Court File and Parties

Ontario Court of Justice

Date: 2015-01-20

Court File No.: Halton 13-3295

Between:

Her Majesty the Queen

— and —

David Capan

Before: Justice L.M. Baldwin

Heard on: June 5, 2014 and September 9, 2014

Reasons for Judgment released on: January 20, 2015

Counsel:

• L. Muller, for the Crown
• I. Isenstein, for the defendant David Capan

BALDWIN J.:

Charge and Overview

[1] David Capan is charged with failing to comply with an ASD demand made October 23rd, 2013 in Oakville, contrary to section 254(5) of the Criminal Code.

[2] The Crown proceeded summarily.

[3] The allegation is that the accused was 'feigning to blow' and did not provide a suitable sample. This is not a case where the accused stated he was refusing to provide a breath sample.

[4] The accused was given 8 opportunities to provide a suitable sample before he was arrested.

Summary of the Testimony of Officer Dawn Alexander

[5] Officer Alexander has been a police officer since December 2009 and has been an officer with the HRPS since May of 2013.

[6] Officer Alexander was on uniform duty on October 23rd, 2013, driving an unmarked cruiser. The dark-coloured vehicle was equipped with lights, siren, as well as bars in the back of the vehicle which are visible from the windows.

[7] Shortly before 2:40 in the morning she exited the QEW highway at the Dorval Road exit. While she was stopped waiting for the red light to turn to green, she observed in her rear view side mirror Mr. Capan's vehicle to also come on to the off-ramp and make a sudden stop just behind the rear passenger door of her four-door cruiser. It caught her eye because typically vehicles come up to the red light and they would stop at the line.

[8] Officer Alexander was in the left-turn lane. Mr. Capan's vehicle stopped in the lane to the right of her.

[9] There was a short wait and then the light turned green. Because Mr. Capan's vehicle had stayed behind her, she waited to allow his vehicle to continue so that she could observe the driver. She did not get the opportunity.

[10] She then proceeded slowly into the left turn proceeding southbound on Dorval. Mr. Capan's vehicle continued to "shadow" her speed and her movements. Mr. Capan made no attempt to pull up beside her, or continue driving normally down the road.

[11] At one point, Officer Alexander came to almost a complete stop allowing Mr. Capan to proceed ahead of her. He did, and they both travelled southbound on Dorval and then turned right onto Rebecca Street.

[12] At Rebecca Street, Mr. Capan got into the right-turn lane and made an exaggerated stop and then proceeded westbound along Rebecca. Given the time of the morning and the odd driving behaviour, Officer Alexander activated her emergency lights and initiated a vehicle stop on Southview Road, just north of Rebecca, at 02:40 hours.

[13] She approached Mr. Capan, the lone occupant and driver, and requested his driver's licence, ownership and proof of insurance. He handed her his Ontario driver's licence only. Mr. Capan's address on the licence was 378 Southview Road in Oakville.

[14] She could see into the driver's window that there was a frothy substance all over the steering wheel and driver's area. She also noticed a strong smell of mouthwash coming from the vehicle.

[15] Later she observed a bottle of mouthwash in the driver's-side map pocket of Mr. Capan's vehicle.

[16] In her conversation with Mr. Capan, she told him of the driving behaviour that had caught her attention. He said he was not sure how to drive beside a police car.

[17] She asked him if he had been drinking and he said no. He told her that he was at work and that he had finished work at 12:30.

[18] When she asked about the time lapse from 12:30 to 2:40 in the morning, Mr. Capan said that he was out with friends.

[19] Officer Alexander asked him how much he had to drink. Mr. Capan said "I don't drink at work." (p. 18)

[20] Officer Alexander asked how much he had to drink and received the same answer; "I don't drink at work."

[21] Officer Alexander observed Mr. Capan to have glossy eyes.

[22] As the smell of mouthwash seemed to dissipate, she smelled alcohol emanating from his breath.

