ONTARIO COURT OF JUSTICE
Date: 2024 04 08 Court File No.: Hamilton 23-47101797
BETWEEN:
HIS MAJESTY THE KING
— AND —
AARON ENWRIGHT
Before: Justice J.P.P. Fiorucci
Heard on: July 20, August 21, and September 21, 2023 Reasons for Judgment released on: April 8, 2024
Counsel: R. Branton, for the Crown The defendant Aaron Enwright, on his own behalf
INTRODUCTION
1On March 2, 2023, Aaron Enwright was driving a motor vehicle. He stopped his vehicle at a RIDE check stop operated by Hamilton police officers. When a police officer asked him if he had consumed alcohol or drugs, Mr. Enwright said he had one beer about an hour earlier. The police officer asked Mr. Enwright to turn off the ignition, step out of his vehicle, and accompany the officer. Mr. Enwright did all these things.
2At 2:37 a.m., the police officer read Mr. Enwright the approved screening device (ASD) demand from his notebook. The officer had an ASD in his police cruiser. The cruiser was parked within eight feet of Mr. Enwright’s vehicle. The police officer testified that Mr. Enwright refused to participate in the breath testing, despite numerous warnings about the criminal consequences of non-compliance.
3By 2:42 a.m., the police officer was placing handcuffs on Mr. Enwright and arresting him for failing to comply with the breath demand. At the very moment of his arrest, while being handcuffed, Mr. Enwright said he would provide an ASD sample. The police officer did not permit him to do so. The ASD remained in its locked container inside the police cruiser. Mr. Enwright was charged with failing or refusing to comply with the police officer’s s. 320.27 demand in contravention of s. 320.15(1) of the Criminal Code.
4Mr. Enwright represented himself at his trial. He entered a not guilty plea to the charge. The Crown called two police witnesses. Mr. Enwright chose not to testify or call any other evidence. On March 8, 2024, I acquitted Mr. Enwright and advised the parties that I would provide written reasons for my decision. These are my written reasons.
THE ELEMENTS OF THE OFFENCE
5The s. 320.15(1) offence involves three elements: i) a valid demand; ii) the actus reus, which is a failure or refusal to provide the requisite sample; and iii) the mens rea, which is knowledge that the demand has been made. [1]
6To prove the actus reus, the Crown must establish beyond a reasonable doubt that the accused’s failure or refusal to comply with the peace officer’s demand was unequivocal. In some circumstances, a consideration of the totality of the circumstances may lead a judge to find that an initial refusal followed by an offer to blow was effectively one ongoing transaction that does not support a finding of guilt for the offence. [2] The detainee’s subsequent offer to provide a breath sample must be genuine or bona fides. [3]
ANALYSIS
7Since Mr. Enwright was a self-represented accused, I raised an issue on his behalf related to the validity of the demand, which I will address in these reasons. I find that the Crown established two elements of the offence beyond a reasonable doubt: a valid ASD demand and knowledge that the demand was made. However, the Crown did not prove beyond a reasonable doubt that Mr. Enwright unequivocally failed or refused to provide the sample required of him.
The Validity of the ASD Demand
8P.C. Huss did not present the ASD to Mr. Enwright when he made the ASD demand at 2:37 a.m., nor did he present the device to him when he read the demand again at 2:39 a.m.. The ASD was not warmed up, tested and ready to accept a sample from Mr. Enwright when the demand was made. The device remained in its case in P.C. Huss’s cruiser throughout Mr. Enwright’s interactions with the officer.
9The Supreme Court of Canada recently released its decision in R. v. Breault, 2023 SCC 9, a case in which the police made an ASD demand when no ASD was in their possession. The police had radioed a request for an ASD to be brought to the scene. However, Mr. Breault refused to comply with the demand, so the police cancelled their radio request for an ASD. Breault was a Crown appeal to the Supreme Court of Canada from the judgment of the Quebec Court of Appeal which overturned the guilty verdict.
10Unlike Breault, in Mr. Enwright’s case, the police had an ASD in their possession when P.C. Huss made the demand for a breath sample. I accept P.C. Huss’s evidence that the ASD was in his cruiser. However, the Supreme Court’s reasoning in Breault caused me to make inquiries regarding the validity of P.C. Huss’s demand.
