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Tom Rees | Criminal Defence Lawyer Winnipeg

Alberta Woman Convicted of Refusing to Provide Breath Sample

An Alberta woman has been convicted of refusing to provide a breath sample to police. Her lawyer argued that her Section 8 Charter rights had been breached, but the trial judge ruled that there had been no breach of the Charter.

The reasons for judgement in this case focus on the mens rea of the Refusal charge.

[21]           Section 254(5) is directed at preventing the result of non-compliance with the demand, regardless of how that non-compliance is effected.  The section speaks of a person who “fails or refuses to comply with a demand” made under section 254, but the words “fails or refuses” simply describe the only two ways in which a non-compliance can occur. In my view, those words were inserted to avoid arguments about whether a “failure” (in contrast to a “refusal”) could support a charge of prohibited non-compliance. The essential point to remember is that the object of section 254(5) is to prevent the result of non-compliance (without reasonable excuse) with a breath demand made under section 254, no matter how that non-compliance is brought about.

The Judge concluded:

[64]           For the reasons set out, I must very respectfully disagree with the decision of my learned colleague on the Ontario Court of Justice in R. v. Soucy,supra. I find that the mens rea for the offence created by section 254(5) of the Criminal Code is the intention to commit the acts which then resulted in the non-compliance with the breath demand.  The Crown does not need to prove that the accused person intended the result of non-compliance.

The Court ultimately convicted the woman of refusing to provide a breath sample.

Click here to link to the case