COURT OF APPEAL FOR ONTARIO

DATE: 20240820

DOCKET: COA-23-CR-1195

van Rensburg, Thorburn and Dawe JJ.A.

BETWEEN

His Majesty the King

Appellant

and

Shadman Khandakar

Respondent

Counsel: Dana Achtemichuk and James Palangio, for the appellant Bryan Badali and Adam Little, for the respondent

Heard: April 25, 2024

On appeal from the judgment of Justice Fletcher Dawson of the Superior Court of Justice, dated March 28, 2023, with reasons at 2023 ONSC 1971, dismissing an appeal from the acquittal entered on October 25, 2021, by Justice Mohammed M. Rahman of the Ontario Court of Justice, with reasons at 2021 ONCJ 612.

Dawe J.A.:

A. Overview

[1] This Crown summary conviction appeal raises the question of how long persons subjected to roadside breath screening demands have to change their minds about refusing to provide a breath sample before they commit a criminal offence. Many years ago, in R. v. Domik, [1980] O.J. No. 642 (C.A.), aff’g (1979) 2 M.V.R. 301 (Ont. H.C.), this court held that an initial refusal will not be criminal if the accused later agrees to provide a breath sample as part of the “same transaction”. This appeal requires us to reconcile this rule with the statutory requirement in s. 320.27(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46, that persons subjected to “approved screening device” demands (“ASD demands”) must provide a breath sample “immediately”.

[2] As I will explain, I do not accept the Crown’s argument that Domik has no application to refusal cases involving ASD demands. We have not been invited to reverse Domik, and I am not persuaded that it can or should be read as narrowly as the Crown contends. However, I would hold that in ASD refusal cases the duration of the “transaction” is constrained by the requirement that ASD tests be conducted “immediately”. In other words, when someone initially refuses to provide an ASD breath sample, the maximum time within which they can change their mind cannot exceed the time within which a compelled breath sample can lawfully be obtained by the police. This latter time is determined by the operational requirements of the ASD test process and by any “unusual circumstances” that extend the statutory “immediacy” window: R. v. Breault, 2023 SCC 9, 425 C.C.C. (3d) 1, at paras. 32, 51-60.

[3] I would also clarify that Domik creates a window during which persons subjected to breath demands can change their minds about refusing before committing the actus reus of the refusal offence. This is an analytically distinct question from whether the accused’s refusal to comply in a particular case was “unequivocal”, which bears on both the actus reus and the mens rea of the refusal offence.

[4] In this case, I would find that both the trial judge and the summary conviction appeal judge erred in law by not considering the constraints arising from the statutory immediacy requirement when applying Domik to the facts of this case. I would therefore allow the appeal and order a new trial.

[5] I would decline to address the respondent’s argument that his acquittal at trial can be upheld on the alternative basis that he was subjected to an unlawful breath demand. This argument was properly raised at trial, but requires findings of fact that were not made by the trial court. I would accordingly leave this argument to be addressed, if necessary, at the new trial.

[6] In Breault, the Supreme Court of Canada stated that some aspects of this court’s prior decision in R. v. Quansah, 2012 ONCA 123, 286 C.C.C. (3d) 307 must be “qualified”. The respondent urges us to provide guidance on whether certain comments in Quansah that the Supreme Court of Canada did not explicitly address remain good law in light of Breault. In my view, this question should be left to be addressed in a future appeal where it squarely arises.

B. Factual background

[7] During the early morning hours of March 7, 2020, at 1:20 a.m., the respondent, Shadman Khandakar, was pulled over by the police after leaving a bar. Seven minutes later, at 1:27 a.m., Police Constable Bannister made a demand under s. 320.27(1)(b) of the Criminal Code that the respondent provide an ASD breath sample. Over the next 13 minutes she gave the respondent multiple chances to blow into the ASD, but he repeatedly refused. He questioned whether the ASD was properly calibrated and stated several times that he wanted to be arrested and taken to the police station. The trial judge accepted the respondent’s evidence that he believed that if he refused to provide an ASD breath sample, he would be taken to a police station where his breath could be analysed by a “real machine”, which he believed would be more reliable.