11The issue in Breault was whether the validity of an ASD demand under s. 254(2)(b) (now s. 320.27(1)(b)) of the Criminal Code required the officer to have immediate access to an ASD at the time the demand was made. Under s. 254(2)(b), a peace officer who had reasonable grounds to suspect that a driver had alcohol in their body, could, by demand, require the driver to provide forthwith a sample of breath that, in the peace officer's opinion, would enable a proper analysis to be made by an ASD. The Supreme Court stated that the guidance provided by its judgment in Breault on the interpretation of the immediacy requirement in s. 254(2)(b) applies to the interpretation of the word "immediately" in the current provision, s. 320.27(1)(b). [5]
12The Supreme Court considered the conflicting authorities from the Quebec Court of Appeal (Breault) and the Ontario Court of Appeal (R. v. Degiorgio, 2011 ONCA 52, and R. v. Quansah, 2012 ONCA 123), and held:
8 The Quebec Court of Appeal was correct in law in stating that the wording of the provision allows for a flexible interpretation of the word "forthwith" where there are unusual circumstances related to, among other things, the use of the device or the reliability of the result that will be generated, because the text of the provision indicates that the sample taken must enable a "proper analysis" to be made.
9 It is neither necessary nor desirable to set out an exhaustive list of the circumstances that may be characterized as unusual. For the purposes of this case, it will suffice to say that the absence of an ASD at the scene at the time the demand is made is not in itself such an unusual circumstance. I would therefore dismiss the appeal. [6]
13In Breault, the Supreme Court of Canada disagreed with the following reasoning of the Ontario Court of Appeal:
Where a driver immediately refuses to comply, the prosecution is thus not required to show that, had it not been for the refusal, the police could have administered the test in accordance with the immediacy requirement (Degiorgio, at paras. 57-58, quoting with approval R. v. Danychuk (2004), 70 O.R. (3d) 215 (C.A.)). [7]
14In Degiorgio, also a case dealing with the predecessor s. 254(2)(b), the driver refused three times to provide a breath sample when the officer did not have an ASD in his possession or in his vehicle. There was no evidence that an ASD could be made available “forthwith” to administer the test. The Ontario Court of Appeal upheld the guilty verdict.
15In Breault, the Supreme Court of Canada’s reference to, and apparent rejection of, Danychuk prompted me to raise the issue of whether a valid ASD demand requires the police not only to have the ASD in their possession but to also present the device to the detainee ready to accept a breath sample. In Danychuk, the Ontario Court of Appeal rejected the argument that a valid demand requires the ASD to be warmed up, tested and ready to accept a sample, and the police officer to present the ASD to the driver having explained the process and the consequences of a failure to comply.
16In Breault, after reviewing R. v. Woods, 2005 SCC 42, the Supreme Court stated:
Therefore, the relevant time period for the explicit immediacy requirement is the period between the making of the demand and the moment when the breath sample can be provided [emphasis added]. [8]
17However, the Supreme Court went on to particularize the issue to be determined on the appeal in Breault as follows:
That being so, what must be determined is whether the absence of an ASD at the scene at the time a demand is made under s. 254(2)(b) Cr. C. is an unusual circumstance that justifies a more flexible interpretation of the word "forthwith" [emphasis added]. [9]
18Ultimately, the Supreme Court found that the Crown had “not shown that there was any unusual circumstance that would account for the absence of an ASD at the scene and thereby justify a flexible interpretation of the immediacy requirement [emphasis added]”. [10] In arriving at this conclusion, the Supreme Court agreed with the Quebec Court of Appeal that “the validity of a demand cannot be conditional on the time needed for an ASD to be delivered to the scene”. [11]
19The Supreme Court also said the following in Breault, at paragraph 65:
Such an approach creates intolerable uncertainty for drivers. It is a basic legal principle that ignorance of the law is no excuse. It must therefore be possible for people to know in advance, before committing an act, whether the act constitutes a crime (Mabior, at para. 14). When a detained driver has to respond to a demand to provide a breath sample, the driver must be able to know whether the demand is valid and whether refusing will result in criminal liability (C.A. reasons, at para. 51). In a context where the driver is unable to retain and instruct counsel, it cannot legitimately and realistically be expected that the driver will agree in advance to comply and will then be capable of determining when the delay in the delivery of an ASD justifies a refusal. This also shows why a restrained approach must be taken in identifying what may constitute an "unusual circumstance" allowing for a flexible interpretation of the word "forthwith". The more flexibly the word is interpreted, thereby turning immediacy into a variable requirement, the more necessary it becomes for drivers to retain and instruct counsel (R. v. Talbourdet (1984), 9 D.L.R. (4th) 406 (Sask. C.A.), at pp. 414-15, a contrario). Indeed, this was the wish expressed by the respondent after he first refused to provide a breath sample. [12]
