Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Lecrisha Saint
Before: Justice Paul F. Monahan
Trial heard on: February 28 and March 1, 2018
Reasons for Judgment on the Trial Proper
Released on: April 9, 2018
Counsel:
Ms. A. Simitsis for the Crown
Mr. D. Gravesande for the defendant
Introduction
1Ms. Lecrisha Saint is charged that on or about May 22, 2016 in the City of Brampton that she did without reasonable excuse refuse to comply with a demand to her by a peace officer to provide forthwith a sample of her breath as in the opinion of the peace officer was necessary to enable a proper analysis of her breath to be made by means of an approved screening device ("ASD") contrary to section 254(5) of the Criminal Code.
2There was no Charter application on the trial proper. There was a s.11(b) Charter application which I dismissed for separate oral reasons.
3There were two witnesses at trial: Officer Taylor Halfyard, the arresting officer and the defendant, Ms. Saint.
Facts and Evidence
4Many of the facts are contested. For example, Ms. Saint disagreed in her testimony at trial as to what the officer testified she said to him when she was pulled over and thereafter; she also denied she was speeding as she entered the RIDE stop. She also disagreed with the officer's evidence that she had alcohol on her breath and as to the number of opportunities she was given to provide a sample.
5I will set out a chronology that arises from the evidence with respect to the events of May 22, 2016. To the extent that there are disputed facts which it is necessary that I determine, I will determine them in the course of these reasons.
Timeline of Events
6:41 AM: It is agreed that Ms. Saint was pulled over at a RIDE check being operated with respect to vehicles exiting the northbound Highway 410 exit to Williams Parkway in the City of Brampton. There were two police cruisers involved: one being driven by Officer Halfyard and the other being driven by another officer. I note that the officers were using their vehicles to block two out of the three lanes.
It is agreed that Officer Halfyard spoke to Ms. Saint and asked her if she had been drinking and she said she had not been drinking. Officer Halfyard testified that he smelled alcohol on the breath of Ms. Saint. Ms. Saint testified that she had not been drinking that morning or the night before. Whether Officer Halfyard did or did not smell alcohol on Ms. Saint's breath is an important factual question that must be answered and I will determine it below.
6:43 AM to 6:46 AM: It is agreed that Ms. Saint ended up in the back of the officer's police cruiser and was subjected to an ASD demand. Officer Halfyard testified that he gave her six opportunities to blow and that she put her mouth on the device but that she did not blow long or hard enough. He said she was feigning efforts to blow. He said there were three opportunities at 6:43 AM; one opportunity at 6:45 AM and two more at 6:46 AM. There was no sound generated by the ASD other than once where it sounded for about just under a second according to the officer. This blow generated a "blow interruption" reading from the ASD meaning that she was making efforts to blow but the sample provided was not sufficient. Officer Halfyard said that a person must blow for about two seconds to generate a proper sample and that a sound will be generated from the device when the person is blowing. Ms. Saint said she was not given six opportunities to blow. She said she was given approximately three opportunities. Ms. Saint testified that she did not feign attempts to blow and provide a sample. She said she did her best. She said that at the time she was suffering from a sore throat, cold and fever and had been taking antibiotics since May 14. She testified that she sought further medical assistance in this regard on or about June 2, 2016.
6:46 AM: Officer Halfyard stated that he gave her a warning that if she failed to provide breath sample it would be a criminal offence and that she would face the same consequences as if she had failed the ASD device test. According to the officer she then twice said to him "that's fine, yes, I'll call who I will have to call". Ms. Saint testified that she did not say this.
6:49 AM: The arresting officer said that he told her that he was going to give her a final opportunity to blow to which she responded "I've already done what I have had to do. All I was doing was dropping a friend home". Ms. Saint denied saying this.
6:50 AM: It is agreed that Ms. Saint was arrested for failing to provide a breath sample. The officer said she was handcuffed to the front when she was arrested. Ms. Saint said she was handcuffed before she blew into the device.
6:52 AM to 6:56 AM: It is agreed that rights to counsel and caution were provided. It is also agreed that Ms. Saint indicated that she wished to call a paralegal, Sunny Spadafora, who is apparently a former Justice of the Peace.
7:03 to 7:10 AM: It is agreed that Ms. Saint spoke to Mr. Spadafora privately using her cell phone which was provided to her.
