Court File and Parties

Ontario Court of Justice

Date: 2018-11-02

Court File No.: 17-15003832

Toronto Region – Old City Hall

Between:

Her Majesty the Queen

— and —

Tedroy Gomes

Before: Justice H. Pringle

Heard on: February 5, 2018, April 20, 2018, May 22, 2018, June 7, 2018, and August 16, 2018

Reasons for Judgment released on: November 2, 2018

Counsel:

John Flaherty, for the Crown

The defendant Tedroy Gomes, on his own behalf

PRINGLE J.:

Overview of the Case

[1] Tedroy Gomes represented himself, at trial, on a charge of Failing to Provide a Breath Sample on May 11, 2017. His trial and Charter application were heard, on consent, as a blended hearing.

[2] The defendant's arrest that night was prefaced by a chaotic vehicle stop. The officers who stopped the defendant's car, PC Rossi and PC Chong, testified viva voce for the Crown. Luckily, the events of that vehicle stop were captured on the officers' scout car camera, which along with the defendant's booking video became part of the Crown's case. The defendant called evidence on the Charter application and elected not to testify on the trial proper.

The Evidence of PC Rossi

[3] PC Rossi's narrative began in the early morning hours of May 11, 2017, when he and his escort saw the defendant's vehicle make an illegal left hand turn. At 2:33 a.m., they effected a vehicle stop. The defendant was driving. This illegal turn, the vehicle stop, and the events that transpired after were all captured on the scout-.

[4] Officer Rossi and his escort, PC Chong, approached the defendant's vehicle. Rossi dealt with the passengers while PC Chong dealt with the defendant. At some point, the defendant exited his car. PC Rossi quickly moved towards him. He heard the defendant said he was going to kill himself, and, according to PC Rossi, he smelt the odour of an alcoholic beverage on the defendant's breath. PC Rossi developed the "suspicion he might be impaired by alcohol".

[5] The defendant soon became aggressive, to use PC Rossi's term, poking at his vest and threatening to use the officer's gun to kill himself with. PC Rossi called for an approved screening device to be brought to the scene. He also called for backup.

[6] At 2:42 a.m., PC Rossi read a breath demand to the accused. The moment PC Rossi chose to read this demand was not the best time to communicate anything to Mr. Gomes. The defendant continued to express a suicidal intention and, as PC Rossi acknowledged, did not appear to be listening to the demand. Accordingly, Mr. Gomes had no meaningful response to it.

[7] PC Rossi told the defendant he smelled alcohol on his breath, which did provoke a response. The defendant replied that the smell was not alcohol but Listerine. He then opened a small bottle of mouthwash and swigged from it.

[8] This occurred, according to PC Rossi's testimony, at 2:42 or 2:43 a.m. As PC Rossi acknowledged, Listerine can have an effect on breath test results. As a result, he was not in a position to take an accurate breath sample until ten minutes after the accused's Listerine consumption.

[9] At 2:45 a.m., PC Rossi read the demand again. The defendant did not respond. There was also no approved screening device on scene yet. Thus at 2:49 a.m., PC Rossi advised the defendant he was detained. He could not recall what words he used to explain this detention.

[10] PC Rossi properly gave the defendant the informational component of his rights to counsel. When asked if he understood, the defendant did not meaningfully respond. Instead, he continued to assert that he was going to kill himself.

[11] When the approved screening device arrived, Rossi demonstrated how it worked. During this demonstration, the defendant said that he was not going to do the test. PC Rossi could not remember the exact words the defendant used to refuse, but recalled talk of suicide.

[12] PC Rossi instructed the defendant to blow into the device or be charged, and the defendant refused. Again, PC Rossi could not remember what, precisely, the defendant said to verbally communicate the refusal, just that he did. More clearly, however, the defendant also placed his hands behind his back, as if waiting to be handcuffed.

[13] PC Rossi said that he brought the mouthpiece to the defendant and informed the defendant, multiple times, to blow or be charged criminally. The defendant, according to PC Rossi, kept refusing and kept putting his hands behind his back. Again, PC Rossi could not recall what the defendant said to articulate his refusal.

[14] The defendant was arrested for refusing to provide a breath sample, handcuffed and placed into the scout car. He continued to talk while in the backseat, but PC Rossi did not recall what he was saying.

