ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
VINUSAN ARUDSELVAM
Before Justice Hafeez S. Amarshi
Written reasons for judgment released on September 25, 2022
Counsel: J. Foreman, counsel for the Crown P. Locke, counsel for Vinusan Arudselvam
REASONS FOR JUDGMENT
A. Introduction
1Vinusan Arudselvam was involved in a motor vehicle accident in the late evening hours of May 15, 2019. The defendant was taken to Michael Garron Hospital. In the emergency department police made a demand that Mr. Arudselvam provide a breath sample into an approved screening device (ASD). The defendant failed to provide a breath sample despite at least three attempts. As a result, Mr. Arudselvam is charged that contrary to s. 320.15(1) of the Criminal Code, he did knowing that a demand had been made, fail or refused to comply with the demand made by a police officer under s. 320.27 or s. 320.28 of the Criminal Code.
2The defence argues that due to the accident Mr. Arudselvam was unable to provide a suitable sample and therefore he has a reasonable excuse to the offence.
3Ms. Locke further argues the Crown has failed to prove the defendant had the requisite mens rea to ground liability in this case. The parties disagree on the required mens rea for an offence under s. 320.15 (1). The defence submits that Mr. Arudselvam can only be found guilty of the refusal offence if he intentionally failed to provide a sample. The Crown counters a different threshold is applicable – only that the defendant had knowledge of the prohibited act. The parties have sought a ruling on this issue in light of amendments made to the Criminal Code governing offences of failure or refusal to comply with a breath demand.
B. Relevant Evidence
Scene of the accident
4Constable Troy Lashley has been a police officer for 22 years. On May 16, 2019, at 11:53 p.m. he arrived at the scene of a multi-vehicle accident at the intersection of Danforth and Donlands Avenues in Toronto.
5He observed a four-vehicle accident in the west-bound lane of Danforth Ave. He concluded that a BMW X3, a small SUV, struck the back of a vehicle causing a chain reaction at the intersection. The road conditions were dry. The area was well-illuminated by streetlights.
6He remembers being told the driver of the BMW was being treated in an ambulance, which was still at the scene of the accident. He does not recall who gave him this information.
7At 12:06 a.m. he attended at the ambulance and observed the defendant lying on a stretcher. Officer Lashley asked Mr. Arudselvam if he was ok. The defendant at first did not respond, but when he eventually did his words according to the officer were slightly slurred. Officer Lashley thought the accident may have been the cause of the slurring. As he was leaving the back of the ambulance, he detected a slight odour of alcohol. It came from Mr. Arudselvam.
8He walked over to the BMW to investigate further and saw at the passenger side footwell an empty 376 ml bottle of Absolute Vodka. The doors to the vehicle were open and he was standing outside of the SUV. He also observed some empty water bottles and two cups containing a red sticky substance.
9When Officer Lashley was asked why he went to take a closer look at the vehicle, he responded that he had a suspicion that there was something more to the accident investigation based on the defendant’s slurred speech and odour of alcohol in the ambulance.
10Once he viewed the bottle of vodka the officer formed the suspicion the defendant, “May have been under the influence of alcohol while driving.” The time was 12:16 a.m. Officer Lashley testified that it was the vodka bottle that confirmed his suspicion from the ambulance that alcohol may have been a factor in the accident investigation.
11He instructed two officers at the scene which included Constable Jeffrey Churchill to attend at Michael Garron Hospital, where the defendant had been taken by paramedics. He told Officer Churchill about locating the bottle of vodka in the BMW.
12PC Churchill had been a police officer for less than a year when he was dispatched to the accident scene on Danforth Ave. He arrived at 11:34 p.m.
13The scene of the accident was “pretty chaotic” in his words. There were four cars involved in the accident. There were paramedics and firefighters and a number of onlookers at the intersection.
14At 12:20 a.m. he confirms he was approached by Cst. Lashley and told to attend at Michael Garron Hospital with an ASD. He recalls Officer Lashley telling him about the vodka bottle in the vehicle. It was another officer that gave him the name of the defendant as the driver of the BMW.
Events at the hospital
15Cst. Churchill arrived at the hospital shortly after leaving the scene of the accident. At 12:26 a.m. he located Mr. Arudselvam in the emergency department, specifically in the triage area directly across from the reception desk. The defendant had not been seen by an emergency physician at this point. He was sitting upright in a stretcher and wearing a neck brace.
