His Majesty the King v. Fatmir Yryku
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: His Majesty the King, Respondent
AND:
Fatmir Yryku, Appellant
BEFORE: Justice Marvin Kurz
COUNSEL: Haejun Rim, for the Crown Carlo A. Pasqualino, for the Appellant
HEARD: October 11, 2024, in-person
ENDORSEMENT
Introduction
1The Appellant, Fatmir Yryku, appeals from his August 18, 2023 conviction at trial by the Honourable Justice A.M. Calsavara on a charge of Failure or Refusal to Comply with a Breath Demand under Criminal Code s. 320.15(1).
2The conviction followed a motor vehicle collision, which took place on March 1, 2022 at between 6:30 – 7:00 p.m. on Longfield Road, Acton, outside the Appellant’s residence. The collision occurred when a Dodge Ram pick-up truck (the “truck”) driven by Steve Mitchell (“Mitchell”) sideswiped a silver Ford Escape vehicle (the “Ford”), which the trial judge found to have been driven by the Appellant.
3Following the accident, Mitchell observed the Appellant reverse the Ford back into his driveway, get out of the vehicle and enter his home. He then had a pointed discussion with the Appellant. At some point afterwards, the Appellant’s wife, Katia Hernandez, emerged from the home. She was wearing shorts, despite the winter-like weather at the time.
4After police arrived at the scene, Mitchell identified the Appellant as the driver of the Ford. He also indicated that he felt that the Appellant had been drinking. However, both the Appellant and Ms. Hernandez claimed to the police that she was the driver of the Ford at the time of the accident.
5One of the officers at the scene who spoke to the parties, Constable Norris, formed the suspicion that the Appellant was the driver of the Ford and had consumed alcohol. Constable Norris demanded that the Appellant provide a sample of his breath to an Approved Screening Device (“ASD”), which was present at the scene. But the Appellant refused. The Appellant justified his refusal with the claim that his wife had been the driver of the Ford. Later at the police station, the Appellant again refused to provide a breath sample, this time upon demand by a qualified technician, to an Approved Instrument (“AI”).
6The Appellant was charged with Impaired Operation of a Conveyance under Criminal Code s. 320.14(1)(a) and Failure or Refusal to Comply with a Breath Demand under s. 320.15(1). While only one refusal is necessary for conviction under s. 320.15(1), the charge against the Appellant cited both refusals.
7Following a trial in which both the Appellant and Ms. Hernandez testified, the trial judge acquitted the Appellant of the charge of Impaired Driving but convicted him of Failure or Refusal to Comply with a Breath Demand. The trial judge provided a synopsis of her reasoning for the conviction of the Accused in her oral reasons as follows:
Because of my findings on the issue of the police grounds to make the breath demands and the lawfulness of those demands, in the absence of a valid reasonable excuse -- even if the accused evidence was accepted -- the Crown has proven the refusal to comply count beyond a reasonable doubt. Even if I were to believe Mr. Yryku's and Ms. Hernandez's evidence that he did not drive and refused to comply because he did not drive, I must find him guilty of count two, refusing to comply with a breath demand.
Issues
8This appeal raises the following issues:
- Did the trial judge err in finding that the police had a valid grounds to make a breath demand of the Appellant?
- Did the trial judge err in finding that the demand was made as soon as practicable?
- Did the trial judge err in her application of the W.(D.) test in finding that the Appellant was the driver of the Ford at the time of the accident?
- Should this court carve out an exception to the general rule in R. v. Traraschuk, that not driving a vehicle or not being impaired while doing so amounts to a reasonable excuse to refuse a valid breath demand?
9For the reasons that follow, I find that the trial judge made no errors in her analysis of the law or facts and dismiss this appeal.
Issue No 1: Did the trial judge err in finding that the police had valid grounds to make a breath demand of the Appellant?
10The Information charging the Appellant stated:
(2) that FATMIR YRYKU on or about the 1st day of March in the year 2022 at the Town of HALTON HILLS in the said Region, did, knowing that a demand had been made, fail or refuse to comply with a demand made by a peace officer under section 320.27 or 320.28 of the Criminal Code contrary to Section 320.15(1) of the Criminal Code.