[23] Given the indirect answers to her questions, the odd driving behaviour and her observations, Officer Alexander formed the suspicion that Mr. Capan had indeed been drinking alcohol prior to getting into the car to drive presumably home.

[24] At 02:44 hours she read the ASD demand from the back of her notebook. Mr. Capan was asked if he understood the demand and he replied, "I understand."

[25] Mr. Capan was still seated in his vehicle when she read the demand.

[26] Officer Alexander then requested an officer to attend her location with an ASD.

[27] Officer Alexander was aware that some mouthwashes contain alcohol. She was aware that 15 minutes is a reasonable amount of time for any mouth alcohol to dissipate and therefore not register a false reading on the ASD.

[28] Officer Alexander waited 15 minutes before taking the samples in this case. She also had Mr. Capan come to the back of the cruiser so that there was no confusion that he was too close to that mouthwash/possible alcohol source in his car.

[29] Officer Vu arrived with the ASD before the 15-minute wait period was up. (The particulars of the ASD are found at pp. 25, 26 of the June 5th Transcript.)

[30] The device was in proper working order.

[31] Officer Vu advised her that he had self-tested the device.

Testing Opportunities

[32] The testing began at approximately 03:00 hours.

[33] Officers Vu and Kenny were also on scene.

[34] The ASD was turned on and was operating properly.

[35] Officer Alexander explained how to perform the test to Mr. Capan.

[36] "As well, he was shown that the mouthpiece was a one-time use mouthpiece and that it was sealed in a protective wrapper so he could be satisfied that it wasn't previously used….he examined it. The mouthpiece was opened and affixed to the screening device. I held onto the screening device, instructed the driver to provide one big continuous breath and exhale until (I) directed (him) to stop." (pp. 29, 32)

[37] Mr. Capan did not ask for any clarifying instructions.

1st Attempt

[38] Mr. Capan inhaled deeply, puffed his cheeks, puffed his chest, put his mouth onto the mouthpiece, and then proceeded to give little puffs out to the point that there was no tone registering from the ASD.

[39] Officer Alexander testified that no tone means no breath is being provided into the ASD.

[40] The little puffs of air out and not registering the tone means that Mr. Capan was not providing a continuous breath into the machine, he was not sealing his lips around and blowing through the straw. It was Officer Alexander's impression that Mr. Capan was not listening to her instructions. (p. 33)

2nd Attempt

[41] Same result. Mr. Capan blew little puffs of air and no tone was coming from the ASD.

[42] Officer Alexander had Mr. Capan demonstrate without the mouthpiece taking a deep breath in and blowing a continuous breath out. The Officer noted no issues when Mr. Capan did that.

3rd Attempt

[43] A tone registered on the ASD and Officer Alexander kept telling Mr. Capan to "keep going, keep going, keep going." Mr. Capan did not keep going and the ASD produced a reading of 'insufficient sample'.

[44] Officer Alexander took the mouthpiece off. She put a new mouthpiece on and she physically demonstrated how to provide a suitable sample. She demonstrated the tone and the length of the sample required. A new mouthpiece was put on for the 4th attempt.

4th Attempt

[45] ASD registered "insufficient sample".

5th Attempt

[46] ASD registered "insufficient sample".

6th Attempt

[47] ASD registered "insufficient sample", then the device automatically shut itself off.

[48] Officer Alexander turned the ASD on again and it went through its brief start-up process.

[49] Officer Alexander explained to Mr. Capan what failing and refusing to provide a suitable sample meant. She explained that it would result in a similar charge to drive over 80 milligrams of alcohol in 100 millilitres of blood. Mr. Capan did not ask any questions about that. Officer Alexander gave Mr. Capan another opportunity to provide a suitable sample and told him if he did not he would be arrested.

7th Attempt

[50] ASD registered "insufficient sample".

[51] Mr. Capan was told that this would be his last chance to provide a suitable sample.

[52] Officer Alexander escorted Mr. Capan further to the back of the police cruiser to provide this last chance.

