Ms. L was driving her vehicle on a minor highway near Oshawa. While Ms. L was driving, another driver on the roadway called 911 to complain about poor driving by a vehicle similar to Ms. L’s vehicle. Police were dispatched to the area and came upon Ms. L’s vehicle. Police followed Ms. L’s vehicle for nearly five-minutes to see about poor driving. Ms. L’s vehicle on two occasions crossed the double-yellow painted lines on the roadway. When police turned on their lights to pull-over the vehicle, Ms. L signalled the wrong indicator to stop at the side of the road, though all other aspects of her driving were appropriate. When police engaged Ms. L in conversation, the investigating officer assessed Ms. L as normal in appearance and without any signs of intoxication. However, the investigating officer noticed a heavy smell of perfume, and they suspected the perfume might have been applied to mask alcohol odour. After the investigating officers conferred in private, the police re-attended to Ms. L to demand a roadside breath test into an Approved Screening Device.
Ms. L agreed to provide a breath sample, but after four unsuccessful attempts the officers charged Ms. L for refusing to provide a sample.
The Crown opposed any kind of resolution avoiding a criminal record, and they sought a conviction for the refusal. The minimum penalty for this offence is a $2,000.00 fine plus the victim fine surcharge, and a one year driving prohibition.
Win at trial.
A two-pronged approach was taken to litigation. First, the defence filed an application under the Charter of Rights and Freedoms prior to the trial dates. Second, the defence focused litigation on the quality of evidence available to the police at the time of the investigation. To do this, Mr. Marchand agreed to concede the trial if the Crown could establish that the police had valid grounds to demand an Approved Screening Device. In this way, the defence did not at all focus on issues after the demand for the Approved Screening Device.
Ms. L was acquitted of the charge. In the Court’s judgment, the court agreed with Mr. Marchand’s argument that the observations by police did not reach a threshold suspicion to authorize a demand for a breath sample into an Approved Screening Device. The court also agreed with Mr. Marchand, that it is no crime in law to refuse a demand that is not itself authorized in law.