ONTARIO COURT OF JUSTICE

(East Region)

Her Majesty the Queen

v.

Andrew Ross

DECISION

Justice David M. Paciocco – Ottawa, ON

Released 3 March 2015

Counsel:

• Mr. J. Cavanagh for the Crown
• Mr. M. Ertel for the Accused

I. Introduction

1Andrew Ross was tried before me on two counts arising from an automobile collision that occurred on 16 August 2013. He stands charged with refusing to provide an evidential breath sample contrary to section 254(3) of the Criminal Code, and with impaired driving.

II. The Evidence

2Shortly before 7:17 p.m. Mr. Ross's vehicle collided with the rear end of a car driven by Krystle Matar on the Sir John A. McDonald Parkway in the City of Ottawa. Both cars were travelling east bound. Cst. Degrasse of the R.C.M.P. attended the scene. After speaking to Ms. Matar he inferred, with good reason, that Mr. Ross was the driver of the car with the front end damage. In spite of the description by Ms. Matar that just before the collision she caught a glimpse through the rear view mirror of Mr. Ross looking in the direction of the river and not the roadway, Cst. Degrasse inferred that Mr. Ross must have been using a cellphone at the time. He drew this inference because he said that he could think of no other cause for the collision.

3After speaking to Ms. Matar, Cst. Degrasse approached Mr. Ross and during their conversation detected an odour of alcohol on Mr. Ross's breath. Cst. Degrasse secured an admission that Mr. Ross had consumed vodka and Kahlua earlier. He also noted that Mr. Ross's eyes were watery and bloodshot. While there was some suggestion that Mr. Ross took a long time to find his proof of insurance form, there is no evidence that Mr. Ross had physical difficulties in identifying or producing the documents being requested, no indication of slurred speech, and no indications of problems with balance or movement.

4Based on what he had observed, Cst. Degrasse testified that he formed the reasonable suspicion that Mr. Ross had been operating a motor vehicle with alcohol in his body. As a result, Cst. Degrasse made a roadside screening device demand. After several attempts that Cst. Degrasse interpreted as non-genuine, and after much prodding, Mr. Ross produced a fail reading on the approved roadside screening device. Cst. Degrasse understood this to mean that Mr. Ross had more than the legal limit of alcohol in his body, but gave a technically incomplete description of the measurement produced by the device; specifically he said it shows that Mr. Ross had more than .09 milligrams of alcohol in his blood.

5Cst. Degrasse proceeded to arrest Mr. Ross for the offence of impaired driving, and testified that "coupled with the fail and the grounds I had used to give the demand, I had sufficient grounds to have reasonable and probable grounds that he was committing the offence."

6Cst. Degrasse testified that when he was processing Mr. Ross after they went into the police car after Mr. Ross's arrest, Mr. Ross became uncooperative and obstreperous. During the three minutes that Cst. Degrasse was reading the right to counsel advice and the caution warnings, Mr. Ross was speaking nonstop and was insulting Cst. Degrasse. Cst. Degrasse testified that this threw him "off his game." Cst. Degrasse testified that, as a result, he forgot to read the intoxilyzer demand, only realizing he had not done so when he arrived with Mr. Ross at the police station some 17 minutes later. At that point, before entering the station, he made a lawful demand. Mr. Ross responded "I am going to give it. I have no choice," or words to that effect.

7Mr. Ross was processed uneventfully until 8:51 p.m. when Cst. Degrasse received word that the intoxilyzer was ready. He went to retrieve Mr. Ross from the holding cell. What took place in the cell is the foundation for the refusal charge, based on an allegation that Mr. Ross unequivocally refused to accompany Cst. Degrasse to the Intoxilyzer room where a qualified technician was waiting. The contest over whether there was a "refusal" arises because Cst. Degrasse did not attempt to record the conversation that occurred.

8First, Cst. Degrasse did not record what he himself said. In his evidence in chief he said he "asked Mr. Ross to come," and initially in cross-examination he said much the same thing. He said "I had asked him to come with me to provide a breath sample. I don't recall what I asked him." Later, when it became apparent from the questioning that defence counsel was going to make an issue out of whether a request or "ask" is a demand, Cst. Degrasse began to testify that he told Mr. Ross to come.