[8] At 1:40 a.m., PC Bannister asked the respondent a final time whether he would blow into the ASD, and when he again refused, she arrested him for the refusal offence in s. 320.15(1) of the Criminal Code.

[9] Approximately 10 minutes later, the respondent learned that he would be released from the scene and would not be given the chance to have a breath test performed using the more sophisticated machine at the police station. Once he realized that he was mistaken about this, the respondent asked PC Bannister if he could blow into the ASD, but she replied that it was “too late”.

[10] The respondent testified that after his release from the roadside, he went to a police station and asked if he could provide a breath sample. When this request was refused, he went to a hospital and unsuccessfully tried to have a blood sample taken and analysed.

C. Relevant statutory provisions

[11] The Criminal Code provisions that authorize the police to compel motorists to provide breath samples have a long history. They have been amended many times over the last 40 years, including most recently in 2018. Although there are some important differences between the current Criminal Code sections and those that they replaced, the specific issues raised in this appeal are unaffected by the 2018 amendments.

(1) Police powers to make breath demands

[12] There are two different Criminal Code breath demand powers. It is a criminal offence under s. 320.15(1) to refuse or fail to comply with either form of demand.

[13] The first breath demand power, now situated in s. 320.27, authorizes the police to demand that the subject blow into an “approved screening device” (“ASD”). [1] I will refer to this as an “ASD demand”. In this case, PC Bannister relied on s. 320.27(1)(b), which required her to have “reasonable grounds to suspect” that the respondent had alcohol in his body. [2] It is undisputed that she had sufficient grounds to make this demand, although the respondent maintains that her demand was nevertheless unlawful because she waited too long to make it after forming her grounds.

[14] Assuming that PC Bannister’s ASD demand was lawful, once she made it, the respondent became obliged to provide a breath sample “immediately”: s. 320.27(1)(b). The analogous provision in previous versions of the Criminal Code used the term “forthwith”, but it is common ground that “forthwith” and “immediately” mean the same thing: Breault, at para. 29.

[15] The second breath demand power, now found in s. 320.28 of the Criminal Code, authorizes the police to demand the production of breath samples for analysis by an “approved instrument”. [3] I will refer to these as “intoxilyzer demands”, after the trade name of the approved instrument most commonly used in Ontario. Section 320.28(1)(a)(i) requires that both the making of the demand, and compliance with the demand once it is made, must occur “as soon as practicable”.

[16] Persons subjected to both types of breath demands are “detained” within the meaning of s. 10 of the Charter. However, the ASD demand power has been interpreted as implicitly suspending detainees’ s. 10(b) Charter rights in a manner that is justified under s. 1: see e.g., R. v. Thomsen, [1988] 1 S.C.R. 640. As a consequence, persons subjected to ASD demands generally cannot obtain legal advice before deciding whether or not to comply. In contrast, the intoxilyzer demand power does not implicitly suspend s. 10(b) Charter rights. Persons subjected to intoxilyzer demands must be advised of their right to counsel and, if they choose to exercise this right, are entitled to speak with a lawyer before they decide whether to provide breath samples.

(2) The offence of failing or refusing to comply with a demand

[17] Section 320.15(1) of the Criminal Code states:

320.15(1) Everyone 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.

[18] To establish the actus reus of the offence, the Crown must prove that the police made a lawful demand under either s. 320.27 or 320.28, and that the accused either “fail[ed]” or “refus[ed]” to comply. In cases involving the refusal branch of the offence, the accused must be proved to have refused “unequivocally”: R. v. Degiorgio, 2011 ONCA 527, 275 C.C.C. (3d) 1, at para. 42. [4]

[19] There is disagreement in the case law about the mental elements of the refusal offence: specifically, over whether the Crown must prove that the accused intentionally failed or refused to provide a breath sample, or whether it is enough for the Crown to prove that the accused knew that their conduct would have this result: see e.g., R. v. Porter, 2012 ONSC 3504; R. v. Lewko, 2002 SKCA 121, 169 C.C.C. (3d) 359; R. v. Soucy, 2014 ONCJ 497, 316 C.C.C. (3d) 153; R. v. Slater, 2016 ONSC 2161, 94 M.V.R. (6th) 224; R. v. Mtonga, 2021 ONSC 1482. We are not called on to resolve this question here, since there is no dispute that the respondent was intentionally refusing to comply with PC Bannister’s ASD demand.

