Philip H. Patterson

The defendant applied under sections 7 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence of his refusal to provide a breath sample.

The defendant claimed he was assaulted when police attempted to forcibly remove his wedding ring at the police station before the breathalyzer test.

The court found that while the attempt to remove the ring constituted an unreasonable assault, the use of force was minimal and momentary.

The court held that the words of the refusal constitute the actus reus of the offence and cannot be excluded under section 24(2).

The motion was dismissed.

The applicants were charged with dangerous driving on April 14, 2013, and brought a motion to stay the proceedings for unreasonable delay under section 11(b) of the Charter.

The information was sworn on May 9, 2013, with the first trial date set for May 30, 2014 (over one year later).

An adjournment was granted on April 11, 2014, because a Crown witness needed to be in England.

The second trial date was set for November 28, 2014.

However, on the trial date, the Crown advised that it would not be calling the witness whose unavailability had prompted the adjournment.

The court found that the delay exceeded the Morin guidelines of 8-10 months for provincial courts and that the adjournment was unnecessary.

The charges were stayed.