REFUSAL - THE ACCUSED MUST PROVE ON A BALANCE OF PROBABILITIES THE FACTS ASSERTED AS GIVING RISE TO A REASONABLE EXCUSE
Sunday, March 16, 2014 at 8:56PM Mr. Goleski was tried and convicted of failing or refusing to provide a breath sample. He testified he deliberately refused to comply with a breathalyzer demand because he believed the investigating officer would not accurately report the results. That belief was premised on the officer having lied to Mr. Goleski about why he stopped the vehicle Mr. Goleski was driving. The trial judge held that the persuasive burden was on Mr. Goleski to establish a reasonable excuse on a balance of probabilities. Being of the view that both Mr. Goleski and the officer were believable witnesses, the trial judge found Mr. Goleski had failed to meet that burden. The BC Court of Appeal, referring to earlier cases, agreed with the trial judge's approach:
The elements of the offence that the Crown must prove are: (i) a proper demand; (ii) a failure or refusal to provide the required breath sample; and (iii) an intention to fail or refuse to provide the required sample. The defence of “reasonable excuse” is not a denial of those essential elements but refers to “matters which stand outside the requirements which must be met . . . before a charge can be supported”. R. v. Goleski, 2014 BCCA 80