Court File and Parties

Ontario Court of Justice

Date: 2018-02-02

Court File No.: Brampton 3111 998 16 8662

Between:

Her Majesty the Queen

— and —

Herman McBean

Before: Justice G. P. Renwick

Heard on: 05 October 2017 and 26 January 2018

Reasons for Judgment released on: 02 February 2018

Counsel

G. Gill — counsel for the Crown

A. Craig — counsel for the defendant

Reasons for Judgment

Introduction

[1] The defendant is charged with failing to provide a roadside breath sample into an approved screening device ("ASD"). He testified that he was unable to provide a sample due to panic attacks he has experienced for many years, which had remained undiagnosed until after he was charged with this offence.

[2] This trial was very brief: it only lasted about three hours. On the first day, the prosecution called two police witnesses and the defendant testified. On the second day, an agreed statement of facts was filed and submissions were made. The sole issue for my determination is whether or not the Crown has proven the elements of the charge beyond a reasonable doubt and if so, has the defendant established a defence of reasonable excuse.

The Evidence

[3] I do not propose to recite all of the evidence taken during this brief trial. I have taken copious notes and I have reviewed portions of the digital recording of this trial. I have taken into account all of the evidence in coming to my decision in this matter. I will note the salient parts of the evidence in this section.

[4] Much of the evidence was not contested. Two different police officers dealt with the defendant at a R.I.D.E. spot-check. Each testified that the defendant flatly refused to submit to the roadside breath sampling procedure.

[5] Sergeant Ramirez was the first officer who dealt with the defendant. He approached the defendant's truck and he advised the defendant that he was conducting sobriety checks. Almost immediately, the sergeant said that he detected alcohol on the defendant's breath which caused him to suspect that the defendant had consumed alcohol prior to driving. He also observed that the defendant's eyes were red-rimmed and bloodshot. The sergeant made the appropriate demand for a sample of the defendant's breath into an ASD. The defendant indicated that he would comply. When the defendant opened the driver's door to get out of his truck, the officer observed that he was missing his left shoe. After replacing his shoe, the defendant followed the sergeant to his police vehicle. There, the breath sampling procedure was demonstrated by the sergeant who used the ASD to perform a self-test. The sergeant determined that the ASD was working properly since he had not consumed any alcohol and the device confirmed this.

[6] When it was the defendant's turn to perform the breath sampling he told the sergeant "no, I am not blowing." The sergeant says that he gave the defendant three chances and each time he was told "no, I am not blowing." The sergeant cautioned the defendant that he could be charged for refusing to provide a sample of his breath and the defendant repeated the same thing. The sergeant became concerned with how much time he was spending with the defendant instead of supervising his team and he decided to turn the defendant over to Constable Hammond to see if he might be able to obtain a roadside breath sample from the defendant.

[7] Constable Hammond testified that Sergeant Ramirez explained that the defendant was refusing to blow into the ASD and he had smelled alcohol on the defendant's breath. Constable Hammond confirmed that he could also smell alcohol on the defendant's breath. He too read the appropriate demand and the defendant appeared to understand what was being requested of him. The defendant responded "I respect you officer, but no." Constable Hammond was relatively inexperienced and other than this initial response to the breath demand, he did not note what the defendant said in refusing his five opportunities to provide an ASD sample. Constable Hammond simply recalled that the defendant said "no." He also testified that at some point the defendant also told him that he had a medical respiratory issue. The officer testified that he did not observe the defendant to have any apparent breathing difficulties, nor did the defendant give him any explanation of what the problem was. As well, the defendant never sought a puffer and none was found on him during the search subsequent to his arrest.

[8] The defendant testified that he had been at a wedding. His wife was drinking but he was not. I took this to mean he had consumed no alcohol, although he sold tickets for the bar. The defendant explained that he had told the officers that he could not perform the test, not that he would not perform the test. He testified that he told both officers he had breathing troubles and stomach pain. He also said that if this was going to be a problem he wanted to speak to a lawyer. The defendant explained that he was hoping that the lawyer could explain his situation and an accommodation could be reached.