9Second, Cst. Degrasse did not record what Mr. Ross said. Instead he wrote down his interpretation of what Mr. Ross was communicating, an interpretation he was confident in.

10Specifically, Cst. Degrasse recorded that Mr. Ross was taking the position that his lawyer told him not to blow. Cst. Degrasse interpreted this as a refusal, and testified that he then warned Mr. Ross, in terms that were not recorded, that if he did not provide a sample he would be charged for refusal. He said that Mr. Ross just flatly refused. During re-examination Cst. Degrasse said that what he had recorded in his notes was, "He just refused and said he was not going to provide a sample," a record that Cst. Degrasse called "fairly accurate but not exact wording." In Cst. Degrasse's view, whatever the precise words were, Mr. Ross's intent was the same and so was the meaning.

11I will begin the legal analysis arising from these facts with the refusal charge, given that the Crown is relying upon the allegation of refusal as evidence of impairment.[1]

III. The Refusal Charge

12In order to succeed in prosecuting the alleged offence of refusing to provide an evidential breath sample the Crown must prove beyond a reasonable doubt that Mr. Ross was given a proper demand for an evidential breath sample and that he "refused" either to accompany the officer or to provide a sample into an approved instrument: R. v. Taraschuk 1975 CanLII 37 (SCC), [1975] S.C.J. No. 122 (S.C.C.); R. v. MacNeil [1978] O.J. No. 653 at para. 6 (Ont.C.A.). An evidential breath demand is not proper unless the officer who makes it had, at the time, reasonable and probable grounds to believe that the person has, within the preceding three hours, committed an offence under section 253 as the result of the consumption of alcohol: section 254(3). Section 253 describes two offences, first, "impaired operation or care or control," and second, operation or care or control while having a blood alcohol content exceeding 80 milligrams of alcohol in 100 millilitres of blood. In order to be valid a demand must also be made "as soon as practicable." Even if a proper demand is made, no refusal offence is made out unless the accused unequivocally refuses to comply, either by not accompanying the officer to accommodate the demand, or by not agreeing to blow into the machine, or by intentionally blowing in a way designed to frustrate the production of a valid sample.

13Mr. Ross contends that he was not given a proper demand because Cst. Degrasse, the officer making the demand, did not have reasonable and probable grounds to make that demand for the offence relied upon, and he also maintains that the demand was not made "as soon as practicable." Mr. Ross also contends that there is no evidence of an unequivocal refusal because Cst. Degrasse failed to provide adequate evidence that would permit a finding of refusal to be made beyond a reasonable doubt, given that Cst. Degrasse's notes are incomplete and he has no ability to recount what was said by Mr. Ross with sufficient precision to identify a refusal.

14I will begin with the reasonable and probable grounds issue.

A. Reasonable and Probable Grounds

15"In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test": R. v. Bush 2010 ONCA 554 (CanLII), [2010] O.J. No. 3453 at para. 46. To be sure, this legal barrier is intended to protect the liberty of individuals from unreasonable police control. Being required to furnish a breath sample is, however, a relatively modest intrusion. Where there is sufficient reason to expect that an alcohol motor vehicle offence has occurred – namely where there are reasonable and probable grounds to believe that is so - it is therefore in the public interest to tolerate compromises on the liberty of drivers so that proper investigation can occur.

16To constitute reasonable and probable grounds the information relied upon by the officer must be sufficient in both quantum and credibility. In Hunter v. Southam Inc. 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 it was explained that "reasonable and probable grounds" arise when "credibly-based probability replaces suspicion."

