Ontario Criminal


No innocent explanation for inability to provide breath sample

Accused appealed his conviction for refusing to provide breath sample. Accused was driving home after playing golf and attending bar, his car struck two vehicles that were stopped in front of him at red light. Police investigated and charged him with impaired operation, dangerous operation and failing to provide breath sample. He was convicted of only refusal count. Occupants of other two cars testified accused appeared intoxicated. One conceded he could have been in shock. Officer believed accused’s ability to drive was impaired by alcohol because his eyes were bloodshot and glassy, his speech was slow and slurred, he was somewhat unsteady on his feet, and he had surprising odour of alcohol on his breath; accused told officer he had been at tavern where he consumed non-alcoholic beer. Officers at detachment called paramedics out of medical concerns for accused. Accused became combative with paramedics and police. He refused to let paramedics treat him or check his blood sugar. While at hospital accused refused to allow any blood to be drawn. He also refused to provide urine sample when asked after he was finished with breath technician. Officer testified that as soon as breath demand was read, accused started to breathe very rapidly and started to yell that he was in intense pain. He then calmed down; when given opportunity to provide sample, he did not breathe into mouthpiece. Accused gave conflicting version of events to that of officer witness and insisted neck pain impeded his efforts to provide sample. Appeal dismissed. Trial judge found that in examination-in-chief and in cross-examination, accused prevaricated continuously, was argumentative and, on at least one occasion, angry with Crown Counsel. It could not be suggested that record was devoid of any bases upon which trial judge could have reached that conclusion. Court was unable to see where trial judge conflated issues or reversed onus. There was evidence upon which trial judge could have convicted. Even factoring in unusual circumstances of case, court was not persuaded trial judge had to acquit. Trial judge finding that accused’s sudden inability to breathe was inexplicable, did not put onus on accused. Since accused’s evidence was denial that he deliberately quit breathing when given mouthpiece, there was no innocent explanation for inability to breath. Conclusion that there was no explanation was fair comment on record and not reversal of onus.

R. v. Butler (Apr. 30, 2013, Ont. S.C.J., Durno J., File No. Orangeville 46/11) 106 W.C.B. (2d) 491.

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