20The Supreme Court rejected the Crown’s argument that Mr. Breault could not rely on the absence of an ASD at the scene to justify his refusal because he was unaware of that absence while stopped by the police. In rejecting this argument, at paragraph 67, Côté J. stated:
Accepting this argument could encourage peace officers not to be transparent, because when they stop a driver, they are normally the only ones to know whether or not they are in possession of an ASD. This would mean that peace officers could, at their sole discretion and in an arbitrary manner, make valid a demand that otherwise would have been invalid if the driver had been informed of the absence of an ASD at the scene at the time the driver was stopped. [13]
21The above passages from paragraphs 65 and 67 of Breault suggest that, at the very least, a valid demand should include a requirement that the police advise the driver that they are in possession of an ASD at the scene, which would permit the driver to make an informed decision about whether they are required to comply.
22However, the Supreme Court’s decision in Breault does not specifically deal with that issue. Instead, the decision in Breault is limited to the finding that the Crown had not established any unusual circumstance that would account for the absence of an ASD at the scene, which made the demand invalid. As there was no valid demand, Mr. Breault’s refusal did not attract criminal liability.
23Furthermore, notwithstanding the reference to Danychuk in Breault, the Supreme Court did not specifically deal with the issue of whether a valid demand requires presentation of an operational ASD to the driver when the demand is made. Crown counsel, Ms. Branton, argued that paragraph 32 of Breault makes it clear that such a requirement does not exist, because the Supreme Court stated:
It is true that operational time is implicit in the word "forthwith", because the officer "has to ready the equipment and instruct the suspect on what to do" (Bernshaw, at para. 64). However, what is in issue in this case is not operational time, but rather the time needed for a device to be delivered to the scene. [14]
24I find that the law has not evolved to the point of requiring the police to present the driver with an operational ASD to make the s. 320.27(1)(b) demand valid.
25Mr. Enwright did not raise any other issues regarding the validity of P.C. Huss’s ASD demand. P.C. Huss stated that, based on his observations of Mr. Enwright’s driving and the admission of consumption of alcohol, he “formed a reasonable suspicion to believe that the driver may have been under some form of impairment to operate a conveyance.” Even though P.C. Huss’s articulation of his grounds to make the ASD demand did not accord with the wording of s. 320.27(1) (reasonable grounds to suspect that a person has alcohol or a drug in their body), I am satisfied that P.C. Huss’s suspicion, that Mr. Enwright “may have been under some form of impairment to operate a conveyance”, “subsumes the required state of mind, i.e. that the accused had "alcohol in [his] body". [15]
26P.C. Huss's testimony satisfies the subjective standard of reasonable suspicion. [16] I accept his evidence regarding his observations of Mr. Enwright’s driving. The following constellation of facts support the officer’s suspicion: i) the accused came around the bend in the road at a relatively quick pace, approaching the RIDE check stop at “a higher rate of speed” than other vehicles; ii) the accused stopped his vehicle beyond the point on the road where P.C. Huss had motioned him to stop using his flashlight; and iii) the accused admitted that he had consumed one beer approximately one hour prior to the RIDE stop. Based on my assessment of the objectively discernible facts, I find that P.C. Huss made a valid ASD demand pursuant to s. 320.27(1)(b).
No Unequivocal Failure or Refusal to Comply with the ASD Demand
27P.C. Huss’s testimony regarding his interactions with Mr. Enwright is the critical evidence upon which the Crown’s case rests. The Crown submits that P.C. Huss’s evidence establishes that Mr. Enwright unequivocally verbally refused to comply with the ASD demand. Although P.C. Parvir Singh was on scene, his testimony did not shed any meaningful light on the actual words spoken by P.C. Huss and Mr. Enwright. [17]
28The Crown says that P.C. Huss was not required to administer the ASD test when Mr. Enwright offered to provide a sample during his arrest. Furthermore, as Mr. Enwright did not testify, the Crown contends that there is no evidence upon which to assess the sincerity of his offer to take the test.
