R. v. Pullin, 2019 ONCJ 86

ONTARIO COURT OF JUSTICE

CITATION: R. v. Pullin, 2019 ONCJ 86

DATE: 2019 02 13

COURT FILE No.: Halton 16 – 2882 & 16 - 260

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Patrick Clifford PULLIN

Before Justice D.A. Harris

Heard on December 4 & 5, 2017 and October 3 & 4, 2018 and December 13, 2018

Reasons for Judgment released on February 13, 2019

Elise Quinn counsel for the Crown

Stephen Price counsel for the accused Patrick Pullin

D.A. HARRIS J.:

1Patrick Clifford Pullin is charged with failing to provide a sample of his breath into an approved screening device in the Town of Oakville on September 13, 2016.

Crown counsel elected to proceed summarily.

2Mr. Pullin is also charged with three provincial offences arising out of the same incident. These are:

(1) Being the operator of a motor vehicle, did fail to surrender a licence, contrary to section 33(1) of the Highway Traffic Act;

(2) Being the operator of a motor vehicle on a highway, did fail to produce an insurance card, contrary to section 3(1) of the Compulsory Automobile Insurance Act; and

(3) Being the operator of a motor vehicle on a highway, did fail to surrender a permit, contrary to section 7(5) of the Highway Traffic Act.

3It was agreed by counsel that we would proceed with all of these charges together.¹

4In addition, Mr. Pullin had applied for an order pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms. Eventually, counsel agreed that we should proceed with a “blended” hearing in which all of the evidence would be applicable to both the Charter application and to the trial. However, this application was abandoned at the close of the Crown’s case.

5With respect to the Criminal Code charge, there is no issue that Mr. Pullin was operating his motor vehicle in Oakville on September 13, 2016 or that a valid demand was made to provide a sample of his breath into an approved screening device.

6The issues before me are (1) whether he failed to provide a sample of his breath into an approved screening device, and (2) whether he had the necessary mens rea to be convicted of the offence.

7With respect to the second issue, I accept the reasoning of Paciocco J. (as he then was) in R. v. Soucy² where he determined that the mens rea for refusing or failing to provide a breath sample is that the accused must refuse or fail to provide a sample on purpose.³

8The burden of proof is on the Crown, leaving it to disprove beyond a reasonable doubt that a failure was unintentional, rather than calling on the subject to establish an inability to comply on the balance of probabilities, or at least discharge an evidential burden.⁴

9Justice Paciocco went on to elaborate on this, stating that:

Although the Crown must prove the mens rea of an intentional failure of the test, as a matter of common sense if a device was shown to be in good working order, the accused was given a clear explanation of its operation, and a sufficient opportunity to provide a sample was furnished, it can generally be inferred in the absence of evidence raising some question about the ability of the accused to comply that the accused intended to avoid furnishing a suitable sample: R. v. Dolphin 2004 MBQB 252, [2004] M.J, No. 433. Even if the accused leads evidence suggesting that they tried to provide a sample, proof that a device was properly functioning can be considered in evaluating that testimony.⁵

10Halton Regional Police Constables Jillian Reynolds, Stephanie Spencer and Alex Lankshear testified for the Crown.

11Mr. Pullin testified in his own defence.

12He stated that he had tried to provide a proper sample and that he believed he had actually succeeded in doing so.

13Accordingly, the principles in R. v. W (D)⁶ are applicable.

14If I believe the testimony of Mr. Pullin I must find him not guilty.

15Even if I do not believe his testimony, if it leaves me with a reasonable doubt, I must find him not guilty.

16Even if his testimony does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.

17In determining this, I must keep in mind that Mr. Pullin, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities"⁷.

18This is a tough standard and it is so tough for very good reason. As Cory J said in R. v Lifchus: "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted"⁸.

19I did not believe Mr. Pullin. His evidence did not leave me with a reasonable doubt. My reasons for this are contained in paragraphs 20 through 61 following.

20Mr. Pullin lied to Constable Reynolds when he told her that he had not consumed any alcohol. During cross-examination he said that he did that because he “simply did not want the hassle of being held up”.⁹

21He testified that he did not refuse to speak to duty counsel.

