I hope that you all have had a nice and peaceful
summer.
Before we get to the main course of this article, I
wish to preface with the following disclaimer.
When a law student is ‘called to the Bar’ to become a
Bar-accredited lawyer, he/she initiates his/her career by committing, in a
‘swearing-in’ or ‘affirmation’ ceremony, to never disclose or divulge any
information transmitted to him/her by a client. Predictably, there are certain
(extraordinary) exceptions to this rule, such as when a lawyer is bound by
statute to release particular information under specific, extreme circumstances.
And of course, this rule has generated much case-law about what is and isn’t
included in this blanket coverage. Still, suffice it to say, that as a rule,
whatever is revealed and shared in a lawyer’s office always remains in the
lawyer’s office. Under pain of severe penalty, no gossiping about clients
is tolerated by the Barreau du Québec!
In my own practice, this has been so much the case,
that when friends or acquaintances, of both my wife and I, have consulted me on
legal matters, even regarding those which would eventually become public and
open to all, I have nonetheless never, ever shared any of these details (both
before and after) with my wife and/or anyone else. So much so, that some of these
persons have later quizzed my wife, ‘You mean to tell me that your husband
never told you that I/we…?? It wouldn’t have bothered me!’ Well it’s the
client’s right to say and feel so, but
that doesn’t release any lawyer from his/her obligation. Confidentiality and
privacy are the assurances which every lawyer must deliver, and quite frankly,
anything less would be disastrous for business!
I tell you all this only to state that I will now be
sharing a story with you about a case in which I was recently involved. Before
preparing this article, I consulted with the main characters of the following
events, to seek their approval in letting everybody in on their tale. Furthermore, they reviewed this article
before it was submitted to this newspaper. I have their absolute permission to
go public with the following story.
Below is an account of a woman who received a
moving-violations ticket for allegedly
talking on a cellphone while driving her vehicle. Indeed, an occurrence that could
happen to anybody (hopefully not). From the description of events I believe
that there are significant lessons to be learned from it.
On a hot, breezy Sunday afternoon in May 2010, more
than two years ago, a woman whom we shall call Ms C, was driving her mini-van
home, along with her children.
She stopped at the stop sign of the northeast corner of
Avenue A and Avenue B. Montreal Police
Constable L was waiting in her police vehicle on the southeast corner of the
same two streets. As Ms C proceeded to cross Avenue A, Officer L put her
cruiser’s lights on and signalled for Ms C to pull over.
Not seeing her flashing lights, Ms C proceeded to her home’s
driveway, which is about a 3-second drive from the above-mentioned stop sign. When
she exited the car, she was surprised to see the officer and asked her if there
was any problem.
Ms C’s second statement to the officer was that she had
been obeying the previous block’s posted ‘school zone’ 30-kilometer-per-hour
speed limit. Indeed, the officer agreed that there was no issue with that.
Instead, she accused Ms C of having used a cellphone while driving.
Ms C was stunned! She protested that she had done no such thing, that
she didn’t even have a cellphone with her, and that her cellphone was actually
inside her home with a dead, non-functional battery! (Tell me about it, who
hasn’t been there?!) The police officer’s response was that Ms C had allowed
the phone to drop to the floor of the van when she saw the former coming up
behind her.
Ms C’s husband, who was home at the time and heard the
commotion in the front of the house, came outside and attempted to reason with
the constable. To discount the allegation that Ms C had dropped the cellphone
upon seeing the flashing lights, he invited the officer to search the van, to
find and retrieve the phone which had allegedly been so hastily disposed of.
To the uninitiated, big deal, so the
husband offered that the van be searched! NOT! There is an incredible amount of
law regarding searches and they are normally permitted only with a warrant
and/or under certain rigid conditions. Cases lost or won have often hinged on
improper and/or invalid searches.
Ms C’s husband believed his wife and had confidence in
her innocence. He knew foremost that she cared about her children and that she
would never, ever endanger them by chatting on a cellphone while driving, with them
in tow. Furthermore, he trusted that
when she declared that she was not speaking on a cellphone, she was in fact,
not speaking on a cellphone.
He was also fully aware that by welcoming the police
officer into the van, he was waiving his legal rights against an illegal
search. Section 8 of the Canadian Charter of Rights and Freedoms states
that “Everyone has the right to be secure against unreasonable search or
seizure.” This section ensures that
everybody has a right to privacy, and the state has no right to intrude on that
privilege, unless explicitly granted the permission through various means. This
rule is so strong, that Section 24(2) of the same Charter states that
any property found or seized in violation of Section 8, could be excluded as
evidence at a trial.
Thus, an actual invitation to ‘go-ahead-take-a-look-around’
is no small potatoes! Ms C’s husband knew it and the police officer had to have
known it. Dare I say that this situation could count high on every police
officer’s wish-list or day-dream, i.e. to go snooping around for
evidence on someone’s private property, without having to be concerned about its
legality?! Could this be the sweet dream that every police officer dreams of??
