Court File and Parties

Court File No.: Halton, 10-3600 Date: 2012-05-17 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ben Allen

Before: Justice Frederick L. Forsyth

Heard on: December 8, 2011 and March 7, 2012

Reasons for Judgment released on: May 17, 2012

Counsel:

• Michael Malleson/Kelly Frew for the Crown
• Russell Allegra for the accused Ben Allen

FORSYTH, J.:

Summary of the Evidence

1Mr. Allen was charged with a single count of failing to comply with a demand made by a police officer for a sample of his breath by means of an approved screening device (ASD) contrary to s. 254(2)(b) of the Criminal Code arising out of an incident on November 7, 2010 in the Town of Oakville in the Region of Halton. Mr. Allen entered a plea of not guilty to this charge and the Crown elected to proceed summarily.

2His trial began on December 8, 2011 with the Crown calling as its first witness P.C. Nicholas Tansley. He testified in chief that he had been a member of the Halton Regional Police Service (HRPS) for six and one-half years. He had made notes at the time and shortly after the arrest of Mr. Allen. His notes were qualified and he was permitted to refresh his memory from them when required. He testified that he had been working a night shift between 6:00 p.m. and 6:00 a.m. commencing on Saturday, November 6, 2010. He was in uniform capacity and at 1:40 a.m. on Sunday, November 7th, he observed a motor vehicle northbound on Trafalgar Road south of Postridge Drive in the Town of Oakville. He said that it was travelling at a high rate of speed so he activated a hand-held radar device and obtained a reading of 82 kilometres in a posted 60 kilometre speed zone. He said that the vehicle came to an abrupt stop at a red light at the intersection of Postridge and Trafalgar Road in Oakville. At 1:43 a.m., he decided to execute a traffic stop on the vehicle and it complied by pulling into a private driveway at 2431 Trafalgar Road. At the outset of the trial, Mr. Allegra conceded the identification of Mr. Allen as the driver of this vehicle.

3The officer said that he approached Mr. Allen's vehicle and observed him to be in the driver's seat. He described his eyes as "glassy" and he detected an odour of alcohol coming from his breath as Mr. Allen spoke to him. He also noted that Mr. Allen did not seem to be making eye contact with him as they spoke at the driver's side window. After speaking with Mr. Allen, P.C. Tansley said that he formed the opinion that Mr. Allen was operating his motor vehicle with alcohol in his body and therefore the officer requested a roadside ASD to be brought to the scene. He said that this opinion was formed at 1:44 a.m.

4P.C. Scott, another HRPS officer, arrived with the ASD. Just before that time, P.C. Tansley said that he had read the ASD demand under s. 254(2) of the Criminal Code to Mr. Allen. This would have been at 1:44 a.m. The Crown asked him to read the demand in the exact words that he was testifying he had used from the back of his notebook at the time. P.C. Tansley then read the demand in full and I just simply note that it was in the formal language of s. 254(2). He said that after the demand had been read to him, Mr. Allen responded that he understood the demand and added, "Can we make it quick? I have to work tomorrow." Mr. Allegra had also earlier made an express admission of voluntariness with respect to any verbal utterances from his client to either of the two police officers on this particular night in question.

5Asked by the Crown about the particular ASD itself, the officer said that P.C. Scott had arrived with it at 1:49 a.m. and that it was an Alcotest 7410 GLC. He said that he had observed the calibration sticker on the device that indicated that a P.C. Judson, Badge #9148, had calibrated the unit on October 24, 2010. He said that P.C. Scott also advised him when turning the unit over that the device had been tested and was in proper working order.

6P.C. Tansley said that at 1:50 a.m., he provided the accused with a sealed plastic bag containing the mouthpiece for the ASD. He asked Mr. Allen to remove the mouthpiece himself from the package and insert it into the ASD. He said that Mr. Allen complied with that instruction.

7The officer said that he then provided a demonstration of how to blow into the mouthpiece and he explained the use of the device to Mr. Allen. By that, he said that he meant that he explained how the machine worked and how to provide a proper sample.

8P.C. Tansley then testified about a series of opportunities that he had given Mr. Allen to provide a proper sample on the ASD. On the first opportunity, he said that Mr. Allen had stopped breathing and an error code of "EO" had been produced by the ASD on its screen. He told the Crown that to him, "EO" meant a proper sample of breath had not been obtained. He explained that the accused appeared to have stopped breathing after initially supplying enough breath to cause the ASD to make a humming sound, indicating that a sample was in progress, but then it stopped and the "EO" indication appeared.

9A second opportunity was afforded Mr. Allen and the officer said that he again explained the method of providing a sample of breath and administered the second test. Once again, he said that Mr. Allen initially began to blow into the ASD but terminated his blowing before a proper sample could be obtained. After this test, Mr. Allen told the officer that he was sick and the officer said that he had observed a slight cough on the part of Mr. Allen. Notwithstanding having received that information from Mr. Allen, P.C. Tansley said that he simply proceeded to the third opportunity for him to provide a sample.

10On the third test opportunity, the officer said that he again demonstrated how a subject should inflate his or her lungs and how to blow into the unit. Mr. Allen again began to provide a sample of breath into the ASD but again stopped before a proper sample could be obtained. The officer said that the mouthpiece appeared to be plugged since Mr. Allen's cheeks were filled with air and his chest remained inflated. Later in cross-examination or re-examination, he clarified that piece of evidence to the court by saying that the concern that he had about whether or not the mouthpiece was plugged was just a thought that he entertained himself and that he did not actually mention that to Mr. Allen. Back to the third test, the officer said he observed Mr. Allen to inhale and then when he was told to blow into the unit, his cheeks remained filled with air and his chest was inflated. The Crown asked if he had ever seen Mr. Allen's chest in a deflated condition during this third test and the officer said that he did after the mouthpiece was removed from his mouth. He estimated that Mr. Allen might have been in that state of inflated chest and puffed out cheeks with the mouthpiece in his mouth for a few seconds, certainly longer than a normal breath.

11The officer said that he then attempted to administer a fourth test after again explaining how to provide a proper sample of breath to Mr. Allen, who seemed to understand his instructions. Once again, on the fourth test, he said that Mr. Allen began to blow and stopped before a proper sample was obtained. He estimated that he had been providing air for a couple of seconds before ceasing to blow. After this test, he said that Mr. Allen stated to him that he was indeed providing a sample to him. However, the officer then explained to him that failure to provide a proper sample would render him liable to the criminal charge of failing or refusing to provide a proper sample of breath to the ASD.

12After that interchange between the two of them, the officer said that he gave Mr. Allen a fifth opportunity and during this particular test, the error code "EO" appeared again on the ASD screen indicating that a proper sample had not been received.

13The officer then administered a sixth test and again obtained the exact same result, an error code of "EO". He went on to explain that when an insufficient sample of breath is provided to the ASD during a test, the error code "EO" will be produced.

14After the sixth test, he advised the accused that he would be charged with failing to provide or refusing to provide a breath sample. This was at 2:00 a.m. and at the same time, he offered the accused an opportunity to attend 20 Division in Oakville to provide a sample of his breath into the official Intoxilyzer 8000C. He said that the accused refused to do that by stating that he had already provided enough samples. The Crown asked the officer why he would have offered to allow the accused to provide a sample into the Intoxilyzer at the station after unsuccessfully attempting to have a proper sample given on the ASD at the scene. P.C. Tansley said that after speaking with Mr. Allen at the roadside after the six aborted samples he detected that the accused did not seem to believe that the ASD was operating properly.

