Section 254(2)(b) of the Criminal Code – Refusal to provide a breath sample
H.J. just finished dropping his friend off at home and was en-route to his own house when he was pulled over by a police officer. The police officer attended to the window of H.J.’s vehicle and immediately identified the smell of alcohol emanating from the vehicle, along with other indicia of impairment. The officer demanded that H.J. provide a sample of his breath into the roadside screening device (also known as the approved screening device or “ASD”). The ASD is used by the police to formulate the lawful authority to put a person on the breathalyzer back at the station. In this particular case, H.J. suffered from a lung and breathing problem, which H.J. believed would limit his ability to safely provide a breath sample. Consequently, H.J. refused to provide a sample of his breath. The police officer offered to call an ambulance to supervise the taking of a sample, but thereafter revoked the offer. H.J. was warned that he would be charged with the criminal offence of refusing to provide a breath sample, which typically carries with it the same penalty as driving while impaired – a fine and a 1-year driving prohibition for first-time offenders. But, H.J. still refused to provide a sample. H.J. was charged with refusal to provide a breath sample. H.J. was advised by his first lawyer that his likelihood of success was remote in the extreme, so H.J. retained Sean Fagan. Because there are mandatory minimum sentences for these type of offences, there is often little harm in exercising your right to a trial and putting the Crown to strict proof of the offence. In this case, not guilty pleas were entered and a trial date scheduled. Prior to trial, Sean Fagan put the Crown on notice of his intention to seek relief under the Charter of Rights and Freedoms for a violation of H.J.’s right to be free from unreasonable search or seizure (Section 8). As well as his intention to lead medical evidence in support of H.J.’s inability to safely provide a breath sample. Prior to trial, Sean Fagan was successful at having the matter resolved by way of the withdrawal of all charges.