What is the test for establishing a reasonable excuse in a criminal case?

Saskatchewan, Canada


The following excerpt is from R. v. Rayne, 1973 CanLII 909 (SK QB):

Now, in Regina v. Canstone the facts constituting the excuse were proved. Those facts were that the accused had not been driving at all. On the other hand what we have here is nothing more than the accused’s statement to the effect that he had not been driving. This was an unsworn statement which was introduced in evidence on the cross-examination of the police officer. Such statement is necessarily admissible, not for the reason that it comes within the res gestae principle for the accused did not make the statement until he had completed his telephone calls at the detachment office and by then he had ample time for reflection, but because it was made at the time of the accused’s refusal to comply with the demand made to him. The refusal, without reasonable excuse, constitutes an offence and the accused’s statement that he had not been driving cannot be properly separated from his refusal. However, notwithstanding that the statement is admissible for the reason stated and relevant to establish an essential ingredient of the offence charged — the refusal by the accused to supply a sample of his breath — it can have no probative value on the issue of whether the accused had in fact been driving. As I have already stated, the onus is on the accused to establish a “reasonable excuse”. He cannot, in my view, discharge that onus through the introduction by cross-examination of another party of such an exculpatory, self-serving statement as exists in the instant case “under the general rule in criminal cases that self-serving statements made by an accused cannot be introduced on the cross-examination of third parties because they cannot themselves be tested by cross-examination of the accused person who made them”: per Ritchie J. in Regina v. Graham, 1972 CanLII 172 (SCC), [1972] 4 W.W.R. 488 at 494, 19 C.R.N.S. 117, 7 C.C.C. (2d) 93, 26 D.L.R. (3d) 579 (Can.).

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