Not saying it does not happen, but I have never made any driver do any physical tests at roadside or at the office.
Your raise a good point.....imaginge all those things you mentioned at once and defense asks the officer to do them in court as a demonstration and can't .....doh!
I suspected as much. Sounds like in this, as in many things, our police methods are more sensible (and at least as effective) as the cowboy stuff we see on that TV show. Breathalizer readings are surely better evidence than the accused's ability to perform feats of strength and agility on the spot. (And either would beat what I heard so often as the key evidence in what was then called Magistrate's Court: "His face was flushed, his eyes were glazed, his speech was slurred, he was unsteady on his feet, and his breath smelled strongly of alcohol, your Honour!" To be historically correct, that formula should be recited with only the slightest break, if any, between the individual words.)
Everyone in Canada (other than Quebec and the Yukon) has a valid and reasonable excuse to refuse to blow. They cannot be convicted for refusing either.
Only Quebec and the Yukon do not provide for provincial suspensions because they have governments that understand law.
Read s. 48 of the Highway Traffic Act and s. 254 of the Criminal Code.
Section 254 only allows the test results to be used for s. 253. The government cannot use the test results for the Highway traffic Act short term suspension.
The province improperly and illegally uses the results for HTA suspensions and this fact provides everyone a reasonable excuse to refuse to blow as you are subjecting yourself to an unconstitutional sanction.
HTA s. 48.8 also provides a presumption clause which expressly states;
"It shall be presumed, in the absence of proof to the contrary, that any approved screening device used for the purposes of subsection (2) has been calibrated as required under subsection (7)."
Subsection (eight) refers to ss. (7), which refer to ss. (2), which in turn refers to, and relies on, Code. s. 254.
This elaborate legislative scheme contemplates and provides for elements of positive certainty such as the official approval of certain kinds of instruments, the designation of analysts and qualified technicians, a maximum time period between the commission of the alleged offence and the taking of a breath sample, and the reading by a qualified technician on an approved instrument of a proportion of alcohol in the blood in excess of a specified proportion. Once the conditions prescribed or contemplated by this scheme are fulfilled, a presumption arises against the alleged offender which he can rebut by tendering "evidence to the contrary."
The HTA uses the wording "proof to the contrary." The expressions "evidence to the contrary" in Code s. 258(1)(c), "any evidence to the contrary" implicit in s. 258(1)(g) and "evidence tending to show" in s. 258(1)(d.1) reflect this same standard.
Proof to the contrary is akin to the aforementioned Code sections and the difference in wording is not meaningful for the purpose of determining what type of evidence will rebut the presumption, the standard of proof or who bears the burden of proof.
Section 48(eight) presents a significant hurdle for an accused, but the presumption it provides for is not absolute, nor can it be without threatening the presumption of innocence. It creates a legal fiction, but not an absolute one. The presumption can still be rebutted by adducing evidence tending to show that the concentration of alcohol in the blood of the accused was not within the provincial statutory limit at the relevant time.
The HTA provides no principles for determining what evidence is admissible. One cannot point to any particular part of the range of possibilities to constitute evidence to the contrary. One must look at the evidence; that is the whole range of possibilities. The presumption of accuracy is not rebutted by demonstrating a range of possible alcohol levels, giving rise to conjecture as to whether or not the blood alcohol content was within the legal limit at the material time. Conjecture does not tend to show anything. Something more is needed to rebut the statutory presumption of the accuracy of the test.
Nevertheless, the probative value of such proof is irrelevant for the purpose of this discussion; the point is that the provision requires a decision be rendered by a trier of fact before the suspension can be imposed. BUT NO HEARING IS PROVIDED.
The standard of proof that must be met to rebut the presumption of accuracy is reasonable doubt. The trier of fact does not have to be satisfied on a balance of probabilities and the accused has no burden of proof. The Province bears the burden and the burden never shifts to the accused. The choice whether to submit to a rebuttal belongs to the accused and he or she retains the right to introduce such evidence despite its weaknesses.
Evidence to the contrary that is adduced to rebut the presumption of accuracy must tend to show, but it need not prove, that the reading does not in fact correctly reflect the blood alcohol level at the time of the breath test. The exculpatory evidence must have probative value, but it need not be so cogent as to persuade the fact finder; it is sufficient if the evidence raises a reasonable doubt.
Nonetheless, reasonable doubt applies to criminal matters, not administrative matters. The HTA suspension is an administraive sanction.
Moreover, section 253 of the Code covers all BAC levels in Canada.
Section 253(a) cover any degree of impairment; from slight to great.
Section 253(b) covers limits exceeding .08
Section 48 of the HTA covers .05 to .08
Thus by the doctrine of paramountcy the HTA BAC levels conflict with federal statute (253(a)) and the HTA limits are of no force and effects as mandated by s. 52 of the Constitution Act 1982.
Therefore, like it or not, the HTA suspensons are unconstitutional and of no force and effect and becaue the provinces apply them, with the federal governments full knowledge; every citizen has a reasonable excuse to refuse to blow at all times.
DO NOT BLOW, EVER.
So your telling people NOT to blow on breathalyzer tests?