11This charge offers two alternative paths for conviction: either the refusal to provide a breath sample to an ASD (s. 320.27) or refusal to provide a breath sample to an AI (s. 320.28). The evidence and findings of the trial judge support a conviction on either path.
12Under s. 320.27(1) and (2), the test for valid grounds to demand that a driver provide a breath sample to an ASD is “reasonable suspicion” that the person has been operating a conveyance1 in the past three hours and that they have alcohol in their system: R v. Schouten, 135 OR (3d) 200 (Ont. C.A.). The “reasonable suspicion” test should not be conflated with “reasonable and probable grounds”. It need not be the only inference available from a particular constellation of facts: R v Chehill, 2013 SCC 49 at paras. 22 -32.
13As Moldaver J. wrote for the majority of the Supreme Court of Canada in R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 72 – 74, the test for reasonable suspicion is a broad one:
72 Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end.
73 Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not - indeed must not - devolve into a scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer.
74 Parenthetically, I note that there are several ways of describing what amounts to the same thing. Reasonable suspicion means "reasonable grounds to suspect" as distinguished from "reasonable grounds to believe" (Kang-Brown, at paras. 21 and 25, per Binnie J., and at para. 164, per Deschamps J.). To the extent one speaks of a "reasonable belief" in the context of reasonable suspicion, it is a reasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual is connected to the offence. As Karakatsanis J. observes in Chehil, the bottom line is that while both concepts must be grounded in [page282] objective facts that stand up to independent scrutiny, "reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime" (para. 27).
[see also: R v. Walsh, 2019 ONSC 2337, at para. 17]
14Recently, in R. v. Breault, 2023 SCC 9, the Supreme Court wrote at para. 40 that s. 320.27(2) “authorizes the random screening of drivers by peace officers who have an ASD in their possession and who are acting in the course of the lawful exercise of their powers, even if there are no reasonable grounds to suspect that a stopped driver has alcohol in their body.”
15At trial, Mitchell testified that he was driving the truck on a residential street close to his home when he observed the Ford reverse out of a driveway and into the opposing lane in relation to the direction it faced. Mitchell testified that as he drove by the Ford, which was facing the same direction as him but on the wrong side of the road, the driver of the Ford drove across into his lane and into his driver’s side door and side-swiped his truck’s passenger door to the side of the truck bed and tire.
16As recounted by the trial judge, Mitchell further testified that following the accident:
he parked his truck about 100 meters or two houses away. The lone male occupant of the Ford then drove it back into the driveway, got out, and walked up into his house as Mr. Mitchell approached him. The driver returned. They spoke. The driver yelled at Mr. Mitchell claiming that he had hit him. Mr. Mitchell testified that he laughed it off and tried to talk to him to work something out without insurance. That is when he noticed the driver was slurring. Mr. Mitchell asked the driver if he had been drinking. Mr. Yryku, who was the driver, yelled at Mr. Mitchell in response and said his wife was driving. Mr. Yryku was yelling and aggressive. Mr. Mitchell called 911.
17The Appellant’s wife, Ms. Hernandez, walked out of the Yryku house shortly after this exchange. Mitchell testified that she was wearing shorts, boots, and a parka, even though the conditions at the time were still winter-like.
18The trial judge found that when the police arrived, about ten minutes after Mitchell’s 911 call, the Appellant was again aggressive and yelling. He insisted that he was not the driver. He refused Constable Norris’ demand that he provide a sample of his breath into an ASD even though one was available at the scene. He did the same thing later at the police station when a qualified breathalyser technician demanded that he provide a breath sample into an AI.
19Both the Appellant and Ms. Hernandez testified at trial that she was the driver of the Ford at the time of the accident. The Appellant also testified that he had consumed two beers on the day of the accident, but felt that he had not been impaired. Nonetheless, he did not wish to drive because of his consumption of the beers,
20There was no dispute at trial that the Appellant had refused both breath sample demands.
21The trial judge based her finding that Constable Norris, had a reasonable suspicion that the Appellant had been driving the Ford in the past three hours and that he had alcohol in his system on the following:
- At trial, Mitchell testified that he observed the Appellant to be the driver of the Ford and that he felt that the Appellant was under the influence of alcohol.
