The appellant appealed a summary conviction for failing without reasonable excuse to comply with a demand to provide a breath sample under s.254(5) of the Criminal Code.
The appellant argued the trial judge erred by finding he was capable of providing a sample despite evidence he was vomiting, coughing, and complaining of chest pain, and by failing to properly apply the W.(D.) credibility framework.
He also raised a new ground alleging procedural unfairness because the trial proceeded in his absence contrary to s.650(1).
The court held that s.650(1) does not apply to summary conviction trials and that ss.800(2) and 803(2)(a) permitted the trial to proceed in the accused’s absence, particularly where defence counsel consented.
The appellate judge found no error of law or palpable and overriding error in the trial judge’s factual findings and concluded the evidence reasonably supported the conviction.