Court File and Parties

Court File No.: Scarborough 327482 Date: 2012-03-14 Ontario Court of Justice

Between: Her Majesty the Queen — and — Mohanarajan Navaratnam

Before: Justice S.E. Marin

Heard on: January 9 and February 15

Reasons for Judgment released on: March 14, 2012

Counsel:

• Malcolm Savage, for the Crown
• Richard Litkowski, for the accused Mohanarajan Navaratnam

MARIN J.:

Introduction

1Mohanarajan Navaratnam is a forty-three years old man who operates a limousine, towing and car sales business in Sutton, Ontario. In the late evening hours of January 3, 2011, after a full day of work, he returned from Sutton to his mother-in-law's home in Stouffville. After he had eaten dinner, his estranged wife called and asked him to come to the family home in Scarborough. He made his way from Stouffville to Scarborough. As he neared his residence, his wife called him and asked him to pick up milk. While driving southbound on Rouge River Drive to complete this errand before going home to his wife, he was involved in a three-car accident at the intersection of Rouge River and Sheppard Avenue East. The accident happened at approximately 11:23 p.m.

2Minutes prior to the accident, police had observed a BMW matching the description of Mr. Navaratnam's car. This car was speeding and driving erratically. The driver disobeyed a red traffic light at Morningside and Sheppard Avenues. Police followed the BMW but they were unable to catch up to it or to obtain its licence plate number. The officers activated their emergency lights and sounded their air horn while pursuing the car on Sheppard Avenue East. They lost sight of the BMW inside a residential complex on Millcar Drive, a street proximate to Mr. Navaratnam's home on Muskox Drive.

3The officers broadcast a description of the vehicle and exited the subdivision, proceeding eastbound on Sheppard Avenue towards the eastern branch of Rouge River Drive. Staff Sergeant Tobin and Constable Steffler testified that they saw what they believed to be the same BMW speeding southbound on Rouge River Drive. This car was driven by Mr. Navaratnam. The officers testified that he disobeyed the red light at Sheppard and struck a second vehicle, which spun and hit a third car.

4Police spoke with Mr. Navaratnam after the accident. Constable Steffler detected an odour of alcohol on his breath and noted that his eyes were red. Mr. Navaratnam denied being the driver of the BMW even though two witnesses and the officer had seen him exit the car using the driver's door. There was no-one else in the BMW except Mr. Navaratnam. At 11:26 p.m., Constable Steffler arrested Mr. Navaratnam on a charge of impaired driving and read him the approved instrument demand. Mr. Navaratnam was taken to the nearest breath testing facility and after speaking with duty counsel, he was taken to the qualified breath technician, Constable Mailer. Mr. Navaratnam was given four opportunities to provide a suitable sample of his breath but he did not do so.

5In the result, Mr. Navaratnam was charged with dangerous driving, impaired driving and refusing to provide a suitable sample of his breath. He pleaded not guilty to all three charges.

6At trial, the Crown called six witnesses, three civilians and three police officers. Mr. Navaratnam testified for the defence. His account of events differs on many material points from that provided by the Crown witnesses. No Charter applications were filed at trial. The case essentially turns on whether or not the Crown has met its burden of proving the essential elements of each offence beyond a reasonable doubt, coupled with issues of credibility.

7I take guidance from the decisions of the Supreme Court of Canada in the cases of R. v. Lifchus (1997), 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 and R. v. W. (D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 with respect to the meaning of reasonable doubt, the application of the burden of proof and the assessment of credibility. In particular, I am mindful that where a defendant testifies, as Mr. Navaratnam did here, he must be acquitted if the defence evidence is accepted as credible and reliable or if it raises a reasonable doubt as to his guilt. Even if the defence testimony is rejected as untrustworthy, Mr. Navaratnam must be acquitted unless the evidence accepted by the court proves his guilt beyond a reasonable doubt.

8I propose to address the charges sequentially, beginning with the first allegation of dangerous driving.