- Constable Norris testified that he was told by Mitchell that the Appellant was the driver of the Ford and that be believed that the Appellant was impaired.
- Constable Norris also made his own observations of the Appellant. He observed that the Appellant was unsteady on his feet, demonstrating a slight sway, displayed slurred, and delayed speech, and experienced difficulty finding and pulling out his license from his wallet. Officer Norris testified that although he did not smell alcohol on the Appellant, he suspected that he had consumed alcohol.
- A second officer, Constable Copeland also attended at the scene of the accident. She also spoke to Mitchell, who also identified the Appellant as the driver and shared his view that the Appellant was impaired. As the trial judge described it, Constable Copeland:
observed that [the Appellant] was carrying himself lazily. She noted he had red eyes, was sluggish, and breathing from his nose even though his mouth was open. Further, he was leaning on the Ford Escape for balance. He was aggressive and yelling.
- While both the Appellant and Ms. Hernandez maintained that she was the driver of the Ford, the trial judge did not accept that explanation in light of Mitchell’s statement and the evidence of the two officers cited above.
22There is no dispute that the police had an ASD with them at the time that they made the ASD demand.
23The Appellant justified both of his refusals with his claim that he had not been driving at the time of the accident and that a mistake had been made as to the identify of the driver. He said that he had lost all faith in the police when they took Mitchell’s identification of him at face value and ignored what he and his wife had to say.
24In light of the evidence cited above, there is no error with the trial judge’s finding that Constable Norris had legal grounds to make the breath demand under s. 320.27(1)(a). In light of that finding, the issue of the propriety of the s. 320.28 demand is moot.
25Nonetheless, as the issue is raised, I agree with the trial judge that police had reasonable grounds to make the s. 320.28 demand as well.
26As Durno J. (ad hoc), wrote for the Ontario Court of Appeal regarding the reasonable grounds standard of what is now s. 320.28(1) in R v Bush, 2010 ONCA 554 at paras. 37 -38:
[37] Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable grounds to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80'" (emphasis added). Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case: see Censoni, at para. 31; and R. v. Shepherd, [2009] 2 S.C.R. 527, [2009] S.C.J. No. 35, 2009 SCC 35, at para. 23.
[38] Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87, at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, 2001 24171 (ON CA), [2001] O.J. No. 377, 9 M.V.R. (4th) 67 (C.A.), at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, at p. 250 S.C.R.
27The reasonable standard does not equate to the civil standard of balance of probabilities because that standard requires a finding that one version of events is more probable than the others. Such a finding is not required under the reasonable grounds standard: R v Hayatibahar, 2022 ONSC 1281, at para. 138. The central difference between the two standards is “the absence of weighing probabilities in applying the "reasonable grounds to believe" standard. The latter can exist even in the face of a competing probability”: Hayatibahar, at para. 129, citing The Director of Criminal Property and Forfeiture v. Ramdath et al, 2021 MBCA 23 at para. 27.
28The Appellant argues that the narratives of himself and his wife, Ms. Hernandez, preclude the Crown’s claim to reasonable grounds to demand a breath sample under s. 320.28(1)(a)(i). However, the trial judge found that police not only had a reasonable suspicion but reasonable and probable grounds to believe that the Appellant had driven the Ford at the time of the accident and at his ability to drive was impaired to any degree by alcohol at the time.
29The Appellant was identified by Mitchell as the driver of the Ford. He displayed signs of intoxication and was argumentative with police officers. His wife was oddly dressed for the weather and unable to explain the mechanism of the crash. Based on the test for the reasonable standard set out above, the trial judge made no error in finding that the police had reasonable grounds to demand an AI breath sample. The fact of a competing claim as to the identity of the driver of the Ford does not obviate the reasonableness of the demand for a breath sample.
Issue No. 2: Did the trial judge err in finding that the demand was made as soon as practicable?
30The Appellant argues that the police demand that he provide a breath sample to an ASD was not legal because it was not made as soon as practicable. The Appellant adds that the trial judge failed to refer to the decision of the Supreme Court of Canada in Breault.
