Giselle's Case — Refuse Breath sample — Dismissed

Client:  Giselle, Accused
Complainant:  Toronto Police Force, 42 Division
Charge:  Refuse to Provide Breath Sample

Background:  Giselle was driving home when she was stopped by the police. They suspected her of drinking and driving. They asked her for a breath sample. The police alleged that she responded: "No, I won't be giving you a sample." They also alleged that she afterwards made seven insufficient attempts to blow, failing each time and complaining of bronchitis. Giselle retained me the next day.

READ THE POLICE REPORT

Goals:  Giselle was in disbelief over what had happened. Like most of my clients, Giselle was anxious to press ahead and get the ball rolling. Unlike most of my clients, however, Giselle was so anxious to proceed that, at the first Court attendance, she had me review her disclosure immediately in the hallway outside of the Court room. She then wanted me to conduct a pre-trial meeting with the Crown in the hope that we might get the charge withdrawn. At that Crown pre-trial meeting, the Crown wasn't interested in hearing about Giselle's medical explanation. After the meeting with Crown, Giselle's instructions crystalized:  get the charge dismissed at trial.

Strategy:  Having scheduled the trial, we hired an expert to explain why Giselle couldn't provide a proper breath sample. That was our intended defence. A few months before the first trial date, the Crown asked for an adjournment. The trial was re-scheduled for an earlier date. On the second trial date, the Crown said they were not ready, and received another adjournment. By the time we reached the third trial date, 14 months and 6 days had passed. Before trial, I filed written submissions arguing that the total delay was unreasonable, and that the charge should be dismissed because of the delay.

READ THE WRITTEN SUBMISSIONS

Results:  The Judge agreed. The charge was stayed. (A "stay" is the legal equivalent of an acquittal. Think of it as a permanent freeze of the proceedings.)

READ THE JUDGE'S DISMISSAL OF THE CHARGE