REFUSAL - THE CROWN NEVER HAS TO PROVE A NEGATIVE - S. 794(2)

The Supreme Court of Canada has upheld a BC case (see R. v. Goleski, 2014 BCCA 80, March 16, 2014 blog entry) which concluded that once the Crown has proven a proper demand, a failure or refusal to provide the required breath sample and an intention to fail or refuse to provide the required sample, the persuasive burden then shifts to the accused to show a "reasonable excuse" for not providing a breath sample:

In our view, the British Columbia Court of Appeal correctly concluded that s. 794(2) properly interpreted, imposes a persuasive burden on the accused to prove an “exception, exemption, proviso, excuse or qualification prescribed by law”. R. v. Goleski, 2015 SCC 6

SECTION 10(B) - RIGHT TO COUNSEL WHEN THE SUSPECT WANTS TO CALL A FAMILY MEMBER

This was a case where Mr. O’Connor, who was 31 years old, wanted to call his parents to obtain the name of the family lawyer. The police officer, to assist Mr. O’Connor, made several calls to the numbers where the parents might have been reached but was not able to reach them. Mr. O'Connor did not want to call anyone else and eventually refused to provide a breath sample.  He was convicted at trial and that conviction was upheld by the Saskatchewan Court of Appeal. A portion of the trial judgment (R. v. O'Connor, 2012 SKPC 174) stated:

 [Case law] requires that we consider whether the accused was diligent in exercising his right to counsel.  [S]uch diligence is demonstrated where an accused, when efforts to contact counsel of choice have failed, avails themselves of other options such as alternate counsel or Legal Aid.  This is especially so where circumstances such as the time of day or repeated failed phone calls dictate that counsel of choice is not expected to become available or accessible within a reasonable period of time. R. v. O'Connor, 2015 SKCA 9

SECTION 10(B) - RIGHT TO COUNSEL AND DRE DEMANDS

Mr. Fogarty was convicted of impaired driving causing death and dangerous driving causing death:

His car collided with an oncoming Mustang on a highway outside Antigonish.  Two occupants of the Mustang died. The police suspected that Mr. Fogarty had drugs in his system.  The officer demanded that he undergo a drug recognition evaluation. Before the evaluation, the officer notified Mr. Fogarty of his right to consult counsel, and Mr. Fogarty spoke to counsel.  After the evaluation, the police demanded that Mr. Fogarty give a blood sample under s. 254(3.4) of the Code.  The police did not give Mr. Fogarty an opportunity to consult counsel again before his blood was taken. Mr. Fogarty appealed his convictions, arguing that the failure to give him an opportunity to re-consult counsel before his blood was taken violated his rights under s. 10(b) of the Charter.  

The Nova Scotia Court of Appeal confirmed three situations where a detainee would have a constitutional right to re-consult counsel: 1. New procedures involving the detainee, 2. Change in jeopardy, and 3. Reason to question the detainee’s understanding of his section 10(b) right. 

The Court dismissed his appeal and upheld his convictions as they concluded that none of those three situations applied to an officer demanding a drug recognition evaluation and then demanding a blood sample:

"The DRE and blood demand are not disjunctive investigative techniques.  Rather, the DRE culminates in the fluids demand."  R. v. Fogarty, 2015 NSCA 6

CERTIFICATE - SERVICE OF CERTIFICATE PROVEN BY RELYING ON "STANDARD PRACTICE"

The sole issue raised in Mr. Vanberg's appeal of his .08 conviction was whether he had been served with the certificate of analysis prior to trial. The constable testified that she served the applicant with a bundle of documents that (by standard practice) included the certificate.  Mr. Vanberg's appeal was dismissed:

The trial judge is required to find whether the Crown had proven that fact, and did not have to delve into nuanced distinctions about why the police constable was of that view. The proposed difference between a standard practice of serving a bundle of documents containing a particular document, and serving the particular document, is not a necessary step in the analysis. There was no evidence from the defence that the certificate was not served. R. v. Vanberg, 2014 ABCA 449

EVIDENCE TO THE CONTRARY - DOES "BURPING" AFFECT THE PROPER OPERATION AND FUNCTIONING OF THE INSTRUMENT?

Mr. So appealed his conviction at trial to the Alberta Court of Appeal on the issue above (see February 1, 2014 blog entry).  His appeal was dismissed and his conviction upheld:

To rebut the statutory presumptions an accused must establish to the reasonable doubt standard: (a) a deficiency in the functioning or operation of the instrument; and (b) that the deficiency directly related to the reliability of the breath test results. The appellant failed to raise a reasonable doubt on both (a) and (b) above, that there was “evidence tending to show ... that the approved instrument was ... operated improperly”. All that could be said from this record is that the appellant burped and the technician, not knowing about it, did not turn his mind to the possibility of mouth alcohol. That alone did not raise a reasonable doubt that there had been non-compliance with the Manual, let alone point to any evidence directly relating any such non-compliance to the reliability of the test results. R. v. So, 2014 ABCA 451