Dangerous Driving

9Staff Sergeant Tobin and Constable Steffler testified that their attention was first drawn to the BMW because they believed it was racing with another vehicle also travelling southbound on Meadowvale Avenue. The officers made a u-turn to follow both cars. They were unable to catch either vehicle despite reaching speeds of up to 130 kph in the police cruiser. At one point, the officers saw the BMW straddle two lanes of traffic as the road turned at the bottom of a hill. The other car stopped for a red light at Sheppard but the BMW made a right turn at speed without stopping, straddling both lanes of westbound traffic on Sheppard Avenue and accelerating quickly to a speed that was twice the posted speed of 60 kph. The officers decided to continue following the BMW on Sheppard. At Rouge River Drive, the BMW made a right turn on a green light and headed north. The officers turned on their emergency lights and sounded the air horn to clear the intersection and pursue the BMW, which turned left onto Trumpeter Avenue to enter into a residential subdivision. The car continued to speed and made a right turn onto Millcar Avenue. Police saw the BMW fail to stop for the stop sign at Millcar and Bald Eagle Avenue and then they lost sight of it. They decided to call off their pursuit due to concerns for public safety. They exited the subdivision using the western branch of Rouge River Drive and proceeded eastbound on Sheppard Avenue.

10Almost immediately, they saw a BMW which they believed to be the same vehicle speeding southbound on the eastern part of Rouge River Drive. Both officers testified that the BMW entered the intersection at speed and on a red light. The BMW collided with the left front of a Mazda travelling eastbound on Sheppard Avenue. The force of the collision caused the BMW to spin around and come to rest against a pole at the south-eastern corner of the intersection. The Mazda was propelled into the front end of a Honda that was stopped for the red light on northbound Deane Park Road at Sheppard Avenue.

11The air bags in the BMW and the Mazda deployed on impact. Giselle Marquez, the driver of the Mazda, was confused and dizzy as a result of the collision and she was taken to hospital where she was treated for severe chest pain. Her pain persisted for approximately two months. Her car was a write-off. She was certain that the light was "all the way green" as she approached the intersection in the curb lane and that the point of impact was in the middle of the intersection.

12Ms. Marquez's testimony is corroborated by the evidence of Mr. Gilbert Wright, a mechanic who was driving his Honda northbound on Deane Park Road. He stated that he was stopped for almost one minute at the red light regulating north/south traffic at the intersection of Deane Park and Rouge River at Sheppard Avenue when he saw the BMW enter the intersection. He testified that the BMW made no attempt to stop for the red light. From his position, Mr. Wright could not estimate the speed of the BMW. His impression was that the vehicle was travelling at a normal rate of speed. Mr. Wright's car was struck by Ms. Marquez's Mazda. He was not injured but his car was a write-off.

13Mr. Selvaratnam was travelling eastbound on Sheppard Avenue some distance behind Ms. Marquez. He testified that he saw the BMW coming through the intersection on a red light. He slowed down because he anticipated an accident. He saw Ms. Marquez's car collide with the BMW. He saw the BMW end up against the pole. He saw the driver of the BMW get out of his car at the same time as the police arrived on scene. Mr. Selvaratnam pointed out the driver of the BMW to police. He saw the officer he spoke to walk over to speak to the driver.

14The officers and Mr. Wright testified that the roads were dry, without snow, rain or ice. It was not foggy and visibility was good. Traffic was very light. Mr. Wright testified that the lighting at the intersection was "pretty good".

15Constable Steffler testified that he smelled an odour of alcohol on Mr. Navaratnam's breath and noticed that his eyes were red and bloodshot. The officer described Mr. Navaratnam as being argumentative and stubborn at the scene of the accident. Staff Sergeant Tobin assisted his partner with the arrest and he testified to some difficulty hand-cuffing the defendant.