[15] The officers intended to show cause Mr. Gomes, subject to their supervisory officer's opinion. Accordingly, he was transported to a police division and paraded before a staff sergeant. During the booking process, the defendant asserted suicidal thoughts and the staff sergeant directed the officers to take him to hospital. This they did. He was later released from the hospital on a Form 9.

[16] PC Rossi testified that Mr. Gomes' refusal was consistent throughout the entire chain of events. More particularly, PC Rossi said that Mr. Gomes did not change his mind about providing a sample during the booking process, or during the ride to the hospital, or while at the hospital. He maintained this position in cross-examination, specifically denying there was any change in mind after the defendant was told about administrative consequences to this charge.

[17] PC Rossi's testimony communicated the overall message that Mr. Gomes' refusal was unequivocal and continuous while in police custody. However, as the scout car video revealed, it was not.

The Evidence of PC Chong

[18] Officer Chong echoed his escort's testimony about seeing the defendant's vehicle make an illegal left hand turn. This was the only aberrant driving behaviour he saw. Upon stopping the car, he approached the defendant, who sat in the driver's seat. The defendant did not, as requested, provide his driver's licence, ownership, and insurance. Instead, he alleged police were "setting him up" and grew more and more agitated.

[19] The defendant asked to step out of the car and PC Chong permitted him to. Once out, the defendant's behaviour escalated. He asserted he was suicidal. He asked PC Chong if he wanted to shoot him or beat him up. The request for documents remained unsatisfied and, by the time PC Rossi came over to them, the defendant's behaviour was "extremely agitated".

[20] PC Chong observed no indicia of the defendant being impaired or of having consumed alcohol. Unlike PC Rossi, PC Chong did not smell any alcohol coming from the defendant's breath. He qualified this by recalling that he suffered from a cold that May evening.

[21] PC Chong was nearby when PC Rossi made the first breath demand. The defendant did not directly respond. Instead, he kept "going off" about wanting to kill himself. He said he would grab an officer's gun to shoot himself with, and asked if the officers were going to beat him or shoot him. The officers continued their attempts to convince him to give a breath sample.

[22] A Traffic Service officer arrived on scene with an approved screening device. PC Rossi demonstrated the machine's use by providing a breath sample himself. The defendant was then asked to provide a breath sample and refused, either by talking about something else or saying he was going to kill himself. PC Chong could not remember if the defendant was ever presented with a mouthpiece. He did recall that the consequences of refusing were explained to the defendant.

[23] In total, between PC Chong, PC Rossi, and another non-testifying officer, PC Chong said they asked the defendant to provide a breath sample between 5 to 7 times. The timeframe of these attempts lasted about 10 minutes, and ended with the defendant's arrest. After the defendant was placed under arrest, PC Chong provided the defendant with his rights to counsel. The defendant remained substantively non-responsive, replying only that he was suicidal. He was cuffed to the rear, placed in the back of a scout car and transported to the station. Once they arrived, he then remained in the back of that scout car, handcuffed, for over an hour while they waited for a shift change. When the defendant was finally paraded before a staff sergeant, it was 4:31 a.m. Like PC Rossi, PC Chong recalled the staff sergeant directing the defendant be brought to hospital as a result of his suicidal comments.

The Voir Dire Evidence of the Defendant

[24] The defendant elected to testify on the voir dire only. At 31 years old, he was homeless and living out of his car on the date police stopped him. He advised of undiagnosed psychiatric ailments. He added that, due to prior encounters with police, he becomes apprehensive when dealing with them. He has a criminal record.

[25] On the night of his arrest, he was driving acquaintances somewhere and stopped at a red light. A police vehicle, driving in the opposite direction, stopped to speak with the defendant, both of their windows down. At the end of this interaction, Mr. Gomes asked if he could turn left despite the prohibited left turn sign. The officer advised that he could and then she drove away, north on Yonge Street.

[26] The defendant made the illegal left-hand turn. He was then pulled over by PC Rossi and PC Chong for making that turn. Because he had been told by the prior officer it was okay, he testified, he felt he had been set up.

[27] The defendant's evidence, and written material, addressed wide-scale concerns about criminal justice system inequities which, respectfully, were irrelevant to any Charter breach specific to his case. His evidence also took issue with the arresting officers' initial decision to hold him in custody for show cause, and the inexplicably prolonged detention in the back of the scout car at the police station. He also testified that the police failed, at the scene, to take his medical concerns seriously.