[9] The defendant testified that he had suffered attacks similar to the one he experienced on this occasion in the past and had simply calmed down and allowed them to subside. They usually only lasted for less than an hour, but this attack lasted for several days. On this occasion the defendant claimed that he felt dizziness, an increased heart rate, chest pain, stomach pain, leg shakes, and trouble breathing. The defendant testified that notwithstanding that he had been suffering these attacks since he was a child, he did not know what was causing these symptoms and he did not seek medical attention until three months after being charged. He now believes that he suffers panic attacks and he takes medication to relieve his anxiety. The defendant testified that he was having trouble breathing when he was asked to do the breath testing and it was not outwardly obvious because it was an internal condition.

[10] In cross-examination, the defendant admitted that during his episode he was still able to walk, talk, drive, perform basic physical tasks and breathe. He says he asked the sergeant for a few minutes because he was having a respiratory issue. When directly asked in cross-examination if he was able to breathe when dealing with the police that night the defendant replied, "fairly well" but he had a feeling of loss of breath. When asked if he had mentioned needing some time to Constable Hammond the defendant admitted he had not. The prosecutor asked the defendant why he never attempted to provide a sample of his breath into the ASD. The defendant indicated that he felt that he was unable to and wanted to avoid further discomfort.

[11] In re-examination the defendant testified that he has actual breathing difficulty during an attack, his chest feels empty and he struggles to inhale and exhale.

[12] A Statement of Admissions became Exhibit 1 on the trial. The exhibit establishes that the defendant went to see his family doctor three months after he was charged. The doctor referred the defendant for x-rays and to see a respirologist and "no medical cause for his breathing difficulties was found." The physician "tentatively diagnosed Mr. McBean with panic attacks but wanted to refer to him [sic] a psychiatrist to put him through DSM V testing because he is not an expert and could not confirm the diagnosis." The doctor prescribed the defendant Paxil, an anti-depressant and anti-anxiety medication. When taking the drug the defendant reports that his symptoms improved and when he fails to take the medicine, he reported having "palpitations, sweating, and ongoing thoughts of recurrence."

Findings of Fact

[13] I am aware that I can accept some, none, or all of what a witness says. Agreed facts, on the other hand, are accepted by the parties as proven. I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to subject the defendant's testimony to greater scrutiny because of his role in the proceedings. That would be unfair and it would completely undermine the presumption of innocence, which does not shift from the defendant unless and until the prosecution has proven the charge beyond a reasonable doubt.

[14] I accept most of the testimony of Sergeant Ramirez. He was very matter of fact about his role and what took place that night. The defendant's main quarrel with this witness' evidence is that the sergeant denied that the defendant mentioned any respiratory problems as a reason for his inability to conduct the breath screening.

[15] Based upon my understanding of the evidence, I made the observation during the submissions that the sergeant did not seem to have much of an independent recollection outside of his notes. But I accept that he would have made a note if the defendant had articulated any difficulty breathing or a medical reason for refusing the ASD screening. I found this witness to be credible, based upon the following: the officer's apparent appreciation for the defendant's jeopardy,[1] his demeanor while testifying,[2] the consistency of his testimony, the fact that there were parts of his evidence that were corroborated by Constable Hammond, and the fact that the defendant admitted much of what this evidence was adduced to prove.

[16] Constable Hammond was also believable and I accept that he was truthful during his testimony. The officer was candid that he could have taken better notes with respect to the defendant's utterances. Again, it would seem that the defendant does not challenge this officer's evidence, because this testimony supported the defendant's evidence that he told the police that he was experiencing difficulties which prevented him from fulfilling the breath screening demand.