16Mr. Navaratnam testified that he had worked a full day in Sutton. He returned to his mother-in-law's place in Stouffville in the evening. He had dinner. He did not drink any alcohol because he was too tired. He was depressed about the dissolution of his marriage and under stress due to business pressures. He received a call from his estranged wife asking him to come to the family home that night. At 10:40 p.m., he left Stouffville for Scarborough. He agreed that he travelled on Meadowvale, Sheppard and Rouge River as the officers described. He could not remember the route he took once he turned into the residential subdivision where his home was located but he agreed that one of the routes to his home would be along the roads where the officers observed a black BMW matching the description of his car. He testified that he received a call from his wife asking him to pick up milk and that was why he was travelling southbound on Rouge River Drive at the time of the accident. He denied being aware of the police car that was following him at some distance. He did not see the emergency lights and he did not hear the siren. He denied that he was speeding or operating his car in the manner described by the officers. He testified that he entered the intersection on an amber light.

Credibility Assessment

17I propose to deal with the issue of credibility first.

18Constable Steffler had the closest interaction with Mr. Navaratnam. In my view, the officer gave his evidence in a forthright and balanced manner. His evidence was detailed and logical. He was not shaken in cross-examination. His observations of Mr. Navaratnam's driving up to the point of the accident were corroborated by the evidence of his partner, Staff Sergeant Tobin. Constable Steffler's observation as to the cause of the accident – Mr. Navaratnam running a red light – was corroborated by his partner and all three civilian witnesses. The officer's evidence about the presence of an odour of alcohol is corroborated by his partner and the breathalyser operator at the station, Constable Mailer. Mr. Navaratnam's attitude and complaints about the handcuffs later at the station are consistent with the officers' descriptions of his stubborn and argumentative behaviour at the accident scene.

19Of the civilian witnesses, I found Mr. Wright to be the most reliable. Unlike Ms. Marquez, he was able to clearly recall the events in question and describe them with detail and fairness. He was not shaken in cross-examination. He had no discernible motive to fabricate his testimony. Mr. Selvaratnam identified Mr. Navaratnam as the driver and corroborated Mr. Wright's testimony that the light was red for the defendant. Mr. Selvaratnam was not shaken on either of these points in cross-examination.

20All of the witnesses except Mr. Navaratnam agreed that the light was green for east/west traffic and red for north/south traffic. I did not find Mr. Navaratnam to be a believable or reliable witness on this key point or other matters. He had no clear recollection of the events apart from a convenient certainty that those factors which might be inculpatory – the consumption of alcohol, speeding, a red rather than amber light – were absent. I had a strong impression that when he alleged a failure to remember, he was struggling between his duty to tell the truth and his desire to avoid implicating himself.

21Mr. Navaratnam's evidence was internally inconsistent at times. Initially, he testified that he never drinks alcohol. Then he said that he drinks occasionally at home or once in a while with friends. He initially testified that there was no stop sign at Millcar and Bald Eagle. Then he testified that he could not remember if he ran the stop sign at that location. His evidence is inconsistent with other witnesses' accounts, particularly in relation to his consumption of alcohol and the cause of the accident.

22I find as a matter of fact that it was Mr. Navaratnam who was driving the BMW that the police officers saw speeding and driving erratically prior to the accident. I also find as a matter of fact that Mr. Navaratnam drove his car into the intersection at speed and on a solid red light, as testified to by the Crown witnesses. Where there is any inconsistency between the account of the driving provided by Constable Steffler and that provided by Mr. Navaratnam, I accept the officer's testimony as factual and accurate.

Legal Analysis of Dangerous Driving

23I turn to a consideration of whether those facts make out the offence of dangerous driving.

24In R. v. Beatty, 2008 SCC 5 (CanLII), [2008] 1 S.C.R. 49, 228 C.C.C. (3d) 225 at paras. 43-49, the Supreme Court of Canada considered the requisite actus reus and mens rea of the offence of dangerous driving. The Court held that the actus reus of the offence requires that the trier of fact be satisfied beyond a reasonable doubt that, viewed objectively, the defendant was, in the words of the section, driving in a manner that was "dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place". It is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. The mens rea of the offence of dangerous driving involves the application of a modified objective test. In making the objective assessment, the trier of fact must also be satisfied beyond a reasonable doubt on the basis of all of the evidence, including evidence about the defendant's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the defendant's circumstances. Moreover, if an explanation is offered by the defendant, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and the danger involved in the conduct manifested by the defendant. While proof of subjective mens rea will clearly suffice, it is not necessary for the Crown to prove that the defendant had a positive state of mind, such as intent, recklessness or wilful blindness. The presence of objective mens rea is determined by assessing the dangerous conduct as against the standard expected of a reasonably prudent driver.

