Ontario Court of Justice

Old City Hall - Toronto

Court Information

Between: Her Majesty the Queen

And: Richard Slater

Counsel:

• J. Capozzi and C. Tomusiak for the Crown
• R. Burke for the Defendant

Heard: October 27, 2014 and January 8, 2015

Judge: Melvyn Green, J.

Reasons for Judgement

A. Introduction

[1] The defendant, Richard Slater, was pulled over by the police while driving on Lakeshore Boulevard in Toronto at about 4:30am on September 15, 2013. A brief investigation led to an approved screening device (ASD) demand and, following several fruitless opportunities to provide an adequate breath sample, a charge of failing to comply with that demand.

[2] A digital video recording (DVR) of the roadside events supplements the testimony of two officers (PC Martin Scearce and Sgt. Edmund Wong) who attended the scene. The times displayed on the DVR differ by one to several minutes from those occasionally pronounced by PC Scearce during the recording. The defendant did not testify. As in all criminal cases, the Crown bears the burden of establishing the essential elements of the offence charged on a standard of proof beyond reasonable doubt. The extent of that burden – indeed, identifying the essential elements of the offence – is the core issue in this otherwise most routine of prosecutions.

B. Evidence

[3] PC Martin Scearce is a member of the Toronto Police Service (TPS). He was on traffic patrol in downtown Toronto when he radar-clocked the defendant's BMW driving eastbound on The Queensway, a 100-kph zone, at 148 kph. The defendant's driving, as captured over the course of close to ten minutes by the front-facing camera in Scearce's scout, reflects very occasional and modest lane deviation. Looking for a safe place to pull over the BMW, Scearce followed the defendant for several kilometers as he exited onto Lakeshore. The officer activated his emergency lighting and siren at about 4:36am. The defendant, who was alone in the car, pulled over to his right and stopped. Scearce detected an odour of alcohol as he reached the driver's door. The defendant denied having had anything to drink.

[4] Based on the excessive speed and lane-weaving (both conceded by the defence) and the odour of alcohol, Scearce reasonably suspected that the driver, the defendant, had alcohol in his body while operating his motor vehicle. Pursuant to s. 254(2) of the Criminal Code, at 4:41am Scearce demanded that the defendant provide a sample of his breath to permit a proper screening analysis by means of an ASD. The defendant explained that he had "never done that". The ASD demand and the testing process that followed occurred at the side of Scearce's scout and, as a result, are not visually captured on the DVR. There is, however, an audio recording of the exchange.

[5] Scearce removed the ASD, a Drager Alcotest 6810, from his trunk and demonstrated the test procedure at 4:43am. He registered a "0.00" on the machine, indicating the absence of any alcohol in the officer's body. Scearce had been trained in the operation of the 6810, but he had not used it "very much" up to this point. However, he was satisfied the unit was in proper working order. In his opinion, no more exertion is required to operate an ASD than that required to blow up a balloon; you just need, he testified, to form a tight seal for about two to three seconds.

[6] Scearce inserted a fresh mouthpiece into the ASD. At 4:45am, he provided some simple instructions and afforded the defendant an opportunity to exhale into the device. Despite his instructions, the defendant, he says, did not make a proper seal, resulting in a "blow interruption" error message and an inadequate sample. Sgt. Wong arrived at about this point, as did a female constable.

[7] Scearce inserted a fresh mouthpiece and again demonstrated the protocol. The same "blow interruption" error message accompanied each of the defendant's next several ineffectual efforts to generate a proper sample, as it did a still further effort following the officer's third practical demonstration. At about 4:51am, Scearce cautioned the defendant that failure to provide a proper sample would lead to an arrest for that offence. The defendant apologized: "I'm trying", he says, "but it's not going through".

[8] Sgt. Wong then demonstrated the ASD procedure for the defendant. He was also given a "last time" advisory. Failure, the defendant was reminded, would result in suspension of his driver's licence, impounding of his car, and a charge of "refusal". Another "blow interrupted" message followed, with the defendant then saying, "I'm blowing as hard as I can". At the female constable's suggestion, the defendant then blew onto Scearce's hand through the detached mouthpiece. However, a further effort with the mouthpiece re-attached to the ASD generated the same error message. Scearce arrested the defendant at 4:56am for failing to comply with his ASD demand. Rights to counsel and the conventional post-arrest cautions followed.

