the daily snivel

I'd like to return briefly to the topic of the criminal trial I won recently, and offer a few thoughts that either you'll find useful or I'll be glad to turn to on some future occasion when I need a word of encouragement.

When that trial date was first set just over two months ago, I was nervous but excited. Normally, trials end up being scheduled from between six to eight months from the date you enter court to request a trial. Suddenly, I was expected to appear in court in two months, fully prepared for a trial set to last for three quarters of a day, and knowledgable about one of the most technical and complicated offences known to the Canadian Criminal Justice System. There was certainly a period of time when I wondered what I'd done to deserve that.

I thought about it, though, and committed myself to being ready. I was being handed one of the biggest challenges I've ever faced, and I realized that my only option was to work like a bastard and whip myself into shape so that I could do a good job for my client. We were his only hope if he were to avoid a criminal record, and the loss of his driver's licence and his business, and even then we had to admit it was likely he would be convicted. After that, it was clear that if I was going to lose this case, it wasn't going to be because I hadn't done everything possible to marshal a zealous defence, or hadn't gone in ready for a hard fight that demanded perseverance and the ability to think quickly. If that meant long days, late nights, and missed weekends, it was simply the price to be paid for being able to say I wasn't going to give up.

It was very hard to leave Toronto this past fall. Even with my serious health concerns, I felt very much like a quitter who could not handle the strain of relocating to a new city and a new career. Coming back to the Clinic and quickly rising to the many new challenges put to me (including being sent out to knock on every door in an apartment building in search of witnesses willing to testify that they had cockroaches, and preparing for and arguing a hearing at the Ontario Rental Housing Tribunal within weeks of starting) helped me overcome that self-doubt, but it still took a lot to come home and admit fallibility.

I imagine the above loss of confidence is a large part of the reason I've gladly accepted every challenge given to me over the past nine months. When a difficult client needed someone to make oral submissions to a skeptical housing board that wanted to evict them, I went out, advocated passionately, and prevailed. When a written appeal to the Information and Privacy Commissioner was needed urgently, I taught myself the law and drafted the winning argument.

I needed to see what I could do, and I needed to know that I can excel even if I'm anxious or worried or even a little afraid about what might come. For instance, it's one thing to argue a hearing or trial when the worst possible outcome is that your client will lose money; it's entirely another when his or her future is at stake. Losing the impaired trial, even though it seemed doomed anyway, would have cost my client his very livelihood. I worried about how horrible it would be if he lost everything over one mistake -- admittedly, a terrible, irresponsible mistake -- and in the face of skimpy, poorly collected evidence. Anxiety and low confidence has always held me back, and I have been learning to control it, rather than allowing it to control me.

At first, I thought the trial preparations were the hardest part -- coming up with valid arguments and defences, as well as proper, probing questions for the Crown witnesses that would expose the weaknesses in the case for the prosecution. I'd argued trials and hearings before, of course, and I was well aware that I would need to be mindful of the unexpected obstacles and disasters that arise on the day of trial that can make all your preparations worthless. It still seemed as though I would be in good shape once I was on my feet.

Then the trial happened. I was up before a very tough judge -- of whom it is said that many lawyers would rather have teeth pulled than appear before. The Crown started off quickly, arguing that my motion to exclude evidence was without any merit and requesting it be dismissed on the spot.

The judge was fair, but critical, and despite his disagreeing with the Crown on the dismissal and agreeing to hear my arguments, I was not given an easy time. My questions and submissions were too long, but I spoke too quickly in my press for brevity. I asked questions of witnesses that he didn't approve of. I acknowledge that my inexperience contributed a great deal to his apparent impatience, but by and large, when I said something he didn't agree with, he told me so. In fact, despite the fact that I won the motion to exclude evidence, he took the time to explain to me why all the other arguments I'd prepared wouldn't have worked and the evidence would have otherwise been admissible.

I won on the exclusion motion late in the afternoon. Earlier, when the court had adjourned for a lunch break, things were looking as grim as they could in a case with a fraction of a chance of success. We had agreed that if the evidence was ruled admissible, we would run the trial so as to preserve our client's right to appeal. I ran back to work over lunch to grab a copy of a case I had cited in support of an argument that a defect in the officer's testimony created a fatal error, and which the judge had wanted to see a copy of. It was a case I'd encountered during my research, but the issue (about the officer's failure to indicate that his demand for breath samples must be complied with forthwith) only arose because his testimony echoed the facts of that case (R. v. Kwok, which I was advised by the Crown, who ran back to check it in his office during lunch as well, is currently under appeal, so keep an eye on it). My client was with me during the trip to the Clinic and back, so I tried to be as upbeat and reassuring as possible, while also being realistic. I basically wanted him to know we were fighting hard, while not emphasizing how discouraged I felt inside.