[28] Mr. Gomes testified that he had a cell phone in his property bag, which he heard ringing at some point. He added that this phone call could have been from a lawyer, but also acknowledged he had not asked to use his phone or speak to a lawyer. He felt that he could not.

[29] In cross-examination, he acknowledged that Officer Rossi got close enough to be able to smell his breath. In submissions, he fairly admitted that upon seeing the illegal left hand turn, and not knowing about the original conversation he had with that first officer, officers Rossi and Chong were allowed to pull him over to investigate the illegal turn.

The Scout Car Video

[30] Finally, the arresting officers' scout car video was made a Crown exhibit. This video captured all events that took place in front of that car. Accordingly, all relevant events were recorded on audio, or video, or both. Given that the scout car video represents the best evidence of what happened, I watched it numerous times. In order to truly capture the chaotic events following the traffic stop, it is necessary to set out its' contents in some detail.

The Traffic Stop

[31] This video begins at 2:33:06 hours, while the scout car is driving southbound on Yonge Street towards Queen Street. The defendant's car is stopped at that intersection, in the inner lane facing southbound. When the arresting officers' scout car is about one-half block away from the intersection, another marked police car can be seen driving northbound on Yonge. It is unknown, because of the time the video starts, whether that other police car ever stopped close to or parallel to the defendant's car.

[32] As the arresting officers' scout car gets closer to Queen, the defendant's car can be seen stopped in the cross-walk. The intersection is clearly marked as prohibiting left turns, but his left hand turn signal is activated. When the traffic light turns green, the defendant's vehicle turns left on Queen, driving eastbound. At 2:33:50, the scout car activates its' lights and makes that same left hand turn. The defendant's car immediately pulls over, without any observable aberrant driving. Both cars remain there, parked, for approximately two minutes.

[33] At 2:35:42, officers Rossi and Chong exit their scout car. One approaches the driver's side of the car, while the other approaches the passengers. The audio is activated and almost all conversation can be heard. The defendant, from the driver's side, immediately starts talking about how an officer said she would allow him to turn left. PC Chong, at the driver's side window, requests the defendant's driving documents. The defendant, instead of complying, repeats that he was told it was okay to turn. PC Chong repeats the request for documents and this leads the defendant to repeat, three times, "Are you trying to set me up?"

[34] PC Chong maintains his request for documents. The defendant replies that he does not have them on him. His voice, during this time, has grown louder and he says he wants to step out of the car because the officer is giving him "attitude". PC Chong permits him to step out of the car, opening the door for him, and politely says he is not giving attitude but needs his driving documents. Once the defendant steps out of the car, PC Rossi comes around from the passenger side.

[35] The defendant again repeats that another officer told him he could turn left, and PC Chong repeats his request for documents. The defendant says "you guys" took them away but he is allowed to drive. He does comply with PC Chong's request for his name, but then asks if the officers are going to beat him up or shoot him. After being advised of the operating scout car camera, the defendant starts waving at the camera and shouting his name and that he is "the suicidal one". PC Rossi moves closer. The defendant quickly looks down at his chest area and says to PC Rossi, "Don't touch me". It is unclear, from the camera's vantage point, whether PC Rossi touched him or not. The defendant says he is suicidal and may kill himself because PC Rossi touched him.

[36] The defendant continues to assert that he is suicidal and that a different officer said it was okay to turn left. He is non-responsive to a request for his date of birth, instead replying that there are two guns here and he will take one of the officer's guns and shoot himself. PC Chong tells PC Rossi to get another unit on scene. PC Rossi walks away, holding a police radio. It is now 2:38:27 a.m.

[37] The defendant argues that no other unit should be called because he provided his name. He repeats his name, again, upon request. When he is asked for a date of birth, however, the defendant replies, "Why, why you want to place me under arrest?" PC Chong explains that the matter is just a traffic stop. I should note that at this point, and despite the tenor of this conversation, the defendant and PC Chong are standing face to face quite closely and their body language appears quite calm.

[38] But at 2:38:51, the defendant starts to shout about why PCs Rossi and Chong pulled him over when another officer authorized the left turn. PC Chong asks for his date of birth and this time the defendant gives it to him. He also makes a threat of suicide and references being beat up by police. PC Chong, very calmly, replies that he will not beat the defendant up. The defendant continues to talk about how police have affected him, and that he has a "diagnosis".

