Court File and Parties
DATE: October 3, 2022 COURT FILE No: 20-1475 ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
-AND-
ALEXANDR MASSALIDA
Before: Justice M. G. March
Heard on: January 24 & 31, June 23 and August 5, 2022 Reasons for Judgment released on: October 3, 2022
Counsel: Ms. Goher Irfan, Counsel for the Crown Mr. Norm Stanford, Counsel for the Accused
Introduction
1The accused, Alexandr Massalida (“Massalida”), stands charged that on November 5, 2020, knowing that a demand for a breath sample had been made by a peace officer, he failed or refused to comply with it contrary to section 320.15(1) of the Criminal Code of Canada (“the Code”).
2Crown and defence counsel agreed at the outset of the trial that the Application alleging infringements of Massalida’s sections 7 and 9 rights under the Canadian Charter of Rights and Freedoms (the “Charter”) could be heard in a ‘blended’ proceeding.
3Defence counsel made admissions as to the date in question, the Court’s jurisdiction over the matter and the identity of the accused before the Court.
The Relevant Evidence
Cst. Lynch:
4When he testified, Constable Lynch (“Lynch”) had some 9 years of policing experience with the Mattawa and Upper Ottawa Valley OPP detachments.
5On November 5, 2020 at 23:37 p.m., Lynch was partnered with Constable Rosano (“Rosano”) performing general law enforcement duties. While stationary in their police cruiser at the intersection of McKay and Nelson Street in the City of Pembroke facing northbound, the officers noticed a black GMC pickup truck proceed through an amber light.
6Rosano activated his emergency lights and pursued the truck. After roughly 3 blocks, the truck pulled over. Lynch noted that there was some slight deviation of the vehicle within its lane before it stopped.
7Lynch exited the cruiser to keep watch on the truck’s two passengers located on its passenger-side in the front and the rear of the vehicle, while Rosano dealt with the driver, Massalida.
8After a short period of time, Lynch observed that Rosano had asked Massalida to exit the vehicle. Lynch had earlier noticed that Massalida was having trouble locating his driver’s documents.
9Lynch then observed Rosano issue an approved screening device (“ASD”) demand to test a sample of Massalida’s breath for the presence of alcohol in his body. Massalida accompanied Rosano to the back of the truck to provide one. Lynch noticed that as Massalida rounded the rear of the vehicle, he was slightly unsteady on his feet.
10Rosano retrieved the ASD from the cruiser. He returned to where Massalida was standing. Rosano read the demand to Massalida from his duty book.
11In Lynch’s view, Massalida appeared to understand the demand made of him by Rosano, but he refused to provide a sample. Lynch went on to explain that Rosano and he explained the consequences as best they could to Massalida as to what would occur if he failed to provide a sample of his breath.
12Lynch added that Massalida was very cooperative with the officers, but he still refused. As a result, he was arrested at 23:42 and handcuffed to the rear.
13In terms of what was explained to Massalida, Lynch clarified that the accused was told that it was the same as if he had failed the ASD and had been charged with impaired driving.
14Following his arrest, Massalida was escorted back to the cruiser, searched and placed in the rear. Lynch testified that the reason for the search was to ensure officer safety and to remove any methods of escape from Massalida.
15Lynch noted that the owner of the truck, the front seat passenger, was very upset knowing the vehicle would be impounded. The rear seat passenger, who claimed to be Massalida’s brother, asked to be arrested too. Lynch found that request to be strange.
16At 00:04 on November 6, 2020, police left the scene with Massalida en route to the Pembroke OPP detachment. They arrived at 00:12.
17When questioned by Crown counsel as to whether next steps were explained to Massalida, Lynch said no. Massalida was put in touch with duty counsel at his request.
18Due to the fact that Massalida lived “out of town”, Lynch believed he needed to ensure that if the accused changed his address, he would have to notify police. As the officer pointed out, Massalida could not produce a valid driver’s licence. He only had a Health Card.
