Ontario Court of Justice

Central West Region Brampton, Ontario

Between:

HER MAJESTY THE QUEEN

-and-

GORDON GREENSHIELDS

REASONS FOR JUDGMENT

Duncan J.

1. Charge

[1] The defendant is charged with refusing the ASD, specifically:

That he, on or about the 3rd day of September 2012 did without reasonable excuse refuse to comply with a demand made by a peace officer to provide forthwith a sample of his breath as in the opinion of [the officer] was necessary to enable a proper analysis of his breath to be made by means of an approved screening device contrary to section 254(5) of the Criminal Code.

2. Facts

[2] Just before 6 pm on September 3rd, the police were alerted to a possible impaired driver who had been seen leaving the Celtic bar in Brampton. A description of the man and his vehicle was given. Police went to the registered owner's address a short distance away and soon the defendant came driving down the street. He was stopped. He displayed signs of alcohol consumption and admitted to having just come from the Celtic pub after drinking. An ASD was summonsed and arrived about 15 minutes later. (He was read 10b rights and declined in the interim)

[3] The defendant, now seated in the back seat of the police car, blew into the machine 3 times over the next few minutes, at 6:22, 6:23 and 6:24. None of the samples was suitable, the machine reporting an Eo message. When asked to try a fourth time he refused saying "I have already given you three samples. I am not giving a fourth. I am not refusing. It is not my fault that your machine is not working." The police explained the consequences of refusal and tried to persuade him to reconsider. They invited him again to speak to counsel and to confer with his wife, who by now had come out of the house and was standing nearby. The defendant would not budge and continued to refuse. The police gave up trying and charged him with refusal at 6:40.

[4] At trial the defendant testified that he is 58 years old and drives for a living in his government job. He suffers from gout and arthritis and is missing many teeth. He acknowledged drinking four pints over about four hours at the Celtic. He said he was not impaired and suggested that observers may have mistaken his awkward gait as being caused by alcohol rather than his arthritis. He said that he understood what was being demanded; he tried to follow the police directions and provide samples, but each time the officer pulled the machine away from him after a few seconds and told him he was not doing it right. He said that it was very hot in the police car and he was beginning to feel somewhat ill, though he did not mention that to the police, thinking they wouldn't care. He refused to make any more attempts to provide a sample because "things were not going to get any better and they might get worse" meaning he had tried his best and the heat and feeling of illness might result in his being sick (vomiting).

[5] The defendant does not have any diagnosed disease or breathing difficulty. However, the defence called a cardiopulmonary technician who testified that post-offence testing of the defendant on a spirometer, a device that measures volume and flow of air from the lungs in patients with asthma and similar conditions, revealed an unusual pattern showing that his exhaled breath came out in fluctuating volume as if there was some obstruction rapidly blocking and opening in his air passages. He did not provide a steady flow. The testing was videotaped and showed that the sampling involved the defendant taking in the biggest breath possible and exhaling as hard and fast as he could – a Big Bad Wolf type of blow – rather than the type of steady blow associated with a screening device.

3. Analysis

The Failure

[6] This case is unique in that it involves both a failure to provide samples and an outright refusal. Mr. Starkman, in a very thought-provoking argument submits that, with respect to the failure, there should be a reasonable doubt that the defendant intentionally failed to provide samples. The submission continues: If there is such a doubt, then the verbal refusal is also justified. Put simply, a detainee who honestly attempts to provide a sample but is unsuccessful due to no fault of his own, is entitled to do as the defendant did – to call it quits and refuse to provide further samples. He is not obliged to continue endlessly to attempt to accomplish that which he has been unable to accomplish despite his bona fide best efforts.

[7] There is no doubt that the defendant failed to provide a suitable sample and there is no doubt that he knew he had failed. His defence to that failure is that he intended to provide a sample, or to put it in double negative terms, he did not intend to not provide a sample. In short, he lacked mens rea. However, recent case law suggests that no such intent is required. Is this case law correct?

Mens Rea

[8] What is the mens rea for the refusal offence? The Saskatchewan Court of Appeal in R v Lewko (2002) 2002 SKCA 121, 169 CCC 3d 359 held:

The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existence of a demand having the requirements of one of the three types mentioned in ss. (2) and (3). Second, the Crown must prove a failure or refusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus). Third, the Crown must prove that the defendant intended to produce that failure (the mens rea).

[9] I had reached the same conclusion a few months earlier in R v Sullivan [2001] OJ No 2799. That decision was followed by a number of courts including the Superior Court of Ontario. More recently however, Justice Code in R v Porter 2012 ONSC 3504, [2012] OJ No 2841 disagreed. He classified the offence as one of general intent and held that the mens rea for this offence is merely knowledge of the prohibited act, that is, knowledge by the accused that he is not providing a sample (para 35 - 37).

[10] With respect, I cannot agree. While I don't necessarily disagree with Porter that the present offence may be one of general intent, I cannot agree that mere knowledge by the accused that he is not providing a suitable sample comprises the mens rea. In fact I am not even sure that such formulation necessarily describes a mental state accompanying the act or omission at all, as opposed to being an after-the-fact assessment of what has occurred.