When I got back to the courthouse, I sat down with a pen and decided this was no time to give up. I was still making closing arguments on my motion and there was still time to win this. I started writing down a few points that came out during the officer's testimony, and outlined what turned out to be the winning argument.

After lunch, the case resumed. The judge ultimately rejected the case I provided as being wrongly decided (I'm curious to see how the appeal of that case turns out). The Crown then made its submissions. In my reply, I returned to the "technicality" that won the day. I'd already brought it up in my arguments, but the judge had dismissed it as being irrelevant. I thought the matter would benefit from clarification.

Here's what it boiled down to. In his examination in chief during the Charter motion to exclude all the breathalyzer evidence, the arresting officer testified he administered the roadside screening device. The roadside screening device is the little box they make you blow into when they pull you over and form a suspicion of the presence of alcohol being in your body. It can give you a "Pass," a "Warn," or a "Fail." If it reads "Fail," they generally have the grounds to arrest you and take you to the station to blow into the breathalyzer to get your actual blood alcohol content. I'm providing a link to a great impaired driving website that summarizes some of the issues here.

[NOTE: None of what you read here is intended as legal advice. I am not yet a lawyer and wouldn't give advice over the internet anyway. This is simply a brief, informal, and generalized description of some issues that arose at a trial in open court, which is now part of the public record, while I was an articling student. If you are charged with the offences of impaired driving or driving while your alcohol level is above the legal limit, contact a local lawyer IMMEDIATELY.]

Part of the evidence that has to come out is what constitutes a "Fail" reading in the mind of the arresting officer. The officer has to testify that he or she had reasonable and probable grounds to make an arrest and provide the information that justified those grounds. Here, the officer conceded (when I cross-examined him) that he wouldn't have had the reasonable and probable grounds to arrest my client without the "Fail" reading. There simply wasn't enough other evidence without it. the officer testified, however, that the device was calibrated to register a "Fail" at a blood alcohol level much lower than the 100 milligrams of alcohol that they are actually calibrated to. The judge wasn't concerned with this error when I brought it up, simply commenting that "there was no evidence before the court about what it should be calibrated to."

But the error was in the fact that, if the device was calibrated as low as the officer believed it was, you could fail while still legal. It didn't matter what it was actually calibrated to, because cases that deal with miscalibrations point out that it is the reasonable belief of the officer that "Fail = X, and X is against the law" that matters. In my reply arguments, I pointed out to the judge that it is only against the law (in Canada) to have a blood alcohol content over 80 milligrams. For the purposes of section 253(b) of the Criminal Code of Canada, 80 and under is perfectly legal, and no one who thinks that a "Fail" that could be triggered when you're under the line imposed by law could have valid grounds to make an arrest in those circumstances.

The judge and the Crown both started flipping through their copies of the Criminal Code. The judge admitted that I had something. Everyone "knows" that the offence is being over 80, but wryly noted that this was such common knowledge that it took turning to the law to confirm that being at 80 milligrams itself wasn't actually an offence. Section 253(b) of the Criminal Code of Canada describes it.

The Crown admitted that if the officer had in fact said the words I indicated, he didn't have enough to make an arrest. Accordingly, the tape of the morning's testimony was played back. The words were repeated to the court. I had won and any evidence obtained after the "Fail" and arrest was excluded. All the observations, all the notes, all the readings.

The trial ran with respect to the second charge (which didn't need exact blood alcohol numbers to prosecute but instead proof of impairment), but there was nothing near enough evidence to make out that offence, and my client was acquitted of both charges.

Preparation got me there, but refusing to give up in the face of intense adversity, pressure, and mounting defeat is what carried the day.

I would urge everyone facing that kind of doubt or fear to instead test themselves. We can, all of us, challenge ourselves to do the things we think we cannot do. While we are only human, and have all-too-human flaws and limitations, the quest to better ourselves is what makes humanity so redeemable.

The risk of failure is terrifying, but giving up or never trying is a far more haunting failure than simply not achieving victory while striving to be more than you are. After all, the effort of doing your best can only lay the foundation for doing even better the next time, and achieves the ultimate goal of self-improvement all the while.