Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Michael Pociurko

Before: Justice Maria Speyer

Heard: March 31, June 1, and August 7, 2015

Reasons for Judgment Released: October 9, 2015

Counsel:

• S. Doyle, for the Crown
• M. Figol, for Michael Pociurko

Judgment

M. SPEYER J.:

[1] Introduction

Michael Pociurko is charged with refusing to comply with an approved screening device ("ASD") demand made to him by a peace officer pursuant to section 254(2) of the Criminal Code, contrary to section 254(5) of the Code. The circumstances that led to Mr. Pociurko's arrest on this charge can be summarized as follows:

[2] Facts

Shortly after midnight on October 27, 2013 Peel police received a call for a single motor vehicle collision at Hensall Circle under the Dundas Street overpass in Mississauga. At 12:11 a.m. Constable Pham found a vehicle at that location resting against the curb with front end damage. He saw a male identified as the accused standing about three metres from the car. He saw a female, later identified as the accused's wife Yulia Pociurko, with a child about 10 to 15 metres from the car. After ensuring no one needed medical attention, Constable Pham spoke to Mrs. Pociurko and received conflicting information about whether she or the accused was driving the vehicle at the time of the collision. He then spoke to Mr. Pociurko who admitted to consuming alcohol but denied being the driver of the car.

At 12:22 a.m., Constable Pham made a roadside screening device demand to Mr. Pociurko. Mr. Pociurko replied that he wasn't the driver and wasn't going to blow. After being cautioned about the criminal consequences of refusing to provide a sample, Mr. Pociurko again stated he was not driving and would not provide a sample of his breath. Mr. Pociurko attempted to call his lawyer using his cell phone, but was prevented from doing so by Constable Pham, who took his phone, removed him from the vehicle and handcuffed him.

A second officer, Constable Li, arrived on the scene and at 12:28 a.m. this officer again read the approved screening device to Mr. Pociurko, in both English and Russian. Mr. Pociurko again refused to provide a sample of his breath, yelling that he wasn't the driver. At this point the accused was arrested for refusing to provide a breath sample, read his rights to counsel and caution. He was released from the scene at 1:20 a.m.

[3] Issues

Mr. Pociurko raises two issues with respect to this charge. First, he seeks to exclude from the trial all evidence of his refusal to provide a sample of his breath on the basis that his right to counsel pursuant to section 10(b) of the Canadian Charter of Rights and Freedoms were violated. Second, he argues that Constable Pham lacked the requisite reasonable suspicion that he was operating a motor vehicle within the preceding three hours. Since the breath demand was not valid, Mr. Pociurko was not required to comply with it.

In R. v. Misasi, 1993 CanLII 8577 (ON CA), [1993] O.J. No. 150, the Court of Appeal held that where the demand is made outside the boundaries of section 254(2)(b), the detainee is not obliged to comply with it and therefore no Charter relief is necessary with respect to the offence. Accordingly, I will first address the issue of whether Constable Pham had the requisite reasonable suspicion to make a valid breath demand.

The Elements of the Offence

The elements of the offence of refusing to comply with an approved screening device demand were set out by the Ontario Court of Appeal in R. v. Degiorgio, [2011] O.J. No. 3337 (C.A.) at paragraph 43:

1. The preconditions set out in section 254(2);
2. A demand that the individual "provide forthwith a sample of breath";
3. The individual of whom the demand was made understood the demand;
4. The individual refused to comply with that demand; and
5. The individual did not have a reasonable excuse for failing to comply with the demand

1. Section 254(2) of the Criminal Code

Section 254(2) of the Criminal Code states in part as follows:

254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle…or had the care or control of a motor vehicle,…the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

This section was enacted by Bill C-2 and came into effect on July 2, 2008. Crown and defence counsel have agreed that under this amended section, the Crown need not prove, as an element of the offence of refusing an ASD demand, that Mr. Pociurko was in fact operating or in care or control of a motor vehicle. I agree with their position.

