Court File and Parties
Brampton Court File No.: 14-11800
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Rakesh Bissoonchand
Before: Justice Paul F. Monahan
Heard on: July 6, 2015; April 18, 2016 and February 6, 2017
Reasons Released on: March 8, 2017
Counsel:
Ms. J. Vlacic for the Crown
Mr. M. Rhombis for the defendant Rakesh Bissoonchand
MONAHAN J.:
OVERVIEW
1Mr. Rakesh Bissoonchand is charged that on or about September 7, 2014 that he did operate a motor vehicle while his ability to do so was impaired by alcohol contrary to s. 253(1)(a) of the Criminal Code of Canada (the "Code"). In addition, he is also charged with having, without reasonable excuse, refused to comply with a demand by a peace officer to provide samples of his breath that in a qualified technician's opinion would enable a proper analysis to be made to determine the concentration if any of alcohol in his blood contrary to s. 254(5) of the Code.
2There is no Charter application before the Court.
3The Crown called three witnesses: Eduardo Pinho, a civilian witness tow truck driver; Constable Kresimir Smintich, the arresting officer; and Constable Christine Lovell, the breath technician. The defence called the defendant Mr. Bissoonchand. I note that there were a number of statements attributed to Mr. Bissoonchand while he was in the custody of the police and the voluntariness of those statements was conceded.
4The trial took place over an extended period of time due to defence requests to consider whether the defence wished to call medical evidence and due to defence counsel being ill when the case was to be continued resulting in further adjournments.
THE EVIDENCE
5Much of the evidence relates to facts that are not contested. On the other hand, there were a number of contested facts including whether the defendant was driving the vehicle (observed by Mr. Pinho) on the evening of September 7, 2014 and whether Mr. Bissoonchand had the requisite mens rea with respect to the refusal charge.
6I will give a brief overview of the evidence. To the extent that there are contested matters of fact, I will identify those matters in these reasons and will indicate my findings on those contested facts.
Eduardo Pinho
7Mr. Eduardo Pinho has been a tow truck driver for more than 20 years. He was driving northbound on Kennedy Road in Brampton on September 7, 2014. Kennedy is two lanes going northbound and southbound. As he approached the intersection with Williams Parkway there was a white SUV in front of him bearing license plate BTNZ 168 which was stopped some ten cars away from the intersection for no apparent reason. Mr. Pinho honked his horn at the vehicle. They were both on the inside fast lane. Mr. Pinho attempted to go around the vehicle and the driver of the white vehicle gave him the middle finger. As they came upon the intersection of Kennedy and Rutherford Road, the driver of the white SUV again stayed back about ten car lengths from the intersection.
8As Mr. Pinho tried to pass the vehicle it pulled over to the right to prevent him from passing and almost sideswiped his vehicle on a number of occasions. Mr. Pinho followed the vehicle for what he estimated was about seven or eight kilometres. On a number of occasions the white SUV went into the southbound lanes while traveling northbound. The vehicle was swerving. As the vehicle turn left and went west on Wexford the vehicle hit the curb on the north side of that road. The vehicle went north on Conestoga and again veered into the southbound lanes.
9While he was following the vehicle, Mr. Pinho called 911. The 911 tape was introduced, on consent, as is exhibit at trial. He gave the licence plate for the vehicle he observed to the 911 operator. Mr. Pinho testified that he followed the driver of the white SUV to 12 Evalene Court in Brampton. Mr. Pinho sat in his vehicle while the driver of the white SUV stayed in his vehicle in the driveway at 12 Evalene Court. Mr. Pinho said the other driver stayed in the white SUV until the officer arrived and he said that the officer walked up quickly and arrested the driver almost immediately. He thought that the driver did not get out of the vehicle until after the police officer approached. Another police vehicle pulled up as well. He was not sure if the police officer asked many questions of the other driver.
10Mr. Pinho did not notice any swaying or stumbling by the person who was arrested.
11Mr. Pinho identified the person present in court being the person he saw driving the vehicle and the person who was arrested.
12Mr. Pinho was very clear that he never lost sight of the white SUV and that the driver of the vehicle remained in the vehicle until the police arrived. As he waited for the police to arrive, he told the 911 operator at least four times that the driver was still in the vehicle in the driveway. This was all before the police arrived.
