SECTION 7 - FAILING TO TELL AN OFFICER WHY YOU APPEAR DRUNK WHEN YOU ARE NOT, IS NOT A CRIME
Sunday, October 23, 2011 at 4:47PM The accused was charged with impaired driving. He testified that when police approached his vehicle he was experiencing an attack related to a chronic illness called malignant hypothermia. He even called medical evidence. The trial judge did not buy his story. The judge said that if he had been suffering an attack, surely he would have told the officer that or at the very least showed him his medic-alert bracelet. The appellate court disagreed with the trial judge. The court held that the trial judge improperly drew an adverse inference from the accused's right to silence. Essentially, the accused had the right not to say anything and because he chose to exercise that right, the court could not use his silence against him. R. v. Bowen, 2011 ONSC 4904.
Another trial judge made a similar error when he found that if an accused had genuinely been suffering an anxiety attack at the time that she was asked to provide a sample, she would have told the officer that. R. v. Rivera, 2011 ONCA 225