Court Information
Court: Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— AND —
Jagatjyot Bath
Before the Court
Justice: J.M. Copeland
Heard: September 19 and September 20, 2016
Reasons for Judgment Released: October 27, 2016
Counsel
For the Crown: R. Levan
For the Defendant: J. Virk
Reasons for Judgment
Introduction
1Jagatjyot Bath is charged with refusing to provide a breath sample for an approved screening device ("ASD"), contrary to s. 254(5) of the Criminal Code. The events arise out of a 911 call concerning an intoxicated woman in a parking lot near a car. The woman ultimately turned out to be Mr. Bath's passenger.
2Counsel for Mr. Bath does not contest that Constable Callon had reasonable suspicion to make the ASD demand, and thus that this aspect of a valid demand is met. Defence counsel raises two primary issues on Mr. Bath's behalf:
(i) The defence argues that the demand for the ASD sample was not made forthwith. In particular, the defence argues that there was time for Mr. Bath to contact counsel before the process of taking the ASD sample was started, and Constable Callon did not provide an opportunity for Mr. Bath to do so. The defence argues that if the court finds that the ASD demand was not forthwith, then it was not a valid demand, a required element of the offence of failing to provide a breath sample.
(ii) The defence argues that the Crown has not proven beyond a reasonable doubt that Mr. Bath intentionally refused to provide a breath sample. As part of this argument the defence raises three subsidiary arguments: that the prosecution's evidence is not sufficiently specific and detailed to prove the failure to provide a sample; that the prosecution has not proven that the ASD was in proper working order; and that Constable Callon was required to give Mr. Bath a "last chance" to blow, after the eight initial chances, once he decided to lay a charge.
3Counsel for Mr. Bath does not raise any Charter issues. Nor does the defence take issue with the voluntariness of Mr. Bath's statements to police in the parking lot during the course of the investigation; however, as I will address in the course of my reasons, there is a factual dispute about what Mr. Bath said in the parking lot.
4Mr. Bath testified in his defence. There were a small number of contested factual issues, but the primary contested factual issue is whether Mr. Bath intended to fail to provide a breath sample.
5The Crown bears the burden to prove the elements of the offence beyond a reasonable doubt. The reasonable doubt standard applies to the assessment of credibility of evidence. Following the approach set out by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, if I believe Mr. Bath's evidence, I must acquit. If I do not believe Mr. Bath's evidence, but it leaves me with a reasonable doubt, I must acquit. Finally, even if Mr. Bath's evidence does not leave me with a reasonable doubt, I may only find him guilty if I am persuaded that the Crown's case proves the charge beyond a reasonable doubt.
The Evidence and Findings of Fact
6The primary issues on which there was factual dispute are as follows: 1) when Constable Callon arrived in the parking lot and the related issue of when he formed his reasonable suspicion in relation to Mr. Bath; 2) the role Constable Callon played in dealing with Mr. Bath's intoxicated passenger; 3) and whether Mr. Bath intended to refuse to provide a breath sample. At this stage I will address the first two issues, and my general findings with respect to credibility. I will address the issue of Mr. Bath's intent further below in relation to the legal issue of intention to refuse to provide a sample.
7One factual issue which is not in dispute, is when the ASD arrived and Constable Callon was ready to take the sample. Constable Callon did not have a note of the specific time Constable Fletcher arrived with the ASD, but he testified that as soon as it arrived, he gave Mr. Bath instructions and a demonstration, and his own self-test as part of the demonstration was at 8:21 p.m. Constable Fletcher's evidence was that he arrived with the ASD at 8:20 p.m. Mr. Bath did not contest this factual evidence about the time of arrival of the ASD. This factual issue is relevant to the issue of whether the demand was "forthwith", as the arrival of the device and when Constable Callon was prepared to take the ASD sample is the end time from which the issue of whether the sample was taken forthwith is to be assessed.
The Evidence of Constable Callon
8Constable Callon testified that on June 26, 2015, he was working uniform patrol. That evening, he received a dispatch call regarding a possible impaired driver at a McDonald's parking lot on Main Street in Brampton. The caller had reported a woman who was intoxicated and falling all over the place getting into a vehicle. The caller gave the license plate of the vehicle. Constable Callon proceeded immediately to the scene and arrived at 8:05 p.m. In cross-examination, Constable Callon denied the suggestion by defence counsel that he arrived at the scene five or ten minutes earlier, and said that it was possible only that he arrived a minute earlier or later than 8:05 p.m.