Do you realize it is a criminal offense and you will be charged with "Failure to provide a breath sample."
Yes, I am advising everyone to refuse to blow at all times other than in Quebec and the Yukon.
The criminal code provides defences. Section 254(5) provides a defence for refusing to blow; "a reasonable excuse."
Failure or refusal to comply with demand
254 (5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
We are being subject to unconstitutional sanctions, i.e., the short term suspensions without due process, which violates our charter rights. Your car is being illegally towed. An illegal lien is being placed on your property. This is a valid reasonable excuse to refuse to blow.
Both levels of governments are aware the short term suspensions are unconstitutional. They are fully aware the the provinces BAC level of .05 to .08 conflicts with the impaiment articulated in 253(a), which covers any degree of impairment, be it .01 to .08.
Code s. 253(a) is in force at all times and applies to everyone.
Provincial statutes that are virtually identical to a federal law raise no paramountcy issue as there is no inconsistency. The HTA can also be more demanding than the Code, but not less so. The fact that a provincial law imposes a stricter standard of conduct than a federal enactment does not violate the express contradiction test. Courts have reasoned that in such situations a person may obey both laws by complying with the stricter of the two. But as evidenced here, the co-existing laws and standard of conduct are not identical and the provincial suspension is vastly inferior to the federal fine and driving prohibition for the same committed act; so the contradiction test is met.
A true, actual and outright conflict only arises when one enactment compels what the other forbids.
By obeying the provincial HTA and only driving with less than a .05 blood alcohol level a person is still disobeying the federal Code and driving when the persons ability to operate the vehicle is impaired by any degree of alcohol.
By obeying the federal Code and only driving with a BAC below .08 you are still disobeying the HTA and driving with a BAC above .05.
Thus, the impossibility of dual compliance is met and the pluralist theory accordingly concedes that priority be given to federal statutory and regulatory provisions.
Multiple Access Ltd. v. McCutcheon,  2 S.C.R. 161, at p. 191
Code s. 253(a) articulates that "everyone who operates a motor vehicle while the persons ability to operate the vehicle is impaired by alcohol" is subject to a fine and mandatory minimum one year driving prohibition for a first offence.
The HTA imposes a 12 hour licence suspension (suspension(s)) for blowing between .05 and. 08.
However, no division of power is available to the Province to impose a lesser penalty for blowing under .08 when greater penalties are entrenched in federal legislation for same committed act under the broad scope of Code s. 253(a). The suspension conflicts with, interferes with, infringes upon, and frustrates the Criminal Code minimum one year driving prohibition.
Bank of Montreal v. Hall,  1 S.C.R. 121 at pp. 151 and 154.
The Supreme Court of Canada determined a double aspect doctrine exists, but it cannot apply in respect to BAC levels for the Code covers the field exclusively, removing any doubt or uncertainty that the Province can impose a suspension. Where a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict; thus, suspensions are unconstitutional and of no force and effect due to the doctrine of federal paramountcy.
The double aspect doctrine permits both levels of government to legislate in one jurisdictional field for two different purposes; however, both governments legislate in the pith and substance of public safety; so the provincial legislation fails. The federal characteristics of this subject matter are palpably more important than the provincial characteristics. The importance both governments place on the conduct is distinguishable by the imposed sanctions each level applies for the same committed act; i.e., provincial 12 hour suspension versus federal criminal record, $1,000 fine and one year driving prohibition.
Additionally, the provinces view that it can operate its own prohibition notwithstanding the prohibitions contained in the Code is fatally flawed. By entering the .05 to .08 BAC level fields, the Province deprives the federal government of enforcing those levels within Code s. 253(a).
On this view, there is a significant detrimental colourable intrusion upon a federal head of jurisdiction, as the nature of the conduct and provincial provision touches upon the forbidden field of criminal law. Thus, there is a direct conflict and the pith and substance is in relation to criminal law pursuant to s. 91(27) of the Constitution Act, 1867, and hence intra vires Parliament whose jurisdictional powers are now unduly impaired.
Moreover, officers demand breath sample tests under Code s. 254, not under the HTA, thereby trenching upon Parliaments exclusive jurisdiction. Should a person refuse to provide a breath sample they are arrested under the Code; not under the HTA. The foregoing provides more prima facie evidence that the suspension legislation is pith and substance criminal law; as it is entirely dependant upon Code sections and criminal procedure.
What exactly defines "a reasonable excuse" ??
And I don't think not wanting your car to be towed would be considered a reasonable excuse.
And has there ever been a successful case about this or is this just some research work you decided to do one day??
Yes, people have gotten off for an excuse. The excuse defence is unlimited. Doesn't mean you'll win everytime. You'll win under my argument though because I know the law.
I look forward to your members trying to prove me wrong.
lawmen wrote:Doesn't mean you'll win everytime. You'll win under my argument though because I know the law.
OK...Soo if you won't win every time, WHY in the world would you advise people to refuse the breathalyzer test?
Also, maybe you would like to elaborate on exactly what your defense strategy would be in such a case.
And perhaps list a few plausible "reasonable excuses" that may work in this situation.
I just provided the defence.