19Police served Massalida with an Automatic Driver’s License Suspension, an Undertaking to comply with conditions of release and to appear in Court, tow impound forms, a ticket under the Highway Traffic Act and all other related paperwork relating to his criminal charge.
20Lynch confirmed that Massalida did not state any reason for why he was not providing a sample of his breath. He simply stated he did not want to. He was polite and direct in his dealings with the officers.
21Under cross-examination, Lynch confirmed that he did receive training as a police officer on notetaking. However, with an impaired driving type of investigation, he did not normally take out his duty book to make contemporaneous notes. The times he provided in his earlier evidence therefore were approximations.
22Lynch acknowledged that if he had made observations regarding any signs of alcohol consumption on the part of Massalida, he would have noted them in his duty book. Lynch did not make any such notes. He did not detect an odour of alcohol coming from Massalida.
23Lynch agreed that his notes did not include any reference to an explanation being given to Massalida setting out the consequences for failing to provide a sample of his breath. The officer’s recollection while testifying was that he told Massalida that if he didn’t provide a sample of his breath, the consequences would be the same as if you registered a “fail” on the ASD.
24Lynch testified that he was aware that a “fail” result on the ASD does not constitute a criminal offence. It would only provide a basis for police to arrest an accused, to allow for the making of a further breath demand, and to bring a suspected impaired motorist to the police station to provide one.
25Lynch acknowledged it was his decision to have Massalida arrested.
26The only noted observation of unsteadiness made by Lynch, he agreed, was the slight stumble near the rear of the truck.
27Lynch explained that Massalida was given a ticket for proceeding through the amber light because he failed to slow down for it. Lynch agreed that the slight deviation within its lane made by the truck Massalida was operating was not a fact noted in his duty book. In any event, Lynch did not consider it to be a sign of impairment of Massalida’s ability to drive.
28Lynch added as well that when Rosano pursued the truck, he did not activate the siren. He only used the emergency lights. The truck pulled over safely and properly within 400 m of the intersection from where it had proceeded through the amber light.
29Lynch stated that it was his decision to bring Massalida to the police detachment to complete the necessary paperwork. In the majority of such cases, he would bring a detained motorist to the station, notwithstanding the police cruiser is equipped with a laser printer. Lynch would not release an accused in those situations at the side of the road.
30Lynch verified that he was aware that the Code requires an officer to release an accused as soon as practicable if the arrest is executed without a warrant. Lynch agreed that Massalida was not a flight risk. Lynch could not remember if he knew that Massalida did not have a criminal record on the night of his arrest, but the officer was aware of that fact at the time he testified.
31When questioned as to whether he was wearing a surgical mask in dealing with Massalida, Lynch testified that he could not be 100% sure, but he was fairly certain that he had been. He agreed that Massalida was not wearing one. Nor did the officer offer him one.
32After he was shown the video footage of the police detachment on the night of Massalida’s arrest, Lynch agreed that Rosano was leading the accused into the station. No one was wearing a face covering. Lynch further acknowledged that during the entire booking process for Massalida, masks were not used, nor was it likely that they were worn beforehand when police were dealing with Massalida at the roadside.
33Lynch agreed that in July and September 2020, all OPP officers were under a clear direction to wear masks inside an OPP facility, or outside in dealing with members of the public, where a radius of 6 feet cannot not be maintained.
34When pressed by defence counsel that Massalida asked for his wallet and a face mask from the truck following his arrest, but police denied him the opportunity to obtain them, Lynch testified that he could not recall whether the accused had made that request.
35Lynch did not explain why he was not wearing a mask in his dealings with Massalida.
Cst. Rosano:
36At the time of giving his evidence on January 31, 2022, Rosano had been a police officer for just over two years. He was hired in November 2019. He began his road duties on May 9, 2020.
37On the date of the alleged offence, November 5, 2020, Rosano was working the night shift (19:00 – 07:00). At 23:38, Rosano saw a black pickup truck proceed through an amber light at the intersection of McKay and Nelson streets in Pembroke. He decided to conduct a traffic stop of the vehicle to check on the sobriety of its driver.