17In operation, the reasonable and probable grounds standard has "both a subjective and objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence. The officer's belief must be supported by objective facts. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest [that the demand entails]": R. v. Bush, supra at para. 38.[2]

18In this case there can be no doubt that Cst. Degrasse had reasonable and probable grounds to believe that Mr. Ross committed the offence of operation of a motor vehicle while having a blood alcohol content exceeding 80 milligrams of alcohol in 100 millilitres of blood. It is not contested that based on the information known to Cst. Degrasse there was a credibly based probability that Mr. Ross was operating the motor vehicle. Cst. Degrasse also had information before him that would have enabled him to form a credibly based probability that Mr. Ross had more than the legal limit of alcohol in his body. Specifically, Mr. Ross failed the roadside Alcohol Screening Device, which Cst. Degrasse believed with good reason to be operating properly and to have been properly administered.[3]

19The complication in this case is that this is not what Cst. Degrasse concluded. Instead, he concluded that Mr. Ross had committed the offence of impaired driving, and this is the basis upon which he arrested Mr. Ross. In other words, he arrested Mr. Ross for an offence contrary to section 253(1)(a) of the Criminal Code, not an offence contrary to section 253(1)(b). That being so, the issue before me is whether Cst. Degrasse had reasonable grounds to make the demand for that offence – impaired driving. I cannot rest content that he could have made the demand of Mr. Ross for the separate offence of driving while having more the legal limit of alcohol in his body.

20A similar issue arose in R. v. Caslake 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 where the "reasonable and probable grounds" issue related not to the search of a person but to the search of an automobile. The officer had reasonable and probable grounds to search that automobile incident to Mr. Caslake's arrest. Yet the officer testified that he conducted the search solely to comply with the RCMP impoundment policy. Despite the objectively reasonable basis for a search incidental to arrest, a majority of the Court held that the search was illegal because that was not the subjective ground relied upon to conduct the search. Chief Justice Lamer commented at para 21 that:

"This Court cannot characterize a search as being incidental to an arrest when the officer is actually acting for purposes unrelated to the arrest. That is the reason for the subjective element of the test. The objective element ensures that the police officer's belief that he or she has a legitimate reason to search is reasonable in the circumstances."

21Chief Justice Lamer further explained at para. 27:

"Naturally, the police cannot rely on the fact that, objectively, a legitimate purpose for the search existed when that is not the purpose for which they searched. The Charter requires that agents of the state act in accordance with the rule of law. This means that they must not only objectively search within the permissible scope, but that they must turn their mind to this scope before searching. The subjective part of the test forces the police officer to satisfy him or herself that there is a valid purpose for the search incident to arrest before the search is carried out. This accords with the ultimate purpose of s. 8, which, as Dickson J. stated in Hunter, supra, is to prevent unreasonable searches before they occur."

22There are a number of reasons why a court cannot substitute an objectively reasonable basis for the search or arrest, in place of the basis that was relied upon by the officer. First, if a court was to do so, the subjective component of the test would become pointless; why bother inquiring whether there is a subjective component if a disconnected objective purpose would suffice? Why not simply ask whether an objective basis for the search or arrest in fact existed?

23Second, as will be emphasized below, the material inquiry is into the validity of the decision of the officer who made the liberty-infringing decision. The function of the objective reasonable grounds standard is not to measure whether the officer could have acted properly; its function is to measure whether the officer did act appropriately. The test therefore asks whether "the police officer's belief that he or she has a legitimate reason to search [or arrest] is reasonable in the circumstances": R. v. Caslake, supra at para. 22.

24Third, particularly in the context of an arrest or detention situation such as where the subject is being compelled to accompany the officer to furnish an evidential breath sample, the reason that is given for the arrest or detention is crucial. Individuals have the right to be advised of that reason so that they can make an informed decision whether they are legally bound to comply. If the law of reasonable and probable grounds was to disregard the expressed reason offered by the officer, this would undermine the legal, constitutional requirement that the detainee be advised of the reason for the detention or arrest.

25For these reasons, and with respect, I cannot agree with decisions that intimate that so long as a subject knows that the arrest or demand relates to an alcohol driving offence that is sufficient: see R. v. Smith [2007] A.J. No. 606 at para. 83-85 (Prov. Ct.). Sections 253(1)(a) and 253(1)(b) are different offences with different components. If an officer relies upon one of those offences, that is the offence that requires evaluation. Section 254(3) does not say otherwise. What that provision does is empower officers to make an evidential breath demand if they form reasonable and probable grounds that one of the two distinct alcohol motor vehicle offences in section 253 has occurred.