29P.C. Huss testified about the requests he made of Mr. Enwright once he had admitted consuming alcohol:
So, I requested that they turn the vehicle off and step out in order to accompany me for the purpose of an ASD.
30P.C. Huss testified that “[h]e complied and turned his vehicle off and accompanied me to - we started to walk towards my cruiser in order to complete the test”. P.C. Huss said that it was in or around 2:36 a.m. that Mr. Enwright walked to the officer’s cruiser passing by the rear of his own vehicle.
31P.C. Huss did not know that ASD demands are made at the roadside, without giving the driver their rights to counsel (RTC). P.C. Huss apparently did not know that the ASD demand must be made immediately, without delay once an officer forms a reasonable suspicion. The officer did not know that random RIDE stops amount to a detention within the meaning of sections 9 and 10 of the Charter, but that there are constitutionally permissible limitations on these Charter rights, as they have been found to be reasonable limits under s. 1 of the Charter. [18]
32While it is concerning that, at 2:36 a.m., P.C. Huss read Mr. Enwright what he described as “his rights to counsel for the detainment”, Mr. Enwright did not argue that the resulting delay in reading the ASD demand made the demand invalid. This delay was minimal in any event.
33According to P.C. Huss, Mr. Enwright said he understood the RTC and when P.C. Huss asked him if he wished to call a lawyer, Mr. Enwright’s response “was along the lines of no, but why would I need to call a lawyer”.
34At 2:37 a.m., after P.C. Huss explained to Mr. Enwright why he had the opportunity to call a lawyer, P.C. Huss read the ASD demand to Mr. Enwright from his notebook. Mr. Enwright responded, “no, man, what authority do you have?”. P.C. Huss testified that he then re-explained the reasonable suspicion based on the driving evidence and admission of alcohol consumption. P.C. Huss said that it was at this point that Mr. Enwright “became uncooperative and he was not answering when I said, do you understand.”
35Crown counsel asked P.C. Huss what happened next. P.C. Huss replied that the following conversation took place between he and Mr. Enwright out front of the officer’s cruiser:
I offered the opportunity to answer if he had any confusion about the demand itself by which part of it did he not understand and then I received a reply of, I don’t know, what authority do you have to get me to do this? And during that time, he made a claim that it was unconstitutional.
36I find as a fact that, between about 2:37 and 2:39 a.m., Mr. Enwright expressed uncertainty about the authority of the police to make him provide a sample of his breath and that, during this time, he also made a claim that it was unconstitutional.
37I accept P.C. Huss’s evidence that when he read the ASD demand again to Mr. Enwright, at 2:39 a.m., Mr. Enwright said that the police were harassing him and that he did not have to provide a sample.
38At 2:40 a.m., P.C. Huss warned Mr. Enwright about the charge of failure or refusal to comply with the demand. When Crown counsel asked P.C. Huss to explain what he said, the officer replied:
It would have been something to the effect of like, I have a reasonable suspicion to demand that you provide a sample of your breath into the ASD to enable a proper analysis. If you fail to comply with that demand, there is a criminal charge that is arrestable for failure or refusal to comply with demand.
39P.C. Huss testified that Mr. Enwright’s response to this warning was “something to the effect of I’m not refusing I just don’t have to because you have no authority”. [19] I pause here to note that, throughout his evidence, when providing details about his dialogue with Mr. Enwright, P.C. Huss used phrases such as “along the lines of”, “he would say”, and “something to the effect of”.
40Where the actus reus of the refusal offence is premised on what the accused person communicated to the officer, it is important that the officer give clear and cogent evidence about the dialogue. [20] The words spoken by an accused person are of critical importance to objectively assess whether he or she unequivocally refused to comply with the breath demand. [21] This is especially so for cases in which the accused offers to provide a sample after the alleged words of refusal and the police choose not to administer the test.