38The operator of the vehicle did not pull over until the intersection of Peter and Nelson streets. Initially, Rosano testified, he thought police may have to engage in a pursuit. Although he could not recall how long it took him to activate his emergency lights while following the truck, he perceived it to be a “prolonged delay” before it moved to the side of the road.
39When the truck eventually did stop, Rosano “jumped” out of his police cruiser and proceeded immediately to the driver’s window of the truck. Rosano stood within a foot or two of the driver’s door to be able to look inside the vehicle. There he conversed with Massalida, who had no driver’s licence on his person to present to Rosano, only a Health Card. Massalida explained to Rosano that he did have a temporary Ontario driver’s licence, but he did not have it with him.
40While speaking with Massalida, Rosano was able to detect the odour of alcohol emanating from inside the truck. The officer could hear that Massalida’s speech was slurred. It appeared as well to Rosano that Massalida’s eyes looked watery as well.
41Due to Massalida’s difficulty in locating an identification card while flipping through his wallet, his movements in general and the look in his eyes, Rosano asked Massalida if he was “okay”.
42Rosano requested that Massalida exit the truck. At 23:42, the officer then read the ASD demand to Massalida from the card located in his duty book. Rosano went to his cruiser to retrieve the ASD. Lynch remained with Massalida between his truck and the cruiser. Upon his return to the vehicle Massalida was driving, Rosano began to take out a straw to hand to him in order for him to be able to provide a sample of his breath.
43In response, Massalida waved his hands and said, “No”. Rosano was concerned that Massalida did not understand the repercussions of a refusal. Consequently, Rosano explained to Massalida multiple times what would happen if he did not comply with the demand.
44Rosano testified that he told Massalida that if he did not provide a sample of his breath, his driver’s licence would be taken away; he would be charged with refusal and his vehicle would be impounded. Rosano stated to Massalida that a refusal carried the same consequences as failing the ASD in terms of license suspension and vehicle impoundment.
45Rosano could not remember if he instructed Massalida on how to properly provide a sample of his breath into the ASD.
46Rosano testified that Massalida told him, “No. It’s fine. Do what you got to do.” Lynch then arrested Massalida at 23:43, handcuffed him and placed him in the rear of the police cruiser.
47Rosano did not provide Massalida with his rights to counsel until 23:55. He agreed that he should have told Massalida about his rights to counsel “right away”. The officer attributed the delay to informing the accused about his rights to counsel, to searching him, to explaining what would happen to the truck and to conversing with him about his father-in-law.
48As well, Rosano cautioned Massalida regarding the use which could be put to any statement he made to police.
49Massalida indicated a desire to speak to his father-in-law, who was an occupant in the truck. Rosano clarified for Massalida that any telephone call he wished to make had to be to a lawyer. The officer did not obtain any explanation from Massalida as to why he wished to speak to his father-in-law. After a few minutes, Rosano convinced Massalida he should speak to duty counsel.
50At 23:58, Massalida indicated his desire to speak to a lawyer. He was taken to the OPP detachment in Pembroke to provide him with an opportunity to consult with duty counsel in private. Rosano stated that this was to ensure Massalida’s safety and to “evaluate” his sobriety. The officer went on to testify that due to his “state of being intoxicated” it would not be safe to release him on the side of the road in a public place after he had been charged.
51Rosanna did not note the time at which police left the scene of the traffic stop.
52At 00:45, Massalida was permitted to speak with duty counsel. Rosano estimated it was within 10 minutes after Massalida had been booked into the OPP detachment. The officer was candid in testifying that he needed instruction from Lynch on how to properly fill out the forms.
53Rosano had earlier explained in his evidence that Lynch was his coach officer. Rosano himself had only been “on the road” by that point for a period of six months. He was still serving his ten month probationary period as an OPP officer.