16Officer Churchill told the paramedics that he would be conducting an ASD test. He recalls the paramedics telling him that Mr. Arudselvam’s injuries were superficial, and they had no reason to believe the defendant couldn’t provide a breath sample. He conceded however, that he could have spoken to a nurse or other health care practitioner to confirm this conclusion. He agreed the fact that the defendant was in the triage area meant the defendant had not been seen by a physician nor had x-rays been taken. Cst. Churchill did not observe Mr. Arudselvam to be under medical distress at the time of testing. He conceded, however, that the damage to the BMW was extensive and that it was a pretty serious accident.
17Cst. Churchill read an ASD demand from his memo book at 12:35 a.m. He says Mr. Arudselvam nodded when he asked whether he understood the demand.
18According to the officer he demonstrated how to provide a breath sample multiple times for the defendant. First at the outset when he was testing the device to ensure it was in proper working order. He provided a second demonstration while the defendant had the device’s straw in his mouth. Specifically, he demonstrated how to provide a breath sample by making a deep breath in and out gesture.
First attempt at 12:40 a.m.
19Officer Churchill testified that during Mr. Arudselvam’s first attempt at a breath sample the defendant’s lips were only loosely around the mouthpiece. Mr. Arudselvam provided a breath, but it did not register. The officer concluded the defendant was restricting the flow of breath with his teeth and not blowing for a sustained period sufficient to register a reading.
Second attempt
20Cst. Churchill then provided another visual instruction consisting of a big breath in-and-out gesture.
21After that demonstration, Mr. Arudselvam put the device straw to his mouth and began sucking. The officer remembers hearing a hissing sound and he observed the defendant’s cheeks not to be puffed out which would indicate that he was exhaling air.
22Before Mr. Arudselvam’s next attempt the paramedics, who were standing by assisted in repositioning the defendant on the stretcher.
Third attempt
23Officer Churchill provided a further non-verbal demonstration. He replaced the mouthpiece on the device with a new straw.
24During this attempt Mr. Arudselvam provided a very short burst of breath which did not register a reading on the device.
Fourth attempt
25Cst. Churchill testified that during the next attempt which occurred during the same sequence as the third attempt he observed the defendant to be sucking on the straw. No sample was registered.
Last attempt at 12:50 a.m.
26It is at that point that the defendant was given a caution that if he did not provide a breath sample he would be arrested. [1] Officer Churchill gave a further breathing demonstration. He observed the defendant to provide a short burst of breath into the device which did not register a reading.
27Cst. Churchill concluded Mr. Arudselvam was intentionally not providing a suitable breath sample. According to the officer providing a breath sample was equivalent to blowing bubbles into a glass for a few seconds.
28Officer Churchill was asked if the defendant understood the consequences of the failure, he indicted yes, because during the caution, the officer took out his handcuffs to demonstrate arrest.
29Mr. Arudselvam was arrested and handcuffed to his stretcher, at which point the defendant said in English, “Please sir, one more time.”
30Officer Churchill declined the request, saying he felt he had given Mr. Arudselvam ample opportunity to provide a breath sample.
31Mr. Arudselvam was moved to a private room at 1:05 a.m. PC Kyle Wagner, who was Cst. Churchill’s escort officer during the investigation, gave the defendant a right to counsel caution.
32The defendant was released from police custody at 2 a.m. and given an appearance notice. He however remained in hospital.
33When Officer Churchill was asked if Mr. Arudselvam displayed any lack of ability to converse in English the officer responded no.
Defendant’s version of events
34Mr. Arudselvam testified with the assistance of a Tamil interpreter. He is 28 years old and came to Canada in 2016. He works as a forklift operator. The defendant testified that he has not taken any English classes. That although he knows certain words in English, he cannot make a sentence. He says he is able to understand more English than he can speak.
35Mr. Arudselvam recalls being taken to the hospital by ambulance. He was met by police, who were holding an “implement.” He could not understand everything they were saying. He says, however, that once police demonstrated a breath sample, he says he was able to understand. Specifically, he understood he had to breathe into the device. He further stated that he had understood legally he had to give a breath sample.
36According to the defendant he tried his best, but he was having serious pain in his chest. He described the feeling as someone putting a heavy weight on his chest.
37When asked how severe the pain was on a scale – zero being no pain and ten being excruciating, he replied around eight. He described soreness in the middle of his chest and that his lower back was in pain.
38Mr. Arudselvam says the airbag deployed during the accident. He was wearing a seat belt.