9As he pulled into the parking lot, Constable Callon saw the car with the license plate from the call, and saw a female enter the passenger side of the car. Constable Callon parked his cruiser behind the vehicle, and then approached the passenger side of the car to speak to the female. He heard loud music from the vehicle, and observed the female "kind of dancing" in her seat. He spoke to the female. She appeared to be fairly intoxicated. The engine of the vehicle was turned off, but the accessories (such as the radio) were turned on. The passenger window was down. Constable Callon could see inside the vehicle that there were two cups in the console, there was an LCBO bag, there was an empty bottle of Appleton's rum, and there was a bottle of vodka that appeared to be about three-quarters full. The bottles were on the passenger side of the vehicle.
10Mr. Bath was in the driver's seat of the vehicle. His seat was fully reclined. Constable Callon described him as being in a state of undress, in a white tank top and shorts. After speaking to the female, he spoke to Mr. Bath, initially through the passenger window. Constable Callon asked if he had been drinking. Mr. Bath told him he had two beers at lunch. Constable Callon observed that Mr. Bath was a little slow to act and respond. The female then got out of the vehicle, and hugged Constable Callon. She was very intoxicated, and was not listening to police commands to get back into the vehicle, and was taken into custody for public intoxication by Constable Hails, who arrived on the scene at that time. Constable Callon testified that he assisted with the arrest.
11Constable Callon then returned to speak to Mr. Bath. Because the driver window would not open, Mr. Bath had to open the door for the conversation. Constable Callon observed four Coke cans in the sill of the door, which led him to believe the occupants of the vehicle had been drinking rum and Cokes. As Constable Callon spoke to Mr. Bath, he bent down and could smell the odor of alcohol on Mr. Bath. Constable Callon then felt he had reasonable suspicion to make an ASD demand, and read the demand to Mr. Bath from his notebook. Constable Callon testified that he formed his reasonable suspicion and read the breath demand at 8:09 p.m.
12Mr. Bath asked Constable Callon if he could put on his other clothes from the back of the car prior to taking the breath test. Constable Callon gave him the opportunity to do so.
13Constable Callon did not have an ASD device with him, so he called for one to be brought to the scene after he made the ASD demand. Constable Callon did not have a note of the specific time the ASD arrived. However, he testified that he did his self-test on the machine while he was instructing and demonstrating for Mr. Bath how to provide a sample at 8:21 p.m., and thus believed that ASD had arrived at 8:20 p.m.
14I will not summarize all of Constable Callon's evidence about the eight blows he allowed Mr. Bath to provide a sample. The blows took place between 8:21 and 8:29 p.m. Constable Callon provided instructions and gave a demonstration at the outset. Constable Callon was very detailed and specific in his evidence regarding each of the eight blows by Mr. Bath. For each blow Constable Callon was able to describe, based on his notes and his memory, what he perceived to be the specific problem leading to no suitable sample being produced. In addition, he was able to detail the instructions and demonstration he gave to Mr. Bath prior to the testing, and again between the fourth and fifth blows. Further, Constable Callon gave detailed evidence of specifically when in the sequence of events (i.e., between which blows) he gave warnings to Mr. Bath about the consequences of failing or refusing to provide a sample. Constable Callon was also specific regarding the fact that for the fifth to eighth blows, he had Mr. Bath stand up outside the cruiser, in order to ensure that he was given every opportunity to provide a suitable sample. Prior to the eighth and final chance to blow, Constable Callon warned Mr. Bath that this would be his final opportunity to blow or he would be charged with refusing to provide a sample.
15After the eight blows and no sample provided, Constable Callon placed Mr. Bath under arrest at 8:29 p.m.
The Evidence of Mr. Bath
16Mr. Bath testified that he works at a pizza store across the road from the parking lot where the investigation took place. On June 26, 2015, he had made a plan to meet up with a friend who was his former co-worker from the pizza store (the female passenger). Mr. Bath normally drives to work with his cousin, who also works there, and they park in the parking lot across from the pizza store. Mr. Bath decided he would meet with his friend in the car in the parking lot. At 6:55 or 7:00 p.m., he got the car keys from his cousin, and went to the car. When he got to the car, his friend had not yet arrived. He took off his pants and top shirt. He testified that he was wearing shorts and another shirt underneath, and took off the top layer of clothes because they smelled of pizza dough. He reclined the driver's seat back and waited for his friend.