54Eventually, at 01:42 on November 6, 2020, Massalida was released from police custody.
55Under cross-examination, Rosano confirmed that he received training as a peace officer on notetaking. He agreed that his notes ought to have been made in a more fulsome manner. Two pages for an impaired driving case were insufficient.
56Rosano acknowledged that he had left out any reference to slurred speech on the part of Massalida in his notes. He could not state in his evidence any specific words Massalida used which were slurred.
57He agreed that Massalida also spoke English with an accent.
58When questioned about the length of the pursuit after he had activated his emergency lights and siren, Rosano agreed with the approximation that all Massalida had travelled was 400 m before stopping.
59Rosano acknowledged when it was suggested to him that Massalida had indeed pulled over safely and properly.
60Rosano also confirmed that there was no difficulty in identifying Massalida. He did produce an Ontario Health Card. The police onboard computer indicated that Massalida was a properly licensed driver in the Province of Ontario. It also contained a record of his current address.
61Rosano was clear that the odour of alcohol he was able to smell was emanating from inside the vehicle.
62Even before Rosano smelled alcohol, he was asking Massalida if he was okay. His concern arose from Massalida’s meticulous manner in looking through each card he went through in his wallet.
63Rosano agreed that he did not ever ask Massalida if he had consumed alcohol, nor the rear seat passenger. The officer did pose that question to the front seat passenger. That passenger denied that he had. Rosana therefore felt that he could reasonably suspect that Massalida had alcohol in his body.
64Rosano, however, did not smell alcohol on the breath of Massalida after he exited the truck. Nor did Massalida have any issues, from what Rosano could observe, with his walking or balance upon exiting.
65Rosano had no note of Massalida saying “No” or waving his hands to indicate that he did not wish to comply with the officer’s demand to supply a sample of his breath. Remarkably, Rosano did not make any note of what specific words Massalida used to signify he was refusing to comply with the officer’s demand.
66Rosano agreed that the entire interaction between the issuance of the demand and the alleged refusal taken down by him in his dutybook was as follows:
“Accused asked to step out of the vehicle and read ASD demand and he refused.”
67Rosano was not 100% sure if Massalida asked about the consequences of a refusal or if it was something that he always did, as a police officer, when dealing with a suspected impaired motorist.
68Rosano did not make any notes regarding specifically what he said to explain to Massalida the consequences of a refusal.
69The officer did tell him it was the same as if he failed the ASD. Rosano read the ASD demand at 23:42. Lynch arrested Massalida at 23:43 according to Rosano’s notes.
70When specifically asked if only one minute had elapsed between reading the demand to Massalida and his arrest, Rosano did not agree with that suggestion put to him by Massalida’s counsel. The officer insisted that the consequences of a refusal were explained to Massalida. He was then arrested, handcuffed and searched. However, Rosano did concede that by 23:45 or 23:46, Massalida was in the back of the cruiser and in police custody.
71Following the provision of rights to counsel to Massalida, Rosano confirmed that there was a lengthy conversation regarding whether he was understanding what they meant. Massalida was insisting on speaking to his father-in-law. Nonetheless, Rosano did not think for a second that Massalida was being difficult with police.
72Rosano conceded that Massalida may not have been understanding what was happening. That was why the officer wished for him to speak to duty counsel.
73The officer agreed as well that he delayed placing a call to duty counsel while Lynch and he were working on the release documents in the constable room where they were taking care of the booking process.
74Rosano could not recall whose decision it was to take Massalida to the OPP detachment. It was not something that crossed Rosano’s mind at the time whether police should or should not. In Rosano’s view, it was not logical to release Massalida at the scene. It did not make sense for him to call duty counsel from the police cruiser. In addition, there were numerous forms to complete. Last but not least, Rosano believed Massalida to be intoxicated.
75Rosano could not recall if Lynch or he were wearing face masks at the scene of the traffic stop. Rosano agreed that they were not at the police detachment. However, he would not concede that if they were not wearing them at the detachment, they must not have been wearing them at the roadside.
