Location: Hamilton Ontario Court of Justice 


Hamilton Police were dispatched to a motor vehicle collision. Police received information that a male was attempting to drive a damaged vehicle with the rear bumper being dragged on the ground. The police also received information that the male had been stabbed and was trying to drive to the hospital. Police arrived in the area and observed the vehicle parked in a private lot entrance. There was a male sitting in the back seat of the car. Police observed two stab wounds to the male’s left arm. The male advised that he had attempted to drive to the hospital. Police detected an odour of alcohol on the male’s breath and noted he had red and glossy eyes as they spoke. An ambulance arrived and the client was taken into the ambulance to have his stab wounds assessed. The police later entered the ambulance and arrested the client for impaired driving. Breath samples were demanded and taken in hospital. 


The stab wounds that were inflicted on our client that day were not superficial. Significant surgery was required to repair the damage to the client’s left arm and a large amount of blood was lost. The first and most obvious issue was whether or not there existed a defence of necessity or possibly duress. Even if a necessity or duress defence failed, the defence researched and found that the breath samples were likely to be found unreliable due to the issue of blood loss and injury sustained prior to the taking of the client’s breath samples. 

After discussion with the client it was also clear that the client’s access to counsel within the hospital was not done in private. The defence position was that the implementational component of access to counsel was not afforded to the client and therefore the client’s section 10(b) right to counsel as guaranteed by the Charter of Rights and Freedoms was violated. 


The facts of this case involved a significant amount of scientific research to support the defence position that following the significant blood loss stemming from the client’s stab wound, the breath tests were rendered unreliable. Research in relation to the issue of necessity and duress was completed. A Crown pre-trial was scheduled and conducted. 

Following the Crown pre-trial, a Judicial pre-trial was scheduled where the strategy was to present case law and research to support a withdrawal of criminal charges.


Following the Judicial pre-trial, the Assistant Crown Attorney agreed that the triable issues were so great that the charges should be withdrawn. Between the date of these allegations and the Judicial pre-trial, the client had also failed to appear for a court date and was subsequently charged with failing to appear to court. The defence provided evidence that this was following a subsequent surgery where the client was heavily dosed with pain medication and simply mixed up the dates and had no guilty mind, or mens rea, in failing to appear for court. The Crown also withdrew this criminal charge, resulting in all criminal charges being withdrawn for our client.