22At its worst, that was an outright lie. At best it was an outrageous splitting of hairs.

23When pressed during cross-examination he admitted that he had refused to take the cell phone from Constable Reynolds when she told him that duty counsel was on the line. I am satisfied that refusing to take the phone was a refusal to speak to duty counsel.

24His explanation for this action is also enlightening.

25He testified that “I was very leery to have been taking a cellphone through my window from the police officer that’s trying to arrest me”¹⁰ and that “I don’t trust the arresting officer to help me in my best interests when they’re trying to arrest me”¹¹.

26His belief that Constable Reynolds was trying to arrest him is objectively unreasonable when one examines what actually happened in this case. Constable Reynolds read Mr. Pullin his rights to counsel when she realized that there might be some delay in an approved screening device arriving. She allowed him to use his own cell phone to try to contact the lawyer of his choice. She even allowed him to go online with that phone to attempt to obtain information. She allowed him to do this while seated in his own car. When he failed to make contact with a lawyer, she offered to call duty counsel for him, and when he agreed to that, she did call duty counsel, not once but twice. She then offered the cell phone to Mr. Pullin who was still seated in his own vehicle. Later, she gave him between 10 to 12 opportunities to provide a proper sample.

27These are not the actions of someone who was “trying to arrest” Mr. Pullin.

28I also note what Constable Reynolds did not do. Had she been trying to arrest Mr. Pullin without regard for the actual facts, it would have been a simple thing to falsely state that his speech was slurred and that he appeared disoriented and then arrest him for impaired driving. I am satisfied that she did not do this because she was attempting to conduct a proper investigation according to the rules. She was not “trying to arrest” him.

29On the contrary, I find that when Mr. Pullin was asked “is it fair to say that you have a distrust toward police” and he answered “I guess, in a way”¹², he was engaging in significant understatement. Mr. Pullin made it clear to me that he had a distrust toward police in general when he was dealing with Constable Reynolds and that he had that same distrust toward police in general when he gave evidence before me.

30This attitude is consistent with his response to the routine request for certain documents.

31Constable Reynolds testified that during her conversations with him, she asked Mr. Pullin to provide her with his driver’s licence, ownership and insurance. He failed to provide these to her. Constable Lankshear subsequently found the driver’s licence during a search of the vehicle, but Mr. Pullin had not provided that to Constable Reynolds himself.

32Mr. Pullin did not affirm or deny any of this. In fact he did not refer to any of it in his evidence.

33A further factor in my assessment of Mr. Pullin’s credibility is that his evidence was inconsistent with the evidence of the police officers.

34Constable Reynolds testified that as she overtook Mr. Pullin’s motor vehicle from behind, she observed the vehicle to be swerving in its lane and beginning to cross over the white dotted line. She changed lanes and began to pass his vehicle which then swayed to the right, crossed over the white dotted line and almost struck her marked police vehicle. She braked and pulled in behind him and then activated her emergency service lights. He pulled over and stopped.¹³ During her subsequent conversation with him she advised him that he was swerving in his lane to the point that he almost sideswiped her police vehicle as she was passing him.¹⁴

35Mr. Pullin said in-chief that he did not recall weaving in and out of lanes.¹⁵ During cross-examination he said that he did not believe he swerved over lanes¹⁶ but when asked almost immediately after that answer if it was possible that he had swerved, he replied “no, it is not”¹⁷.

36He also disagreed with the suggestion that Constable Reynolds had advised him that he was swerving: “she did not say that I was swerving. She said that I swerved into her and almost hit her vehicle”. He also disagreed with the suggestion that he had in fact swerved into her and almost hit her vehicle.¹⁸ Rather he had signaled and moved over into the middle lane in the process of exiting the highway.¹⁹

37Constable Reynolds testified that she observed a wet stain on the groin area of Mr. Pullin’s jeans. She asked him if he had soiled himself. He denied observing any wet mark.²⁰ He did not say that he had been fishing and that his waders leaked.²¹

38Mr. Pullin testified that he told Constable Reynolds that he had not urinated himself and that he had told her that his crotch was wet because he had just been fishing in the creek and his waders had leaks in them.²²

39I stress here that I am considering only the inconsistency in their respective evidence and my finding that Mr. Pullin initially denied the existence of the wet spot on his pants. There is no evidence before me to establish that the wetness was caused by anything other than leaky fishing waders.

