INTRODUCTION AND BRIEF DESCRIPTION
Refusal to give a bodily substance sample cannot be used as evidence or subject to comment in proceedings, unless required by law.
SECTION WORDING
258(2) Unless a person is required to give a sample of a bodily substance under paragraph 254(2)(b) or subsection 254(3), (3.3) or (3.4), evidence that they failed or refused to give a sample for analysis for the purposes of this section or that a sample was not taken is not admissible and the failure, refusal or fact that a sample was not taken shall not be the subject of comment by any person in the proceedings.
EXPLANATION
Section 258(2) of the Criminal Code of Canada provides guidelines regarding the admissibility of evidence in cases of impaired driving. It states that, unless a person is required to provide a bodily substance sample under specific legal provisions, evidence that they failed or refused to submit to a sample cannot be presented in court. Additionally, the fact that a sample was not taken cannot be commented on by anyone during proceedings. This section is crucial in ensuring that impaired driving cases are handled fairly and that the rights of accused individuals are protected. It ensures that law enforcement officers cannot obtain evidence through improper means, such as coercion or threats, and that individuals are not subjected to unwarranted searches. By limiting admissible evidence to only those cases where a sample is legally required, this provision helps guarantee a fair trial. However, this section is not as simple as it may seem at first glance. There are several subsections under which a person may be required to provide a bodily substance sample, such as when they are suspected of drug-impaired driving, or if they cause an accident resulting in death or bodily harm. In these cases, failing or refusing to provide a sample can be used as evidence against a person in court. Overall, Section 258(2) serves as an important safeguard against improper law enforcement practices and helps ensure that impaired driving cases are handled fairly and impartially.
COMMENTARY
Section 258(2) of the Criminal Code of Canada is an important provision that ensures fairness and protect the rights of individuals who are suspected of impaired driving. The section establishes rules for the admissibility of evidence related to the refusal or failure to provide a sample for analysis for the purposes of impaired driving investigations and prosecutions. The purpose of the provision is to prevent the use of evidence related to the failure or refusal to provide a bodily sample, such as breath, blood, or urine, in the trial of a person charged with impaired driving. This means that if a person refuses to provide a sample or fails to provide a sample, that fact cannot be used against them during the trial. The section also prohibits any comments or suggestions about the refusal or failure to provide a sample from being made during the proceedings. This ensures that the focus of the trial remains on the specific evidence that is admissible and relevant to the case, rather than on irrelevant issues. The section does provide some exceptions to the general rule regarding the inadmissibility of evidence related to the failure or refusal to provide a sample. Specifically, the provision allows for the use of such evidence in cases where a person is required to provide a sample under paragraph 254(2)(b) or subsections 254(3), (3.3), or (3.4) of the Criminal Code. These provisions relate to situations where a police officer has reasonable grounds to suspect that a person has committed an impaired driving offence and requires them to provide a sample for analysis. The purpose of these exceptions is to ensure that the police have the necessary tools to effectively investigate impaired driving offences. By allowing evidence related to the failure or refusal to provide a sample in specific circumstances, the provision strikes a balance between protecting the rights of individuals and ensuring that impaired driving offences are effectively prosecuted. Overall, section 258(2) of the Criminal Code of Canada is an important provision that helps to protect the rights of individuals suspected of impaired driving while also ensuring that impaired driving offences are effectively prosecuted. By limiting the admissibility of evidence related to the failure or refusal to provide a sample, the provision helps to ensure that trials are fair and the focus remains on relevant and admissible evidence. Through its carefully crafted exceptions, the provision also ensures that the police have the necessary tools to effectively investigate and prosecute impaired driving offences.
STRATEGY
Section 258(2) of the Criminal Code of Canada is a crucial provision that limits the admissibility of evidence related to a person's failure or refusal to provide a sample of bodily substance for analysis. This provision is critical in cases where an individual is charged with impaired driving, as law enforcement often rely on the results of a blood or breath test to establish whether an individual was driving under the influence of drugs or alcohol. Given the importance of this provision, it is essential for both the prosecution and the defense to consider various strategies when dealing with this section of the Criminal Code. One crucial strategic consideration when dealing with section 258(2) is to ensure that law enforcement officers follow the required procedures for obtaining a sample of a bodily substance. If the police do not follow the proper procedures outlined in the Criminal Code for obtaining a sample, any evidence related to the individual's failure or refusal to provide a sample will be inadmissible under section 258(2). As such, the defense can challenge the admissibility of such evidence if it can be shown that the proper procedures were not followed. Another strategic consideration is to consider whether the individual was formally requested to provide a sample of a bodily substance under paragraph 254(2)(b) or subsections 254(3), (3.3) or (3.4) of the Criminal Code. If the individual was not required to provide a sample under these provisions, any evidence related to their failure or refusal to provide a sample will be inadmissible under section 258(2). As such, the defense can assert that the individual was not required to provide a sample and that any evidence related to their failure or refusal to provide one should be excluded. A further strategic consideration is to consider whether the evidence of a person's failure or refusal to provide a sample can be challenged on constitutional grounds. For example, a defense lawyer could argue that the mandatory roadside screening test provided for under subsection 320.27(2) of the Criminal Code would be a violation of the individual's Charter rights and, as such, any evidence obtained as a result of the test should be excluded. Finally, the prosecution may also want to consider alternative forms of evidence that can be used to establish impairment. In cases where a sample of a bodily substance cannot be obtained or is inadmissible under section 258(2), the prosecution may rely on other forms of evidence, such as the observations of law enforcement officers, eyewitness testimony, or video footage, to establish impairment. In conclusion, section 258(2) of the Criminal Code of Canada is a critical provision that impacts how evidence related to a person's failure or refusal to provide a sample of a bodily substance for analysis can be used in court. Both the prosecution and the defense should consider the various strategic considerations when dealing with this provision, and adapt their strategies accordingly. By doing so, they can maximize the chances of achieving a favorable outcome for their client.