25From a procedural perspective, the first task is to determine whether the conduct in issue constitutes a marked departure from the standard of a reasonably prudent driver. If it does not, there is no need to pursue the analysis because the offence will not have been made out. If on the other hand, the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the defendant, if any, to determine whether it raises a reasonable doubt about whether a rational person in the defendant's position would have been aware of the risk created by this conduct. If there is no such evidence, the court may convict the defendant.

26In the Beatty case, the defendant believed that he had momentarily fallen asleep, causing his truck to cross the centre line of traffic and collide with an on-coming vehicle, killing all three occupants. There was no evidence of speeding or improper driving before the accident. There was no evidence of vehicle failure and intoxicants were not a factor. The Court affirmed the acquittal of the defendant, holding that a momentary act of negligence was not sufficient to support a finding of a marked departure from the standard of care of a reasonably prudent driver.

27The position of the defence is that Mr. Navaratnam may have operated his vehicle with momentary carelessness but he is not guilty of dangerous driving. Counsel submits that the manner of driving described by Mr. Navaratnam does not constitute a marked departure from the standard of a reasonably prudent person in his circumstances because there is no evidence that anyone was placed in danger, traffic was light, the hour was late and the driving took place on dry roads in a mixed commercial/residential area.

28The Crown contends that the driving was objectively dangerous and points out that it is not necessary for the Crown to prove that the lives of persons were actually endangered. In R. v. Mueller (1975), 1975 CanLII 1385 (ON CA), 29 C.C.C. (2d) 243, 32 C.R.N.S. 188, the Ontario Court of Appeal held that the offence is proved where the Crown establishes that the driving complained of was dangerous to the public that is either actually present at the time of the offence or the public which might reasonably be expected to be in the particular vicinity at the time.

29In my opinion, the driving of Mr. Navaratnam was objectively dangerous and demonstrated a marked departure from the standard of a reasonably prudent driver in all of the circumstances. On the facts as I have found them, Mr. Navaratnam's driving over the period up to the point of collision involved the following:

• Excessive speed, almost continuously, at times over double the posted limit, as on Morningside Avenue;
• Straddling two lanes of traffic at two different times;
• An improper right turn, made without stopping and at excessive speed;
• The failure to stop for a stop sign on a narrow residential street;
• The failure to stop for two red traffic lights;
• The failure to notice a marked scout car with its emergency lights and siren activated following behind within the residential subdivision, where the only vehicles in motion were the BMW and the police cruiser.

30This pattern of improper driving took place shortly after eleven o'clock on a weekday night, within a metropolitan area comprised of commercial and residential premises. Although traffic was light and there is no evidence that any vehicles or pedestrians were actually interfered with, it is reasonable to expect that there could have been vehicular and foot traffic present on the roads that were travelled. Police testified that had there been traffic westbound on Sheppard at Morningside, these vehicles would have had to take evasive action to avoid the BMW when it disobeyed the red light and drifted into the passing lane. There was other traffic in the intersection where the accident happened. It was a dark, clear and cold evening where the roads were dry. The weather was not a disincentive to people travelling about in cars or on foot. Unlike the circumstances in Beatty, there is evidence of improper driving prior to the accident and evidence of the consumption of alcohol. Viewed objectively, drinking and driving and disobeying traffic markers, including two red lights and a stop sign, is dangerous conduct. Such driving is a marked departure from the standard of care expected of a reasonably prudent driver in the circumstances Mr. Navaratnam faced.