Officer L was being handed a carte-blanche to investigate the vehicle to
recover the alleged incriminating evidence, an opportunity to confirm her
allegations and clinch the case.
However…the officer refused to do so.
Then Ms C’s husband offered to showcase to the officer
where the cellphone was actually resting — inside their house, positioned on a
shelf in their kitchen, as dead as, and frankly, less useful than a block of
wood. Again, the officer declined this invitation.
Finally, Ms C’s husband offered to dial the cellphone
number with their family’s cordless landline phone, to catch any kind of
ringing which would have turned-up in the van, but this proposal was also
rejected by the police officer.
By this time, Ms C’s children were all anxious, upset,
and also pleading that their mother had not been conversing on any phone.
Tensions were running high and there was a concerted effort to stay calm and
rational. Simply put, the officer just refused to listen to any attempts which
would have substantiated that Ms C was innocent of any wrongdoing.
Officer L went back to her car (she didn’t even have a
roll of paper to print the ticket and made everybody wait until another police
cruiser came to deliver it to her) and then returned with the printed ticket.
On it, Ms C was accused of and charged with “having operated a road vehicle
while making use of a hand held device which is equipped with a telephone
function”, an offence and in contravention of the Highway Safety Code,
s. 439.1.
Ms C knew that she was innocent and turned to me for
advice and direction. Yes, she was concerned about the dollar amount of the
fine for this alleged infraction, however, she was ultimately more worried
about how the penalty points could possibly impact her overall driving record
and ensuing car-insurance premiums.
Thus, at her behest, I drafted a plea of ‘not guilty’
for her. Basically, her plea came to three issues:
1) She declared that she was very conscientious about
driving safety, particularly when children were involved. More so as a parent,
she would never engage in any activity which could endanger the lives of others
and herself. She would certainly never natter
on a cellphone while driving, as she believes that this is dangerous and
irresponsible behaviour, as well as against the law.
2) The cell phone in question was not present with her
at the time of the alleged infraction, but was resting peacefully inside her
home. As proof that she had not been
using the cellphone as claimed by the officer, I was able to obtain an extract
of her cellphone bill covering that time frame. The phone’s call history,
displaying the activity of incoming and outgoing calls, showed that the cellphone
had not been used for several days preceding and after the date listed on the
ticket, and certainly not on the actual date of the alleged violation.
3) Finally, even if she had been holding a cellphone,
it would have been practically impossible for her to conceal it from the
officer, as had been claimed. When Ms C got out of the car, if there would have
indeed been a phone there, the officer would have noticed it on the floor or on
her person. Alternatively, the officer could have accepted the husband’s offer
to dial the number and Ms C would have been trapped. Ultimately, she did not
see the phone, of course, because there was no phone.
In the end, Ms C’s ‘not-guilty’ plea was not accepted.
The matter would have to be referred to a judge for judgement.
Soon, many demand letters for payment of the fine arrived
for Ms C, from the administration offices of the city of Montreal. I was handed
all of these, and only after reading the fine print (thank-you Bill 101 [the Quebec law requiring that any English on public signs be much smaller than the French] for the
conditioning!), was I informed that payment was required only if the party
did not intend on going to court to fight the ticket; for contesters, the
payment was not necessary at this point. However, receiving these letters
proved intimidating for Ms C and only after reading the fine print, was she put
at ease.
Finally, almost two full years later, a notice of the
date of the hearing appeared to Ms C, set for a spring Friday afternoon at 3
PM! Normally not a bad time for anyone else, but impossible for a Jewish Saturday-Sabbath observer!
Again, Ms C turned to me and asked me to draft a
request for a postponement of the date, with a suggestion of some other, more
suitable times. This is what I wrote for her:
I am an Orthodox
Jewish woman. As part of my religious observances, I celebrate my Sabbath from
Friday dusk till Saturday night. During that time, I am not permitted to
participate in any non-religious matters nor am I able to travel in any kind of
vehicle.
The hearing for my
case is currently set for Friday afternoon at 15h00. The Sabbath begins on
Friday at 17h36.
Every single
Friday, beginning from the morning and continuing into the afternoon, I am
always at home preparing for the Sabbath, ensuring that all of our Sabbath
needs are completed before the dusk deadline. It is therefore simply impossible
for me to be involved in any other matters during that time.
Furthermore, I am
concerned that because of possible delays at the courthouse, there could be a
real possibility that I would not even be able to have my hearing before the
Sabbath begins. I certainly could not and would not proceed (nor continue)
after the commencement of the Sabbath.
Finally, even
should the trial finish before the Sabbath comes in, I fear that I would not
have enough time to travel and reach my home destination before the
commencement of the Sabbath.
It is for these
reasons that I respectfully request a re-scheduling of my trial date.
I also supplied some more suitable dates and thankfully, her hearing was assigned to a more fitting date.
Finally, the issue of the language of the hearing had
to be addressed. As an anglophone, Ms C
wanted to be sure that the hearing would proceed in English and again, she
entrusted me with this task.
