Court File and Parties

Ontario Court of Justice

Date: 2017-12-22

Court File No.: Kitchener Info #16-7875

Between:

Her Majesty the Queen

— and —

Daniel Virgilio

Before: Justice Scott Latimer

Heard: December 11, 2017

Reasons for Judgment Released: December 22, 2017

Counsel:

• Aaron McMaster, for the Crown
• Bruce Ritter, for the Defendant

Judgment

LATIMER J.:

[1] Introduction

[1] Daniel Virgilio has pleaded not guilty to a charge of refusing to provide a breath sample, contrary to section 254(5) of the Criminal Code. The charge is particularized as follows:

… did without reasonable excuse refuse to comply with the demand made to him by Cst. Matt Halliday, a peace officer to provide forthwith a sample of his breath, as in the opinion of Cst. Matt Halliday was necessary to enable proper analysis to be made of his breath by means of an approved screening device, contrary to section 254(2)(b) and section 255(1) of the Criminal Code of Canada

I. INTRODUCTION

[2] Section 254 of the Code authorizes the circumstances under which motorists may be detained and compelled to provide breath samples without prior judicial authorization. The motorist's Charter rights are suspended for a brief period of time while at the roadside: See R. v. Thomsen, [1988] 1 S.C.R. 640. This suspension requires that the roadside testing procedure proceed with dispatch: See R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at paras. 33-36.

[3] Section 254(2)(b) specifically permits the conscription of suitable breath samples into a roadside screening device. A trained officer is the arbiter for what is suitable. Properly administered, a "fail" result reliably supports an arrest for driving with excess blood alcohol. The test results are not otherwise admissible at trial: see R. v. Coutts, [1999] O.J. No. 2013. Section 254(5) criminalizes the refusal or failure of a driver to comply with a lawful demand under this section.

[4] The section 254 Code provision has proven to be a useful investigative scheme, balancing individual rights with our societal interest in identifying and deterring impaired driving. Roadside breath testing assists the police in determining which motorists need to be detained or arrested, and which can be left to go on their way. The availability of a criminal offence for non-compliance assists this important screening objective.

[5] The present case began as an unremarkable example of how this enforcement regime operates. The defendant's vehicle was stopped on a random basis in order to check driver sobriety. This is a lawful limitation of a motorist's section 9 Charter right, given the regulated nature of driving a motor vehicle in Ontario: see ss. 48(1) and 216(1) of the Highway Traffic Act (Ont.); R. v. Ladouceur, [1990] 1 S.C.R. 1257. During their interaction, the officer demanded that the defendant provide a sample of his breath into a roadside device. No sample was provided, or attempted, and the defendant was subsequently charged with refusal. The issue before me is whether the Crown has proven that the defendant violated s. 254(5) of the Code when he chose not to comply.

II. THE FACTS

[6] The defendant's truck was seen leaving "The Pub", a self-referentially named licensed establishment in Waterloo, shortly before 1:47 a.m. on November 6, 2016. Police Constable Matt Halliday, a peace officer with the Waterloo Regional Police Service, was in the vicinity, on the lookout for suspected impaired drivers. He decided to stop the defendant's vehicle and conduct a random driver sobriety check, during which he interacted with the defendant and, ultimately, effected an arrest.

[7] Constable Halliday was the Crown's only witness; the defendant testified in his own defence. Each provided a similar but distinct narrative regarding the interaction. I will review each in turn.

A. Constable Halliday

[8] Following the traffic stop, Halliday discovered two occupants in the vehicle: the defendant and his passenger. The defendant provided, upon request, documentation that included a license issued by the State of Illinois. Halliday advised that he was conducting a sobriety check, and asked the defendant if he had consumed any alcohol. The defendant denied drinking, but then responded, to a subsequent question, that his last drink had been three hours previous.

[9] Halliday noted a strong odour of alcohol coming from inside the cab of the truck, but could not discern if the smell was coming from the defendant or the passenger. He asked the defendant to exit the vehicle and approach the rear, where their conversation continued. Once satisfied that the alcohol smell was coming from the defendant's breath, Halliday formed a suspicion that he was operating a motor vehicle with alcohol in his body. He advised the defendant that he was going to have him provide a breath sample into a roadside device, to ensure that he was "okay to drive". He had such a device in his cruiser, and read the following demand to the defendant:

I demand that you provide forthwith such a sample of your breath that I require for analysis by the approved screening device and that you accompany me for this purpose.