17Mr. Bath's friend arrived at 7:15 or 7:20. She was drunk when she arrived. She had a bottle of alcohol with her. Mr. Bath testified that he had cans of coke in the car because they have it there for the pizza store. Mr. Bath's friend showed him the bottle of alcohol and started drinking in the car. She wanted him to drink too. He told her he could not because he had had a couple of beers in the afternoon. Mr. Bath testified that he was only drinking Coke in the car.
18Mr. Bath testified that he tried to think of how to make his friend leave, because she was drunk in the car.
19Mr. Bath was due back at work at 8:00 p.m. He testified that his friend lived nearby, and he told her that he had to be back at work at 8:00 p.m. At around 7:40, his friend went to use the washroom in McDonald's. He lay back in his seat again, as he was sleepy from working all day. His friend came back. Mr. Bath continued to lie back in his seat, and closed his eyes. Music was playing in the car. The next thing Mr. Bath saw was a police officer (Constable Callon) knocking on the passenger window.
20The officer initially spoke to Mr. Bath's friend on the passenger side of the car; although he did ask Mr. Bath to turn off the radio. Then the officer came over to the driver's side and spoke to Mr. Bath. The officer came over and spoke to Mr. Bath after a second officer had arrived and was dealing with his passenger outside the car.
21Mr. Bath testified that the officer asked him if he was drinking. He said no. The officer asked if he had had anything to drink today, and he replied that he had had two beers in the afternoon. After that the officer asked him to step out of the car to do a breath test. Mr. Bath testified that he readily agreed to this.
22Mr. Bath testified that it took the police 15 minutes from when the officer asked him to get out of the car to do a breath test until they started the testing process. He testified that during that time he was looking around and hoping no-one from the pizza store where he worked would see him. He could also see the other officers dealing with his friend. He saw her being arrested and saw her in the police cruiser.
23Mr. Bath testified that he was very nervous because his friend had been arrested, and because there were 40 to 45 people in the parking lot watching them, and he was nervous because his workplace was right across the street. He was concerned he would be arrested for drinking in a public place and everyone would know. He testified that during the ASD testing he was trying to comply with the officer. He testified that it scared him having something on his face. He testified that he tried each time to provide a sample, and when it did not work, he would try a little differently the next time. He testified that the whole testing process lasted eight or nine minutes. He testified that when it did not work, between blows the officer would tell him to blow longer, and tell him that the machine would tell him when to stop, and to try again.
24Mr. Bath testified that before his last attempt the officer said to him that this would be his last attempt. He tried to blow again. After that attempt, his eighth, the officer told him he was under arrest and handcuffed him. Mr. Bath said he then said to the officer: "What other evidence can I provide? Give me one more chance to blow." But the officer said he had been given all his chances and no more chances would be given. Mr. Bath testified that the officer had explained to him after the seventh attempt that if he did not provide a sample he would lose his licence.
Credibility Findings
25I found that Constable Callon was an honest witness, and I accept his evidence as true. He was consistent in his evidence with respect to the times various events occurred, and with respect to his description of the various blows by Mr. Bath into the ASD. I note as well that Constable Callon was quite detailed in his evidence regarding the series of blows in the ASD by Mr. Bath, and what he perceived as the problems with each blow.
26Constable Callon had notes of most of the significant times in relation to the investigation. Where he did not have a specific note, his time estimate is confirmed by other evidence. For example, I have considered that Constable Callon did not have specific note of the time that the ASD arrived at the scene. However, he did have a note that he did his own self-test on the ASD at 8:21 p.m., and based on this estimated that the ASD arrived on the scene at 8:20 p.m. This estimate was confirmed by Constable Fletcher's evidence. Constable Fletcher testified and had a note that he arrived at the scene with the ASD at 8:20 p.m.
27I also found Constable Fletcher to be a credible witness. His role in the investigation was limited to bringing the ASD, and transporting the intoxicated female passenger back to 22 Division. Constable Fletcher's evidence was consistent, and he had notes to corroborate the times he said various events occurred. I accept his evidence that after receiving the request for the ASD, he left 22 Division at 8:12 p.m. to bring the ASD to the scene, and he travelled directly there. I also accept his evidence that he arrived at the scene with the ASD at 8:20 p.m., and handed it to Constable Callon.
28I also found Constable Hails to be a credible witness. He was consistent in his evidence. In addition, he carefully expressed the limits of what he was able to give evidence about. Where he did not know the answer to a specific question, he said so, and explained why he was unable to answer (for example, that it was not his practice to make specific notes about what other officers were doing during the course of an investigation).