15Mr. Malleson then asked him if he had retained the mouthpiece that had been used by Mr. Allen in these tests, particularly since the officer had mentioned earlier in his testimony that it had appeared to him as if that mouthpiece might have been plugged at one point. P.C. Tansley said that he did retain it and he had seized that mouthpiece at 2:23 a.m. although he did not have a direct notation in his book about the mouthpiece. However, he said that it was at the same time as when he had obtained a driver's licence from the accused and he lodged this mouthpiece into a property locker at 20 Division with an evidence tag attached to it and the evidence tag number recorded in his notebook. On consent, the mouthpiece was identified in court by P.C. Tansley and was entered as Exhibit #1 by the Crown on this trial.

16Mr. Malleson asked the officer how many times he had personally provided a sample of breath into this particular ASD and the officer estimated that it would have been somewhere in the neighbourhood of 50 or 60 previous times that he had personally tested the unit. He was asked to describe on a scale of 1 to 10 how difficult it would be to provide a suitable breath sample into the ASD and he said it would be on a scale of 1 out of 10. He also estimated that it would have been in the hundreds of times that he had observed another police officer providing a sample into the ASD. Of course, these samples would be control samples without any alcohol in the body of the officers at the time.

17In cross-examination by Mr. Allegra, P.C. Tansley confirmed that his purpose for being parked on the left shoulder at the intersection of Postridge and Trafalgar was to operate his hand-held radar device, focusing on northbound Trafalgar Road traffic. He confirmed that after he had sighted the accused's vehicle, he himself had to execute a U-turn in order to end up in the northbound direction as well, since he had been parked with his driver's window facing southbound in order to pull the accused over.

18The officer told Mr. Allegra that he would have advised the accused of the reason for stopping him, namely that he had been speeding. However, Mr. Allegra challenged him on this, pointing out that he had no notation in his notebook that he had ever advised Mr. Allen about the fact that he had been speeding and that was why he had been stopped. The officer agreed that there was no notation in his book but it was common practice for him to advise the driver of the vehicle of the reason for stopping the vehicle.

19Mr. Allegra asked him if he had made any observation and/or a note of an observation that the accused had been chewing gum when he first encountered him at his driver's window. P.C. Tansley said that he had no notation and he could not recall. He was then asked if he recalled whether or not the accused was smoking a cigarette at that moment and on that question, he said he was sure that the accused had not been smoking when he approached him. He said that the reason he was certain about the non-smoking answer was because he did make an observation of the accused smoking a cigarette after he had attempted to obtain a sample of the accused's breath on those six occasions. He said that had the accused been smoking at that moment when he approached his vehicle, he would have made a notation.

20On the issue of the odour of alcohol emanating from the accused's breath, the officer agreed that there were three other occupants of the accused's motor vehicle and that he also smelled alcohol emanating from the interior of the motor vehicle in which these people were seated. However, he also maintained that he had smelled the odour coming from the accused's breath when he spoke to him at the driver's window. He agreed that the accused told him that he had not had anything to drink that evening. He also agreed with the suggestion that the accused exhibited no indicia of impairment by alcohol, other than the fact that his eyes appeared to be glossy and bloodshot. Indeed, as he told Mr. Allegra, that was why he decided to administer an ASD test.

21Mr. Allegra suggested that he had not mentioned anything to P.C. Scott or to the dispatch operator when he asked for assistance from P.C. Scott to bring the ASD to the scene that Mr. Allen had been speeding. The officer said that he could not recall.

22Next, Mr. Allegra suggested to the officer that he had never really read the ASD demand verbatim from the back of his notebook to Mr. Allen at the scene as he had stated he had done in his evidence in chief. Particularly, he suggested to the officer that there was nothing in his notebook to suggest that he had actually read the demand from his book. P.C. Tansley responded by saying that he made a note in his book of the words "breath demand" and that his standard practice was to read the breath demand from the back of his book. He again repeated to Mr. Allegra that he would have provided that demand from the back of his book. At this point, the court asked him if he would have been able to provide it by memory and he said that he could not have done so. Mr. Allegra then made the direct suggestion to the officer that he had simply asked Mr. Allen if he would give a sample of his breath and that he never made that particular, formal breath demand to Mr. Allen. The officer disagreed and said that was incorrect.

23With respect to his explanation and instructions to the accused about how to provide a breath sample to the ASD, Mr. Allegra suggested that he had never himself provided a sample of breath into the ASD at the scene in front of Mr. Allen to illustrate to him how to do so. P.C. Tansley agreed that he had not actually provided that type of demonstration.

24In response to Mr. Allegra's suggestion that he had not told Mr. Allen how long he had to blow into the ASD, the officer said that he had demonstrated the taking of a deep breath, and the blowing and exhaling it into the mouthpiece, but he said there was no set time limit to inform someone about the duration of the sample that they would have to provide. It's not a question of telling a person that he or she has to blow for a certain number of precise seconds. He said it all depends upon the quality of the sample that the person is providing and how long it takes for the ASD to register a reading. He agreed that he could not recall what his exact words had been when explaining all this to Mr. Allen but that was the gist of it.

25He told Mr. Allegra that he had been advised by P.C. Scott that the unit was in proper working order when he delivered it but he agreed that he did not test it himself by blowing into the unit himself before administering it to Mr. Allen. He also agreed that he had not tested the mouthpiece after the accused had unwrapped it from its sealed cellophane package to make sure that it was not obstructed in some way.

26Mr. Allegra then asked the officer if he was familiar with the manual put out by the manufacturer of the ASD and P.C. Tansley said that he was familiar with it and he realized that there were error codes that could be produced on the unit other than "EO". Mr. Allegra asked him if he would agree that a sensor problem could cause an error code in the unit and P.C. Tansley said, as far as he was concerned, if any other error code, other than "EO" appeared, his training was to the effect that the ASD would be inoperable by the officer at that point and he would not have used it. He explained that the only error code that he had been taught specifically about was the "EO" which meant to him that an insufficient sample of breath was being provided.

27Mr. Allegra attempted to have the officer agree that, in his opinion, Mr. Allen had been blowing as hard as he could on each and every one of these six attempts, but the officer said, "If he was blowing as hard as he could and I obtained a proper sample, it wouldn't have taken six times or six attempts."

28Mr. Allegra asked him if he could agree that he had heard the tone on the ASD, which signifies that air is being received by the unit, on each and every one of the six test opportunities and the officer said that he had certainly heard the tone on some occasions but he could not recall hearing it on each and every occasion.

29Mr. Allegra asked him if it had not occurred to him that something could be wrong with the unit and perhaps he should try to get an alternative ASD to the scene. P.C. Tansley said that was why he had offered Mr. Allen an opportunity to attend 20 Division to provide a sample into the Intoxilyzer 8000, but he explained that he meant that the accused had questioned the ASD's suitability so that's why he made that offer to him.

30He was asked if he recalled Mr. Allen offering to give a blood test after he had told the officer that he had given enough breath samples. P.C. Tansley said that he did not recall that offer for a blood test from the accused.

31The officer agreed that even after the sixth frustrated test scenario he had not himself checked the particular ASD in question for its operability.

32Mr. Allegra referred him to his evidence that the accused had coughed slightly at the end of the second test. Mr. Allegra suggested to the officer that he should be familiar with the instruction in the ASD manual to an officer that he should hold off before doing another test if the subject coughs. The officer said that he was not familiar with that particular instruction. He did say that he realized that if the subject was coughing while attempting to provide a sample of breath into the unit, the adequacy or sufficiency of the sample could indeed by adversely affected. However, he pointed out that if the subject provided additional samples after the one where he had coughed, the fact that he had coughed on one attempted sample should not affect the ability of the ASD to register a proper sample subsequently. He told Mr. Allegra that he had noted that the accused had coughed after the second test only. Mr. Allegra suggested that the accused had been coughing throughout all six tests but the officer categorically denied that suggestion. He agreed that he did not make any inquiries himself of the accused about whether or not he had a chest infection and his reason for doing that was because he hadn't noticed any difficulty, other than the very slight cough on the second test, and the accused's utterance that he was sick. However, he said that the accused had not specified what type of sickness he was describing.