(3) Domik and its progeny

[20] Domik involved an intoxilyzer demand under what was then s. 235 of the Criminal Code. The accused was taken to a police station, where he initially refused to provide a breath sample. While the police were typing up the paperwork to charge him with the refusal offence, he changed his mind and asked if he could take the test. However, the police declined to let him do so.

[21] The accused was convicted of the refusal offence at trial, but on appeal by way of a stated case, Grange J. (as he then was) set aside the conviction and entered an acquittal. He adopted the following comment by MacDonald J.A. of the Nova Scotia Court of Appeal in R. v. Bowman (1978), 40 C.C.C. (2d) 525 (N.S.C.A.), at p. 529:

If a person refused to comply with a s. 235(1) demand but immediately thereafter indicated a change of mind and a willingness to take the test then since the refusal and the subsequent change of heart occurred almost simultaneously both really comprise the reply to the demand, i.e., form but one transaction, and there would not therefore, in my view, be a refusal in law.

[22] Grange J. then added, at para. 5 of his reasons:

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.

A majority of this court later dismissed a further Crown appeal orally, “for the reasons given by Grange J.”: [1980] O.J. No. 642 (C.A.). [5]

[23] As the Summary Conviction Appeal Court (“SCAC”) judge noted in his reasons in the judgment on appeal, Domik has been understood by lower courts, as well as by the Alberta Court of Appeal, [6] as establishing the principle that the refusal offence is not committed when a person who initially refuses to provide a breath sample later agrees to do so, provided that their later agreement and the initial refusal form part of a “single transaction”. [7] The case law applying Domik has not distinguished ASD demands from intoxilyzer demands. [8]

D. The Decisions below

(1) The trial judgment

[24] The trial judge found as fact that when the respondent refused to provide a screening breath sample to PC Bannister, he honestly but mistakenly believed that this would result in his being taken to a police station and permitted to blow into a more accurate instrument.

[25] The trial judge also found that the respondent’s “initial refusal to comply with the demand, on his own evidence, was unequivocal”. However, he relied on the Domik line of authorities and concluded that in these circumstances the respondent’s later agreement to provide a breath sample, after his arrest for the refusal offence, formed part of the same transaction as his initial refusals:

Considering the whole chain of events, Mr. Khandakar’s change of mind and offer to provide a sample effectively cancelled his prior refusals. The time between Mr. Khandakar’s last attempt and offer to provide a sample – only about 10 minutes – supports a finding that his offer to blow was part of the same transaction. His offer to provide a sample after being arrested was close enough in time to his earlier refusal that it could be considered part of a single transaction. More importantly, the officer still had the device with her and could easily have given Mr. Khandakar a second chance.

[26] The trial judge accordingly found the respondent not guilty. Having reached this conclusion, he did not address the respondent’s alternative arguments that the ASD demand had been unlawful and that his Charter rights had been infringed.

(2) The Summary Conviction Appeal decision

[27] The SCAC judge upheld the respondent’s acquittal and dismissed the Crown’s appeal.

[28] As the SCAC judge explained, the “same transaction” cases relied on by the trial judge can be traced back to Grange J.’s decision in Domik. He added that “the legal test established in Domik has wide ranging support”, citing 18 decisions where it has been followed by courts in Ontario and elsewhere.

[29] The SCAC judge explained further:

While these cases all apply or acknowledge the “same transaction” test, the results in these cases vary depending on the determinative factual findings. I reiterate that the trial judge in the present case described the case before him as a close call and made findings of fact that led him to his conclusion that the refusal and change of heart were part of the same transaction.

Noting that he was obliged to defer to the trial judge’s findings of fact, the SCAC judge concluded:

Given his application of the correct test as established by binding authority and the deference to be accorded to such decisions which depend heavily on factual findings, I am not persuaded that he erred in reaching the decision which he did.

E. Arguments on appeal

[30] The Crown appeals from the SCAC judge’s decision upholding the respondent’s acquittal. On November 15, 2023, a different panel of this court granted leave to appeal.