The First Breath Demand

[39] By 2:39:46, PC Rossi returns on camera. He tells PC Chong that he called a breath tech because he can smell alcohol on the defendant's breath. The defendant's reaction is non-responsive to this topic. He then begins to shout and swear, both about the vehicle stop and about being assaulted by police in the past. A passenger, from inside the defendant's car, verbally tries to implore the defendant not to speak to police like that.

[40] At 2:40:26 the situation escalates. The defendant shouts, "So what do you guys want to do? Put me under arrest? Put me under arrest?" He and PC Chong both raise their voices, talking over each other, with Chong saying he was stopped for a traffic stop and the defendant arguing about the other officer authorizing his turn. PC Rossi attempts to interrupt, at 2:40:45, by saying "Right now I smell alcohol on your breath". The defendant replies, in a calmer voice, "What are you going to do, shoot me?" He says that he does not have alcohol and he is "broke". He adds that it is mouthwash and he will show them the mouthwash right now.

[41] The defendant, PC Rossi, and PC Chong are, by this point, talking over each other. To make the situation more chaotic, a passenger from inside the car has stepped out and is trying to engage with the officers at the same time. All four are standing, in close proximity to one another inside the opened driver's side door area. At this point, the defendant leans into his car, unimpeded, and takes something out. He stands back up, and says in a sing-songy voice "It's mouthwash, it's Listerine, I'm addicted to mouthwash" and "That's all I'm on right now because I don't drink at all". He has a small bottle of something and appears to take a swig from it.

[42] The chaos carries on. PC Chong and the defendant continue talking, with the officer asking for his driver's licence and the defendant saying he will take his gun to kill himself with and commit suicide because of Listerine. The passenger continues, unsuccessfully, to talk the situation down with Rossi. The defendant then begins to shout, "Think about it! Think about it!" While the defendant is shouting, PC Ross decides to read him a breath demand at 2:41:30. He reads this breath demand, from the back of his memobook, to the defendant while the defendant continues to shout, while PC Chong is talking, while the passenger is talking, and with all four still standing inside the open driver's side door area.

[43] During the demand, there is a pause in the chaos and PC Rossi can be heard saying he requires a sample of breath. The defendant says, "Fuck you bro". It is unclear whether he is saying this to PC Rossi, to PC Chong, or to his friend. The defendant and his friend immediately launch into a verbal disagreement, and then the whole conversation between PC Chong and the defendant starts again, with the two of them talking over each other. No one is paying any attention to PC Rossi, including PC Chong, who is himself talking over the rest of the breath demand.

[44] At 2:42:48, in an attempt to gain the defendant's undivided attention, PC Rossi steps around to the outside of the driver's side door, with the other three men still standing inside, talking, and asks if the defendant understands he has to provide a sample. The defendant replies, "Are you arresting me for making a turn?" After being told he is not being arrested, the defendant says "You are trying to arrest me right now….for making a turn". Again, no one really pays any attention to PC Rossi or the breath demand he has made. The friend exits the situation and he and another passenger leave the scene.

[45] The situation calms down and the defendant apologizes, explaining that he has mental health issues and "is under the Mental Health Act". But he and PC Chong continue to engage about the validity of the traffic stop, and soon all three are talking over each other again.

[46] At 2:42:31 PC Rossi directs the defendant to "step over there", which happens to be the same direction a third, uniformed officer is approaching from. The defendant, perceiving this to be an attempt to arrest him, begins arguing about that . PC Chong says he just wanted Mr. Gomes' driving documents, but instead the defendant blew the situation up. PC Chong accuses him of being a suspended driver and the defendant denies it. PC Chong says he suspects the defendant has no insurance, and that is why he is claiming to be suicidal after a traffic stop.

[47] By this point, PC Rossi and the unknown officer have stepped off camera. Again, while PC Chong and the defendant continue to disagree, the situation calms down considerably. This ends when the other two officers intervene verbally. The defendant asks to speak with PC Chong alone, and directs him over to the sidewalk area. He continues to advise PC Chong that he was beaten up before by York Regional Police, and submits, calmly, to a pocket search at PC Chong's request.

