Court File and Parties

Court File No.: Toronto Region

Date: 2016-03-29

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Michael Fernandes

Before: Justice Carol Brewer

Heard on: February 2, 2016

Reasons for Judgment released on: March 29, 2016

Counsel:

Tara Brun for the Crown

David Cohn for the defendant, Michael Fernandes

Judgment

Introduction

[1] Michael Fernandes is charged with refusing to provide a sample of his breath into an approved screening device on July 17, 2015.

[2] It is conceded that Constable Blair made a demand for a roadside breath sample to the defendant and that there were sufficient grounds for the demand. Mr. Fernandes told the officer that he would not take the test. The crucial issue in this case is the effect of the officer providing the defendant with incomplete information as to the consequences of failing to comply with the demand. On behalf of Mr. Fernandes, Mr. Cohn submits that the provision of incomplete information impacted the following aspects of the case:

• it affected the propriety of the breath demand;
• it vitiated proof of the mental element of the offence;
• it gave rise to a reasonable excuse for the refusal;
• it constituted an officially induced error; and
• it was a violation of section 7 of the Charter.

The Factual Background

[3] At about 3:18 a.m., Constables Blair and Webb were parked just east of Oakwood Avenue on the south side of Eglinton Avenue West. Officer Blair saw the defendant's car entering the left turn lane, going west on Eglinton Avenue West. He noticed that the defendant, who was driving the vehicle, was not wearing a seat belt. The two vehicles were one lane apart and the constable had a clear view of the defendant through his open window. After the defendant's car was stopped, Constable Blair had a brief conversation with Mr. Fernandes and smelled an obvious odour of alcohol on the defendant's breath. When asked how much he had to drink, Mr. Fernandes initially denied any alcohol consumption but later said he had one beer six hours earlier.

[4] Based upon the odour of alcohol and the admission of drinking, the officer read a demand from his memo book that the defendant provide a sample of his breath into an approved screening device. When asked if he understood, Mr. Fernandes said, "What if I say no?" Constable Blair explained the consequences of failing to give a sample in the following terms:

• the defendant would be charged criminally with the offence of refusing to provide a roadside breath sample under the Criminal Code;
• his driver's licence would be suspended for 90 days;
• his car would be impounded for 7 days; and
• he would need to attend the police station at a later date for fingerprinting and photographs.

The officer did not specify that those were the immediate consequences of a refusal, nor did he say that there might be further consequences if a conviction was registered.

[5] Mr. Fernandes repeated that he was not going to take the test. The officer pointed to the in-car camera and told the defendant that the refusal had to be said into the camera. Mr. Fernandes said that he was worried about missing work. Constable Blair told the defendant to think about his decision while the officer got the approved screening device ready. When the device had been prepared for use, the constable got out a mouthpiece. At that time, Mr. Fernandes said, "Don't bother. I refuse. I am not going to do it." When asked if he was sure, the defendant requested that the demand be read to him again. Constable Blair got out his memo book. He and Mr. Fernandes slowly read the demand together. The officer again explained the consequences of refusing to provide a breath sample. The defendant said, a number of times, that he could not take the chance of failing and that he was worried about missing work in the morning. According to Constable Blair, he explained the consequences of refusal "many times". The officer did not want the defendant to refuse, as he did not think it was in anyone's best interests. When Constable Blair gave Mr. Fernandes one final opportunity, the defendant said, "No, I am not doing it."

[6] The defendant was advised of his right to counsel and said that he understood. Mr. Fernandes said that his phone was dead and he asked for the officer's telephone. Constable Blair told the defendant that he did not have a phone and that he could call a lawyer or duty counsel once released.

[7] Throughout their interactions, Constable Blair said that Mr. Fernandes appeared to understand what was being said and that his answers to the officer's questions were responsive.

[8] Michael Fernandes testified that he drank five beers between 10:00 p.m. and 2:45 a.m. The defendant acknowledged having lied to the officer, although he maintained that he had no concerns about his ability to drive. Mr. Fernandes said that he was nervous in dealing with Constable Blair. Indeed, although he gave his correct date of birth, the defendant said he was 22 years old, when he was in fact 25 years of age.

