Court Information

Ontario Court of Justice

Date: September 8, 2014

Court File No.: Brampton, File number 3111 998 13 7765 00

Parties

Between:

Her Majesty the Queen

— And —

Lennoy McFarlane

Judicial Officer and Counsel

Before: Justice K. L. McLeod

Heard on: July 28, 2014

Reasons for Judgment released on: September 8, 2014

Counsel:

• Ms. S. Andersen — counsel for the Crown
• Mr. M. Mangat — counsel for the defendant Lennoy McFarlane

Judgment

McLeod J.:

The Charge

[1] Mr. McFarlane faces a charge of refuse approved screening device. He was stopped at a ride spot check at 12:20 am on the 7th of May, 2013. At 12:36 in the morning, after making numerous attempts to blow into the ASD, Mr. McFarlane was arrested and charged with this offence.

[2] At the outset of this judgment, because I am fully aware of Mr. McFarlane's anxiety difficulties, I wish to advise him that I am dismissing this charge and therefore finding him not guilty of the offence.

[3] This judgment deals with two issues: firstly, whether the Crown has proven all of the elements of the offence beyond a reasonable doubt and secondly, what I will refer to as the process.

The Crown's Evidence

[4] Constable Schmidt was operating a RIDE programme on the westbound ramp from the QEW at Hurontario Street. At 12:20 a.m. Mr. McFarlane was stopped as he left the highway. He had a passenger with him. Constable Schmidt testified that upon speaking with Mr. McFarlane, he smelled an odour of alcohol coming from his breath and after a conversation formed a suspicion that there was the presence of alcohol in Mr. McFarlane's body. He read the ASD demand and showed Mr. McFarlane how to blow into the instrument. He provided him with a mouthpiece and confirmed that there were no obstructions.

[5] Constable Schmidt indicated that he gave Mr. McFarlane 20 opportunities to blow into the machine, all of which produced an error message. At one point he stated that he noticed Mr. McFarlane had placed the mouthpiece right up against his teeth which were clenched. Further he said that Mr. McFarlane only blew for one second then would stop, then continue to blow again, which would cause the error message.

[6] Constable Schmidt said that Mr. McFarlane told him that he was trying to blow, but just could not do it. Constable Schmidt warned him that a failure to blow would result in a charge.

[7] After 20 attempts the officer demonstrated how to blow into the machine and provided a new mouthpiece to Mr. McFarlane. After ten further failed attempts, the officer again warned Mr. McFarlane and counted down the number of tests from five to zero, at which time he charged Mr. McFarlane with refuse.

Cross-Examination of the Officer

[8] The cross-examination of the officer takes up approximately two pages of transcript. It is important for the purposes of this judgment that the cross-examination be reproduced in its entirety.

Q. Officer, would you remember how long — did you deal with him?

A. I first observed him at approximately 12:20 when he approached my vehicle and by the time we were complete, it was 2:00 by the time I was complete with the investigation. So for an hour and a half for sure I was dealing with the investigation.

Q. During this time did you notice something abnormal in his behavior?

The Court: — something — sorry?

Q. Something abnormal in his behaviour?

A. Short of his — like, I don't understand. Abnormal, I don't know. He was, he was, he was not being cooperative. He was — he seemed annoyed by the fact that he was there. He didn't want to be there. He told me he just wanted to go home. But there was nothing outside of his physical ability that was abnormal. He was, he was not being cooperative, so...

Q. Do you remember any communication between you and him?

A. Oh, yeah, we had plenty of conversation through that time.

Q. Uh. Huh

A. Basically it was my instructions to provide a sample of his breath and warning of the potential for criminal charges to be laid failing to provide a suitable sample of his breath. And that was, that was our dialogue.

Q. Do you remember that he was not communicating as much?

The Court: As much as what?

Q. Like, as compared to him, his responses were less.

The Court: Less than what?

Q. Many times he won't speak up at all.

A. Well, I was the one providing instructions. He was the one that was, was not...

Q. Responding.

A. …Cooperating or...

Q. So he was not responding or cooperating?

A. No, sure he was responding. He was standing in front of me. He was opening his lips a little bit. His teeth remain clenched. You know, he tested the mouthpieces on two separate occasions outside of the approved screening device — worked, worked properly?