[31] The Crown’s arguments on appeal have evolved over time. In its factum, the Crown argued that the Domik “same transaction” test should be held not to apply to refusal cases involving ASD demands. According to the Crown, treating ASD demands as a “transaction” would conflict with the statutory requirement in s. 320.27(1)(b) that ASD breath samples be provided “immediately”, particularly in light of how the immediacy requirement was recently interpreted by the Supreme Court of Canada in Breault. Since Domik was itself a case about an intoxilyzer demand rather than an ASD demand, Crown counsel took the position that we could narrow Domik’s reach without reversing it, and for this reason declined to request that a five-judge panel be convened to hear this appeal.

[32] However, during the hearing Crown counsel modified her position that ASD demands cannot properly be viewed as involving a “transaction”. Even when there are no “unusual circumstances”, the process of administering an ASD test invariably requires some “operational time”: Breault, at para. 32. Ms. Achtemichuk fairly acknowledged that under Breault “immediately does not mean instantaneously”, and that “there is some flexibility inherent in the word ‘immediately’”. She also acknowledged that police officers who make ASD demands routinely deal with initial refusals by explaining the consequences of refusing and giving subjects a chance to reconsider, as PC Bannister did here.

[33] In my view, these concessions substantially undercut the Crown’s original argument that the statutory immediacy requirement is inherently incompatible with the Domik “same transaction” analysis. Once it is accepted that s. 320.27(1)(b) allows some time for the police to explain the ASD test process and the consequences of refusing, and that they can give subjects some limited opportunity to change their minds, I see no conceptual impediment to treating the ASD test process as a “transaction” – that is, as a “series of connected acts extending over a period of time”: R. v. Goldstein (1988), 42 C.C.C. (3d) 548 (Ont. C.A.), at p. 557.

[34] In her oral submissions Ms. Achtemichuk articulated a modified position, stating that if Domik does apply in ASD demand cases:

To the extent that there is a consideration of a transaction … we’re really asking this court to say “it needs to be interpreted in line with the statutory language of ‘immediately’”.

[35] Counsel for the respondent resist the Crown’s original argument that we limit the Domik “same transaction” test to intoxilyzer demand refusal cases. However, they agree that in ASD demand cases the immediacy requirement “define[s] the ambit of what constitutes a single transaction in that context.”

[36] In summary, counsel for both parties now broadly agree about how Domik and Breault can be reconciled. However, they continue to disagree about some of the important details and practical implications of treating the Domik “same transaction” test as constrained by the statutory immediacy requirement in ASD demand cases.

F. Analysis

(1) The ASD demand power’s express and implied immediacy requirements

[37] Section 320.27(1)(b) expressly requires persons subjected to ASD demands “to immediately provide … samples of [their] breath”. This requires them to “comply immediately”, rather than “when they see fit”: R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at para. 45; Breault, at para. 31. This explicit statutory immediacy requirement also obliges the police to conduct themselves in a way that makes immediate compliance by the subject possible. Among other things, they must have an ASD immediately available when they make the demand, and they must give the subject an immediate opportunity to blow into the device, subject to the inherent “operational time” requirements of the ASD test and any delays caused by “unusual circumstances”: Breault, at paras. 32, 61-68.

[38] Section 320.27 and its forerunners have also been interpreted as having a second implicit immediacy requirement, under which officers must make an ASD demand as soon as they form “the reasonable suspicion that the driver has alcohol in his or her body”: R. v. Pierman; R. v. Dewald (1994), 19 O.R. (3d) 704 (C.A.), at para. 5. The existence of this second implied immediacy requirement is linked to the implied limit on s. 10(b) Charter rights that has been read into the ASD demand power and found to be a reasonable limit under s. 1: see e.g., Thomsen. As Arbour J.A. (as she then was) explained in Pierman, at para. 5:

This is the only interpretation which is consistent with the judicial acceptance of an infringement on the right to counsel provided for in s. 10(b) of the Charter. If the police had discretion to wait before making the demand, the suspect would be detained and therefore entitled to consult a lawyer.

As Fish J. observed in Woods, at para. 15, referring to the previous Criminal Code section analogous to the current s. 320.27(1)(b), “[b]ut for its requirement of immediacy, s. 254(2) would not pass constitutional muster.”