[48] The other two officers again intervene, demanding the defendant's name, and the situation deteriorates once more. The defendant says he wants only to speak to the "Chinese", not PC Rossi or the other officer, because "the Chinese are my friends". PC Chong says, in reference to PC Rossi, that he has something to tell you and the defendant turns, asking PC Rossi, "Please, what do you have to tell me?"

[49] PC Rossi, after demanding the defendant's name again and being told it was given, says "I'll read the device demand again, there was a lot going on". It is now 2:43:59. The defendant interrupts him, asking to speak to Chong instead and complaining that PC Rossi is not listening to him. PC Chong says "You are blowing into, I don't know what you are blowing into, okay".

The Second Breath Demand

[50] At 2:44:04, PC Rossi makes a demand for the defendant's breath in much calmer circumstances, despite Mr. Gomes continuing to talk over him. The defendant then says, "I already refused one time before and it's not going to work." PC Rossi, persisting, asks the defendant if he understands and the defendant says, "I haven't had nothing to drink to tell you the real honest. The first thing you should be asking me is if I can walk a straight line, I'm walking a straight line" and he does it. PC Rossi advises the defendant that "We don't do that, that's TV" and the defendant turns to try and talk with PC Chong again. When PC Rossi walks closer to him, the defendant says, "I finished with you. I dealt with that charge already". PC Rossi replies, "We are waiting for an approved screening device right now, okay"? He walks off camera. It is 2:44:31.

[51] The defendant continues to talk with PC Chong about getting beaten up by York Regional Police. At the same time, an off-camera conversation takes place between PC Rossi and PC Van Hee. The two discuss the fact that the defendant drank Listerine, and agree this means they must wait ten minutes to take a valid sample of his breath. The defendant, with PC Chong, returns to the topic of being told he could turn left, of being suicidal, and of experiencing police harassment. His commentary includes the following:

Do you think a breath sample is going to stop me from killing myself?

Do you think if you put me in cuffs that I'm not going to kill myself?

You want a breath sample of me? I'm not drunk. I may be drunk on suicide but I'm not drunk on alcohol bro. Seriously not drunk on alcohol. You guys are seriously stopping me when one of you guys said I could make a turn?

PC Chong says that they have asked the defendant for two things he has not provided to them:

We've asked you for an al… a screening device, we've given you the demand, okay? It's up to you whether you do it or not.

[52] The conversation moves away from the demand and dissolves when the defendant hears his name on the police radio as being associated with violent behaviour. He begins to talk about the Minister of Justice and then asks "What do you guys want?" PC Chong repeats that he asked the defendant for his licence, insurance, and ownership. Another disjointed conversation follows, where the defendant talks about someone taking his kids and his life. This causes PC Chong to say, "I may have to arrest you now, if you don't do the breath sample". The approved screening device, at this point, has not yet arrived on scene.

[53] At 2:48:41, PC Rossi properly attempts to advise the defendant that he is being detained, given the delay in the approved screening device's arrival. He begins by saying "You are not under arrest". The defendant responds, "I'm under arrest. And before you are going to charge me for whatever you are going to charge me when you let me go I am going to kill myself in 72 hours".

[54] Mr. Gomes continues to threaten suicide, and PC Rossi's attempt to satisfy his constitutional obligations goes like this:

PC Rossi: I'm detaining you….

Mr. Gomes: You are detaining me? I'm going to kill myself

PC Rossi: Under suspicion….

Mr. Gomes: Under suspicion of suicide

PC Rossi: That you consumed alcohol.

PC Rossi: I'm going to give you one opportunity. I've asked you multiple times, will you provide me a breath sample?

Mr. Gomes: I'm going to kill myself within 72 hours.

PC Rossi then reads the defendant's right to counsel, properly, and asks if he understands. The defendant does not meaningfully respond, either to this question or to whether he wants to call a lawyer. He continues to threaten suicide because, he says, he made a wrong left turn.

The Third Breath Demand

[55] At 2:49:49 a police officer places a red case on the trunk of the scout car and opens it. The defendant, who along with Rossi and Chong are facing this officer, says:

….to try and get my breath? You guys aren't going to get that. For what. You guys really trying to get my breath? Before you ever try and take my life? You guys aren't trying to take my, you guys aren't trying to take my….