In R. v. McCann, [2014] O.J. No. 4592 (S.C.J.), the accused was charged with refusing to comply with an ASD demand. The offence occurred after the coming into effect of this section. Justice Goldstein suggested that one of the elements of the offence of refusing an ASD demand that the Crown must prove beyond a reasonable doubt, is that the accused had in fact operated or had care or control of a motor vehicle within the previous three hours. This statement was obiter as the appeal turned on the reasonableness of the officer's suspicion that the respondent had alcohol in her body. Moreover, in setting out the elements of the offence, the court relied on cases that were based on the wording of the section prior to July 2, 2008: R. v. Swietorzecki (1995), 1995 CanLII 444 (ON CA), 97 C.C.C. (3d) 285 (Ont.C.A.) and R. v. Ademaj, [2001] O.J. No. 3767, 20 M.V.R. (4th) 110, 2001 CarswellOnt 3334 (Sup.Ct.). I am therefore satisfied that this case is distinguishable and has no application to the one before me.

2. Reasonable Suspicion

Defence counsel concedes that Constable Pham had a reasonable suspicion that Mr. Pociurko had alcohol in his body. However he argues that it was not reasonable for Constable Pham to suspect that the accused had operated the vehicle within the preceding three hours as is required in section 254(2).

The threshold for reasonable suspicion is fairly low. However, it must not be reduced to a mere hunch. The onus is on the Crown to show that the police officer's honestly held suspicion is based on objective and ascertainable facts which can be subjected to independent judicial scrutiny. All information available to the officer must be assessed, including exculpatory, neutral or equivocal information. Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person standing in the shoes of the police officer: R. v. Chehil, 2013 SCC 49 (CanLII), [2013] 3 S.C.R. 220; R. v. Mackenzie, 2013 SCC 50 (CanLII), [2013] S.C.J. No. 50.

Justice Moldaver in R. v. Mackenzie, supra, at para 74, described the reasonable suspicion standard as follows:

To the extent one speaks of a "reasonable belief" in the context of reasonable suspicion, it is a reasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual is connected to the offence. As Karakatsanis J. observes in Chehil, the bottom line is that while both concepts must be grounded in objective facts that stand up to independent scrutiny, "reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime" (para. 27).

With this in mind, I now turn to the evidence regarding the information available to Constable Pham when he formed his suspicion that Mr. Pociurko was driving the car at the time of the collision.

The evidence establishes and I find as fact that the collision occurred shortly before midnight of October 27, 2013. Mr. Pociurko confirmed this in his evidence. Constable Pham was told by the radio dispatcher that a civilian had reported the collision a few minutes before calling it in at 12:03 a.m. Accordingly, I am satisfied that the three hour time frame has been established.

Constable Pham testified that when he arrived, the accused was standing about three metres from the vehicle and his wife and child were walking away from the car, at a distance of about 10 to 15 metres. After ensuring no one needed medical attention, he returned to Mrs. Pociurko and advised her that he was investigating the collision. He advised her that she did not have to speak to him but anything she said could be used in court. He then asked her who was driving the car. At first she said her husband was driving the car, and then she said that she was driving, and then said they were both driving. She said the collision was as a result of a mechanical failure.

Constable Pham testified that Mrs. Pociurko's initial answer made no sense to him. He observed that she appeared upset and had alcohol on her breath. He was also skeptical that the collision occurred as a result of mechanical failure. He asked her to clarify her answer and she repeated that there was a mechanical failure but then admitted that her husband was driving the car. Constable Pham testified that it appeared to him that Mrs. Pociurko was covering up for her husband. He testified that he suspected Mr. Pociurko was the driver because of his close proximity to the car and because of what Mrs. Pociurko told him.

Yulia Pociurko testified for the defence. She testified that she was driving the car when the brakes failed causing her to hit the curb. She testified that Constable Pham asked her who was driving and she told him that her husband drove in the morning and she drove in the afternoon. The officer then asked her who drove the car at the time of the accident, and she said she did, but that her brakes had failed.

I do not accept Mrs. Pociurko's evidence on this point and accept the evidence of Constable Pham. First, it makes no sense that Mrs. Pociurko would tell Constable Pham that her husband had driven the car that morning. Constable Pham was there to investigate a car accident that had occurred shortly before midnight. In this context it is irrelevant who drove the car in the morning. There is no reason for her to have said this except to cover up for her husband.

