Judge erred by implying that it was accused’s onus to show device did not work properly

REFUSAL TO PROVIDE SAMPLE

Judge erred by implying that it was accused’s onus to show device did not work properly

Appeal by accused from her conviction for failing to comply with demand for roadside breath sample. She narrowly avoided hitting a motorcyclist and she came to a stop against highway median. Police officer arrived at scene and smelled alcohol on accused’s breath. She demanded that accused provide breath sample into roadside screening device. Accused made 23 attempts to blow into device. Officer needed to use two devices because after 11 attempts first device displayed low battery message. Trial judge found that accused’s overall conduct clearly demonstrated intention to frustrate taking proper sample. Appeal allowed. New trial ordered. Judge did not properly apply burden of proof for he rejected accused’s evidence but did not properly assess reliability of remaining evidence which was from police officer. He also erred by implying that it was accused’s onus to show that device did not work properly. Rather, it was Crown’s onus to show that device worked properly, especially in this case where accused made unsuccessful attempts to provide breath sample.

R. v. Pinard (Apr. 7, 2011, Ont. S.C.J., Parfett J., File No. 09-2213) 95 W.C.B. (2d) 351 (7 pp.).