76Rosano testified he was aware of OPP policy regarding the mandatory wearing of face coverings which were issued in July and September 2020.
77The officer, however, was not prepared to agree that he was disregarding policy on November 5 and 6, 2020, when he was dealing with Massalida. At that time, Rosano was more concentrated on investigating Massalida’s possible impairment by alcohol while driving a motor vehicle.
Alexandr Massalida:
78When Massalida testified on June 23, 2022, he was 26 years of age. He was living in Oakville. He is a welder by trade. He specializes in servicing water towers all over Canada, but mostly in Ontario. He has done this type of work for the past four years.
79Massalida has no criminal record. Prior to November 5, 2020, he had never been charged with anything before.
80On the night in question, he explained that he had been working that day, a Thursday, on the water tower in Petawawa. He was staying at a hotel in Pembroke and had been there since the previous Sunday.
81He recalled that he finished work on Thursday around 19:00. He had no alcohol to drink at all that evening.
82Around 22:00 or 22:30 PM, his brother realized that he had left his painkillers in his vehicle in Petawawa at the job site. His brother has a stomach condition.
83His father-in-law, his brother and he all drove to the water tower in Petawawa to retrieve the medication. Upon their return to their hotel in Pembroke, they were stopped by police.
84Massalida could not recall being told by police the reason they had pulled him over. All he could remember was the ASD being brought to his father-in-law’s truck which Massalida was operating at the time.
85Massalida did add, however, that he received a ticket for going through an amber light, but that was when he was at the police station.
86Upon being presented with the ASD, Massalida told Rosano, “I don’t want to do it.” Massalida added that the officers were not wearing masks, nor keeping their distance from him. To Massalida’s mind, the officers were not taking the pandemic seriously. They were not respecting Covid protocols.
87Massalida was not wearing a mask himself. He asked if he could retrieve it from the truck after he was told to step out, but police would not permit him to obtain it.
88Massalida testified that the officers told him that if he did not want to do the test, it would be treated the same as failing it, and he would be taken to the police station.
89That information affected the accused’s decision, he testified. He thought he was not obligated to take the test. He thought he would get another chance to provide a sample of his breath at the OPP detachment.
90Under cross-examination, Massalida reconfirmed that the officers told him if he didn’t take the ASD test, it would be the same as if he had failed it, and he would be taken to the police station.
91It was Massalida’s understanding that he would be given another opportunity to blow there.
92In trying to recollect exactly what he was told by police, Massalida stated, “If you don’t want to do it, it’s fine. It will be considered as if it were a fail.”
93No demonstration was provided to Massalida on how to properly provide a sample of his breath into the ASD. As Massalida put it, the officers did not explain how it operated.
94When provided with his rights to counsel, Massalida indicated that he wished to speak to his father-in-law. In response, the officers clarified that his call must be made to a lawyer, and he would be allowed to do that at the police station.
95Massalida agreed that both police officers were very polite to him.
The Position of the Defence
96Counsel for the defence contended that the evidence adduced during the blended voir dire/trial demonstrated on a balance of probabilities breaches of Massalida’s constitutional rights. He expanded during oral submissions on the grounds set out in his written Charter application without objection from the Crown. Specifically, defence counsel argued that:
a) Massalida’s right to security of the person was violated by the police failure to follow OPP directives regarding face coverings in dealing with members of the public contrary to section 7 of the Charter.
b) The police lacked reasonable suspicion to make an ASD demand of Massalida and thereby breached his section 8 Charter rights to be secure from unreasonable search and seizure.
c) The police arbitrarily detained Massalida by not releasing him at the roadside and serving him with his paperwork there contrary to section 9 of the Charter.
d) Police infringed his section 10(b) Charter rights by not providing him with the information he deserved to be able to retain and instruct counsel of choice without delay.
97As a consequence of the breaches, the defence sought the exclusion under section 24(2) of the Charter of all evidence obtained arising from the moment they occurred.