39The defendant testified that he told the officers in his language about his difficulty giving a breath sample, but they did not understand. Specifically, he told them in Tamil, “I’m having severe pain.” He says he got angry at himself because he was unable to express his pain to police. He recalls crying and requested one more attempt.
40Mr. Arudselvam was never offered the help of a Tamil interpreter and says the police would have understood his chest was hurting because of the way he was struggling.
41He admitted he had been drinking that night and that he understood that providing a sample may lead to him being criminally charged. He was worried, but he tried his best to give a breath.
42The defendant denied sucking on a straw or pretending to blow. He further denied having his teeth closed.
43After police left, he was in the hospital for a further six to eight hours. Mr. Arudselvam says that after being discharged from the hospital he was still experiencing pain in his chest and lower back. He said nothing was broken. The pain lasted around five days. The defendant never sought further treatment from his family doctor.
44When asked to explain what caused the accident Mr. Arudselvam says he mistook the gas pedal for the brake. He denied drinking from the vodka bottle, that the vehicle did not belong to him, but to a friend.
45The defendant maintains that police only have gave him three chances to provide a breath sample. That police warned him of the consequences of providing a sample after the second attempt.
46He readily agreed after his first unsuccessful attempt a police officer demonstrated how to provide a proper breath sample. He says he was able to breath in, but that he was finding it difficult to breath out.
C. Lawfulness of the demand
47Before I address the issue of the applicable mens rea for an offence under s. 320.15, I will address the lawfulness of the breath demand. The defence requested a ruling prior to the defendant testifying. In short oral reasons at the close of the Crown’s case, I determined the demand to have been lawfully made. I further dismissed the defence ss. 8 and 10 (b) Charter application. These are my reasons.
48A proper demand for a breath sample requires that an officer have reasonable grounds to suspect that a person had alcohol in their body and within the proceeding three hours operated a motor vehicle. [2]
49The lawfulness of the ASD demand therefore is an essential element of failing to provide a breath sample under s.320.15(1). As a result, if I were to find that the demand was not lawful – specifically the officer lacked a reasonable basis to suspect that Mr. Arudselvam had alcohol in his body and was operating or in care or control of a motor vehicle that evening within the preceding three hours, the charge is to be dismissed.
50Ms. Locke makes multiple arguments in support of the charge being dismissed or evidence found in the vehicle be excluded by this Court. I will address each in turn.
51The defence argues that the delay between when police formed a reasonable suspicion the defendant had alcohol in his blood and was in care and control of a vehicle and when a formal breath demand was made was not justified. Ms. Locke submits this Court focus on the time when Cst. Troy Lashley forms the requisite grounds to support an ASD demand as opposed to the officer who made the formal breath demand – Officer Churchill.
52The defence argues that Officer Lashley would have formed sufficient grounds at 12:06 a.m. when the officer testified that he had attended at the ambulance to check on Mr. Arudselvam. At that point, however, according to Cst. Lashley, his primary focus was to investigate an accident. The officer had a brief exchange with the defendant. At first Mr. Arudselvam was non-responsive, but after several seconds he spoke, but the officer was unsure of what he said. He thought the defendant’s words were slurred but concluded that may have been as a result of the accident. It is not until he was leaving the ambulance that he detected what he believed to be a slight odour of alcohol. It is at that point as Ms. Locke puts it, “The clock starts ticking,” because Officer Lashley had sufficient indicia to make a breath demand. Further, an ASD was at the scene of the accident and a breath sample could be obtained in short order.
53Officer Lashley testified, however, that although he had his suspicions, he wasn’t sure about a breath demand. It is not until he observed an Absolute Vodka bottle in the footwell of the BMW X3 that his suspicion crystalized such that he felt a breath demand was required. It is at this point he says that he, “Started to put together this accused could be under the influence of alcohol.”
54The Crown counters the focus on when Officer Lashley formed the requisite grounds in support of the breath demand is unnecessary and the analysis should be centred on when Officer Churchill, the officer who made the breath demand, formed the requisite suspicion.
55According to Cst. Churchill he was instructed by Officer Lashley to administer a breath sample at 12:20 a.m. He recalls that he was advised by the officer that a vodka bottle had been found in the vehicle. He does not remember whether Cst. Lashley told him about the odour of alcohol in the ambulance.