[11] In my view, the bottom rung basic intent applicable to any crime, absent words to the contrary, generally speaking, is the intent to do the act or omission that constitutes the offence. Specifically, with respect to the present offence, the mens rea of failure to provide a breath sample is the intention to not provide a breath sample.

[12] Support for this view can be traced back almost a millennium. In Daviault, [1994] 3 SCR 63 Cory J, for the majority said:

6 Originally a crime was considered to be the commission of a physical act which was specifically prohibited by law. It was the act itself which was the sole element of the crime. If it was established that the act was committed by the accused then a finding of guilt would ensue. However, as early as the twelfth century, in large part through the influence of the canon law, it was established that there must also be a mental element combined with the prohibited act to constitute a crime. That is to say that the accused must have meant or intended to commit the prohibited act. The physical act and the mental element which together constitute a crime came to be known as the actus reus denoting the act, and the mens rea for the mental element. Like so many maxims they are imprecise and in many instances misleading.

7 For my purposes it is sufficient to say that for a great many years it has been understood that, unless the legislator provides otherwise, a crime must consist of the following elements. First, a physical element which consists of committing a prohibited act, creating a prohibited state of affairs, or omitting to do that which is required by the law. Second, the conduct in question must be willed; this is usually referred to as voluntariness. Some writers classify this element as part of the actus reus, others prefer to associate it with mens rea; however, all seem to agree that it is required. (See, generally, J. C. Smith and B. Hogan, Criminal Law (7th ed. 1992), at pp. 37 ff.) If persons other than lawyers were asked what constituted willed or voluntary conduct they would respond that such an act or conduct must involve a mental element. It is the mental element, that is the act of will, which makes the act or conduct willed or voluntary.

[13] I have underlined, among other parts, use of the word "willed" in this passage because Porter placed pivotal significance on the absence of the word "willful" in the definition of the refusal offence, reasoning that it was therefore error to import such a concept as part of the mens rea. But the above passage demonstrates that the concept of willfulness is basic and omnipresent as a constituent element of any offence, absent words to the contrary. Where words like "willfully" are included in an offence it has the effect of extending the mens rea requirement to higher levels above and beyond the basic (R. v. Rees, [1956] S.C.R. 640). The case of R v Docherty (1989), 51 CCC 3d 1 (SCC) contrary to its interpretation in Porter, only confirms this position. In that case the Court held that "willfully" extended the required mens rea to include what otherwise would be excluded – a mistake of law. But while "willfully" serves to extend mens rea, the opposite is not true. The absence of "willful" does not remove the basic mens rea or, put another way, the requirement of basic intent is not dependent on words like "willful".

[14] If any further authority is required, one might have regard to the definition of "Basic Mens Rea" in Smith and Hogan Criminal Law 6th edition P 70 where the learned authors would even extend basic mens rea beyond an intention in relation to the wrongful act and include intention or recklessness about the results and circumstances as well. The principle was stated that:

…in crimes requiring mens rea, as distinct from negligence, the defendant should be liable only for that which he had chosen to bring about, or to take the risk of bringing about ie that he intended, or was reckless whether all of the elements of the offence, both results and circumstances, should occur.

[15] Finally, with respect, the Porter definition would lead to absurdities and unjust results. A person with advanced lung disease or injured in an accident would be found to have committed the requisite actus reus (failure to provide a sample) and have the Porter mens rea (knowledge that he had not provided a sample). If Porter is correct, conviction would have to follow.

[16] But it will be said that the accused in the above examples would be saved by the availability of a defence of "reasonable excuse". I don't think so because it is well established that "reasonable excuse" refers to matters that lie "outside of the elements of the offence": R v Taraschuk, [1977] 1 SCR 385; R v Moser (1992), 71 CCC 3d 165 (Ont CA). A helpful test of whether something lies outside the elements of the offence may be found in the judgment of Laskin J in Brownridge – Would the "defence" still be available if the phrase "without reasonable excuse" was removed from the section? Here, the answer seems clear enough – the fundamental requirement that the act or omission be volitional and be accompanied by at least a basic level of intent – would be present without express provision for a defence of reasonable excuse. Accordingly, the issue cannot fall within or be rescued by "reasonable excuse".

[17] Another reason why the intent issue cannot be dealt with under the heading of reasonable excuse is that "excuse" carries with it the notion of "explanation" – and in fact the two words are often used interchangeably. But there are cases – this being one – where the accused cannot explain why he couldn't provide a sample – he can only say he tried. He does not know why he failed. He does not have an excuse, only an unexplained but unintended failure. While the failure to explain may weaken his defence, it does not detract from the validity of his denial of mens rea which if believed and accepted should in principle result in acquittal.

[18] So, in conclusion, for these reasons I respectfully disagree with Porter. I remain of the view that a reasonable doubt as to whether the defendant's failure to provide a breath sample was volitional or intentional must result in an acquittal.