In the present hierarchy of sanctions the following applies;  a 12 hour suspension,  a charge under Code s. 253.1(a),  then s. 253(b).
The criminal code does not allow the government to use the breath test results to impose 12 hour suspensions.
Read s. 254 of the criminal code and try and point out where the results can be used for the HTA. It does not exist. The results can only be used for s. 253 of the criminal code because that's what it says. Read it.
Given the plain crystal clear guidance of the provision, administrative suspensions is not what Parliament intended in enacting s. 254. The power to impose suspensions cannot be inferred in the face of clear language and where legislation and case law is in conflict, there is a principle that legislation takes precedence insofar as there is any inconsistency. A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary. The text of the provision is used first, and it is read as it is written, using the ordinary meaning of the words of the statute. Interpreting a provision always turns to one cardinal canon before all others; that a legislature says in a provision what it means and means in a provision what it says there.
Therefore, Code s. 254 is a stranger to a HTA suspension as it is devoid of any reference to it. Parliament consciously chose certain statutory language to evidence its intent. Section 254 also speaks to the operation of an aircraft or railway equipment, both of which are ultra vires the HTA, which further indicates the administrative sanctions were not in mind when enacting the provision.
By imposing explicit strict restrictions, the breath sample results are limited to Code s. 253. So interpreted, s. 254 escapes provincial legislative redefinition as s. 254 indicates that the omission was purposeful and intended. Code s. 254 cannot be deviated from and denotes a federal legal barrier by the doctrine of estoppel. Recent amendments were included in the Code yet no amendment was enacted permitting s. 254 test sample results to be used in relation to provincial suspensions.
Creating law requires statutory construction and courts are only impetrators of law. Where legislation and case law are in conflict, there is a principle that legislation takes precedence insofar as there is any inconsistency.
Since each driver is subject to unconstitutional provincial suspensions not prescribed by a valid law, (which Parliament is aware of, and, to which Code s. 254 does not apply) you have a reasonable excuse by way of s. 254(5) to refuse to submit to a breath test and subject yourself to an arbitrary unconstitutional sanction.
The federal government is aware 254 cannot be used by the province because they wrote the law, yet they do nothing to stop them. That's there problem, not ours.
Section 258.1 articulates where the test results can be used. Section 258.1(2)(b) does not apply to short term suspensions. It only applies in the following way.
The HTA licence suspension does not bring about an automatic Code driving prohibition; but under HTA s. 41(b.1)(i), a Code prohibition for impaired operation or care and control includes an automatic one year suspension for a first offence, three years on a second conviction, and for life on a third conviction.
There is no conflict between the punishment imposed under the Code and the automatic suspension imposed by provincial legislation; so the legislation is not inoperative by the piggy-back device. From this perspective, we learn the Province not only interferes with federal penalties when issuing HTA suspensions; but also undermines its own strict legislation designed to attain public safety.
It is elementary that the meaning of all provisions of all Acts must be enforced according to its terms at all times. Therefore, the enactment of the 12 hour suspensions can only be characterized as unconstitutional conduct contrary to the expressed provisions in s. 91(27) of the Constitution Act, 1867.
I still don't see a case citation where the argument worked.admin wrote:has there ever been a successful case about this or is this just some research work you decided to do one day??
What is clear is that you will be arrested for not providing a sample. R. v. Van Deelen, 2005 CanLII 62981 (ON S.C.):
Mistake of law is no defence to a criminal charge...The mens rea for refuse sample is the intention to refuse. Mistake of law does not afford a defence, nor does it negative any specific intent. In my view, what Mr. Van Deelen believed was a mistakenly held view of the law, which I find to be no defence to the charge.
There is no case law because its never been argued...yet.
Mistake of law is no defence for a cop who steals a car under a false assumption that he is impounding it.
Section 19 of the code, ignorance of the law is no excuse, does not provide a defence in its language.
Moreover, while mistakes of fact relevant to the commission of a criminal offence excuse an accused from criminal responsibility, mistakes regarding the law do not. There is no significant difference between a mistake of law and ignorance of the law. Ignorance of the law is blameworthy in itself.
Molis v. The Queen,  2 S.C.R. 356).
In recent times, however, a defence of "officially induced error" is gaining ground.
Section 254(5) provides a defence. The defence is a "reasonable excuse" to refuse to blow. Reasonable excuse is not defined in the Code. The possibilities are unlimited. The cop must consider any excuse provided to him by a citizen prior to laying a charge for refusing to blow.
Should the citizen be charged anyway then acquitted at trial, the citizen can sue the cop for false arrest and any damages he has suffered as a result of being falsely arrested.
Would a plaintiff win?
Maybe, maybe not.
First, the police must demonstrate that they are acting in the exercise of a lawful duty when they engaged in the conduct in issue. Second, and in addition to showing that the police were acting in the course of their duty, they must demonstrate that the conduct amounted to a justifiable use of police powers associated with that duty.
In other words, a cop is entitled to make decisions in the execution of his duty. However, if the cop refuses to consider the excuse for the refusal to blow and simply charges the citizen because hes a power tripping cop, then he can be found liable.
Users browsing this forum: No registered users and 14 guests