Ontario Court of Justice

Date: 2018-01-22 Court File No.: Newmarket 16-09323

Between:

Her Majesty the Queen

— and —

Dinesh Sivaneswaran

Judgment

Evidence heard: January 22, 2018 Delivered: January 22, 2018

Counsel:

• Mr. Bradley Juriansz, counsel for the Crown
• Mr. Christopher Assié, counsel for the defendant

KENKEL J.:

Introduction

1Mr. Sivaneswaran is charged with failing to comply with a screening device demand contrary to s. 254(5) of the Criminal Code. The defence submits that the Crown has not proved that the failure to provide a sample was wilful and, in the alternative, that the defendant had a reasonable excuse for the failure. The Crown submits the evidence shows the accused knowingly failed to provide a suitable sample and the evidence as to excuse is not credible.

The Failure to Provide a Sample

2The entire approved screening device (ASD) test was recorded on the in-car video. Constable Teeter demonstrated the ASD process to the accused. She provided a sample of her breath into the device. As soon as she blew into the device it registered a tone that was continuous until she stopped blowing. At trial she explained that the tone showed air was entering the approved screening device and the tone stopped after there was a suitable sample. The officer's self-test was simple and fast, taking about three seconds to provide the sample. The result of that test showed the ASD was in proper working order.

Mr. Sivaneswaran was given five chances to provide a suitable sample. On the first test there was no tone. He was told to blow and cautioned about failing to provide a sample. On the second attempt again there was no tone and PC Teeter noted that Mr. Sivaneswaran was sucking air instead of blowing. He was told he had one last chance. On the accused's third attempt there was no tone and the officer asked him why he was sucking air instead of blowing air as instructed. He was given a fourth chance also said to be his last and again there was no tone showing no air going into the device. The same thing happened on the fifth and final "last chance."

Proof of Intent

3Both parties agree that the Crown bears the burden to prove a wilful refusal beyond a reasonable doubt.

4The defence submits that the accused's failure has not been proved intentional where the officer did not check the mouthpiece after the accused's attempts to make sure it wasn't blocked and did not re-test the ASD to ensure that it was still functioning properly. The Crown submits that the accused's failure over multiple attempts to comply with instructions and provide a suitable sample gives rise to an inescapable inference that he intended that consequence.

5The credible evidence of the officer and the in-car video shows that the ASD was in proper working order. The accused was given simple instructions to blow into the device and keep blowing but he repeatedly failed to follow those instructions. Not once did he provide air into the machine as shown by the lack of tone. He was repeatedly told by the officer to stop "sucking". The reason air wasn't going into the machine was that he did not follow the very simple instructions provided. There is no evidence or circumstance that supports the assertion that the mouthpiece could have been blocked. The accused testified at trial and made no mention of a difficulty with the mouthpiece or a suspicion it was blocked. He provided an alternate explanation for his failure to provide a sample.

6Considering the credible evidence at trial as a whole, I find that the Crown has proved the reason the accused failed to provide a suitable sample is that he did not follow instructions to blow into the device. That gives rise to the inescapable inference that he intended that result as described in R v Slater 2016 ONSC 2161 at para 12 subject to consideration of the evidence as to "reasonable excuse." The accused's later attempts to bargain with the officer post-arrest including offers to comply with further tests were not credible in that context given his statements and his actions to that point.

Reasonable Excuse

7Mr. Sivaneswaran testified that he had a cold or flu that evening, was experiencing shortness of breath and was physically unable to provide a suitable sample.

8Mr. Sivaneswaran's testimony was contradicted by the circumstances that night and his actions as shown on the video. There was no indication in his voice or breathing that he was ill. He did not wheeze. There was no cough that interrupted his tests. He was able to talk in a normal manner and he was able to move air in and out of his mouth as shown by the air sounds made during the ASD tests and the vapour coming from him during the tests that November night.

9Mr. Sivaneswaran was able to make long continuous statements without pausing for breath. The in-car video at 2:12:38 to 2:13:18 shows one example where the accused engaged in a long monologue with little or no pause for a minute and a half. Most of the statements are well beyond the very short time required to blow into the ASD.

10I find Mr. Sivaneswaran's evidence was not credible in the context of all of the evidence and I must reject it.

Conclusion

11I can find no credible evidence that reasonably could leave a doubt. The Crown has proved that Mr. Sivaneswaran deliberately failed to provide the sample as alleged.

Delivered: January 22, 2018

Justice Joseph F. Kenkel