Refusing to Blow – B.C.’s Highest Court Clarifies the Test

March 18th, 2020

Whether to Say No to the Blow – If You’re Gonna Do It, Prepare to Defend It

On a cold February evening in Williams Lake, Grant Goleski had the start of a bad night. He was pulled over by a member of the RCMP who said that he had watched Mr. Goleski cruise through two stop signs without stopping as well as drive his truck 25 km / hour over the speed limit. The same officer said he smelled liquor on Mr. Goleski’s breath and demanded a breath sample, which Mr. Goleski failed.

Back at the detachment, upset because he thought the officer had lied about the two “blown” stop signs, Mr. Goleski, who had agreed to give “breathalyzer” samples to pin down his exact blood alcohol level or “BAC”, abruptly refused. At his trial he said it was because the officer would falsify the paperwork. Mr. Goleski lost his trial, but he won his appeal.

The issue was, when someone refuses to give a sample of his breath, which you may only do if you have a “reasonable excuse”, who has to prove that the excuse was reasonable – the person who refused? Or the Crown? The trial judge thought it was the person who refused. The appeal judge (http://canlii.ca/t/fm85j) disagreed, following a decision from Saskatchewan’s highest court (http://canlii.ca/t/5g0t).

On March 3, 2014, the highest court in the Province of British Columbia weighed in: trial judge – right, appeal judge and Saskatchewan Court of Appeal – wrong. In R. v. Goleski (http://www.courts.gov.bc.ca/jdb-txt/CA/14/00/2014BCCA0080.htm) the B.C. Court of Appeal ruled that in impaired driving cases, just like in tobacco manufacturing cases, importing controlled drugs cases, and many, many like them, if someone does something that is generally against the law, and wants the benefit of an excuse, then he or she will bear the burden of proving they had that right.

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