The demand was lawful
56I have concluded the breath demand was lawful in these circumstances. I accepted the Crown argument that s. 320.27 requires the officer making the demand must have formed a reasonable suspicion. [3]
57In this case this is PC Churchill, who formed the requisite grounds for a breath demand at 12:20 a.m. At that point however, Mr. Arudselvam had already been transported to hospital. Officer Churchill arrives at Michael Garron Hospital in short order and makes a formal breath demand in the emergency department at 12:35 a.m. He tests the handheld device shortly thereafter and provided the mouthpiece to the defendant to produce a breath sample at 12:40 a.m. The immediacy requirement of s. 320.27(1)(b) was satisfied in these circumstances. It is difficult to envision Officer Churchill being able to make a breath demand any sooner.
58I note the immediacy requirement must take into account all of the circumstances and require in some circumstances flexibility in interpretation to deal with exigencies. [4] In this case the pressing exigency was the defendant’s medical needs after a serious car accident. I have concluded that Officer Churchill’s formation of the requisite legal grounds in support of a breath demand to the making of the demand at the hospital was no more than was reasonably necessary for the officer to discharge his duty in the circumstances.
59In R. v. Nahorniak, 2010 SKCA 68, 2010 256 CCC (3d) 147, a Saskatchewan Court of Appeal decision, the court explained it is not necessary for an officer to independently investigate and verify grounds of reasonable suspicion conveyed to him as long as he subjectively believes them. [5] In this case, Officer Lashley conveyed to the demand officer, that he located a bottle of vodka in the BMW X3. The vehicle had sustained obvious and significant front-end damage. Another officer – Cst. Price who was at the scene of the accident told PC Churchill that the damaged vehicle was driven by the defendant. This combination of information was sufficient to ground Officer Churchill’s reasonable suspicion in this case. The evidence is clear that Cst. Churchill was aware of these grounds at the time he made a formal breath demand in hospital, and he believed this information to be accurate. His belief was objectively and subjectively reasonable.
60Further, I accepted Officer Lashley’s evidence that his grounds did not subjectively crystalize until he located the vodka bottle in the footwell of the BMW. That prior to this discovery he was unsure whether the accident investigation had evolved into a criminal investigation for impaired driving.
61The fact that Cst. Lashley was delayed by about ten minutes in investigating the BMW after speaking to the defendant does not impact the analysis given his lack of requisite grounds after exiting the ambulance.
The vodka bottle was in plain view
62The search of the vehicle is potentially problematic. Ms. Locke’s argument was compelling. There is evidence the BMW was searched prior to Officer Lashley attending at the vehicle. Specifically, the doors were open and vehicle documents were on the front passenger seat. Given the nature of the accident, which involved a hard impact, those documents would have certainly fallen off the seat. This indicates according to Ms. Locke, that someone had gone into the vehicle including the glove compartment, absent any lawful authority, to retrieve documents and placed them on the seat. The search was likely more expansive than just the glove compartment she submits.
63In the end, however, I have no evidence a search was conducted by police prior to PC Lashley’s investigation. Paramedics and firefighters were first at the scene. The defendant needed medical attention and they needed to access the SUV. There were multiple on-lookers that may have interfered with the vehicle.
64Accordingly, I did not find a section 8 breach and there is no basis to exclude the vodka bottle as supportive of lawful grounds for a breath demand in this case. [6]
65The plain view doctrine applies in this case. The vodka bottle in the footwell was observed by Officer Lashley while he was standing outside the SUV. The doors to the vehicle were open. Police officers may validly seize clear evidence of wrongdoing that is in plain view provided that the officers are otherwise lawfully engaged in the execution of their duties, which was the case here. [7]
There was no detention in the ambulance
66The defence argues that Mr. Arudselvam was detained in the ambulance by police and a right to counsel caution should have immediately followed. I concluded there was no such detention. I recognize the defendant was not leaving the ambulance, but it was for reasons unrelated to a police detention. As noted, I accepted Officer Lashley’s evidence that he considered the scene to be an accident investigation and that the defendant had suffered a personal injury. His grounds, however, do not crystalize, until he investigates the BMW at which point the tenor of the investigation changes.
D. The applicable mens rea for refusal and failure offences
67Ms. Locke argues the applicable mens rea for this offence is a specific intention not to provide a breath sample only when it is established the defendant understands that he has a legal obligation to do so.
68On this issue, Ms. Locke concedes Mr. Arudselvam’s language difficulties did not prevent him from understanding he had a legal obligation to provide a breath sample; what he couldn’t adequately express to police she argues, was his difficulty in providing a suitable sample because of his chest pain.