[17] I accept much of what the defendant said with respect to his history of anxiety episodes. He was candid that he can breathe and perform many physical tasks despite the discomfort he feels inwardly. I specifically reject the defendant's evidence that he told Sergeant Ramirez he could not blow into the device because he was experiencing respiratory issues, and that he had not consumed any alcohol prior to being stopped by the R.I.D.E. spot-check.

[18] I reject these portions of the defendant's evidence for two reasons:

i. I completely accept Sergeant Ramirez' evidence that if the defendant had given any medical reason for his inability to perform the breath screening, he would have noted this. I accept this portion of the officer's evidence without hesitation because the sergeant was balanced in his evidence; he spoke positively about his interactions with the defendant; he was trying to be fair by seeking Constable Hammond's assistance to convince the defendant to provide a breath sample, and he appeared to appreciate the significance of these types of utterances from defendants; and

ii. Both police officers testified that they smelled alcohol on the defendant's breath, and I believed this evidence. Given that there was no admission of consumption of alcohol by the defendant, the "strong odour of alcohol" was the sole reason the sergeant made the ASD demand.

[19] There is no dispute among the parties that the police were in an appropriate position to make a lawful demand for a roadside sample of the defendant's breath into an ASD. I find that the demand made by both officers was lawful, but for different reasons. Constable Hammond never testified that he had seen the defendant driving a motor vehicle. His demand was simply a continuation of the lawful demand made by Sergeant Ramirez. By turning the defendant over to Constable Hammond the sergeant was providing the defendant more time to consider his position and further opportunities to comply with the lawful demand.

[20] I find that the police were using an ASD that was properly operating. I accept the officers' evidence that the use of the ASD was demonstrated to the defendant. I accept Sergeant Ramirez' evidence that the ASD requires four to five seconds of breath, uninterrupted. He testified that it does not take much effort to blow into the device and I accept this evidence.

[21] I find that the defendant outright refused to comply with the numerous, successive demands of two police officers for a roadside breath sample. I accept Sergeant Ramirez' evidence that the defendant did not offer any reason for his refusal, and the sergeant did not ask for one. The sergeant testified that he did not want to be a "bugger" or to annoy the defendant. And although Sergeant Ramirez generally had a poor recollection of things that were not recorded in his notes, I believe him when he says that if he were told of any medical or mental difficulties these would be "very significant" to him and he would have made notes to that effect. I reject the defendant's evidence that he told the sergeant of his respiratory difficulties because the defendant admits that he spoke with several officers that night and he may have simply confused what was said to each one.

[22] I do accept the defendant's evidence that he told Constable Hammond that he was having respiratory issues when he refused to submit to the breath screening procedure. Constable Hammond did not note exactly what he was told, but he remembered that the defendant identified that he had a "medical respiratory issue."

[23] I find that the defendant was nervous and suffering anxiety when he was asked to provide a breath sample into the ASD. I find that the defendant was suffering some physical discomfort, but he was able to walk, talk, drive, and perform basic physical tasks.

[24] In terms of the medical evidence, it is wanting. There is no medical reason that proves that the defendant could not perform the roadside breath screening. Exhibit one is clear that there is no medical cause for the defendant's "breathing difficulties." The family doctor's diagnosis of "panic attacks" is only "tentative" because the doctor acknowledges his limitations in diagnosing this condition. I accept that the defendant is now aware that he suffers from anxiety and he now takes medication which affords him some relief.

Applicable Legal Principles

[25] As always, the burden rests upon the prosecution to satisfy the court that the allegation and all necessary elements of the offence have been proven beyond a reasonable doubt. If the prosecution fails in any respect, the presumption of innocence is not displaced and the defendant is to be acquitted.

