Court File and Parties

Court File No.: 12-8405 Date: 2013-10-31 Ontario Court of Justice

Between: Her Majesty the Queen — and — Robert Valere

Before: Justice J. Stribopoulos

Reasons for Judgment released on: October 31, 2013

Counsel:

• M.J. Goulin for the Crown
• M.E. Pasquale for the Defendant

Introduction

1The enforcement and prosecution of criminal laws relating to impaired driving are fraught with complexity. Even cases that, at first glance, seem straightforward, can quickly serve up a host of difficult (and somewhat technical) issues. This case is no exception.

2The defendant, Robert Valere, stands charged that he,

On or about the 6th day of July, 2012 at the City of Mississauga, did without reasonable excuse refuse to comply with a demand made to him by Andrew WEDZIK, a peace officer under Section 254(2) of the Criminal Code, to provide forthwith a sample of his breath as in the opinion of Andrew WEDZIK was necessary to enable a proper analysis of his breath to be made by means of approved screening device contrary to the Criminal Code of Canada section 254(5).

3The Crown elected to proceed summarily on this charge. Mr. Valere pled not guilty.

4At trial, the Crown called two police witnesses, Constable Andrew Wedzik and Constable Simon Gair. The defence elected not to call any evidence.

5The events in question took place in the City of Mississauga, just shortly after midnight on July 6, 2012. At 12:22 that morning, Constable Wedzik was dispatched to a residential address on Sherhill Drive, in response to a report regarding a party at which "residents were consuming drugs". A short distance away from his intended destination, as he was about to make a left turn onto Sherhill Drive from Lundene Road, Constable Wedzik observed a two-door Toyota proceed into that same intersection without halting at a posted stop sign. After the driver saw the police cruiser he came to a sudden stop. By that point, however, the car was well past the stop line and half way into the intersection. The vehicle then continued on its way, with Constable Wedzik briefly following before signalling the driver to stop; which he did. The driver, the defendant Robert Valere, identified himself with a valid Ontario driver's license.

6I will review the evidence as it relates to the various issues raised by the defendant. Jurisdiction and identity are not disputed. Beyond that, however, Mr. Pasquale, on behalf of the defendant, argued that the Court should have a reasonable doubt with respect to virtually every other element of the offence charged in this case.

7This is obviously a criminal case. As such, the defendant is presumed to be innocent and a finding of guilt requires that the Crown prove each essential element of the offence charged beyond a reasonable doubt. Accordingly, I will turn to the various elements of the offence alleged (as elucidated by prior decisions), and the evidence as it relates to each.

The Offence Charged and Its Elements

8Section 254(2) of the Criminal Code provides:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

9Further, section 254(5) provides that: "Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section."

10The offence of failing or refusing to furnish a breath sample has been extensively litigated and its essential elements are well settled. In terms of the actus reus, the Crown must establish:

• a demand by a peace officer authorized under s. 254;
• that the device/instrument is of a type approved under s. 254(1);
• a failure by the defendant to comply with the demand.

In terms of the mens rea, the Crown must establish that the defendant's failure (refusal) to produce the breath sample is intentional.

i) Was there a lawful demand under subsection 254(2)(b)?

11The obligation to furnish a breath sample is only engaged by a lawful demand. Here, the issue is whether Constable Wedzik had the required "reasonable grounds to suspect" that Mr. Valere had alcohol in his body at the time of the roadside demand. The legislative language used imports the reasonable suspicion standard.

12Reasonable suspicion means"something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds". As the Supreme Court of Canada recently explained"reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts" but "reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime." According to the Court the standard"derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny." In assessing whether or not this threshold is met, a reviewing court must have regard to the "totality of the circumstances". The assessment"must be fact-based, flexible, and grounded in common sense and practical, everyday experience".

13Importantly, in the context 254(2)(b), a peace officer is not required to have reasonable suspicion that a driver is in fact impaired. Rather, the question is simply whether the officer has reasonable grounds to suspect that a driver has some alcohol in his or her body.