98Further, counsel for Massalida submitted that the Crown’s evidence did not establish beyond a reasonable doubt an unequivocal refusal on the accused’s part.
The Position of the Crown
99The Crown submitted that the Court was called upon, as it frequently must, to make credibility assessments of the witnesses called to give evidence.
100Constable Rosano’s testimony should be accepted that he observed Massalida proceed through an amber traffic light, which turned red before the truck Massalida was operating completely cleared the intersection.
101When Massalida was stopped by police, alcohol could be smelled inside the vehicle he was operating. Rosano detected slurred speech when Massalida spoke. The accused’s eyes were glazed. As well, he exhibited slow careful movements as he searched for his driver’s license and identification documents.
102Consequently, Rosano had formed a reasonable suspicion for making a demand of Massalida to provide a sample of his breath into the ASD.
103Massalida went on to unequivocally refuse to comply with the demand made by Rosano. Massalida said, “No”, after Rosano read the demand to him in the standard issued form as set out in his duty book. Massalida added, “You guys do what you gotta do,” or words to that effect.
104Even after the consequences of a refusal were explained to Massalida, he chose not to comply with Rosano’s demand.
105Further, the officers were justified in leaving the scene to bring Massalida to the police detachment to facilitate his rights to counsel. The 12 minute delay between Massalida’s arrest and the provision of rights to counsel was not of any great moment. “Without delay” does not mean immediately. A much more nuanced assessment of what is signified by the right to retain and instruct counsel without delay is required.
106Lynch’s practice of bringing suspected impaired motorists to the police detachment was reasonable. The officers had to get away from the irate owner of the truck, Massalida’s father-in-law. Massalida’s detention was not arbitrary as a result.
107The officer’s failure to wear face coverings contrary to OPP policy did not rise to the level of breaching Massalida’s right to security of the person under section 7 of the Charter. The Charter does not protect against insignificant, or trivial limitations of rights. The Crown relied heavily on the unreported decision of Botham J. rendered orally on November 24, 2021, where Her Honour found that the failure by police to mask in an impaired driving scenario did not breach the accused’s section 7 Charter right to security of the person.
108Alternatively, if the Court were to determine that any of Massalida’s Charter rights had been breached, the Crown argued that no evidence should be excluded under section 24(2) of the Charter. The police acted in good faith. They interacted in a respectful manner with Massalida from the time of the initial traffic stop through to his eventual release from police custody. There is no need for the Court to distance itself from the conduct of the police in this case.
109The evidence sought to be excluded (i.e. the observations of Massalida made by police prior to the traffic stop at the roadside, the exchanges between Massalida and police regarding his refusal to provide a sample of his breath and the circumstances surrounding his failure to comply) was reliable and central to the Crown’s case against him. It was the type of evidence which formed the subject matter of the charge before the Court. It went to the merits of the case, which strongly favoured its admission into evidence.
Analysis
110Defence counsel’s argument that the Crown failed to prove Massalida’s refusal to supply a sample of his breath into the ASD is dispositive of this case. Accordingly, I shall address this issue first in my reasons.
111In R. v. Karunakaran, 2021 ONCJ 607, Amarashi J. discussed the gravamina of a refusal or failure to provide a breath sample. His Honour stated:
The elements of an offence under s. 320.15 are the following: (i) A proper demand. (ii) A failure or refusal by the accused to produce the required sample. (iii) An intention as explained by the court in R. v. Slater, 2016 ONSC 2161. That intention may be inferred from the circumstances.
It 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.
Once 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. . .
(ii) Actus Reus
- It is not disputed that there was a failure on part of Mr. Karunakaran to provide a suitable breath sample at the police division.
(iii) Mens Rea
There have been divergent views in the interpretation of the mens rea component for this offence.
There is authority that holds the refusal must be proved by the Crown to be intentional in order to ground liability under this offence. A second line of authority based on a 2012 decision by Justice Code - 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.
