Background: One fine August morning, Mr. H. got a call from a friend asking him if he wanted to go to the beach. Mr. H. agreed and so they collected some other friends and the friends’ children and they all went to the beach. They did not drink any alcohol. Later most of the group stayed for dinner at Mr. H.’s house with Mr. H. and his wife. After dinner, Mr. H. agreed to drive one of his friends home. It was while driving his friend that Mr. H. was pulled over by police. The officer’s story would be that dispatch had received a call from an unknown person about a possible impaired driver in a vehicle fitting the description of Mr. H.’s and with a matching plate. The caller had also reported seeing Mr. H. with a glass in his hand and staggering. When the officer pulled Mr. H. over he said that he detected a smell of alcohol on Mr. H.’s breath. The officer did not note any other signs of drinking. Mr. H. did not have a drink in his hand and he did not stagger. The officer made the demand that Mr. H. provide a breath sample into the roadside breath alcohol screening device. Mr. H. felt that he was being treated like a criminal. He asked if a friend could witness him blowing into the device, but the officer replied that they did not need an audience. He was also, at that time, not permitted to call a lawyer. To Mr. H. it made no sense that he had been pulled over. He thought that he had been pulled over because the officer saw two black guys in a car. However he remained cooperative. He only wanted to call his lawyer and his friend before he blew into the device as he did not trust the police. But the officer told him that he could not make those calls and that refusing to blow would lead to the same result as failing the test. Mr. H.’s final words were “arrest me then.” He was placed under arrest and charged for refusing to take the roadside test.
Goal: The Criminal Code penalties for refusing or failing to provide a breath sample are the same as for drunk driving charges. They include a mandatory driver’s licence suspension, mandatory fines with victim fine surcharges, the requirement to take the alcohol education/treatment program and then to drive for a period of time with the Ignition Interlock Device – and of course the conviction results in a criminal record. Mr. H. did not want to plead guilty as he felt he had done nothing wrong. Therefore we would go to trial. The goal was to avoid a criminal conviction.
Strategy: We would take a two-pronged approach to the trial. We would file a Charter challenge and argue that sections 8 (the right to be secure against unreasonable search and seizure) and 9 (the right not to be arbitrarily detained) of the Canadian Charter of Rights and Freedoms had been breached. In particular we would argue that the investigating officer did not have the necessary reasonable suspicion to demand the breath sample. If successful on the Charter challenge, we would seek to have all the evidence excluded under s. 24(2) of the Charter. The second prong to our approach would be to attack the Crown’s case on an evidentiary basis. We would take apart the officer’s testimony in cross-examination and would counter the Crown’s evidence with the evidence from the testimony of our witnesses who would be Mr. H., his wife and some of his friends who had been with him that day. We would argue that the information relied on by the police to accuse Mr. H. of unequivocally refusing to provide a breath sample, bore no resemblance to the actual facts.
Verdict: We were successful in preventing the Crown from being able to prove beyond a reasonable doubt that Mr. H. unequivocally refused to provide a breath sample. Mr. H. was found not guilty of the charge.