Canadian Criminal Law/Offences/Impaired Driving and Over 80/Refusal

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General Principles[edit]

s.258

...

Evidence of failure to give sample
(2) Unless a person is required to give a sample of a bodily substance under paragraph 254(2)(b) or subsection 254(3), (3.3) or (3.4), evidence that they failed or refused to give a sample for analysis for the purposes of this section or that a sample was not taken is not admissible and the failure, refusal or fact that a sample was not taken shall not be the subject of comment by any person in the proceedings.

Evidence of failure to comply with demand

(3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(1)(a) or in any proceedings under subsection 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 254 is admissible and the court may draw an inference adverse to the accused from that evidence.

...

CCC

The offence of refusal is a general intent offence and so requires no more than a recklessness or knowledge of the mens rea.[1]

The offence can be committed in two ways, either by refusing or failing to comply with the demand.[2]

  1. R v Buffalo [2002] AJ 1641 (QB)
    R v White [2005] NSJ 62 (NSCA)
    R v Warnica (1980) 56 CCC (2d) 100 (NSCA)
    R. v. Porter, 2012 ONSC 3504 at para. 34
  2. R v MacNeil (1978) 41 CCC (2d) 46 (ONCA) at para 6-7

Valid Demand to Comply[edit]

See also Breath Sample Demand.

There is no requirement to have evidence as to the extent of chances available to a person who changes their mind.[1] Moreover, where the refusal is unequivocal there is no obligation for a "last chance" warning.[2]

There is no requirement that the police officer explain all the consequences of non-compliance to a valid demand.[3]

It is unclear whether the authority to make a demand under s. 254(3) includes the authority to have the accused taken to the location of the device or whether the accused must choose to accompany them.[4] However, a failure or refusal to accompany the officer to the device may not amount to a full refusal.[5]

  1. R. v. Kitchener, 2012 ONSC 4754 at para. 23
    R. v. McNab, [2001] O.J. No. 4738 (S.C.J)
    R. v. Gutierrez, [2001] O.J. No. 3659 (S.C.J.)
  2. R. v. Kitchener, 2012 ONSC 4754 at para. 31 citing R v Woods, 2005 SCC 42 at 45
  3. R. v. Danychuk, [2004] O.J. No. 615 (C.A.), 2004 CanLII 12975 (ON CA) at para. 2
  4. see R. v. Mandryk, 2012 ONSC 3964 (CanLII)
  5. ibid.

Refusal to Comply[edit]

The refusal to comply with the demand for a breath sample must be unequivocal.[1]

In a refusal case (as opposed to a "failing" case), it is irrelevant whether or not the breathalyzer was functioning properly. [2] However, in a fail case, it may be a valid defence to show that the device or instrument was not properly functioning.[3]

It is possible to refuse by body language such as turning away and closing eyes.[4] Or refuse by silence.[5]

Evidence should show that the device was working properly. This should include evidence that the device had been previously tested including the mouthpiece for obstructions. [6]

A refusal which is equivocal and closely followed by an offer, then the offence is not made out.[7]

It has been found that a reasonable excuse is not made out on the basis of officially induced error from an accused accepting the bad advice from duty counsel to refuse the breathalyser.[8]

  1. R. v. Desharnais 1988 ABCA 167;
    R. v. Cunningham (1989), 97 A.R. 81 (C.A.)
  2. R. v. Ealey, (1992), 101 Sask. R. 199 (Sask. Q. B., Hunter, J.
  3. R v Kosa (1992) 42 MVR (2d) 290 (ONCA)
    c.f. R v Young [2007] OJ 1776
  4. R v Page [1982] AJ 920 (QB)
  5. R v Lawson [2011] BCJ 1262 (SC)
  6. see R. v. Dolphin, 2004 MBQB 252 at 12 – police failed to give evidence of the testing of the machine
  7. R. v. Sagh (1981), 62 CCC (3rd) 521(Alta. C.A.)
  8. R. v. Hizsa, 2011 ABPC 358 at 34-41

Failure to Comply[edit]

A failure to comply with the demand arises where a suspect makes either genuine or faked attempts at providing a sample.

An intention to fake a sample must be proven by the Crown beyond a reasonable doubt.[1]

  1. R. v. Sceviour, 2010 NLCA 47 (CanLII) at para. 14

Change of Mind[edit]

A refusal almost immediately followed by a change of heart may not amount to a full refusal.[1]

A shorter turn around time of 5 minutes can be seen as equivocal.[2]

Where there is a full refusal and after 15 minutes an offer to take the test, then the offence is made out. The two events are entirely separate.[3]

Where there is an unequivocal refusal, there is no requirement on the officer to offer a second chance at giving the ASD test.[4]

  1. R. v. Cunningham, (1989), 49 CCC (3rd) 521
  2. R v Hiebert, 2012 MBPC 5
  3. R. v. Butt (1983), 44 Nfld. & PEIR 297
  4. R. v. Komenda, 2012 BCSC 536 citing numerous cases on the issue
    c.f. R. v. Domik (1979), 2 M.V.R. 301 (Ont. H.Ct.J.), aff’d [1980] O.J. No. 710 (Q.L.) (C.A.)

Reasonable Excuse[edit]

It is of some debate whether an explanation for not providing a sample is a reasonable excuse or a failure to prove the mens rea.[1]

The burden of proving there was no reasonable excuse is simply on raising a doubt.[2]

An offer to provide a sample through other means such as a blood sample is not sufficient to be a “reasonable excuse”.[3]

A person who refuses the breathalizer on the basis of advice from the duty counsel phone call cannot amount to a reasonable excuse. [4]

  1. R. v. Westerman, 2012 ONCJ 9 at 16
  2. R. v. Goleski, 2011 BCSC 911
  3. R. v. Taylor, 1993 BCJ No. 365 C.A.
    R. v. Weir, 1993 N.S.J. No. 58 C.A
  4. R. v. Hizsa, 2011 ABPC 358 at 34-41

Other Issues[edit]

Where the suspect offers to give a blood sample instead of giving a breath sample in the ASD or breathalizer, the officer is at liberty to seek a voluntary blood sample. The officer may only demand a blood sample in place of a breathalizer sample if the officer believes that the "suspect is incapable of providing breath samples".

The officer may also demand that that the suspect perform a physical coordination test in place of a roadside demand (s. 254(2)(a)).