[26] Proof beyond a reasonable doubt lies much closer to proof to an absolute certainty than it does to proof on a balance of probabilities.[3]

[27] Where there are credibility issues at play in determining whether or not the prosecution has met its burden of proof, I must apply the principles articulated by the Supreme Court of Canada in [R. v. W.D.][4] as applied by subsequent cases and explained by academic commentary:

i. I cannot properly resolve this case by deciding which conflicting version of events is preferred;

ii. If I believe evidence that is inconsistent with the guilt of the defendant, I cannot convict the accused;

iii. Even if I do not entirely believe the evidence inconsistent with the guilt of the defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the defendant must be acquitted;

iv. Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

v. Even where I entirely disbelieve evidence inconsistent with guilt, the defendant should not be convicted unless the evidence that is given credit proves the defendant's guilt beyond a reasonable doubt.[5]

[28] In respect of the specific allegation before the court, the law is clear:

If the express "refusal" is knowing and conscious (assuming that s. 254(5) enacts a crime of general intent and not a crime of specific intent, a point that I will discuss shortly), then the Crown will have proved the essential elements of the offence and any explanation will only excuse if it amounts in law to a "reasonable excuse."[6]

[29] The defence of "reasonable excuse" is discussed by Doherty J.A. in [R. v. Moser][], [1992] O.J. No. 602 (C.A.) at p. 15:

The presence of a danger to the health or life of a suspect which cannot reasonably be known to the officer making the demand cannot affect the validity of the demand for a breath sample, but that ignorance does not alter the fact that Parliament did not contemplate the taking of breath samples in circumstances where that process posed a real risk to the life or health of the suspect. To criminalize a refusal to provide a sample in such circumstances is to say that the suspect had an obligation to provide the sample and thereby imperil his life or health despite Parliament's clear intention to exclude that obligation where the performance of it could seriously compromise the life or health of the suspect.

The criminal sanction imposed for refusing to provide a breath sample should reach only those cases where the statutory provisions recognize an obligation to provide that sample. The obligation imposed by s. 254 stops short of requiring a suspect to risk his life or possible serious injury in order to comply with the demand.

[30] A "reasonable excuse" must be established by the defendant on a balance of probabilities: [Moser][], supra, at pp. 7-8; [Porter][2012 ONSC 3504], supra, at para. 38.

[31] Roadside statements may not be used by the prosecution to impeach the credibility of a defendant or to incriminate her generally: [R. v. Rivera][2011 ONCA 225], [2011] O.J. No. 1233 (C.A.) at paras. 97 and 107. These types of admissions may properly be used to prove the actus reus of the offence of refuse a roadside breath screening: [R. v. Bleta][2012 O.J. No. 944 (S.C.J.)], and a voluntariness voir dire need not be held: [Rivera][2011 ONCA 225], supra, at paras. 92, 101-103, and 107.

Positions of the Parties

[32] The defendant submits that he never made an unequivocal refusal to comply with the breath demand, he simply wanted to speak to a lawyer before complying. As well, the defendant submits that he had a reasonable excuse for refusing the breath testing and he ought to be acquitted of the charge.

[33] The defendant relies upon Justice Code's summary conviction appeal decision in [R. v. Mandryk][2012 O.J. No. 3349 (S.C.J.)] at para. 54 for the proposition that "a definitive refusal can only be established once the accused, who is seeking access to counsel's advice, has received it at the police station and has then refused, or has confirmed an earlier refusal, to provide a sample."

[34] The prosecution asserts that the defendant's refusals were absolute and unequivocal and constituted the offence. Moreover, the excuse offered is not reasonable and it fails to establish that the defendant was unable to comply with the breath sampling on a balance of probabilities.

Analysis

[35] The evidence clearly establishes that the defendant did not comply with a valid and lawful demand for him to provide a sample of his breath into an ASD. The actus reus of the offence is proven, beyond a reasonable doubt.

[36] With respect to the mental element, I am persuaded (and indeed, bound) by the summary conviction appeal decision of Justice Code in [Porter][2012 ONSC 3504]. The offence of failure to provide a breath sample at the roadside is a crime of general intent. The mens rea of this offence is "knowledge or awareness of the prohibited act:" [Porter][2012 ONSC 3504], supra, at para. 37.

