R. v. Long

R. v. Long

The trial judge did not err: the missing mouthpiece was lost through an oversight not unacceptable negligence, the accused failed to prove actual prejudice because identical failures using a preserved mouthpiece supported inference of proper device function, the judge's credibility findings and reasons were sufficient, W.(D.) principles were properly applied, and appellate deference precludes interference; conviction affirmed.

Citation
2012 BCSC 1392
Parties
Respondent (crown): Regina; Appellant (accused): Lyall Long
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
27 September 2012
Procedural Posture
Criminal Appeal / Appeal From Provincial Court Conviction
Outcome
Appeal dismissed; conviction and sentence upheld
Legal Topics
Refusal to Provide Breath Sample, Loss/destruction of Evidence, Stay of Proceedings, Reasonable Doubt and W.(d.) Instruction, Credibility Findings, Preservation and Disclosure Obligations
Source Language
English
Criminal Law Charter Law Evidence Law Procedural Law Refusal to Provide Breath Sample Loss/destruction of Evidence Stay of Proceedings Reasonable Doubt and W.(d.) Instruction +2 more

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Parties

Regina

Respondent (crown)

Lyall Long

Appellant (accused)

Procedural Posture

Criminal Appeal / Appeal From Provincial Court Conviction

Legal Issues

  1. 1 Whether failure to preserve second mouthpiece violated s.7 right to make full answer and defence and warranted a stay
  2. 2 Whether the Crown's loss of the mouthpiece amounted to unacceptable negligence
  3. 3 Whether the accused suffered actual prejudice from the missing mouthpiece

Ratio Decidendi

The trial judge did not err: the missing mouthpiece was lost through an oversight not unacceptable negligence, the accused failed to prove actual prejudice because identical failures using a preserved mouthpiece supported inference of proper device function, the judge's credibility findings and reasons were sufficient, W.(D.) principles were properly applied, and appellate deference precludes interference; conviction affirmed.

Court Disposition

Appeal dismissed; conviction and sentence upheld

Orders

  • Conviction of failing or refusing to provide a breath sample (s.254(5) Criminal Code) affirmed
  • $1,000 fine and one-year driving prohibition upheld