26The immediate issue before me, then, is whether Cst. Degrasse had reasonable and probable grounds to demand a sample from Mr. Ross for impaired driving.

27Two subsidiary legal issues arise in this case relating to whether it was reasonable for Cst. Degrasse to conclude that there was a credibly-based probability that Mr. Ross's ability to operate a motor vehicle was impaired by alcohol.

28The first issue is whether I can consider, when I conduct the objective inquiry, that Mr. Ross "rear-ended" Ms. Matar's vehicle. This issue arises because on the evidence before me Cst. Degrasse formed the belief that this accident was caused solely by Mr. Ross's use of a cell-phone while driving. Put more generally, can I rely upon a "fact" in determining whether Cst. Degrasse's belief that Mr. Ross was impaired was reasonable, when the officer himself has discounted that fact?

29I will begin resolving this question by explaining why I do find on the evidence before me that Cst. Degrasse did not consider the accident to be an indicium of impairment. Specifically, Cst. Degrasse gave persistent answers during his evidence that, even though he cannot prove it, he believed at the time and still believes that the accident must have been caused by Mr. Ross using his cellphone while driving. Cst. Degrasse said in his examination-in-chief with reference to his cellphone theory, "I could not understand how else he could strike a moving vehicle." And he agreed in cross-examination that he had a pretty firm belief that this is what happened, as in his experience rear end collisions of this kind occur from distraction, typically with cellphones. When asked whether there is any other cause in his mind other than looking at the cellphone he said, "No."

30Mr. Cavanagh, in his able submissions, urged me not to make this finding and to infer that Cst. Degrasse would also have been considering that the accident was an indicia of impairment, given that a driver's judgment in choosing whether to use a cellphone while driving could be a sign of impairment. As sensible as that conclusion might be, that is not the evidence before me. I received no testimony to that effect and indeed, Cst. Degrasse's testimony was explicitly to the contrary.

31So, in resolving the objective test can I rely upon a "fact" that Cst. Degrasse himself discounted?

32Although not directly on point, there are statements in some of the cases that appear to suggest that I should consider facts that an officer did not rely upon in coming to their decision. In R. v. Oduneye 1995 ABCA 295 (CanLII), [1995] A.J. No. 632 at para. 20 (Alta.C.A.), for example, the Court said that "the existence of reasonable and probable grounds must be based on facts known by or available to the peace officer at the time he formed the requisite belief (emphasis added)." This formula has been rehearsed by other courts, including in R. v. Censoni [2001] O.J. No. 5189 at para 35 (S.C.J.), and read in its most natural fashion appears to require courts to consider factors the officer did not even consider. Perhaps for this reason there are decisions asserting that "it is not a search for only those circumstances known to the officer that offer support for the officer's subjective conclusion": R. v. Gayad 2004 ONCJ 33. If it is indeed true that facts unknown to but available to the officer are available to be considered by a judge as part of the objective assessment, there is no reason why facts known to the officer but discounted should be ignored. After all, such facts would have been "available" at the time.

33I am persuaded, however, that this is not the law. In my view, when a court undertakes the objective evaluation it is not permitted to consider facts that were unknown to the officer, even if those facts were available to be known at the time the officer formed their grounds.

34Limiting the objective inquiry so that it is based solely on facts that were "known" to the officer when the decision to arrest or search was taken follows necessarily, in my view, from the very nature of the objective inquiry. The material question is not whether there were grounds at the time to arrest or search the accused. The material question is whether the officer had reasonable and probable grounds to do so. As the Court in R. v. Caslake, supra at para 21 explained, "[T]he objective element ensures that the police officer's belief that he or she has a legitimate reason to search is reasonable in the circumstances" (emphasis added). One cannot measure the reasonableness of the officer's belief that she had reasonable grounds by considering facts the officer did not even know about.

