The Short Version:
a. If the police breach your rights, the breathalyzer certificate can be excluded.
b. If the breathalyzer certificate is excluded, in most cases you will win the trial.
The Long Version:
Canada is a modern liberal democracy, and so therefore it is unsurprising that people charged with criminal offences have civil liberties that are protected by the Constitution. For the most part, citizens of Canada go about their lives exercising their freedoms without even thinking about them. We take concepts like freedom of expression, freedom of mobility, and freedom of the press more or less as our birthright, and never give them a second thought.
In the criminal justice system, our constitutional civil liberties take on a heightened importance. The majority of our civil liberties are contained in a section of the Constitution called The Charter of Rights and Freedoms. Generally, these rights are similar to many of those found in the American Bill of Rights, although there are quite a few differences.
In an impaired driving context, some rights will be litigated more often than others. Some questions that an accused person will want to think about are as follows:
1. Was there a breach of section 8 of the Charter of rights and freedoms?
Section 8 deals with unreasonable search and seizure. In a DUI file, this typically refers to the seizure of the accused’s breath on either an approved screening device or a breathalyzer. If there was a breach, this can result in the exclusion of evidence, and a subsequent acquittal.
2. Was there a breach of section 9 of the Charter rights and freedoms?
Section 9 deals with arbitrary detention. Was the accused arbitrarily detained at some point in the investigation? Again, if the answer is yes, the evidence can be excluded and the accused may be acquitted.
3. Was there a breach of section 10(b) of the Charter rights and freedoms?
Section 10(b) deals with the right to counsel. Have the police interfered with the accused’s right to talk to a lawyer? If so, an acquittal is possible.