[39] In Quansah, at para. 47, this court interpreted the express and implied immediacy requirements of what was then s. 254(2) as permitting delays that were “reasonably necessary” in the circumstances “to enable the officer to discharge his or her duty.” However, in Breault, at para. 51, the Supreme Court of Canada held that “the approach adopted by the Ontario Court of Appeal in Quansah needs to be qualified”, concluding that the “reasonably necessary” standard in Quansah “broadened the immediacy requirement unduly”.

[40] Writing for the Court in Breault, Côté J. held that:

“Forthwith” is not synonymous with “time reasonably necessary”; this word must be given an interpretation consistent with its ordinary meaning…

However, Côté J. qualified this holding by adding that greater flexibility will be necessary in “unusual circumstances”. Although she went on to discuss some considerations bearing on whether a particular circumstance qualifies as “unusual”, she held that “[i]t is preferable for those circumstances to be identified on a case‑by‑case basis in light of the facts of each matter”: Breault, at para. 54.

[41] Importantly, Côté J. also recognized elsewhere in her reasons 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’”: Breault, at para. 32, quoting from R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 64.

[42] I would also note that Breault was specifically concerned with the question of whether the explicit statutory immediacy requirement gives the police time to have an ASD brought to the scene after they make a breath demand (the Court held that it does not). However, Breault does not squarely address whether the interpretation of “immediacy” the Court adopted in relation to the explicit requirement also applies to the implicit requirement that the police must make ASD demands immediately after they form the required grounds.

(2) The Domik “same transaction” approach applies to ASD demands

[43] I do not accept the Crown’s original argument that Domik should be read as applying only in refusal cases that involve intoxilyzer demands. I reach this conclusion for three main reasons.

[44] First, the current version of the Criminal Code creates a single offence of “failing or refusing to comply” with either form of breath demand: see Criminal Code, s. 320.15(1). It would be difficult as a matter of statutory interpretation to treat the essential elements of this offence as changing radically depending on which type of breath demand is at issue.

[45] Second, the policy justifications for the same transaction test that Grange J. relied on in Domik, and which this court adopted, carry extra weight in the ASD context, where the right to counsel is curtailed. In the passage from his reasons that I quoted earlier, Grange J. noted that it would not be “unreasonable for a lay person or indeed anyone unskilled at criminal law at first to react negatively to an invitation to give the police incriminating evidence.” This led him to conclude that Parliament cannot have “intended to make … a refusal followed almost immediately by an assent, criminal”: Domik, at para. 5.

[46] Since persons subjected to intoxilyzer demands are entitled to receive legal advice before they decide whether to comply, it is hard to see why Parliament would have chosen to give only these persons leeway to change their minds after an initial refusal. Indeed, Ms. Achtemichuk acknowledged in oral argument that the fairness concerns underlying Domik still apply in the context of ASD demands, agreeing that:

People are entitled to have kind of an initial reaction [to an ASD demand] and then think about it and give their response.

[47] Third, as I have already explained, I am not persuaded that the Domik “same transaction” approach is inherently incompatible with the statutory and constitutional requirement that ASD tests be conducted “immediately”. As Ms. Achtemichuk acknowledged, “immediately” does not mean “instantaneously”. ASD tests take some time to administer, and the police can, and very often do, give test subjects multiple chances to comply while still remaining within the bounds of the statutory immediacy requirement. There is accordingly no conceptual barrier to holding that ASD test subjects can change their minds about refusing to comply with an ASD demand during the same temporal window that the immediacy requirement gives the police to obtain the breath sample.

(3) The maximum duration of an ASD demand “transaction” must be informed by the immediacy requirement

[48] As the Crown acknowledges, police officers who make ASD demands routinely take some time to administer the test. They typically explain to test subjects how to properly blow into the ASD, often by giving a demonstration. Extra time may be needed for this explanation when there are language issues. It may then take multiple attempts for subjects to provide a proper breath sample that registers on the ASD. Some test subjects may refuse to provide a breath sample until after the officer has explained the consequences of refusing. Officers sometimes tell people who are refusing to comply that they are being given a “last chance” to provide a breath sample. While the police must always be mindful of the statutory and constitutional requirement that ASD samples be obtained “immediately”, delays of this nature, motivated by these and similar reasons, will generally fall within the concept of “operational time” that Breault held is built into the statutory immediacy requirement.