31In terms of assessing the mental element of the offence of dangerous driving, the only evidence before me is that Mr. Navaratnam was depressed and preoccupied by his marital and business difficulties. He denied the poor driving observed by the police and denied running a red light immediately prior to the collision. His evidence does not raise a reasonable doubt in my mind as to his guilt for reasons I have earlier stated. This is not a situation where there was a momentary lapse of attention as in Beatty, where the defendant speculated that he had fallen asleep from fatigue, causing the accident. In my view, all of the evidence considered cumulatively establishes that Mr. Navaratnam had the subjective mens rea of intentionally or at least recklessly creating a danger for other users of the roadway within the meaning of s. 249 of the Criminal Code. I find that he consumed alcohol while fatigued and stressed and then he chose to get in his car and drive in the manner described by the police and the Crown witnesses. On all of the evidence, I am satisfied beyond a reasonable doubt that a reasonable person in his position would have been aware of the risk his conduct presented.

32Mr. Navaratnam will be found guilty of the offence of dangerous driving.

Impaired Driving

33Constable Steffler is an experienced police officer and he was driving the scout car that night. He made detailed observations about the improper driving he observed. He believed that the BMW he had been chasing moments before the accident and the BMW involved in the accident were the same vehicle because of the pattern of speeding and the similarities in the appearance of the car, an older, heavier black BMW sedan.

34As he arrived at the accident scene, Constable Steffler saw Mr. Navaratnam getting out of the driver's seat of the BMW. Before he could approach him, Mr. Selvaratnam pointed out the defendant and identified him as the driver of the BMW.

35Constable Steffler approached Mr. Navaratnam and spoke to him. Mr. Navaratnam denied that he was the driver, something the officer viewed as "a bald-faced lie". Mr. Navaratnam had a strong odour of alcohol on his breath and his eyes were bloodshot. Based on these factors, considered in conjunction with the earlier erratic driving and the fact of the accident, Constable Steffler formed the opinion that Mr. Navaratnam's ability to operate a motor vehicle was impaired by alcohol and he placed him under arrest at 11:26 p.m. He gave Mr. Navaratnam his rights to counsel and ensured that he understood them.

36At 11:31 p.m., Constable Steffler read the approved instrument demand from the back of his memo book. Mr. Navaratnam indicated that he understood the demand. Upon request for identification, Mr. Navaratnam produced his licence, insurance and ownership for the BMW from his rear pocket. He was stubborn and argumentative when asked to present his wrists for hand-cuffing but he was not assaultive. At 11:38 p.m., Constable Steffler and Staff Sergeant Tobin transported Mr. Navaratnam to 41 Division, the location of the nearest breathalyser technician. After a 16 minute drive and a brief delay to permit a prisoner wagon to clear the sallyport, Mr. Navaratnam was booked at 12:08 a.m.

37The booking DVD, Exhibit 3, indicates that Mr. Navaratnam was swearing, angry and talking very quickly over the officers as they tried to explain the booking procedure to him. He complained that the officers had "fucked him up" by hitting him hard in the ribs and placing the handcuffs on him too tightly. He kept bending over in an exaggerated way to indicate his discomfort at being cuffed. He refused to accept the officer's opinion that the handcuffs were on loosely. He had to be held by both arms to stop him from swaying.

38Constable Steffler testified that Mr. Navaratnam was not struck in the ribs by police. Mr. Navaratnam was just "grand-standing" in the officer's view, demonstrating his poor judgment through bad acting.

39After the booking, efforts were made to put Mr. Navaratnam in touch with his lawyer of choice. A number of calls were made but none succeeded in producing a call back from counsel. A call was placed to duty counsel as a back-up and at 12:56 a.m., Mr. Navaratnam spoke to duty counsel in private for three minutes. At 1:01 a.m., Mr. Navaratnam was taken to the breath room.

40Mr. Navaratnam testified that he had not consumed any alcohol that day. As of the date of trial, he could not remember if he drove his BMW on Millcar Road or if he ran the stop sign at Millcar and Bald Eagle Avenue. He could not recall any details of the accident apart from the fact that he was certain he entered the intersection on an amber light and that he was not speeding. He attributes his failure to remember to the stress and depression he was feeling as a result of business pressures and his marital problems. He did not repeat his allegation that he had been beaten by police at the time of his arrest. I find as a fact that he was not struck in the ribs by the officers. His statements at the time of booking were mere posturing for the camera, in my opinion.