Q. Did you — did you notice he was angry?

A. I don't know how angry but I know he, he didn't, he didn't want to be there. He didn't — he was — I don't want to say — I don't know if he was frustrated or what was going through his mind but he was not able to, you know accommodate a simple, a simple instruction of blowing through a mouthpiece which is — and I explained to him his requirement to do so.

Q. Those are my questions.

The Defence Evidence

[9] Mr. McFarlane testified in his own defence.

[10] In his examination-in-chief, which took up approximately 4 pages of transcript, Mr. McFarlane agreed that the officer had shown him how to blow into the ASD. He agreed that he had had a number of opportunities to blow: he thought about 15. He also testified that the officer banged the mouthpiece into his mouth.

[11] When Mr. McFarlane sat in the witness box, it was clear he was extremely nervous. He was shaking so much that the entire structure of the witness box was vibrating. He apologized for his nervousness and said that he also got very nervous on the day he was arrested. He said he was off his medication on the day of his arrest and it was hard for him to breathe into the machine because he was so panicky.

[12] Mr. Mangat asked him:

Q. And what kind of medication — what is your problem? What kind of medication are you on?

A. I'm on Invega.

[13] Subsequently, again after apologizing for his nervousness, Mr. McFarlane was asked by his lawyer:

Q. Why are you on this medication? What is your problem? Can you explain to the court?

A. I'm on this medication because I suffered through a traumatic experience in 2010 because of that — my traumatic experience I have to take medication to keep myself calm and to keep myself focused. So I've been on the medication for about 4 years now but I haven't — I stopped at one point and that was the point when the policeman pulled me over. But I'm back on my medication now.

Q. Can you tell the court what is the problem in your behavior? Why — like what do you feel; what do you think? Why are you on the medication? Do you remember anything?

A. Why am I on medication?

Q. Yeah. What is the problem?

A. Ah, man it's, it's very, it's a very personal problem but something that I'm going through. I'm going — I'm on medication because I think people are after me, like a conspiracy against me. So I've been going through this problem for about 4 years now.

[14] At this point in the proceeding, Mr. Mangat attempted to show a document to his client apparently to identify from what ailment he suffers. The Crown objected.

Mr. Mangat stated:

"This is a letter from William Osler hospital where he is going to treatment from a doctor."

The Court: "So what's the purpose of putting the letter to your client?"

A: "He will just tell from the letter."

The Court: "He can tell me."

Mr. Mangat: "Okay. All right."

The Court: "He can just tell me. I mean, I understand that he has — he requires some medical treatment, but I don't, I'm still trying to find out what the relationship between that and his behaviour at the time is."

[15] Mr. Mangat then went on to ask Mr. McFarlane about his diagnosis.

[16] Ultimately Mr. McFarlane informed the Court that he had been diagnosed with depression, psychosis and schizophrenia.

He was then asked:

Q. Can you now remember when you were stopped by the police officer why didn't you blow in the, in the mouthpiece.

A. I was very panicky, I was very, very nervous and panicky after, after the first time when he kind of banged the thing in my mouth, it made me panicky. I didn't really think he liked me so I made him more nervous.

Mr. Mangat asked: "Were you feeling anything when you were trying to attempting it?

A. I was nervous. I was very nervous and panicky.

Q. That's all you would like to say? Did you understand the questions by the officer?

A. I, I understood. I was doing it. I was blowing the machine. It wasn't like I was refusing. I was blowing on the machine. I was blowing the machine.

Q. Just because you were panicky you couldn't do it?

A. Yes

Q. Alright.

And that was the completion of the examination-in-chief.

Cross-Examination of the Defendant

[17] Ms. Andersen chose to cross-examine. From this the following facts were gleaned:

1. Mr. McFarlane had a friend with him that evening with whom he was still in touch, however did not contact him with respect to being a witness.

2. Mr. McFarlane admitted to having one drink before he left a friend's house about 5 or 6 hours earlier.

3. He understood what the officer required of him.

4. He was diagnosed with a mental illness in 2010 and prescribed medication. He was taking three types of medication but stopped taking it when he moved from Brampton to Scarborough and did not end up seeing his doctor anymore. He also explained at this period of time, he stopped taking his antidepressants because he was warned by his mother, a nurse, that if he took the medication it could make him feel even worse. He described he was off his medication for two years.

[18] Mr. McFarlane also advised that in September of 2013 a few months after this offence, he was admitted to hospital. He was having a panic attack, he called the police and said that he wanted to die on the cross. He said he was panicking, he couldn't sleep and he was in very bad shape.