35The practice of courts supports this view. It is trite law that a judge who is determining whether an officer had reasonable grounds supporting their decision to arrest or search, is not to consider facts that come to light after the officer has made that decision. If it were permissible for a court to consider facts "available" to the officer, one would think that facts discovered after the decision to arrest or search could be considered provided it is reasonable to infer that those facts existed and could have been discovered by the officer before the officer formed their grounds. Yet this is not the law. Only facts actually known to the officer at the time the decision has been made can be considered.

36There is compelling reason to believe that, in spite of the way the Oduneye formula is worded, the Oduneye Court agrees with this. This is how R. v. Oduneye, supra was interpreted by the Saskatchewan Court of Appeal In R. Slippery [2014] S.J. No. 123 at para 21, where the Court cited R. v. Oduneye for the proposition that in conducting the objective inquiry a "Court must look at the facts known to the officer which were available to the officer at the time he or she formed the requisite belief."

37This interpretation of the Oduneye decision is achieved simply by reading the word "or" in the Oduneye formula conjunctively rather than disjunctively, such as it is used in the phrase "tall or lanky." Read this way the term "available to" is understood simply to be another way of saying that the information was known to (and therefore available to) the officer when the decision was made.

38In my view this interpretation is supported by a careful, contextual examination of R. v. Oduneye, supra, as a whole. When the Oduneye Court used the phrase, "based on facts known to or available to the peace officer" it said that proposition was "clear from these cases." None of the cases referred to by that Court accept that facts unknown to the officer can be considered. They all insist that a court conducting an objective inquiry should consider facts known to the officer at the time the relevant conclusion is formed. It is not enough that the facts relied upon to assess the objective grounds were merely "available" to but unknown to the officer. To be considered as part of the objective inquiry facts must have been known to the officer at the time.

39What, then, of the immediate issue at hand? In this case Cst. Degrasse knew about the accident. He just discounted it as a factor. Am I therefore free to consider it? In my view I cannot, for much the same reasons just discussed. The inquiry is into the belief of the officer, and a "belief" is a deduction arrived at based on information. Just as one cannot evaluate the reasonableness of an officer's belief by examining things the officer did not know about, it is not possible in my view to do so by relying on things the officer did not.

40The crucial role that the factors the officer relied upon plays in the objective assessment is made plain, in my view, by cases dealing with "facts" that an officer reasons from but which "facts" subsequently prove to have been false. The law is settled that a trial judge is required to evaluate the reasonableness of the officer's belief by assuming that those "facts" were true even though they were not, provided the officer's belief in those facts was reasonable at the time: R. v. Murchison 1990 CanLII 11054 (QC CA), [1990] A.J. No. 418 (C.A.). As this line of cases reinforces, the trial judge is charged with evaluating whether the officer's conclusions reasonably follow from the factors he reasonably relied upon in arriving at that conclusion.

41I therefore agree with Justice Bourque in R. v. Suntharalingham [2011] O.J. No. 1964 (Ont.C.J.) when he concluded that, when engaging in the objective evaluation in that case, he could not consider evidence that the subject had slurred speech because the arresting officer discounted this as attributable to the subject's accent. By the same token, I must evaluate the objective reasonableness of Cst. Degrasse's belief that Mr. Ross was probably impaired, without relying on the accident that Cst. Degrasse discounted.

42The second legal issue that arises relating to whether it was reasonable for Cst. Degrasse to conclude that there was a credibly-based probability that Mr. Ross's ability to operate a motor vehicle was impaired by alcohol is whether it was appropriate for Cst. Degrasse to rely in forming that conclusion on the fail result Mr. Ross achieved on the Alcohol Screening Device test. I raised this issue with Crown counsel, Mr. Cavanagh, during submissions because it struck me that if the law does not permit judges to infer impairment from blood alcohol readings without expert evidence (R. v. Cabral [1998] O.J. No. 2170 at para. 35 (Ont.S.C.J.)), and if qualified breath technicians cannot, without special expertise, form competent opinions about impairment based on blood alcohol readings (R. v. Edson [1976] B.C.J. No. 1289 (Co. Ct.)), then it must not be reasonable for line-officers to infer impairment from a fail on an Alcohol Screening Device, in the absence of expert assistance.