41P.C. Huss’s use of phrases such as “something to the effect of” at critical points in his evidence is concerning and casts doubt on the reliability of his testimony regarding the actual words spoken by Mr. Enwright at material times during their interaction. For instance, at about 2:40 a.m., according to P.C. Huss, Mr. Enwright said “something to the effect of” he was not refusing while at the same time maintaining that he did not have to provide a sample, again challenging the authority of the police.
42P.C. Huss testified that he then blatantly asked Mr. Enwright if he would provide a sample and received a response from Mr. Enwright that “he would not have to”, which prompted P.C. Huss to warn him again, at 2:41 a.m., about the criminal charge of failure or refusal to comply with the demand. P.C. Huss then testified that:
There was a response to the effect of that it’s unconstitutional what we’re doing and he does not have to provide his body to men only women.
43According to P.C. Huss, he warned Mr. Enwright twice more that if he refused to comply with the demand, it is a criminal charge that has consequences. According to P.C. Huss, he “kept receiving responses that were something to the effect of, he doesn’t have to, as in he was telling me he does not have to provide a sample”.
44Following those two warnings, P.C. Huss gave Mr. Enwright a final warning by explicitly telling him that it was his “final opportunity” to provide a sample. The following exchange then occurred between Crown counsel and P.C. Huss:
Q. Okay. And did he provide a sample after given that final opportunity? A. No, he did not.
45There is no evidence regarding the words Mr. Enwright spoke after the “final warning” and before his arrest. The only evidence from P.C. Huss is that Mr. Enwright did not provide a sample at that point.
46Notwithstanding my concerns regarding the reliability of P.C. Huss’s testimony about the actual words spoken by Mr. Enwright at material times during their interaction, I find as a fact that, between about 2:39 and 2:42 a.m., Mr. Enwright challenged the authority of the police to demand a breath sample and asserted that their actions were unconstitutional, even saying at times that he was not required to provide a sample. Mr. Enwright was wrong.
47According to P.C. Huss, he arrested Mr. Enwright, at 2:42 a.m., because he believed that Mr. Enwright was not going to participate in the test. However, immediately thereafter, P.C. Huss testified as follows:
So, during the arrest, I had heard him make utterances that he would now participate in the test once we had started placing cuffs on him.
48P.C. Huss went on to say:
That would have been - I don’t have an exact time, that would have been during the course of the arrest, so at 2:42 once I had taken hold of him and began to place cuffs, he began telling us that he would now do the test.
49The officer testified that the accused said, “something to the effect of, like, ‘okay, I’ll do the test,’ as I’m putting handcuffs on him, taking control of him for the purpose of the arrest”.
50P.C. Huss did not perform the ASD test on Mr. Enwright. When asked what his rationale was for not doing the test at that point, P.C. Huss said:
Well, like I previously stated, at that time, I’d - there was numerous opportunities to participate in this test. I even offered like, I said, opportunities for him to ask questions or try and gain clarification about what was going on. However, he just was confrontational with it and challenging the demand and saying that he didn’t have to. So, once he - once I had given him that final warning, to then back track I didn’t think it was appropriate.
51During cross-examination, P.C. Huss reiterated that he did not think it was appropriate, while in the process of placing handcuffs on Mr. Enwright, to take the cuffs off to administer the test after the accused had been given ample opportunities to participate in the test and after having been given numerous warnings.
52P.C. Huss could not remember the exact words he used when Mr. Enwright asked him to do the test but said, “it would have been something to the effect of that’s no longer an option”, “something to the effect of (the) opportunity has passed you”, or “to the effect of no…the opportunity has passed, we’re no longer conducting the test, you’re under arrest”.
53When Mr. Enwright asked P.C. Huss during cross-examination what stopped him from retrieving the ASD from his cruiser and presenting it to him for the testing, P.C. Huss responded, “the fact that you were refusing…you said you were refusing. That’s why it wasn’t brought out”.
54The following exchange occurred between Crown counsel and P.C. Huss:
Q. Did you believe if you provided him another opportunity that he would complete the test? A. I can’t speak to his actions at that point.
55When P.C. Huss arrested Mr. Enwright, he again read him RTC. Mr. Enwright responded, “so now I’m arrested even though I said I’d do the test.” Because of the response he received, P.C. Huss went on to explain to Mr. Enwright “the process that led to the arrest” from his perspective. When the officer again explained to Mr. Enwright that he had the right to speak with a lawyer, according to P.C. Huss, Mr. Enwright said “something to the effect that I was ruining his life and that this wasn’t right”. Later, at the police station, when P.C. Huss asked Mr. Enwright if he wished to speak with a lawyer, Mr. Enwright made a similar statement: “something to the effect of I was ruining his life and his girlfriend’s life.”