[37] Has the prosecution proven beyond a reasonable doubt that the defendant knew that he was not providing a sample of his breath? There is no question that the defendant knew this. I rely upon the following exchange during his cross-examination:

Q. But, you didn't make any attempts to see if you could perhaps provide a sample, right?

A. No, I did not.

Q. Ok, why was that?

A. Because I felt I was unable to at the time. Because of my discomfort, I was trying to avoid any other circumstances, situations.

Q. You just wanted to avoid further discomfort?

A. Yes.

[38] The defendant made a decision not to provide a sample of his breath. I find that this evidence proves the necessary mental element of this offence, beyond a reasonable doubt.

[39] Implicit in my findings is my rejection of the defendant's evidence that he could not provide a sample of his breath into the ASD. The evidence I have rejected does not leave me with any residual reasonable doubt about the defendant's ability to comply with the breath demand.

[40] This was not a situation that required the defendant to make a choice between refusing a breath screening demand or risking "his life or possible serious injury in order to comply with the demand:" [Moser][], supra, at p. 15. At most, the defendant's condition was a temporary physical discomfort and psychological stressor.

[41] In submissions, counsel for the defendant referred to Justice Code's decision in [Mandryk][2012 O.J. No. 3349 (S.C.J.)] to negate the proof of the actus reus. According to this argument, the defendant had never definitively refused to provide a breath sample, and he specifically requested an opportunity to consult counsel.

[42] The defendant's reliance on the decision in [Mandryk][2012 O.J. No. 3349 (S.C.J.)] is misplaced. Firstly, in [Mandryk][2012 O.J. No. 3349 (S.C.J.)], the defendant had submitted to a roadside screening and failed. He was placed under arrest and given a demand for a breath sample into an approved instrument. Despite his position, locked within the back of the police cruiser, in response to the demand the defendant claimed that he would not accompany the police for that purpose. He was charged for the refusal to accompany the police for the purpose of taking a breath sample for an analysis to be made of the concentration of alcohol, if any, in his blood. In that context, there is no doubt that a motorist has the right to consult counsel before submitting to a breath test. However, that is not the case before me. The law is well settled that the defendant's right to counsel is suspended at the stage of the initial investigation.

[43] Again, I rely upon Justice Code's decision in [Bleta][2012 O.J. No. 944 (S.C.J.)], supra, at para. 5:

…the accused's s. 10(b) right to counsel, under the Charter of Rights and Freedoms, is effectively suspended while the police conduct brief sobriety tests and inquiries. This suspension of rights is due to the operational necessities of various statutory and common law roadside sobriety testing regimes which are s. 1 "reasonable limits" on the driver's Charter rights. The quid pro quo for this suspension of Charter rights is that the incriminating results of these tests and inquiries have limited admissibility at a subsequent trial and can only be used to provide the grounds for an arrest and for a breathalyzer demand pursuant to s. 254(3). See: [R. v. Elias and Orbanski][2005 SCC 37], 196 C.C.C. (3d) 481 at para. 58 (S.C.C.); [R. v. Milne][], 107 C.C.C. (3d) 118 (Ont. C.A.); [R. v. Coutts][], 136 C.C.C. (3d) 225 (Ont. C.A.).

[44] Secondly, I reject counsel's submission that the defendant's refusal was not unequivocal. His evidence is clear on this point. He was refusing to comply with the breath screening demand because he felt discomfort, not because he was trying to exercise his constitutional right to counsel. Even if I accept that the defendant mentioned a desire to speak to a lawyer, the police were under no duty to provide the defendant an opportunity to exercise his rights to counsel at this stage. The law stated by Justice Code in [Mandryk][2012 O.J. No. 3349 (S.C.J.)] has no applicability to this case.