[56] He and PC Chong begin talking over each other again, and the defendant can be heard saying "I don't care for all that shit. I'm not breathing into nothing. What are you going to do, you going to beat me up? PC Chong responds that "We'll have to arrest you for refuse". The defendant continues to talk about getting beaten up and, at 2:50:18, the following exchange takes place:

PC Chong: You are not going to blow?

Mr. Gomes: I'm not blowing I'm refusing. I refused already.

[57] PC Chong advises, "He's going to ask you officially, okay, he's going to ask you officially", but the defendant just starts talking about the location of his car keys and his car windows. PC Rossi interjects and says:

Right now, before we get you, before requesting you blow, before demanding you blow, I'm going to show you how it works.

[58] At about 2:50:35, PC Rossi demonstrates the approved screening device to the defendant, who is simultaneously shouting at someone on the sidewalk about killing himself and won't listen. At 2:51:00 PC Rossi says:

PC Rossi: I have a reading of zero. Now I'm going to demand, not request, demand that you do this.

Mr. Gomes: You are demanding a request.

PC Chong (said at the same time PC Rossi is advising that if he does not, he will be charged criminally): He is making a demand. He's making a demand. Yeah.

Mr. Gomes (turns and places his hands behind his back, like inviting handcuffs): I'm going to kill myself.

[59] PC Rossi walks back to the red case, saying, "I'm going to give you a chance to do it right now". At this point, PC Chong attempts to assist, telling the continually talking defendant that "You have to listen to him". The defendant replies, "I don't need to listen. Arrest me, please wrap it up and arrest me, please just wind up my windows and arrest me". PC Chong assures Mr. Gomes that they will roll up his windows, and the defendant says, again, "I will kill myself."

[60] At the same time Mr. Gomes is saying this, PC Rossi says "I have it out, I'm giving you the opportunity to do this, it's not a choice, it's a demand" and the defendant replies, "Are you demanding that I kill myself"? The following ensues:

PC Rossi: Are you refusing to give me a breath sample?

Mr. Gomes: I'm going to kill myself. I'm going to kill myself.

PC Chong: Pay attention to him.

PC Rossi: Are you refusing to provide me a breath sample?

Mr. Gomes: I'm going to kill myself. I'm going to kill myself.

PC Rossi: Are you refusing to provide me a breath sample?

Mr. Gomes: I'm going to kill myself.

PC Chong: Can you answer his question first?

Mr. Gomes: Because you don't care about my life.

PC Rossi: I'm going to give you one opportunity. I've asked you multiple times, will you provide me a breath sample?

Mr. Gomes: I'm going to kill myself within 72 hours.

PC Rossi: Okay. (turns and puts something away in the red approved screening device case).

[61] PC Chong asks the defendant, "Do you understand the consequences of not providing a sample of your breath? By refusing, the consequences if convicted are the same as if you were convicted of impaired driving, okay so we want to give you an opportunity". The defendant, although talking, continues to be non-responsive to the topic and begins to shout.

[62] At 2:52:34, PC Rossi tells him "You're under arrest" and when the defendant says he will kill himself, responds, "You are not going to kill yourself". Moments later, while the officer with the approved screening device walks back to his car, the defendant says, at 2:52:55:

Mr. Gomes: Hold on hold on hold on. Listen. Listen. I have a friend who can move my car, can we just move my car…

PC Rossi: Nope. Car's gone.

Mr. Gomes: ….to safety?

PC Rossi: We impound it for seven days.

Mr. Gomes: Are you guys really serious?

PC Rossi (at 2:53:09): And all you had to do was provide a sample of your breath.

Mr. Gomes: (at 2:53:10) I'm not going to refuse. Okay so I'll do it.

PC Rossi: Nope, you already refused. You are under arrest for refusing to provide a (inaudible) sample of your breath.

Mr. Gomes: I'm going to kill myself. My life is done. My life is done. I'm so sorry officers, I couldn't do this for you.

PC Chong: We are going to have to take you to the hospital after we deal with this, okay?

[63] The defendant is then placed into the rear of the scout car, and the interior cameras begin to operate. Portions of this interior footage were adduced as evidence. At no time does the defendant ask to speak to a lawyer. Indeed, at 2:57:06 the defendant appears to decline the opportunity to speak to counsel.

