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DUI Defence: Inadmissibility of Evidence of Failure to Provide a Sample of a Bodily Substance

DUI Defence: InadmissibIlity of Evidence of Failure to Provide a Bodily Substance


Criminal trials must be kept fair, ensuring that judges and juries are not misled through the use of unfairly prejudicial evidence.

The Criminal Code includes some important and significant rules about evidence and how it can be used (or not used) against a person on trial for impaired driving.

One of these rules is about admissibility, and the effect is to prevent an inappropriate or even a secret conclusion about guilt or innocence. Section 320.31(8) bars the admissibility of any evidence that a person failed or refused to provide a sample of a bodily substance unless the person was required to provide the sample. If a person is not obligated by law to provide a sample of a bodily substance, then they don't have to provide one to the state.  The bodily substances referred to in the Criminal Code include breath, urine, saliva and blood. These samples range from less invasive (breath) to more invasive (blood).  It also takes time for the police to obtain a sample, which affects your liberty while you are detained,  and sometimes this can happen without access to legal advice through counsel.  Section 320.18(9) codifies the recognition that if evidence of a failure or refusal were admitted where there is no legal obligation to provide a sample in the first place, it would inject prejudice into the trial and may cloud the ability of the judge or jury to look at the proper evidence fairly.  If it was admitted it would be unfair and would not prove anything.

Section 320.18 is written in the law. It is what is known as a statutory rule of inadmissibility, but there are many other ways evidence can be excluded at a trial, based on the Charter of Rights and Freedoms and also the common law, largely found in the decisions of judges when they interpret the law in individual cases or even make pronouncements that have broad application, such as the decisions of appeal courts. 

On the flip side, there are also statutory and common law rules of admissibility which enable the crown to get evidence into the trial.  And there are rules which can generate legal presumptions about guilt. In the area of drinking and driving law, there are many rules that help the crown prove its case.

At Graydon McGeachy we know the law and we have the real courtroom experience to defend you at trial, where it counts. We use the Charter, statutory rules and the common law rules of evidence to fight for your rights and ensure that you have an excellent defence. We will closely examine every fact and every aspect of the crown case to defend your rights.

Make sure the lawyer you hire is experienced enough to know the law and is capable of arguing effectively against the use of inadmissible evidence!

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