[10] The defendant immediately stated, before the demand was formally read, "I think I am going to refuse". After the demand, he stated, "I'm not providing a sample, I'm refusing". Halliday, undeterred, went to his cruiser to obtain the device, an Alcotest 6810 approved screening device instrument. He turned the device on, satisfied himself that it was operable, and explained the process of providing a sample. The defendant reiterated that he was "not providing a sample". Halliday explained that non-compliance would have significant consequences, including:

He would be losing his license, receive a criminal record, his motor vehicle would be towed, and he would face potential deportation as he was an American citizen working in Canada.

[11] The defendant stated "no problem, I'm refusing, arrest me". At 1:52 a.m., Halliday obliged. The defendant was arrested for refusing to provide a breath sample. He was processed and subsequently released from the scene. His truck was towed.

[12] Halliday was asked, in cross-examination, why he never inquired into the reason for the defendant's refusal. He said it was not his practice to ask such questions; he would instead focus on explaining to a detainee how to provide the sample, and the legal consequences that will follow if they did not comply. He acknowledged that he might ask about medical circumstances if insufficient samples were being provided, but in the present case, where he believed he was in receipt of an unequivocal refusal, he saw no need to ask.

B. Daniel Virgilio

[13] The defendant is a thirty-one year old civil engineer from Chicago. He has lived in Canada since 2014, working in the Waterloo area. On November 5, 2016, he and a friend went for dinner at "the Pub", arriving at approximately 10:00 p.m. He drank one beer before arriving, and another with dinner. At approximately 1:45 a.m., he drove his truck out of the restaurant parking lot, looking for a nearby location to park where the vehicle would not be towed. It was during this search that he was stopped by the police.

[14] The officer approached his vehicle and asked if he had consumed "any drinks today"? The defendant, interpreting the question to mean 'have you had any drinks on this particular day; i.e. since midnight', said no. He was then asked when his last drink was, and responded "about three hours ago". The officer responded sarcastically that the correct answer to his first question should have been yes. He took the defendant's documents to his cruiser, and returned with the screening device, stating that "I'm going to have you take this test". He put the mouthpiece into the unit, pushed it towards the defendant, and explained how he was to blow. The defendant, relying upon legal advice he had previously received from someone in the United States, advised the officer that he would "prefer" not to provide a sample at this time. His understanding was that he had the right to decline a sample unless he was under arrest. He had been told to use the word "prefer" if he ever found himself in such a position, and denied uttering the word "refuse".

[15] The officer presented the device again and provided "some insight and ideas into repercussions". The defendant recalled being told his vehicle would be towed, his license suspended, and a "charge on my record". The officer said nothing, at this point, about deportation. The defendant estimated that, during the entire interaction, he said that he "preferred" not to provide a sample three times. After the third, the officer pulled him to the side of the car, arrested him, and placed him in restraints. He was subsequently placed inside the officer's cruiser.

[16] While in the cruiser, the officer struck up a conversation about "the mess" U.S. politics had become. He asked why the defendant had refused, and was told that he thought he did not have to provide a sample. The defendant asked about his immigration status, and whether he would be deported. The officer said deportation would not follow such an offence. This was the first time the topic was discussed.

[17] The defendant testified that he honestly believed he was not legally required to provide a sample at the roadside. He denied ever saying the word "refuse". Had he known the law in Canada, he would have blown into the device immediately. He was acting under the misapprehension that he would have a subsequent opportunity to provide a sample at the police station.

III. WHAT ARE THE ELEMENTS OF THE OFFENCE?

[18] In R. v. Degiorgio, 2011 ONCA 527, 275 C.C.C. (3d) 1, at para. 43, Justice LaForme, writing for the Court, explained that the refusal offence contains five elements:

1. The s. 254(2) preconditions;
2. A demand is made that the individual "provide forthwith a sample of breath";
3. The individual understands the demand;
4. The individual refuses to comply with that demand; and
5. The individual does not have a reasonable excuse for non-compliance.

[19] Several of these elements are easily satisfied in the present case. The officer possessed a reasonable suspicion that the defendant was driving with alcohol in his body. The defendant clearly understood that the officer was demanding a sample of breath. Further, there is no evidence of a reasonable excuse for the defendant's lack of a sample. The key issues in this case are whether a proper demand has been made, and whether the Crown can establish, beyond a reasonable doubt, that the defendant's conduct constitutes a refusal.