[9] The defendant does not display any obvious indicia of impairment on the video or audio tracks of the DVR. (Indeed, he was never charged with operating a motor vehicle while his ability to do so was impaired by alcohol.) He appears unfailingly polite, coherent, responsive and even eager to co-operate throughout the testing procedure. To the degree that it is possible to discern, the sound he generates when afforded each opportunity to provide a sample is generally more akin to sputtering than an uninterrupted exhalation.

[10] Scearce had been with the TPS for about ten years. He agreed that the sound of a brief "tone" accompanied some of the defendant's attempts, but he disagreed that an audible tone was necessarily indicative of air "going through" the mouthpiece; even sucking out, he said, produces a tone. The defendant, he believed, was not making a proper seal despite repeated instructions.

[11] Sgt. Wong had served with Traffic Services for the last ten of his twenty-five years with the TPS. He had a somewhat different take on the operation of the ASD. He testified that "air is going through whenever there's a tone", and that a humming sound accompanied a proper utilization of the ASD. He had witnessed "at least three" of the opportunities afforded the defendant to produce a suitable sample. The defendant, he testified, would blow into the ASD but the humming sound would "cut off". He was "blowing hard" but not consistently for four to five seconds, the duration of the period which, in Wong's view, was necessary to generate a reading on the ASD. The problem, he opined at one stage, was that the defendant was blocking the air with his tongue, and, later, that the air was escaping from the corners of the defendant's mouth. He agreed, however, that, "at all times [the defendant] attempted to blow". Wong never looked at the 6810 (a compact, handheld device) and therefore did not see any error messages. Relying on his own experience, he testified that, unlike earlier Alcotest ASD models, the only error messages or codes displayed on the 6810 were those that signaled a disabling malfunction.

[12] Following his testimony, counsel stipulated that, contrary to Wong's representations, the Drager Alcotest 6810 does, in fact, generate error messages, including "insufficient volume" and "blow interruption". It was further agreed that neither of these messages indicates a malfunction or, by itself, renders an individual device's readings unreliable.

C. Analysis

(a) Introduction

[13] The highly technical nature of drinking-and-driving related prosecutions and the vast array of ingenuity deployed in defence of those charged with these offences too often invite a scattergun approach to matters that benefit from more focused concentration. In my view, only a single defence position here merits serious consideration: whether the Crown has established the defendant's mens rea to the requisite standard. For two reasons, the disposition of this issue is not free of difficulty in the instant case. First, the governing jurisprudence reflects a somewhat contentious debate as to the nature of the mental element for the offence of failing to comply with a breath demand and, in particular, whether knowledge suffices or whether proof of some form of intentionality or volitional non-compliance is also required. As sometimes, if over-simplistically, expressed in the jurisprudence: is the offence one of "general" or "specific" intent? Second, the presenting fact pattern is, in my assessment of the evidence, one in which the determination of the defendant's culpability turns on which of these competing approaches to the requisite mens rea here obtains.

(b) Situating the Offence in Context

[14] The defendant is charged with failing to comply with a roadside police demand to supply a sample of his breath into an alcohol screening device. Absent reasonable excuse, a refusal or failure to comply with such demand carries the same penalty as that following a conviction for "DWI" (driving while impaired by alcohol) or the offence of "over-80" (driving while one's blood alcohol concentration or "BAC" exceeds the prescribed limit of 80 milligrams of alcohol in 100 millilitres of blood). That penalty, in the case of a first offender, is "a fine of not less than $1,000". Those convicted of second or subsequent offences are liable to minimum terms of incarceration of 30 and 120 days, respectively.

