious crimes of violence, multi-kilo level drug trafficking, property crimes and driving offences. If you are searching for a Calgary criminal lawyer who offers reasonably affordable criminal law services and who has a decades of experience, call David Chow.