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Charge(s): Refusal to Provide a Breath Sample
Location: Niagara Region, Ontario
Our Client(s): Mr. M
Complainant(s): Canadian Border Security
Year: 2018
Lawyer: Justin Marchand
Justin Marchand - criminal defence lawyerLEARN MORE

Please Note: Past results not predictive of future results.

The Background

Mr. M, a US military veteran and long-time law enforcement officer, was crossing the border into Canada to visit a casino in Niagara. He’d spent some time earlier that evening in a U.S. casino, had done well, and was planning to keep his night going with a change of scenery.

At the border, while pulling his ID out to cross, the border agent asked if he’d been drinking, to which he replied that he hadn’t. Despite this, the border agent requested Mr. M provide a breath sample into a registered screening device. Mr. M refused, noting that if he was under suspicion of any criminal activity he would not be providing the border agent with anything until he had spoken with a lawyer. The agent insisted that the right to a lawyer, which is protected under s10(b) of the Charter in Canada, was “paused” when performing a breath test. Mr. M refused and was brought into holding.

After speaking with duty counsel Mr. M, worried about the impact a criminal charge could have on his plans to retire from law enforcement soon. He was formally charged with refusal to provide a breath sample and was released. He retained Aitken Robertson for his criminal defence team to fight the charges against him and ensure his clean criminal record remained so.

The Goals

A criminal record can have devastating impacts on both personal and professional life. After his charge was laid the police contacted Mr. M’s employer and he was forced to seek a new job. He would also have difficulty holding down a new position and visiting Canada in the future, which he enjoys doing for recreation if his charges stuck. He was clear from the beginning that he would not plead guilty just to get his license back faster, and so our goal was to either have the charges withdrawn or to have the charges lowered to a non-criminal offence.

The Strategy

Justin planned to deal with the situation by negotiating with the Crown in a pre-trial (CPT) and if needed take it before a judge in a judicial pre-trial (JPT). The former would be preferable, but the latter allows the judge to provide input and recommendation for the negotiation, which would assist in resolving the case without a trial.

There were several things Justin brought to the CPT and JPT, including condemnation of the breach of privacy by the police when they contacted Mr. M’s employer, the fact that border security was refusing to turn over video footage from the room Mr. M was held in, and the fact that Mr. M was not formally read his right to counsel on arrest.

Any one of these issues could have been reasonably strong in pressuring the Crown into making a deal, but together they painted a clearer picture; the entire incident had been an unprofessional disaster. We would showcase these issues to demonstrate how difficult a trial would be to obtain a deal.

The Results

After some meetings with the Crown and a JPT, the Crown offered a plea bargain; if Mr. M pled guilty to careless driving the refusal to provide breath charges would be dropped. While Mr. M was not interested in pleading guilty to the initial criminal charge, he was willing to plead guilty to a minor Highway Traffic Act offence– Careless Driving. This came with a small fine and a restriction on driving in Canada for a year, but no criminal record. He was happy with his outcome and we were glad to assist one of Canada’s frequent visitors.


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