Defence Position and Crown Submission

41The position of the defence with respect to the charge of impaired driving is that the Crown has failed to prove the essential elements of the offence beyond a reasonable doubt. In particular, counsel submits that the indicia of impairment are the subjective observations of the officer and each is equivocal in nature. The evidence of poor driving is also equivocal and insufficient to establish that Mr. Navaratnam's ability to operate his car was impaired by alcohol. Finally, Mr. Navaratnam's evidence denying the consumption of any alcohol and providing an innocent explanation for the accident should be accepted as credible and reliable or at least raise a reasonable doubt as to his guilt.

42The Crown contends that there is ample evidence to support a conviction on the charge of impaired driving and invites a finding that Mr. Navaratnam's testimony is neither credible nor reliable.

Court's Analysis

43In my opinion, the Crown has proven the charge of impaired driving beyond a reasonable doubt.

44Constable Steffler gave detailed testimony of his interaction with Mr. Navaratnam and his observations of Mr. Navaratnam's driving. The officer's evidence was clear and balanced. He did not embellish his account nor was he was shaken in any material particular in cross-examination. His observations were corroborated by his partner, Staff Sergeant Tobin, by the evidence of other witnesses and by the DVD recording of events at the police station.

45With respect to the driving, I rely on my findings of fact made in relation to the charge of dangerous driving. I accept the evidence of the prosecution witnesses that Mr. Navaratnam entered the intersection on a red light and that the light had been red for about a minute. I reject his evidence that he had an amber light. Entering a trafficked intersection on a red light is evidence supporting an inference of impaired judgment. When viewed as part of the continuum of Mr. Navaratnam's driving, as related by officers Steffler and Tobin, and in light of the evidence of alcohol consumption, I am satisfied that the only reasonable inference is that Mr. Navaratnam's mistake about his right of way was the result of judgment impaired in part by alcohol.

46Constable Steffler's evidence about the presence of an odour of alcohol on Mr. Navaratnam's breath is corroborated by the evidence of Staff Sergeant Tobin and Constable Mailer. Constable Steffler described Mr. Navaratnam as being argumentative and stubborn at the accident scene and Staff Sergeant Tobin testified to some difficulty cuffing the defendant. Mr. Navaratnam's demeanour and complaints about the handcuffs at the station are consistent with the officer's description of his argumentative behaviour at the accident scene.

47Based on the factors he recounted in his evidence, I am satisfied that Constable Steffler had the requisite subjective and objective reasonable and probable grounds to arrest Mr. Navaratnam on a charge of impaired driving.

48In terms of proof beyond a reasonable doubt, I appreciate that the evidence of impairment must be considered cumulatively. I also appreciate that certain standard indicia of impairment, such as an odour of alcohol on the breath or red eyes, are simply evidence of consumption of alcohol and generally tell little about the impact of alcohol on the ability of the driver to operate a motor vehicle. In this case, I agree with defence counsel that there might be an innocent explanation for the red eyes, such as fatigue. There is no evidence of deficits in balance, motor skills or speech. However, it is the coincidence of indicia that support an inference of impairment. In this case, there is evidence of the presence of an odour of alcohol, red eyes, poor driving and poor judgment. No innocent explanation has been advanced for the presence of an odour of alcohol, such as a diabetic reaction or the ingestion of cough syrup. Mr. Navaratnam simply denies drinking as a cause of the odour or other indicia of impairment. For reasons stated earlier, I don't believe him.

49The evidence of Mr. Navaratnam's impaired judgment, most particularly in his running two red lights and his denial that he was the driver when he had exited the car in the presence of police and civilian witnesses, coupled with the evidence of an odour of alcohol and red eyes, must be considered collectively rather than in isolation. When considered cumulatively, the indicia are not equivocal, as suggested by the defence.

50The totality of the evidence satisfies me beyond a reasonable doubt that Mr. Navaratnam's ability to operate his car was impaired by his consumption of alcohol. There will be a conviction on that charge.

Refusal to Provide Suitable Breath Samples

51Constable Mailer has been a qualified breathalyser operator for some six years. He received Mr. Navaratnam into his custody in the breath room at 41 Division at 1:01 a.m. on January 4, 2011.