[19] With respect to employment Mr. McFarlane described that he was working doing security work for Northwest Security. His job entailed working at concerts, standing by the rails to make sure people didn't go through the doors. He indicated that his job was suspended because of his driving suspension. He had to renew his security license and he could not do that without a driver's license.

[20] With respect to the officer's efforts to obtain a sample he agreed that Constable Schmidt made it clear what was needed to be done and he also said that the officer demonstrated what was required. He testified that he was very panicky about the whole thing and that he thought he provided a suitable sample but was told that in fact he had not.

[21] With respect to his feelings about the officer, Mr. McFarlane indicated he was very nervous because the officer told him he had to follow the law and that when the officer "jammed" the mouthpiece into his mouth, he became "really nervous like he was going to attack me or something. I don't know. I was nervous."

[22] I took the unusual step (for me) of posing some questions to Mr. McFarlane. He advised that he was also very nervous on the day of testifying, even though he was on his medication and that was evident to everyone in the courtroom. He described what occurred to him when he had a panic attack he said "I get really nervous and just start thinking, start thinking other people are out to get me or I just …"

[23] Mr. McFarlane indicated that he now lives in Markham because it is cheaper for him, that he survives on $900 per month on benefits and that he has three hundred dollars to live on after paying for his rent.

Crown's Request for Adjournment

[24] At the conclusion of the testimony, a recess was agreed upon. Ms. Andersen returned indicating "I'm wondering in light of the testimony that we heard if before closing its case perhaps we can have an adjournment for the defence to obtain further medical information for consideration."

[25] Mr. Mangat responded "Your Honour, the defence would rely on his state of mind at that day and time, what he was feeling or understanding.... He went on to say "at that time he had not seen the doctor for 2 years. I think medical reports wouldn't be of much help in explaining what he was understanding or feeling at that time"

[26] Ms. Andersen stated:

"I canvassed the issues with my colleague Mr. Maylor" (who is the Crown Attorney in this region) "and we thought it best to seek an adjournment if the defence would be willing to provide us with information for our consideration, but if they do not wish to do so then I can't make them do so."

The Court: And that's your position?

Mr. Mangat: Your Honour I don't object to getting the medical information. First of all there may be some cost issues. I don't know what the doctors are going to say. I don't expect much information because he has not seen the doctor for two years.

The Court: Now he hasn't seen a doctor....

Mr. Mangat: No, at that time. Now he will. I leave it in your hands. I think enough information is before the court about his state of mind and understanding….

[27] At that time I invited both counsel to make submissions.

Legal Framework

[28] The law relating to what the Crown must prove on a charge such as this was reiterated by Justice Durno in R. v. Grant 2014 ONSC 1479.

[29] The Crown must prove:

1. A valid demand: in this case there clearly was one.

2. The failure to comply with the demand and provide a proper breath sample: again Mr. McFarlane clearly failed to comply with the breath demand.

3. An intention to fail to provide a breath sample. This is what the issue is in Mr. McFarlane's case.

[30] In analyzing the intention, Justice Durno set out a helpful list of considerations for a trial judge:

1. The words or actions of the detainee from which the officer concluded an intention to refuse: In this case while Mr. McFarlane did not outright refuse, according to the officer, he was not blowing sufficiently enough and not putting the mouthpiece far enough into his mouth.

2. The number of opportunities the officer provided to the defendant: I accept Constable Schmidt's testimony that there were innumerable attempts. His basis for recollection: his notes is a much more reliable one than that of Mr. McFarlane, especially given Mr. McFarlane's suggested fragile mental state at the time.

3. The instructions provided to the detainee including reference to the law; how to provide the sample and whether the detainee was given one last chance.

There is no doubt that Constable Schmidt's actions are beyond reproach in these circumstances.

4. The detainee's state of intoxication and attitude: there is evidence from Mr. McFarlane that he was nervous and evidence from Constable Schmidt that Mr. McFarlane was frustrated. However there was very little evidence elicited as the particulars of each.

5. The availability of the technician and intoxilizer: this is not relevant here.

6. Whether the detainee has been told that he or she has refused to provide a sample and will be charged and then the detainee has asked for another opportunity. This again was not the case here.

Analysis of Intention

[31] I have no doubt that the officer performed his duty admirably; that he gave Mr. McFarlane innumerable opportunities to blow into the ASD. However what the officer did not know, nor was there any evidence that Mr. McFarlane told him, was that his nervousness was almost disabling.