Constable Kresimir Smintich
13Constable Smintich has been with the Peel Regional Police since August 2010. He was in uniform patrol on September 7, 2014 operating fully marked cruiser. He received a radio call just before 10 PM about a possible impaired driver northbound on Kennedy near Williams Parkway. The license plate was BTNZ 168.
14He arrived at 12 Evalene Court at 10:04 PM which was the address associated with the plate. The vehicle previously identified was parked in the driveway in an appropriate fashion. He had information that it had arrived there at 10:01 PM. His was the first cruiser on the scene. When he first arrived he saw the tow truck as he was approaching in his police cruiser. He initially drove past 12 Evalene Court and the white SUV. He saw the tow truck and its driver who he assumed to be the complainant and he was hoping to speak to complainant. The tow driver directed his attention to 12 Evalene Court. Constable Smintich said he exited his vehicle and at that point saw a man who was one to two feet from the car holding his keys to the car in his hand facing the vehicle on the driver side. He identified the man by way of a driver's license as being the defendant Mr. Rakesh Bissoonchand.
15As Constable Smintich approached the man, Mr. Bissoonchand said words to the effect that he was just checking his vehicle. Constable Smintich put his hand on the hood and determined the vehicle was warm as if it had just been driven.
16Constable Smintich detected an odour of alcohol on the breath of Mr. Bissoonchand and his eyes were red rimmed. His speech was somewhat slurred although he noted that he spoke with an accent which I took to mean that there was some uncertainty in the officer's mind about the slurring. Mr. Bissoonchand had some difficulty finding his driver's license which was in a flap portion of the wallet hanging down. Constable Smintich pointed it out to him and the man then gave it to him.
17At some point another man came out of the house and Constable Smintich spoke to him. He then returned to Mr. Bissoonchand. Mr. Bissoonchand's gait was unsteady which confirmed to Constable Smintich that he had consumed alcohol. He formed the view that he was impaired and had been operating a motor vehicle. He was satisfied that the operator of the vehicle was Mr. Bissoonchand as relayed to him by the witness via the dispatch call and the hand signal which the driver had given him upon arrival at 12 Evalene Court.
18It took the officer about a minute to form the opinion that Mr. Bissoonchand was impaired. He noted that there was unsteadiness as the defendant walked towards the police cruiser. He placed him under arrest at 10:05 PM. It was based on the "totality of the circumstances." He was given rights to counsel at 10:11 PM; a caution at 10:16 PM and a breath sample demand was made at 10:17 PM. The scene was cleared at 10:20 PM and they arrived at 21 division at 10:34 PM. Arrangements were made for Mr. Bissoonchand to speak to duty counsel at the station.
19I note that the arresting officer had also worked as a qualified breath technician and has significant experience with impaired drivers.
20Constable Smintich transferred custody to the breath technician at 11:05 PM. However he took custody back while duty counsel was engaged in the call with duty counsel which was completed by 11:23 PM and he was returned to the breath tech's custody.
21At 11:40 PM Constable Smintich asked a number of questions of Mr. Bissoonchand. Mr. Bissoonchand was asked if he had been drinking. He said he had had a few beers namely "three or four" at home by himself.
22It was confirmed in cross-examination that when Constable Smintich first approached the vehicle, Mr. Bissoonchand was standing outside the vehicle and not swaying. The slight swaying occurred when he was looking through his wallet and again when he walking to the cruiser.
23It was also acknowledged in cross-examination that sometimes people are nervous when they're dealing with police and looking for their license.
24He his notes indicate that odour of alcohol on the breath was strong and readily identifiable and that his eyes were red rimmed and bloodshot. He also noted that Mr. Bissoonchand's walking was slightly unsteady when he got into the cruiser.
Constable Christine Lovell
25Constable Lovell was the breath technician who requested that Mr. Bissoonchand provide breath samples so that a proper analysis could be made to determine the concentration if any of alcohol in his blood. She has been with Peel Regional Police since 2009 and at the time of the events in question she had conducted over 130 breath tests.
26It was admitted by the defence that the breath technician was properly qualified and that the Intoxilyzer 8000 C which was used was in proper working order.
27The breath technician gave the Mr. Bissoonchand rights to counsel and she facilitated a private call between him and duty counsel.