40With respect to his attempts to provide a breath sample, he testified that he attempted to blow into the device just as they had told him to.²³

41He heard a tone, a constant tone during every attempt and a click at the end of some of them.²⁴

42Strangely his counsel addressed the subject of a tone differently with each of the three police officers. He suggested to Constable Spencer that the approved screening device used that day did not emit a tone.²⁵ He did not question Constable Reynolds further when she expressed uncertainty about this.²⁶ With Constable Lankshear counsel suggested that the device would emit a tone²⁷ and that Mr. Pullin was activating a tone.²⁸ In light of these inconsistent approaches to the subject, I am not entirely sure what the defence position is on this.

43In any event, none of the officers heard a constant tone during Mr. Pullin’s “attempts” to blow into the device. All of them testified that he was not attempting to provide a proper sample of his breath.

44Constable Reynolds testified that:

We observed him to not have a tight seal on the mouthpiece. We asked him to have a tight seal on the mouthpiece. Then we observed him sticking his tongue in the hole of the mouthpiece, which would obviously not allow any air into the approved screening device. We would observe him sucking in and then blowing out, which would again register an insufficient flow.²⁹

45She also testified that “he stated he was trying, but he would continually make the same mistakes that we advised him not to do and then he would do them over again”.³⁰

46Constable Spencer testified that:

I don't have it documented each sample specifically in my notebook or in my statement. I do have notes in my notebook which indicates that during the times that he was trying to provide a sample he would either not blow, he would provide a short burst of air or when he was blowing he would let the air leak out of the corners of his mouth and therefore anytime he tried to provide a sample he was not successful in doing so.³¹

47She also testified that;

He wasn't following instructions well. When trying to provide instructions to him, he was talking over the officers. He was quite difficult to deal with.³²

48During cross-examination, it was suggested to her that Mr. Pullin was indeed blowing air into the device on all occasions. She disagreed with this, stating that he was not following instructions, he was not blowing air into the mouthpiece, he was making short bursts of air only or letting air leak out from the sides of his mouth.³³

49Constable Lankshear testified that during Mr. Pullin’s multiple “attempts” he did not hear any air being blown into the device.³⁴

50Mr. Pullin testified that eventually he was feeling “a little bit winded from the amount of tries” and that he let the police know, pointing out that he was red in the face.³⁵ He was a heavy smoker and had been for many years. He was short of breath and red in the face from trying so much.³⁶

51None of the police officers commented in any way on Mr. Pullin being winded or red in the face or that he pointed that out to them. Then again, none of them were asked anything about this.

52Crown counsel did not ask me to invoke the rule in Browne v. Dunn³⁷ and I have not done so. I am aware of the treatment of this by the Ontario Court of Appeal in R. v. Quansah³⁸ and subsequent decisions.³⁹ I have summarized this in a previous decision⁴⁰ and will not repeat that summary. I simply say that I am not satisfied that the rule in Browne v. Dunn was breached here. I am satisfied however that, had the police officers observed that Mr. Pullin was becoming winded or red in the face, or had he pointed those things out to them, at least one of them would have said something about that during their evidence.

53Mr. Pullin testified that as he was being arrested, he continued to protest that he had been attempting to provide a proper sample and that he asked for another opportunity. Constable Reynolds told him, “No you cannot do this again”.⁴¹

54Constable Reynolds did not mention this in-chief.⁴² She was not questioned about it during cross-examination.

55Constable Spencer was only asked if Mr. Pullin had protested that he had been attempting to provide a proper sample. She had no quotes from him noted and could not recall what he had said.⁴³

56Constable Lankshear was not asked about this.

