Taraschuk v. R., [1977] 1 SCR 385

Supreme Court of Canada

Taraschuk v. R., [1977] 1 S.C.R. 385

Date: 1975-06-26

Borden Taraschuk (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1975: June 17, 18; 1975: June 26.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Motor vehicles—Civil rights—Breathaliser demand—Reasonable excuse—Criminal Code, ss. 234, 235(1), (2).

Appellant was given a breathaliser demand by a police officer, who had reasonable and probable grounds for believing that he had care or control of a motor vehicle, but he refused to give a sample of his breath. He was acquitted in respect of the same occurrence of a charge under s. 234 but convicted of failing or refusing without reasonable excuse to comply with the breathaliser demand. This conviction was affirmed on appeal.

Held: The appeal should be dismissed.

That a person is subsequently acquitted of a charge under s. 234 or that a person was not in fact impaired or did not while impaired have care or control of a motor vehicle is not a reasonable excuse for refusing to provide a breath sample under s. 235(1). Such a construction would wipe out the difference between culpability under s. 234 and s. 235. Reasonable excuse under s. 235(2) refers to matters which stand outside of the requirements under s. 235(1) which must be met before a s. 235(2) charge can be supported.

Brownridge v. The Queen, [1972] S.C.R. 926; R. v. Downey, [1970] R.T.R. 257; R. v. Richardson, [1975] R.T.R. 173 referred to; R. v. Canstone (1971), 3 C.C.C. (2d) 539 (B.C.); R. v. Mitchell (1973), 11 C.C.C. (2d) 12 (B.C.) overruled; R. v. Nadeau (1974), 19 C.C.C. (2d) 199 (N.B.); R. v. Nicholls, [1974] 1 W.W.R. 97 (Man.); R. v. Yuzicappi, [1975] W.W.D. 56 (Sask.) approved.

[Page 386]

APPEAL from a judgment of the Court of Appeal for Ontario[1] affirming a judgment of Fraser J. affirming, on a case stated by Waisberg Prov. Ct. J., a conviction under s. 235 of the Criminal Code. Appeal dismissed.

R. Murray, for the appellant.

E.J. Hachborn, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The question in this appeal is whether a person charged with an offence under s. 235(2) of the Criminal Code is entitled to an acquittal by invoking as a reasonable excuse thereunder the fact that he was acquitted, in respect of the very occurrence, of a charge under s. 234. Put another way, the issue raised is whether a charge under s. 235(2) may be defeated if on the trial thereof the Court concludes that the accused was not in fact impaired or did not while impaired have care or control of a motor vehicle, although the charge was the result of a proper demand by a peace officer, under s. 235(1), for a breath sample.

Sections 234 and 235 of the Criminal Code read as follows:

234. Every one who, while his ability to drive a motor vehicle is impaired by alcohol or a drug, drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, is guilty of an indictable offence or an offence punishable on summary conviction…

235. (1) Where a peace officer on reasonable and probable grounds believes that a person is committing, or at any time within the preceding two hours has committed, an offence under section 234, he may, by demand made to that person forthwith or as soon as practicable, require him to provide then or as soon thereafter as is practicable a sample of his breath suitable to enable an analysis to be made in order to determine the proportion, if any, of alcohol in his blood,

[Page 387]

and to accompany the peace officer for the purpose of enabling such a sample to be taken.

(2) Every one who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under subsection (1) is guilty of an offence punishable on summary conviction and is liable to a fine of not less than fifty dollars and not more than one thousand dollars or to imprisonment for not more than six months, or both.

The present proceedings arose out of a charge and conviction of failing or refusing without reasonable excuse to comply with a demand by a peace officer for a breath sample. A case was stated by Provincial Court Judge Waisberg and para. 1 thereof was as follows:

Did I err in law in holding that having found as a fact that the appellant was not in the care or control of a motor vehicle at the time and place alleged, that this was not a reasonable excuse to fail or refuse to comply with the demand made by a Police Officer under Section 235 of the Criminal Code to provide a sample of breath suitable to enable analysis to be made in order to determine the proportion, if any, of alcohol in his blood, and to accompany a Peace Officer for the purpose of enabling such a sample to be taken.

Fraser J. answered this question in the negative and his judgment was affirmed in a unanimous judgment of the Ontario Court of Appeal in comprehensive reasons delivered by Martin J.A.

I agree with the Courts below. The present case is unembarrassed by any issue as to whether the peace officer who made the demand here had reasonable and probable cause within s. 235(1). Counsel for the appellant conceded this. Two sentences from the reasons of Martin J.A. are relevant on this point, and they are as follows:

In the present case it was not and could not be contended that the officer did not have a belief based on reasonable and probable grounds that the accused had the care or control of the motor vehicle.

[Page 388]

There was no suggestion that the officer did not entertain a belief based on reasonable and probable grounds that the accused’s ability to drive a motor vehicle was impaired.

The contention of the appellant is that a reasonable excuse, ex post facto so to speak, arises on a charge under s. 235(2) if the accused did not in fact have care or control or was not impaired. This contention invites a self-defeating construction of s. 235 and would wipe out the difference, clearly made in ss. 234 and 235, between culpability under the one and under the other. Counsel would have it that a person who cannot be found guilty under s. 234 becomes immune to guilt under s. 235(2), although the requirements for a proper demand for a breath sample have been met. Reasonable excuse, under s. 235(2), refers, in my view, to matters which stand outside of the requirements which must be met (i.e. those under s. 235(1)) before a charge can be supported under s. 235(2). See, for example, Brownridge v. The Queen[2].

I do not find it necessary for the purposes of this appeal to consider the differences between the comparable English legislation, canvassed in R. v. Downey[3], and in R. v. Richardson[4], and the Canadian legislation. The single issue in the present case has no relation to those differences. It follows from my opinion that I regard R. v. Canstone[5] (B.C.S.C.) and R. v. Mitchell[6] (B.C.S.C.) as wrongly decided and that I regard R. v. Nadeau[7] (N.B.C.A.), R. v. Nicholls[8], (Man. C.A.) and R. v. Yuzicappi[9], (Sask. C.A.), as correctly decided.

[Page 389]

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Kelly, McRae & Murray, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.