43In fact, the law holds otherwise. In R v. Bernshaw (1994), 1995 CanLII 150 (SCC), 35 C.R. (4th) 201 (S.C.C.) the evidential breath demand was made based on the officer's subjective belief that Mr. Bernshaw's ability to operate his motor vehicle was impaired by alcohol. As in this case, the officer did not believe he had reasonable and probable grounds for an impaired driving arrest until Mr. Bernshaw failed the roadside Alcohol Screening Device test. Although the reasoning in that case may have been waylaid by its immediate "mouth alcohol" issue, none of the Supreme Court of Canada Justices doubted that police officers are entitled to rely upon such failures in inferring impairment. Justice Sopinka, for a majority of the court said, "I agree that the police officer had reasonable and probable grounds to make a breathalyzer demand based on the results of the screening test along with the other indicia of impairment." And in R. v. Smith, supra, the trial judge put emphasis on the Alcohol Screening Device test fail as grounding an objectively reasonable inference that the accused was impaired.

44On reflection, there is sense in this, notwithstanding the need for expert evidence before it is permissible to use blood alcohol readings during trial as affirmative evidence that a particular subject was impaired. Those trial restrictions are imposed because alcohol affects individuals differently, making it unsafe to permit non-experts to treat blood alcohol readings as proof of impairment in a particular case. When the material inquiry is into probabilities, however, things change. A failure on a roadside screening device signifies that the subject has more than the legally permissible amount of alcohol in their blood, a level that has been identified to demarcate drivers likely to pose a danger if operating a motor vehicle. That being so it is reasonable, in my view, to infer that there is a credibly based probability that a person that fails the test could be impaired by alcohol.

45When I apply these principles to the case at hand, even discounting the accident, Cst. Degrasse did have an objectively reasonable basis for inferring that Mr. Ross's ability to operate a motor vehicle was impaired by alcohol. Mr. Ross's breath smelled of alcohol, his eyes were bloodshot and watery, and he had failed the roadside Alcohol Screening Device. To be sure, it would have been more obvious for Cst. Degrasse to have relied upon the section 253(1)(b) offence in evaluating whether he had grounds. Given that the reasonable and probable grounds test is not an onerous one, that is about credibly based probabilities, and that its focus is on whether the belief is reasonable rather than correct, the information considered by Cst. Degrasse was sufficient to permit a reasonable belief on his part that Mr. Ross's ability to operate a motor vehicle was impaired by alcohol.

B. The "As Soon as Practicable" Requirement

46As indicated, to be valid a section 254(2) demand must be made "as soon as practicable," in other words, in a reasonably prompt time after the officer has determined that there are reasonable and probable grounds to believe that an alcohol motor vehicle offence has occurred: R. v. Phillips 1988 CanLII 198 (ON CA), [1988] O.J. no. 415 (C.A.).

47This issue arises in the instant case because Cst. Degrasse had formed his grounds by 7:37 p.m. when Mr. Ross failed the Alcohol Screening Test but Cst. Degrasse did not make the evidential breath demand until 8:02 p.m., some 25 minutes later. Cst. Degrasse testified that he forgot to do so because Mr. Ross's belligerent behaviour threw Cst. Degrasse "off his game."

48On the evidence before me, this is not a case where Cst. Degrasse found it impractical to make the demand because Mr. Ross was behaving so badly that it was impossible to do so properly. Had that been the case, then a delay until Mr. Ross calmed down would have been reasonable. After all, there have even been cases where subjects have forfeited their constitutional right to be advised of their right to counsel without delay where their behaviour has frustrated effective communication: R v. Tremblay [1987] 1 S.C.R. 535. In this case, however, Cst. Degrasse did not decide the demand should be delayed until Mr. Ross calmed down; he simply forgot to make the demand.

49Of importance, Cst. Degrasse did manage to give Mr. Ross his right to counsel and police caution at 7:42 p.m., albeit with some difficulty. These rights had to be read to Mr. Ross several times but Mr. Ross ultimately confirmed that he understood, saying "yes" when asked if he understood his right to counsel, and commenting "I understand I can execute my right." Mr. Ross also asked to speak to the "Chief Crown prosecutor Tom Raganold." Similarly Mr. Ross responded "yes" when asked if he understood the police caution that Cst. Degrasse read him. Given that it was practicable to give these cautions to Mr. Ross, I am hard-pressed to find that it was not practicable to make the evidential breath demand at the same time. No doubt dealing with Mr. Ross was unpleasant but on the evidence before me the demand could have been made by 7:42 p.m., but it was not.