28She testified that the the odour of alcohol emanating from his breath was strong; he had red, watery and bloodshot eyes; and that some of his words were slurred but she also noted he did have a strong accent.
29The breath room video was played at trial and admitted into evidence. Most of the video deals with the defendant's apparent attempts to provide a breath sample. The breath technician explained to the defendant how to blow and that he should blow until she told him to stop. She demonstrated for him how to blow and provide at sample. Before the process started, she told him three times that if he refused to provide a sample, he would be charged with an offence and he agreed that he understood. She testified at trial that a person needs to be up to blow for eight to ten seconds. She explained that if there was no tone emanating from the machine when a person blows into the device, that means either that the person is not blowing hard enough or not blowing it all.
30During the video, the breath technician noted that he was not creating a tight enough seal around the mouthpiece and that he was puffing his cheeks. She said at trial that, based on her experience, when a person is puffing their cheeks they are typically only pretending to blow. She observed, and it was confirmed by the breath room video, that you could hear air around the mouthpiece and there was no tone or little tone when he is apparently attempting to blow. She said that he did not appear to be out of breath and the video discloses that he is not out of breath.
31The defendant repeatedly states on the video that "I am blowing". At one point he says "I am blowing sweetie" and she says "I'm not your sweetie" and he changes the way in which he addresses her and calls her Ma'am.
32The video discloses that the defendant asked for a drink of water and the officer permits him to have one on two occasions. She tells him that he is puffing out his cheeks and that he repeatedly stops blowing even though she has not told him to stop. She cautions him he will be charged with a criminal offence for refusing to blow if he continues not to provide a sample.
33The video discloses that the defendant put his mouth on the mouthpiece attached to the approved instrument and purported to blow more than 10 times before he was charged with a refusal. He was only charged after he was warned multiple times that he would be charged with a criminal offence and he is given a final warning and told he will be charged if he fails to provide a sample. The process of the blowing attempts takes place over an 11 to 12 minute time frame.
34After she says that she is charging him with a refusal he says "can I blow again, I am begging". She does not permit him to try.
35Constable Lovell acknowledged in cross-examination that she saw no difficulty with his balance but that she saw limited walking namely a few feet each time he came and went from the room which was a couple of times. There was no swaying. He seemed to have normal comprehension skills as concerns right to counsel although she said he didn't follow instructions on the providing of the sample.
36She said that his attitude was cooperative and talkative.
37On the breath room video, the defendant was asked if he had any medical conditions that would prevent him from blowing and he said that he was a "forceps baby", meaning that when he was born the doctors needed to use forceps to assist in his delivery from his mother's womb. No other medical conditions were mentioned by him.
Rakesh Bissoonchand
38The defendant testified that he was 40 years old at the time of the charges. He has no criminal record and no driving record infractions. He testified that he has worked as a welder for many years.
39He testified that on September 7, 2014 he had worked as welder in the morning. He did some shopping thereafter and then went home and tried to sleep but he could not sleep. He said that when a person works as a welder the person sometimes sees a bright light and has eye irritation. He referred to experiencing a bright light and flashing and that this can prevent him from sleeping after he has been working.
40He testified that he was not driving on the evening in question. He testified that he had one beer (a Heineken) and that he had opened a second can of beer and drank about half of it.
41He testified that he went out on his driveway to check and see if his car was locked and to see if another car belonging to another occupant of the house was locked. He saw a tow truck driver parked out front. He said he looked at the tow driver for three to five minutes. He didn't know what he was doing there. Then a police officer drove up and he spoke to the officer. He said as he walked towards the officer's vehicle, the officer handcuffed on him and did not tell him he was under arrest. The officer then put him in the back of the police vehicle. Mr. Bissoonchand said that the police officer did not read him any rights to counsel and he had difficulty sitting in the back of the police cruiser because of his size (he is a tall man) and he found it very hot and he felt that he was going to pass out.
42Mr. Bissoonchand testified that when he went out on the driveway that night to check the cars he was only going out briefly but he nevertheless took his house keys with him and locked the house behind him when he went out. He said this was just out of habit. He agreed that he could have locked his own car using the remote key from inside the house but he didn't do so. He said the other car he had to check could not be locked from inside the house.