31At para. 20 of Breault, the Supreme Court stated that the question before it was whether “the validity of a demand made by a peace officer under s. 254(2)(b) Cr. C. require that the officer have immediate access to an ASD at the time the demand is made?”.
32Former s. 254(2)(b), which has been replaced with similar but not identical wording by s. 310.27(1)(a), stated that:
(2) If a peace officer has reasonable grounds to suspect that a driver has alcohol in their body and that the person has, within the preceding three hours, operated a motor vehicle,…the peace officer may, by demand, require the person to comply with paragraph … (b), in the case of alcohol:
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
33The court found that the word, “forthwith”, should be interpreted in its common understanding of "immediately" or "without delay": para. 29. That means that when the roadside breath demand is made, the driver must comply immediately: para. 31. But it also means that the time to administer the ASD is not to be interpreted flexibly. Rather, the court found that there is no presumption of validity to a breath demand made when an ASD is not present at the place of the demand.
34That is largely because the requirement that, upon demand, the driver must provide a breath sample to an ASD forthwith limits the potential to consult with counsel. As the court stated at para. 35:
… the word "forthwith" implicitly limits the right to counsel guaranteed by s. 10(b) of the Charter. This is a condition for the application of s. 254(2)(b) Cr. C.; since the detained driver must provide a breath sample forthwith, the driver may not consult counsel before doing so. The Court has recognized that this limit on s. 10(b) of the Charter is justified under s. 1 (Thomsen, at p. 653; Woods, at para. 30) precisely because the detention is of very brief duration (Bernshaw, at para. 23). The more flexibly the word "forthwith" is interpreted, the less the recognized justification for limiting the right to counsel holds up.
35Thus, subject to unusual circumstances, the police must be able to immediately offer the ASD testing immediately after making the demand for that demand to be legal.
36Section 254 has been replaced by current s. 320.27(1)(a). In the current version, the word “forthwith” has been replaced with “immediately”. Nonetheless, the Supreme Court stated at para. 44 that its guidance regarding s. 254(2)(b) should apply to s. 320.27(1)(a) as well.
37There are two problems with the Appellant’s arguments. First of all, the police had an ASD at the scene. Not only is there is no evidence of a violation of s. 320.27 regarding the ASD demand, the issue does not appear have even been raised at trial.
38Second, as the Crown points out, the Appellant is conflating two obligations, one of which arises under the ASD demand and the second of which applies to the AI demand. Under s. 320.27(1)(b), the roadside ASD demand must be complied with “immediately”. Under s. 320.28((1)(a), the AI demand, made at a police station, must be made “as soon as practicable”.
39The Appellant writes in his factum that
The Trial Judge makes reference to the evidence of Officer Copland [sic] “forgetting” to make a demand at the Scene, but attributes this “forgetting” to the Appellant’s behaviour at the scene offering a justification as why the ASD demand was not made “forthwith.”
40As the Crown properly points out, the section of the trial judgment to which the Appellant refers dealt with the AI demand by Constable Copeland, not the ASD demand made by Constable Norris. As set out above, the Supreme Court’s guidance in Breault was not concerned with what is now s. 320.28(1)(a).
41Constable Copeland testified that she forgot to make the AI demand at the scene before taking the Appellant to the police station, because of the Appellant’s behaviour at the scene. The trial judge found that despite that omission, the demand made at the police station by the qualified technician still met the test of s. 320.28(1)(a). That finding was available to the trial judge and not in error.
42The term, “as soon as practicable”, should be read as "within a reasonably prompt time", not "as soon as possible": R v Squires, 2002 44982 (ON CA), [2002] O.J. No 2314 at paras. 31-32 (Ont. C.A.). A qualified officer may make a breath demand as soon as practicable if the demand is made after being informed of the officer’s observations and forming their own reasonable grounds for making the demand: R v Guenter, 2016 ONCA 572 at paras. 89-94.
43Thus, the trial judge made no error in finding that the AI breath demand by the qualified technician was made as soon as practicable.
44In other words, there was no error by the trial judge in regard to either breath demand.