Secondly, the utterance made by Mrs. Pociurko to Constable Pham is consistent with the written statement she made to Constable Li after her husband was arrested. I do not believe Mrs. Pociurko's evidence that she did not make this statement, or that Constable Li fabricated it and forced her to sign it. I found her evidence regarding the statement to be evasive and contradictory. I accept the evidence of Constable Li that he wrote down what she told him. In the statement, Mrs. Pociurko confirms her earlier utterance to Constable Pham that her husband drove the car. Mrs. Pociurko denied this part of her statement and testified that only the words she wrote on the bottom half of the statement are true. Yet even in this portion of the statement she did not refute that her husband was the driver.

The accused testified that when Constable Pham approached him, he was on the phone with a tow truck driver. He told Constable Pham that the brakes on the car had failed. Constable Pham told him to sit in his cruiser while he went to speak to his wife. He returned a few minutes later and asked him who drove the car, to which Mr. Pociurko responded that his wife had driven it. He testified that Constable Pham asked him again who was driving and he repeated that his wife drove. Constable Pham asked him who had the car keys and he gave them to the officer, explaining that the car has a push button ignition. Constable Pham then asked him to take a breathalyser test. Mr. Pociurko testified that he asked the officer, "Why should I if I was not driving?" The officer asked him a second time to take the test and he repeated, "Why should I if I wasn't behind the wheel". Mr. Pociurko also testified that in his mind, if he took the test, it would amount to an admission that he was driving. The officer then asked if he was refusing the breathalyser test and he responded by saying I wasn't driving.

Defence counsel submits that the equivocal nature of the information from Mrs. Pociurko and the accused's denials that he drove the car required the officer to undertake a further investigation. I disagree. The accused's denials have to be put into context of other information available to Constable Pham at the roadside. Only two people associated with the car could have driven it at the time of the collision and Constable Pham had spoken to both of them prior to formulating his grounds. I am satisfied that Constable Pham's suspicion was objectively reasonable based on his observations of the accused's proximity to the car and the information he had received from Mrs. Pociurko.

3. The "Forthwith" Requirement

"Forthwith" means immediately or without delay. In the context of a section 254(2) demand, the forthwith requirement connotes a prompt demand by the police officer and an immediate response to the person to whom the demand is made. The forthwith requirement is essential to the constitutional integrity of section 254(2) as it imposes a reasonable limit on the constitutional rights of the detained person. Absent this requirement, section 254(2)(b) would not pass "constitutional muster." See: R. v. Woods, 2005 SCC 42 (CanLII), [2005] 2 S.C.R. 205, at para. 15, 29, 44.

The evidence establishes that Constable Pham began his investigation at 12:11 a.m. and he made the first ASD demand at 12:22 a.m. Constable Pham testified and I accept that he made the first demand within minutes of formulating his suspicion that Mr. Pociurko had alcohol in his body and that he was the driver of the car at the time of the collision.

Constable Pham testified he made the first demand while he and the accused were standing at Mr. Pociurko's car. Mr. Pociurko responded by saying he was not driving. He escorted Mr. Pociurko to his cruiser and after a quick pat down search, repeated the ASD demand. The accused responded by saying "I wasn't driving. I'm not going to blow". PC Pham explained that it was a criminal offence to refuse to provide a sample, to which Mr. Pociurko stated, "I wasn't driving. I don't have to." At this point, the officer placed Mr. Pociurko in the back seat of his cruiser and began some computer searches when he saw the accused talking on his cell phone. The officer ordered Mr. Pociurko to get off the phone, to which Mr. Pociurko said he was talking to his lawyer. The officer again ordered Mr. Pociurko to get off the phone and the accused said no. PC Pham then forcibly took the phone from Mr. Pociurko and pulled him out of the cruiser. He handcuffed Mr. Pociurko and returned him to the rear of this cruiser.

