Section 254(2)(b) of the Criminal Code of Canada

Refusal to comply with a Breath demand – Roadside Screening Device – Impaired Driving

Z.D.N. was parked in the alley behind a friend’s apartment when someone called the police and reported his vehicle as suspicious. The police attended the scene and detained Z.D.N., who was positioned in the driver’s seat. Z.D.N’s intoxicated friend was positioned in the driver’s seat and became adversarial with the police. The police officers detected the smell of beverage alcohol emanating from the vehicle and demanded that Z.D.N. immediately provide a sample of his breath into the approved screening device. Unfortunately for Z.D.N., he was unable to provide an adequate sample because of a medical condition. As is often the case, the officer was unwilling to believe Z.D.N.’s reasons for his inability to provide a sample and charged him with the criminal offence of failing to comply with a breath demand (refusal to provide a breath sample), which typically carries the same penalty as impaired driving, a minimum 1-year driving prohibition, a fine, and a criminal record.

These cases often involve the application of the Accused’s Constitutionally protected Charter rights – applications are brought to exclude evidence as a consequence of the violation of one or more of a person’s constitutionally protected rights. This case was no different. Sean Fagan brought an application to exclude the “refusal to provide a sample” as a consequence of the violation of Z.D.N.’s right to be secure against unreasonable search or seizure. In layman’s terms, Sean Fagan argued that the officers did not have the lawful authority to demand a sample of the Z.D.N.’s breath. Through cross-examination of the primary investigating officer, Sean Fagan successfully established that the search was unlawful. The evidence of Z.D.N. refusing to provide a breath sample was excluded from the trial, and the verdict was not guilty.