8th Attempt

[53] No suitable sample was obtained and Mr. Capan was arrested at 3:13 a.m. When asked if he understood, Mr. Capan replied, "I do not because I tried my best and you don't know the intersection that we're at."

[54] Officer Alexander testified that it was her opinion that Mr. Capan was not interested in providing a sample. He did not follow her instructions on all 8 opportunities to provide a suitable sample.

[55] Mr. Capan was read rights to counsel. When asked if he understood he replied, "I'm going to say no". Officer Alexander asked what he did not understand and Mr. Capan said, "I believe it's in my best interest to say no."

[56] Mr. Capan was cautioned. He was asked if he understood. Mr. Capan replied, "I do".

(Note: Mr. Isenstein submitted that there are no arguments in this case for anything post 3:13 a.m., p. 41; accordingly, bits of testimony pertaining to that time period are not reviewed.)

[57] Mr. Capan was released on a Promise to Appear at 4:19 a.m. from the scene. The Officer was satisfied that he was capable of walking the short distance home.

[58] In cross examination, Officer Alexander did not agree with the suggestion that Mr. Capan was hanging back from her cruiser to allow her to proceed. She noted that she was in a different lane of traffic at the time.

[59] On Dorval Road, Mr. Capan was travelling approximately 10 kilometres an hour below the speed limit.

[60] When she first saw the frothy liquid in Mr. Capan's car she thought that he had recently swished some mouthwash and spat it all over the steering wheel.

[61] The first test may have started at 03:05 hours. (p. 73)

Summary of the Testimony of Officer Thien-An Vu

[62] Officer Vu has been a police officer with HRPS since August of 2011.

[63] He was on duty on October 23rd, 2013, at 02:43 hours when he received a call from Officer Alexander requesting that he bring her an ASD. He had been performing radar enforcement duties on Bronte Road at the time.

[64] He had an ASD in his cruiser. He had performed a self-test on it at 9:47 p.m. and it registered a zero indicating it was in proper working order.

[65] He arrived at Officer Alexander's traffic stop at 02:50 hours.

[66] Officer Kenny was also performing radar duties on Bronte Road, so he came right behind him.

[67] On scene, he provided the ASD to Officer Alexander and told her that he had tested it earlier.

[68] She told him that she had to wait the 15 minutes deprivation period due to mouthwash being consumed.

[69] Mr. Capan was still seated in his car. While they were waiting for the 15-minute period to be up, Mr. Capan was told to stand by the rear of his car.

[70] Officer Vu noted that he was unsteady on his feet as he walked and his breath smelled strongly of mouthwash.

[71] While Officer Vu stood by Mr. Capan's vehicle he could smell mouthwash coming from the vehicle. All the car windows were open. He observed a half empty medium-sized bottle of Listerine mouthwash in the driver's door and there was a quantity of freshly spilled 'bubbly' substance on the steering wheel.

[72] It was on the floor as well; beneath the steering wheel in the driver's position.

[73] After the 15 minutes had elapsed, Officer Vu stood by while Officer Alexander administered the ASD tests. He was an arm's length away from Mr. Capan throughout.

[74] Officer Vu heard Officer Alexander give the standard instructions on how to provide a sample. She held the machine and instructed Mr. Capan to blow one long continuous breath into the machine with no gaps and to just keep blowing until he is told to stop.

[75] Officer Vu observed Mr. Capan to make numerous attempts "pretending to blow". (p. 96)

[76] "I heard no audible tone from the screening device and I didn't hear the sound of air being blown through the tube. I was able to observe his chest and I didn't see his chest fall during the attempts…Following these several attempts to pretend to blow, he then blew partial samples. It would pause and continue, which resets the device as a long single continuous breath is required for a proper sample." (pp. 96, 98)

[77] Every time Mr. Capan failed to provide a suitable sample, Officer Alexander instructed him how to blow into the tube and try again. (p. 98) Officer Alexander put a new mouthpiece in and she demonstrated how to blow into the device. (p. 100)

[78] Officer Vu testified that it was his impression that Mr. Capan was refusing to provide a proper sample because he was not following the clear and easy instructions.