[9] According to the defendant, the officer read him something from a booklet that he did not understand. Eventually, Mr. Fernandes became aware that he was being asked to blow into a roadside screening device. Based upon that knowledge, the defendant asked what would happen if he did not provide a breath sample. Mr. Fernandes stated that Constable Blair told him that he would be charged with refusal to blow, would have his driver's licence suspended for 90 days and his car would be impounded for 7 days. The defendant did not recall being advised of the need for fingerprints and photographs. Mr. Fernandes asked to read the officer's book and the officer repeated what it said. The defendant still did not understand. Indeed, it was his position that he did not understand the officer while they were talking together. However, Mr. Fernandes conceded that he had no trouble speaking English and that he had a high school education. He also admitted that he understood the demand to provide a breath sample.

[10] It was Mr. Fernandes' evidence that he thought the sole consequences of failing to provide a breath sample were the equivalent of getting a ticket and a 90 day driving suspension. He did not know that he would be charged criminally. The defendant said that he believed if he failed the test his driver's licence would be suspended for a year. This belief was premised on his knowledge of people who had failed a breath test and had to take a breathalyser test and who received a one year driver's suspension. Mr. Fernandes agreed that Constable Blair was not aggressive with him. The defendant never asked the officer whether he would receive a ticket and he did not inquire about his belief that failing the test would lead to a year-long driving suspension.

The Burdens of Proof

[11] The burden of proving a violation of a constitutionally protected right rests with the applicant. The violation must be proven on a balance of probabilities.

[12] Ultimately, the Crown must prove the charges against Mr. Fernandes beyond a reasonable doubt.

[13] In weighing the credibility of the witnesses in this case, I remind myself of the principles articulated by the Supreme Court of Canada in R. v. D.W. (1991), 63 C.C.C. (3d) 397.

Credibility

[14] I believe Constable Blair's evidence as to what he told Mr. Fernandes about the consequences of refusing to provide a breath sample. The officer's reference to four points he conveyed to the defendant is both specific and supported by his notes. In particular, I accept that the constable told the defendant that he would be charged with a criminal offence. By contrast, I have concerns about the reliability of Mr. Fernandes' recollection of events on this point. He acknowledged being very nervous, to the point where he mistakenly gave the wrong age, but the correct date of birth, to Constable Blair. This is a condition that is not conducive to accurate recall.

[15] I also do not believe that the defendant did not understand the officer. Constable Blair was patient with and helpful to Mr. Fernandes. The defendant acknowledged that he understood the breath demand. Mr. Fernandes speaks English and is a high school graduate. The defendant's questions to the officer and his comments to Constable Blair were responsive to the situation.

Analysis

[16] The essential elements of a section 254(5) offence are:

(a) a proper demand;

(b) a failure or refusal by the defendant to produce the required sample;

(c) the intentional nature of the failure or refusal to provide a sample; and

(d) once raised by the evidence, the absence of a reasonable excuse.

A. The Roadside Screening Demand

[17] A demand for breath samples made pursuant to section 254(2) of the Criminal Code does not need to be in any particular form or use any specific words, provided that it is made clear to the motorist that she must provide a sample of her breath and has no choice but to comply. In this case, the officer read the demand from his memo book. During cross-examination, Mr. Fernandes clearly stated that he knew the officer was saying that he needed a sample of the defendant's breath and that he understood the request.

[18] The requisite basis for a demand is a reasonable suspicion that a person has alcohol in her body. Here Constable Blair had noticed an odour of alcohol on the defendant's breath and had obtained an admission of drinking from Mr. Fernandes. It is not disputed that the officer had the appropriate grounds to make the demand.

[19] It is the defence position that the demand was rendered invalid by the information later given by the officer regarding the consequences of refusing to provide a breath sample. I was not provided with any authority for this proposition, nor am I aware of any support for there being a retroactive vitiation of an otherwise valid demand by subsequently acquired information. I am satisfied that the Crown has proven this element of the offence.