43He said that when he was in the breath room, he followed the directions of the breath technician. He said that he felt that his chest was cramping up. He was brought to tears in his evidence in chief and said that he felt the same way at the time he was in the breath room. He said that he was having anxiety in the breath room and that he was embarrassed thinking about what his wife and child would think.
44He said he did not intend to fail to provide a sample-he said he did his best.
45He said that he was being tested by his doctor for something called chromium and this apparently relates to his breathing and arises from his work as a welder. There was no further evidence on this point although I note that the trial was adjourned a number of times so that the defendant could consider whether he wished to call medical evidence on this point.
46Mr. Bissoonchand agreed that he had trouble finding his license when the officer asked for it but he said that was because of poor lighting although he acknowledged that there was street lighting.
47He testified that he was never told why he was being detained or arrested at the time that he was arrested-he was only told after the failed breath test. In cross-examination, it was then pointed out to him that the breath room video showed that he was told at the beginning of the video that he was charged with impaired driving to which he then answered that he could not remember.
48He testified that he had been given no rights to counsel at any time. In cross-examination, it was suggested to him that he had in fact been given rights to counsel to which he responded that he had asked to speak to a lawyer but then said he could not remember.
49He again explained that the reason he was unable to provide a sample was because he was confused. He was a forceps child and that he was panicking.
50In cross-examination, it was suggested to him and he agreed that he had no history of anxiety and he had never taken medication for it. He responded that he had a history of pneumonia and malaria.
51He said he was panting and felt pain on the video. It was pointed out to him in cross-examination that he was breathing normally on the video and he said yes he was breathing normally some of the time.
52He testified that he asked four or five times for a glass of water. He agreed that was permitted to get a drink of water from a water fountain but he said it was not a decent drink and did not quench his thirst. It was pointed out to him that the breath room video showed him being given two drinks water which he acknowledged but said he still did not drink enough.
53He acknowledged that there were clear instructions given to him on how to blow; that he was to blow until she told him to stop and that there was no confusion about it. She had done a demonstration for him and it was clear.
54He denied saying to the arresting officer that he had had 3 or 4 beers. He said he told the officer he had had 2 beers.
Issues
Issue 1 - Has the Crown proved beyond a reasonable doubt that the accused operated a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol contrary to s. 253(1)(a) of the Code?
Issue 2 - Has the Crown proved beyond a reasonable doubt that the accused did without reasonable excuse refuse to comply with a demand made to him by a peace officer to provide samples of his breath that in a qualified technician's opinion would enable a proper analysis to be made to determine the concentration if any of alcohol in his blood contrary to s. 254(5) of the Code?
55I will examine each issue in turn. I recognize that credibility issues associated with both the impaired charge and the refusal charge must be determined in accordance with the Supreme Court of Canada's decision in R v. W(D), [1991] 1 S.C.R. 742. In WD at para. 28, the Supreme Court of Canada said that trial judges and juries should use the following three-step process when considering credibility cases such as this one:
(1) First, if you believe the accused, you must acquit;
(2) Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit; and
(3) Third, even if you are not left with a reasonable doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt of the guilt of the accused.
56Bearing the foregoing mind, I turn to a consideration of the issues in the case.
Issue 1 - Has the Crown proved beyond a reasonable doubt that the accused operated a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol contrary to s. 253(1)(a) of the Code?
57This issue has two sub-issues: (i) was Mr. Bissoonchand operating the motor vehicle observed by Mr. Pinho?; and (ii) if so, was his ability to do so impaired by alcohol?
58Mr. Bissoonchand said he was not driving. The Crown must prove beyond a reasonable doubt that he was driving and if they cannot do so, the impaired charge would not be proved (apart from the second question of proof of impairment). The WD framework applies in determining this issue.
59I will say at the outset that I did not believe the defendant when he testified that he was not driving and I have no reasonable doubt about it. A consideration of the evidence as a whole points inescapably to the conclusion that he was driving the vehicle observed by Mr. Pinho. I consider that Mr. Bissoonchand's evidence was clearly wrong in some respects and incredible in other respects as I will set out below. My reasons for the conclusion that the defendant was driving the vehicle observed by Mr. Pinho are also set out below.
