Section 253(a) of the Criminal Code of Canada – Impaired Driving – Bad legal advice
J.S. faced charges of impaired driving and refusing to provide a breath sample without a reasonable excuse. The police observed J.S driving in a manner that led the police to believe J.S. was impaired. The police arrested J.S. and demanded that he provide a sample of his breath. Upon the advice of his lawyer at the time, J.S declined to provide a sample of his breath. Unfortunately for J.S., the advice of his lawyer was wrong in the circumstances. Moreover, the law at the time was such that “improper legal advice” was not a defence to this charge.
J.S. retained the services of impaired driving lawyer Sean Fagan. Sean Fagan scheduled the matter for trial and filed a Charter notice alleging breaches of J.S.’s right not to be arbitrarily detained (Section 9 of the Charter) and his right to be free from unreasonable search and seizure (Section 8 of the Charter). On the day of trial, the Crown conceded the strength of Sean Fagan’s position and withdrew all charges against J.S.