33With respect to the length of time during which a subject should be providing a breath sample into the unit, he told Mr. Allegra that there is a tone that is emitted from the ASD as a sample is being provided and when the tone ceases, a suitable sample has been received and he then awaits the reading.

34Mr. Allegra asked the officer to agree that he never heard Mr. Allen use the words "I refuse" at the end of the sixth test and the officer agreed. He also agreed that he had formed his own opinion that the accused had failed to provide a proper sample on the basis of the evidence he had already given about the manner in which the accused dealt with the six consecutive opportunities to provide a sample of breath suitable for analysis by the ASD. He also said that the accused's statement to him "I already provided enough samples" when he had been discussing with him the opportunity of going down to the police station to provide a sample into the Intoxilyzer 8000C also indicated to him that the accused had enough of providing samples of breath for that evening.

35Mr. Allegra suggested that after the officer received the error codes on the tests he never asked Mr. Allen to try to blow harder or more consistently. P.C. Tansley said that he would have explained to him that a slow, consistent, deep breath was desirable and although he had not made any note to that precise piece of advice, that would have been part of the explanation that he gave to Mr. Allen about how to provide a proper sample into the ASD.

36In re-examination, Mr. Malleson asked the officer what he would do if he had seen any other error code, such as E1, E2, E3, or E4, other than EO, on the unit and the officer said that he would then have ceased to attempt to use that particular ASD because he had been taught that it would have been inoperable with those error codes and he would have requested another instrument.

37The Crown referred the officer to the exchange between him and Mr. Allegra about whether or not he recalled the accused offering to provide a blood sample instead of a breath test. The officer said that had that occurred, he would have made a note in his notebook because that sort of an offer would have added to his suspicion about why the accused would want to have a blood test done to prove that he hadn't consumed any alcohol. By that answer, I am assuming that the officer meant that he might have been favourably impressed by the accused offering a blood sample in order to try to prove that he had not consumed any alcohol. Therefore, he would have noted that type of evidence.

38The next witness called by the Crown was P.C. Gregory Scott who testified that he was a HRPS officer and has been so employed since April 2009. He was on duty on this night in question and he had made notes in connection with his investigation. They were qualified and he was permitted by the court to refresh his memory from his notes when required. He said that he had responded at approximately 1:49 a.m. to the location where P.C. Tansley was dealing with the accused. He brought an ASD to P.C. Tansley and stood by for officer safety reasons while P.C. Tansley dealt with Mr. Allen. As he stood by, he observed P.C. Tansley show the ASD to Mr. Allen and hand him a mouthpiece in a plastic package. He also observed P.C. Tansley to be giving instructions to Mr. Allen with respect to how to provide a proper sample of breath. The Crown asked the officer to repeat what he had overheard and he said that he heard P.C. Tansley telling Mr. Allen to provide a sample by means of creating a tight seal around the mouthpiece, inhaling deeply, and then a strong, steady exhalation out, blowing into the mouthpiece.

39He also said that P.C. Tansley informed Mr. Allen that the machine would be making a noise and that that noise would continue until P.C. Tansley instructed him to stop blowing. He said that Mr. Allen indicated to P.C. Tansley that he understood those instructions.

40P.C. Scott said he then observed Mr. Allen inhale deeply and begin to provide a sample. He heard a steady, audible tone coming from the ASD, even from his position standing by. However, shortly after this test began and Mr. Allen began to exhale into the mouthpiece, he heard the tone on the ASD stop and he observed that Mr. Allen had then stopped blowing or exhaling.

41He said that he observed a series of six such opportunities being given to Mr. Allen to provide a sample and in between each of them P.C. Tansley again reviewed his instructions about how to provide a proper sample.

42P.C. Scott said that after the sixth failed test he heard P.C. Tansley inform Mr. Allen that failing to provide a sample would result in criminal charges. He also overheard P.C. Tansley offer the opportunity to Mr. Allen to attend at 20 Division, a police station where he could provide a sample into the Intoxilyzer at the station. He said that Mr. Allen refused to accompany P.C. Tansley for that purpose, saying that he had already provided a sample and he didn't need to provide another. He estimated that this exchange took place at approximately 2:01 a.m.

43After that utterance by the accused P.C. Tansley returned to his cruiser and P.C. Scott said that he returned to his own cruiser parked beside Tansley's cruiser. At this time, he said that Mr. Allen was asking for their badge numbers. Mr. Allen actually approached the driver's window of P.C. Scott's cruiser, he said, which was rolled down and leaned towards him when he asked for his name and badge number. P.C. Scott said that at this time he detected an odour of alcohol on the breath of Mr. Allen and he provided him with his badge number and name. He estimated that their two faces were probably two feet apart when he smelled the odour of alcohol. At that time there was no other person standing around other than Mr. Allen.

44The Crown asked him if he had ever personally tested the ASD that he brought to P.C. Tansley and P.C. Scott said that he had done so at the start of his own shift. He signed out this particular ASD and at approximately 5:01 p.m. on the previous Saturday night he had tested the device and it appeared to be functioning normally. He explained that in order to test it he turned the device on and inserted the mouthpiece into it. He himself took a deep breath, made a solid seal around the mouthpiece, and exhaled a long, steady, even breath for approximately 10 to 12 seconds until the ASD stopped making the audible tone, and provided the reading of .000 per cent alcohol in his system. This was the expected result since he said he had not been drinking alcohol before he came in for his shift.

45The Crown asked him how many times in his career to date that he believed that he had tested an ASD and he said approximately 40 times.

46Mr. Malleson then produced the Exhibit #1 mouthpiece which had been used by P.C. Tansley with Mr. Allen to P.C. Scott and asked him to test it in court without necessarily putting his lips on the actual mouthpiece. He asked him to make a seal with his fingers and then attempt to blow through the mouthpiece and then tell the court whether or not he could feel air being expelled from the other end of the mouthpiece. P.C. Scott conducted that experiment in court and declared that he could feel his own breath being expelled from the other end of the mouthpiece when he blew through the seal that he made with his fingers. He was asked then that if, in his opinion, Exhibit #1 was a properly functioning ASD mouthpiece and he said that it was.

47In cross-examination he said that he had received no dispatch information that P.C. Tansley had stopped Mr. Allen for a speeding infraction. He estimated that he was standing approximately five or six feet away from both P.C. Tansley and Mr. Allen during the interaction between them involving the attempt by P.C. Tansley to obtain a suitable breath sample into the ASD. He confirmed that he was therefore close enough to overhear conversation that took place between the two of them.

48Mr. Allegra suggested that he never did see P.C. Tansley test the ASD himself at the scene and he agreed. He also agreed that he never saw P.C. Tansley actually exhale into the machine and demonstrate how to do that to Mr. Allen.

49Mr. Allegra asked him if he recalled P.C. Tansley ever reading a formal demand for the ASD breath sample to Mr. Allen and he said he did not recall that. He did recall hearing P.C. Tansley ask Mr. Allen if he would agree to provide a sample to the ASD. Pursuing that line of questioning a little further, Mr. Allegra suggested to P.C. Scott that he had never seen P.C. Tansley read from his notes while making a demand for a sample of breath to Mr. Allen. The officer agreed but then said that he was not present. He explained that what he meant by that answer was to say that while he was present he did not see or hear such a thing being done.

50Mr. Allegra asked him if he recalled seeing Mr. Allen smoking a cigarette at the scene when P.C. Tansley was dealing with him and he said he recalled seeing somebody smoking at the time but he couldn't recall whom it might have been. When the court asked a question for clarification on that, P.C. Scott pointed out that there were four occupants of Mr. Allen's motor vehicle and he wasn't sure if it was Mr. Allen or another passenger who was in the vehicle. He said that he did recall at some point seeing somebody else from inside the vehicle smoke, after they had exited the Lincoln vehicle.

