Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
ā and ā
Aatef Wali
Before: Justice M.M. Rahman
Reasons for Judgment released on: April 10, 2018
Counsel:
- Kerry Watson, counsel for the Crown
- Harval Bassi, for the defendant
I. Overview
1Shortly after 8:30 a.m. on a Saturday December morning, Peel Regional Police Constable Bryan Duykers found a car stopped at a green light in the middle lane of a busy intersection. Cst. Duykers approached the driver's side of the car. Inside he saw the defendant, Aatef Wali, and a passenger asleep inside. The car was in drive. The officer opened the driver's side door and shook Mr. Wali to wake him. He had Mr. Wali accompany him to his cruiser.
2The officer demanded that Mr. Wali provide a breath sample into an approved screening device (ASD). After eight unsuccessful attempts, and a warning to Mr. Wali about the consequences of refusing, Cst. Duykers arrested Mr. Wali for refusing to comply with an ASD demand.
3Mr. Wali testified in his own defence. He said that he tried to comply with the officer's demand but a combination of asthma symptoms and anxiety thwarted his ability to provide a sample.
4These reasons explain why Mr. Wali is guilty of refusing to comply with an ASD demand.
II. Summary of the Evidence
A. The Traffic "Stop"
5Cst. Duykers came across Mr. Wali's car at 8:37 a.m. on Saturday, December 5, 2015. The car was stopped at a green light in the middle lane of Erin Mills Parkway, a busy road in Mississauga. When Cst. Duykers approached the car, he saw Mr. Wali in the driver's seat, along with a male passenger. Both were asleep. Cst. Duykers opened the driver's door and noticed the car was in drive. He was concerned about startling Mr. Wali, so he shook him to wake him up. Mr. Wali woke up immediately, and put the car in park as the officer asked him to.
6Mr. Wali accompanied Cst. Duykers to the police cruiser. Based on the odour of alcohol, and Mr. Wali's statement that he had some drinks the previous night, Cst. Duykers demanded that Mr. Wali provide a breath sample into an ASD. Cst. Duykers did not have an ASD with him, but one arrived shortly after he made the demand.
7Mr. Wali testified that he had fallen asleep behind the wheel because he was very tired. Mr. Wali had been at a friend's place in Oakville the previous evening. He went there after a long day at work. He started drinking at around 9:00 p.m. and had three or four glasses of wine. He said he had his last drink at about 11:00 p.m. He was concerned about driving home at that point, so he decided to spend the night at his friend's place and leave early the next morning. Mr. Wali, who is a real estate agent, had a showing at 10:30 a.m. the next morning. He testified that he planned to leave his friend's place early in the morning, go home to shower and change, and then go to his office before his showing.
8Mr. Wali testified that he went to sleep at about 2:30 a.m. and woke up at 7:00 a.m. He left Oakville at about 7:30 or 8:00 a.m. His friend, Khuran, accompanied him. Mr. Wali did not have any breakfast before getting on the road. He said that he was very tired as he drove. Khuran slept for the entire trip. Mr. Wali remembered exiting the QEW at Erin Mills and then driving north. He stopped his car at the red light at Credit Valley.
9Mr. Wali believed that he must have dozed off because the next thing he recalled was a police officer waking him up by knocking on his window. He testified that he was scared, shocked and nervous to have been woken up by a police officer in the middle of the road. Mr. Wali also testified that the traffic on the road at that time also heightened his anxiety. After asking Mr. Wali for his identification and whether he had been drinking, the officer asked Mr. Wali to accompany him to his police cruiser to do a breath test.
10Mr. Wali testified that he was seated in the back of the cruiser and left there for about five minutes, while Cst. Duykers was doing something outside. Mr. Wali was not handcuffed but he felt anxious because he was in a "controlled environment" and because of the traffic around him. He said cars were honking because the cruiser was blocking a lane, and some cars were driving fast past the cruiser.
