The recent decision of R v Rivera, 2011 ONCA 225, 2011 CarswellOnt 1785,  OJ No 1323 is a particularly notable case which will undoubtedly change the face of refusal and failure trials. The issue considered by the Court of Appeal was whether statements made by an accused, during the course of refusing or failing to comply with a breath demand, are admissible (with or without a voir dire) and if so, what use may be made of them.
The accused in Rivera was stopped at a RIDE check and after forming a reasonable suspicion the attending officer made a demand under section 254(2) of the Code. After 21 failed attempts the accused was charged with failure.
At trial the officer testified that during the course of the 21 attempts the accused was offering several comments including the following: “I only had two glasses of wine”; “I only had one beer”; “I work for you. I work in the office” [referring to the OPP office]; “I work for the OPP. I’ll lose my job, don’t do this to me. I only had one beer. I was just taking myself home.”; “Why are you doing this to me? There are criminals out there.” [paras 10-12].
The accused testified at trial. The accused was convicted. In convicting the accused the trial judge relied on the roadside statements to reject the evidence of the accused [paras 22-31].
On appeal LaForme JA, for the court, tackled the issue of the use of the roadside statements. Citing R v Morrison,2006 CanLII 12722 (ONSC) and R v Bijelic, 2008 CanLII 17654 (ONSC), LaForme JA held that while roadside statements that are part of the actus reus are admissible, they are only admissible for the purpose of proving the actus reus and not for the purpose of attacking the credibility of the accused [paras 66-98].
In so ruling LaForme JA also considered the issue of what is and what is not part of the actus reus of the offence:
...her statements to the effect that she worked for the O.P.P., cannot accurately be characterized as evidence of the actus reus of the offence of refusal in the circumstances. Her various statements about the amount she had to drink could not be taken as indicating that she was refusing or failing to give a breath sample. This is also the case with her statements - "I work for the O.P.P. I'll lose my job" and, "Give me another chance. Don't do this to me. I don't want to lose my job. Why are you doing this to me?" (emphasis added). These statements cannot be said to constitute the gravamen or foundation of the offence of refusal or failure to blow, as contemplated by this court in Stapleton, Hanneson and Ha [para 93].
By way of contrast, LaForme JA noted that the comment, “I don’t care, charge me”, from Bijelic, would properly be considered as part of the actus reus.
With respect, this is perhaps an overly restrictive view of what constitutes the actus reus of the offence. It is worth noting in this regard, that the comment “I work for the O.P.P. I'll lose my job, don't do this to me. I only had one beer. I was just taking myself home." came immediately after the officer had warned the accused (after 10 attempts) that she could be charged criminally.
In considering whether these comments constitute part of the actus reus, it must be kept in mind that the offence can be committed in two ways: failing or refusing. Where an accused fails (as opposed to refuses) to provide a sample - as was the case in Rivera - comments, made by the accused during, and I say, as part of their failed attempts to provide a sample, must be put in context; and even though they may not constitute a "refusal" on their face, they may and likely are nonetheless part of the actus reus.
In fairness, LaForme JA does not draw any bright lines about what will and will not be part of the actus reus, noting that it will be for the trial judge to determine “on the facts of the case whether a particular roadside statement can properly be considered as evidence of the actus reus” [para 94]. On this point, LaForme JA notes that a voir dire may be required to determine what is and what is not part of the actus reus.
While previous rulings in R v Stapleton, 1982 CarswellOnt 62,  OJ No 49 (CA), R v Hanneson, 1989 CarswellOnt 102,  OJ No 1067 had clearly abolished any need for a voir dire on roadside statements in refusal and failure cases, Rivera appears to have ushered in a new era of voir dires on any refusal or failure case.