60Mr. Pinho was an excellent witness in my view. He is a professional driver who drives a tow truck for a living and has done so for 20 years. It is common ground that the vehicle that Mr. Pinho observed driving erratically is the same vehicle later found in the defendant's driveway which the police officer says the defendant was standing beside with the keys to the vehicle and keys to the house. Mr. Pinho got the license plate while he was observing the poor driving and relayed it to the 911 operator and that is how the police ended up coming to the defendant's address.
61Mr. Pinho testified that he never lost sight of the vehicle and I fully accept his evidence in this regard. The 911 tape was admitted into evidence as an exhibit on consent. This means that it was admitted for the truth of its contents subject to the question of weight and reliability when considering the evidence as a whole. Whether one considers the 911 tape as evidence of what occurred, or as simply refreshing Mr. Pinho's memory in order to give his evidence at trial, it is clear that Mr. Pinho followed the vehicle continuously and that he waited outside the defendant's house as the vehicle sat in the driveway with the driver in the vehicle behind the wheel.
62There is some conflict between the Mr. Pinho's evidence and the arresting officer's evidence as to whether or not the driver was in or out of the car when the police officer arrived. Mr. Pinho said that the driver remained in the vehicle until the officer walked up and got him to get out of the vehicle. The officer testified that the defendant was standing beside the vehicle when the officer approached. Mr. Bissoonchand said he had not been in the vehicle at all that evening and was simply standing beside it when the arresting officer walked up as he had come out of his house to check to see that this car and another vehicle were both locked. I have no doubt that Mr. Pinho waited and watched the vehicle with the driver in it until the police arrived and this is confirmed by the 911 tape and his evidence. However, It is apparent to me (based on the arresting officer's testimony that the defendant was out of the vehicle when the officer walked up to it) that the defendant exited his vehicle just before or as the officer was getting out of his cruiser and just before the officer walked up to the vehicle and that Mr. Pinho is wrong when he says that the driver was in the vehicle when the officer walked up. I note that Mr. Pinho could easily have been mistaken on this point as a lot was happening with the police arriving and looking to him to identify the subject of his complaint and the 911 operator was asking him questions at about the same time that the police were arriving. I note as well that the officer initially drove past 12 Evalene Court and the white SUV. The officer was looking to speak to the tow driver and was initially focusing on the tow truck, not the white SUV. The tow truck driver then pointed back to 12 Evalene Court where the white SUV was. I note that the officer testified that he said he saw the man in the driveway right after the officer got out his vehicle. Notably, the officer did not say that the man was out of his vehicle as the officer drove past in his cruiser.
63It is obvious to the Court as to what occurred. The driver was sitting in his vehicle before police arrived and while the tow truck driver sat there on the phone with the 911 operator looking right at the white SUV and the driver in it. The driver may have been nervous about the presence of the tow truck driver given the tow truck driver's evidence about the driver giving him the finger and almost side swiping him. The police officer drove past 12 Evalene Court and the white SUV focusing on the tow truck not the white SUV. As the police car drove by, the driver of the white SUV, seeing the police, got out of his vehicle. Shortly thereafter, the officer has his attention directed to the SUV by the tow truck driver and he got out of his police cruiser and then saw the driver standing beside the vehicle.
64Notwithstanding the error by Mr. Pinho about saying that the driver was in his vehicle as the officer walked up, the 911 tape confirms that Mr. Pinho never lost of the vehicle and supports my conclusion that Mr. Bissoonchand stayed in the vehicle in the driveway until just before the police officer got out of his cruiser and walked up the driveway. The 911 tape discloses that prior to the police arriving the tow truck driver told the 911 operator at least four times that the driver was still in the vehicle in the driveway. I note that the 911 tape does not deal with the question of whether the defendant is in or out of the white SUV when the officer walked up to it.
65I note that Mr. Pinho was never challenged on his evidence that he never lost sight of the vehicle or that he was watching the driver in the vehicle as the driver sat in the vehicle at 12 Evalene Court. For example, it was never suggested to him that he had, in fact, lost sight of the vehicle or that the driver had somehow exited the vehicle and gone into the house, without being detected by Mr. Pinho.
