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Charge(s): Refusal to Comply With a Demand for Breath Samples
Location: Whitby, Ontario
Our Client(s): Mr. T
Complainant(s): Durham Regional Police Service
Year: 2019
Lawyer: Justin Marchand
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Please Note: Past results not predictive of future results.

The Background

Two police officers received a call from a police helicopter that a car nearby was driving irregularly and were sent to investigate. They found Mr. T and his partner in their vehicle, driving, and during a verbal argument. While this argument could have explained the driving, one officer believed Mr. T had been drinking and requested Mr. T blow into a roadside screening device. After registering a failure, Mr. T was driven to a police station for further tests.

While in the cell Mr. T was read his right to counsel and provided the name of a lawyer he wanted to retain. Officers attempted to reach the lawyer multiple times over a few minutes, but it was hours before most businesses opened and there was no answer. The officers left a voicemail and waited only a few moments after failing to contact the lawyer they returned to Mr. T to update him.

Mr. T insisted that he was not performing any tests until he spoke with a lawyer first. He requested another lawyer, who police once again attempted to contact several times in a short period. They left a voice mail with the 2nd lawyer as well, and once more returned to Mr. T after waiting only a few minutes.

Mr. T insisted that he would wait until one of the lawyers called him back before complying with police demands. Instead of waiting, the police charged Mr. T with refusing to provide a breath sample and released him on a promise to appear.

The Goals

The Charter of Rights and Freedoms is very clear in its protection of a person’s right to contact a lawyer upon arrest. The police were unwilling to wait until either of Mr. T’s desired lawyers attempted to contact him and instead charged him with a criminal offence. Our team stands against flagrant infringements of Charter rights and so our goal would be to have the court declare the evidence gathered at the station inadmissible rendering the case impossible for the Crown to win.

The Strategy

The case was scheduled for trial and Justin prepared several defences on Mr. T’s behalf. The infringement on Mr. T’s s10(b) right to counsel was among the most likely to succeed.

We presented case law to the judge that makes it clear that a reasonable amount of time must be given for the lawyer to call back after a voicemail is left before attempting to get a breath sample from the accused. By waiting only a few minutes before moving on the police officers violated this requirement.

The judge made clear that “what amounts to a reasonable period will depend on the facts of the case”, and proceeded to comment that the police had no time pressures to process Mr. T that night. Because of this, there would have been no harm in waiting longer to see if Mr. T’s potential lawyers would call back.

Justin raised the point that if the judge were to find the police infringed on Mr. T’s rights, and deem the evidence inadmissible, there would be nothing available for the Crown to argue their case with and Mr. T would have to be acquitted.

The Results

The judge agreed that the police did not wait a reasonable time to see if Mr. T’s potential lawyers would call back and rushed their attempt to seize a breath sample. This was a violation of Mr. T’s right to retain counsel and all evidence at the police station was deemed inadmissible. With the Crown unable to even bring up any of the events at the station the judge felt they had failed to meet the “beyond a reasonable doubt” burden and acquitted Mr. T of his charges.


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