57Again, I am not satisfied that the rule in Browne v. Dunn was breached here. I am satisfied however that, had the police officers heard Mr. Pullin offer to try again, at least one of them would have said something about that during their evidence.

58I note that my decision in this case does not turn on whether or not Mr. Pullin offered to try again after he had been charged. Such an offer does not provide a defence to the charge. However, as I stated above, I did not believe Mr. Pullin in any event.

59In reaching that conclusion, I took into account the fact that I accept the evidence of the officers. Their evidence was clear and consistent both internally and with each other’s evidence. They described their interaction with Mr. Pullin and his repeated “attempts” to provide a breath sample. It was their professional duty to investigate and document that interaction with him. They had no motive to fabricate their evidence or to falsely arrest Mr. Pullin. I have already commented at greater length on this subject with respect to Constable Reynolds and I will not repeat those comments here.

60This was a routine investigation of a possible “over 80” offence. All of the officers quite candidly conceded that they observed no indicia of impairment.⁴⁴ They did not charge Mr. Pullin with operating a vehicle while impaired.

61I disbelieve Mr. Pullin’s evidence because it is inconsistent with the evidence of the officers. In doing this I am not weighing the Crown and defence evidence against each other, in a credibility contest where I have chosen the evidence that I prefer. That is not the appropriate analysis. Rather, I reject the evidence of Mr. Pullin based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence in accordance with repeated directives from the Ontario Court of Appeal.⁴⁵

62That is not the end of the matter however. I must still decide if, after considering all the evidence that I do accept, I am satisfied beyond a reasonable doubt of Mr. Pullin’s guilt. If not, I must acquit him.

63Counsel for Mr. Pullin argued that the Crown had not proven that the approved screening device was operating properly and that, as a result of this, I should be left with a reasonable doubt as to the guilt of Mr. Pullin.

64I disagree.

65Constable Spencer testified that once she was dispatched to deliver an approved screening device to Constable Reynolds, she tested the device and determined that it was in proper working order.⁴⁶ Further she had told Constable Reynolds that she had tested the device.⁴⁷

66Constable Reynolds testified that following the first round of “attempts” by Mr. Pullin, she demonstrated how to provide a proper sample. Her first attempt did not succeed because she had not inserted the mouthpiece correctly. She corrected that and provided a successful sample into the device.⁴⁸ This was confirmed by both Constable Spencer⁴⁹ and Constable Lankshear.⁵⁰

67So, the device worked properly for Constable Spencer before Mr. Pullin started to blow.

68It worked properly for Constable Reynolds after the first series of “attempts” by Mr. Pullin.

69It was only when he blew that it did not provide a proper result. I am satisfied that the explanation for this can be found in the evidence of the police officers referred to in paragraphs 43 through 49, above.

70I am satisfied that the approved screening device was working properly.

71I am satisfied that Constable Reynolds clearly explained its operation to Mr. Pullin.

72I am satisfied that she gave him more than sufficient opportunity to provide a proper sample.

73I am satisfied that Mr. Pullin has behaved consistently throughout all aspects of this case.

74He did not accept that Constable Reynolds had a good reason to pull him over.

75He lied to her about his consumption of alcohol.

76He denied her suggestion that the crotch of his pants was wet.

77He failed to provide her with his driver’s licence, ownership and proof of insurance.

78He insisted that he wanted to speak to a lawyer but refused to take the call from duty counsel.

79In court, he stated that he had not refused to speak to duty counsel, but conceded that he had refused to take the cell phone that would have made the conversation possible.

80He protested repeatedly that he was trying his best to provide a proper breath sample but he did not try to do that at all.

81I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Pullin failed to provide a proper sample of his breath into the approved screening device and that he did so on purpose.

82I find him guilty of that offence and a conviction is registered.

PROVINCIAL OFFENCES ACT OFFENCES

83As I stated earlier, Constable Reynolds testified that she asked Mr. Pullin to provide her with driver’s licence, ownership and proof of insurance. He failed to provide these to her. Constable Lankshear subsequently found the driver’s licence during a search of the vehicle, but Mr. Pullin had not provided that to Constable Reynolds himself.