[49] I agree that the maximum duration of the Domik concept of a single transaction needs to be interpreted in line with the statutory language of immediately. Indeed, as I have noted already, the respondent also agrees that the statutory immediacy requirement “define[s] … what constitutes a single transaction in [the ASD demand] context”.

[50] I also agree that there must be symmetry between the right of ASD test subjects to change their mind about refusing to comply with a demand, and the police’s statutory ability to compel compliance. It would make no sense as a matter of policy to let ASD test subjects run out the clock and avoid criminal liability altogether by agreeing to comply with the demand only after the police can no longer lawfully collect a compelled breath sample.

[51] The trial judge was mindful of this policy concern, explaining in his reasons:

I should add that, as a corollary of my finding that Mr. Khandakar ought to have been given a chance to provide a sample, it follows that any such sample would have been given forthwith. It would be a perverse result if, in giving a driver a second chance to blow into an ASD, a police officer would be jeopardizing an investigation by not taking the sample lawfully. Where a driver’s change of mind occurs within the same transaction as the prior refusal, it stands to reason that it is forthwith. Police officers who give ASD demands should not be placed in a legal double bind where the fair and timely use of their discretion is later used to argue that they obtained the breath sample unlawfully. [Footnote omitted.]

However, in my view, the trial judge’s proposed solution to this problem got it backwards. It is the statutory and constitutional requirement of immediacy that must inform and limit the maximum duration of the Domik “same transaction”, not the other way around.

(4) The length of the ASD demand “transaction” is not capped by a police decision to arrest for the refusal offence

[52] The Crown goes further and argues that the maximum duration of the Domik “same transaction” in ASD demand cases should be capped not just by the statutory immediacy requirement, but by the timing of the police decision in a particular case to arrest the subject for the refusal offence. The Crown contends that it would promote certainty and encourage compliance to have a bright line rule that the right of test subjects to change their minds about refusing ends when they are arrested.

[53] In my view, this approach has legal and practical problems that weigh against both its fairness and its operational workability. To explain why I believe such a rule would be unsound in principle, I must first address the conceptual underpinnings of the Domik “same transaction” test.

[54] Under Domik, when someone subjected to a breath demand initially refuses to comply but then changes their mind, they are considered not to have committed the actus reus of the refusal offence if their later agreement to comply with the demand forms part of the “same transaction” as their earlier refusal. As I have explained already, Grange J.’s decision, which this court adopted, was motivated by the underlying policy concern that it would be unfair not to give ordinary people confronted by breath demands some chance to reconsider their initial decisions to refuse. This reconsideration will often be prompted by the police better explaining the consequences of refusing to comply.

[55] In my view, it would be artificial to treat all cases where a test subject quickly changes their mind as rendering their initial refusal “equivocal”, no matter how the refusal was expressed. Rather, Domik is better understood as giving test subjects some leeway to change their minds even if their initial refusals were unambiguous. On this view, the actus reus of the refusal offence is not complete until the “same transaction” window has closed.

[56] In this regard, I disagree with Mr. Badali that the respondent’s acquittal was based on the trial judge having a reasonable doubt about “whether [the respondent] ever unequivocally refused”, based on the respondent having changed his mind ten minutes after his arrest. To the contrary, the trial judge expressly characterized the respondent’s initial refusals as unequivocal, but concluded that his “change of mind and offer to provide a sample effectively cancelled his prior refusals.” Likewise, the SCAC judge interpreted the trial judge’s reasons as resting on the principle that:

[A] refusal to provide a sample will not constitute the actus reus of the offence where it is accompanied by a change of mind and offer to provide a sample occurring within the same transaction.

[57] I agree with this statement of the Domik principle. It follows that the Crown’s proposed bright line rule would effectively make the commission of the actus reus of the refusal offence by the accused depend on the timing of a later discretionary police decision, which the accused can neither predict nor control. In my view, this result would have unacceptable and unfair consequences.