B. The Attempts at the Test
1. The First Attempt
11Cst. Duykers demonstrated to Mr. Wali how to provide a sample into the device at 8:48 a.m. Cst. Duykers testified that he put a mouthpiece into the device and blew into it. He estimated that he blew into the machine for three to four seconds. The officer said that he would have explained during this demonstration that Mr. Wali should place his mouth on the mouthpiece and blow consistently, as hard as he could. Cst. Duykers also explained that he would "coach" a person blowing into the ASD by telling them to keep going until he told them to stop. Cst. Duykers testified that Mr. Wali did not raise any concerns with the officer, nor did he tell the officer that he might have any difficulty providing a breath sample.
12Cst. Duykers testified that on his first attempt to blow into the ASD, Mr. Wali barely placed his lips on the device. Mr. Wali began blowing into the device but then pulled away. This resulted in a "blow interruption" message on the ASD. Cst. Duykers explained that a blow interruption message will occur when a person blowing into the machine does not provide a sufficient volume of air into the ASD. Cst. Duykers could not say how long Mr. Wali blew into the machine and agreed it could have been as long as two seconds.
13Mr. Wali himself testified that he did not tell the officer anything about his asthma or any difficulty breathing at that point. He said that he was nervous and his heart was racing. He testified that he had never been in that situation before, although he acknowledged, after a few clarifying questions, that he had been arrested twice before and that he "must've been" in the back of a cruiser before. Mr. Wali agreed that Cst. Duykers demonstrated how to blow into the ASD and told him to blow long and hard into the machine and that the explanation was straightforward and that he had no questions.
14Mr. Wali testified that Cst. Duykers put the machine through the window dividing the front and back seats for Mr. Wali to provide a sample. The officer told Mr. Wali to keep blowing three times. Mr. Wali estimated that he blew for at least three to four seconds. He said after he had blown, the machine was making an on and off beeping sound. The officer told Mr. Wali he would have to blow again and that he would have to blow long and hard.
15Mr. Wali testified that he was having a hard time breathing at this point. He testified that, after the first attempt, he told the officer he was not feeling well and asked if he could move the cruiser off the road to a nearby gas station parking lot. He disagreed that he only asked this of Cst. Duykers after all of his attempts.
2. Second Attempt
16Cst. Duykers gave Mr. Wali the ASD again. He testified that before this second attempt, he would have told Mr. Wali to keep blowing until he had provided a successful sample. On his second attempt, Mr. Wali barely put his mouth on the mouthpiece. He started to blow very lightly, and then pulled away from mouthpiece. This attempt resulted in another blow interruption.
17Mr. Wali testified that he did the same as he had done on his first attempt. He estimated that he blew for three to four second again. He said that, after he blew, the machine produced the same on and off beeping noise as his previous attempt.
3. The Third Attempt
18After the second unsuccessful attempt, Cst. Duykers explained to Mr. Wali the offence of refusing or failing to provide a sample. Cst. Duykers testified that he spent two to three minutes explaining to Mr. Wali what he had to do. At 8:53 a.m., the officer again demonstrated for Mr. Wali (at Mr. Wali's request) how to provide a successful sample into the ASD. He told Mr. Wali to take a deep breath in, make a tight seal with his mouth around the mouthpiece, and blow.
19Once he had finished this demonstration, Cst. Duykers gave Mr. Wali the ASD again at 8:54 a.m. Mr. Wali did not blow into the device. Instead, he said to Cst. Duykers "You're scaring me. I have asthma. I blew into your machine and you're intimidating me." Cst. Duykers testified that he still wanted to get a successful sample. He gave Mr. Wali the device again. Mr. Wali put his lips on the device, but did not produce enough air to get any response from the machine. The lack of any response from the machine meant that Mr. Wali had not blown any air, or an insufficient amount of air, to even cause the machine to register a blow interruption, as happened on the first two attempts.
20At 8:56 a.m., after this third unsuccessful attempt, Cst. Duykers testified that Mr. Wali said that he could not blow that much. Cst. Duykers testified that he did not notice Mr. Wali show any symptoms of having difficulty breathing. The officer cautioned Mr. Wali about the offences of failing or refusing to comply with the ASD. Mr. Wali responded that he was not refusing. Cst. Duykers decided to change the mouthpiece on the ASD, just in case there was an issue with it.