This 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.
Mr. Tomovski in his submissions alerted me to a decision by Justice Nordheimer, as he then was, in R. v. Slater, supra – a summary conviction appeal judgment, which reconciles these competing lines of authority and is binding in these circumstances:
At paragraph 12, Nordheimer J. 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.
Under 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.
In 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. The amendment post-dates Justice Nordheimer’s decision, however both Crown and Defence agree that R. v. Slater continues to apply.
The following is an agreed statement on the law from the prosecution and defence which was filed with this court and which I accept:
“Currently, s. 320.15(1) of the Criminal Code states that "[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”. Prior to the most recent amendments, s. 254(5) 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-amendments 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 simply to add a mental (intent) requirement to the words “that a demand has been made”. Thus, an accused must know that a demand has been made. The addition of the word “knowing” does not relate to the portion that previously and continues to be outside the commas, that is “fails or refuses to comply.” As such, R. v. Slater 2016 ONSC 2161 (Ont. S.C.J.) remains good law.” (my emboldened italics)
112I find that Rosano made a valid demand for breath samples from Massalida. The officer read it from his standard, OPP issued card. However, Massalida did not know and did not understand fully what Rosano was requiring of him. Massalida had no option to refuse. Yet what police clearly indicated to Massalida was that his verbal refusal to provide a sample of his breath equated to a ‘fail’ result, as if that were obtained on the ASD. The police thereby gave Massalida misleading, incorrect information.
113Accordingly, I am not convinced the Crown has made out the necessary ‘mens rea’ element of the offence of ‘refusal’.
114I am, more importantly, quite deeply troubled by Rosano’s failure to make any note in his duty book of Massalida saying, “No”, or waving his hands to indicate that he did not wish to comply with the officer’s demand to supply a sample of his breath. Rosano did not make any note of what specific words or gestures Massalida used to signify he was refusing to comply with the officer’s demand. Surely, those words, and arguably the gestures made by the accused, constitute the ‘actus reus’ of the offence (see R. v. Rivera, 2011 ONCA 390 at paras. 92 and 107).
115The only note Rosano made regarding the entire interaction between the issuance of the demand and the alleged refusal was:
“Accused asked to step out of the vehicle and read ASD demand and he refused.”
116In R. v. Jurado, 2007 ONCJ 44, Brown J., in a strikingly similar factual context to this case, wrote:
[35] Because Constable Mann has not seen fit to record in his notes any specific actions or the actual words of the alleged refusals, this court is deprived of the ability to objectively assess whether the words spoken were an absolute refusal. The Crown asks me to accept this officer’s opinion that the words spoken (whatever they may have been) amounted to an outright refusal when the arresting officer cannot recall the actual words spoken at all, in this trial. I would think that a police officer would take the short period of time required in a case such as this to actually make verbatim note of the words of the refusals or the conduct constituting the refusal when those words or conduct constitute the actus reus of the offence.
117In R. v. Ross, 2015 ONCJ 115, Paciocco J., as he then was, picked up on the point made in Jurado by Brown J. and expanded upon it. His Honour, albeit in obiter, held:
The “Refusal” Argument
[51] I want to go on, however, and make clear that even if I had found that the demand was lawful, I would not have convicted Mr. Ross of the refusal offence on the evidence before me.
[52] In a charge such as the present one the onus is on the Crown to prove that there has been an unequivocal refusal. Although it is always important for officers to make complete notes, this is particularly so where the actus reus of the offence is predicated on what an accused person is communicating.