50In these circumstances I cannot find beyond a reasonable doubt that the demand was made "as soon as practicable." That being the case, the demand was not a lawful one and Mr. Ross was entitled to refuse to comply. He will therefore be found not guilty of the offence alleged in Count 1 of the information.

C. The "Refusal" Argument

51I want to go on, however, and make clear that even if I had found that the demand was lawful, I would not have convicted Mr. Ross of the refusal offence on the evidence before me.

52In a charge such as the present one the onus is on the Crown to prove that there has been an unequivocal refusal. Although it is always important for officers to make complete notes, this is particularly so where the actus reus of the offence is predicated on what an accused person is communicating.

53I agree with the sentiment expressed in R. v. Jurado [2007] O.J. No. 501 (Ont. C.J.) by Justice Brown. In that case the officer failed to record the comments said to amount to an unequivocal refusal, but instead wrote his impression or opinion about what the accused was communicating. At para 35 Justice Brown rejected the Crown's invitation to accept the officer's opinion that the words spoken, whatever they may have been, amounted to an outright refusal. He commented, "I would think that a police officer would take the short period of time required in a case such as this to make verbatim note of the words of the refusals or the conduct constituting the refusal when those words or conduct constitute the actus reus of the offence." He then cited R. v. Foster [1999] O.J. No. 5060 (Ont. Sup. Ct) with agreement where Justice Misener said at para 20, "[to infer an unequivocal refusal] simply because that was apparently the opinion of the police officer is an abdication of the judicial function. I would not deny the judge's right to take that opinion into account, but to accept it as proof beyond a reasonable doubt without so much as a tittle of evidence capable of providing the basis for the opinion is wrong."

54To be clear, it is not impossible in my view for a judge to be satisfied beyond a reasonable doubt that there has been an unequivocal refusal, where the officer fails to record the precise words said to constitute that refusal. The outcome depends on the circumstances. In this case, for example, there is evidence that Mr. Ross attempted for some time to frustrate the roadside screening device and he refused to sign the Promise to Appear. He was being an uncooperative and difficult subject and this does go some way to informing what probably happened.

55Still, the evidence before me falls short of enabling me to making a finding beyond a reasonable doubt that Mr. Ross was uttering an unequivocal refusal to provide the evidential sample. I simply have no dependable and decisive evidence to that effect. What I have is the conclusion offered by Cst. Degrasse about what Mr. Ross meant: "He just refused and said he was not going to provide a sample." While an officer's description of the tenor of a communication may be sufficient in some cases, it is not in this one. I cannot have confidence in this report given the manner in which Cst. Degrasse testified.

56First, I found that instead of simply presenting the evidence, Cst. Degrasse was highly motivated to ensure that the evidence presented would support a conviction. His demeanour and resolve to answer changed substantially the moment cross-examination began. He answered strategically rather than narrating information.

57To illustrate the point, I have already mentioned in my own narrative of his evidence that after saying he "asked" Mr. Ross to accompany him, he changed his evidence to "told," when it became obvious that the way he responded could become an issue.

58I was also struck with the way Cst. Degrasse responded when Mr. Ertel sought his agreement that there was no indication on the video that Mr. Ross was having any difficulty with co-ordination or walking. It took a long series of questions before Cst. Degrasse made that concession. He began by saying that this was up for debate yet none of his answers give any foundation for debating that simple proposition. When pressed, he suggested that he could not tell because Mr. Ross was handcuffed and not moving much on the video. He gave this answer even though elsewhere he had said he could not remember if Mr. Ross was handcuffed. When it was pointed out that Mr. Ross was shown walking in the video Cst. Degrasse said that he was physically escorting Mr. Ross. When Mr. Ertel pointed out that Mr. Ross is also shown walking alone, Cst. Degrasse conceded this and only then agreed that there is no indication on the video that Mr. Ross appeared to have difficulty walking.

