Stewart's Case — Refuse Breath demand — Withdrawn

Client:  Stewart K., Accused
Complainant:  Ontario Provincial Police
Charge:  Refuse roadside-screening-device demand, Criminal Code, s. 254(5)

Background:   At 58, Stewart was battling cancer. He was taking a naturopathic course of treatment. The medicine he was taking daily did not mix well with alcohol. As a result, he hadn't drunk any alcohol in over two years. He was also a successful engineer and director with a major international corporation. He hadn't been in trouble with the police his whole life. You are probably wondering how he, of all people, managed to get himself charged with a drinking-and-driving related offence. The reason is simple. Stewart was stopped by a police officer who believed that he had alcohol in his body. The police officer demanded that Stewart provide a breath sample into a roadside screening device. Stewart tried to provide the sample, but was having trouble doing so. The police officer believed that Stewart wasn't making an honest effort. The police officer then issued Stewart an Appearance Notice for Court. The Notice said that Stewart was being charged with failing to provide a sufficient breath sample into an roadside screening device. The criminal process was thus kicked into gear. Stewart was left at the side of road with his jaw hanging in disbelief. When Stewart first saw me, he was livid at being charged, and was still coming to terms with the fact that he "was charged" — a fact that he had to accept for the time being.

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Goals:  Stewart's main concern was his cancer. He and his wife were correctly worried about the stress of having the charge outstanding. If the case dragged on for months and months — a real possibility — they were worried about the debilitating effect the stress could have in his battle with cancer. Understandably, their primary goal was to the have the charge withdrawn early. Failing that, Stewart wanted to proceed to trial. A guilty plea was not in the cards. Sick or not sick, Stewart would fight to the end if necessary.

Strategy:  As you might expect, Stewart's explanation of what happened was markedly different from the police officer's. What every client must understand, of course, is that I cannot swagger into the Crown's office, boldly announce that the officer is obviously lying, and demand to have the charge withdrawn. Differences and discrepancies in the recollections of witnesses, police officers, and clients are common. How do we sort it out? "That's what trials are for," as one Crown put it. But I wanted to avoid going to trial. After reviewing all the evidence in Stewart's case — including his wife's statement (she was with him just before), his doctor's statement (he was with him earlier in the afternoon), his dentist's statement (to explain the pungent smell on his breath), and the naturopath's statement (she confirmed his treatment) — I was reasonably confident that, at some point, I would be successful in having the charge withdrawn or dismissed. The problem was "when?" I had a client suffering from cancer, and who might even succumb to the disease while waiting for trial. I decided to lay my cards on the table. I wouldn't normally do that, as I am under no obligation to tell the Crown anything in advance of the trial (subject to a couple of exceptions). With Stewart's health on the line, we felt that the tactical disadvantage of revealing our defence early was more than outweighed by the potential benefit of an early withdrawal. The downside was that the Crown might still proceed. If they did, the Crown would be better prepared for trial knowing in advance my defence.

Results:  The Crown was generally sympathetic. After some discussions with both the Crown and a Judge assigned to facilitate our discussions, the Crown agreed to withdraw the charge on one condition — Stewart would have to make a $500 donation to a cancer-related charity. It was an acceptable middle ground.

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