56Domik remains good law; it is binding and has not been overruled by a subsequent decision of the Ontario Court of Appeal or the Supreme Court of Canada. [22] Although Domik dealt with a refusal followed by words of assent in the context of a demand for a breathalyzer sample by a qualified technician, the following passage of Grange J., affirmed by the Ontario Court of Appeal, applies in the context of an ASD demand:
I do not read these cases as establishing that in all circumstances a refusal separated in time from a later assent constitutes a crime. What I do gather from the cases is that the circumstances of the refusal and assent, the time between them and perhaps the availability of technician and machine are relevant considerations. Section 235 is drastic legislation interfering with the usual rule against self-incrimination. I do not think it unreasonable for a lay person or indeed anyone unskilled in criminal law at first to react negatively to an invitation to give the police incriminating evidence. I cannot imagine that Parliament intended to make such a refusal followed almost immediately by an assent, criminal. [23]
57In Mr. Enwright’s case, the relevant events took place within about six minutes, between 2:36 and 2:42 a.m. In that short span of time, especially between 2:39 and 2:42 a.m., Mr. Enwright questioned the authority of the police to demand a sample of his breath, challenged the constitutionality of the police actions and maintained that he was not required to provide a sample.
58However, on the totality of the evidence, it would be unsafe to find that Mr. Enwright unequivocally refused to comply with the ASD demand. I find that his request to provide a sample when he was being arrested and handcuffed was one continuous transaction with his uncooperativeness and assertions that he was not required to provide a sample.
59I find that Mr. Enwright’s immediate request to provide a sample when he was being handcuffed was genuine. The case of R. v. Kitchener, 2012 ONSC 4754, upon which the Crown relies, is distinguishable. In Kitchener, the trial judge accepted the evidence of the officer that he perceived the accused’s offer to provide an ASD sample, after initially refusing, to be insincere, and that “she was treating the situation as a game”. [25]
60I reject the Crown’s argument that, in the absence of evidence from Mr. Enwright, the Court cannot assess the sincerity of his offer to take the test. The Crown must discharge its burden of proving beyond a reasonable doubt that the accused unequivocally refused to comply. [26] There is no burden on the accused to call evidence on this point.
61An assessment of the totality of the evidence leads me to find that Mr. Enwright’s offer was sincere. First, it was made immediately, as he was being arrested. I find that, it was at this point, that the extent of his jeopardy became clear to him. His request to provide a sample was within approximately five minutes of the initial demand. Some of that five-minute period was consumed by unnecessary dialogue regarding “rights to counsel for the detainment”.
62P.C. Huss testified that he arrested Mr. Enwright at 2:42 a.m. because he did not believe that Mr. Enwright was going to participate in the test. However, when Crown counsel inquired about the sincerity of the offer Mr. Enwright made at 2:42 a.m. to do the test, by asking P.C. Huss whether he believed Mr. Enwright would have taken the test at that point if the officer had given him the opportunity, P.C. Huss replied, “I can’t speak to his actions at that point”. I found P.C. Huss’s evidence on this point to be somewhat disingenuous.
63P.C. Huss did not say that he believed Mr. Enwright’s offer was insincere or that Mr. Enwright was “playing games”. He said that, once he had given Mr. Enwright the final warning, he did not think it was appropriate to back track and take the handcuffs off to administer the test. An assessment of the totality of P.C. Huss’s evidence suggests that he either did not turn his mind to the sincerity of Mr. Enwright’s offer or did not care whether Mr. Enwright was willing to take the test at that point, even though the ASD was in the cruiser and available to be readied to accept a sample.
64I find that Mr. Enwright’s response when P.C. Huss read him the RTC on arrest, “so now I’m arrested even though I said I’d do the test,” bolsters my finding that Mr. Enwright’s request was genuine, as does his later utterance that the officer “was ruining his life and that this wasn’t right”.