69Mr. Foreman counters the Crown is not required to prove Mr. Arudselvam intentionally failed or refused to provide a sample. In other words, the Crown need not prove intentional non-compliance to ground the defendant’s liability in this case. Specifically, he argues the only elements of the offence the Crown must prove beyond a reasonable doubt are that the accused knew a demand had been made and the defendant failed to supply a suitable sample of her breath.
70Mr. Foreman’s conclusion is based on a plain reading of s. 320.15(1), which he submits based on the principles of statutory interpretation establish that knowledge, not intent, is the applicable mens rea requirement under this provision.
71In 2018, Parliament repealed and replaced all driving provisions in the Criminal Code of Canada. The provision governing a failure or refusal to provide a screening or breath demand has been amended.
72Section 320.15 of the Criminal Code currently states "[e]veryone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28”.
73Prior to the most recent amendment, the precursor to s. 320.15 (1) was s. 254(5) which read, “[e]veryone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.” The only change post-amendment is the insertion of the following, “knowing that a demand has been made.” The addition of the word “knowing” is included within the commas with the phrase “knowing that a demand has been made” and serves according to the Crown to add a mental requirement to the words “that a demand has been made.”
74The previous version of the refusal offence, contained in the now-repealed s. 254(5), caused courts to divide on the mens rea of the offence.
75Some courts have held that a refusal must be proven by the Crown to be intentional in order to ground liability under this offence. [8] A second line of authority based on a 2012 decision by Code J. - R. v. Porter, 2012 ONSC 3504, holds that knowledge of the prohibited act itself, that is, a failure to provide a suitable sample is sufficient to satisfy the mens rea component for this offence.
76This debate is thoroughly canvassed in a decision by Justice Paciocco, as he then was, in R. v. Soucy, 2014 ONCJ 497, [2014] O.J. No 4518 (OCJ), which is not necessary to repeat in this decision.
77In 2016, prior to the amendment, Justice Nordheimer, as he then was, in R. v. Slater, 2016 ONSC 2161 – a summary conviction appeal judgment, attempted to reconcile these competing lines of authority:
At paragraph 12, Nordheimer J.A. stated:
The decision in Sullivan is consistent with what I say is the proper reading of both Lewko and Porter and, that is, that, absent evidence to the contrary, or evidence that raises a reasonable doubt, proof of the requisite mens rea for the offence will be met by the application of the general principle that a person, who does something that has predictable consequences, usually intends or means to cause those consequences. Put more directly, evidence that a person who tries multiple times to provide a breath sample, and in each instance fails to provide a sample, gives rise to an inescapable inference that s/he is intending that result, absent some other evidence being present that would suggest an absence of such an intent, or at least raise a reasonable doubt about it.
78Under this approach, the Crown is still obligated to prove mens rea, but an inescapable inference makes this task straightforward. Proof of mens rea will be met by the application of the general principle that a person usually intends to cause consequences which are predictable. [9]
79According to Mr. Foreman, Parliament’s amendment to the failure or refusal to provide a breath sample provisions have now settled this debate and this Court need not decide which line of authority is more persuasive.
80Although the Act to amend impaired driving related offences of the Criminal Code came into force in December 2018, there is no Ontario appellate authority on this point. Indeed, the issue has been rarely considered by the lower courts. [10]
81There is appellate authority from other provinces. In R. v. Turnbull, 2022 ABQB 42, a summary conviction appeal judgment from Alberta, the court held post-amendment that the mens rea requirement is satisfied by knowledge a demand has been made, and no further intention need be proven by the Crown. Specifically, the Crown only need prove the defendant knew a demand had been made and subsequently failed to supply a suitable sample. The onus then shifts to the defendant to establish, on a balance of probabilities, a reasonable excuse for his failure to provide a suitable sample.
82Similarly, in R. v. Sweet, 2022 SKQB 126, a decision from Saskatchewan, Gerecke J., sitting as a summary conviction appeal judge, concluded the new language in s. 320.15 establishes Parliament’s intent that the mens rea element of the offence is satisfied once the accused knows that the demand has been made.
Parliamentary intent
83During submissions on this issue, I requested the parties provide written materials, including Hansard, to assist in determining Parliament’s intent in enacting Bill C-46. The Crown provided an electronic document released by the Department of Justice Canada, entitled “Backgrounder for former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, as enacted.”
