R. v. Fraser

R. v. Fraser

Credibility findings favoured police; accused failed to prove on a balance of probabilities that he acted with reasonable diligence to obtain counsel of choice and police did not breach s.10(b). Given the conduct and lack of bona fides, the accused's actions amounted to a constructive refusal of the breath demand and the Crown proved the offence beyond a reasonable doubt.

Citation
2018 NSPC 35
Parties
Crown: Her Majesty the Queen; Accused: Francis Todd Fraser
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
5 June 2018
Procedural Posture
Criminal Impaired Driving (breath Demand) / Trial and Charter Application (blended Hearing)
Outcome
Accused found guilty of failing to comply with a valid breath demand (constructive refusal) contrary to s.254(5) Criminal Code
Legal Topics
Refusal to Provide Breath Sample, S.10(b) Right to Counsel, Constructive Refusal, Police Implementational Duties, S.254(5) Criminal Code
Source Language
English
Criminal Law Constitutional Law Refusal to Provide Breath Sample S.10(b) Right to Counsel Constructive Refusal Police Implementational Duties S.254(5) Criminal Code

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Parties

Her Majesty the Queen

Crown

Francis Todd Fraser

Accused

Procedural Posture

Criminal Impaired Driving (breath Demand) / Trial and Charter Application (blended Hearing)

Legal Issues

  1. 1 Whether accused's actions constituted a constructive refusal of a breath demand under s.254(5) Criminal Code
  2. 2 Whether police violated the implementation component of the s.10(b) Charter right to counsel

Ratio Decidendi

Credibility findings favoured police; accused failed to prove on a balance of probabilities that he acted with reasonable diligence to obtain counsel of choice and police did not breach s.10(b). Given the conduct and lack of bona fides, the accused's actions amounted to a constructive refusal of the breath demand and the Crown proved the offence beyond a reasonable doubt.

Court Disposition

Accused found guilty of failing to comply with a valid breath demand (constructive refusal) contrary to s.254(5) Criminal Code

Orders

  • Accused convicted as charged of failing to comply with the breath demand contrary to s.254(5) Criminal Code