66Let me address Mr. Bissoonchand's evidence. As I have said above, his evidence was clearly wrong in some respects and incredible in other respects. His evidence was that he was standing in the driveway for 3 to 5 minutes staring at the tow truck driver was a fabrication and there is no doubt about it. This definitely did not occur. Mr. Pinho's evidence was clearly otherwise as confirmed by the 911 tape. At best, the defendant was out of his vehicle seconds before the police officer walked up. He was not standing in the driveway for 3 to 5 minutes staring at the tow truck driver. He was in his vehicle and he might have been, and likely was, watching the tow driver from that vantage point (i.e. sitting in the driver's seat of his vehicle parked in the driveway).
67The defendant's purported memory at trial of having consumed 1 and ½ beers that night of the Heineken brand, even though he told the officer he had consumed three or four beers, is also a clear fabrication. Mr. Bissoonchand denied telling the officer he had three or four beers that night. The officer had a note of the three or four beer reference and he had no reason to make that up.
68The defendant also testified that he was not told why he was under arrest until after he was being charged with a refusal. This is clearly wrong. I am fully satisfied that the arresting officer told him that he was under arrest for impaired driving and this was repeated to him again before he entered the breath room - a police officer can be heard telling him of the charge on the breath room video before the defendant enters - and it was repeated to him again by the breath room technician at the outset of the breath room video and again part way through the video. Again, the defendant could have testified that he simply did not remember being told what the charge was but instead he chose to testify categorically that he was not advised of why he was under arrest until after the refusal charge was laid. He was told multiple times that he was charged with impaired driving and this is captured on videotape in evidence before the Court. His evidence on this point was unreliable at best and incredible at worst.
69The defendant also testified that he was not given his rights to counsel at any time. Again, it is absolutely plain to me that this was incorrect evidence on his part. The arresting officer testified to giving him rights to counsel and had a note of it; the breath technician gave him rights to counsel and facilitated him speaking to duty counsel all of which is captured on the breath room video.
70The defendant's evidence that he had the house keys with him because he had locked the house out of habit even though he was only going outside for mere seconds to check the cars, was a clear fabrication in my view. In my view, the defendant was clearly trying to find a way to explain the evidence of the arresting officer as to why the defendant had both his house keys and the car keys in his hand in the driveway. There would be no reason to lock your house when you are stepping out on to the driveway for a few seconds. The evidence as a whole demonstrates that he was coming home and that is why he had his car keys.
71The defendant's evidence at trial concerning the numerous matters described above ranges from unreliable to incredible and and demonstrates a carelessness with the truth. I do not believe his evidence that he was not driving the vehicle that evening and I have no reasonable doubt about it.
72I have considered all of the evidence and I am fully satisfied that the Crown has proved beyond a reasonable doubt that the defendant was driving the vehicle that night and that the driving was as described by Mr. Pinho. For this conclusion, I rely on the evidence of Mr. Pinho, the 911 tape and Constable Smintich as described and explained above. Of particular relevance is the 911 tape on which Mr. Pinho repeatedly states that the driver is sitting in his vehicle in the driveway. I have dealt with the conflict on the evidence between Mr. Pinho and the arresting officer about the driver being out of the vehicle as the officer walked up to the house and I am satisfied that the driver was out of the vehicle but that he had got out only seconds before the officer came up.
73I turn to the second sub-issue namely whether it has been proved beyond a reasonable doubt that the defendant was impaired by alcohol when he was operating a motor vehicle.
74The following test for proof of impaired driving was stated by Labrosse J.A. for the Ontario Court of Appeal in R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.) at 384 and affirmed , [1994] 2 S.C.R. 478 by the Supreme Court of Canada:
In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. (emphasis added)
75In an impaired driving case, evidence of impairment post driving can be considered by the court in its assessment of the question of impairment at the time of driving: see R. v. Maharaj (2007), 45 M.V.R. (5th) 14 (Ont. S.C.J.) at para. 29 (per Durno J.). Whether the inference should be drawn that evidence of post driving impairment should apply to the accused's condition at the time of driving will depend upon the circumstances of the case including, for example, whether there is other evidence of impairment at the time of driving.
