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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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Search Warrants in Drinking and Driving Cases - Legal Brief News

Motor Vehicle Collision in Mirror

search warrants for dui cases

Search Warrants for Bodily Fluids

In some drinking and driving cases, the police obtain a search warrant to obtain a sample of bodily fluids from the accused in order to submit them to be tested for the presence of alcohol or drugs.

In order to defend drinking and driving cases involving search warrants at a high level of expertise, a lawyer needs to develop a deep understanding of search warrants, how they can be issued and when the police do or do not have proper grounds for the warrant.

Searches by police must be reasonable.  This means that they must be authorized by law and among other things, carried out reasonably. A warrantless search that does not have constitutionally valid statutory authorization is presumptively unreasonable.  Additionally, even if there is a search warrant, the warrant itself must be issued according to law and carried out reasonably in order to be compliant with the Charter of Rights and Freedoms.  Sometimes police arguably carry out their searches in a way that is not compliant with the Charter, even if they have a warrant! A defence lawyer should know how to raise these issues in court and seek justice for the client.

It is difficult to challenge a search warrant. Most warrants are valid and will be upheld by the court.  They are issued by a Justice of the Peace or a Judge in the first place.  The test for challenging the issuance of a search warrant involves establishing that the issuing justice could not have validly issued the warrant in the first place.

Challenging a warrant is complicated and involves a number of issues including an evaluation of the contents of a sworn statement by a peace officer commonly known as the "Information to Obtain" ("ITO").  This ITO must contain sufficient information to support the decision to issue the warrant.  There are legal tests and requirements involved and an experienced and a knowledgeable defence lawyer will be able to assess those and provide advice on whether this aspect of the warrant is problematic for the prosecution.

When deciding who to hire as your defence lawyer we encourage you to ask questions and make sure you are hiring the right lawyer for you.

We recommend that you do not plead guilty to any criminal offence without first obtaining full and thorough disclosure from the Crown and hiring an experienced criminal lawyer to evaluate the investigation and provide you with a clear opinion about the strengths and weaknesses in the Crown case.

Call us for a free consultation.  Gerry is a Certified by the Law Society of Ontario as a Specialist in Criminal Law and has extensive formal training in search warrant issues and real courtroom experience dealing with challenges to search warrants.

The contents of any blog posts by any of the lawyers or staff at Graydon McGeachy Law LLP are not legal advice.  They are commentary only and should not be relied on and do not represent the views of the firm or any of the firm's clients.

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