[15] The offence is part of a complex regime intended to minimize the jeopardy to public safety caused by alcohol- and drug-induced impairment. Roadside screening of drivers is one of several preemptive investigative measures essential to the integrity of this regime. Those reasonably suspected of having recently consumed alcohol may be subject to a police demand that they provide a sample of their breath into an "approved screening device" – a machine designed and calibrated to determine whether they have alcohol in their system and, if so, an assay of its approximate concentration in their blood. While the results of such roadside screening are not admissible as evidence of impaired driving or driving with excessive alcohol, they may serve as an evidentiary basis for a further police demand compelling the driver to breathe into an instrument authorized to measure his or her exact BAC, which evidence is then admissible on a charge of driving with a greater level of alcohol in one's blood than is legally permitted. This enforcement scheme would be readily frustrated if drivers could with impunity refuse or fail to honour lawful police breath demands, thus explaining the equivalence of the penalties for non-compliance with those attaching to commission of the substantive offences of DWI and over-80 themselves.

[16] The immediately material provisions are drafted in relatively straightforward language. Section 254(2) of the Criminal Code authorizes a police officer who suspects on reasonable grounds that a person has alcohol in his or her body and has operated a motor vehicle within the previous three hours to,

by demand, require the person … to provide forthwith a sample of breath that … will enable a proper analysis to be made by means of an approved screening device … .

Subsection (5) of the same provision prescribes that,

Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

While the application of the demand provision has attracted its own passel of jurisprudence, it is the proper construction of the offence provision that is central to the dispute before me. The current state of the law, at least in Ontario, leaves unsettled the question of what the Crown must prove to secure a conviction for the offence of failing to comply with a roadside breath demand. Equally unsettled, and thereby unsettling, is the question of what if anything need be established by an accused to avoid conviction.

(c) Failure to Comply with a Breath Demand: Parsing the Essential Elements

[17] A roadside ASD demand is one of several police demands authorized by s. 254 of the Criminal Code that may be made of drivers reasonably suspected to have consumed alcohol or reasonably believed to be driving while impaired or over-80. "Reasonable excuse" aside, failure to comply (as here charged) with any of these demands is an offence under s. 254(5). Refusal to comply with any of the same demands is an independent offence. Where verbally expressed in unequivocal language, an offence of refusal is readily established. Where dependent on ambiguous words or conduct, proof of refusal, like proof of failure to comply more generally, is an inferential process that requires contextual consideration of the entirety of the interaction between a defendant and the police: R v. Tavangari (2002) 28 M.V.R. (4th) 104 (Ont. C.J.), esp. at paras. 15, 16 and 22; R. v. Bijelic, [2008] O.J. No. 1911 (S.C.), at para. 30; R. v. Grant, 2014 ONSC 1479, [2014] O.J. No. 1143 (S.C.), at para. 82. In either event, an inquiry into the existence of a "reasonable excuse" may follow a preliminary finding that the Crown has otherwise proven the offence.

[18] The most frequently quoted statement of the essential components of the offence of "fail" or "refuse" is that articulated by the Saskatchewan Court of Appeal in R. v. Lewko (2002), 2002 SKCA 121, 169 C.C.C. (3d) 359, at para. 9:

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 [now six] types mentioned in [s. 254]. 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).

In a second branch of the decision, the Court went on to address the meaning and application of the words "without reasonable excuse" in the context of s. 254(5). Although no "defence" (in a broad sense) of "reasonable excuse" arises in the case before me, the meaning of this phrase and the allocation of any associated burden impact on my determination of the appropriate mens rea in regard to the offence.

[19] The Saskatchewan Court of Appeal, at para. 11, adopted the reasoning of Laskin J., as he then was, in Brownridge v. The Queen, [1972] S.C.R. 926, at 950, reading the phrase "without reasonable excuse" as "adding a defence or a bar to successful prosecution which would not be available without those words, but not as encompassing defences or bars that would exist without them". Advancing such defence, said the Court, imposes no more than an evidential burden on a defendant, satisfied merely by clearing a threshold of "air of reality" through reliance on any evidence "capable of being a reasonable excuse" (paras. 18-20). As the Court concluded, at para. 36, "there is simply no room for the application of the standard of proof on the balance of probability in relation to the defence of reasonable excuse". Once the defence has put the "issue into play" the burden rests on the Crown to negative it on the venerable standard of proof beyond reasonable doubt.