76I have concluded that the Crown has proved beyond a reasonable doubt that Mr. Bissoonchand operated a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol. Apart from the conclusion outlined above that the defendant was driving the vehicle in question, I base this conclusion on the following:
(a) Both the Crown and the defence acknowledged that the driving in this case was "horrendous". To summarize, the defendant drove his vehicle on a major roadway entirely on the wrong side of the road-he headed northbound within the southbound lanes and at numerous other times he swerved into the southbound lanes. He hit a curb. He almost sideswiped Mr. Pinho's vehicle three times. He stopped his car ten cars lengths back from two intersections for no reason. The driving took place over an extended period of time;
(b) Notwithstanding the defendant's evidence at trial that he only had one and a half beers, he told the officer that night that he had "3 or 4 beers". He must have had at least that amount. Clearly he had alcohol in his system;
(c) The arresting officer also had experience as a breath technician and he thought the defendant was impaired based on the alcohol on his breath and his unsteadiness as he looked for his licence and walked towards the cruiser;
(d) The arresting officer as well as the breath technician testified that there was some slurring of his words. It is clear to the Court from the breath room video that there was indeed slurring of his words. I have heard the defendant testify in court where his voice was clear and without any slurring of his words. It is clear to me that his speech on the breath room video including, in particular, when he was given rights to counsel and he responded, was slurred and this is a sign of impairment in the Court's view.
(e) I also accept as a sign of some impairment the difficulty in finding the license. The fact that it was dark outside may partially explain this but I note that the officer was able to identify the license for the defendant suggesting that it should have been readily apparent to the defendant; and
(f) I have also watched the defendant's walking on the breath room video and it appears slightly tentative. He does not walk with confidence. He appears slightly unstable and this is a further sign of impairment in the Court's view. The breath technician did not comment on this point but she did not necessarily have the same vantage point as the Court did in watching the video.
77I accept the defendant's evidence that his bloodshot eyes may well have been caused by his having worked as a welder either that day or on previous days. I have put that evidence that aside. I am also aware that Mr. Pinho did not observe any swaying or stumbling by Mr. Bissoonchand but he did observe the horrendous driving. A full and fair consideration of the foregoing points and a consideration of the evidence as a whole, leads me to conclude that the only reasonable inference to be drawn is that it has been proved beyond a reasonable doubt that the defendant did operate a motor vehicle while his ability to so was impaired by alcohol.
Issue 2 - Has the Crown proved beyond a reasonable doubt that the accused did without reasonable excuse refuse to comply with a demand made to him by a peace officer to provide samples of his breath that in a qualified technician's opinion would enable a proper analysis to be made to determine the concentration if any of alcohol in his blood contrary to s. 254(5) of the Code?
78The law with respect to a refusal or failure case requires that the Crown proved beyond a reasonable doubt that there was (1) a proper demand; (2) a failure or refusal by the defendant to produce the required sample (the actus reus); and (3) that the defendant intended to produce the failure (the mens rea): see R. v. Slater, [2016] O.J. No. 1592 at para 6 (Sup. Ct. per Nordheimer J.).
79Proof of the actus reus requires a consideration of the "totality of the circumstances": R. v. Bijelic (2008), 77 W.C.B. (2d) 118 at para. 30 (Sup. Ct. per Hill J.).
80Justice Code of the Ontario Superior Court has held that the mens rea component of a refusal or failure case requires a general or basic intent rather than a specific intent. The knowledge or recklessness as to the doing of the prohibited act is sufficient mens rea: see R. v. Porter, 2012 ONSC 3504 , [2012] O.J. No. 2841 at paras 34-37 (Sup. Ct. per Code J.). Justice Nordheimer of the Ontario Superior Court in Slater appears to agree with Justice Code on this point: see Slater at paras. 9-10, and 13-14. The point agreed between Justices Code and Nordheimer is that the mens rea of the refusal will be made out where there is a failure to provide a sample after multiple attempts and absent other explanations for the failure arising in the context of the evidence as a whole. In these circumstances, the natural inference that arises is that the accused intended the consequences of his conduct: see Slater at paras. 10, 13 and 14.
81Each case will of course turn on its own facts but the factors to be considered in determining whether the mens rea and actus reus are made out will include: the explanation given to the accused about the testing procedure; evidence about whether the accused understood the instructions given; evidence of the accused's efforts or lack thereof to give the sample; the amount of time given to the accused to provide the sample and the number of opportunities given; whether the accused was warned that the failure to provide a sample was a criminal offence; whether there was final warning; and the words spoken during the testing procedure: see R. v. Tavangari, [2002] O.J. 3173 (C.J.) at para. 16 (per Kenkel J.).