I do not accept as reliable the evidence of Mr. Pociurko when he testified that the first demand was made after he had been ordered to sit in Constable Pham's cruiser. Mr. Pociurko by his own admission had consumed 5 shots of vodka and was agitated. Constable Pham on the other hand made contemporaneous notes and gave a detailed account of when and where the demand was made.

I also accept Constable Pham's evidence that he had the approved screening device with him in the cruiser. Constable Pham testified that he did not demonstrate the device to the accused because Mr. Pociurko had said he would not provide a sample.

On all of the evidence, I am satisfied that Constable Pham made the demand promptly upon forming the requisite reasonable suspicion and he was in a position to take a sample of Mr. Pociurko's breath immediately thereafter. Mr. Pociurko was therefore obliged to comply with that demand immediately.

4. Did the Accused Understand the Demand?

Constable Pham testified that after conducting an initial investigation, he read the ASD demand from a pre-printed card. Mr. Pociurko testified he did not remember the actual words used by Constable Pham, but conceded that he understood the officer to have made a demand that he provide a sample of his breath. Mr. Pociurko further testified that he understands English and indeed he gave evidence at trial in the English language. I am satisfied that Mr. Pociurko understood the demand made to him by Constable Pham. Constable Pham's request to have Constable Li read the demand again in Russian was therefore not necessary.

5. Was the Refusal Unequivocal?

The essential elements of the offence in section 254(5) that the Crown must prove beyond a reasonable doubt are: first, the existence of a lawful demand pursuant to section 254(2) or (3); second, the Crown must prove a failure or refusal by the defendant to produce the required sample (the actus reus); and third, the Crown must prove that the defendant intended to produce that failure or refusal (the mens rea): see R. v. Lewko, 2002 SKCA 121 (CanLII), [2002] S.J. No. 622 (Sask. C.A.).

The conduct criminalized by section 254(5) is the unequivocal refusal to comply with a proper section 254(2) demand. The offence is completed when the refusal is given. As noted by Justice Fish in R. v. Woods, supra, at paragraph 45, "Drivers upon whom ASD demands are made are bound by s. 254(2) to comply immediately – and not later, at a time of their choosing, when they have decided to stop refusing!"

Mr. Pociurko testified in chief that Constable Pham asked him at least twice to give a sample of breath and each time he responded by saying, "why should I, if I was not driving". He testified that he thought that giving a sample of his breath would amount to an admission of driving and this was why he wanted to speak to his lawyer. I reject Mr. Pociurko's evidence that he was not advised that it was a criminal offence to refuse to provide a breath sample until after his arrest. On the evidence before me, I am satisfied that Mr. Pociurko had a settled intention to not comply with the demand until after he had spoken to his lawyer. His actions and words amount to an unequivocal refusal. Constable Pham made a lawful demand and Mr. Pociurko was obliged to comply with that demand forthwith, not at a time of his choosing.

6. Did the Accused Have a Reasonable Excuse for Refusing?

As stated, Mr. Pociurko testified that he did not believe he had to provide a sample of his breath because he was not driving. I have found as a fact that he did not intend to comply with the demand until after he had spoken to his lawyer, and indeed he never did provide a sample of his breath.

An assertion that a person was not operating or have care or control of a motor vehicle is not a reasonable excuse for failing or refusing to comply with an approved instrument demand made pursuant to section 254(3): See R. v. Teraschuck (1975), 1975 CanLII 37 (SCC), 25 C.C.C. (2d) 108 (S.C.C.); R. v. Squires, [2002] O.J. No. 2315 (C.A.); R. v. Swietorzecki, 1995 CanLII 444 (ON CA), [1995] O.J. No. 816 (C.A.). Crown and defence counsel are in agreement that since the amendment to section 254(2) by Bill C-2, the same legal reasoning applies to refusing to comply with an ASD demand. I agree. Accordingly, Mr. Pociurko's assertion that he was not driving does not afford him a reasonable excuse for refusing to provide a sample of his breath.