84During cross-examination counsel for Mr. Pullin asked four questions about the driver’s licence. These did nothing to bring Constable Reynolds earlier testimony into question.⁵¹

85Mr. Pullin did not affirm or deny any of this. In fact he did not refer to any of it in his evidence.

86Based on the evidence before me, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Pullin was the operator of a motor vehicle, and that he failed to surrender a licence, contrary to section 33(1) of the Highway Traffic Act. I find him guilty of that offence and a conviction is entered.

87I am also satisfied that the Crown has proven beyond a reasonable doubt that Mr. Pullin was the operator of a motor vehicle on a highway and failed to produce an insurance card, contrary to section 3(1) of the Compulsory Automobile Insurance Act. I find him guilty of that offence and a conviction is entered.

88Finally, I am also satisfied that the Crown has proven beyond a reasonable doubt that Mr. Pullin was the operator of a motor vehicle on a highway and failed to surrender a permit, contrary to section 7(5) of the Highway Traffic Act. I find him guilty of that offence and a conviction is entered.

A POSTSCRIPT

89During her testimony, Constable Reynolds explained that it was difficult if not impossible for her to make detailed notes contemporaneously with attempting to obtain a sample of a suspect’s breath into an approved screening device while standing on the side of a busy highway.

90Her comments, which I accept completely, prompt me to once again point out the advantages of dash cameras in police cars and body cameras on police officers.

91In this case, four days of court time were taken up by the various witnesses testifying about what exactly was said or done and when exactly those things were said or done. An audio–video recording of the events could have made all of that unnecessary and avoided the attendant costs. During the four days, a judge, court staff, a Crown counsel and police officers, amongst others, were all being paid with money provided by taxpayers. So once again I ask the Halton Regional Police Service to make better use of that money and begin using the technology that is available to us now in the twenty-first century.