84The backgrounder released on August 2019, sets out the purpose and intention of Parliament in enacting Bill C-46. The document specifically explains the change in wording was to clarify the necessary fault requirement. The backgrounder states, “The simpliciter offence has been amended to clarify the necessary fault element for proof of the offence. Previously, the offence of failure or refusal to comply with a demand did not state the necessary mental fault element required for conviction. The provision now provides that knowledge that the demand had been made is sufficient to prove the mental element.” [11]
85I accept the backgrounder is directly relevant to this issue. It is a government authored document, drafted for the purpose of explaining the purposes and objectives of amendments made to the Criminal Code.
86Parliament clearly intended the mens rea requirement of s. 320.15 to be knowledge that a demand had been made.
Statutory interpretation
87In R. v. A.A., 2015 ONCA 558, a case concerning the interpretation and application of the definition of exploitation under s. 279.04 (human trafficking offences), the Court of Appeal outlined the basic principles of statutory interpretation. Specially, “That the words used are to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme and object of the Act and the intention of Parliament.” Accordingly, when a statute is amended, it is presumed the amendment was made for an intelligible purpose, such as clarifying the law or correcting a mistake in the interpretation of the enactment. [12]
88It reasonably follows that the inclusion of the word “knowing” in s. 320.15, combined with the absence of any reference to “intent,” is a clear indication that Parliament intended to clarify the mens rea in favour of knowledge and not intention.
89Of note, had Parliament in enacting Bill C-46 wanted to clarify the mens rea as intention, this could have been easily accomplished by adding the word “intentionally” or “willfully” before “fails or refused to comply” as it has in many other offences in the Criminal Code. Parliament chose not to.
Elements of the offence
90The Crown must therefore establish three elements to prove the accused committed an offence under s. 320.15 (1):
(i) There was a lawful demand made; (ii) The accused knew the demand was made; (iii) A failure or refusal by the accused to produce the required sample
91It is well established that when considering whether the Crown has proved beyond a reasonable doubt that the accused has failed to comply with a breath demand, the court must look at all of the circumstances of the entire transaction between the police officer and the accused. [13]
92Once the Crown proves these elements of the refusal offence, an accused can still avoid a conviction if he or she establishes a reasonable excuse on a balance of probabilities. [14]
E. Reasonable excuse
93The defence argues that this Court accept Mr. Arudselvam’s evidence that his chest pain prevented him from providing a suitable breath sample. Ms. Locke further submits the defendant’s request for a last chance to provide a breath sample was a bona fide request.
94She points to the photos of the car accident, which were tendered as exhibits. The photos she says show in her words, “a destroyed motor vehicle.” That the air bags were deployed. That Mr. Arudselvam was in a neck brace for the duration of his time with the paramedics.
95As explained by Campbell J. in R. v. Pletas, 2014 ONSC 1568, [2014] O.J. No. 1136 (S.C.J.), a "reasonable excuse" is not a denial of either the physical or mental elements of the offence but refers to matters that stand outside the requirements that the Crown is obliged to prove. The court goes on state at paragraph 67, “It is an assertion that some additional factual circumstances, beyond proof of the actus reus and mens rea of the offence preclude the imposition of criminal liability. Evidence of explanations or excuses for failed attempts to provide breath samples is relevant to the defence of "reasonable excuse."
96Mr. Arudselvam testified that he tried his best to provide a breath sample but that he was having serious chest pain. He described it as someone putting a heavy weight on his chest. The airbags had deployed at the time of the accident. He was wearing a seatbelt.
97The photographs taken by police that night bear witness to a serious accident. The front end of the BMW sustained the bulk of the damage. The car is not salvageable. The images suggest a hard front-end impact. The defendant is fortunate not to have sustained permanent injuries.
98It is reasonable in the circumstances to conclude that Mr. Arudselvam would have suffered an injury to his chest. The issue is whether the injury constituted a medical excuse sufficient that the defendant could not provide suitable sample.
99In R. v. Malicia, [2004] O.J. No. 6016 (SCJ) Epstein J.A., as she then was, stated the following in the context of a medical excuse:
32 I adopt the statement of law enunciated by Richard J. of the Yukon Territory Supreme Court in R. v. Pederson, [1993] Y.J. No. 72, dated March 25, 1993, where he states at paragraphs 5 and 6:
"In my respectful view, the trial judge, in his oral reasons, correctly stated the law as to when a medical condition constitutes a "reasonable excuse" in the context of s. 254(5):
"The law is clear that if a person cannot provide a sample of this kind by reason of a medical condition that is a reasonable excuse. Now, when say he cannot provide a sample, this does not mean that it is absolutely and utterly impossible for him to provide a sample. It means that the medical condition must make it either extremely difficult or extremely painful and/or uncomfortable or involve some risk to the accused's health. So it is not an absolute, but it must be a condition which, as I say, makes compliance extremely difficult. It is simply not the case that any respiratory difficulty which makes it more difficult for the accused than for the average person involves a reasonable excuse."