B. The Intention of the Defendant to Refuse to Provide a Breath Sample

[20] In order to prove the mens rea of a section 254(5) offence, the Crown must establish that the refusal to provide a breath sample was voluntary and intentional. In this case, Mr. Fernandes gave an outright refusal to the officer's demand for a breath sample on more than one occasion. In such circumstances, it seems to me that a finding of intentional conduct is the only logical conclusion to be drawn from the defendant's behaviour. I appreciate that the refusals were premised on the defendant's mistaken belief that he would be charged with an offence and would receive a 90 day driving prohibition. However, such a belief relates to Mr. Fernandes' motive as distinct from his intention.

C. Reasonable Excuse

[21] Reliance on a reasonable excuse as a defence involves an admission that the essential elements of the offence have been established, combined with an assertion that some additional fact or set of facts precludes the imposition of criminal liability. Since the excuse must be reasonable, the assessment of the defence is a partially objective one. While the defendant bears the evidentiary burden of satisfying the court that there is an air of reality to the defence, the Crown must demonstrate beyond a reasonable doubt the absence of any reasonable excuse.

[22] In R. v. Danychuk, [2004] O.J. № 615, the Court of Appeal held that where there is an outright refusal to provide a breath sample – as is the situation here – the failure of a police officer to apprise a motorist of the process and consequences of non-compliance does not affect the validity of a demand made under section 254(2).

[23] As noted in R. v. Sures, [2010] O.J. № 1615 (S.C.J.) at ¶39, it "is not the job of the police to persuade, negotiate or provide legal advice in order to obtain compliance with a breath demand." Accordingly, an officer's failure to thoroughly review the consequences of non-compliance with a roadside screening demand does not give rise to a reasonable excuse for a refusal to provide samples. For example, in R. v. Xhelili, [2011] O.J. № 4059 (C.J.), when the accused asked what would happen if he refused to take the breath test, he was told it could result in the same penalty as being found guilty of impaired driving. No mention was made of the immediate consequences of being charged. Similarly, in R. v. Caplan, [2013] O.J. № 2040 (C.J.) the accused was told that, as a result of his refusal, he would be charged with a criminal offence and his licence would be suspended for 90 days. As Lipson J. noted at ¶7, "In most cases police officers will provide a detainee with more fulsome information about the consequences of failing to provide an ASD sample including the potential penalties for non-compliance." Yet, in each of these cases, while the information provided by the officer was found to be incomplete, it was not inaccurate.

[24] Therefore, I am satisfied that the Crown has proven the absence of a reasonable excuse.

D. Officially Induced Error

[25] Mr. Cohn also has raised the excuse of officially induced error. Officially induced error is a limited exception to the rule that ignorance of the law cannot excuse the commission of a criminal offence. It can be raised only after the Crown has proven all elements of the offence, including the absence of a reasonable excuse. The defendant must establish the existence of the excuse on a balance of probabilities. Officially induced error is founded on the fundamental unfairness of permitting the state to prosecute an individual who committed an offence as a direct consequence of his or her reliance on incorrect information provided by an authorized representative of the state. As Sproat J. commented in R. v. Halloran, [2010] O.J. № 3346 (S.C.J.) at ¶6, the excuse is available "to prevent morally blameless individuals, who believe they are acting in a lawful manner, from being convicted." Consequently, officially induced error is only available in "the clearest of cases" and, when successfully established, it results in a stay of proceedings.

[26] The elements of the excuse of officially induced error are:

(a) an error of law or mixed fact and law was made;

(b) the person who committed the offence considered the consequences of his or her actions and sought advice;

(c) the advice was obtained from an appropriate government official who was involved in the administration of the law in question;

(d) the advice was erroneous;

(e) the person relied upon the advice in committing the offence; and

(f) reliance on the advice was reasonable.

[27] I find that there was nothing erroneous about the information provided to the defendant about the consequences of refusing to give a breath sample. I recognize that the information provided to Mr. Fernandes by Constable Blair was limited to the immediate implications of a refusal and made no reference to the potential sentence to be imposed should the defendant be found guilty. However, like Caldwell J. in R. v. Brown, [2006] O.J. № 438 (C.J.) and Veit J. in R. v. Rybak, [2007] A.J. № 822 (Q.B.), I do not equate accurate but incomplete information with the type of misleading information contemplated by the excuse of officially induced error.