21Mr. Wali testified that, between his second and third attempts, he told the officer that he was not feeling well and that he had asthma and anxiety. He testified that he again asked the officer if they could move to the nearby gas station. Mr. Wali said that Cst. Duykers tone became aggressive and that he told Mr. Wali that he would get charged if he did not blow. Mr. Wali said that he was feeling short of breath at this time and that he told the officer he was not able to breathe as well as he usually could. He said that Cst. Duykers was not really paying attention to his concerns and was back and forth on his radio and looking at the ASD.
22Before his third attempt to blow, Mr. Wali asked the officer for another demonstration. The officer demonstrated it again, but did not tell Mr. Wali how long he needed to blow for. Mr. Wali testified that his anxiety was getting worse, and that in addition to shortness of breath, he had started sweating.
23Mr. Wali testified that on his third attempt, he blew for three or four seconds again. He said that the officer did not say much to him after he blew, just that it was not enough and that he would have to do it again. Mr. Wali testified that Cst. Duykers was becoming frustrated. The officer's frustration, combined with the increased traffic, made Mr. Wali more nervous to the point that he was shaking. Mr. Wali testified after each attempt, the officer would be on his radio or would be making notes.
4. Fourth Attempt
24At 8:57 a.m., Mr. Wali made his fourth attempt to provide a sample. Cst. Duykers testified that on this attempt, Mr. Wali pulled away after starting to blow, resulting in another blow interruption message. Cst. Duykers did not note how long Mr. Wali blew into the machine and agreed it could have been two seconds. Mr. Wali said to the officer "Sir, I have serious anxiety." Cst. Duykers testified that he still did not notice that Mr. Wali was having any breathing problems.
25Mr. Wali testified that he did the same as he had done on his previous attempts. He said that he was coughing after this attempt and also coughed when he was first given the machine. He testified that he was shaking and sweating and was short of breath. Mr. Wali said that the officer told him "listen, we have to do this again. You have to blow long and hard." Mr. Wali told the officer "I'm doing exactly what you're telling me to do."
5. Fifth Attempt
26The officer then gave Mr. Wali the ASD again for a fifth attempt. Mr. Wali blew into the machine for about one second, which resulted in another blow interruption. Cst. Duykers testified that, on average, a person would have to blow about three to four seconds to provide a successful sample.
27Cst. Duykers said that he told Mr. Wali that he had not blown hard enough into the machine. At 9:01 a.m., the officer again cautioned Mr. Wali about the offence of failing or refusing to provide a sample. Shortly after that, at 9:02 a.m., Mr. Wali told the officer he was feeling tightness in his chest. Mr. Wali also complained that he was not feeling well, that the officer was making him feel uncomfortable and that he had already blown five times.
28Mr. Wali testified that his anxiety and asthma symptoms had gotten worse by this point. He said that he told Cst. Duykers this, but the officer did not pay attention. He testified that he blew for three to four seconds again. Mr. Wali testified that the officer "wouldn't tell me if it was a blow interrupt or anything like that" just that it was not enough.
29Mr. Wali said that he was coughing and wheezing and that he had tightness in his chest. He was having difficulty breathing and his palms were sweaty.
6. Sixth Attempt
30At 9:04 a.m., Cst. Duykers testified that he again gave Mr. Wali the ASD. Mr. Wali blew into the machine, but again did not blow enough air to register any reading on the device. As a result, Cst. Duykers told Mr. Wali to blow again.
31Mr. Wali said that he blew into the ASD for at least three to four seconds. He said it was tough for him to blow into the machine and that he was coughing and having trouble breathing.
7. Seventh Attempt
32At 9:05 a.m. Mr. Wali made another attempt. Cst. Duykers said that Mr. Wali blew for approximately one second and then stopped blowing. The device again registered a blow interruption.
33Mr. Wali said that his seventh attempt was the same as the sixth. He said Cst. Duykers gave him the machine and was explaining to him again how to blow into the machine. The officer showed him the mouthpiece and told him how to blow into it.
8. Eighth Attempt
34At 9:06 a.m., Cst. Duykers said that he told Mr. Wali that he was giving him one more chance to provide a sample, or he would charge him with failing to provide, or refusing to provide, a sample. The officer gave Mr. Wali the device again. Mr. Wali blew for about two seconds and then stopped blowing. Once again, the ASD registered a blow interruption. Cst. Duykers testified that he did not note anything about Mr. Wali having any breathing difficulties.
