Allan F. Nicholson

The appellant appealed his conviction for second degree murder, arguing that the trial judge erred by failing to give a Vetrovec warning to the jury.

The Supreme Court of Canada held that the appropriateness of a Vetrovec warning does not raise a question of law, meaning there was no appeal as of right.

Furthermore, the Court concluded that even if it had jurisdiction, the failure to give the warning did not result in a miscarriage of justice in the circumstances of this case.

The appeal was dismissed.

The accused was involved in a single-vehicle accident and taken to the hospital.

More than two hours after the accident, a police officer formed the belief that the accused was impaired and demanded a blood sample, which the accused refused.

The trial judge and the Court of Appeal acquitted the accused on the basis that the demand under section 254(3) of the Criminal Code must be made within two hours of the offence.

The Supreme Court of Canada allowed the Crown's appeal, holding that section 254(3) only requires the police officer to form the belief within two hours of the offence, and the demand itself must follow forthwith or as soon as practicable, even if outside the two-hour limit.