[45] On all of the evidence I do accept, I am convinced beyond a reasonable doubt that the defendant committed the actus reus of the offence with the required mens rea, or intentional state of mind.

Defence of Reasonable Excuse

[46] To some extent, I have already considered the reasonableness of the defendant's refusal to comply with the s. 254 demand.

[47] I have considered the evidence of the defendant and the medical evidence provided by Exhibit 1. Given the uncontested evidence of the defendant that he has experienced anxiety in various situations and to various degrees since he was a child, I find that there is an air of reality to the defence. If I was not satisfied that there was an air of reality to this defence, that would have been the end of the inquiry. However, given this finding, I must consider whether the excuse offered by the defendant for refusing to comply with a valid demand for a breath screening was reasonable on a balance of probabilities. If I find that the defence is reasonable, I must then consider whether the prosecution has satisfied me beyond a reasonable doubt that the defence of reasonable excuse does not apply.

[48] I find that the defence advanced in this case is not reasonable for the following reasons:

i. The medical evidence fails to establish that the defendant has any respiratory issues. According to the Statement of Admissions, the defendant was referred for x-rays and to a respirologist. "No medical cause for his breathing difficulties was found;"

ii. Even if I accept that the defendant suffers significant anxiety attacks, which the medical evidence does not establish beyond a "tentative" diagnosis, the medical evidence does not corroborate the defendant's evidence that he could not perform the breath sampling. If there were evidence from a respirologist attesting to the defendant's limited ability to exhale during his anxiety episodes, that may have established the reasonableness of this defence, but no such evidence was produced;

iii. The defendant's evidence that his symptoms were not observable because they were internal undermines his evidence that he could not breathe properly. One would expect there to be some outwardly observable signs of a significant respiratory issue. At the very least, one would expect to see that the defendant was in some kind of distress. Neither officer saw any distress or difficulty breathing on the part of the defendant. There is no evidence that the defendant was hyperventilating, either; and

iv. Mere physical discomfort is not a reasonable excuse as that term is discussed by Justice Doherty in [Moser][], supra. Again, the medical evidence falls short to establish any risk to the defendant's health had he complied with the lawful ASD demand.

[49] While I accept that there would be some anxiety produced by going through a R.I.D.E. spot-check there is no evidence to explain why the defendant was so gripped by dread that he claims that he could not perform the ASD screening. In other words, his evidence in this respect was implausible and it does not even raise a reasonable doubt in terms of the actus reus, the mens rea, or the defence advanced in this case. Had this been a case where the defendant had attempted to perform the ASD screening, there may have been some evidence with which to evaluate the limitations to his breathing that the defendant claims to have had. Medical testing could also have assisted to make the excuse reasonable. Without any such evidence, the defence does not leave me with any reasonable doubt.

Conclusion

[50] I am satisfied beyond a reasonable doubt that the defendant could have provided a sample of his breath into the ASD and for reasons known best to him he refused a lawful demand without any reasonable excuse.

[51] Herman McBean, I find you guilty of this offence as charged.

Released: 02 February 2018

Justice G. Paul Renwick

Footnotes

[1] I will say more about this below, but it was obvious that the sergeant was trying to give the defendant every opportunity to complete a roadside screening.

[2] I do not place great weight on this consideration. Despite the dangers, triers of fact are not prohibited from reliance upon the manner of a witness' presentation: [R. v. N.S.][2012 SCC 72], [2012] S.C.J. No. 72, at para. 25.

[3] [R. v. Starr][2000 SCC 40], [2000] S.C.J. No. 40 at para. 242.

[4] [][], [1991] S.C.J. No. 26.

[5] The Honourable Mr. Justice David M. Paciocco, "Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment" (2017) 22 Can. Crim. L. Rev. 31, at p. 72.

[6] [R. v. Porter][2012 ONSC 3504], [2012] O.J. No. 2841 (S.C.J.) at para. 31, per Code J. acting as a summary conviction appeal court.