[79] He heard Officer Alexander warn Mr. Capan several times about the consequences for failing or refusing to provide a suitable sample.

[80] Officer Vu did not note the exact number of attempts. He estimates near ten opportunities were provided to Mr. Capan.

[81] After this incident, at 03:50 hours, Officer Vu did a self-test on the ASD and it registered a zero. The device was functioning the entire time of this incident.

[82] In cross examination, Officer Vu said he smelled the minty smell of mouthwash on Mr. Capan's breath. He did not smell alcohol.

Summary of the Testimony of Officer Kenny

[83] Officer Kenny has been a police officer with HRPS since December 2012.

[84] He was on duty and in his own marked cruiser on October 23, 2013. He followed Officer Vu to this scene arriving at 02:50 hours. This was his first ASD investigation and was a learning scenario for him.

[85] He attended to Mr. Capan's vehicle. Mr. Capan was seated in the driver's seat.

[86] Officer Kenny observed liquid on the steering wheel, the windshield and on Mr. Capan's shirt.

[87] Officer Kenny was 4 to 5 feet away when Officer Alexander conducted the tests.

[88] He saw Mr. Capan inspect the sealed mouthpiece. It was opened and put on the ASD.

[89] Officer Kenny observed multiple attempts to provide an ASD sample. He estimates that there were about 10 attempts, but he is not certain of the number.

[90] He saw Mr. Capan take a deep breath and "pretend to blow into the device".

[91] Officer Kenny could hear intermittent tones. The device would be removed by Officer Alexander and then Mr. Capan would breathe out heavily.

[92] Mr. Capan was holding his breath during the testing.

[93] He observed Officer Alexander providing a self-test which registered a reading of zero.

[94] He observed Mr. Capan to be unsteady on his feet and he was swaying.

Summary of the Testimony of David Capan

[95] He is 40 years of age, single and has no criminal record.

[96] He has been employed as a bartender at Canyon Creek in Sherway (Gardens) since July of 2011.

[97] He worked the 5:00 p.m. to 11:00 p.m. shift on Tuesday October 22, 2013. He had no alcohol at work.

[98] He left work and drove to the Classic Bowl about 15 minutes away. He met some friends there. He stayed until last call. He drank a 16-ounce pint of Moosehead beer there.

[99] At approximately 12:30 p.m., he went next door to J.J.Q's and played some pool with his friends. He had another 18-ounce pint of beer there.

[100] Mr. Capan testified that the alcohol had no effect on him.

[101] Before he drove home he used mouthwash to freshen his breath. It was Listerine Total 0. The bottle was half full. It had no alcohol in it. He did not know that at the time. He looked that up on-line.

[102] He exited the QEW westbound at Dorval Drive. He was in the second left turn-lane when he noticed an unmarked cruiser.

[103] He got nervous and stopped his car. It was 2:30 a.m. and nobody else was on the road. He thought he would be pulled over because he had consumed a couple of beers.

[104] He stopped his car at the door of the cruiser. He did that hoping the light would change quicker.

[105] When the Officer came to a stop, he drove slowly. He was being cautious.

[106] He drove southbound on Dorval and passed the cruiser.

[107] At Rebecca Street he made an exaggerated stop because he did not want to get pulled over.

[108] He turned right onto Southview Road and was pulled over in front of Jeanette.

[109] He was nervous when he was pulled over because he had been drinking alcohol.

[110] Just before he was pulled over, he "sneezed violently" a few times and that was the frothy substance on the steering wheel.

[111] He did not use the mouthwash when he was driving the car.

[112] He was not unsteady on his feet when he exited his car. He was shivering because it was cold out. His eyes were glossy because he had worked a long shift and he had been smoking. He was also tired.

