A few hours of sleep and a "Double Double" may not cut it!

It’s quite a common occurrence. You go out with your friends, and the alcohol and the partying flows late into the night. You, being a responsible adult, have pre-planned and spend the night at a friend’s place or have booked a hotel room. You wake up in the morning or early afternoon, grab a coffee, and decide to head home. Unfortunately, you might not have waited long enough!

In R. v. Hofer, a recent decision from Manitoba, this issue was discussed. Ms. Hofer, consumed a great deal of alcohol the evening before. The following morning, she was stopped as an officer noticed that she was texting and driving. Soon after the stop, the officer noted the odour of alcohol emanating from the vehicle, at which point, Ms. Hofer acknowledged that she had been drinking the night before. Ultimately, she was charged with “Driving with Excess Blood Alcohol”. At trial Ms. Hofer argued that she should be entitled to an acquittal as she operated the vehicle under a “mistake of fact”. That “mistake of fact” being that she thought she was not affected by the alcohol at the time of driving. Generally speaking, a person is not guilty of a crime if he commits an act under a genuine belief in the existence of a fact which, if true, would make such an act lawful. For example, if he entered a car, which looked like his, thinking it was his, he would have a defence to a theft charge. However, in order to qualify, the act must relate to an ingredient of the offence, proof without which a conviction cannot be sustained.

In this case, Schulman J., stated the following:

Ms Hofer voluntarily consumed a great deal of alcohol the evening before. The fact that Ms Hofer may have thought she had wholly slept off the effects of the alcohol consumed the night before is not in itself sufficient to rebut the presumption or raise a reasonable doubt on the issue of mens rea.

He further stated:

There is no evidence that Ms Hofer acted under a mistake of fact. However, even if she did act under a mistake of fact, it was not on a fact, which if true, made her act lawful and entitled her to an acquittal. I find that the judge made no error in rejecting mistake of fact as a defence.

As a result, she was convicted of “Driving with Excess Blood Alcohol”.

R. v. Hofer [2014] M.J. No. 319
http://canlii.ca/t/gfdzf

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