7:10 AM: It is agreed that around this time, Ms. Saint asked to blow again and the officer said no, because he said she was already under arrest.
7:12 AM: Officer Halfyard spoke directly to Mr. Spadafora at the request of Ms. Saint. It is unclear what they spoke about but it may have been about the request to blow again.
7:29 AM: Officer Halfyard released Ms. Saint on a promise to appear.
Law with Respect to a Failure or Refusal to Provide a Breath Sample
(i) Statutory Provisions
Section 254(2) of the Code provides in part as follows:
If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle … the peace officer may, by demand, require the person…:
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
(5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.
(ii) General Legal Principles
6Like any criminal case, the burden of proving all of the elements of the offence beyond a reasonable doubt is on the Crown throughout: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152 at para. 9.
7The 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.).
8Proof 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.).
9Justice 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.
10Each 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.).
11The 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 R. v. 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).
(iii) Further Request to Blow
12There is case law to the effect that even once a person has been placed under arrest for refusing or failing to provide a breath sample, they may make a further request to provide a sample and if the officer does not permit them to do so it may be that no failure or refusal will be established. The determination of this issue in any given case will depend upon all of the circumstances and a number of factors including how much time has elapsed since the last "refusal or fail"; whether the equipment is still easily available; and whether the detainee was warned prior to the last "refusal or fail" that it would be their last opportunity: R. v. Domik, [1979] O.J. No. 1050; 2 M.V.R. 301 (Ont. H.C.J.), affirmed [1980] O.J. No. 643 (C.A.); and R. v. Tynkaluk (1989), 16 M.V.R. (2d) 243; and R. v. Chance, [1997] O.J. 4939 (C.J.).
Application and Analysis
13As indicated above, the Crown must prove all of the elements of the offence beyond a reasonable doubt. As indicated above, in the case of a refusal, one of those elements is proof of a proper or valid demand. In order for there to be a valid demand, the Crown must establish that the requirements of section 254(2) are met including that the officer must have "reasonable grounds to suspect that a person has alcohol or a drug in their body". It is clear that the "reasonable suspicion" standard is much lower than "reasonable and probable grounds to believe": see Justice Joseph Kenkel, Impaired Driving in Canada (2012/2013 edition) at page 10.
14In this case, the officer said that he had a reasonable suspicion that Ms. Saint had been operating a motor vehicle with alcohol in her body. In arriving at this reasonable suspicion, the officer said that he relied on the odour of alcohol he said he detected emanating from her breath; her watery eyes; the fact that she exited the highway at a high rate of speed greater than that of the posted speed limit and how her vehicle had almost come into contact with his police cruiser.
15While the officer was not specifically asked this question, it is my view that the alleged smell of alcohol on her breath was absolutely critical to the reasonable suspicion he said he had. Without it, he would not have said that he had a reasonable suspicion that she had alcohol in her body. I note in particular that as concerns the exiting the highway at a high rate of speed, the officer was unable to say what the posted speed limit was nor was he able to give an estimate as to what speed she was going. In these circumstances, no reliance can reasonably be placed on the alleged "speeding" issue as supporting the reasonable suspicion that she had alcohol in her body. Similarly, the watery eyes meant little to the officer as one might reasonably expect. The fact that he thought she had almost hit his cruiser again, without the alcohol on her breath, meant little and in my view would not support the reasonable suspicion that she had alcohol in her breath. I note that Ms. Saint denied almost hitting his vehicle and no charge was laid for careless driving or other similar type offence. I note further that the officer testified that there were three lanes of traffic and that he and his partner were blocking two lanes of the three lanes of traffic. It is not particularly surprising that when one is exiting a 400 series highway (where it is common ground that the posted speed limit is 100 km an hour), and the person suddenly comes upon a RIDE check in which the police officers are blocking two of the three lanes, that a person might seem to come close to a police vehicle.
16The bottom line is this in my view: on the facts of this case, in the absence of detecting alcohol on her breath, the officer would not have had a reasonable suspicion that Ms. Saint had been operating a motor vehicle with alcohol in her body and would have had no basis to make a valid ASD demand in this case. I recognize that it will not always be the case that a peace officer must smell alcohol on a person's breath or have the person admit that they had been drinking in order to form a reasonable suspicion that they have alcohol in their body. In my view, it is the case here because the other facts the officer relied upon provided little or no support for the reasonable suspicion that she had alcohol in her body.