51Mr. Allegra asked if he recalled whether Mr. Allen had been chewing gum when he observed him and he said that he did not recall that. This line of questioning finally ended with Mr. Allegra suggesting that the officer would not be able to categorically or specifically say yes or no to the question of whether or not the accused had been smoking a cigarette and the officer simply repeated that he couldn't recall seeing him smoke. He also agreed with Mr. Allegra that he had made no note in his book on the issue of whether or not the accused had been smoking a cigarette and he agreed that it had been more than a year previously when he had made these observations and of course Mr. Allegra was suggesting that Mr. Allen could have been smoking a cigarette and the officer may not have noted it at the time and of course wouldn't remember it now.

52Mr. Allegra asked the officer if he would agree that Mr. Allen was coughing while he was attempting to provide his breath samples. P.C. Scott said that he had made a note to the effect that Mr. Allen had coughed but it was not in the actual act of providing a breath sample. He said it was after providing a sample and he noted that he had a light cough.

53Mr. Allegra suggested to P.C. Scott that he should agree that Mr. Allen appeared to be trying very hard to provide a sample of breath to the ASD throughout the six opportunities that were offered to him by P.C. Tansley. P.C. Scott said, "I would disagree."

54However, he did agree that Mr. Allen had provided a sufficient enough volume of air to activate the ASD tone on most of the tests. Mr. Allegra then suggested that P.C. Tansley had never exhorted Mr. Allen to blow harder and harder and more evenly on each occasion when the ASD tone would stop or, for that matter, on any of the occasions. P.C. Scott's response was to say that he recalled P.C. Tansley demonstrating, not on the ASD itself but demonstrating by taking a deep breath in and exhaling in a steady, long breath. However, he did concede that he did not recall the exact instructions that P.C. Tansley had been giving to Mr. Allen while he was attempting to provide each sample.

55Mr. Allegra suggested that neither he nor P.C. Tansley had checked the mouthpiece at the time to make sure it was inserted properly into the machine. P.C. Scott agreed but said that from what he observed, it appeared to be inserted properly.

56He said he himself did not observe an error code displayed on the screen of the ASD which was being held by P.C. Tansley up to the mouth of Mr. Allen while P.C. Scott stood five or six feet away.

57When Mr. Allegra established with P.C. Scott that neither he nor P.C. Tansley had tested the ASD themselves to make sure it was working properly with that particular mouthpiece or by way of inserting another mouthpiece after a number of failures by Mr. Allen to maintain a steady tone on the unit, he simply recalled that each time Mr. Allen exhaled into the mouthpiece, the unit was providing a steady tone, as it would in a successful sample. He therefore seemed to be implying that in his opinion and in his mind, there was no reason to be testing the equipment, whether it be the mouthpiece or the ASD any further.

58He was asked if after the fourth test had he heard P.C. Tansley say anything to Mr. Allen and P.C. Scott said he couldn't recall at what particular test he heard something said, but between each test, P.C. Tansley was providing instructions to Mr. Allen on how to provide a sample and he also cautioned him as to what would happen if he failed or refused to provide a sample.

59He was asked if he was familiar with the ASD manual and he said that he was not. However, he did say that he knew that after smoking a cigarette a subject should wait two minutes before attempting to provide a sample. Mr. Allegra then asked him again about the fact that Mr. Allen had been smoking at the time when the officers observed him and P.C. Scott said that Mr. Allen had not been smoking at the time when he was apparently attempting to provide samples. He said that he had no recollection from his study of the training manual that there was any particular waiting period required of a person who had been chewing gum before providing a test. He confirmed Mr. Allegra's suggestion that if the officer knew that the subject had been consuming alcohol shortly before supplying a sample he certainly should wait 15 minutes before asking for a sample.

60Mr. Allegra suggested to the officer that because he had noted Mr. Allen coughing, even if it was just a light cough, that he ought to have had some concern about whether Mr. Allen had a chest infection or some other breathing problem. P.C. Scott disagreed with that suggestion and said that the way Allen had coughed was, in his opinion, "very mild and very slight." He said this to him was not 'conducive' with having a cold or a chest infection. I can only presume that he meant to say not "consistent" as opposed to "conducive" but that was the word in the court transcript.

61He agreed with the obvious suggestion by Mr. Allegra that by the time he produced the ASD to P.C. Tansley it had been approximately nine hours since he had tested it at the beginning of his shift. Mr. Allegra then asked him to agree that after his client was charged no one else checked that ASD – at least not he or P.C. Tansley – to see if it was working properly. P.C. Scott quite properly answered by saying he could only speak for himself and he certainly had not tested it himself after Mr. Allen's arrest. He also agreed that he had not observed P.C. Tansley test it in his presence, after the arrest.

62Mr. Allegra challenged P.C. Scott on his earlier testimony that he had overheard the accused tell P.C. Tansley that he would not provide a sample to the Intoxilyzer at the station because he had already provided enough samples and Mr. Allegra asked him if he had actually made a specific note of that evidence. The officer responded by referring Mr. Allegra to page 34 of his notebook where he had made such a note. When Mr. Allegra referred him to his own page 34 where he had noted "he already provided enough samples, didn't need to do another" the officer agreed that those words in his notes were his own paraphrase of what he had heard the accused say several hours earlier than when he made his notes.

63Mr. Allegra then asked him if he recalled Mr. Allen offering to do a blood test but P.C. Scott did not recall that.

64Mr. Allegra then asked the officer if he remembered when Mr. Allen approached his cruiser to ask for his badge number and his name, whether or not Mr. Allen had a lozenge in his mouth. The officer said he did not recall that. Mr. Allegra soldiered on and asked the officer to agree that if indeed Mr. Allen had something in his mouth, like a lozenge, sometimes these things give off a certain odour and the officer agreed with that suggestion. However, when Mr. Allegra asked him if he had ever mistaken such an odour for the odour of alcohol, he said that he had not done so.

65Mr. Allegra then revisited the area of the officer's evidence about his observations of Mr. Allen's exhalations into the mouthpiece of the ASD and P.C. Scott again stated that he had observed Mr. Allen to inhale a breath and then blowing hard enough to start the tone on the ASD but he said he then quickly stopped.

66Mr. Allegra asked him if he remembered on any of the test occasions whether he had observed Mr. Allen's cheeks to puff out and his chest to puff out and during this observation seeing the actual mouthpiece pulled away from Mr. Allen by P.C. Tansley. P.C. Scott said he did not recall such a scenario.

67Finally, he agreed with Mr. Allegra that his evidence that Mr. Allen had stopped exhaling into the unit causing the ASD tone to cease to operate was simply an assumption on his part that the cessation of the tone was caused by the cessation of exhalation of air into the mouthpiece by Mr. Allen.

68In re-examination by the Crown, Mr. Malleson asked the officer additional questions about the insertion of the mouthpiece into the ASD. He asked the officer if it was possible to insert the plastic mouthpiece incorrectly into the device. P.C. Scott responded to that question by saying that the device has two ends, both of which are exactly the same, and therefore it doesn't matter into which end you insert the mouthpiece, take your pick, it will function.

69The Crown asked whether or not and EO result would be displayed on the screen of the ASD if the subject providing the sample of breath had any mouth alcohol before providing the sample. P.C. Scott said that that would not result in an EO message and that his understanding was that that particular result simply indicated that the sample of breath provided had not been sufficiently adequate for the ASD to obtain a reading.

70He said that even if he had heard the accused offer to provide a blood test to P.C. Tansley, he may not have made a note of such an offer. Following the evidence of P.C. Scott, Mr. Malleson concluded the case for the Crown.