[20] The Lewko court's recitation of the essential elements of the offence of failure to comply with a s. 254 breath demand have been widely accepted and applied. Not so much, however, its formulation of an evidential-only burden attaching to "reasonable excuse". While the Lewko approach to such "excuse" has attracted some weighty endorsement (R. v. Dolphin (2004), 2004 MBQB 252, 189 Man. R. (2d) 178 (Q.B.), at paras. 27-30; R. v. Plante (2013), 2013 ABQB 222, 559 A.R. 345 (Q.B.), at paras. 76-77; R. v. Ghessesow, 2014 ABQB 133, at para. 14, and, although somewhat removed, see R. v. Nash, [2004] O.J. No. 4522 (S.C.), at para. 21; affd [2005] O.J. No. 3783 (C.A.)), the bulk of appellate authority firmly places a persuasive burden on an accused with respect a "defence" of reasonable excuse. Most importantly, at least in Ontario, a decade prior to Lewko the Court of Appeal held that it was the defendant's "onus … to show that he had a reasonable excuse": R. v. Moser (1992), 71 C.C.C. (3d) 165. The exact nature of the burden is nowhere discussed in Moser, nor is the basis for the assignment of a legal or persuasive onus (as it has been universally interpreted) to the defence. Nonetheless, and despite both the intellectual rigour of the reasoning in Lewko and (if only arguably) a more generalized retreat from imposing anything greater than an evidentiary burden on an accused, the Moser standard remains entrenched in Ontario. (See, for example, R. v. Porter, infra, at para. 38; R. v. Pletsas, infra, at para. 67.) Indeed, as I shall soon address, it has now received the imprimatur of the Supreme Court.

[21] Unlike its approach to "reasonable excuse", the Lewko court's definition of the requisite mental element for the offence of failing or refusing to comply with a breath demand became part of the legal firmament – at least until critically challenged in R. v. Porter, 2012 ONSC 3504, [2012] O.J. No. 2841 (S.C.). Code J. there reasoned, at para. 34, that "the flaw in [Lewko and its progeny] is that they treat the mental element enacted by s.254(5) as a specific intent rather than a general intent". Subsection 254(5), Justice Code continued, "enacts a crime of general intent" in which "knowledge or recklessness as to the doing of the prohibited act is a sufficient mens rea". As explained in R. v. Pletsas, 2014 ONSC 1568, [2014] O.J. No. 1136 (a case adopting the reasoning in Porter), at para. 67,

The mental element or mens rea of the offence does not require the Crown to prove any specific intent on the part of the accused (i.e. an intention to bring about the failure to provide a suitable breath sample), but rather requires the Crown to establish only the general intent of knowledge or awareness (i.e. recklessness) on the part of the accused of the prohibited act.

[22] R. v. Pletsas is one of several Ontario Superior Court decisions that subscribe to the Porter construction of the mental element in s. 254(5). (See, also, R. v. Kitchener, 2012 ONSC 4754, [2012] O.J. No. 3857, at para. 36; R. v. Singh, 2013 ONSC 6324, [2013] O.J. No. 4573, at paras. 17-19.) Other summary conviction appeal decisions emanating from the Superior Court, if preceding Porter, hew faithfully to the Lewko position: for example, R. v. Stanley (2003), 42 M.V.R. (4th) 95 and R. v. Campbell, [2008] O.J. No. 47. This divide liberates the Ontario Court of Justice (in which such trials are universally conducted by way of summary conviction prosecutions) from, on the one hand, any consistent guidance and, on the other, the yoke of binding authority. Several trial court decisions have endorsed the Porter construction, including my own judgement in R. v. Ding, 2014 ONCJ 24, [2014] O.J. No. 243 (a case, I note defensively, authored before the release of R. v. Greenshields, infra, R. v. Tikhonov, infra, and R. v. Soucy, infra, and in which the approach taken to the mens rea had no impact on the ultimate result). The authors of several other trial judgements have conspicuously declined to follow Porter, mounting counter-arguments that, on careful consideration and in the context of other jurisprudential developments, I now find persuasive.