14Returning to the circumstances in Mr. Valere's case. Constable Wedzik testified that after he stopped Mr. Valere he detected the odour of an alcoholic beverage emanating from inside his car. In order to determine whether the odour originated with Mr. Valere or his passenger, Constable Wedzik asked Mr. Valere to exit the vehicle. The officer then placed Mr. Valere in the rear of the police cruiser. Once both men were inside the police vehicle, the officer noted that the odour of alcohol persisted. At this point Constable Wedzik decided to demand that Mr. Valere provide a breath sample for analysis by an approved screening device.

15In light of the totality of circumstances, including the time of day, the fact that the vehicle was coming from the direction of the reported party, the running of the stop sign, and the odour of alcohol emanating from Mr. Valere's person, from an objective standpoint, I think there was more than sufficient cause for a roadside breath demand under subsection 254(2)(b) of the Criminal Code. During submissions, Mr. Pasquale essentially conceded as much.

16However, Mr. Pasquale contends that, beyond its objective features, the test necessarily also has a subjective requirement. I agree. Although I am not aware of any case law in which a higher court has made explicit that the reasonable suspicion standard has both a subjective and objective component, this suggestion makes eminent sense. The Supreme Court of Canada has held that the reasonable and probable grounds standard has both a subjective and objective component. In the context of that standard it has explained that"[a]ny finding that the subjective test is not met will generally imply that the objective test is not met, unless the officer is to be considered to have an unreasonably high standard." By analogy, I think the same is true of the reasonable suspicion standard. So, for example, if a police officer were to concede that he or she lacked the requisite grounds to make an approved screening device demand that would likely prove fatal to any claim that a breath demand was lawfully made. But that is far from the situation in this case.

17At its highest, the argument here is that during his testimony Constable Wedzik failed to use the language found in subsection 254(2) in explaining his reasons for making the breath demand. Specifically, he did not expressly say that he had "reasonable grounds to suspect" that Mr. Valere had alcohol in his body. Despite this, I do not agree that Constable Wedzik subjectively lacked the requisite grounds. His evidence was clear that, after the point at which he detected the odour of an alcoholic beverage, his focus shifted from investigating the traffic infraction to conducting an impaired driving investigation. At that point, he told Mr. Valere as much, advising him that he was being investigated as part of a sobriety check. Further, Constable Wedzik specifically testified that he decided to make a breath demand because he was certain that Mr. Valere had been drinking and wanted to ensure that he was not impaired before letting him go on his way.

18In summary, in the circumstances, the demand for a breath sample was both subjectively and objectively justified. Accordingly, I am satisfied beyond a reasonable doubt that the demand was authorized by section 254(2).

ii) Was the instrument used an approved screening device?

19The Approved Screening Device Order lists seven different devices that have been approved for the purposes of section 254 of the Criminal Code.

20Constable Wedzik testified during his evidence-in-chief that the device used was an "Alcotest 7410 GLC", which, to his knowledge, is an approved screening device. However, during cross-examination, after being directed to some investigative notes he made in relation to this matter, Constable Wedzik acknowledged that he had made a notation describing the device as a "Drager Alcotest 7410". The officer testified that he recorded this information because he thought that this was what was written on the device. Mr. Pasquale pointed to this discrepancy in arguing that the Court should have a reasonable doubt as to whether or not an approved screening device was used in this case.

21I believe the Court of Appeal's decision in R v Gundy answers this argument. For the Court in Gundy, Rosenberg J.A. writes:

44 In determining whether the particular device was approved, the court must consider all the evidence, including any circumstantial evidence. The court is entitled to draw reasonable inferences from the evidence. Thus, in my view, if the officer in his or her testimony refers to the device as an "approved screening device", the trial judge is entitled to infer that the device was indeed an approved device. As such, the officer is entitled to rely upon the "fail" recorded by the device to find that there were reasonable and probable grounds to make the breath demand.