Defence Case

71Mr. Allegra elected to call a defence and his first and only witness was the accused, Ben Allen. He testified in chief that he is 26 years old and is currently living in Oakville with his mother. He has a landscaping education and employment background and is currently working for Landmark Homes in Grimsby. He said that he played soccer on November 7, 2010 until 5:00 p.m. and then went home and had dinner. He then worked on his website, designing it and getting his marketing material in order and then relaxed after that project was completed. He then was corrected by the court and Mr. Allegra with respect to the November 7th date and agreed that it was actually November 6th when he did all that, before this incident occurred in the early morning of November 7th.

72Mr. Allegra asked him if he had had anything to drink on November 6th at his home or anywhere else and Mr. Allen said "none whatsoever." He said that he received a telephone call about 12:30 or 12:45 a.m. on November 7th from his friend, Neil Sadler, who asked if Mr. Allen could pick him up at a bar where he was drinking with some friends because he was too intoxicated to drive. He was asked if Mr. Sadler was available for court on the day when Mr. Allen was testifying but he said the last time he had spoken to him, he was working in Langley, B.C. or near that town, doing approximately three different jobs out there. Therefore, it was obvious that he would not be present in court.

73Mr. Allen then said that he drove down to pick Mr. Sadler up at the King's Arms Pub in downtown Oakville. When he arrived at the pub, he parked in the parking lot and called on his cell phone to Mr. Sadler inside and asked him if he was ready to go. However, Mr. Sadler said that he was just finishing up his last drink and was paying the bill. Mr. Allen then approached the door of the pub and just as he was about to go in he found Mr. Sadler outside the door smoking and he waited until Mr. Sadler's bill was paid and there were two females as well and they came out with him. Then they all got into Mr. Allen's Lincoln. He provided the names of the two young ladies but he also said he only had one or two contacts with them since that day and neither of those two young ladies were in court to assist him.

74He was asked to estimate the time that he arrived at the pub and he said between 1:10 and 1:25 or maybe 1:30 a.m. He was asked if he had entered the pub and he said that he had not done so. He was asked if he had anything of any alcoholic beverage to drink at any time before driving to the pub or after arriving at the pub to drive his friends home and he said "none whatsoever."

75He said that he was going to drop Neil Sadler off at home, but actually he was going to drop the two girls off before that point in time. He said that Mr. Sadler lived at Dundas Highway and Town area. In any event, he said that he took Trafalgar Road northbound from the pub in order to head in that direction.

76He agreed that he had noticed a police cruiser at Postridge and Trafalgar and that the cruiser was stopped at that time. He said that he stopped at the red light on Glenashton and Trafalgar and then proceeded to drive north and he could see the reflectors on the side of the front fender of the police vehicle that he drove by. Because he had noticed the police cruiser, he said he checked his speed and he was well within the speed limit of 60 km/hr on Trafalgar. He was asked about the evidence of P.C. Tansley who testified that he had checked him on his hand-held radar and found him to be speeding at 82 km/hr in a 60 km/hr zone. Mr. Allen disagreed with that and said that he was stopped at the light at Glenashton and when the light turned green, he proceeded to go north and when he saw the police officer's cruiser, he certainly stuck to the speed limit.

77At Postridge, he said that his light was green but changed to amber so he slowed down for the red light and then he made a complete stop and he knows that the police officer had done a U-turn to be able to drive northbound on Trafalgar and then activated his sirens and his lights. Therefore, Mr. Allen assumed he was pulling him over and he pulled over, in compliance, into a parking lot nearby. He said that he wondered for what reason he would be pulled over by the police. He thought that maybe a light was out or something like that on his vehicle. Again, he denied that he was speeding at all.

78After he pulled over, he said that P.C. Tansley pulled his cruiser up beside his own vehicle and proceeded to get out of his cruiser and approach his driver's door. The officer asked him to roll down his window and he complied. He said that P.C. Tansley asked him if he had anything to drink that night and Mr. Allen said that he denied having anything to drink that night. He then said that P.C. Tansley asked him if he would supply a breath sample and he agreed. However, he said that the officer mentioned nothing whatsoever to him about the fact that he had been speeding.

79Asked what he could observe about his passengers, Mr. Allen said that he knew that they were drunk and he could certainly smell alcohol emanating from their breath.

80He said that when P.C. Tansley asked him if he would provide a sample of breath, he agreed and also told the officer that he didn't have a problem with that because he hadn't had anything to drink. Mr. Allegra asked him directly if he recalled the officer making a demand for a sample of breath. Mr. Allen's response was, "As I said, the officer came up to the window and said 'would you provide a breath sample?'." I said "yes, that wouldn't be a problem." When Mr. Allegra asked him if he recalled the officer looking at a notebook or reading anything from a notebook to him at that point, Mr. Allen said that the officer didn't have anything with him at that point. He recalled P.C. Tansley radioing for an ASD to be brought to his location.

81He said that the officer then asked the rest of his passengers to get out of the vehicle and it was about a minute or two that the officer talked to him at his driver's door and asked the passengers to exit the vehicle.

82He said that the next thing that happened was that P.C. Scott arrived in the parking lot and parked his cruiser to the rear of Tansley's cruiser and handed the ASD to P.C. Tansley. He said that P.C. Tansley then handed him the plastic bag with the mouthpiece in it, which he then opened himself, as instructed, and inserted into the unit.

83Mr. Allegra then asked him if there had been something in his mouth at the time and the accused said that he had been chewing gum at the time and smoking a cigarette. He said that when the officer pulled him over, he thought that he had thrown the cigarette out but he still had the gum in his mouth up until the point that the officer asked him to blow into the ASD. He said he spat the gum out after the request for the sample of breath. He was asked if he could remember where P.C. Tansley was at that point when he spat out the gum and he said that he thought he was getting the "breathalyzer" out of the box at the time. He said that P.C. Scott at the time was at the side of his cruiser behind P.C. Tansley's cruiser.

84He was asked to explain to the court what had been said to him before the mouthpiece package had been given to him to insert into the ASD. Mr. Allen said that P.C. Tansley told him to open the package and insert it into the ASD and to simply blow into the unit until it beeps. However, when Mr. Allegra pursued that line of questioning with Mr. Allen and asked him again what he had done with the mouthpiece, the accused said that he had inserted the mouthpiece, as he had already stated, into the unit and when asked if the officer had given him an explanation as to how to use the instrument, he said that P.C. Tansley said "to basically insert the mouth piece, blow, blow as hard as you can until it beeps" and that was the description of what he asked me to do. He estimated that P.C. Scott was approximately 10 to 13 feet away from where he and P.C. Tansley were interacting. He said he was standing at the rear of P.C. Tansley's cruiser. He said that there was no demonstration to him by either officer of how to provide a sample into the ASD.

85Mr. Allegra then asked him what the first thing was that he had done after he was asked to provide a sample of breath and Mr. Allen said, "Well, first thing I did, because I had a chest infection at the time, I coughed to try and clear everything, took a breath and blew as hard as I could. Then the machine beeped he said and the error code was displayed. He then told the court that he was trying to get his chest cleared so that he could get an accurate reading on the ASD. He said, however, that he didn't have too much time to get rid of the phlegm from his chest because P.C. Tansley was adamant that he provide the sample right away. He said it was a fairly deep chest cold that he had at the time.

86I then asked Mr. Allen to clarify whether or not he was telling the court that he had tried to clear this phlegm from his chest by coughing before or after he attempted to provide the first sample. He said that it was before the first sample.

87He then told Mr. Allegra that after he blew on the first sample he found that he was coughing more and more because of the wheeziness in his lungs that was occurring because he was trying to exhale his breath hard enough to make the tone on the ASD and provide a reading. He said that he had told the officer, even before trying the first test, that he had a chest infection and was very wheezy. He agreed with the officer's testimony that he had told him that he was sick. He also said that he recalled telling the officers that they would have to make it quick because he had not been drinking and he had to get to work the next morning.