Issue No. 3: Did the trial judge err in her application of the W.(D.) test in finding that the Appellant was the driver of the Ford at the time of the accident?
45The Appellant argues that the trial judge erred in her application of the R. v W.(D.)2 test in finding that he was the driver of the Ford at the time of the accident. He further argues that the analysis that led to her finding him not guilty of Impaired Operation “subconsciously or otherwise” informed her finding of guilt on the charge of Refuse to Provide a Breath Sample. He makes this assertion despite the fact that he was acquitted of the Impaired Operation charge.
46The obvious answer to this argument is that the trial judge’s finding about the identity of the driver of the Ford at the time of the accident is irrelevant to the charge of Refuse to Provide a Breath Sample. There is no doubt that the Appellant refused to provide his breath sample, when required to do so for either the ASD or the AI.
47The credibility of the Appellant and his wife regarding whether he drove the Ford at the time of the accident is irrelevant to his obligation under each of s. 320.27(1)(b) or 320.28(1)(a) to provide a breath sample. As set out below, the law is clear that he need not have been the driver of the Ford for the breath demand to be a legal one.
48I add that it was open on the evidence for the trial judge to find that the evidence of the Appellant and his wife, Ms. Hernandez, was incredible and to accept the evidence of Mitchell and the attending officers was credible. As the Court of Appeal for Ontario in wrote in R. v. G.C., 2021 ONCA 44, at para. 15:
15 As noted in R. v. R.A., 2017 ONCA 714, 421 D.L.R. (4th) 100, at para. 55, aff'd 2018 SCC 13, [2018] 1 S.C.R. 307, an accused person is not entitled to an acquittal simply because his evidence does not raise any obvious problems. His evidence may be rejected "based on considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence" which may provide "as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence": R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 218 O.A.C. 37 (C.A.), at para. 53, leave to appeal refused, [2007] S.C.C.A. No. 69. This is what the trial judge did in this case.
49Further, in her decision, the trial judge gave detailed and compelling reasons for her acceptance of the evidence tendered by the Crown and her rejection of the evidence of the Appellant and Ms. Hernandez. She stated:
I do not believe Mr. Yryku's or Ms. Hernandez' evidence. I found both defence witnesses to be incredible. Given my ultimate findings on this
count, I will only briefly address why.
Mr. Yryku was adamant that he was not impaired. He only had two beers throughout the day. He was also adamant that he was not driving. Out of
principle, he would not submit to the police demands because he had done nothing wrong. However, his extreme reaction to the police
investigation -- including what was captured on video -- is incompatible with his claimed principled refusal, marked by agitation. Mr. Yryku
was not agitated. He was belligerent, sarcastic, and confrontational. Like a sulking toddler, post arrest in the police car, he said, "put me in jail
for 100 years", and "put me in the grave." Much later, once time for his temper to have subsided, he continued to respond this way. He refused to
acknowledge the qualified technician’s instructions in the breath room, turned his back on her and stuffed paper towel in his ears to demonstrate he would not listen. The qualified technician, I note, was exceptionally calm and gentle with Mr. Yryku.
Another reason I do not believe Mr. Yryku's evidence is that it is contradicted by the evidence I do accept including that of Mr. Mitchell.
Mr. Mitchell's evidence was detailed, compelling and corroborated. I noted that Mr. Mitchell described Mr. Yryku to be angry, yelling, and confrontational just as he was with the police. Mr. Yryku explained his behaviour on being agitated by the way the police treated him and in accepting Mr. Mitchell's word over his and his wife's. Why then did Mr. Yryku present this same way with Mr. Mitchell before the police even got there and before the police could have agitated him? Mr. Yryku began his encounter with Mr. Mitchell with accusing him of hitting the Escape in an aggressive confrontational manner. Mr. Mitchell was also perceptive. He noticed that Ms. Hernandez was in shorts even though it was winter like weather. I accept Mr. Mitchell's evidence that he observed Mr.
Yryku get out of the driver’s seat following the collision and that his wife did not emerge until after Mr. Yryku went inside the house.