[58] This can be illustrated by considering a hypothetical in which two different motorists, A and B, are both stopped and subjected to ASD demands by two different officers, X and Y. Imagine further that A and B each initially refuse to provide a breath sample, using identical unequivocal language. However, after A makes his initial refusal, Officer X says that she will give A another chance to comply, at which point A immediately changes his mind, agrees to provide a breath sample, and blows a “pass”. There is no dispute that on this scenario A could not properly be convicted of the refusal offence.

[59] However, imagine that Officer Y chooses not to give motorist B a second chance, and instead tells her that she will be charged with the refusal offence. When B says that she has reconsidered and now wants to blow, Officer Y replies that it is too late. On the Crown’s proposed approach, B would be guilty of the refusal offence, since the actus reus of the offence would be complete at the point that Officer Y made the decision to arrest. In my view, it is no answer to say that B might still be able to argue at trial that her post-charge actions should raise a reasonable doubt about whether her initial refusal was truly unequivocal, even though it was expressed in unambiguous terms. The problem would remain that the law would be treating A and B’s otherwise identical actions differently, based solely on how different police officers chose to conduct themselves afterwards.

[60] Moreover, I am not persuaded that the Crown’s proposed bright line rule would truly promote certainty. Even after Breault, the police still have considerable discretion about how many chances they give people to change their minds about refusing to comply with ASD demands. Different officers will inevitably draw the line at different points, based on their particular training and individual choices, and persons subjected to demands will have no way to predict exactly how much leeway they will be given to reconsider their initial decisions to refuse to comply.

(5) Summary of conclusions

[61] In summary, I would hold that the Domik “same transaction” principle applies in all refusal cases, both those involving ASD demands and those involving intoxilyzer demands. However, the maximum duration of the “same transaction” is context-specific. In ASD demand cases, the Domik “same transaction” window should be understood as co-extensive with the maximum time that the police have in the circumstances of a particular case to obtain a breath sample “immediately”.

[62] Accordingly, a trial court applying Domik in an ASD demand refusal case must consider whether the accused’s change of mind occurred at a time where the police could still have lawfully obtained a breath sample, having regard both to the operational time required to collect a sample “immediately”, and the presence of any “unusual circumstances”: Breault, at paras. 32, 51-60. If a trial judge determines that the accused’s change of mind occurred sufficiently soon after the initial refusal to form part of the “same transaction”, such that the police could still have lawfully obtained the breath sample, this will lead to the conclusion that the actus reus of the refusal offence has not been established. This will be so even if the initial refusal was expressed unequivocally. The timing of the police decision to arrest the accused for the refusal offence may be a relevant factor when considering whether the accused’s change of mind occurred within the co-extensive bounds of the statutory immediacy requirement and the Domik “same transaction” window, but it will not be determinative.

[63] However, if the court concludes that the accused’s change of mind occurred too late to have been part of the “same transaction” as the initial refusal, taking into account the statutory immediacy requirement, the court must still consider whether the evidence as a whole, including the evidence of the accused’s subsequent conduct, gives rise to a reasonable doubt about whether the initial refusal was unequivocal.

G. Did the courts below make legal errors?

[64] Appeals to this court in summary conviction matters are limited to grounds that involve “a question of law alone”: Criminal Code, s. 839(1). The term “question of law alone” means the same thing as “question of law”: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 31. To qualify, “[a]n appealable error must be traced to a question of law, rather than a question about how to weigh evidence and assess whether it meets the standard of proof”: R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 10; R. v. Hodgson, 2024 SCC 25, at para. 34.

[65] While the question of whether the respondent’s later agreement to provide a breath sample fell within the “same transaction” as his earlier refusals was a question of mixed fact and law, the trial judge erred in law by not properly considering whether the respondent’s agreement fell within the time frame established by his statutory obligation to provide a breath sample “immediately”. To the extent that the trial judge considered this question, he treated the statutory immediacy requirement as expanding to accommodate his finding that the respondent’s agreement was part of the same transaction as his earlier refusals, which was in turn largely driven by his finding that PC Bannister “still had the device with her and could easily have given [the respondent] a second chance.” This was a legal error. The SCAC judge then also erred in law by failing to identify the trial judge’s legal error, and by treating his decision as a factual determination that was entitled to appellate deference.

