R v Rivera

R. v. Rivera

2011 ONCA 225
Court of Appeal for Ontario — Feldman, Lang and LaForme JJ.A. | March 23, 2011

Background

Irma Rivera was pulled over at a RIDE check in the early hours of December 7, 2005. Constable Tai smelled alcohol and noticed she was unsteady on her feet, so he demanded a roadside breath sample. Rivera made 21 unsuccessful attempts to provide a sample over 30 minutes. While trying to blow, she made inconsistent statements about how much she'd had to drink ("three glasses of wine," then "two glasses," then "one beer"). She also falsely claimed she worked for the OPP and pleaded "Don't do this to me. I don't want to lose my job."

Rivera never mentioned having breathing difficulties or a panic attack to the officer. At trial, she testified that she'd experienced a panic attack that prevented her from providing a proper sample. She called two mental health experts who diagnosed her with panic disorder. The trial judge rejected her evidence, convicted her of refusing to provide a breath sample under s. 254(5) of the Criminal Code, and the summary conviction appeal court upheld the conviction.

Issues

1. Can roadside statements made before receiving the right to counsel be used to attack credibility at trial?
2. Can a judge use an accused's silence about medical conditions at roadside to reject their trial evidence?

The Right to Counsel Problem

The Court of Appeal ruled that Rivera's inconsistent statements about drinking and her lie about working for the OPP couldn't be used against her credibility. These statements were made while she was detained but before being told about her right to counsel under s. 10(b) of the Charter. The court explained that roadside evidence can only be used for specific limited purposes: to establish grounds for the breath demand, or as evidence of the actus reus (the actual criminal act) of refusing.

Rivera's statements about drinking and her employment weren't evidence that she was actually refusing — they were just desperate attempts to get out of trouble. Using them to attack her credibility violated the constitutional balance that makes roadside stops legal in the first place.

The Silence Violation

Even more seriously, the trial judge repeatedly relied on Rivera's failure to tell the officer about her panic attack as evidence that she was lying about it at trial. The Court of Appeal found this violated Rivera's Charter right to silence under s. 7. You have the right to remain silent when detained, and judges cannot use that silence against you later — even when you're claiming a reasonable excuse for not providing a breath sample.

The court rejected the Crown's argument that this was different because Rivera had to prove her reasonable excuse. Your constitutional right to silence doesn't disappear just because you later choose to testify about a defence.

Key Takeaway

Roadside statements made before getting the right to counsel generally can't be used to attack your credibility, and judges cannot hold your silence against you.

If you're charged with refusing a breath sample, pay close attention to what evidence the Crown is actually using and why. Statements that don't directly prove you were refusing (like lies about your job or how much you drank) may be inadmissible, and any reliance on your failure to explain yourself at roadside violates your Charter rights.