45 The officer is not required to refer to the device by its particular brand and number such as "Alcotest 7410 GLC". Further, references to a part only of the identification such as "Alcotest" or "Alcotest GLC" do not rebut the reasonable inference from the officer's reference to the device as approved that it is indeed an approved screening device. The addition of the manufacturer's name, for example "Drager Alcotest 7410 GLC", is likewise not fatal: see R v Neziol (2001), 22 M.V.R. (4th) 299 (Ont. S.C.J.). Further, in my view, the context in which the officer refers to the device as approved is of no particular moment. Thus, if the officer testifies that he or she used an approved screening device, or agrees with the suggestion that it is an approved screening device, such testimony is direct evidence upon which the trial judge can rely: see e.g. R v Latulippe (2005), 26 M.V.R. (5th) 97 (Ont. S.C.J.).

46 Where, as here, the officer states that she made a demand that the motorist provide a sample for analysis by the approved screening device, surely the trier of fact can reasonably infer that the officer used an approved device. That was the holding of the trial judge in this case and I agree with that decision. As Langdon J. said in R v James, [1995] O.J. No. 190 (Ont. Gen. Div.) at para. 5"what is the likelihood that the O.P.P. would supply its constables with an unapproved device with which to enforce the R.I.D.E. programme?"

47 In my view, cases holding that the officer did not have reasonable and probable grounds because, although the officer referred to the device as an approved screening device, he or she used a shorthand reference to the device or transposed some of the numbers or letters are wrongly decided. In the absence of some credible evidence to the contrary, it is not reasonable to infer that an officer who says that he or she used an approved screening device actually used an unapproved device. That was the holding of this court in R v Kosa (1992), 42 M.V.R. (2d) 290 (Ont. C.A.), at 291:

We are of the view that the manufacturer's model number given by the officer in evidence as Model JA3 rather than Model J3A as set forth in the regulations was no more than an innocent transposition of a number and letter and that the unchallenged assertion by the officer that it was an approved screening device is sufficient proof thereof. If such is the case, there is no need to look further to justify the finding of reasonable and probable grounds. [Emphasis added.]

48 Of course the question of whether the officer had reasonable and probable grounds depends on the circumstances of each case. My only point here is that the trial judge is not confined to direct evidence and is entitled to and should draw reasonable inferences from the proven facts.

22Here, Constable Wedzik described using an "approved screening device", which he also repeatedly referred to by the acronym "ASD". Frankly, I think that the slight discrepancy in the description of the instrument as between direct-examination and cross-examination is of no real consequence. Importantly, Constable Wedzik testified that he retrieved the device in question from 11 Division of the Peel Regional Police Force at the beginning of his shift on the evening in question. To paraphrase Langdon J.'s comment in James, what is the likelihood that the Peel Regional Police Force would supply its constables with unapproved screening devices for purposes of administering roadside breath tests?

23In light of Constable Wedzik's clear, consistent and un-contradicted evidence that the instrument in question was an approved screening device, I have no reasonable doubt with respect to this element of the offence charged.

iii) Did the defendant fail to comply with the demand?

24The evidence establishes that the approved screening device did not ultimately analyze a sample of the defendant's breath. The key issue here is whether this resulted from a failure on the part of the operator, the device or the defendant?

25Constable Wedzik testified that he retrieved the device in question at the beginning of his shift on the evening of July 5, 2012. According to police records, the device had been calibrated less than two weeks earlier, on June 24, 2012. Constable Wedzik testified that he was trained in the use of this device sometime in 2008, although he was unable to recall the name of the officer who trained him. The officer provided a general description about the operation of the machine and how to interpret the messages it displays. However, during cross-examination, Constable Wedzik struggled somewhat with what can be fairly described as more technical matters. For example, he seemed less than certain on whether the device measures blood alcohol content in an absolute sense or simply in terms of blood alcohol concentration. Further, he was unable to precisely recollect the units of measurement employed by the device, indicating simply "the ones listed in the impaired section of the Criminal Code" (i.e. milligrams of alcohol in one hundred millilitres of blood). Nevertheless, he was able to provide general information about the workings of the device and to explain the significance of the various messages it displays when in use.

26Constable Wedzik gave detailed evidence regarding his dealings with Mr. Valere and his efforts to obtain a suitable breath sample from him.