[28] Further, even on the defendant's version of the advice he received, Mr. Fernandes knew that his actions were not legally acceptable. He understood that he was refusing to comply with the demand made to him by Constable Blair and that there would be a sanction imposed for that decision. In essence, the defendant's evidence was that he was choosing which offence to face, based upon an erroneous understanding of the potential sentence. This case is missing the quality of moral blamelessness that is fundamental to the excuse of officially induced error.

E. Section 7 of the Charter

[29] Mr. Cohn submits that inaccurate and misleading information given by a police officer to a person detained at the roadside with respect to the consequences of refusing to provide a breath samples constitutes a violation of section 7 of the Charter. He relies on the decision of R. v. Kenny, [2002] O.J. № 3601 (C.J.), where a breach of section 7 was found in circumstances where a police officer gave erroneous information to the accused, which caused him to believe that the consequence of both failing a roadside screening test and refusing to take the test was an automatic one year driver's licence suspension. The effect of the misinformation was to deprive Mr. Kenny "of a mind capable of understanding the consequences of his actions", akin to the absence of an operating mind in the confessions context.

[30] It seems to me that Kenny is distinguishable from this case. While I accept that Mr. Fernandes was concerned about the implications of failing the roadside screening test, I do not find that the situation he faced left him with the equivalent of lacking an operating mind.

[31] In R. v. Whittle, [1994] S.C.J. № 69 the Supreme Court of Canada described the operating mind test as applicable to fitness to stand trial, the confessions rule, the right to remain silent and the ability to waive the right to counsel. Sopinka J. commented:

49 The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused.

50 The same standard applies with respect to the right to silence in determining whether the accused has the mental capacity to make an active choice.

51 In exercising the right to counsel or waiving the right, the accused must possess the limited cognitive capacity that is required for fitness to stand trial. The accused must be capable of communicating with counsel to instruct counsel, and understand the function of counsel and that he or she can dispense with counsel even if this is not in the accused's best interests. It is not necessary that the accused possess analytical ability. The level of cognitive ability is the same as that required with respect to the confession rule and the right to silence. The accused must have the mental capacity of an operating mind as outlined above.

[32] Here, Mr. Fernandes considered the information provided by Constable Blair, assessed it in light of his belief from his friends that a longer driver's licence suspension would be the result of a failure of the test and came to a decision to refuse to provide a breath sample. This strikes me as demonstrating that the defendant had an operating mind. As was noted in Whittle, supra at ¶45, the operating mind inquiry does not assess whether the accused is capable of making a good or wise choice or one that is in his or her interest.

[33] The crux of the defence position in this case is that, if a police officer says anything about the consequences of refusing to provide a breath sample, the information must be complete and understandable. However, there is a body of case law that holds that the failure of the police to provide a standardized warning to motorists in such circumstances does not violate section 7 or 10(b) of the Charter. These authorities are founded on the fact that a motorist is not entitled to legal advice at the roadside per R. v. Thomsen, [1988] 1 S.C.R. 640 and R. v. Elias; R. v. Orbanski, [2005] S.C.J. № 37 and the problematic nature of requiring a police officer to provide the equivalent of legal advice. As stated by Justice Malin in R. v. Rowland, supra at ¶17:

The explanation of the legal consequences of failing to provide a sample strays into the area of giving legal advice which is beyond duty and the competence of most constables. More significantly, it would put the investigating constable in a potential conflict in the prosecution and disposition of the case. This is all in the nature of advice that an accused might receive when exercising section 10(b) Charter rights, which superior courts have unambiguously held are suspended in the demand for and proper administration of roadside breath screening.

[34] Accordingly, I am not satisfied that a breach of section 7 of the Charter has been established on a balance of probabilities.

Conclusion

[35] For these reasons, I find that the Crown has proven this charge beyond a reasonable doubt. A conviction is entered.

Released: March 29, 2016

Signed: Justice Carol Brewer