Refusal to Blow Charge Dismissed After Charter Breach
Criminal Law ·
Charged with impaired driving or refusal? See how we can help or call (289) 652-0529.
Your Rights in the GTA: How Police Errors Can Affect a Refusal to Blow Charge
A charge of Refusal to Provide a Breath Sample under the Criminal Code is one of the most serious driving offences you can face in Ontario. It carries the same harsh penalties as a conviction for impaired driving, including significant fines, an automatic driving prohibition, and a criminal record.
However, many refusal cases are vulnerable to challenge, especially when police violate a fundamental right guaranteed under the Canadian Charter of Rights and Freedoms.
At IQBAL LAW, your trusted DUI Lawyer Mississauga, we meticulously review every detail of your traffic stop and arrest. A recent case, originating in Markham but setting a critical precedent for all of the Greater Toronto Area (GTA), perfectly illustrates the power of a strong Charter Rights Defence.
The Case: Multiple Charter Breaches Led to Acquittal
The accused was stopped in Markham for a license plate issue. During the stop, police noted an odour of alcohol and demanded a breath sample into an Approved Screening Device (ASD). The accused, asserting their Right to Counsel, refused to provide the sample and was charged.
In court, the experienced defence team successfully argued that the entire process was tainted by police misconduct and Charter violations, resulting in a full acquittal.
Crucial Errors: Why the Police Action Was Unlawful
The defence successfully exposed three major breaches that undermined the Crown's entire case. If you are facing similar charges in Mississauga, these are the issues that a defence lawyer will investigate:
1. The Unlawful Arrest (Section 9 Breach)
The court found that the initial arrest for the license plate issue was arbitrary and lacked the required reasonable and probable grounds. The police officer failed to properly investigate the accused’s explanation before proceeding with the arrest, making the detention unlawful from the start.
2. Unreasonable Search of the Vehicle (Section 8 Breach)
The officer’s action of opening the car door to secure the keys, when they could have been secured through an open window, was ruled an unreasonable search and seizure. Every Canadian has a reasonable expectation of privacy in their vehicle, and the police cannot violate that right without proper legal authority.
3. Denial of the Right to Counsel (Section 10(b) Breach)
Perhaps the most critical breach: the police failed to facilitate the accused’s S. 10(b) Right to Counsel without delay for nearly two hours after the breath demand was made. The police improperly prioritized their administrative paperwork over the constitutional right of the accused to seek legal advice before being compelled to submit to a demand. This delay was deemed an unjustified denial of a fundamental right.
The Result: Exclusion of Evidence Under S. 24(2)
The court's decision hinged on the Exclusion of Evidence S. 24(2) of the Charter.
The smell of alcohol—the evidence that justified the ASD demand—was obtained after the initial Unlawful Arrest. Without this evidence, the demand was invalid.
Alternatively, the court found that the cumulative impact of the serious S. 8 and S. 10(b) breaches was so egregious that admitting the evidence of the refusal would bring the administration of justice into disrepute.
Because the evidence of the refusal was excluded, the charge was dismissed. This case serves as a powerful reminder that police must strictly adhere to the law when enforcing impaired driving legislation.
Protect Your Future in Mississauga – Contact IQBAL LAW
If you have been charged with Refusal to Provide a Breath Sample or any impaired driving-related offence in Mississauga, Brampton, Peel Region, or the GTA, you have strong constitutional rights that can be used to protect your freedom.
Don't assume your case is hopeless. The successful defense of your case depends on a DUI Lawyer Mississauga who understands the intricacies of the Charter.
IQBAL LAW is ready to meticulously examine the police procedure, identify any Charter Breaches, and build the strongest possible defense for you.
📞 Contact IQBAL LAW Today for a Confidential Consultation
If your rights were violated during a traffic stop, call our Mississauga office immediately.
Protect Your License. Protect Your Freedom. Contact IQBAL LAW.
Questions about this topic? See our page on impaired driving and refusal charges in Mississauga, or call (289) 652-0529.
Frequently Asked Questions
What does "Refusal to Provide a Breath Sample" mean, and what are the penalties in Ontario?
Refusal to Provide a Breath Sample" means you failed or refused to comply with a police officer's lawful demand for a breath sample (either into an Approved Screening Device at the roadside or a breathalyzer at the station). In Ontario, a conviction carries the same severe penalties as impaired driving, including an automatic criminal record, a minimum $1,000 fine, a mandatory one-year driving prohibition, and potentially higher insurance rates. This is why having an experienced DUI Lawyer Mississauga is crucial.
Can I refuse a breath sample if I haven't spoken to a lawyer yet?
You have a Charter Right to Counsel (s. 10(b)) when you are detained. If police demand a breath sample, you have the right to speak with a lawyer without delay. If police fail to facilitate this right or tell you that you don't need a lawyer before providing a sample, any evidence obtained afterward might be excluded. This was a key factor in the case discussed in our blog, leading to the Refusal to Blow Charge Dismissed.
What constitutes an "Unlawful Arrest" or "Arbitrary Detention" in Ontario?
An Unlawful Arrest or Arbitrary Detention (s. 9 Charter) occurs when police stop or arrest you without reasonable and probable grounds to believe you have committed an offence. For example, if an officer pulls you over for a minor traffic infraction but then arrests you for something more serious without sufficient evidence, your arrest may be deemed unlawful. If your arrest was unlawful, crucial evidence might be excluded from your trial. An experienced Criminal Lawyer Mississauga can assess if your detention was arbitrary.
How do "Charter Breaches" impact my refusal to blow case?
Charter Breaches are violations of your fundamental rights under the Canadian Charter of Rights and Freedoms. These can include unlawful arrest (s. 9), unreasonable search (s. 8), or denial of your right to counsel (s. 10(b)). If a Charter breach is proven, the court may exclude evidence (s. 24(2)) obtained as a result of that breach, which can lead to a dismissal of your charges. As seen in the blog post, cumulative breaches can be very powerful in your defence.
What should I do if I've been charged with Refusal to Provide a Breath Sample in Mississauga or the GTA?
If you're facing a Refusal to Provide a Breath Sample charge in Mississauga, Brampton, Peel Region, or anywhere in the GTA, the most important step is to contact an experienced DUI Lawyer Mississauga immediately. Do not discuss your case with anyone but your lawyer. At IQBAL LAW, we will review all the details of your stop, arrest, and police procedure to identify any potential Charter Breaches and build a robust Impaired Driving Defence strategy.
: What is the "Exclusion of Evidence under Section 24(2)" and how does it relate to my case?
Section 24(2) of the Charter allows a court to exclude evidence if it was obtained in a manner that violated your Charter rights, and if admitting that evidence would bring the administration of justice into disrepute. This is a powerful tool used by defence lawyers to have illegally obtained evidence, such as your refusal to blow, deemed inadmissible, often resulting in a Refusal to Blow Charge Dismissed.