82The defence of "reasonable excuse" arises only after the Crown has proved a proper demand and a failure or refusal. This issue "stands outside of the requirements that must be met": see Porter at para. 30 quoting R. v. Moser (1992), 71 C.C.C. (3d) 165 at para. 33 (per Doherty J.A. in a concurring judgment) and R. v. Taraschuk (1977), 25 C.C.C. (2d) 108 (S.C.C.). There is binding authority to the effect that any such reasonable excuse places a burden of proof on the defence on a balance of probabilities (see Porter at para. 38 and the various authorities referred to therein). There is some suggestion in the case law that the law is moving away from placing a persuasive burden of proof on the defence in respect of the "reasonable excuse" provision and may instead only impose an evidentiary burden to raise an air of reality, with the Crown having to prove beyond a reasonable doubt that there is no reasonable excuse where an air of reality to the defence is established: see Porter at para. 42 and see R. v. Dolphin, 2004 MBQB 252 , [2004] M.J. No 433 at para. 27 (Q.B. per Scurfield J.).
83The determination of the refusal or failure issue turns in part of the question of credibility. I have already noted that I believe the defendant was untruthful in a number of significant respects in his evidence at trial including when he testified that he had not been driving that night. I have mentioned as set out above under the first issue, a number of other examples of credibility and reliability problems with the defendant's evidence and I have considered those examples under the second issue as well in concluding that the defendant's evidence on the refusal issue is incredible.
84Applying the foregoing legal framework to the case at bar, I am satisfied that the Crown has proved beyond a reasonable doubt that the mens rea and actus reus of the offence of a refusal or failure to comply with a demand for a breath sample has been established. There is no dispute that there was a proper demand. The only issues are whether the mens rea and actus reus of the failure are made out. I note as well that there is no dispute that the instructions given to the defendant as to how to provide a sample were clear and were understood by him. Notwithstanding these clear instructions which were understood by him, the defendant repeatedly failed to provide a sample. It is apparent from the breath room video and the testimony of the breath technician that he was blowing air around the mouthpiece rather than into it. On many occasions, he failed to even cause the device to omit a tone meaning that he was not blowing hard enough or not blowing it all. His cheeks were puffy suggesting to the Court that he was not blowing properly. He was given more than 10 opportunities to blow over a 12 minute period. This was more than ample time and opportunity to provide the requested sample. He was warned multiple times that if he failed to provide a sample he would be charged criminally. He was given one last opportunity and did not provide a sample although he purported to blow into the device.
85The defendant said a number of times on the breath room video that "I am blowing" when it is clear to me that he was not blowing or certainly not blowing in the way he was instructed do so.
86In my view, the only reasonable inference to be drawn on the evidence as a whole is that the defendant intended to bring about the failure to produce a sample and he did indeed fail to produce a sample. In the circumstances, the mens rea and actus reus have been established beyond a reasonable doubt.
87The defendant suggested at trial that he was suffering from anxiety and that this prevented him from blowing. I don't doubt that he would have been nervous at the police station as anyone would. However, I do not accept that anxiety caused him to be unable to blow. I note that he has never been treated medically for anxiety.
88The defendant also suggested that he is having medical testing done to check if his breathing has been adversely affected by his work as a welder. I note that at the time of the breath room video, he was asked if he had a medical condition which would prevent him from being able to provide a proper sample and his only answer was that he had been a forceps baby 40 years earlier. I don't believe or have a reasonable doubt about whether he had some medical inability to be able to provide a breath sample.
89The question arises as to whether or not a "reasonable excuse" exists namely on the anxiety or the breathing issue described above. The law binding on this Court is that the onus is on the defendant to establish any such reasonable excuse on a balance of probabilities. He has not come close to doing so. Even applying the more modest air of reality test to this issue, there is no air of reality to the reasonable excuses suggested.
Conclusion
90For the reasons outlined above, there will be a conviction on the impaired driving charge and on the refusal charge.
Released: March 8, 2017
Justice Paul F. Monahan