52He observed that Mr. Navaratnam had an odour of alcohol on his breath, his eyes were bloodshot and he spoke with an accent. The officer did not note any defect in Mr. Navaratnam's motor skills, balance or speech.

53Constable Mailer testified that he was operating an Intoxilyzer 8000C, an approved instrument under the Criminal Code. Based on his diagnostic and calibration checks and his self-test, he was satisfied that the machine was in proper working order. There is no evidence to contradict or undermine his conclusion.

54Constable Mailer testified that he explained how proper breath samples should be provided. He told Mr. Navaratnam that he must make a tight seal with his lips and blow directly into the mouthpiece. He must blow continuously and not stop until he was told to. Mr. Navaratnam indicated that he understood these directions.

55Mr. Navaratnam was given four opportunities to provide a suitable sample over a period of some ten minutes. He failed to provide a proper sample on any of the four attempts. He was cautioned about the consequences of failing or refusing to provide a suitable sample between the third and fourth tests. He was arrested on the additional charge of refusal after the fourth test, at 1:11 a.m.

56Constable Mailer testified that on the first test, Mr. Navaratnam blew intermittently rather than continuously and sucked air in rather than blowing it out. The absence of tone from the machine and the absence of condensation in the tube indicated that there was insufficient air being blown to register a reading. On the second test, after being provided with a new mouthpiece, Mr. Navaratnam again failed to provide a suitable sample because he was blowing intermittently and not providing a continuous deep-lung sample. On the third try, he again failed to make a proper seal and blew only intermittently. Constable Mailer cautioned him and gave him a fourth opportunity to provide a suitable sample. Mr. Navaratnam blew into the mouthpiece for a few seconds only and then he stopped. Constable Mailer told him that he was going to caution him again and then said, "No, that's a refuse." The officer decided that he was not going to give Mr. Navaratnam a fifth opportunity to provide a suitable sample of his breath. Mr. Navaratnam stood up and called Constable Mailer a "fucking idiot".

57The DVD recording shows how Mr. Navaratnam became more confrontational and verbally abusive throughout the testing procedure. His anger at his situation is evident. He used profanity and accused Constable Mailer of not conducting the test properly while insisting that he was following the officer's directions.

58Mr. Navaratnam testified that he understood what was being required of him and he tried to follow Constable Mailer's directions. He knew he was being asked to make a tight seal around the mouthpiece and blow continuously into the machine until he was told to stop. He knew that if he did not blow long enough, a proper reading could not be obtained. He denied that he tried to suck air back in. He denied that he failed to blow continuously into the machine. Mr. Navaratnam testified that he did what he could do to comply with the directions he had received. He testified: "I blow. I was doing what I can. He was not satisfied." He also said: "I was blowing – the way he showed me, I did." After a number of questions, Mr. Navaratnam conceded that he was upset with Constable Mailer because he kept telling him that he was not doing the tests properly. He testified that his state of mind at the time of the tests was one of total depression because of his business difficulties and marital situation.

Defence Position

59On this evidence, the position of the defence is threefold. First, the defence contends that there was not a valid demand under s. 254 of the Code because Constable Steffler lacked the statutory preconditions for making a proper demand. Secondly, the defence submits that the evidence does not prove that Mr. Navaratnam's failure or refusal to provide a suitable sample was unequivocal. Thirdly, the defence contends that the offence requires proof that the failure or refusal was intentional and that there is no evidence that Mr. Navaratnam intended to refuse to provide a proper sample of his breath. Mr. Navaratnam was depressed but compliant with the directions he was given and he was simply unable to provide a proper sample despite his best efforts to do so. In support of this interpretation of the mens rea requirement for the offence of refusal, the defence provided a paper prepared by Peter Keen for a Continuing Professional Development Presentation on December 3, 2011 entitled, Impaired and "Over 80" 2011.