35Mr. Wali said that being told that it was his last chance made his anxiety much worse. Mr. Wali said he simply wanted to provide a sample and get out of the situation. He testified that he asked again if Cst. Duykers could pull into the gas station. He said that Cst. Duykers refused and told Mr. Wali he was detained and so he could not move.
36Mr. Wali said that he blew for as long as he could and "like my life depended on it." He estimated that he blew for at least five seconds. Mr. Wali said that the officer thought he had provided a successful sample because Cst. Duykers initially said "okay good." Cst. Duykers then told him he was being charged.
C. Mr. Wali is Arrested
37Because of his failure to provide a successful sample, at 9:07 a.m. Cst. Duykers told Mr. Wali he was under arrest for "fail to provide or refuse ASD." Cst. Duykers began reading Mr. Wali his right to counsel and caution. At 9:09 a.m., Mr. Wali told the officer he needed to go to the hospital. Cst. Duykers believed that when Mr. Wali said this, he was grabbing at his chest. The officer said that he did not note Mr. Wali wheezing or otherwise having difficulty breathing. In cross-examination, Cst. Duykers agreed that he may have been the one to ask Mr. Wali if he wanted to go to the hospital.
38Cst. Duykers radioed for an ambulance at 9:10 a.m. Cst. Duykers noted that Mr. Wali's breathing seemed heavy and that Mr. Wali asked the officer to pull off the roadway into a nearby gas station.
39At 9:20 a.m., EMS personnel arrived and Mr. Wali was taken from Cst. Duykers' police cruiser to the ambulance. Mr. Wali was transported to Credit Valley hospital by EMS at 9:30 a.m. Because the hospital was close by, they arrived there a minute later.
40Mr. Wali testified that, after he told Cst. Duykers he was coughing, the officer asked him if he wanted an ambulance. He said it took about ten minutes for the ambulance to arrive. He said when the ambulance arrived, he was placed on a stretcher and was placed in the ambulance and given oxygen. While he was on the stretcher, he recalled hearing Cst. Duykers tell the paramedics "he's fine, don't worry about it." Mr. Wali believed that the Cst. Duykers was pretty upset.
D. Events at the Hospital
41Once Mr. Wali was in the hospital, Cst. Duykers said that he was no longer concerned about his health. The officer proceeded to read Mr. Wali his rights to counsel and caution again. Mr. Wali was answering Cst. Duykers' questions and he did not appear to have any noticeable difficulties breathing, although Mr. Wali did clasp his chest.
42At 9:55 a.m., after he had been seen by hospital staff, Mr. Wali was transferred from a stretcher to a wheelchair. Cst. Duykers provided him with an appearance notice and a provincial offence summons for driving while suspended. At some point while at the hospital, Cst. Duykers said that Mr. Wali offered to try to blow again. As Cst. Duykers was leaving the hospital, he noticed Mr. Wali taking off his heart monitor pads as if he was preparing to leave.
43Mr. Wali testified that while he was waiting for the doctors in the waiting area, Cst. Duykers came to see him with another officer. He said that Cst. Duykers tossed a summons on him and that the officer seemed really upset at the time. He said that Cst. Duykers looked at the other patients and loudly told Mr. Wali"these guys are supposed to be here, not people like you." Mr. Wali disagreed that he took any medical equipment off. He said that he was waiting to see the doctor and could not leave the hospital because he had been admitted.
E. Mr. Wali's Medical Conditions
44Mr. Wali was diagnosed with asthma at age six. Mr. Wali said that he had prescriptions for asthma puffers at the time and that he had two puffers at the time. He kept one at his home and the other at his office. He did not have his puffer with him on December 5, 2015. Mr. Wali testified that he kept a puffer with him at times and that he would use it a handful of times a week.
45Mr. Wali explained that he had been diagnosed with anxiety when he was in high school. He had taken prescription medication (Xanax) for it, but stopped taking it after university because of its side effects.
46Mr. Wali filed a doctor's letter as an exhibit at trial. The letter explained that he had asthma and that stress causes his conditions to get worse and his symptoms to get more severe. The letter also said that puffers should be used regularly to relieve symptoms. He also filed a prescription from September 2016 for Ventolin and Flovent, both of which are asthma medications delivered through a puffer.
