Ontario Criminal


Breathalyzer

REFUSAL TO PROVIDE SAMPLE
No suggestion of any physical impediment to provision of breath sample

Accused appealed conviction for refusing to provide breath sample into approved screening device. Accused drove vehicle and switched positions with female passenger before approaching police checkstop. Officer first spoke to female driver and then went to passenger side of vehicle to speak with accused, where he detected odour of alcohol from accused’s breath. When approved screening device was presented to accused, he did not provide proper sample, and device indicated that insufficient air was provided for sample to be analyzed. Accused made three or four unsuccessful attempts to provide suitable breath sample before officer inserted new mouthpiece and again demonstrated for accused how to provide proper sample. Accused had several more opportunities to blow, all of which resulted in reading of insufficient air. Accused testified that he did not consume any alcohol, that he had applied aftershave lotion on his face, and that he had no reason not to provide suitable sample of his breath into device. Accused and female testified that they switched positions in vehicle since she was more familiar with area, and that they were unaware of police checkstop. Trial judge rejected accused’s evidence and specifically accepted officer’s evidence wherever it conflicted with accused’s. Accused argued that trial judge failed to assess contradictions in evidence as to whether he had alcohol in his body preceding breath demand. Accused argued that trial judge erred in accepting officer’s evidence that he failed or refused to provide breath sample. Accused argued that trial judge failed or refused to assess “mens rea” aspect in assessing whether he had some reason to fail or refuse to provide breath sample. Appeal dismissed. Trial judge had evidential basis to reasonably find that officer detected odour of alcohol from accused’s breath and that accused intentionally failed or refused to provide suitable sample of his breath. Trial judge accepted and acted on evidence that accused was given several chances to provide suitable sample into device that was working properly. There was no suggestion of any physical impediment to provision of breath sample.

R. v. Vieira (Oct. 21, 2013, Ont. S.C.J., B.P. O’Marra J., File No. CR125000015400AP) 109 W.C.B. (2d) 540.

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