H. Additional arguments raised by the respondent

[66] Counsel for the respondent argue that even if we find that the courts below made errors of law when applying the Domik “same transaction” principle, we should uphold the respondent’s acquittal on the basis that PC Bannister failed to comply with the implicit immediacy requirements of s. 320.27 by not making her ASD demand until 7 minutes after she first pulled the respondent over. They contend that in the circumstances here this made the breath demand unlawful, thereby negating an essential element of the refusal offence.

[67] Counsel for the respondent also urge us to decide whether certain statements this court made in Quansah about the implied immediacy requirement in ASD demand cases have been implicitly reversed by Breault, even if we do not need to resolve this latter question to decide this appeal. They contend that it would benefit both the bar and the lower courts to have clarity on this legal issue, even if only in the form of obiter comments.

[68] A respondent on a Crown appeal from an acquittal may seek to uphold the verdict by advancing any argument that was properly raised in the court below: see e.g., R. v. Keegstra, [1995] 2 S.C.R. 381, at para. 23. However, an appellate court may decline to address arguments that require factual findings that were not made at trial.

[69] In the case at bar, the respondent properly raised the issue of the lawfulness of PC Bannister’s demand at trial. However, the trial judge found it unnecessary to address this issue, and made no findings of fact on the disputed question of when PC Bannister first formed her suspicion that the respondent had alcohol in his system. The trial judge also did not make findings on the disputed issue of whether PC Bannister was justified in delaying making her ASD demand because she was “determin[ing] whether there [were] reasonable grounds for an intoxilyzer demand”: Quansah, at para. 40, citing R. v. Fildan (2009), 69 C.R. (6th) 65 (Ont. S.C.), at para. 39.

[70] In these circumstances, I would decline to address the issue of the lawfulness of PC Bannister’s ASD demand, and would leave the question of whether she breached the implied immediacy requirement of s. 320.27(1)(b) to be determined, if necessary, at the respondent’s new trial.

[71] I would also decline to address the respondent’s further argument that para. 40 of Quansah has been implicitly reversed by the Supreme Court of Canada’s decision in Breault. My conclusion that the question of the lawfulness of the ASD demand in this case requires findings of fact at a new trial makes this issue moot in the context of this appeal. Appellate courts should generally be hesitant to decide purely academic points of law, even when doing so might possibly give guidance to the legal profession and the lower courts.

[72] I would accordingly leave the issue of the lawfulness of the ASD demand in this case to be decided, if necessary, at the new trial. I would also leave the broader questions that have been raised about the continued validity of Quansah to be decided in a future appeal where these issues squarely arise.

I. Disposition

[73] In the result, I would allow the appeal, set aside the respondent’s acquittal, and order a new trial.

Released: August 20, 2024 “K.M.v.R.”

“J. Dawe J.A.”

“I agree. K. van Rensburg J.A.”

“I agree. Thorburn J.A.”

Footnotes

[1] Before the 2018 Criminal Code amendments, the police power to make ASD demands was found in s. 254(2)(b).

[2] Section 320.27(2), which was introduced in 2018, authorizes police officers to also make ASD demands of motorists at random, without needing any particularized suspicion of drinking. However, the police did not rely on this power in this case, and it is not at issue in this appeal.

[3] Before the 2018 Criminal Code amendments, the analogous police power was found in s. 254(3)(a)(i).

[4] Although a different aspect of this court’s decision in Degiorgio was reversed in Breault, the holding that a refusal must be “unequivocal” to constitute an offence remains good law.

[5] Arnup J.A. dissented, giving reasons that were reported separately at [1980] O.J. 710. His dissent was based on his conclusion that the dispute over whether the accused had committed the actus reus of the refusal offence involved a question of fact that could not properly be appealed by way of a stated case, rather than on a disagreement with Grange J.’s statement of the law.

[6] See R. v. Cunningham, 1989 ABCA 163, 49 C.C.C. (3d) 521.

[7] See e.g., R. v. Franchi (1999), 49 M.V.R. (3d) 48 (Ont. S.C.)

[8] See e.g., R. v. Olivier-Williams; R. v. Hussain, 2016 ONSC 4180; R. v. Arutunian, 2023 ONSC 6173.