29The one area where there was some inconsistency between the officers was in describing the roles that the various officers played in relation to dealing with the intoxicated female passenger's arrest, and speaking to her father, who happened to be on the scene. However, Constable Hails testified that his focus when he is involved in an investigation is on his own actions. He testified that he does not take notes about what actions other officers involved in the investigation are taking. I accept that explanation as believable and true. In the result, I find that the inconsistencies between the officers with respect to their dealing with the intoxicated female passenger do not detract from their credibility. It is clear that each of the officers had some involvement in dealing with the intoxicated woman or her father. The specific details of what each officer did in relation to her are not so central to the issues in relation to the allegation that Mr. Bath refused to provide an ASD sample that they lead me to have concerns about their credibility.
30I do not believe Mr. Bath's evidence, and it does not leave me with a reasonable doubt. In particular, on the issue of when Constable Callon arrived, there are several problems with Mr. Bath's evidence. As noted above, Mr. Bath claims that Constable Callon arrived at the parking lot prior to 8 p.m. Mr. Bath testified that he knew Constable Callon's arrival must have been before 8 p.m. because Mr. Bath was due back at work at 8 p.m. Mr. Bath's evidence was that he had gone to the car at approximately 7:00 p.m. to meet his friend. After they spent some time in the car, and after she went to the washroom at McDonald's and came back (around 7:40 p.m.), he had reclined the seat back to lie down. He testified that the next thing he knew, Constable Callon was knocking on the passenger window. It is notable that Mr. Bath agreed in cross-examination that he did not look at the clock to check the time that Constable Callon arrived. Thus, Mr. Bath is basing his evidence that Constable Bath arrived before 8 p.m. on the fact that he was due back at work at 8 p.m., and not on actually knowing what time it was when Constable Callon arrived. In light of Mr. Bath's evidence of lying down in the reclined seat, and closing his eyes, and the next thing he knew Constable Bath was knocking on the window, I find Mr. Bath's evidence that it was before 8 p.m. unreliable. In all of the circumstances, the evidence leads me to the conclusion that Mr. Bath was not keeping close track of time.
31Further, on Mr. Bath's evidence, there is no explanation of what Constable Bath was doing in the time between the alleged pre-8 p.m. arrival and 8:09 p.m. when the breath demand was made. One would expect that if Constable Callon had arrived so much earlier, Mr. Bath could tell the Court what was happening during the time of Constable Callon's arrival and when the ASD demand was made. Instead, Mr. Bath's evidence of the events from when Constable Callon arrived is relatively similar to Constable Callon's, in that Constable Callon spent a few minutes dealing with the female passenger, and then came over to speak to Mr. Bath. This is consistent with the timeline provided by Constable Bath of arriving at 8:05 p.m., and forming reasonable suspicion at 8:09 p.m.
32I also find that Mr. Bath's explanation of some of the surrounding circumstances that led him to be in the parking lot with his former co-worker does not make sense, and as a result I find they reflect adversely on his credibility. When cross-examined about why he met his friend in the car, Mr. Bath testified that he met her the car in the parking lot and not at the pizza store because she had quit her job a couple of weeks before for a new job, and he was concerned that his boss would be mad if he saw Mr. Bath with her, and his boss would think that Mr. Bath might also quit his job. I find this explanation makes no sense and is not believable. I do not see why Mr. Bath meeting with someone how had quit for a new job would be likely to lead Mr. Bath's employer to think he might also quit.
33I also find that Mr. Bath was inconsistent in his evidence regarding his response to his friend showing up to their meeting intoxicated. He testified that she showed up to their meeting very drunk. He testified in chief that he was trying to think of how to get her to leave because she was so drunk. But when he was cross-examined about why he did not simply ask her to leave, he said that he did not do so because she had come all the way from home. But he had earlier testified that she lived 500 metres from the parking lot. Thus, his explanation that he did not ask her to leave because she had come all the way from home, does not make much sense when home was only 500 metres away.
34In all of the circumstance, I do not accept Mr. Bath's evidence and it does not leave me with a reasonable doubt.
35Thus, with respect to the contested factual issues outlined above at paragraph 6 above, I find as follows. 1) Constable Callon arrived at the parking lot at 8:05 p.m. I find that he dealt with the female passenger initially for a few minutes. I find that Constable Callon then spoke to Mr. Bath, and formed his reasonable suspicion within a couple of minutes of speaking to him. I accept Constable Callon's evidence that he formed his reasonable suspicion and made the ASD demand at 8:09 p.m. 2) I accept Constable Callon's evidence that he assisted with the arrest of the intoxicated female passenger.