88He said that at the end of the first test, he was still experiencing the shortness of breath and wheeziness and was coughing. P.C. Tansley asked him to provide a second sample and he agreed to do so and then he tried his hardest to blow again. He said that the officer told him that he needed a second sample because he did not get an accurate or any reading whatsoever on the ASD on the first test. He explained that the second test was a little harder for him because he was attempting to provide breath samples back to back. He was asked to describe exactly how the officer administered the ASD to him and he said that P.C. Tansley was holding the unit in his hand and up to his own mouth. He then took a deep breath and P.C. Tansley kept telling him to blow repetitively and blow harder. Mr. Allen said that he tried to comply with that instruction and blew as hard as he could.

89After the second test he said the officer told him that his sample wasn't good enough and that they would have to try a third test. Mr. Allen said that he began to try to blow a third time and the officer almost pulled the unit away from his mouth just as he was trying to get a deep enough breath to blow into it. He said that this caused him to cough again because of all the exhalation which pushed the phlegm up in his lungs. He said that he again expressed to P.C. Tansley the difficulty he was having because of his condition at the time and the officer "wasn't having any of it."

90After the third unsuccessful test he said that the officer administered a fourth attempt to him and he asked the officer what the beeping noise was that they had both heard when Mr. Allen was providing a sample on the third test. He said that the officer told him it was an error code and actually he said there were a few of these beeping error codes that had come up when he was trying to supply his samples of breath.

91Again, he said that P.C. Tansley told him that he needed to blow harder and longer into the ASD to get a reading and so Mr. Allen agreed to give it another try. On the fifth test, he said that the officer did advise him that he would be charged with refusing to supply a sample of breath if this didn't work out satisfactorily. He said that he told the officer that he would continue to try to blow because he knew he hadn't been drinking and he had nothing to hide, so he told the officer he had no problem with continuing to provide a proper sample.

92After the fifth test, he said that he felt sick and was getting pretty short of breath, coughing again as if he had fluid in his chest. He expressed the opinion that he had an infection at the time. He said that he had experienced similar problems on other occasions in his life with a cold.

93After the sixth test which was again unsuccessful, he said that he offered to P.C. Tansley to provide a blood sample. However, he said that P.C. Tansley responded to that by saying "fuck that", I'm giving you an ADLS right now. He said the officer then went over to his cruiser and asked for Mr. Allen's driver's licence and wrote him out the ADLS suspension ticket. Mr. Allegra agreed right at that moment that there had been no cross-examination of P.C. Tansley with respect to those words of profanity that Mr. Allen was attributing to him.

94Mr. Allegra then backed him up a little and he agreed with Mr. Allegra's suggestion that the police, according to their evidence, had offered him an opportunity to go to the police station and provide a sample on the Intoxilyzer unit itself. Mr. Allen explained that they did offer that to him but he told them that he had done enough breath samples and that was when he offered to do the blood test.

95He agreed that he had approached P.C. Scott at the end of all of these frustrated tests and asked him for his badge and identification so he would have the appropriate information in case he needed a lawyer.

96Mr. Allegra asked him to explain, if he could, P.C. Scott's evidence that he had smelled the odour of alcohol on Mr. Allen's breath and Mr. Allen said that he couldn't really see how P.C. Scott had been able to smell alcohol on his breath because he hadn't been drinking. He said he hadn't had anything to drink of an alcoholic nature all day and he was at home all night. He did explain that because of his cough, he had taken a throat lozenge and proceeded to eat it. He said that he hadn't told P.C. Scott at the time that he had a cough lozenge in his mouth but he felt it should have been apparent to the officer. Mr. Allegra asked him how he would have expected the officer to see inside his mouth and Mr. Allen said, well, the officer testified that he approached him at his vehicle and came right up close to his face. The court asked him if he had any of those particular lozenges with him in court on December 8, 2011 when he was testifying. He said that he did not have any on that day. However, he was able to describe them as Clorets throat lozenges and they were about the size of a penny, but maybe a little thicker. Mr. Allegra asked him if he had ever had the opportunity to smell the odour that comes from one of these lozenges and Mr. Allen said that he had been able to do that and they had sort of an antiseptic smell. However, he explained that he has never smelled one after he had begun to suck on it – he had only smelled one that was dry and right out of the package before contact with any human saliva.

97Finally, he told Mr. Allegra that neither officer gave him a specific instruction about how to change his technique of providing a sample in order to get a successful reading. He said that P.C. Tansley kept telling him to blow and blow and blow.

Crown Cross-Examination

98In cross-examination, Mr. Malleson asked Mr. Allen if the court took a break, would he be able to slip out to a pharmacy and buy a similar package of the Clorets lozenges that he was testifying that he consumed on the night in question. After it was pointed out that there was a drug store only a couple of blocks from the court, it seemed that Mr. Allen was prepared to try to do that, except he wondered who was going to pay for it.

99Mr. Malleson agreed to continue the cross-examination before the recess so he pointed out to Mr. Allen that the officers had testified that they recalled him coughing only once and mildly at that and that they both had made notes to that effect. He then asked Mr. Allen what his testimony was with respect to the number of times that he had actually coughed and Mr. Allen estimated at least seven to ten times.

100With respect to the smoking of a cigarette, he said he thought that he had just thrown out a cigarette that he lit up, as the officer stopped him, although he wasn't 100 per cent sure. He expressed the opinion that he probably had another cigarette while the other officer was searching his vehicle. Mr. Malleson asked him to estimate how many cigarettes he thought he had smoked in total during this incident and the accused said from start to finish, maybe three. However, he pointed out that he is a heavy smoker. He referenced his last cigarette at the scene as being the one he had thrown out just as he got into the taxi cab that the police had called to take him home after he was charged. Mr. Malleson agreed with the court's observation at that point that one of the police officers had given evidence that he saw him light up a cigarette after the tests were over.

101Mr. Malleson then questioned him about why his three passengers in his vehicle weren't available to assist in the testimony on this trial and Mr. Allen explained that he basically had lost touch with them for different reasons for each one. He said that they are friends on a Facebook website, but that is about all. He did agree with P.C. Scott's evidence that at some point, they had exited the vehicle and were standing around watching while he was trying to give his breath tests and, therefore, they may have been in a position to comment upon his evidence about the number of times that he was coughing and wheezing.

102He confirmed that he had not gone to a doctor about this cold because he said he had such colds before and he knew what sort of medications to take to help himself. He even had some antibiotics left over from a previous infection. The Crown wondered why he wouldn't try a little harder to document his illness, as the Crown put it, because he realized he was charged with this criminal offence that would have such serious consequences for his driving privileges. Mr. Allen said, I wasn't drinking so therefore I wasn't thinking along those lines. I just knew I was sick at the time.

103At this point, Mr. Malleson advised the court that he was asking the court for a ruling that the defendant had placed his character in issue and therefore ought to be able to be cross-examined on the scale permitted when that has occurred. The foundation of the Crown's application was that the accused had testified that he was a high school graduate and had taken some courses in business administration since high school. He also testified that he owned his own company and that he was engaged in construction work in the winter. After hearing submissions from both counsel, I dismissed the Crown's application and ruled that that evidence was not the type of evidence that should be considered to have officially placed the accused's character in issue in order to open up a broader range of cross-examination by the Crown with respect to alleged evidence of bad character. The court then took the afternoon recess.

104Upon resumption, Mr. Allen told the court that he was successful in purchasing a package of Clorets lozenges during the recess, but the accused said they were not exactly the same as the ones he had on the night in question in the sense of the shape of the package. Mr. Malleson picked up on the cross-examination at that point however and asked if the accused had examined the package for the active ingredients. The accused said that he had purchased the package that seemed to be the closest to what he had at the time and he had not read the package.