47Mr. Wali explained that, despite his symptoms, he did not ask for medical assistance at all during any of his attempts because he did not believe he could.
III. Positions of the Parties
48Mr. Bassi, on behalf of Mr. Wali, argued that his client did not intentionally refuse to comply with the breath demand. Mr. Bassi said that his client's anxiety and breathing difficulties combined to make it impossible for him to comply with Cst. Duykers' demand. Mr. Wali, he said, was clearly producing some air flow and breathing into the machine, since it registered a blow interrupt on six occasions. Mr. Bassi observed that there is no dispute that Mr. Wali told the officer he was feeling anxious and even asked if the cruiser could be moved to a parking lot from its location on a very busy thoroughfare. Mr. Bassi also noted that, after Mr. Wali had been charged, there would be no reason for him to go to the hospital and miss the showing he had scheduled that morning.
49Crown counsel, Ms. Watson, argued that Mr. Wali was feigning his anxiety and inability to provide a breath sample. Ms. Watson pointed to the fact that this was not Mr. Wali's first time in the back seat of a police cruiser, so it was not so unfamiliar to him that it would make him nervous. Ms. Watson also noted that Mr. Wali pulled his mouth away from the ASD on his first attempt when, on his own evidence, he was not feeling any medical distress. That first attempt, she said, is telling about Mr. Wali's true intention. Ms. Watson also observed that, despite Mr. Wali's coughing, wheezing and shortness of breath, he was somehow able to carry on a conversation with the officer.
IV. Analysis
50As Mr. Bassi noted in his submissions, the law is not entirely clear about where the onus lies where, as here, a defendant claims an inability to comply with a demand because of a physical or health problem.
51One line of authority holds that symptoms like Mr. Wali said he was suffering, negate the mental element of refusing to comply with a demand.[1] In that case, the onus would be on the Crown to prove that the defendant intended to refuse or fail to provide a sample. The second line of authority holds that the mental element of the offence requires that defendants only have knowledge that they are not complying and that they need not have it as their purpose to fail to comply.[2] In such cases, a problem like Mr. Wali's would be a "reasonable excuse" where the defendant would carry the onus on a balance of probabilities. I agree with Mr. Bassi that the first line of authority governs.[3]
52It seems logical that where a defendant testifies that a physical problem prevents him or her from being able to provide a breath sample, that failure is not a result of the defendant's intention to refuse the request. Quite the opposite, the defendant's intention is to comply with the demand, but that intention is frustrated by his or her physical condition. In this regard, I adopt the reasoning of Paciocco J. (as he then was) in R. v. Soucy that a proper application of mens rea principles requires the Crown to prove that the defendant refused the test "on purpose."[4]
53In this case, Mr. Wali's evidence about his anxiety and asthma relates to a lack of intent to commit the offence. If he was overcome with anxiety or asthma symptoms, he would not be guilty because he did not intend to refuse to comply with the demand or intentionally fail to provide a sample. Indeed, on Mr. Wali's evidence, he was trying to comply, but could not. The question in this case is whether Mr. Wali's failure to provide a sample was intentional. In my view it was.
54I do not believe Mr. Wali's evidence that he was unable to provide a sample because he was suffering from anxiety and asthma symptoms. While I believe that Mr. Wali may have asthma, I do not believe it was affecting his ability to blow into the ASD. Moreover, while Mr. Wali may have been somewhat anxious because of the situation he was in, I do not believe that his anxiety was such that it prevented him from providing a sample, nor do I believe that his anxiety aggravated his asthma such that he was wheezing and unable to blow steadily into the ASD. Rather, Mr. Wali was most likely nervous because he knew he had been drinking the night before, was still feeling the effects of alcohol, and was concerned that a police officer had just discovered him passed out at a green light in the middle of a busy road.
55If Mr. Wali's asthma was as bad as he claimed, I find it strange that he would not carry his puffer with him. However, even if I accepted that he simply forgot to carry it with him, I would reject his evidence for other reasons.