100Justice Epstein went on to state, "The question therefore comes down to whether Mr. Malicia has satisfied me that proper compliance with the breath demand would have been extremely difficult or painful and/or uncomfortable." [15]
101I found Mr. Arudselvam to be a credible witness. He readily admitted he had been drinking that night. He gave frank evidence that he was worried about giving a breath sample to police. He readily agreed that he understood providing a sample could lead to him being criminally charged
102I accepted his evidence that he attempted to explain in Tamil to Officer Churchill that he was trying to provide a breath sample, but that the officer did not understand. Officer Churchill recalls no such exchange.
103I had limited confidence in the officer’s account of events at the hospital. I did not find Cst. Churchill to be a particularly reliable witness. He could not recall for instance whether Officer Lashley had told him he had smelled alcohol on the defendant – an important fact in an impaired investigation. Further he neglected to mention in his notes that an open bottle of vodka was located in the BMW, a particularly crucial detail to have omitted.
104On the issue of whether the defendant attempted to explain his inability to provide a breath sample, I prefer Mr. Arudselvam’s evidence.
105I was struck by the fact that no words were exchanged according to Officer Churchill during the full course of breath testing at the hospital, except after the defendant was arrested and asked for another attempt to provide a sample. Officer Churchill explained the breath testing process through a series of gestures and demonstrations, which standing alone is not problematic but when it became evident that the defendant was not providing a suitable breath sample, the officer made no verbal inquires to try and ascertain an explanation. Instead, the evidence suggests Officer Churchill immediately concluded Mr. Arudselvam was feigning attempts at providing a breath sample soon after the first attempt.
106The duration of breath testing from the first attempt to the last attempt was approximately ten minutes. According to Officer Churchill he gave the defendant five attempts to provide a sample. Two of the attempts occurred within the same minute. According to Mr. Arudselvam the officer gave him three attempts before he was arrested. By either account the duration was short.
107During cross-examination, Cst. Churchill was asked why he never asked the defendant why he couldn’t provide a breath sample. The officer responded he couldn’t say, explaining, “I felt that our body language or our demeanour after the fifth attempt would have been sufficient enough to indicate to him that, you know what’s going on here, man, like why aren’t you doing this?”
108Indeed, PC Churchill didn’t even verbalize the possible consequences of failing to provide a breath sample. He simply pointed to his handcuffs to suggest the defendant would be arrested if he couldn’t comply. His escort officer provided a more fulsome explanation.
109To be clear, Mr. Arudselvam testified he understood he would be arrested if couldn’t provide a breath sample, but I found the investigation at the hospital to be rushed and poorly conducted. Officer Churchill frankly admitted that he along with his escort officer were getting impatient at the point the defendant was cautioned. He agreed the emergency area of the hospital was busy.
110When Ms. Locke queried why he believed he was receiving no verbal feedback from the defendant during breath testing, Officer Churchill testified the defendant may have not been speaking because he was concerned there would an odour of alcohol coming from his breath. An unsubstantiated assumption. Cst. Churchill couldn’t make the marginal effort to verbally engage or solicit some form of feedback from Mr. Arudselvam during the testing process when it became clear that the defendant was not providing a suitable breath sample. It is not unsurprising that the officer missed or was not particularly interested in Mr. Arudselvam attempt to explain the pain in his chest.
111Of note, Officer Churchill made no basic inquiries about the defendant’s ability to speak English, although he testified that had he concluded Mr. Arudselvam had difficulty with the language he would have requested an interpreter, which he explained was available through a third-party translation service to the Toronto Police Service or sought out a Tamil speaking officer to assist. This never occurred.
112Pointedly Officer Churchill testified, “At no point in the interaction did I believe that the defendant did not speak English.” This conclusion is simply unreasonable. It would have been clear based on even a brief interaction with Mr. Arudselvam that he lacked a basic ability to communicate in English. During the defendant’s testimony in this trial, which occurred with the assistance of an interpreter, he was asked where he worked – his response which was in English was unintelligible. When asked to spell his employer’s name, Mr. Arudselvam made several non-sensical attempts in English. Even the casual observer would conclude the defendant had a bare grasp of the English language.