27Mr. Valere was stopped at 12:30 a.m. After isolating Mr. Valere in the police cruiser and detecting the odour of alcohol emanating from him, the officer formed the requisite grounds to demand a breath sample. He turned the device on, so that it could warm up, before proceeding to read Mr. Valere the formal breath sample demand from the front of his police issued notebook. When asked if he understood the demand, Mr. Valere responded in the affirmative.

28The officer then demonstrated the use of the approved screening device to Mr. Valere, by providing a sample of his own breath. Constable Wedzik's sample registered a "0" on the display, meaning that he had zero blood alcohol content. The officer testified that he had not consumed any alcohol, so this result confirmed the device was in good working order. Constable Wedzik explained to Mr. Valere that he needed to blow into the mouthpiece inserted into the device, creating a tight seal with his lips around the mouthpiece, and to blow continuously so as to sustain an audible hum that the machine would emit as the sample was being received.

29Constable Wedzik then provided a fresh mouthpiece to Mr. Valere, which the defendant removed from its packaging and inserted into the approved screening device, as instructed. Constable Wedzik testified that at 12:37 a.m. Mr. Valere placed his lips around the mouthpiece but that he did not appear to blow; Mr. Valere's cheeks did not expand and the device did not emit any audible hum. Constable Wedzik then gave Mr. Valere further direction, reminding him to put his lips around the mouthpiece and create a tight seal and to blow continuously so that a reading could be secured.

30Constable Wedzik testified that at 12:38 a.m. Mr. Valere blew again, but only for a little bit before stopping again. This time the device registered an "E0" message, which is an error message signifying an insufficient sample. A third and fourth attempt led to the same result.

31At 12:40 a.m., Constable Wedzik took the device back from Mr. Valere and inserted a fresh mouthpiece into it. The officer provided another sample of his own breath, which registered a reading of "0", which again served to confirm that the device was in working condition.

32At 12:42 a.m., after having Mr. Valere insert a fresh mouthpiece into the device, Constable Wedzik asked him to try again, which he did; but the same error message indicating an insufficient sample resulted. At this point, Constable Wedzik testified that he told Mr. Valere to relax, take a few deep breaths and then try again.

33At 12:44 a.m. Constable Wedzik attempted to obtain a further sample from Mr. Valere. According to the officer, on this occasion, Mr. Valere did not create a sufficiently tight seal around the mouthpiece with his lips and the same error message resulted ("E0"), meaning an insufficient sample was given.

34Constable Wedzik testified that, at this point, he advised Mr. Valere that the failure to provide a breath sample is a criminal offence and explained that the consequences of this offence are the same as those that would follow if he provided a sample and failed the test. Constable Wedzik told Mr. Valere that he thought he was playing games, given that the device was clearly working. At this point, he read Mr. Valere the common law caution. When asked if he understood the caution, Mr. Valere said"yeah, I gave you enough blows". Constable Wedzik responded that there had been six insufficient attempts and cautioned Mr. Valere that he would only get a few more.

35At this point, Constable Wedzik testified that Mr. Valere became rather upset. He insisted that he had only blown twice, and grew agitated with Constable Wedzik's insistence that there had been six failed attempts. The dispute escalated, with Mr. Valere eventually trying to draw Constable Gair, who was also on scene, into the discussion. Both officers testified that they tried to get Mr. Valere to change his focus, telling him that the number of inadequate samples provided did not matter; all they required was "one good one". Unfortunately, Mr. Valere became unreasonable at this stage, he started yelling, questioning the reason for the stop and insisting that Constable Wedzik retrieve his phone from his car so that he could record the events. Constable Gair's interventions were to no effect. Despite repeated requests that he furnish an adequate breath sample, Mr. Valere remained fixated on the question of how many attempts he had already made.

36Both Constable Wedzik and Constable Gair testified that it became apparent to them that Mr. Valere was simply not going to provide a breath sample.

37At 12:59 a.m., some twenty-two minutes after first providing Mr. Valere with the approved screening device, after six failed attempts, after a clear warning about the criminal consequences of not furnishing a sample, and efforts by both police officers present to convince Mr. Valere to provide "one good sample", Constable Wedzik testified that he decided to arrest Mr. Valere. He maintained that he only did so after trying"anything and everything" to get Mr. Valere to comply.

