SECTION 258(3) - YOU CAN INFER IMPAIRMENT FROM REFUSAL, BUT NOT OPERATION
Sunday, July 19, 2015 at 12:29PM The issue in Mr. Rawn’s trial was the identity of the driver. The trial judge used, among other things, the inference in s. 258(3), which permits a court to draw an inference adverse to an accused from his or her failure or refusal to comply with a breathalyzer demand under s. 254. The appeal court confirmed that s. 258(3) allows an inference that someone is impaired, not an inference that they were operating a vehicle:
Like other statutory provisions that permit a court to draw an adverse inference, s. 258(3) does not show its hand to reveal the precise adverse inference it has in mind. The inference, like any inference from circumstantial evidence, must be logical and reasonable, not illogical or speculative. On this basis, the adverse inference permitted by s. 258(3) must be concerned with impairment and an accused’s state of mind on that issue. It is not a reasonable and logical inference from refusal to provide a breath sample that the person who refused was the operator or had the care or control of a motor vehicle. R. v. Rawn, 2015 ONCA 396