105Mr. Malleson took a look at the package and asked the accused to agree that alcohol doesn't appear to be listed as one of the ingredients on the particular package that he had purchased and the accused said he wasn't 100 per cent sure because he hadn't read the package. At this point, Mr. Malleson informed the court that what he would like to have happen was to have Mr. Allen chew one of the Clorets that he had purchased and then the court would have the opportunity of smelling Mr. Allen's breath in order to arrive at an opinion of whether or not the smell resembled the odour of alcohol. I must say that I, as the court, declined the offer and suggestion of the Crown and indicated that I did not wish to turn myself into a witness. Specifically, I disagreed with Mr. Malleson that such a suggestion would be included within the rationale of R. v. Nikolovski, 1996 CanLII 158 (SCC), 111 C.C.C. (3d) 403 (S.C.C.).

106After the court's ruling, Mr. Malleson moved on and asked Mr. Allen to look at the ingredients listed on the package and he then agreed that there was no alcohol included but he did see chlorophyll as one of the ingredients. On consent, this package of Clorets became Exhibit #2 on this trial.

107Mr. Malleson concluded his cross-examination by obtaining an agreement from Mr. Allen that these other passengers in his vehicle all had a Facebook account and that it ought to be rather easy to send messages to them as account holders in order to try to get them to come to court to assist him.

108Mr. Malleson informed the court then that he would like to address the Clorets issue on a different day, anticipating that the case would have to be remanded to another day.

Defence Re-Examination

109In re-examination by Mr. Allegra, Mr. Allen said that he did, in fact, go to a doctor a few days after his arrest because his condition had worsened and he ran out of antibiotics. After some discussion with Mr. Malleson, Mr. Allegra asked Mr. Allen if he would agree that he had seen the doctor on November 11, 2010 and Mr. Allen agreed. Mr. Allegra asked him if there was another reason why he went to see his doctor apart from the infection for which he was seeking a renewal of antibiotics. After Mr. Allegra reminded his client that he had been charged on November 7, 2010 with this alleged offence and his visit to the doctor was only four days later, Mr. Allen agreed that he had gone to his doctor for a particular purpose. Asked what that purpose was by Mr. Allegra, Mr. Allen said: "So he would be able to see if it would be possible for me to blow into a breathalyser due my infection." Needless to say, once Mr. Allegra confirmed that he was not likely to be calling the doctor as a witness, Mr. Allen did not give any hearsay evidence as to what the doctor might have told him by way of an opinion about his condition at the time of the breath sample attempts and his ability to provide a proper sample into the ASD. He did confirm that he had been experiencing the condition which he has described in his evidence, for about 7 to 10 days before November 7th.

110This was the conclusion of the re-examination of Mr. Allen and Mr. Allegra closed the case for the Defence.

111On consent, the trial was the remanded to March 7, 2012 for the Crown to consider calling reply evidence on the Clorets odour issue in the potential format of having a police officer smell one of the Clorets from Exhibit #2 while being chewed by someone else and then provide an opinion of the odour. It was also contemplated that final submissions would be made by both counsel on March 7th.

112On March 7, 2012, Mr. Malleson had been transferred to another Crown jurisdiction and Ms. Kelly Frew had assumed carriage of this case. Ms. Frew informed the court that she did not intend to call evidence on the Clorets issue in reply and therefore, both counsel were prepared to make their final submissions. After receiving those submissions from both counsel, I reserved my judgment to April 26, 2012. On that day, I remanded my reserved judgment further to May 17, 2012, due to unexpected intervening matters requiring reserved rulings on persons in custody.

POSITION OF THE PARTIES

The Defence

113Mr. Allegra argues that the totality of the evidence on this trial should leave the Court in the uncomfortable state of reasonable doubt that the accused intentionally failed to provide a suitable sample of his breath to the approved screening device administered to him by P.C. Tansley.

114He also argues, as a secondary position, that the Court should be circumspect about whether or not the officer ever made a proper demand under s. 254(2) of the Code. He raised that argument after considering P.C. Tansley's evidence in conjunction with P.C. Scott's evidence and the evidence of the accused on that point. I say that this was Mr. Allegra's secondary argument, even though it will have to be dealt with by the Court before turning to the merits. He argues that a person can only be charged and found guilty of failing to provide a suitable sample of breath to an ASD if there was a proper s. 254(2) demand made.

115In general, both counsel agree that the principles enunciated by the Supreme Court of Canada in R. v. W.D., 1991 CanLII 93 (SCC), 63 C.C.C. 397 are apposite to the Court's task of assessing the totality of the evidence in this case.

116On the issue of the validity of the demand, Mr. Allegra simply refers the Court to the conflict of evidence on the point between P.C. Tansley and the accused. The officer testified that he read the ASD demand from the back of his notebook as he does in every case because he has not memorized it. The accused testified that the officer merely asked him if he would provide a sample of his breath and that he didn't even have a notebook in his hand. Mr. Allegra also refers the Court to P.C. Scott's evidence that although he was present when P.C. Tansley administered the ASD to the accused, he did not recall a formal breath demand having been read.

117Mr. Allegra asks the Court to find that there was no valid demand and therefore Mr. Allen should be acquitted.

Defence Position on the Merits

118Assuming that the Court finds the demand to have been valid, Mr. Allegra argues that the evidence shows that the accused clearly provided a sufficient sample of breath on each of the six opportunities that he was given by P.C. Tansley to activate the ASD tone that verifies that air is being received into the unit.

119He also refers the Court to the accused's evidence that the officer pulled the ASD away from his mouth for a moment during the third test. Tansley testified that he had wondered if the mouthpiece was plugged at that point because the accused's chest was obviously expanded and yet his cheeks were puffed. The officer had testified that he had instructed the accused how to take a deep breath and then exhale which he seemed to have done but the tone was not activated. Therefore, argues Mr. Allegra, the officer should have again tested the ASD himself, presumably with a new mouthpiece, and he did not. He acknowledges that P.C. Tansley did at least seize the mouthpiece and preserve it as an exhibit for use in this trial, but he still argues that the failure to test it right at the scene after he wondered if it may have been plugged detracts from the Crown's case.

120Mr. Allegra refers the Court to the accused's evidence wherein he stated that he tried as hard as he could on each and every one of his six attempts to comply with the officer's instructions about how to provide a sample of breath into the ASD. He also testified that he was suffering from a chest cold at the time that caused him to cough to try to clear phlegm from his chest and throat before the first test and again after each successive test. He testified that he had felt short of breath after each attempt.

121Mr. Allegra submits that the officers at least conceded that the accused had coughed after two of the tests although not supporting his evidence that he had continued to cough after each test. The officers also said that the coughs were 'slight.'

122Mr. Allegra has supplied the Court with 19 common law precedents from Ontario appellate courts, the Ontario Court of Justice and some Western provinces decisions at both trial and appellate levels, most of which are devoted to declaring that the elements of the offence of refusing to provide, in the opinion of the officer, a suitable sample of breath for analysis by an ASD, require that the Crown prove that the failure to provide such a suitable sample must be proven to have been intentional by the accused beyond a reasonable doubt. He argues that the Crown has simply not met that onus in this case, even given the totality of the evidence of the two police officers, notwithstanding the evidence of the accused, which Mr. Allegra submits should, after the requisite W.D. analysis, if not accepted holus bolus by the court, ought not be totally rejected either. He argues that it, in conjunction with the evidence of the officers which in part supports the accused's assertion that he was trying to provide a proper sample by the evidence that he created the activation tone on the ASD on each and every attempt, should allow the Court to have a reasonable doubt that the accused was intentionally trying to fail to provide a suitable sample of his breath. He therefore asks this Court to render a verdict of not guilty for Mr. Allen on this charge.