[53] I agree with the sentiment expressed in R. v. Jurado [2007] O.J. No. 501 (Ont. C.J.) by Justice Brown. In that case the officer failed to record the comments said to amount to an unequivocal refusal, but instead wrote his impression or opinion about what the accused was communicating. At para 35 Justice Brown rejected the Crown’s invitation to accept the officer’s opinion that the words spoken, whatever they may have been, amounted to an outright refusal. He commented, “I would think that a police officer would take the short period of time required in a case such as this to make verbatim note of the words of the refusals or the conduct constituting the refusal when those words or conduct constitute the actus reus of the offence.” He then cited R. v. Foster [1999] O.J. No. 5060 (Ont. Sup. Ct) with agreement where Justice Misener said at para 20, “[to infer an unequivocal refusal] simply because that was apparently the opinion of the police officer is an abdication of the judicial function. I would not deny the judge’s right to take that opinion into account, but to accept it as proof beyond a reasonable doubt without so much as a tittle of evidence capable of providing the basis for the opinion is wrong.”
[54] To be clear, it is not impossible in my view for a judge to be satisfied beyond a reasonable doubt that there has been an unequivocal refusal, where the officer fails to record the precise words said to constitute that refusal. The outcome depends on the circumstances. In this case, for example, there is evidence that Mr. Ross attempted for some time to frustrate the roadside screening device and he refused to sign the Promise to Appear. He was being an uncooperative and difficult subject and this does go some way to informing what probably happened.
[55] Still, the evidence before me falls short of enabling me to making a finding beyond a reasonable doubt that Mr. Ross was uttering an unequivocal refusal to provide the evidential sample. I simply have no dependable and decisive evidence to that effect. What I have is the conclusion offered by Cst. Degrasse about what Mr. Ross meant: “He just refused and said he was not going to provide a sample.” While an officer’s description of the tenor of a communication may be sufficient in some cases, it is not in this one. I cannot have confidence in this report given the manner in which Cst. Degrasse testified.
118Upon a considered assessment of Rosano’s evidence, I cannot accept that his recollection of what Massalida said or gestured to him on November 5, 2020, was an accurate and reliable account of how the accused allegedly communicated an unequivocal refusal to provide a sample of his breath. Rosano gave his evidence some 15 months after the material events occurred. Human memory fades with time. If ever this officer could have used an ‘aide memoire’ by way of reference to details recorded in his dutybook, it was when he testified on January 31, 2022. Instead, his note only contained a bald, conclusory statement that “he [Massalida] refused.”
119I find, given the misinformation police imparted to the accused, that Massalida may well have understood that he could skip over the ASD test, go to the police station and provide a sample of his breath after he had spoken to a lawyer. He did not understand the immediacy of the demand (see R. v. Woods, 2005 SCC 42 at para. 44).
120Equally disturbing for me is the fact that Rosano did not make any notes regarding specifically what he said to explain to Massalida the consequences of a refusal. There is no obligation for the police to provide an explanation, of course, but it would have assisted the Crown’s case in demonstrating the dire nature of the demand that was made to Massalida.
121What Rosano did tell Massalida was that a refusal to comply was the same as if he had failed the ASD, which of course, was plainly wrong, in fact and in law.
122Furthermore, the decision by police to charge Massalida was startlingly quick. Rosano read the ASD demand at 23:42. Next Lynch arrested Massalida at 23:43.
123Upon consideration of the Crown’s evidence alone, I am nowhere near satisfied that Massalida knew that a true demand was made of him to provide a sample of his breath into the ASD, and that if he failed to comply with it, he would indeed be charged with a criminal offence with, of course, no option to provide a sample of his breath later at the police station.
124In light of my findings, there is no need to determine whether Massalida’s Charter rights were infringed or denied.
Conclusion
125I am not satisfied beyond a reasonable doubt that the Crown has proven all the necessary elements of the offence of failing or refusing to comply with a demand made under section 320.18 of the Code, without reasonable excuse, contrary to section 320.15(1) of the Code.
126Simply put, I have not been persuaded that Massalida knew that a demand for a sample of his breath was made of him by Rosano, the accused then unequivocally refused, and that in the circumstances of the situation in which the accused found himself at the roadside, he had no option but to comply, if he wished to avoid a criminal charge.
127Massalida shall therefore be found not guilty.
DATED: October 3, 2022
March, M.G., J.