[64] Throughout this interior camera footage, Mr. Gomes maintains he is not refusing to provide a breath sample anymore. When PC Chong tells him the arrest is for refusing to provide a breath sample, Mr. Gomes replies, "I did not refuse". The following comments and events are also of note:

• At 3:00, inside the scout car while speaking to one of the officers, he says he is not refusing and he did not refuse;
• At 3:06:19 he is weeping and saying if they take his car, they are taking his life;
• He repeats again that he did not refuse and asks for a sergeant to speak to;
• He references having a prior refuse breath sample case (which caused me some uncertainty about whether some of his roadside comments were in reference to that prior case);
• He graphically threatens suicide, as his detention in the back of the scout car continues;
• He complains, at 4:01 a.m., that the cuffs are too tight, that he is all alone, and that he feels so cold, and;
• Shortly after this, the officers refuse to permit him to stand outside and wait for the station shift change to finish, but do allow him air through an opened door.

[65] When Mr. Gomes is finally paraded before a staff sergeant, an officer says that he refused to provide a breath sample and he replies, "I did not refuse". He repeats this sentiment throughout the booking process. His suicidal comments then lead the staff sergeant to direct him be brought to hospital.

Relevant Legal Principles

[66] I will now review the law applicable to the charge the defendant faces. The essential elements that must be met, in proving the offence of Refusing to Provide a Breath Sample, are:

1. A valid demand;
2. A refusal to comply with a demand;
3. The intention to refuse that demand.

[67] In proving the first element, the Crown must establish the demand was substantively valid and supported by the requisite grounds. There are no magic words to what makes a demand valid. It must be clear. It cannot be equivocal. The words used must communicate that the detainee is not being presented with an option, but that he/she has no choice other than to provide the sample: see R. v. Torsney, 2007 ONCA 67.

[68] The Crown must prove that the accused appeared to understand this demand and deliberately refused to comply with it. There is no set formula to what constitutes an intentional refusal. It can be established through words, or actions, or a combination of both. The evidence must be considered as a whole. This means, although the Supreme Court in R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 held a detainee must comply with a breath demand immediately, as the trier of fact I must still consider the entire chain of events following the demand, including any change of mind or equivocation by the defendant.

[69] Failure to do so has occasioned an error of law. In R. v. Franchi, [1999] O.J. No. 4895, a new trial had to be ordered because the trial judge failed to consider evidence of the appellant pleading for another chance to give a sample. Hill J., sitting as a summary conviction appeals court, held at para. 15 that:

Depending on the totality of the circumstances, including the facts regarding the lack of compliance, the temporal gap between the apparent refusal/failure and the assent or further request to provide a sample, and the availability of machine and technician, the court is entitled to conclude that the subsequent assent or agreement to provide a breath sample is effectively part of a single transaction or the motorist responding to the demand: R. v. Domik (1979), 2 M.V.R. 301 (Ont. H.C.) at 307 per Grange J. (as he then was) (affirmed Ont. C.A.) March 13, 1980 (unreported)); R. v. Bowman (1978), 40 C.C.C. (2d) 525 (N.S.C.A.) at 528-9 per Macdonald J.A.; R. v. Chance (1998), 32 M.V.R. (3d) 70 (Ont. Ct. of J. – Prov. Div.) at 74-79 per Vaillancourt Prov. J.

[70] Franchi was a 'fail to provide' case, but there is still a requirement to consider any equivocation where the defendant explicitly refuses to provide a breath sample and then changes course. In R. v. Domik, [1980] O.J. No. 642 (C.A.), affirming [1979] O.J. No. 1050 (H.C.J.), the Court of Appeal for Ontario adopted the reasons of Grange J., sitting as a summary conviction appeals court where at para. 5 he held:

I do not read these cases as establishing that in all circumstances a refusal separated in time from a later assent constitutes a crime. What I do gather from the cases is that the circumstances of the refusal and assent, the time between them and perhaps the availability of technician and machine are relevant considerations. Section 235 is drastic legislation interfering with the usual rule against self-incrimination. I do not think it unreasonable for a lay person or indeed anyone unskilled in criminal law at first to react negatively to an invitation to give the police incriminating evidence. I cannot imagine that Parliament intended to make such a refusal followed almost immediately by an assent, criminal.

[71] In the case at bar, therefore, I am required to determine whether Mr. Gomes' change of mind fell within that single chain of events arising from the demand, or outside it. Drawing from Domik and Franchi, the relevant factors include:

• The time between the refusal and the consent;
• Whether the technician and the approved screening device are still on scene, and;
• The facts of the refusal.