Position of the Crown

123Ms. Frew submits that there is ample evidence to establish that this particular ASD was in good working condition when it was administered to Mr. Allen. She refers the Court to the evidence of P.C. Scott that he had tested it himself at the beginning of his shift and that he had checked the calibration label on the unit for conformity with recommended police policy. Furthermore P.C. Tansley had testified that P.C. Scott had informed him that the unit had been properly calibrated. Ms. Frew therefore argues that the precedents which Mr. Allegra supplied that dealt with a lack of evidence of the working condition of an ASD are irrelevant to this trial. I will state right now that I agree with the Crown on that argument.

124With respect to the plugged mouthpiece defence argument, Ms. Frew correctly referred the Court to P.C. Tansley's testimony wherein, upon being asked by the Court to clarify his evidence, he stated that it had only been a thought by him because of the fact that the accused's chest seemed to be inflated as it would be during a deep breath sample and yet his cheeks were puffed out and no tone was activated on the ASD at that moment. She further submits that the fact that it was seized and preserved until P.C. Scott demonstrated in court that it was not obstructed should cause the Court to conclude that it did not interfere in any way with whatever flow of air the accused was supplying during his six tests.

125On the issue of the validity of the demand, Ms. Frew of course asks the Court to accept P.C. Tansley's evidence that he did in fact read a proper s. 254(2) demand from his notebook. She submits that his testimony that he hasn't even yet memorized it completely ought to support his evidence in that regard. In addition, he testified that he always reads it from his book and there was no exception in this case.

126Regardless of whether the Court totally accepts the officer's evidence on the formal reading of the demand, because the Crown also acknowledges that P.C. Scott testified that he did not recall Tansley reading it from his notebook, Ms. Frew reminds the Court that no 'magic words' are necessary for such a demand as long as the gist of the demand is explained and is understood by the subject. She submits, and I find that there is no issue, that Mr. Allen understood the demand because he replied to the officer that he wanted to do it as quickly as possible because he had to work in the morning. The Crown relied upon the Ontario Court of Appeal decision of R. v. Torsney, [2007] SCCA No. 261 for this argument.

127With respect to the essential element on a charge pursuant to s. 254(2)(b) of the Code that the Crown must prove beyond a reasonable doubt that the accused intentionally failed to provide a sample of his breath, which in the officer's opinion would have been necessary to enable a proper analysis of his breath by the ASD, Ms. Frew argues that the totality of the evidence establishes that Mr. Allen feigned the provision of a proper sample for six attempts despite the officer repeatedly explaining how he should blow. She argues that he heard the ASD tone each time and he simply chose not to blow hard enough or long enough to provide an adequate sample for analysis. She refers the Court to the evidence of P.C. Tansley in cross-examination when he told Mr. Allegra "if he was blowing as hard as he could and I obtained a proper sample it wouldn't have taken six times or six attempts."

128Ms. Frew submits that it is significantly relevant that the accused did not produce medical evidence that his cold or chest infection may have prevented him from providing a proper sample. She also asks the Court to find that the accused has embellished his testimony about his coughing. Both officers had recorded in their notebooks that he had coughed only twice, and only a slight cough at that. She submits that the fact that they bothered to note the coughs at all should enure to their reliability and credibility on that conflict in their evidence with that of the accused.

129In conclusion, the Crown asks this Court to find that this charge has indeed been proven beyond a reasonable doubt.

ANALYSIS

130I agree with the Crown's argument on the validity of the demand. On a balance of probabilities, I would conclude that P.C. Tansley probably read the formal demand to the accused from his notebook but P.C. Scott's evidence of a lack of recollection of that gives me some pause for concern. However, I agree with the Crown's statement of the common law and with the principles expressed in R. v. Torsney, supra, and I find that, at the very least, the officer provided the gist of a s. 254(2) demand and the accused most certainly understood what was required of him by his own evidence. I find that there was a valid demand.

131I also agree with the Crown that there was no need for the ASD to have been field tested during or after the six attempts by P.C. Tansley to obtain a proper sample from the accused. It had been tested earlier in the evening by P.C. Scott and it also had been registering an activated tone on the samples provided along with an E0 reading which signified an unsuitable sample of breath to be analyzed. These facts distinguish this case from some of the precedents supplied by Mr. Allegra.

132I also agree with the Crown that the totality of the evidence satisfies me beyond a reasonable doubt that the mouthpiece was not obstructed during any of the six (6) tests.

133On the final and essential element of the actus reus of the alleged offence which requires that the Crown prove beyond a reasonable doubt that the accused formed a clear and unequivocal intention to fail to provide a suitable sample of his breath, after the appropriate application of the principles of W.D. supra to the totality of the evidence, I find that I am left in a state of reasonable doubt for the following reasons:

1) I find that neither officer actually demonstrated to the accused how to provide a sustained sample of breath into the ASD by doing a simulated test themselves. I am not saying that there is an onus upon the police to do this but in the circumstances of this case, as the repeated frustrated attempts progressed, I find that the absence of it is somewhat relevant.

2) I find that I cannot reject the accused's evidence that he heard P.C. Tansley instruct him to blow as hard as he could until he heard the tone. The officer conceded that he had not told him to blow for a specified period of time, but only until he told him to stop.

3) Both officers confirm the accused's evidence that he told them that he was sick at that time. I accept the accused's evidence in re-examination that he at least attended upon his doctor's office to request a renewal of the antibiotics which he had been taking for some days before and after the alleged offence. The Crown did not call reply evidence to dispute that point and Mr. Allegra only asked the question after consulting with Mr. Malleson.

4) Although I find Ms. Frew's argument to be persuasive when she submits that the accused intentionally ceased to blow every time shortly after hearing the ASD tone activate, thereby preventing the unit from registering a BAC reading, I find that I cannot totally reject the accused's evidence to the contrary. He did not try to convince the court that his cold or chest infection actually prevented him from providing the type of air sample that the officer explained was required. He simply testified that the repeated attempts left him progressively shorter of breath for each successive attempt. This sensation, he testified, was worsened by his cough which he claimed was triggered after each test. Although the officers were only prepared to say that he had coughed after two tests, and a slight cough it was at that, nevertheless I find that there is therefore at least some corroboration for the accused's testimony that he was coughing at some points during the testing progression.

5) Specifically, I find that it appeals to my common sense that the accused's ability to provide the sustained deep breath sample that he was instructed to provide by P.C. Tansley on the 6 tests could have been adversely affected, as he testified, by his chest cold and cough. I find that this conclusion is as equally tenable as the Crown's admittedly logical and persuasive argument that he was feigning.

134In one of Mr. Allegra's precedents, R. v. Sajjad, 74 WCB (2d) 503, Mr. Justice Blacklock in the Ontario Court of Justice in 2007 stated at para. 8:

In this case, I find that I am in a state of reasonable doubt that the accused actually formed a clear intention to refuse or to fail to provide a sample, which in the Officer's opinion was suitable. It is conceivable to me on the particular facts of this case, having seen the two personalities involved, and bearing in mind the instructions that the Officer gave the accused in this particular case, that the accused may have at times been attempting to skate a very fine line. It may be that he was hoping that his efforts would at some point produce a result, which the Officer would accept, but would nonetheless minimize his reading. If this was his intent, in my view he was not committing the offence charged.

135In this case, I am not even prepared to say that Mr. Allen was consciously attempting to skate that fine line that Mr. Justice Blacklock attributed to Mr. Sajjad. I must remember that I cannot find the accused guilty merely because I am left with a good dose of circumspection about his evidence after the appropriate application of the W.D. principles to his evidence in the context of the totality of the evidence.

136For all of these reasons, I find that the Crown has not satisfied me beyond a reasonable doubt that the accused formed the clear intention to wilfully fail to provide a proper sample of his breath to P.C. Tansley's ASD on the night in question. Therefore, I find Mr. Allen not guilty as charged.

137I wish to thank all three counsel for their thorough presentation of this interesting case.

Released: May 17, 2012

Signed: "Justice Frederick L. Forsyth"