59Finally, Cst. Degrasse gave an unpersuasive explanation for why he had not attempted to capture and record the actual conversation said to constitute the unequivocal refusal. He said that before he could record that conversation he first had to complete the notes that he had not been able to complete relating to earlier events, because Mr. Ross had been so uncooperative. In effect, he sought to blame Mr. Ross for not recording the key conversation in the investigation, something he could easily have recorded out of order to ensure an accurate record of pivotal evidence.

60I want to be clear that I do have sympathy for Cst. Degrasse. I have no doubt that Mr. Ross was rude, arrogant and insulting. Cst. Degrasse should not have had to put up with any of that. He was trying to do his job. Still, I cannot have confidence in all of the circumstance that Cst. Degrasse's is able to give me a sufficiently precise account of the exchange to support a conviction.

IV. Impaired Driving

61In order to succeed in establishing the alleged impaired driving offence the Crown must prove beyond a reasonable doubt that the ability of Mr. Ross to operate a motor vehicle was impaired by alcohol to any degree, including a slight degree, when he was operating the motor vehicle: R. v. Stellato 1994 CanLII 94 (SCC), [1994] S.C.J. No. 51, aff'g 1993 CanLII 3375 (ON CA), [1993] O.J. No. 18 (C.A.). Mr. Ross argues that the evidence is inadequate to do that. On analysis, I agree. The Crown has failed to prove beyond a reasonable doubt that Mr. Ross's ability to operate a motor vehicle was impaired by alcohol.

62In coming to this conclusion I had the benefit of the evidence of Ms. Matar relating to how the accident occurred. She described herself as an inexperienced driver with a G1 licence who was so new to the activity that after her vehicle was struck she kept driving not knowing what to do. She described overtaking a slow van in the moments before the collision and waiting a long time before merging back into the right east-bound lane from the centre east-bound lane, because she was not comfortable changing lanes. She testified that she was at least partially in the right lane when Mr. Ross struck her in that lane. In other words, she described a scenario consistent with having cut Mr. Ross off by entering the lane his vehicle was in. The damage shown to the vehicles is consistent with that scenario. The damage to Mr. Ross's car is to the right left while the damage to Ms. Matar's vehicle is to the right rear. The testimony of the only witness to this accident therefore provides no dependable evidence of impairment.

63Having no evidence of a lawful refusal, the Crown is therefore left with proof that Mr. Ross had been drinking an undetermined amount of alcohol at an unknown time, that his eyes were red and watery after he had been crying out of concern for the children in the car he collided with, and that he was rude and aggressive throughout his dealings with the officer. This certainly gives rise to cause for suspicion. It is, however, a manifestly inadequate basis upon which to make a finding of guilt. I am therefore finding Mr. Ross not guilty of count 2.

Released: 3 March 2015

The Honourable Justice David M. Paciocco

Footnotes

1In appropriate cases such an inference can be made. An unlawful refusal to provide a bodily sample as required by law to permit alcohol/blood content to be investigated can be relied upon as some evidence that the accused was aware that their ability to drive was impaired by alcohol: Criminal Code section 258(3): R. v. Deacon [2004] O.J. No. 23 (S.C.J.).

2Citations from the original quotation have been omitted.

3Mr. Ertel, for Mr. Ross, argued that given the erroneous description by Cst. Degrasse of the blood alcohol level identified by the Alcohol Screening Device, the fail result did not provide Cst. Degrasse with reasonable and probable grounds. I disagree. Cst. Degrasse understood that the function of the machine was to screen cases where a subject had more than the legal limit of alcohol in their blood and that a fail reading after a properly administered test indicates that the subject has more than the legal limit of alcohol in their body. So long as an officer understands that, a fail reading provides reasonable and probable grounds for a section 253(1)(b) arrest even if the officer cannot incant the scientific measure produced by the machine: R. v. MacDonnell [2004] O.J. No. 927 (Ont.S.C.J.); R. v. Ram [2014] O.J. No. 5872.