Court of Appeal for Ontario
BEFORE: Rosenberg, Moldaver and Borins JJ.A.
BETWEEN:
Her Majesty Queen Respondent
and
Gerard Van Deelen Appellant
COUNSEL: Joseph Markin, for the appellant Brad Greenshields, for the respondent
Heard and released orally: January 9, 2009
On appeal from conviction by Justice Randall Echlin of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated November 30, 2005, overturning the decision of Justice William B. Horkins of the Ontario Court of Justice dated June 17, 2004.
ENDORSEMENT
1In our view, the appeal judge reached the correct result. He accepted that it was open to the trial judge to find that the appellant mistakenly believed he was being requested to provide breath samples into an approved instrument and that he believed he did not have to comply with the demand because he had not been informed of his right to counsel. However, the trial judge erred in finding that this was a relevant mistake. Violation of s. 10(b) is not a reasonable excuse to refuse an approved instrument demand. See R. v. Williams (1992), 1992 CanLII 7657 (ON CA), 78 C.C.C. (3d) 72 (Ont. C.A.). Violation of s. 10(b) may or may not result in exclusion of the evidence of the refusal under s. 24(2). It follows that the appellant had the requisite mens rea for the offence and did not have a reasonable excuse for refusing the approved screening device demand.
2Accordingly, while leave to appeal is granted, the appeal is dismissed.
Signed:
“M. Rosenberg J.A.” “M. J. Moldaver J.A.” “S. Borins J.A.”
