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The leading case is R v Phinney of  the Nova Scotia Court of Appeal. It has been adopted throughout Canada. The court gave a number of factors that could amount to a lawful excuse but stressed that it would be dangerous to close the category of potential lawful excuses.

I recently represented an individual in Amherst, NS Provincial Court, R v Ackles, (NS Proc Ct March, 2011).  My client was charged with both impaired driving and refusal of the breathalyzer. The signs of impairment were not significant, but the detectable presence of alcohol was enough to justify a roadside screening test. He failed that test and this formed the reasonable and probable grounds for the officer to issue a breathalyzer demand.

My client was arrested and taken to the police station and presented to the breathalyzer technician for the administration of the test.

While preparing the machine, the police officer technician engaged in conversation with my client. Fortunately for my client, the video in the booking room also captured the conversation which occurred in the adjoining room where the test was being administered.

I played the video during the trial.  Chief Judge Patrick Curran dismissed the impaired driving charge because there was insufficient evidence to support that allegation. Most interestingly however, he accepted the defense argument that the refusal of my client was based upon a lawful excuse.

Judge Curran found that the video evidence made it clear that my client was fully prepared to take the test, until the officer spoke of,  “management performance expectations” in regards to the expectations of the Amherst Police Administration in relation issuance of tickets.

Words such as, “if you don't meet their expectations, they nag you”, and other similar comments were taken by my client as a cause for concern that the test would not be properly administered. The judge did not find that the test would in fact not have been properly administered.  However,  he did rule the comments of the officer caused a reasonable belief or concern on the part of my client that the test would not be properly administered.

If you consider the issue from a commonsense point of view, there is some analogy to walking into a Court and having the judge announce, “Well I’m under a quota to have so many convictions this month, please present your case”.  It might be that the judge would not be influenced by the pressure of a quota.  However, a citizen would be on reasonable grounds to question whether the judge would be unbiased in those circumstances.

Jim O'Neil, LL.B.

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