Application of the Law to the Facts
36The elements of the offence of refusing to provide a breath sample, in this case an ASD sample, are as follows:
(i) A valid demand;
(ii) The failure or refusal of the detainee to provide a suitable breath sample;
(iii) That the detainee intended to refuse to provide a suitable sample.
37Counsel for Mr. Bath does not take issue with the first element, the actus reus that no suitable breath sample was provided. The other issues raised by counsel for Mr. Bath (outlined at paragraph 2 above) relate to the elements of whether there was a valid demand, and whether the prosecution has proven an intentional refusal to provide a breath sample.
1. Was There a Valid Demand - Was the ASD Demand Made Forthwith?
38Counsel for Mr. Bath argues that the ASD demand was not made forthwith, and thus did not comply with the statutory authorization and was not a valid demand. Based on my factual findings outlined above, the time from Constable Callon forming reasonable suspicion to the time he started the process of taking the ASD sample (i.e., giving instructions and receiving the first blow) was 11 minutes, between 8:09 p.m. and 8:20 p.m. The delay was due to the fact that Constable Callon did not have an ASD with him and had to call for one to be brought to the scene.
39Section 254(2) of the Criminal Code requires that an ASD sample be provided "forthwith". The law regarding the interpretation of the forthwith requirement is well-established in cases such as: R. v. Woods, 2005 SCC 42 (CanLII), [2005] 2 S.C.R. 205 at paragraphs 13-15, 29-36, 43-44; R. v. George, 2004 CanLII 6210 at paragraphs 27-29 (ONCA); R. v. Quansah, 2012 ONCA 123; R. v. Gill, 2011 ONSC 4728 at paragraphs 27-41. The forthwith requirement has been interpreted to mean both that the demand must be made forthwith once the officer forms reasonable suspicion to make the demand, and that the sample must be taken forthwith. Forthwith means "immediately", and "without delay". Forthwith has been interpreted as meaning "promptly" in the context of the requirement to make the demand as soon as the officer forms the reasonable suspicion required for the demand.
40The case law recognizes that a short delay in administering the ASD may be permitted where circumstances exist that raise a concern that an accurate result will not be obtained if the ASD is administered immediately: George, supra at paragraphs 44-50. That issue does not arise in this case.
41The immediacy requirement has constitutional dimensions. Section 254(2) authorizes ASD demands under pain of criminal prosecution for refusal to comply. The provision infringes ss. 8, 9 and 10(b) Charter rights, but has been found to be constitutionally justified in light of the important public safety issues it serves, and the immediacy requirement, which reasonably limits the scope of the infringement of rights. In particular, in relation to s. 10(b), a driver who is subject to an ASD demand is detained, and his or her right to counsel is triggered. However, if the demand is administered "forthwith" in accordance with the statutory terms, the police are not required to advise the driver of the right to counsel prior to administering the ASD, as the brief denial of counsel implicit in the ASD scheme has been held to be a reasonable limit under s. 1: George, supra at paragraphs 27-29; Gill, supra at paragraphs 27-29.
42An ASD demand will infringe s. 10(b) of the Charter, and will not comply with the forthwith requirement in s. 254(2), if there is a realistic opportunity for the detainee to contact counsel (and seek and receive advice) in the time before the officer making the demand is in a position to administer the ASD: George, supra at paragraphs 30-34, 51; Gill, supra at paragraphs 30-37; Quansah, supra at paragraphs 34, 42. The analysis of whether the police have complied with the forthwith requirement must be assessed contextually: Quansah, supra at paragraphs 45-49. In Gill, Justice Durno provides a helpful, non-exhaustive list of factors that courts have considered in assessing whether there was a realistic opportunity to consult counsel in a given case: Gill, supra, at para. 32.
43The 11 minute delay in this case between the making of the ASD demand and the beginning of the process of taking the sample requires careful scrutiny. The case law I have set out above is clear that assessment of the "forthwith window" is not simply a matter of counting the number of minutes between the forming of reasonable suspicion and the taking of the ASD sample. However, the amount of time between the forming of reasonable suspicion and when the officer is ready to take the sample is an important consideration in the factual and contextual analysis. As is clear from the helpful summary of cases provided in Gill at paragraph 36, the 11 minute delay in this case is close to the line on whether it is forthwith, although the cases tend to fall on the side of the line that 11 minutes is forthwith, but depending, of course, on all the circumstances, and with some cases in that range being found not to be forthwith.