A. Demand

[20] A lawful s. 254(2)(b) Code demand must follow closely on the heels of a reasonable suspicion: see Woods, supra, at paras. 13, 29-36. The language of the demand must be sufficient to convey the legal obligation being engaged – to provide forthwith a sample of breath into the roadside device suitable for a proper analysis to occur: see R. v. Torsney, 2007 ONCA 67, 217 C.C.C. (3d) 571, at para. 6.

B. Refusal

[21] A refusal may be proven by words, conduct, or a combination of both. It is a context-specific inquiry: See R. v. Cunningham, 1989 ABCA 163, 49 C.C.C. (3d) 521 (Alta. C.A.), at 533. A trier of fact must be satisfied, beyond a reasonable doubt and based on the totality of the circumstances, that an accused's words or actions demonstrate that "he is going to follow a certain course of action: see R. v. Hurley, (1980), 9 M.V.R. 46 (Nfld. C.A.), at 49; R. v. Bennett, [1997] B.C.J. No. 432 (S.C.), 25 M.V.R. (3d) 279; R. v. Bijelic, [2008] O.J. No. 1911 (S.C.J.), at para. 30.

IV. ANALYSIS

[22] The defendant is presumed innocent and bears no burden of proof in this trial. The Crown must prove all elements of the offence beyond a reasonable doubt. The defendant can only be found guilty if I am satisfied to this exacting standard on the first four of the elements from Degiorgio, listed above in paragraph 18.[1] As previously stated, the parties focused their submissions on whether the demand was lawful and whether the defendant's words and/or conduct amounted to a "refusal".

[23] I note that the narratives provided by the officer and the defendant diverge at several relevant points. Resolution of this case involves determining what facts I accept. In doing so, I expressly re-instruct myself on the burden of proof and the presumption of innocence. The question is fundamentally not which witness I believe more. This case is not a credibility contest between the defendant and the officer. The Crown must prove the case beyond a reasonable doubt; the defendant need not prove a thing. The defendant having made the decision to testify, I am guided by the jurisprudential principles that follow from the Supreme Court of Canada's decision in R. v. W. (D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 at 409:

1. If I accept any exculpatory evidence provided by the defendant, I must find him not guilty of the offence.
2. If I do not accept that evidence, but it nevertheless raises a reasonable doubt regarding an essential element, I must find him not guilty of the offence charged.
3. Finally, even if I reject his evidence, I must look to the remaining evidence to determine if the Crown has met its burden of proving this charge beyond a reasonable doubt.

[24] Having considered the entirety of the evidence, I have concluded that I do not accept the defendant's evidence, nor does it raise any reasonable doubt in my mind. I say so for the following reasons:

(1) The defendant testified that the officer took his documents to the cruiser and returned with the roadside device in hand. This was before the defendant was ever asked out of the vehicle. I do not accept that a trained officer, and this officer in particular, would have done either act in the circumstances. As I explain below, I found Constable Halliday to be an impressive witness. He was clear, concise, and knowledgeable regarding his roadside investigative powers. He testified that his practice was not to delay a sobriety-related investigation by checking the documents in the manner suggested. I accept that evidence, as it accords with common sense and the relevant "forthwith" jurisprudence: see paragraphs 2, 20 above.

(2) I further do not accept the defendant's evidence that Halliday demanded a roadside test before he exited the vehicle. Even a new officer knows to isolate the odour of alcohol before taking a subsequent investigative step. I found Halliday to far exceed a new officer, in experience and competence in this particular investigative context. There were two men in the vehicle. I do not accept that Halliday would have sought to administer a test before he determined if the odour of alcohol was in fact coming from the defendant's breath.

(3) The defendant's testimony contained multiple qualifiers – "I believe", "something along the lines of", etc. – when he explained his recollection of events. I interpret this continued language usage as a form of uncertainty, relevant to the defendant's testimonial reliability.

(4) The core of the defendant's testimony relates to his decision not to provide a roadside sample. In direct examination, he testified that he did not believe he had to provide a breath sample at the roadside. He further stated that had he known that it was against the law not to provide such a sample, he would have so provided. But, in cross-examination, he confirmed that Halliday made him aware that he would be charged criminally if he did not provide a roadside sample. I found his answers in cross-examination evasive at times as he, in my view, attempted to side-step the clear implication of that knowledge – he knew a criminal charge would follow his conscious decision not to provide a sample to Halliday. An example of an answer I found vague and lacking in credibility was when Mr. McMaster sought to re-confirm the defendant's evidence that he knew Halliday told him he would be charged criminally for not blowing. The defendant responded, "I believe that he mentioned there would be a charge, but it doesn't necessarily correlate with a failure". I found this answer a strained attempt to avoid the obvious – that the defendant knew he was compelled, by Canadian criminal law, to provide a roadside sample. His subsequent answers in re-examination did not repair his credibility on this point.