56First, Mr. Wali said nothing to Cst. Duykers before his first attempt about his asthma, or that he was otherwise feeling nervous. This even though he said he was feeling anxiety from the outset because of the traffic. Also, because Cst. Duykers was taking contemporaneous notes (even according to Mr. Wali's evidence) I find that his evidence is more reliable about the timing of Mr. Wali's comments. Cst. Duykers testified that Mr. Wali did not tell him about breathing difficulties until his third attempt, and did not ask him to move to the gas station until after all of his attempts. Given how nervous and tired Mr. Wali said he was at the time, I doubt that his recollection of the timing of various events is as accurate as Cst. Duykers.
57Second, Mr. Wali's evidence of his breathing problems is at odds with his evidence that he was certain he blew for three to four seconds. On the one hand, he claimed to have great difficulty breathing to the point that he was audibly wheezing. On the other hand, he claimed he was blowing into the machine for three to four seconds on each attempt and was adamant that he was not only blowing for one second.
58In the same vein, it is difficult to reconcile Mr. Wali's testimony about his wheezing and coughing with his evidence about speaking with Cst. Duykers. On his own evidence, Mr. Wali spoke to the officer about his breathing difficulties, requested that the officer move to the gas station parking lot, and asked for a second demonstration of the ASD. Mr. Wali did not explain how he was able to make these requests while wheezing or gasping for air. Further, Cst. Duykers would no doubt have noticed if Mr. Wali's speech was interrupted by gasping, coughing or wheezing. I do not believe that the officer would have simply ignored Mr. Wali in medical distress in the back of his car.
59Third, and more importantly, Mr. Wali was strangely evasive and unclear in his testimony about having been arrested before and having had to provide a breath sample before. When first asked by Mr. Bassi about whether being in the back of the police car was a new situation for him, which he had never been in before, he said it was. Mr. Bassi pressed him on whether he had been arrested before. After first saying he had not, he then admitted he had been once when he was 21, and then, when pressed further, he said twice. He then acknowledged that he "must've been" in the back of a police car before. Later, in cross-examination, he said he had been arrested on one occasion and that he had not been in the back of a cruiser.
60In cross-examination, when Ms. Watson first put to him that he had provided a breath sample before, he agreed. He then said he had not had to provide a breath sample when he had been arrested before in 2012, but agreed he had been in the back of a police cruiser.
61In my view, Mr. Wali was being evasive because he was trying to minimize his prior involvement with police, to bolster his claim that he was feeling extreme anxiety in the back of Cst. Duykers' cruiser. His own lawyer had difficulty getting a straight answer out of him. Very soon thereafter, when cross-examined by Crown counsel, he still could not keep straight the number of times he had been arrested, or in the back of a cruiser. This aspect of his evidence was troubling and satisfies me that he is not truthful.
62Mr. Wali's evidence is not credible. I reject his explanation about his asthma symptoms interfering with his ability to provide an ASD sample, and am not left in a reasonable doubt by it. I am convinced beyond a reasonable doubt that Mr. Wali was feigning an inability to blow and he had no intention of providing a sample into Cst. Duykers' ASD.
63Finally, I accept Cst. Duykers evidence about what happened, beyond a reasonable doubt. Even on Mr. Wali's evidence, Cst. Duykers was making notes throughout their interaction. I find that the officer's recollection of events is reliable and that his observations of Mr. Wali pulling away from the machine, and not blowing for very long into the machine, is believable. Mr. Wali is guilty as charged.
Released: April 10, 2018
Justice M.M. Rahman
Footnotes
1R. v. Soucy, 2014 ONCJ 497; R. v. Sullivan, [2001] O.J. No. 2799 (C.J.); R. v. Lewko, 2002 SKCA 121; R. v. Greenshields [2014] O.J. No. 475 (C.J.); R. v. Stanley (2003), 42 M.V.R. (4th) 95 (Sup. Ct.).
2R. v. Porter, 2012 ONSC 3504; R. v. Plestas, 2014 ONSC 1568.
3Because there are conflicting decisions at the summary conviction appeal level, which is binding on this court, it is open to me to follow whichever line of authority I find most persuasive: R. v. Millar, 2012 ONSC 1809 at para. 28; R. v. Hummel, [1987] O.J. No. 763 at para. 10.