Court's Analysis

60With respect to the first argument, it is clear in my reasons for convicting Mr. Navaratnam of impaired driving that I am satisfied that Constable Steffler had the requisite reasonable and probable grounds to arrest Mr. Navaratnam on that charge. The uncontroverted evidence of Constable Steffler is that he read the approved instrument demand to Mr. Navaratnam as soon as practicable from the back of his memo book. Mr. Navaratnam told the officer that he understood the demand. At trial, Mr. Navaratnam testified that he knew he was being asked to provide samples of his breath. While the Crown failed to provide evidence of the precise words used, I am satisfied that the prosecution has met its onus of showing that the demand was properly made and understood by Mr. Navaratnam.

61The evidence is that the demand was made immediately after arrest, and that Mr. Navaratnam was taken directly to the nearest breath testing facility at 41 Division. The ten minute delay in booking was reasonable and explained by the presence of others in the sallyport. Mr. Navaratnam was taken to the breath room to perform his tests as soon as he had finished speaking to duty counsel, after it became evident that his lawyer of choice could not be contacted. There is no evidence that the police were other than diligent in addressing Mr. Navaratnam's wish to receive legal advice before he took the tests. I note that no Charter application was brought to challenge the constitutionality of the demand or the provision of rights to counsel.

62On all the evidence, I am satisfied beyond a reasonable doubt that the demand was a valid one.

63I am also satisfied that Mr. Navaratnam's refusal to provide a suitable sample of his breath was unequivocal. Whether the refusal is unequivocal is a question of fact. While Mr. Navaratnam did not explicitly refuse to provide a sample, he repetitively and consistently made inadequate efforts to blow. Constable Mailer concluded that Mr. Navaratnam was making feigned attempts to provide a sample. In the officer's mind and at law, feigned attempts to blow amount to a refusal. The evidence of Constable Steffler and the DVD recording of the breath testing corroborate Constable Mailer's evidence that Mr. Navaratnam was not providing continuous samples of his breath. The machine's tone was intermittent, matching Mr. Navaratnam's interrupted efforts to blow.

64I accept Constable Mailer's evidence that Mr. Navaratnam was not making a proper seal around the mouthpiece with his lips and that he was sucking air back into his mouth. It is clear viewing the DVD that Mr. Navaratnam was angry at the predicament he found himself in. He was belligerent, verbally abusive and rude with the officer. There is nothing in the DVD recording to corroborate Mr. Navaratnam's account that he was trying his best to comply with the demands of the officer by blowing continuously until directed to stop apart from his own protests that this is what he was doing. The objective evidence – the sounds made by the machine - indicate that there was not sufficient continuous air being provided in any of the attempts. The visual evidence and the testimony of Constables Steffler and Mailer contradict Mr. Navaratnam's version of events. The consistency of Mr. Navaratnam's refusal to comply over four tries and ten minutes satisfies me that his refusal was clear and unequivocal. I am satisfied that in all the circumstances of this case, Constable Mailer was not obligated to provide Mr. Navaratnam with a further caution and more attempts to provide a suitable sample.

65The defence contends that there is no evidence to prove beyond a reasonable doubt that Mr. Navaratnam intentionally refused or failed to comply with the demand made of him. Even assuming without deciding that the mens rea of the offence of refusal requires the Crown to prove both that the demand was understood and that the refusal was intentional, I am satisfied that the evidence in this case reaches that higher threshold. It is clear that Mr. Navaratnam understood the demand and Constable Mailer's instructions about how to comply with that demand: he said that he did. Mr. Navaratnam's defence is that he was so depressed that it impacted on his ability to provide a suitable sample of his breath and his refusal was involuntary.

66In my view, there is no air of reality to Mr. Navaratnam's position. I accept the evidence of Constable Mailer that Mr. Navaratnam was taking active steps to avoid providing a proper sample. He was failing to make a proper seal with his lips, he was sucking air back rather than blowing air into the machine, he was puffing his cheeks and feigning blowing and he was not blowing continuously. His behaviour did not change over the ten minutes of the testing; if anything, his behaviour worsened and became more confrontational over time. It is clear in the DVD recording that Mr. Navaratnam was angry rather than depressed about his predicament. He was not weepy and sad. He was rude and belligerent.

67I am satisfied beyond a reasonable doubt that the Crown has proven the offence of refusal and there will be a conviction on this charge also.