[23] Anticipating Lewko, Duncan J. decided in 2001 that a court "must be satisfied beyond a reasonable doubt that the accused's failure to provide samples was voluntary and intentional" before it could convict on a charge of failure to comply with a breath demand: R. v. Sullivan, [2001] O.J. No. 2799 (C.J.), at para. 15. Unsurprisingly, in R. v. Greenshields, [2014] O.J. No. 474 (C.J.), at paras. 10-11, Duncan J. respectfully took issue with the position advanced in Porter:

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.

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. [Emphasis added.]

[24] In R. v. Soucy (2014), 2014 ONCJ 497, 316 C.C.C. (3d) 153 (C.J.), at paras. 33-34, Paciocco J. reached the same result following a painstaking review of the judicial and academic authorities:

More importantly, and with respect, while I agree that section 254(5) is a general intent provision, it is my view the Porter decision does not properly describe the relevant mens rea concepts, confusing general intention and specific intention, and conflating intention with the very different mens rea of knowledge.

The confusion I believe to have occurred between general intention and specific intention lies at the heart of the decision. Specifically, the Porter Court was incorrect, in my view, in concluding that if the Crown must prove that the accused intended to fail or refuse to provide a suitable sample this is a "specific intent" requirement. In fact, proving an intention to refuse or fail to provide a suitable sample as called for by the R. v. Lewko line of cases represents the basic general intent requirement.

(R. v. Andrievsky, 2015 ONCJ 70, at para. 19, and R. v. Capan, 2015 ONCJ 25, at para. 146, are but two of a number of cases that have expressly followed Soucy.) And in R. v. Tikhonov, [2014] O.J. No. 3479 (C.J.), P.A. Harris J. independently faulted the reasoning in Porter, concluding, at para. 19, that, "the Crown must prove that the defendant intended to produce the failure to provide a suitable breath sample".

[25] I see no need to here reproduce the detailed and erudite analyses that drive the shared result in these contra-Porter authorities. While not quite a Damascene moment, I do attribute my conversion to the cumulative impact of their reasoning. In my view, a refusal is an act of defiance. A failure is one of volitional non-compliance. In either case, as put in Soucy, at para. 50, "the basic mens rea of intention that is to be read into section 254(5) requires … that the accused must refuse or fail on purpose" [emphasis added].

[26] In Tikhonov, supra, at para. 18, Harris J. characterized the Porter line of authority, as "unsound public policy as well". Citing R. v. Moser, supra, he explained that,

… where an accused tries but fails to produce a valid ASD result, this formulation of the mens rea will often unfairly place a burden of proof on the accused to establish a reasonable excuse on a balance of probabilities to avoid liability … . For those who honestly attempt to provide a breath sample, this construct presupposes the ready availability of an evidentiary justification for the failure to produce a viable ASD result. Surely it is to be expected that there will be those who try but fail for reasons that are not known, ranging from underlying heath issues of which they are not aware, to ASD mechanical or operational shortcomings, to other emotional and situational exigencies. For these individuals, the presumption of innocence would be little more than empty rhetoric under the Porter concept of the s. 254(5) offence.

See also R. v. Greenshields, supra, at paras. 15-17.

[27] The Porter decision is not indifferent to these concerns. Indeed, Code J.'s reasons can be fairly read as identifying the authority of Moser as the primary impediment to an interpretation of s. 254(5) that avoids placing more than an evidential burden on an accused. Although he finds it unnecessary to decide the issue in the circumstances of the case before him, Code J. observes, at para. 42, that there remains a question as to,

… whether more recent authorities have been moving away from placing a persuasive burden of proof on the defence, in relation to a defence of "reasonable excuse", and have only imposed an evidentiary burden. I note that none of these more recent authorities have gone so far as to reverse Moser, which remains binding authority on the point in this province in the context of s. 254(5) offences.

Code J. cites some dozen Canadian and English examples of these "more recent authorities" (including R. v. Lewko) in aid, as I read his reasons, of a doctrinal reconsideration of the allocation of the "reasonable excuse" burden in Ontario. Nonetheless, the real-world consequence of his equating the requisite mens rea for failing or refusing a breath demand with knowledge or recklessness is to transfer consideration of the mental state of intentionality to "reasonable excuse" and thereby impose on an accused the persuasive burden of establishing its absence to escape liability. It is of more than small moment that this onus is not only borne by an accused but requires proof of the objective reasonableness of the "excuse" for its lawful acquittal. Failure to discharge this legal burden necessarily results in a conviction for one of the still relatively few criminal offences that prescribe a minimum penalty.