Turning to Ms. Hernandez evidence, she could not adequately describe how the collision occurred. On all accounts, the mechanics of it were not
complicated. No matter who bore the most blame for the collision between the two vehicles, it was a simple collision on a residential street that
fortunately for all did not cause serious property damage and did not result in any injuries. It was a minor collision. Even if the driver of the Ford
Escape was surprised or in initial shock, it defies common sense that such a driver would not be able to articulate how the accident occurred in a
sufficient manner. For this reason, as well, I find Ms. Hernandez's explanation that she was frozen and in complete shock for upwards of 10
minutes or more on the evidence and unable to act or even to move out of the driver seat is incredible, even if it was the first time she was
ever in a motor vehicle collision. She claimed that her husband heard the commotion and came out as she sat there frozen sitting in the car on the
street where the impact occurred, and that he told her to drive back into the driveway where she sat until the police got there -- because again she was overwhelmed by the shock. This all in a response to a minor collision. This is not just initial shock she was testifying to this is sustained,
serious shock. Ms. Hernandez could not, moreover, adequately
describe what occurred post-collision. There is no doubt that Mr. Mitchell came over. Ms. Hernandez, however, gave inconsistent answers. At one point she testified that she never even saw Mr. Mitchell. Later she qualified that and said, that she never spoke to him. How can that be? If she were driving, she would have had to have seen Mr. Mitchell. He did not return to his truck until after the confrontation with Mr. Yryku and then he remained there.
50The credibility findings of the trial judge here are grounded in the evidence and entitled to appellate deference: R v. W.H., 2013 SCC 22, [2013] 2 SCR 180, at para. 30, citing. R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at p. 131. There is no merit to this ground of appeal.
Issue No 4: Should this court carve out an exception to the general rule in R. v. Traraschuk, that not driving a vehicle or not being impaired while doing so amounts to a reasonable excuse to refuse a valid breath demand?
51In R. v. Taraschuk, 1975 37 (SCC), [1977] 1 S.C.R. 385, the Supreme Court of Canada laid out a principle that has remained constant in Canadian law for 47 years regarding the demand to supply a breath sample under the Criminal Code. The fact that a person is acquitted of a charge of impaired driving is not a lawful excuse for a refusal to provide a breath sample following a lawful demand.
52The principle of “vertical” stare decisis makes the principle enunciated in Taraschuk binding on inferior courts such as this one, subject to certain limited exceptions described below. As the Supreme Court wrote in Canada (Attorney General) v. Bedford, 2013 SCC 72, at para. 38: “[c]ertainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.”
53Lower courts may only change binding precedent “if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate": Bedford at para. 42.
54The new evidence exception is a narrow one: R. v. Comeau 2018 SCC 15, at para. 30. As the Supreme Court wrote in Bedford at para. 44: “a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach... This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role” (see also Comeau at para. 30).
55Despite that high bar, the Appellant submits that this court should ignore the binding decision of the highest court in this land in Taraschuk because of the fact that it was a pre-Charter case and because of the particular facts of this case. The Canadian Charter of Rights and Freedoms came into effect some 42 years ago, as part of the Constitution Act, 1982, RSC 1985, Appendix II, No 44, Schedule B. That was just five years after Taraschuk was released, or 37 years ago. Despite the lengthy passage of time, the Taraschuk principle has yet to be overturned or modified.
56The Appellant asserts that the key factual difference between this case and Taraschuk is the fact that he offered his excuse at the time of the demand, rather than ex post facto at trial, as occurred in Taraschuk.
57The timing of the proffer of the purportedly legal excuse in Taraschuk (the accused was acquitted of impaired driving at trial) was not a factor in the Supreme Court’s determination. As in Taraschuk, the Appellant here was acquitted at trial of the charge of impaired driving. Laskin C.J.’s reference in Taraschuk to “a reasonable excuse, ex post facto so to speak”, is to the acquittal, not the timing of the offer of the excuse. Nothing stood or fell on that timing and nothing in that timing changes the principle set out in Taraschuk.
58In sum the Appellant has offered the court no reason to depart from the principle set out in Taraschuk.
Conclusion
59For the reasons set out above, I dismiss this appeal.
Marvin Kurz J.
Date: November 29, 2024