Footnotes

1. 1Jurisdiction to do this was recognized by the Supreme Court of Canada in R. v. Sciascia, 2017 SCC 57, [2017] S.C.J. No. 57.
2. 2R. v. Soucy, 2014 ONCJ 497, [2014] O.J. No. 4518 (Ont. C.J.) per Paciocco J. (as he then was).
3. 3Ibid, at paras. 50 and 52.
4. 4Ibid, at para. 55.
5. 5Ibid, at para. 57.
6. 6R. v. W. (D.), 1991 93 (SCC), [1991] S.C.J. No. 26 (S.C.C.).
7. 7R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 (S.C.C.) at para. 242.
8. 8R. v Lifchus, 1997 319 (SCC), [1997] S.C.J. No. 77 (S.C.C.) at para. 13.
9. 9Transcript of Evidence, October 4, 2018, page 36, lines 28 and 29.
10. 10Ibid, page 44, lines 12 to 14.
11. 11Ibid, page 44, lines 18 to 21.
12. 12Ibid, page 47, lines 23 to 25.
13. 13Transcript of Evidence, December 4, 2017, page 13, lines 6 to 22.
14. 14Ibid, page 15, lines 6 to 8.
15. 15Transcript of Evidence, October 4, 2018, page 22, lines 19 and 20.
16. 16Ibid, page 33, lines 8 and 9.
17. 17Ibid, page 33, lines 14 to 17.
18. 18Ibid, page 35, lines 11 to 18.
19. 19Ibid, page 22 at lines 23 to 30, and page 33 at lines 12 and 13.
20. 20Transcript of Evidence, December 4, 2017, page 15, lines 16 to 20 and page 45, lines 24 to 26, and page 56, line 30 to page 57, line 1.
21. 21Ibid, page 57, lines 19 to 24.
22. 22Transcript of Evidence, October 4, 2018, page 36, lines 6 to 13.
23. 23Ibid, page 24, lines 23 and 24.
24. 24Ibid, page 24, lines 27 and 28.
25. 25Transcript of Evidence, October 3, 2018, page 59, lines 1 to 3.
26. 26Ibid, page 7, lines 8 to 23.was
27. 27Transcript of Evidence, October 4, 2018, page 6, line 31 to page 7, line 3.
28. 28Ibid, page 14, lines 8 to 14.
29. 29Transcript of Evidence, December 4, 2017, page 22, lines 19 to 25.
30. 30Ibid, page 80, lines 22 to 24.
31. 31Transcript of Evidence, December 5, 2017 page 54, line 27 to page 55, line 2.
32. 32Ibid, page 59, line 31 to page 60, line 1.
33. 33Transcript of Evidence, October 3, 2018, page 58, lines 18 to 26 and page 59, lines 11 to 25.
34. 34Transcript of Evidence, October 3, 2018, page 79, lines 31 and 32, and page 81, lines 12 and 13, and Transcript of Evidence, October 4, 2018, page 13, line 27 to page 14, line 14.
35. 35Transcript of Evidence, October 4, 2018, page 28, lines 26 to 30.
36. 36Ibid, page 32, lines 23 and 24.
37. 37Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.).
38. 38R. v. Quansah, 2015 ONCA 237, [2015] O.J. No. 1774 (Ont. C.A.) application for leave to appeal to S.C.C. dismissed at [2016] S.C.C.A. No. 203.
39. 39R. v. Grizzle, [2016] O.J. No. 1159 (Ont. C.A.) at para. 13; R. v. Sutherland, 2016 ONCA 674, [2016] O.J. No. 4736 (Ont C.A.) at paras. 38 to 44; R. v. Kirlew, 2017 ONCA 171, [2017] O.J. No. 1184 (Ont. C.A.) at paras. 8 to 14; R. v. Zvolensky, 2017 ONCA 273, [2017] O.J. No. 1655 (Ont. C.A.) at paras. 135 to 139; R. v. Vorobiov, 2018 ONCA 448, [2018] O.J. No. 2536 (Ont. C.A.) at paras 42 to 53; and R. v. Vassel, 2018 ONCA 721, [2018] O.J. No. 4512 (Ont. C.A.) at paras. 119 to 122.
40. 40R. v. Stirbei, [2015] O.J. No. 5215 (Ont. C.J.).
41. 41Transcript of Evidence, October 4, 2018, page 31, line 27 to page 32, line 16.
42. 42Transcript of Evidence, December 4, 2017, page 25, lines 13 to 27.
43. 43Transcript of Evidence, October 3, 2018, page 71, line 30 to page 72, line 7.
44. 44Other than Constable Reynolds’ evidence regarding his bad driving.
45. 45See R. v. J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No. 4749 (Ont. C.A.) per Doherty J.A. at para. 53. Application for leave to appeal to S.C.C. dismissed [2007] S.C.C.A. No. 69; R. v. Windibank, 2012 ONCA 237, [2012] O.J. No. 1604 (Ont. C.A.) at para. 6; R. v. D.R., 2012 ONCA 253, [2012] O.J. No. 1691 (Ont. C.A.) at paras. 4 & 5; R. v. O.M., 2014 ONCA 503, [2014] O.J. No. 3210 (Ont. C.A.) per Cronk J.A. at para. 45; R. v. R.D., [2016] O.J. No. 3903 (Ont. C.A.) per Laskin J.A. at paras. 14 to 23. See also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 (S.C.C.) at para. 66.
46. 46Transcript of Evidence, December 5, 2017, page 47, lines 27 to 32. See also: Transcript of Evidence, October 3, 2018, page 47 line 4 to page 49, line 27.
47. 47Transcript of Evidence, December 5, 2017, page 49, lines 21 to 23.
48. 48Transcript of Evidence, December 4, 2017, page 23, lines 7 to 19, and page 73, line 28 to page 74, line 2, and Transcript of Evidence, December 5, 2017, page 29, lines 5 to 12.
49. 49Transcript of Evidence, December 5, 2017, page 57, lines 4 to 30.
50. 50Transcript of Evidence, October 3, 2018, page 81, lines 18 to 24, and Transcript of Evidence, October 4, 2018, page 6, lines 3 to 14.
51. 51Transcript of Evidence, December 5, 2017, page 42, line 32 to page 43, line 12.