17As I have already said, to prove a valid demand in this case, the Crown must prove that the officer had a reasonable suspicion that Ms. Saint had alcohol in her body at 6:41 AM.
18There is no dispute that Ms. Saint told the officer that she had not been drinking. If she had said that she had been drinking, that would have supported a reasonable suspicion that she had alcohol in her body and thereby supported a valid demand. Having told him she had not been drinking, on the facts of this case, the only way the officer could require her to provide a breath sample into an ASD would be if he smelled alcohol on her breath. As it happens, that was the officer's evidence.
19The Crown must prove that the arresting officer had a subjective belief that he smelled alcohol on her breath as he said he did. It is my view that this fact must be proved beyond a reasonable doubt. I recognize that the reasonable doubt standard is not to be applied to individual items of evidence: R. v. Morin, [1988] 2 S.C.R. 345 at paras. 40-41. However, there is no doubt that the Crown must prove all of the elements of the offence beyond a reasonable doubt: R. v. Morin, supra at para. 1. There is also no doubt that the determination of vital issues in the criminal process requires proof beyond a reasonable doubt: R. v. Egger, [1993] 2 S.C.R. 451 at para 32. Here, one of the elements of the refusal offence is a valid demand. That valid demand can only be proven beyond a reasonable doubt if it is established beyond a reasonable doubt that the officer had a reasonable suspicion that Ms. Saint had alcohol in her body. Although it will not always be the case, in this case, that can only be achieved if the Crown proves that the officer had a subjective belief that Ms. Saint had alcohol on her breath. It is my view that this fact must be proved beyond a reasonable doubt as it is a vital issue in the case at bar. I am aware of one Superior Court of Justice decision that held that the reasonable doubt standard did not apply to an officer's reasonable suspicion that the person had alcohol in her body: see R. v. Brady, [2007] O.J. No. 672 at para 23. However, Brady was not a refusal case where a valid demand was required to prove the case as an element of the offence so Brady does not bind this Court. Indeed, Brady relies on Rilling which permits the admission of evidence without a valid demand.
20I am not satisfied that it has been established beyond a reasonable doubt that the officer did have a subjective belief that he smelled alcohol on Ms. Saint's breath at 6:41 AM on Sunday morning, May 22, 2016. Even if a lower standard of proof is applied to this fact namely a balance of probabilities, my conclusion would be the same. Let me explain why.
21The officer gave conflicting evidence on how it was that it came to be that he smelled alcohol on the breath of Ms. Saint. He initially testified in chief that he asked her if she had consumed any alcohol and she said she had not. He said that "I was able to detect an odour of alcoholic beverage emanating from her breath". However, in cross-examination, he testified that he smelled alcohol on her breath before she said anything. His testimony at trial on this point was as follows:
Question: You don't know. Okay. So you smelled this alcohol even before she spoke?
Answer: Yes
22On the other hand, Ms. Saint testified that she was returning from her boyfriend's home that morning where she had spent the night. As indicated, it was 6:41 AM on a Sunday morning. She said that her boyfriend had to go to work at 8 AM. She was clear in her testimony that she had not been drinking that morning and she was also clear that she had not been drinking the evening before.
23As I have said numerous times, it was 6:41 AM on a Sunday morning. It does happen that some people have been drinking and driving as of that time of the morning or still have alcohol on their breath from the night before. However, common sense and experience tells me that most people are not drinking and driving at that time of the day and most people do not have alcohol on their breath at 6:41 AM. I believe Ms. Saint when she testified that she had not been drinking either that morning or the night before. Accordingly, as a factual matter, she did not have alcohol on her breath. The only question is whether somehow Officer Halfyard mistakenly thought he smelled alcohol on her breath that was not actually there and that this might ground a reasonable suspicion. I am not satisfied that he smelled alcohol at all. I base this view of the evidence on a consideration of the evidence as a whole. Included in that consideration are the conflicting points outlined above namely that she did not in fact have alcohol on her breath and the Officer gave conflicting evidence on how it was that it came to be that he said he smelled alcohol on her breath. It seems highly doubtful to me that in these circumstances he would smell alcohol on her breath before she said a word or at all.