38Mr. Pasquale argued that I should have a reasonable doubt regarding this element of the offence because of concerns he outlined with respect to the operation of the machine. In particular, he queried whether the mouthpieces had been properly affixed, given that Mr. Valere was the one who inserted them into the device. (I note that there is case law suggesting that a police officer handling a mouthpiece furnishes a reasonable excuse to a driver to refuse to provide a breath sample.)

39The only evidence before me on this point is from Constable Wedzik. He was clear in his testimony that the device was in proper working order and that Mr. Valere correctly inserted the mouthpiece on the two occasions when he was required to do so. To conclude otherwise would require that I engage in unsubstantiated speculation.

40Mr. Pasquale also argued that I should be left in a state of reasonable doubt regarding the workings of the approved screening device given that Constable Wedzik did not recall feeling any air passing through the exhaust vent on the back of the device, either during his two self-tests, or when Mr. Valere was using it. The Constable was the person holding the device in both instances, and Mr. Pasquale maintained that he should have felt some air coming through the vent if the device was working properly. He cited R v Gutierrez to support this argument.

41In my view, the circumstances in Gutierrez are different than those here. In that case"the defence raised through cross-examination of both officers the real possibility of the operator's hand blocking the exhaust port unknowingly as the cause of the accused's failure to provide a sample properly." The evidence here was rather different. Although Constable Wedzik did not remember feeling any air escaping through the exhaust vent at the back of the device, he was clear and consistent in his testimony that throughout he held the device on its sides, specifically to ensure that he did not block the exhaust vent/port.

42On the entirety of the evidence, including the fact that Constable Wedzik was trained in using the device; that he was able to describe and explain its general operation; that the approved screening device was calibrated less than two weeks before the events in question; the two successful self-tests, initially in advance of the device being presented to Mr. Valere, and the second after his fourth "attempt" but before the fifth and the sixth, I am simply not left in any doubt that the approved screening device was being operated properly and in good working order at the relevant time.

43Through a process of elimination, based on all of the evidence before me detailing the 22-minute period from the point at which the device was initially presented to Mr. Valere until the time of his arrest, the only reasonable conclusion that I am able to draw is that the defendant was the cause of the failure.

iv) Was the failure to furnish a breath sample intentional?

44Absent a confession, there is rarely direct evidence regarding an accused person's mindset with respect to a criminal act. Ordinarily, proof of mens rea depends on circumstantial evidence. In that regard, the so-called common sense inference is often essential. As the Court of Appeal has explained,

Since people are usually able to foresee the consequences of their acts, if a person does an act likely to produce certain consequences it is, in general, reasonable to assume that the accused also foresaw the probable consequences of his act and if he, nevertheless, acted so as to produce those consequences, that he intended them. The greater the likelihood of the relevant consequences ensuing from the accused's act, the easier it is to draw the inference that he intended those consequences.

The Court of Appeal has also made clear that, depending on the evidence, such an inference may be available whether the conduct at issue involves an act or an omission, with the distinction between each sometimes involving little more than semantics. The offence charged here is illustrative of this.

45Subsection 254(5) criminalizes the conduct of anyone who, without a reasonable excuse"fails or refuses" to comply with a lawful breath demand. More often, a "refusal" is associated with someone expressly indicating that they will not provide a sample. However, a "failure" if found to be intentional, is tantamount to a refusal. In short, depending on the facts, the difference will often be a matter of semantics.

46It is noteworthy that Mr. Pasquale did not rely on the particularization of the charge during his submissions, fairly acknowledging that the count as worded provided the defendant with sufficient notice of the allegation against him.

47Returning to the facts in this case, despite clear instructions, two demonstrations, numerous opportunities, and repeated encouragement, the defendant never blew into the approved screening device long enough or hard enough to supply a sample of his breath that was suitable for analysis. Absent evidence of any physical infirmity, the circumstances compel a somewhat irresistible inference that Mr. Valere's failure to provide a breath sample was intentional.

Conclusion

48In the result, I am satisfied that the case has been proven beyond a reasonable doubt. The defendant is found guilty of the offence charged.

Stribopoulos J.