[28] Clearly, there is a legally dynamic relationship between the definition of the mens rea for refusing or failing a demand and the nature of and burden attached to the defence of "reasonable excuse". If an intention to not comply, as opposed to knowledge, is not part of the mental element that need be proved by the Crown then, under Moser, an accused's proof of its absence must fall under the umbrella of "reasonable excuse". It is hardly surprising that the only reported critical assessment of R. v. Soucy derives from a province, Alberta, where the law, at the time, was such that an "accused person would only have to bring 'reasonable excuse' into 'play', at which point it would fall to the Crown to prove beyond a reasonable doubt that there was no reasonable excuse": R. v. Ennis, [2015] A.J. No. 44 (P.C.), at para. 30.

[29] As put simply in Pletsas, supra, at para. 67, a "reasonable excuse" is "not a denial of the either the physical or mental elements of the offence, but refers to matters that stand outside the requirements that the Crown is obliged to prove". (See, also, Moser, at p. 176.) Accordingly, "It is only once the Crown has established all of the necessary elements of the offence beyond a reasonable doubt that the defence of reasonable excuse should be considered": R. v. Campbell, supra, at para. 10. Despite appellate caution to trial judges "not to merge the concepts of mens rea and reasonable excuse" (R. v. Dolphin, supra, at para. 23), the trial decisions in Porter and Pletsas both exemplify just such blurring of the burdens and, with respect, the approach to the defendant's explanation for failing to comply with the breath demand in Campbell, supra, offers but one of several reported illustrations of the conflation of a simple denial of intent (the Lewko/Soucy formulation of the requisite mens rea) with an intention involving an ulterior purpose more properly considered under the rubric of "reasonable excuse". A measure of confusion is understandable given the competing definitions of the requisite mens rea, historical uncertainty as to the compass of "reasonable excuse", and – after careers entwined by the "golden thread" – an ingrained judicial resistance to imposing a legal burden on an accused with respect to as critical a mental element as base intention.

[30] In what appeared to be a legal trifecta for members of the bench and bar seeking direction respecting s. 254(5), the issues of the appropriate mens rea, the meaning of "reasonable excuse" and the burden associated with such "excuse" were jointly before the Supreme Court in the recent case of R. v. Goleski, [2015] S.C.J. No. 6. Punters, as it transpires, will have to delay settling most of their bets in view of the Court's disposition of the appeal. A brief judicial history may be helpful.

[31] Goleski was pulled over for two stop-sign violations in February 2006. The results of a roadside breath demand led to a further demand that he provide a breath sample into an approved instrument at the detachment. Supported by the evidence of a sober passenger, Goleski testified that he had properly stopped at both stop signs. He refused to comply with the demand made at the detachment because he believed the investigating officer, who he no longer trusted, would not honestly report the results. The Crown elected to proceed by way of summary conviction at his 2008 trial. The trial judge accepted that Goleski's belief amounted to an objectively reasonable excuse for his refusal. While she found the defendant's evidence left her with a reasonable doubt as to whether the officer had lied about the stop-sign violations, she ultimately found him guilty. In the face of equally credible and conflicting evidence, she reasoned that Goleski had not met his legal burden respecting the reasonable excuse he had advanced for refusing the demand.

[32] The summary conviction appeal judge found "persuasive" the reasoning in Lewko with respect to the nature, imposition and discharge of the burden respecting "reasonable excuse". Accordingly, he held the trial judge had applied the wrong test, granted Goleski's appeal, and entered an acquittal: (2011), 2011 BCSC 911, 18 M.V.R. (6th) 31 (B.C.S.C.).