113I also find it odd that had Officer Churchill genuinely believed the defendant understood English why he felt it necessary to resort exclusively to physical gestures when verbal instructions would suffice or least supplement the officer’s demonstrations.
114I point this concern out because it calls into question the veracity of Officer Churchill’s observations during the investigation at the hospital including his conclusions that Mr. Arudselvam was actively feigning attempts. I don’t disagree that a court is entitled to rely on the opinion of a police officer operating an approved screening device as to the adequacy of the breath samples proffered, but the weight afforded to that conclusion is connected to the officer’s credibility and the reliability of the foundation for that opinion.
115Despite my concerns about the veracity of the police investigation, the inquiry at this stage must focus on the defendant’s actions and his medical condition. The onus lies with the defendant to satisfy this court he had a reasonable excuse.
116I have considered in my evaluation of the defendant’s medical excuse the fact that Mr. Arudselvam did not sustain any permanent injuries to his chest as a result of the accident. Further, he did not seek out any follow-up medical care once he was discharged. He maintained his chest continued to hurt for another five days post-hospital stay. I have also taken into account Officer Churchill’s evidence that the provision of a breath sample is equivalent to blowing bubbles.
117Despite these facts which potentially undermine the defendant’s claims, what is particularly striking in my assessment is the nature of the accident. It is clear that Mr. Arudselvam was involved in a serious front end car accident – this is obvious from the photographic evidence. I have accepted based on an assessment of the defendant’s credibility that he was suffering significant pain to his chest area. Specifically, in applying the analytical approach from R. v. Malicia, I am satisfied on balance that the provision of breath sample would have been in the circumstances extremely difficult or painful and/or uncomfortable. In other words, his chest pain prevented the defendant from producing a proper sample.
118In support of this conclusion, I accepted that Mr. Arudselvam made a genuine attempt to explain his medical distress to Officer Churchill, who either does not recall the attempt or ignored the defendant’s efforts to communicate. I accept there is no obligation on part of a defendant to mention an excuse to police at the time of refusal or failure. However, as the British Columbia Court of Appeal, noted in R. v. Ferron, [1989] B.C.J. No. 1319, when determining the reasonableness of the excuse, the trial judge is entitled to take into account whether or not the excuse was communicated to the officers at the time of the demand or attempted taking of the sample. [16]
119Further, I note the last chance request came within seconds of Mr. Arudselvam’s arrest, suggesting his previous attempts were genuine. I did not conclude the defendant was feigning or attempting to manipulate the breath testing process and I have attached limited weight to Officer Churchill’s observations in that regard.
120The charge is dismissed.
121I want to thank both counsel for their fulsome and thoughtful written submissions in this case.
H.S. Amarshi J.
[1] It was PC Kyle Wagner, Officer Churchill’s escort officer, that cautioned the defendant [2] Section 320.27 of the Criminal Code. [3] See R. v. Padavattan, [2007] O.J. No. 2003 (SCJ). [4] R. v. Quansah, 2012 ONCA 123, at paras, 45-49. [5] See also R. v. Padavattan, [2007] O.J. No. 2003 (SCJ). [6] To be clear, Ms. Locke’s initial argument was that Officer Lashley had the requisite legal grounds for a breath demand in the ambulance prior investigating the BMW and therefore the corresponding delay rendered the formal breath demand unlawful. [7] See R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para 37. [8] See R. v. Lewko, 2002 SKCA 121. [9] R. v. DeClair, 2020 ONSC 2033, at para 40. [10] See R. v. Karunakaran, 2021 ONCJ 607; R. v. Wharton, 2020 ONCJ 52; R. v. Sabetti, 2021 ONCJ 593. There is no indication the applicable mens rea issue was litigated in any of these decisions. [11] Section 3.5. Accessible electronically at https://www.justice.gc.ca/eng/cj-jp/sidl-rlcfa/c46b/p4.html#s3-5 [12] R. v. A.A., 2015 ONCA 558, at para. 69. [13] R. v. Tavangari, [2002] O.J. No. 3173 (OCJ). [14] R. v. Goleski, [2015] S.C.J. No. 6. [15] R. v. Malicia, [2004] O.J. No. 6016 (SCJ) at para. 33. See also discussion in R. v. Turcotte, 2016 ONCJ 184. [16] See also summary at page 269, Justice J. Kenkel, Impaired Driving In Canada, Fifth ed., Toronto, LexisNexis Canada Inc.