Regina v. E.K.S. [December 2016] – Checkstop

Section 254(2)(b) of the Criminal Code –  Refusal to provide a sample- Checkstop

While E.K.S. was on her way home from a work party, she was stopped by the Calgary Police Service at a Checkstop.   The investigating officer asked E.K.S. if she had consumed any alcohol. E.K.S., a professional who had never been in trouble with the law before, answered in an honest and forthright manner. E.K.S. told the officer she had one drink, unaware that a simple admission of any alcohol consumption typically gives the police the lawful authority to demand a sample of your breath on an approved screening device (Roadside tester). The investigating officer demanded a sample of E.K.S’s breath, and she agreed that she would provide a sample. Unfortunately for E.K.S., she suffered from a serious lung condition since birth that limited her ability to provide an adequate sample. As is often the case, the investigating officer was unwilling to believe E.K.S  and he charged her with the criminal offence of failing to comply with a breath demand. E.K.S’s criminal lawyer Sean Fagan was successful at convincing the Crown of the strength of the defence’s position and the Crown entered a stay of proceedings.