[33] On further appeal by the Crown to the British Columbia Court of Appeal, the core issue was described as "where the onus lies when an accused asserts that he or she had a reasonable excuse for failing or refusing to comply" with a breath demand: (2014), 2014 BCCA 80, 307 C.C.C. (3d) 1, at para. 1. As the respondent Goleski's "explanation for his refusal is capable of supporting a reasonable excuse" was "not in issue" (para. 29), the parties agreed that the respondent's acquittal must stand if the Lewko approach to the "excuse" onus applied. Without reference to Porter, the Court, at para. 71, approved the first branch of the Lewko decision, that the mens rea of the offence under s. 254(5) is "an intention to fail or refuse to provide the required sample". Relying on its construction of s. 794(2), the Court then concluded, at para. 81, that an accused bore the burden of persuasion on a balance of probabilities to establish the factual foundation for any claim of "reasonable excuse". In the result, the conviction entered at trial was restored.

[34] Goleski was granted leave to appeal to the Supreme Court of Canada with respect to the burden attaching to "reasonable excuse" under s. 254(5). The Attorneys General of Ontario and Alberta were granted leave to intervene. As asserted in its factum, Ontario's grant extended to addressing "two related issues necessarily arising from the primary question under appeal":

i. The mens rea that the Crown must prove in prosecuting an offence contrary to s. 254(5) of the Code; and

ii. What constitutes a "reasonable excuse" for the purpose of s. 254(5) of the Code.

The appeal was argued before the Supreme Court on February 11, 2015. The two-sentence judgment of the Court, delivered orally and on the same day, is a model of succinctness:

In our view, the British Columbia Court of Appeal correctly concluded that s. 794(2) of the Criminal Code, R.S.C. 1985, c. C-46, properly interpreted, imposes a persuasive burden on the accused to prove an "exception, exemption, proviso, excuse or qualification prescribed by law". We do not think it appropriate to deal with the new issues raised by the interveners.

In even shorter précis: Lewko, at least on this aspect of its reasons, was wrongly decided: an accused bears the burden of persuasion with respect to a "reasonable excuse".

[35] Nothing of substance, of course, may be read into the Supreme Court's declining to address the ancillary issues advanced by the interveners. However, the effect of what the Court did decide is clear: Moser, if silently, is affirmed and its approach remains the law in Ontario with respect to the carriage and quantum of the legal burden pertaining to "reasonable excuse" under s. 254(5). Had the Supreme Court ruled otherwise, effectively reversing Moser, I may have been given fresh pause. In the end, the result reached by the Court reinforces my view as to the correctness of Lewko/Soucy formulation of the appropriate mens rea requirement. As put in R. v. Sheehan (2003), 35 M.V.R. (4th) 61 (N.L. P.C.), at para. 42, and approved by the British Columbia Court of Appeal in R. v. Goleski, at para. 72, "The mens rea element requires that the failure or refusal to comply be intentional". I agree.

(d) Applying the Law

[36] Richard Slater, the defendant before me, did not testify. Nor is his defence founded on an explanation amounting to a "reasonable excuse". He says, simply, that the Crown has not proven beyond reasonable doubt that he intended to fail to comply with the officer's demand that he provide an adequate sample of his breath into an ASD. Applying the Lewko/Soucy approach to the requisite mens rea, I agree.

[37] I appreciate that the provision of a roadside sample is, at is sometimes put, "not rocket science". I am aware, as well, that the defendant was instructed as to the correct procedure on at least three occasions, that he was cautioned more than once as to the legal consequences of failure, that he was afforded at least six opportunities to provide a suitable sample, and that the officers attributed his futile efforts to improper technique within the defendant's capacity and control. Nonetheless, I am left with a reasonable doubt as to whether the defendant's failure to comply with the breath demand was intentional. He displayed no indicia of alcohol intoxication or impairment. He was consistently coherent and polite with the police, and at times apologetic for his inability to register a reading on the ASD. He at least twice advised that he was doing his best to generate a proper sample. According to Sgt. Wong (whose evidence was here unchallenged or otherwise qualified), the defendant "at all times attempted to blow" during the several opportunities he observed. In these circumstances, I am simply not persuaded to the requisite standard that the defendant intentionally failed to comply with the officer's breath demand.

D. Conclusion

[38] For the reasons here set out, I find the defendant not guilty.

Released on March 24, 2015

Justice Melvyn Green