[32] In his examination, the officer was not asked the full extent of the details of his conversation with Mr. McFarlane; nor was much of Mr. McFarlane's version of events put to the officer in accordance with the rule in Browne v. Dunn. In particular: what was not put to the officer was the fact that the officer was the one who placed the mouthpiece into Mr. McFarlane's mouth, and jammed it into his teeth. This action is what Mr. McFarlane relies on to either have induced or accentuated his nervousness and frankly paranoia. Furthermore there was a discrepancy as to the evidence of the number of opportunities Mr. McFarlane was given, nor was there any detailing of the conversations that Mr. McFarlane and the officer had from the officer's recollection nor any questions about any indicia of nervousness and anxiety.

[33] While Ms. Andersen in the most gentlest of submissions on this issue reminded me that the rule in Browne vs. Dunn had been offended, she did not argue that an adverse inference should be drawn. I will not draw an adverse inference for the reasons that I will continue to articulate and for the reason that is really my second reason for acquitting Mr. McFarlane.

[34] Let me firstly deal with the issue of whether the Crown has proven an intention to evade a proper sample being taken. I am satisfied, given the evidence elicited in the cross-examination of Mr. McFarlane, together with my own observations of the gentleman while he testified, that his mental health issues cause a state of anxiety and nervousness that is almost disabling. He continued to try to blow, albeit not successfully, he never once said he was giving up, and I am satisfied that he has raised a reasonable doubt as to whether he intended to evade giving a proper sample.

[35] I would not have been able to make this finding without the assistance of Ms. Andersen who admirably fulfilled her duty as a representative of the Minister of Justice. It was clear to everyone in the courtroom that at the time she rose to cross-examine, the true circumstances of Mr. McFarlane had not been brought out, nor had the officer been cross-examined to the extent that would be required by the rule in Browne v. Dunn.

The Browne v. Dunn Issue

[36] While the case law on the issue of Browne v. Dunn does not encourage a rigorous application of the rule, which is based on a need to ensure trial fairness, without canvassing other ways of remedying the problem, see R. v. Dexter 2013 ONCA 744, a trial court does when the rule is infringed have the option of making an adverse credibility finding. Since Mr. McFarlane's case rested on credibility findings, an adverse finding would have been very difficult for Mr. McFarlane to overcome.

Concerns About the Adversarial System

[37] As a presiding judge in Brampton since March of 1999, I have become increasingly concerned about the fate of the adversarial system in this jurisdiction and whether it continues to serve the true pursuit of justice.

[38] The adversarial system requires a Judge to rely on opposing counsel to provide the evidence upon which a decision can be made as to whether the Crown has proven its case beyond a reasonable doubt. In an article published in the Harvard Law Review entitled "Dealing with Incompetent Counsel - The Trial Judge's Role" found at (1980) 93 Harvard Law Review 633, Judge W.W. Schwarzer stated: "A critical assumption underlying our commitment to this process (the adversary system), is that it will be operated by competent lawyers. The success of the adversary system therefore relies on a 'level playing field' of competence in that both adversaries vigorously must present the evidence that is capable of assisting the trier of fact in determining the issues before the Court."

[39] In the last 20 years, our Courts of Appeal all too often have had to deal with an after-the-fact allegation of incompetence of counsel.

[40] In R v. Furtado, 2006 OJ No. 3866 Justice Hill, in the Superior Court in this jurisdiction reviewed, in his usual encyclopedic fashion, all of the authorities, both articles and cases on this issue. He stated at paragraph 3 of his judgment:

"When significantly incompetent advocacy occurs, the adversarial system is threatened with collapse as the appearance of fairness is compromised and the reliability of the verdict is questioned. R v. W(W)(1) (1995), 100 CCC 3d 225 Ont.C.A. at pp 234-5."

Justice Hill went on:

"In effect the logic of the perceived adversary system 'comes unstuck where counsel is "ineffective" or "deficient"' (Ekins: Defence Counsel Incompetence and Post-Conviction..." supra at p. 531). Incompetence of defence counsel may, on the facts of a particular case, result in a miscarriage of justice necessitating the quashing of the conviction on appeal R. v. Archer supra at p. 96."