24I have another concern about the arresting officer's testimony and credibility. When he explained his dealings with Ms. Saint during his testimony in chief he failed to mention an important fact. In particular, he failed to mention that after she was under arrest and had exercised her right to counsel, she asked to have another opportunity to blow. When he testified in chief he simply said that after he had arrested her and facilitated rights to counsel by allowing her to speak to Mr. Spadafora, he released her at the roadside by way of an appearance notice. In cross-examination, it was established that she had asked for another opportunity to blow. Further, not only had Ms. Saint spoken to counsel (i.e. the paralegal), but it came out in the cross-examination of the officer that the officer had spoken directly to counsel at Ms. Saint's request apparently in furtherance of Ms. Saint's request that she be given another opportunity to blow. Her evidence that she had asked to blow again is important evidence which goes to the question of whether or not there was a failure or refusal to blow at all. The officer would know that this is important evidence for the Court to hear in a refusal case. It may well be that the officer simply didn't mention it in chief when he first recited what had occurred because he wasn't asked or forgot but nevertheless it gives me a concern about his credibility. To be clear, the fact that he failed to mention in chief about the further request to blow and his conversation with counsel is only a secondary concern in my credibility analysis.
25On the other hand, Ms. Saint gave some conflicting testimony. For example, she said that she was handcuffed before she was asked to blow into the ASD. The officer denied this point and I must say that I accept the officer's testimony on this point. I do not believe that she would have been handcuffed before she was under arrest and before she had even attempted to blow into the device. Having said that, I do accept that Ms. Saint had never in her life been handcuffed and was very upset when she ultimately was arrested and handcuffed and I believe she was simply confused in her recollection at trial as to the precise timing of the handcuffing.
26In addition, I found Ms. Saint to be argumentative at times in her testimony at trial. For example, she testified that she was given "approximately" three attempts to blow before she was placed under arrest. When it was suggested to her that "approximately" could mean four or it could mean two, a logical proposition in my view, she said "I disagree". Her disagreement did not make a lot of sense to me.
27I note further that the officer testified that she told him that her last drink had been 12 hours earlier. In her trial testimony, Ms. Saint denied saying this. She may have told him this although I am uncertain if she did or did not. It does not matter in my view.
28On the other hand, I accept Ms. Saint's testimony that she had never been in this position before and that it was a very upsetting experience for her. I consider it likely that she was also nervous in her testimony at trial. I note that during her examination in chief no information was given to the court as to Ms. Saint's background namely her age or employment or any other background information concerning the events of May 22 such as where she was coming from and where she was going. Thankfully, some of these points came out in cross-examination where the Court was informed that she was a social worker and had never been in this sort of a situation before and that she was coming from her boyfriend's place that morning, all of which I accept and gave the important background information that was of assistance in the determination of this case.
29In final argument, I raised with Crown counsel the question of whether the Crown had established that the officer had a reasonable suspicion that Ms. Saint had alcohol in her body. The Crown submitted that it had been established and further the Crown submitted that the defence had not challenged the officer when he testified that he had smelled alcohol on her breath. In my view, although the challenge to the officer on this point could have been more direct, the questions by defence counsel on the issue of the officer smelling alcohol before she even spoke and drawing the officer's attention to the fact that Ms. Saint had said she had not been drinking at all, were sufficient to put the officer on notice that his credibility was being challenged on this point. It was also clear from the cross-examination as a whole that the officer's credibility was generally in issue. In any event, people are not convicted of criminal offences simply because a police officer could have been more vigorously challenged on some points in cross-examination.
Conclusion
30For the reasons outlined above, I am not satisfied beyond a reasonable doubt that the officer made a valid demand on Ms. Saint. In particular, I do not accept that the officer had a reasonable suspicion that she had alcohol in her body at the time of driving. In particular, I am not satisfied that he smelled alcohol on the breath of Ms. Saint at all. As a valid demand is central to proof of a refusal charge, proof of the offence is not made out and there will be an acquittal on the refusal charge.
31Given my conclusion on the valid demand issue, it is not necessary for me to decide whether the Crown has proved the mens rea and actus reus of the refusal offence.
Released: April 9, 2018
Justice Paul F. Monahan