[113] He agrees 100% that his breath possibly smelled of alcohol.

[114] He was nervous when he was doing the ASD tests because 3 officers were around him.

[115] Officer Alexander showed him the mouthpiece and told him to give a long continuous blow.

[116] They went through the procedure 4 to 5 times and then she demonstrated the test to him.

[117] He followed her instructions and was blowing into the tube.

[118] Officer Alexander gave him 2 more chances, including a last chance.

[119] The tone on the ASD sounded sometimes. He was trying his best. The other officers kept saying 'keep blowing'.

[120] He was given 20 to 25 minutes to provide a sample. He did not feel rushed.

[121] He was charged and put in the back of the cruiser. He was released at the scene.

[122] In cross examination, Mr. Capan stated that, as a bartender, he knows he is okay to drive after consuming 2 beers. He was not concerned that he was over the legal limit that morning.

[123] He agreed that he used mouthwash to mask the odour of alcohol on his breath before he began to drive. He agreed that he was worried about the odour of alcohol on his breath if he were to be stopped by police.

[124] When asked why he was so nervous performing the ASD tests if he knew he would not blow over, Mr. Capan replied that he did not know if he would fail the test. Mr. Capan also replied that he did not think he would fail the test and he was confident that he would be okay, but there was a doubt in his mind.

[125] Mr. Capan agreed that he did not provide enough breath for the device to register a tone at times. He agreed that the Officer told him he was not blowing long enough. He would stop blowing because he ran out of breath.

[126] Mr. Capan testified that he was not thinking about what the reading would be. Then he said, yes, he was concerned about what the reading would be.

Position of the Defence

[127] The Defence submits that the Crown has not proven the mens rea required for this offence which is a wilful intentional refusal to provide a suitable sample.

[128] The Defence relies upon the following cases in support of its position: R. v. Greenshields, [2014] O.J. No. 475; R. v. Tikhonov, [2014] O.J. No. 3479; R. v. Shewan, [2011] O.J. No. 523; R. v. Anderson, 2008 ONCJ 28; R. v. Persaud, [2005] ONCJ 9.

[129] The Defence submits that the Officer's testimony was very general regarding the instructions Mr. Capan was given. The instructions were not detailed and precise.

[130] The Defence submits that there was no specific time as to when the attempts to provide a sample started and there was no time as to when the ASD arrived on scene.

[131] The Defence submits that the Crown has called no evidence regarding Officer Alexander's training and qualifications to operate an ASD.

[132] The Defence submits that Mr. Capan has explained the driving that caused the Officer to make the traffic stop. Mr. Capan's testimony that he was trying to provide a suitable sample should be accepted or raise a reasonable doubt.

Crown's Position

[133] The Crown submits that the Court must consider all the circumstances in finding that Mr. Capan did intentionally refuse to provide a suitable sample.

[134] Mr. Capan was concerned about being stopped by the police before he started driving. He used mouthwash to mask the smell of alcohol in the event he was stopped.

[135] Mr. Capan was nervous as soon as be observed the police cruiser and that is why he drove in such an odd manner. He was trying to avoid police detection because he had been drinking and was driving.

[136] The Crown asks the Court to reject Mr. Capan's evidence about the "big sneeze" as the cause for the frothy substance in the car. The Crown submits that the substance was observed on 4 different surfaces and is consistent with mouthwash being used while Mr. Capan was driving and then spilled and or spit- out about the car.

[137] The Crown submits that the times have reasonably been explained. The ASD was on scene within 7 minutes of the demand and Officer Alexander was correct to hold off for 15 minutes before starting the tests at approximately 3:00 a.m. due to the possibility of residual mouth alcohol.

[138] The Crown submits that Mr. Capan was given proper instructions on how to provide a suitable sample, including a demonstration. Mr. Capan was given 8 opportunities over a 13-minute period. The evidence has established that the ASD was in proper working order both before and after the failed tests in this case.