Normally, both English and French may be used in the
courts of Québec. This right is guaranteed in section 133 of the Constitution
Act, 1867. La charte de la langue française, better known as Bill
101 attempted to change this, to make French the only language of the courts.
However, this was challenged in the Supreme Court of Canada and section 133
mentioned above was upheld, while those provisions of Bill 101 restricting the
usage of English in courts were struck down.
Notwithstanding, I have heard of a case where the
defendant was an anglophone and the hearing was starting — all in French. She
protested, saying that she wanted to proceed in English instead. According to
her account, the judge told her that she should have requested an English
translator if she did not understand French and that the trial would
nonetheless proceed in French.
Obviously, I wanted to avoid such a scenario.
Consequently I ensured that at the least, a French-English translator would be
present at Ms C’s audition.
Finally, the date of the trial loomed very near. I
carefully reviewed the evidence which Ms C would present to the court, namely
the map of where the whole transaction took place and copies of the cellphone
bill. Just for certainty, she also had a fax-transmission-receipt for the
translator request. Her husband was also prepared to testify, if necessary.
We arrived at the courthouse on that fateful day and I
turned to my wife — the defendant, Ms C — and wished her the best of luck! She
went into the hearing room while I waited outside. She presented her evidence
and lo and behold, she was acquitted! My testimony would not be necessary. So
ended our two-year saga (and may I add — our big headache)!
Well, there are many things I would like to say about
our story, but I will state one:
No doubt there are some of you out there rolling your
eyes and smirking, “Heh, smarty, her husband is a lawyer so of course she
bothered with this all!”
Well, not really. This whole mess was a pain for me
too, one that I wish we could have avoided. Still, I think that it is important
to remember that when it comes to legal (and really, most everyday) issues, it
is necessary to know when to pick your battles and when not.
Business-people will tell you, matter-of-factly, that
bad debts and losses are part-and-parcel of conducting a business. It’s not a
secret, it’s a reality. You have a business? Then you’ll also have lost monies.
Doesn’t mean that it doesn’t hurt each time, but it just happens and you have
to get over it and move on.
Same with being a car owner. Tickets, along with
maintenance and other matters, have to be factored-in as part of the cost of
owning a vehicle. Of course, nobody wants or invites these seemingly avoidable
costs. But as the earth spins, so too will they occur. Sometimes because of
forgetfulness; sometimes because of legitimate reasons and sometimes because of
circumstances beyond our control. Anybody who gets (overly) aggravated when
gifted with a ticket under their wiper or receiving it via personal
hand-delivery is not being realistic about car-ownership costs. It’s okay — be
upset for a minute or two, and then just give it up. And yes, I am talking from
personal experience!
On many occasions, I have been asked about how to
handle certain driving-related tickets. Notwithstanding what I have expressed
in the previous paragraph, I am not suggesting that we always have to just
roll-over and allow ourselves to be punished and fined for no good reason!
Certainly, in exceptional situations, if you feel strongly that you were
wronged for no valid cause AND (and this is a big ‘and’) you are prepared and
willing to spend the time, money, effort and aggravation to prove it — with
absolutely no guarantee or assurance whatsoever of success — then yes, it would
be wholly acceptable that the ‘principle’ of the matter should be taken into
account in the decision-making of whether or not to contest a ticket and/or whether to have legal representation.
And at other times I have replied: enlisting the
quotients above and weighing all
of the factors, putting each on a scale of ‘pros’ and ‘cons’ and aiming for a
stark, honest and realistic evaluation, would it still be worthwhile, tenable
and feasible to contest the ticket? Most times it really is not. And once
again, I speak from personal experience!
However, when there could be (amongst others) a concern
for a tarnished driving record, (a significant) ‘points’ penalty and/or a
possibility of future, hefty car-insurance premiums, the legal landscape may
take on a changed and uncertain hue. In such an instance, there really may not
be that luxury to not challenge and not disprove the basis of the ticket. A
well-founded defence, in law and in fact, ought to be mounted in order to fend
off later potential undesirable and consequential results. Ultimately, the
implicated will be the final arbiter regarding whether to engage the services
of a seasoned legal professional or not.
For example, I was once consulted by someone who stood
to lose 9 points for an offence that s/he claimed s/he was innocent of. The
dollar amount of the fine was not momentous, but what an impact and blemish
this 9-point deduction would have on his/her driving record! There really was
no choice but to dispute the charge. (We fought it and won).
So…in Ms C’s situation, there was anxiety for the
above-mentioned reasons, in addition to the feeling of having been ill-treated
and badly manhandled. (And admittedly, readily-available and free legal advice
didn’t hurt either!). Luckily, Ms C had a good case, came well-prepared, and
she was thus fortunate to have been acquitted.
Nobody invites and wishes to be involved in any kind of
contentious legal matters and/or conflict. Unfortunately, our hands are
sometimes tied and we may have no choice in the matter. In these and all legal
affairs, whether litigious or non-litigious, each person has to take into
account all factors and available resources, before making a decision on how to
best proceed and/or whether or not to enlist the aid of a trained legal
professional.