65The Crown provided the case of R. v. Xhialli, 2023 ONCJ 306, which is also distinguishable. In Xhialli, given concerns about residual mouth alcohol, the officer told the accused he would need to wait for 15 minutes before administering the test. The trial judge, Waby J., stated that he was “assisted greatly by the body worn video footage…which captured the entirety of the interaction between the officers and Mr. Xhialli”. [28]
66Waby J. described in great detail how, throughout almost the entirety of the 15-minute wait, the accused repeatedly and almost continuously argued with the officer about his obligation to provide a breath sample and frequently interrupted the officer, ending in the accused emphatically refusing to provide a sample and being arrested. [29]
67During the pat-down search about two minutes later, Mr. Xhialli is heard quietly saying, “I can do it, I can do it now". The officer advised the accused that he was given ample opportunity to provide a sample and that he was under arrest for refusal or failing to provide a sample of his breath. [30]
68Waby J. had no difficulty finding that the comments made by Mr. Xhialli to the police “2 minutes after his arrest and while still at the scene with the device present could legitimately form part of the same transaction”. [31] However, Waby J. observed “that any subsequent offer to do so must be a realistic and credible one (on) the part of the Accused”. [32] Waby J. found that Mr. Xhialli’s offer was not:
24 At the point in time that the Accused says "I can do it, I can do it now", he is under arrest, cuffed and being searched. I accept that Mr. Xhialli appears rather subdued and that this may well, in part, be due to his recent arrest. However, his tone and manner appeared half-hearted at best. The comment is not repeated and the Accused does not make any other offer of any sort to provide a sample or to further engage the officer on this issue.
25 If Mr. Xhialli had been even partly as clear or determined after his arrest as he was before it, the situation may well have been different. Nothing in Mr. Xhialli's words or actions post-arrest conveyed to me a realistic or meaningful desire to provide a breath sample and 'undo' what has occurred. [33]
69Therefore, Waby J. found that the accused’s offer was not genuine:
In the aftermath of the consistent position that the Accused had volubly maintained for more than 15 minutes and the sustained, repeated and emphatic refusals he had articulated, I do not find that this was a sincere or meaningful offer on the part of the Accused to provide a sample of his breath following his arrest. [34]
70With the assistance of the body worn video footage Waby J. went on to say, “[t]he officer exhibited considerable patience towards the Accused throughout their dealings and it was clear to me that the officer did not believe Mr. Xhialli would provide a sample after his arrest when he made his solitary and muted "I can do it comment."” [35]
71I do not make the same finding in Mr. Enwright’s case. While there exists uncertainty about the actual words spoken at times by Mr. Enwright before his arrest, I find that, during his brief interaction with P.C. Huss, he spoke words of refusal. The Crown pointed to the fact that, between 2:40 and 2:42 a.m., P.C. Huss issued warnings to Mr. Enwright about the criminal consequences of refusing to comply, and that notwithstanding these warnings, Mr. Enwright continued to challenge the authority of the police and maintained that he did not have to provide a sample. This does not lead me to find that he unequivocally refused.
72I find that Mr. Enwright’s words of refusal were followed immediately upon his arrest with a genuine offer to provide an ASD sample as part of one continuous transaction. This distinguishes his case from Kitchener and Xhialli. [36] P.C. Huss had the ASD in his cruiser. The device was available to the officer to be readied to accept a sample from Mr. Enwright when he offered to perform the test within about five minutes of the initial demand. The Crown has failed to prove beyond a reasonable doubt that Mr. Enwright unequivocally failed or refused to comply with P.C. Huss’s ASD demand.
CONCLUSION
73Mr. Enwright is found not guilty of the charge of failing or refusing to comply with a demand made to him by a peace officer under s. 320.27 of the Criminal Code, contrary to s. 320.15(1) of the Criminal Code.