44It is important to note that the time that the forthwith clock starts to run begins when the officer's reasonable suspicion to make the demand is formed, not before. In this case, counsel for Mr. Bath argued that the time should start to run from when Constable Callon arrived on the scene. This is not the correct approach. Rather, the time starts to run from when Constable Callon formed his reasonable suspicion to make the ASD demand to Mr. Bath. As I have outlined above, this was not immediately upon Constable Callon's arrival at the parking lot, since Constable Callon initially dealt with the female passenger who was the subject of the 911 call.
45In all of the circumstances of this case, and considering the 11 minute delay between when Constable Callon formed his reasonable suspicion at 8:09 p.m., and when the ASD was delivered to Constable Callon by Constable Fletcher, I find that the demand was made forthwith, and Constable Callon was prepared to take the sample forthwith. Constable Callon made the ASD demand to Mr. Bath as soon as he formed his reasonable suspicion. Constable Callon called for the ASD to be brought right away once he formed his reasonable suspicion. Constable Fletcher left 22 Division to bring the ASD quickly, and came directly to the scene. In all the circumstances, I find that this was forthwith.
46I accept the argument of defence counsel that as a matter of law the cases do not support the bald assertion that any delay under 15 minutes in bringing the ASD is still forthwith: see Quansah, supra at para. 31; George, supra at para. 50. The cases clearly do not say that; rather, they require a case-specific analysis considering all of the circumstances. However, typically where shorter time periods have been found not to be forthwith, there is some factual basis before the court for which would allow the court to conclude that during the delay caused by the need to bring the ASD there was a realistic opportunity to contact counsel in that time.
47In this case the time frame between when Constable Callon formed his reasonable suspicion, and when the ASD arrived was 11 minutes, a relatively short period of time, where on the case law cases go both ways, but tend towards finding the time was forthwith. Faced with this 11 minute delay which is a close call based on the case law, I am left with a record where there is no specific factual evidence addressing whether it was realistic for Mr. Bath to contact counsel in the 11 minutes. For example, Mr. Bath did not testify as to whether he had a cell phone with him or not; Mr. Bath did not testify that he wished to contact counsel while he was in the parking lot; the defence did not cross-examine Constable Callon at all on issues related to whether it would have been realistic for Mr. Bath to be put in contact with counsel in the time while they were waiting for the ASD; nor was there any evidence, as is often the case, or how long it took to contact duty counsel at the division, which is a helpful reference point for how long it would have taken to call duty counsel to leave a message and get a call back.
48I appreciate that Mr. Bath has not brought a s. 10(b) claim, and is not required to bring one in order to argue the statutory issue of whether the demand was made forthwith. But I find that in all the circumstances of this case, the 11 minutes between Constable Callon forming reasonable suspicion at 8:09 p.m., and the arrival of the ASD at 8:20 p.m. was forthwith.
49In addition to the cases cited above, I have considered other authorities cited by defence counsel on the forthwith issue, including: R. v. Agro, 2015 ONCJ 512 at paras. 69-78; R. v. Moraj, 2005 O.J. No. 4036; R. v. Mulroy, [2006] O.J. No. 5176 (ONCJ); R. v. Muscat, 2005 ONCJ 415; R. v. Najm, 2006 CanLII 19483 (ONCA). I note that in most (but not all) of those cases there was some evidence on the record from which the court could draw the conclusion in the particular circumstances of each case that there was a realistic opportunity to contact counsel in the time of the delay in each case, or it was a case involving a significantly longer delay between the forming of reasonable suspicion and the arrival of the ASD. As I have outlined above, in this case there is no such evidence on the record. The case law is clear that each case must be assessed in context and considering all of the circumstances. For the reasons I have outlined, in all of the circumstances of this case, I find that the ASD demand was made forthwith.
2. Has the Crown Proven an Intentional Refusal to Provide a Suitable ASD Sample
50Mr. Bath testified and denied that he intended to fail to provide a sample.
51A preliminary legal issue is whether Mr. Bath's evidence of a lack of intention is properly dealt with as the Crown having failed to prove an element of the offence, or whether it should be considered as an issue of reasonable excuse. How the issue is characterized affects where the burden of proof lies and the level of the burden.