Finding re Mens Rea

[19] Applying this conclusion to the evidence in this case, I find that I have such a doubt. To be clear, I have a doubt that the failure on the three attempts was intentional. I am not saying that he was unable to provide a sample - only that he did not intentionally fail on those three tries.

[20] I found the defendant to be a credible witness on the matter of his intent. I have considered a number of factors that lend plausibility to his claim. First, it is common experience that one instructed in an unfamiliar task will often not perform it properly on the first few attempts. This is so even if the instructions given are clear and understood. In this regard it is interesting to note that the cardiopulmonary technician testified that in her testing of subjects on her machine, despite her instructions and demonstration, it usually takes a number of tries before they perform an acceptable test. Closer to home, I have seen numerous breath room videos where the subject fails to execute on the instructions given on the first few tries but then succeeds.

[21] In addition, bearing on intent, I factor in the heat and discomfort that the defendant was experiencing and the admitted fact of his having consumed a significant quantity of alcohol, which may have had some bearing on both his understanding and ability to carry out instructions. I also have some concerns about the lack of experience of the officer, a trainee conducting his first test albeit under supervision, and the poor note keeping by the police, the inconsistencies and gaps in their evidence as to the instructions given and as to the length of the attempted blows. Finally the cardiopulmonary testing raises some question as to his ability to provide the even flow of air required, though it falls quite short in itself of providing an explanation in relation to this different test on a different machine at a different time. The combination of all of these factors leaves me in a state of reasonable doubt that his failure was intentional.

[22] If the matter ended there, the defendant would be entitled to an acquittal. But it doesn't.

The Refusal: Reasonable Excuse?

[23] As mentioned above, Mr Starkman persuasively argues that a detainee who honestly attempts to provide a sample but is unsuccessful is not obliged to continue endlessly to attempt to succeed.

[24] Since the actus reus (refusal) and the mens rea (intent to refuse) are certainly established by the outright refusal, the point falls to be determined under "reasonable excuse".

[25] Assuming the general abstract validity of Mr. Starkman's proposition, in my view whether it amounts to a reasonable excuse in a particular case must depend on the circumstances. Clearly the scheme and structure of the section is to put the police officer in control of the situation. It is his opinion that counts as to whether his demand has been satisfied and his call as to whether further attempts will be made to obtain a suitable sample. The effective authority to terminate the investigation should not lightly be transferred to the detainee.

[26] The present case is not one where the defendant had a known medical condition that made him incapable of ever - or even soon, in the next few minutes - providing a sample. Here he had made three attempts over a span of only three minutes. I have a reasonable doubt in his favour that those three attempts were bona fide but as mentioned, I do not know why he was unsuccessful. I am not finding that he had an incapacity or that the problem, whatever it was, would necessarily have persisted through further attempts. For example, while not likely, the problem may have been, as per one suggestion made in cross-examination, that the inexperienced officer was inadvertently holding the device in such a way as to block the exhaust port, thus preventing or hindering the introduction of the breath sample. More probably, the defendant himself may have been the source of the problem. Had he requested and received relief from his discomfort from the heat, taken a few breaths and collected himself, he may well have been able to satisfy the demand. Or maybe not. But in my view, in all the circumstances, the defendant was not entitled to call it quits after only three attempts over three minutes. He therefore had no reasonable excuse for his refusal.

[27] The defendant is found guilty as charged.

January 22, 2014

B Duncan J

B Starkman for the defendant

K. Watson for the Crown

Footnotes

[1] R v Stanley (2003) 42 MVR 4th 95 (Ont Sup Crt); see also R v Campbell [2008] OJ 47 (Ont Sup Crt) following Lewko. This difference of opinion in the Superior Court permits me to disagree with Porter.

[2] I don't find the general/specific exercise very helpful in either determining the mens rea or the burden of proof. The words used in the description of the offence, particularly of the mental element, determine whether it is a crime of general or specific intent. The reasoning process should not flow in the opposite direction, that is, classifying the offence as general or specific and from that classification determining what the mental element should be. Similarly such classification does not assist on the question of burden of proof since the burden is on the Crown to prove both general and specific intent.

[3] The Supreme Court of Canada recently re-affirmed the principle that mens rea is presumed in the absence of words specifically removing it as an element of the offence: R v MacDonald Jan 17 2014.

[4] There is surprisingly little academic discussion that I could find as to what constitutes basic intent. The interest seems to be in the more complex levels of intent and how high up the ladder intention should reach.

[5] Brownridge v The Queen, [1972] SCR 926.

[6] As mentioned in Daviault, jurists and commentators have different views on whether volition is a component of the actus reus or mens rea. It is largely a debate of academic interest only since as a practical matter either way, a reasonable doubt entitles the accused to an acquittal. Interestingly, Porter seems to accept that the explanation or excuse in that case was "relevant to the actus reus" as well as "reasonable excuse" while at the same time denying it a role in the mens rea (para 38 - 40).

[7] He said he understood the instructions but all that ever really means is that he thought he understood.