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City: Oshawa, Ontario
Year: 2018
Our Client: Mr. S.
Charge(s): Refusing to Provide a Breath Sample
Lawyer:  Justin Marchand
Criminal Lawyer Justin Marchand

Case Study: Acquittal – Refusing to Provide a Breath Sample

Background Allegations

Early one April morning, around 3:00 a.m., Mr. S. and his girlfriend, Ms. L., were driving the accused’s Honda Civic on the 401. They’d just come from a family gathering. Without warning the Civic was struck by another vehicle and thinking quickly Mr. S.maneuvered his vehicle into a ditch to avoid an accident with another vehicle. The car that hit the Civic did not stop.

A Honda technician by trade, Mr. S. was able to identify issues with his vehicle, including damage to his brakes, during an inspection of the crashed Civic. When a police officer arrived on scene, he began to question Mr. S. He first asked if Mr. S. was the driver, to which he agreed, and next asked if he had consumed any alcohol or drugs that evening, which he denied. Despite denying it, Mr. S. was subjected to a breath test, to which he complied.

The Crown claimed the officer provided five opportunities for the test, with Mr. S. failing to comply by improperly using the machine each time. Mr. S. claimed that there were only three attempts, and that he was never given enough time to perform the test with the officer taking the device away too soon during each attempt. The officer’s notes do not include him smelling alcohol on Mr. S., and fail to note the times of each of the test attempts.

Goal

Mr. S. was adamant when he walked in our doors that he wouldn’t be pleading guilty to “anything” in exchange for a deal. He firmly believed that even if it took a trial to clear his name,he would hold to this. Both Mr. S. and Ms. L. agreed that they would be willing to testify in a trial in order to prove Mr. S. was innocent. If the client was willing to fight this hard to prove their innocence, then we were going to fight just as hard with them. We wanted Mr. S. acquitted of the charge.

The Strategy

There were two areas we could focus on to create reasonable doubt in the officer’s claims. Our first move would be to have Mr. S.’ statement to the officer that he was the operator of the vehicle deemed inadmissible. The only evidence they had that it was Mr. S., not Ms. L., operating the vehicle was his statement, and if they lost that then the case would fall apart. We would claim that Mr. S. only stated that he was the operator of the vehicle because he believed that under the Highway Traffic Act he was required to.

The second point of focus was on the issue with the officers notes regarding the attempts at a breath test. The officer’s notes stated that there were five attempts at breath tests, yet the notes did not include any specific times. Mr. S. was firm that there were only three attempts, and that they were improperly performed. He claimed he was given insufficient time to perform the test before the officer would take the device away and claim he was not doing it properly. If we could not have the evidence that Mr. S. was the operator of the vehicle deemed inadmissible, perhaps we could have the tests themselves called into question for procedural error.

Verdict

His Honour agreed that, following the precedent of R. v. White [1992] and R. v. Roberts [2018] the statement given by Mr. S. implicating himself as the driver would be excluded as evidence. As a result, the Crown had insufficient evidence to prove Mr. S. was guilty beyond a reasonable doubt, and Mr. S. was acquitted of all charges.

Please Note: Past results not predictive of future results.

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