R. v. Goleski (G.A.), (2015) 365 B.C.A.C. 1 (SCC)

• Judge: Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 12, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 365 B.C.A.C. 1 (SCC);2015 SCC 6;[2015] 1 SCR 399;320 CCC (3d) 433

R. v. Goleski (G.A.) (2015), 365 B.C.A.C. 1 (SCC);

    627 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] B.C.A.C. TBEd. FE.045

Grant Anthony Goleski (appellant) v. Her Majesty the Queen (respondent) and Attorney General of Ontario and Attorney General of Alberta (intervenors)

(35862; 2015 SCC 6; 2015 CSC 6)

Indexed As: R. v. Goleski (G.A.)

Supreme Court of Canada

Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ.

February 12, 2015.

Summary:

The accused was stopped by a police officer for failing to stop at two stop signs and for speeding. After failing a roadside screening test, the accused was given a breathalyzer demand and transported to the police station to provide breath samples. The accused refused to comply with the breathalyzer demand. His excuse was that the officer lied about the reason for stopping him (he denied running stop signs) and that he did not believe that the officer would accurately report the breathalyzer results. The trial judge convicted the accused of refusing, without reasonable excuse, to comply with the breathalyzer demand. Section 794(2) of the Criminal Code stated that the burden of proving an excuse was on the accused and that "the prosecutor is not required, except by way of rebuttal, to prove the ... excuse". The trial judge held that s. 794(2) placed the persuasive burden on the accused to establish a reasonable excuse on a balance of probabilities. Where the accused and police officer were both believable, the accused did not meet that burden. The accused appealed.

The British Columbia Supreme Court, in a judgment reported [2011] B.C.T.C. Uned. 911, allowed the appeal and substituted an acquittal. The accused met his evidentiary burden of raising a reasonable excuse and s. 794(2) put the persuasive burden on the Crown to prove the lack of a reasonable excuse beyond a reasonable doubt. The Crown appealed.

The British Columbia Court of Appeal, in a judgment reported (2014), 352 B.C.A.C. 142; 601 W.A.C. 142, allowed the appeal and restored the conviction. When s. 794(2) was engaged by an accused claiming a reasonable excuse, the accused bore the persuasive burden of proving the factual foundation for that excuse on a balance of probabilities. It did not require the Crown to disprove the existence of a reasonable excuse beyond a reasonable doubt. The accused appealed.

The Supreme Court of Canada dismissed the appeal.

Criminal Law - Topic 1378

Motor vehicles - Impaired driving - Breathalyzer or blood sample - Excuse for refusal to provide - [See Criminal Law - Topic 5229 ].

Criminal Law - Topic 5229

Evidence and witnesses - Burden of proof - Proof of exception, exemption, excuse or qualification - The accused was stopped by a police officer for failing to stop at two stop signs and for speeding - After failing a roadside screening test, the accused was given a breathalyzer demand and transported to the police station to provide breath samples - The accused refused to comply with the breathalyzer demand - His excuse was that the officer lied about the reason for stopping him (he denied running stop signs) and that he did not believe that the officer would accurately report the breathalyzer results - The trial judge convicted the accused of refusing, without reasonable excuse, to comply with the breathalyzer demand - Section 794(2) of the Criminal Code stated that the burden of proving an excuse was on the accused and that "the prosecutor is not required, except by way of rebuttal, to prove the ... excuse" - The trial judge held that s. 794(2) placed the persuasive burden on the accused to establish a reasonable excuse on a balance of probabilities - Where the accused and police officer were both believable, the accused did not meet that burden - The British Columbia Court of Appeal affirmed the conviction - When s. 794(2) was engaged by an accused claiming a reasonable excuse, the accused bore the persuasive burden of proving the factual foundation for that excuse on a balance of probabilities - It did not require the Crown to disprove the existence of a reasonable excuse beyond a reasonable doubt - The Supreme Court of Canada dismissed the accused's appeal, stating that the "Court of Appeal correctly concluded that s. 749(2) ... properly interpreted, imposes a persuasive burden on the accused to prove an 'exception, exemption, proviso, excuse or qualification prescribed by law'" - See paragraph 1.

Counsel:

[not disclosed]

Solicitors of Record:

[not disclosed]

This appeal was heard on February 11, 2015, before Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ., of the Supreme Court of Canada.

On February 12, 2015, the following judgment by the Court was delivered orally in both official languages.