Section 10(b) of the Charter

It is well settled that under section 254(2) of the Code, the police have authority to demand a motorist to provide a sample of breath "forthwith", prior to consulting with a lawyer, and that this is a justified limitation of the right to counsel. Where police are in a position to take the sample immediately or before there is a realistic opportunity to consult with counsel, there is no violation of section 10 of the Charter: see R. v. George, 2004 CanLII 6210 (ON CA), [2004] O.J. No. 3287 (C.A.); R. v. Tornsey, 2007 ONCA 67 (CanLII), [2007] O.J. No. 355 (C.A.), R. v. Degiorgio, [2011] O.J. No. 3337(C.A.); R. v. Quansah, [2002] O.J. No. 779 (C.A.).

The boundaries within which Charter rights are justifiably infringed were described by the Court of Appeal in R. v. Degiorgio, supra, at para. 49 and 50 as follows:

49 …The right to counsel is triggered upon detention at the roadside. That right is, however, effectively suspended by operation of s. 1 of the Charter for the time period captured by the requirement that the sample be taken "forthwith". If the demand is made and the sample provided within the forthwith window of time, the Charter is not breached. If, however, the forthwith window expires, then the taking of a sample without first providing the detainee an opportunity to contact counsel is an infringement of s. 10(b) that cannot be saved by s. 1.

50 The analysis in refusal cases should be the same. If the demand is otherwise proper and the outright refusal occurs during the "forthwith" timeframe, the accused's 10(b) rights are not engaged and cannot affect the accused's liability under s. 254(5)…

Constable Pham testified that the first breath demand was made at 12:22 a.m. Mr. Pociurko's cell phone record suggests that the call to his lawyer was made at 12:23 a.m. The Statutory Declaration from lawyer Bohdan Matsura confirms that Mr. Pociurko called him at about that time sounding agitated. He told him that he was in the back seat of a police car and was being questioned about possibly being charged with a drinking and driving incident. Before he could get more details, Mr. Matsura heard shouting and the call was abruptly disconnected.

Constable Pham testified that he ordered Mr. Pociurko to get off the phone as he was concerned about his safety. He testified that he did not know who the accused was speaking with and was concerned that he was calling friends to come to his assistance. When Mr. Pociurko refused to hang up, he took the phone from him by force.

Defence counsel argues that in the circumstances of this case there was a realistic opportunity for Mr. Pociurko to consult with counsel even during the "forthwith window". Mr. Pociurko was speaking to his lawyer within a minute of the breath demand, but was interrupted by Constable Pham. He argues that there was no indication that Mr. Pociurko posed a danger and the officer had no reason prevent him from finishing his call or to seize his phone. He submits that permitting Mr. Pociurko to finish speaking to his lawyer would have facilitated the taking of the sample.

I do not accept this argument. First, Constable Pham's concern about his safety was entirely reasonable. He did not know the accused. He described Mr. Pociurko as aggressive and belligerent. Even Mr. Matsura described Mr. Pociurko as "agitated". In these circumstances, Constable Pham's fears for his safety were reasonable. His decision to interrupt the phone call and seize the phone was not a violation of the accused's section 10(b) rights.

Second, by the time the accused called Mr. Matsura, he had already twice refused to comply with the ASD demand. In his evidence, Mr. Pociurko admitted that he had been asked twice by the officer to provide a sample and each time he had responded by saying, "why should I if I wasn't driving". He also confirmed that he called Mr. Matsura because he wanted legal advice about whether he should provide a sample. He believed that providing a sample would be an admission of driving. I am therefore satisfied that the offence was complete by the time the accused called his lawyer.

Lastly, Mr. Pociurko had no right to consult with counsel in the circumstances of this case. The police made a proper ASD demand. Mr. Pociurko made an outright refusal during the "forthwith" timeframe. Accordingly, his 10(b) rights were not engaged and cannot affect his liability under section 254(5). The application to exclude the evidence of his refusal is dismissed.

Conclusion

On all of the evidence before me I am satisfied that Mr. Pociurko refused to comply with a valid ASD demand and I find him guilty as charged.

Released: October 9, 2015

Signed: "Justice M. Speyer"

Footnote

1Prior to the amendment made by Bill C-2 the section read as follows:

254(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.