[25] On a review of the entirety of the evidence, I find that I do not believe the defendant, nor does his evidence raise a reasonable doubt regarding the events of November 6, 2016 in the early morning. As noted above, I do accept the evidence of Constable Halliday as reliable and truthful. He presented as an experienced, knowledgeable officer, clearly confident in applying and articulating the roadside testing process. He was subject to a skillful cross-examination regarding the defendant's alternative event timeline, and why he had not taken certain other investigative steps. Examples are noted above – checking the defendant's documents in his cruiser, or seeking to administer a test before isolating the smell of alcohol. I found the officer easily answered all questions in cross-examination in a manner that satisfied me he was a reliable and truthful witness. He acknowledged, reasonably, that his one response was sarcastic in tone. I did not find this sarcasm diminished his overall credibility.

[26] Halliday denied that the defendant used the word "prefer" in the place of "refuse" multiple times during their interaction. I accept his evidence that had "prefer" been offered, he would have explored what that meant with the defendant. I do not believe "prefer" was ever said, nor do I believe that Halliday would have used the term Breathalyzer, as the defendant suggests. I am satisfied that he would have used the proper term – approved screening device – in the circumstances. Further, I found Halliday's answers regarding how he approaches these investigations, and his decision not to ask the defendant why he was refusing, reasonable and believable. On the whole of his testimony, Halliday presented as a professional, truthful officer possessed of a clear understanding of the roadside testing regime. I do not accept he would have acted in the manner suggested by the defendant.

[27] In conclusion, for the sake of transparency, I am aware the Crown must prove the charge beyond a reasonable doubt. I am applying that standard to the assessment of evidence in this particular case. I do not accept the defendant's evidence, in particular for the reasons stated. Nor does it raise a reasonable doubt. I find Halliday's evidence credible and reliable, and I do accept it. It proves the defendant's guilt beyond a reasonable doubt. While part of my rejection of the defendant's evidence involves an acceptance of Halliday's evidence, that does not mean I am weighing their evidence against each other, in a fashion akin to a credibility contest. That is not the appropriate analysis: see R. v. J.J.R.D., [2006] O.J. No. 4749, 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53; R. v. R.D., 2016 ONCA 574, at paras. 14-23.

[28] I am satisfied beyond a reasonable doubt that all elements of the refuse offence have been made out. The defendant unequivocally refused to comply with a lawful demand[2] in circumstances where he fully understood the demand and did not possess any reasonable excuse. He will be found guilty of the offence.

[29] I further note that, in my view, the offence was made out even on the defendant's version of events. His words and conduct amounted to an unequivocal refusal. Use of the word "prefer" would not, in the circumstances, have avoided the clear implication of his actions – he was intentionally choosing not to provide a sample, despite knowing that a criminal charge would follow such a decision. I view the evidence relating to his U.S. based knowledge as amounting only to a professed error in law, which would not provide a defence or excuse to this particular charge: see Hurley, supra. Had I accepted or had a doubt on the basis of his evidence, it would not have precluded a finding of a "refusal". The defendant's position, that he only refused at the roadside because he expected to be given a chance later at the police station, is largely immaterial. The law did not require him to provide a sample at some point during the investigation, it required him to provide one immediately. Justice Fish, writing for the Supreme Court of Canada in Woods, makes this point plainly in paragraph 42:

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!

V. DISPOSITION

[30] For the reasons expressed above, the defendant is found guilty of refusing to provide a breath sample, contrary to s. 254(5) of the Code.

Released: December 22, 2017

Signed: Justice Scott Latimer

Footnotes

[1] The fifth element, reasonable excuse, places the burden on the defence to establish on a balance of probabilities: see review of this area in R. v. Porter, 2012 ONSC 3504 at para. 38.

[2] My initial concern regarding the sufficiency of the demand in this case was fully satisfied by a review of Torsney and a further review of the language employed by Constable Halliday when he read the demand forthwith to the defendant at 1:50 a.m.