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City: Oshawa, Ontario
Year: 2018
Our Client: Mr. K.
Charge(s): Failure to Provide a Breath Sample into an Approved Screening Device
Lawyer:  Justin Marchand
Criminal Lawyer Justin Marchand

Case Study: Acquittal – Failure to Provide a Breath Sample into an Approved Screening Device

Background Allegations

Mr. K. was a hard-working man, the director of a security company who, despite having English as a second language, had done well for himself. Like many, he’d been going through some familial hardships. His two sons had moved out to attend university, leaving Mr. K. in a state of depression and high blood pressure, both of which he was medicated for

During a visit from his sons he began to feel distant, and a comment from his wife about hisglass of wine with lunch being concerning due to his medication led to an argument. He left to buy cigarettes and coffee and found himself at his favourite spot by the water to clear his mind. During the two hours he sat by the water his family attempted to contact him and received only vague text messages like “I love you all”. Out of fear for his safety they phoned the police.

While searching, the officers found his vehicle in an apartment parking lot and saw a bottle of Fiji water in the car, mistaking it for a bottle of alcohol. They contacted Mr. K. by phone, asking if he had been drinking, if he was visiting someone at the apartment complex, and telling him they would speak to him at his home later. The officers did not offer to meet Mr. K. at his current location.

Mr. K. returned home, had an argument with his wife about the police being contacted, and waited in his car for their arrival. When the police approached one officer believed they smelled alcohol on Mr. K.’s breath and from within the vehicle. This combined with the Fiji bottle seen earlier that they believed to be alcohol and Mr. K.’s red eyes led the police to request a breath sample, which Mr. K. first agreed to, but refused once he saw the device. At this time the charges were laid.


Mr. K. was a director for a security company with 750 personnel reporting to him. A criminal record would not bode well for a man in his line of work. He was also struggling with his family, having a hard time coping with his sons moving out, and had been medicated for depression. Additional hardships on his family would be devastating for Mr. K. For the sake of his professional and family life we needed an acquittal.

The Strategy

We defended Mr. K. by attempting to block the Crown on two fronts: the legitimacy of their grounds to demand a breath sample and the procedure by which the police went about attempting to collect said sample and the ensuing arrest.

First we argued that the police violated s.8 of the Charter, in that they had no reasonable grounds to request a breath sample.

Next we argued that several factors contributed to the confusion leading to Mr. K.’s refusal. Mr. K.’s first language is Greek, and his understanding of the officer’s requests was skewed. The police also suspected Mr. K. was having an affair as his vehicle was parked at the apartment complex, and upon accusing him of this the conversation became aggressive. Mr. K. initially agreed to the test but refused as the argument with the officers escalated and the device, which was for an unknown purpose to him at the time, was prepared. All this combined with Mr. K. not expecting an encounter with police when he was not committing a crime meant that there was a strong argument to be made. While Mr. K. had refused to submit a breath sample, he had done so out of confusion, not intention.


The judge found that the police were justified in their request for a breath sample and the defence of violations of Charter s.8 was unsuccessful. However, His Honour agreed that while Mr. K. had not given a breath sample, his refusal was likely out of confusion and the result of the escalating argument with police caused by false accusations of infidelity. His Honour was also concerned by the one hour Mr. K. spent in police custody afterwards, wondering why no breath sample was taken at this time.

Mr. K. was acquitted on the grounds that the Crown failed to prove that Mr. K.’s refusal to provide a breath sample was intentional and not a misunderstanding.

Please Note: Past results not predictive of future results.

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