52In this case, Crown counsel was content to address the issue of Mr. Bath's intention as part of the Crown's burden to prove an intentional failure to provide a sample as an element of the offence beyond a reasonable doubt; although Crown counsel did not concede agreement with that position in general. Essentially Crown counsel was content to put the Crown's case forward on the footing that even if Crown bears the burden beyond a reasonable doubt to prove the defendant's intentional failure to provide a sample, the Crown had met this burden on the record in this case.
53There is some dispute in the case law, both in this court and the Superior Court, in relation to the nature of the intent requirement for the offence of refusing or failing to provide a breath sample, and the related issue of what constitutes a reasonable excuse: see for example the discussion of this issue in R. v. Greenshields, 2014 ONCJ 35; R. v. Soucy, 2014 ONCJ 497; R. v. Porter, 2012 ONSC 3504. Given the division on this issue in the Superior Court, I am not bound by either line of cases. I prefer the analysis in the Greenshields/Soucy line of cases. In other words, I agree with the legal position put forward by the defence in this case that the Crown is required to prove an intention to refuse to provide a suitable breath sample beyond a reasonable doubt. The issue is thus whether I find that on the evidence in this case, the Crown has proven beyond a reasonable doubt that Mr. Bath intended to fail to provide a suitable sample. In assessing whether this has been proven beyond a reasonable doubt, I consider all of the circumstances, including the types of factors addressed in R. v. Grant, 2014 ONSC 1479 at paragraphs 81-82.
54On the evidence before me, I find that the Crown has proven beyond a reasonable doubt that Mr. Bath intended to refuse to provide a sample. In coming to this conclusion, I rely on the following factors:
(i) Constable Callon provided instructions and a demonstration of how to provide the sample to Mr. Bath prior to the first blow, and again between the fourth and fifth blows. In addition, between individual blows where there was a particular problem with the blow, Constable Callon explained the problem and how to remedy it on the next blow.
(ii) I accept the evidence of Constable Callon and Fletcher that the ASD was functioning properly that evening, based on their evidence with respect to checking when the machine was last calibrated, and that they each performed a self-test on the machine (Constable Fletcher at the start of his shift, and Constable Callon in the process of demonstrating to Mr. Bath how to provide a sample). Further, Constable Callon gave evidence that there were no obstructions in any of the mouthpieces used during the testing process.
(iii) Constable Callon gave Mr. Bath eight opportunities to blow and provide a sample.
(iv) The eight opportunities were given over a period of eight minutes.
(v) Constable Callon gave detailed evidence, which I accept, of the problems with each attempt to provide a sample by Mr. Bath, including blowing for one or two seconds and then stopping, or not closing his mouth around the mouthpiece and moving away from the mouthpiece, or pretending to blow.
(vi) Constable Callon warned Mr. Bath multiple times throughout the process of trying to take a sample of the consequences of failing or refusing to provide a sample.
(vii) Prior to the last blow, number eight, Constable Callon advised Mr. Bath that this would be his final chance and again warned that he would be charged with refusal if he did not provide a sample.
55As outlined above, Mr. Bath testified that he was trying to provide a sample, but was unable to do so because he was scared and nervous. I have outlined above the reasons that I do not find Mr. Bath's evidence to be credible, and it does not leave me with a reasonable doubt. In the face of the factors outlined at paragraph 54, in particular the multiple opportunities given to Mr. Bath to blow, and the repeated instructions given, and warnings of the consequences of not complying, I do not accept that Mr. Bath was so nervous that he was unable to provide a sample. Nor was there any evidence in this case of a medical condition that could have contributed to any inability to provide a sample. There was no suggestion that Mr. Bath did not understand what was being asked. Nor did Constable Callon observe any shortness of breath. I find that Mr. Bath intentionally did not provide a sample.
56There is one issue I want to flag that I do not rely on as evidence of an intention to refuse to provide a sample. Constable Callon testified that after Mr. Bath's eight blows, when placed him under arrest, Mr. Bath said: "Why would I want to give you more evidence." By contrast, Mr. Bath testified that he said, "What other evidence can I provide", and asked for another chance to blow. In light of Constable Callon's evidence that Mr. Bath was polite at all times during the investigation, the fact that English is Mr. Bath's second language, and the fact that the defendant speaks with a relatively strong accent, I am left with a reasonable doubt that the statement as outlined by Constable Callon was made. I find that Constable Callon could have misunderstood that statement. So, I do not rely on the alleged statement as evidence of an intention to refuse to provide a sample.