Released: April 8, 2024 Signed: Justice J.P.P. Fiorucci
[1] Impaired Driving and Other Criminal Code Driving Offences, Karen Jokinen and Peter Keen, Emond Montgomery Publications Limited, 2019, Toronto, ON, Chapter 5, pp. 64-65. [2] R. v. Domik, [1979] O.J. No. 1050, (H.C.J.), aff’d R. v. Domik, [1980] O.J. No. 642 (C.A.); R. v. Franchi, [1999] O.J. No. 4895 (S.C.J.); R. v. Khandakar, 2023 ONSC 1971; R. v. Arutunian, 2022 ONCJ 172, aff’d 2023 ONSC 6173. [3] R. v. Franchi, supra. [4] R. v. Breault, 2023 SCC 9. [5] Ibid, at para. 44. [6] Ibid, at paras. 8-9. [7] Ibid, at para. 62. [8] Ibid, at para. 50. [9] Ibid, at para. 52. [10] Ibid, at para. 68. [11] Ibid, at para. 64. [12] Ibid, at para. 65. [13] Ibid, at para. 67. [14] Ibid, at para. 32. [15] R. v. Eastmond, 2018 ONCJ 867, at para. 40. [16] R. v. Eastmond, ibid; R. v. Bromfield, 2007 ONCJ 36; R. v. Hayward, 2013 NBPC 11. [17] P.C. Singh testified that he heard P.C. Huss make several demands to the male who was detained, and also heard P.C. Huss tell the male that he would be arrested if he did not comply. When asked by Crown counsel what he heard that led him to testify that the male was refusing, P.C. Singh said, “I don’t remember exactly what I heard, but, I know he just refused. I don’t know exactly what he said. He kept refusing”. Furthermore, P.C. Singh could not recall Mr. Enwright asking to do the ASD test. [18] R. v. Hufsky, [1988] S.C.J. No. 30, [1988] 1 S.C.R. 621 (S.C.C.); R. v. Ladouceur, [1990] S.C.J. No. 53, [1990] 1 S.C.R. 1257 (S.C.C.), at para. 52. [19] At p. 59 of the Transcript of Proceedings, July 20, 2023, Examination-in-Chief of Mackenzie Huss, the response is recorded as: “He replied with something the to effect of I’m not refusing I just don’t have to because you have no authority”. The audio of the trial discloses that the officer said, “… something to the effect of. ..”. [20] R. v. Ross, 2015 ONCJ 115, at paras. 52-55. [21] R. v. Jurado, 2007 ONCJ 44; [2007] O.J. No. 501 (Ont. C.J.), at para. 35. [22] R. v. Arutunian, 2023 ONSC 6173, at para. 32. On August 21, 2023, I provided Crown counsel and Mr. Enwright with copies of the cases of R. v. Tavangari, [2002] O.J. No. 3173 (Ont. C.J.) and R. v. Arutunian, 2022 ONCJ 172 (Ont. C.J.), both trial court decisions. On October 31, 2023, after closing submissions were made in Mr. Enwright’s case, Conlan J. released his reasons on the summary conviction appeal in Arutunian and dismissed the Crown’s appeal of Wendl J’s acquittal. In doing so, Conlan J. affirmed that Domik remains good law. [23] R. v. Domik, [1979] O.J. No. 1050, (H.C.J.), at para. 5, aff’d [1980] O.J. No. 642 (C.A.)](https://www.canlii.org/en/on/onca/doc/1980/1980canlii1601/1980canlii1601.html). [24] R. v. Kitchener, 2012 ONSC 4754. [25] Ibid, at paras. 7, 13, 22, 37, 38, and 40. [26] R. v. Gomes, 2018 ONCJ 791, at paras. 83-85. [27] R. v. Xhialli, 2023 ONCJ 306. [28] Ibid, at para. 11. [29] Ibid, at paras. 14-23. [30] Ibid, at para. 23. [31] Ibid, at para. 34. [32] Ibid, at para. 36. [33] Ibid, at paras. 24-25. [34] Ibid, at para. 38. [35] Ibid, at para. 39. [36] Crown counsel also provided the British Columbia summary conviction appeal case of R. v. Komenda, 2012 BCSC 536. In this case, the Court considered Domik and found that a critical distinction exists between a refusal to provide a breathalyzer sample, as in Domik, and a refusal to comply with an ASD demand. The Ontario cases do not draw this distinction in the context of a refusal followed by an offer to provide a sample. Furthermore, the Court in Komenda stated, at paragraph 41, that Domik had “not been applied in British Columbia in a case involving refusal by words of an ASD demand” and that, “[i]n the circumstances here of a clear unequivocal refusal of an ASD demand, Domik does not apply”. I find that Komenda is at odds with the Ontario jurisprudence and is, therefore, of no assistance to the Crown in Mr. Enwright’s case.