The accused had been convicted of operating a motor vehicle while having more than 80 milligrams of alcohol in 100 milligrams of blood six weeks before being charged with refusal to provide a breath sample. A CPIC check revealed, to the police, that the accused had been convicted of a previous offence.

As was found in R. v. Middlebrook, [2002] O.J. No. 666, ss. 255(1) of the Criminal Code violates section 12 of the Charter. As there is no minimum mandatory jail sentence for second time offenders who cause bodily harm, the minimum mandatory jail sentence for simple refusal poses a grossly disproportionate punishment.