57In addition to the argument of lack of intent, which I reject, counsel for Mr. Bath made several other submissions as to why the refusal to provide a sample charge was not proven beyond a reasonable doubt.
58Counsel for Mr. Bath argued that Constable Callon's evidence about Mr. Bath's failure to provide a breath sample was not sufficiently detailed and specific to prove the failure to provide a sample beyond a reasonable doubt.
59I reject this argument by the defence. Constable Callon was very detailed and specific in his evidence regarding each of the eight blows by Mr. Bath. For each blow Constable Callon was able to describe, based on his notes and his memory, what he perceived to be the specific problem leading to no suitable sample being produced. In addition, he was able to detail the instructions and demonstration he gave to Mr. Bath prior to the testing, and again between the fourth and fifth blows. Further, Constable Callon gave detailed evidence of specifically when in the sequence of events (i.e., between which blows) he gave warning to Mr. Bath about the consequences of failing or refusing to provide a sample. Constable Callon was also specific regarding the fact that for the fifth to eighth blows, he had Mr. Bath stand up outside the cruiser, in order to ensure that he was given every opportunity to provide a suitable sample.
60Counsel for Mr. Bath also argued that the Crown has not proven that the ASD was in proper working order, and further argued that proving that the ASD is in proper working order is an element of the offence of failure or refusal to provide a breath sample.
61The case law does not typically state the elements of the offence as including a requirement of a functioning breathalyzer or ASD: see for example, R. v. Grant, supra at para. 81. There is authority supporting that where a detainee attempts to blow and for some reason does not provide a valid sample (as in this case), in some circumstances, whether the intoxilyzer or ASD was functioning properly can become a live factual issue, without being an element of the offence: R. v. Farkas, 2002 CanLII 79556 (ON CJ), [2002] O.J. No. 4682; R. v. McNeil, [2002] O.J. No. 3982 (S.C.); R. v. Dhillon, 2015 ONSC 5400 at para. 55. Further, the authorities appear to hold that where there is an outright refusal (i.e., no attempt to blow), there is no obligation on the Crown to prove that the breathalyzer is functioning properly: R. v. Weare, [2005] O.J. No. 2411 (ONCA); R. v. Danychuk, 2004 CanLII 12975 (ON CA), [2004] O.J. No. 615 (ONCA); R. v. McNeil, [2002] O.J. No. 3982 (S.C.).
62On the facts of this case, I find that the Crown has proven that the ASD was in proper working order. Both Constable Callon and Constable Fletcher gave evidence with respect to the calibration date of the particular ASD used in this case, and regarding their own self-tests of the machine that evening. As I have outlined above, I find that both Constable Callon and Constable Fletcher were credible witness. In this case, unlike in Dhillon, supra, there is no evidence suggesting operator error by the officer administering the ASD which could weigh against the evidence that the ASD was in proper working order. Thus, although I am doubtful that proving that the ASD is functioning properly is a freestanding element of the offence of refusing to provide a breath sample, even if it is, I find that the Crown has proven beyond a reasonable doubt that the ASD in this case was functioning properly on the evening at issue.
63Counsel for Mr. Bath also argued that after having given Mr. Bath eight chances to blow, and after having told him before the eighth blow that this was his final opportunity to provide a sample, when Constable Callon decided to arrest and charge him, he was required to give Mr. Bath a "last chance" to blow. I reject the argument that on the evidence in this case, Constable Callon was required to give Mr. Bath another chance to blow. After the eight chances to blow, and in light of what I have found to be an intentional failure by Mr. Bath to provide a breath sample, the offence was complete. Constable Callon had no obligation to give Mr. Bath a ninth chance to blow. The case law is clear that an officer is not required in every case to give a detainee a further "last chance" in order for the court to find that a refusal to provide a sample was intentional (see Grant, supra at paragraphs 80-84). In this case I find that Constable Callon gave Mr. Bath ample opportunity to provide a sample, and that Mr. Bath, for the reasons I have outlined above, intentionally refused to provide one.
Conclusion
64In all of the circumstances of this case, I find that the Crown has proven beyond that there was a valid ASD demand made by Constable Callon, that Mr. Bath refused to provide a suitable ASD sample, and that Mr. Bath intended to refuse to provide a suitable ASD breath sample.
65I find Mr. Bath guilty of refusing to comply with a demand to provide an ASD sample, contrary to s. 254(5) of the Criminal Code.
Released: October 27, 2016
Signed: Justice J.M. Copeland