Legal Aid and Defence Counsel Competence

[41] To state the obvious this is not an appeal. While I have no knowledge, nor indeed should I know the nature of Mr. Mangat's retainer, judicial notice can be taken from the fact that the cash strapped Legal Aid Ontario does not finance those defendants who are charged with an offence where there is no prospect of imprisonment. A charge of refusal of an Approved Screening Device demand, in this jurisdiction, for first offenders, will not jeopardize a defendant's freedom. That is not to say that the consequences of a finding of guilt are negligible. It will bring about a loss of licence, a criminal record, an increase in insurance premiums and in Mr. McFarlane's case: the charge itself has already had significant employment ramifications. Given the evidence of Mr. McFarlane's financial situation, about which I have no reason to disbelieve, it is likely he funded his own defence and furthermore would have to fund any appeal: assuming he would be aware that he could appeal. Furthermore the presumption of competence of counsel is one that the appellate courts are loathe to interfere with, but there have been many recent examples where such a finding has been made, and this jurisdiction is no exception (see R v. Furtado supra, R. v. Ahmad [2010] O.J. No. 1508, R. v. Bilinski 2013 ONSC 2824 to name but a few cases).

[42] I do not intend to speculate on the reasons why Mr. McFarlane's defence was conducted in the way it was, but frankly without the Crown's cross-examination which really brought out the full picture, I, as the trier of fact would have been left in the complete dark as to the extent of Mr. McFarlane's plight.

[43] Not only did Mr. Mangat fail to put his client's version of events to the officer, he completely failed in any way to perform his duty to subject the Crown's case to the scrutiny that was required.

The Crown's Role in Ensuring Fairness

[44] Furthermore, while the transcript reveals what was said, what it does not show is what occurred at the end of the evidence. There was a long pause as I know I struggled and I believe Ms. Andersen processed options as to how to "fix" what had occurred so justice could be achieved. As a result, after this long pause, I asked Ms. Andersen if a recess was appropriate, knowing that if it was taken, Ms. Andersen would go and consult with either the Crown Attorney or one of his deputies to discuss an exercise of discretion. Indeed she did and came back with the offer, which meant that had evidence of Mr. McFarlane's difficulties been confirmed by a physician responsible for his present care, I am sure, despite the fact that it wasn't blatantly articulated, there was a possibility and I put it no higher than that, that Mr. McFarlane's charge would have been dealt with in a way that did not involve a conviction for this offence. That offer was not taken up.

[45] For nearly 16 years, I have endeavoured as best I could, when situations arose, to level the playing field...to ensure that clearly unprepared counsel had time to prepare, to gently and not so gently, cajole counsel both in court and out of court to put their best foot forward, so that the administration of justice would continue to be served and ultimately justice be done. In this case; it was clearly impossible to do this, as the full picture was not provided until it was too late to ensure that the fullest of the true state of affairs was articulated.

The Judge's Limited Role

[46] The adversarial process requires a judge with only very limited powers of intervention and interrogation during the hearing of evidence, I say, parenthetically, that my questioning of Mr. McFarlane at the conclusion of his evidence was only done because I was so concerned at the state of the record.

[47] A trial judge has no "file" to read in preparation for a trial; and is left in the position of relying on counsel to articulate through the evidence, the theory of the prosecution and the defence. In this case, to manipulate an analogy, the horse had bolted to another universe before the barn door was even being built.

Conclusion

[48] While I take no pleasure, in fact I deeply regret, that this judgment names a particular counsel, nor do I wish to "throw anyone under the bus", but this case was such a stark example of what appears to be a true and not infrequent and perhaps systemic problem in this jurisdiction. I would not have served the administration of justice and frankly my own conscience, if I had not articulated my concerns.

[49] I had a choice. I could have easily, as I have done, acquitted Mr. McFarlane on the substantive issues alone, but the truth should be known that it was the overall picture which has led me to dismiss this charge. A fundamental part of the adversarial process is transparency and I must uphold that.

[50] Justice would not have been served in any way had I applied all of the rules relating to credibility findings in the strictest of ways, and that would not have been right. I consider it an imperative that this message be sent in a case such as this: in this system, Judges rely on counsel to effectively represent the parties. Without effective representation, justice becomes elusive or unpredictable. That leads to miscarriages of justice which is something we must avoid at all costs.

[51] For all of these reasons the charge will be dismissed and a copy of the transcript of the trial in these proceedings will be attached as an exhibit to this judgment.

[52] Mr. McFarlane, you are free to go.

Released: September 8, 2014

Signed: Justice K. L. McLeod