R. v. Binfet (J.R.), (2015) 608 A.R. 249 (PC)

R. v. Binfet (J.R.) (2015), 608 A.R. 249 (PC)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. FE.036

Her Majesty the Queen v. Joseph Robert Binfet (131469926P1; 2015 ABPC 15)

Indexed As: R. v. Binfet (J.R.)

Alberta Provincial Court

Fradsham, P.C.J.

January 23, 2015.

Summary:

The accused was charged with failing or refusing to comply with a breathalyzer demand. He was previously acquitted on a charge of impaired driving. At issue was the mens rea requirement for not complying with the demand, whether the accused refused or failed to comply, whether the accused had a "reasonable excuse" for refusing to comply and whether he had to prove that on a balance of probabilities, and whether his s. 10(b) Charter right to counsel was infringed.

The Alberta Provincial Court found the accused guilty.

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - The Alberta Provincial Court stated that an accused's s. 10(b) Charter right to counsel was suspended during the time an officer was attempting to obtain a suitable breath sample into an approved roadside screening device demand - See paragraph 45.

Criminal Law - Topic 1385

Motor vehicles - Impaired driving - Roadside screening test - General - [See Criminal Law - Topic 1386.3 ].

Criminal Law - Topic 1386

Motor vehicles - Impaired driving - Roadside screening test - Excuse for refusal - [See Criminal Law - Topic 1386.3 ].

Criminal Law - Topic 1386.3

Motor vehicles - Impaired driving - Roadside screening test - Refusal - The accused, who was involved in a motor vehicle accident, was given an approved screening device (ASD) demand and properly advised how to provide a suitable sample - Five attempts resulted in insufficient air flow to provide a suitable sample - The accused was charged with failing or refusing to comply with an ASD demand - A request for another opportunity was denied, as the officer opined that the accused was either intentionally providing an insufficient air flow or blocking the opening of the mouthpiece with his tongue - The accused argued that he lacked the breath to provide a suitable sample and was not intentionally failing to provide a suitable sample - The Alberta Provincial Court found the accused guilty - The mens rea was the intention to commit an act that resulted in noncompliance - That was proved beyond a reasonable doubt - The actus reus was proved where the accused was given ample opportunity to provide a suitable sample - The court rejected the argument that it was not proved where another officer might have given the accused further opportunities - Finally, the accused did not have a "reasonable excuse" for failing to provide a suitable sample - The accused had not complained at the accident scene to medical personnel or the police of any physical condition or injury that caused him to be short of breath - This issue was raised for the first time at trial - The court stated that the "issue of 'reasonable excuse' has not been brought 'into play'. The Crown is not required in this case to prove beyond a reasonable doubt the absence of a reasonable excuse." - See paragraphs 18 to 40.

Cases Noticed:

R. v. Ennis (R.L.), [2015] A.R. Uned. 128; 2015 ABPC 9, refd to. [para. 18].

R. v. Plante (J.D.) (2013), 559 A.R. 345 (Q.B.), refd to. [para. 29].

R. v. Ghessesow (S.), [2014] A.R. Uned. 194; 2014 ABQB 133, refd to. [para. 30].

R. v. Wurz (M.), [2014] A.R. Uned. 660; 2014 ABPC 222, refd to. [para. 31].

R. v. Kupina, [2004] O.J. No. 1942 (C.J.), refd to. [para. 34].

R. v. Ellis (B.F.) (2014), 601 A.R. 278; 2014 ABPC 253, dist. [para. 41].

R. v. Thomsen (1988), 84 N.R. 347; 27 O.A.C. 85; 63 C.R.(3d) 1 (S.C.C.), refd to. [para. 45].

Counsel:

Kevin Doyle, for the Crown;

James M. Lutz, for the accused.

This matter was heard at Calgary, Alberta, before Fradsham, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on January 23, 2015.