[139] Officers Alexander, Vu and Kenny all concluded that Mr. Capan was pretending to follow the easy instructions in this case and he was pretending to blow.

[140] The Crown submits that Mr. Capan was given a final last chance after the consequences for failing to provide a suitable sample had been properly explained to him.

[141] The Crown submits that Mr. Capan at no time expressed any confusion with the instructions he was given.

[142] The Crown submits that they are not required to prove the Officer's training/qualifications regarding the workings of an ASD on a charge of intentionally refusing to provide a suitable sample. The Crown relies upon the following authorities in support of their proposition:

• R. v. McNab, [2001] O.J. No. 4738
• R. v. Gutierrez, [2001] O.J. No. 3659
• R. v. Coyle, [2005] O.J. No. 4756, rev'd on other grounds, 2007 ONCA 728
• R. v. White, [2005] N.S.J. No. 62

[143] The Crown submits that Mr. Capan was trying to avoid police detection of his drinking and driving throughout and his intentional refusal to provide a suitable sample has been proven beyond a reasonable doubt.

Analysis

[144] I agree with the position advanced by the Crown.

[145] The actus reus has been established in this case. Despite 8 reasonable opportunities to provide a suitable sample, Mr. Capan did not.

[146] I agree that the mens rea required is proof that Mr. Capan intended to produce the failure: R. v. Soucy (September 24), 2014, 2014 ONCJ 497; R. v. Greenshields (supra); R. v. Tikhonov (supra); R. v. Shewan (supra); R. v. Anderson (supra); R. v. Persaud (supra).

[147] I have applied the principles in R. v. WD (1991) which places the burden of proof on the Crown when resolving any issues of credibility that relate to the essential elements of the offence.

[148] This is not a case where Mr. Capan has provided an excuse for his failure to provide a suitable sample. This is also not a statement of refusal case. Mr. Capan simply offers that he was trying his best to provide a sample; he did not.

[149] I am satisfied that the ASD was in proper working order during the course of the ASD testing in this case. There was no challenge on this issue in any event.

[150] I am satisfied that Officer Alexander, in the presence of Officers Vu and Kenny, provided clear and easy instructions on how a suitable sample is provided. She also demonstrated same to Mr. Capan.

[151] Contrary to the Defence submission, there was clear evidence that the ASD arrived on scene at 02:50 hours from Officer Vu. The Demand was made at 02:44 hours by Officer Alexander. The testing began at between 03:00 hours and 03:05 hours as 15 minutes had elapsed to avoid test contamination by residual mouth alcohol.

[152] Mr. Capan was given approximately 13 minutes to provide a suitable sample before he was arrested. He was given two last chances to do so: first 'last chance' on the 7th opportunity; a final 'last chance' on the 8th opportunity.

[153] There was no confusion alleged about anything that happened at this scene.

[154] I find as a fact that Mr. Capan was intentionally failing to provide a suitable sample of his breath. His entire course of conduct that early morning was designed to avoid police detection because he had been drinking and driving.

[155] His explosive use of the mouthwash to mask the odour of alcohol on his breath is further evidence of intentional avoidance. That masking agent ended up in his mouth, on his shirt, on the steering wheel, on the windshield and on the floor of the driver's seat.

[156] Further, I find it significant that as a bartender who is smart-serve trained, Mr. Capan knew when he had too much to drink and then drive. It is reasonable to infer that Mr. Capan knew he would blow over 80 if he were to provide a suitable sample of his breath. For these reasons, I conclude that Mr. Capan intentionally pretended to provide a sample and he failed to do so as required by law.

[157] Accordingly, a finding of guilt is registered.

Obiter

This trial was originally estimated to take one-half day by Counsel. This is yet another example of Counsel failing to estimate trial time in Halton accurately. This chronic problem results in delayed judgments. Justice is not served when it is delayed.

Released: January 20, 2015

Signed: "Justice L.M. Baldwin"