Application of Legal Principles

[72] I begin here with the question of proof of a valid demand, including whether the requisite grounds were established. Although Mr. Gomes did not raise this issue himself, I am required to assess it.

[73] As Mr. Gomes correctly conceded in submissions, if the officers were unaware of the first officer authorizing an illegal left turn, they were allowed to stop his car and investigate the traffic offence. During the course of this traffic investigation, PC Rossi detected a smell he believed to be alcohol on the defendant's breath. They had just observed the defendant driving. These two factors grounded the officer's request for a sample of the defendant's breath.

[74] There were sufficient grounds for PC Rossi to make the demand for Mr. Gomes' breath. It is well established that the odour of alcohol, alone, can support an inference that a driver was operating a motor vehicle with alcohol in his or her body: see R. v. Lindsay, [1999] O.J. No. 870 (C.A.).

[75] PC Rossi believed he smelled alcohol coming from the defendant's breath. Even if he was wrong, and the smell was actually Listerine, PC Rossi's good faith belief that it was alcohol justified his request for a breath sample. His grounds remain valid even though no other indicia of alcohol intake was observed by either officer, or were apparent from the video.

[76] Looking at the entire chain of events, I find that the demand PC Rossi made was valid. I have reached this conclusion, despite mixed, confusing, and sometimes equivocal messages from one or both officers to Mr. Gomes, such as:

• PC Rossi's initial decision to read the first breath demand while three other people, including his escort, were talking and shouting, and at a time when the defendant was clearly not paying any attention;
• PC Chong's characterization of the demand as "You (to) blow into, I don't know what you are blowing into";
• PC Chong communicating that Mr. Gomes could choose whether or not to comply with the demand when he said "We've asked you for an al…a screening device, we've given you the demand, okay? It's up to you whether you do it or not";
• PC Chong explaining the consequences of refusing to provide the sample as being the same as impaired driving but contingent on conviction;
• The tendency of both officers to talk over one another while giving important information to Mr. Gomes, such as the original breath demand, or PC Rossi explaining criminal consequences while PC Chong was also speaking to the defendant about the demand;
• PC Rossi's use of the word "request" instead of demand, although he quickly corrected it, and;
• The defendant's obvious lack of attention during the first demand.

[77] While there may be aspects of this process that, individually considered, are problematic, when I look at the evidence as a whole, it is clear that shortly after 2:44:04, the words used by PC Rossi communicated the nature of the demand to the defendant.

[78] This was then affirmed by Mr. Gomes' words and actions. The defendant knew PC Rossi was demanding a sample of his breath, because he re-articulated this back to him, saying, "You want a breath sample of me? I'm not drunk". He also understood he would be arrested if he did not give PC Rossi a sample of his breath. Even taking all the assertions of suicide at face value, and I do not mean to minimize them, the defendant physically invited handcuffing and verbally invited his own arrest. The consequences were clear to him.

[79] The breath demand, despite its problematic elements, was validly made when all of the circumstances are considered as a whole. The defendant understood this demand. He clearly refused to comply with it more than once. However, this does not end my analysis. I must consider whether the defendant's change of heart, moments after his arrest, was part of a single transaction of response to the demand, or falls outside it.

[80] I preface this analysis by noting that PC Rossi denied the defendant had any change of mind or heart at all. He denied that the defendant, after being informed of the administrative consequences, said he would comply. This was obviously incorrect. He testified there was no change of heart in the scout car or during booking. This was also incorrect.

[81] PC Rossi's evidence, on this point, differed materially from the scout car footage. I accept the scout car video as the true and accurate version of events. I have drawn no negative inference from PC Rossi's inconsistent testimony on this point. His viva voce evidence reflected a number of failed recollections, such as his ability to remember what words the defendant said to communicate his refusal. It is possible this inconsistency was due to his inability to recall.

[82] That said, the reason why his evidence differs matters not, in the final analysis. I accept the video captured a true and accurate version of events. I accept its contents, where it differs from any of the viva voce testimony. This video shows the defendant did, in fact, change his mind. He clearly indicated he would give a breath sample. Pursuant to R. v. Franchi, then, this is an issue I must resolve.

[83] At the close of argument, I invited submissions about the defendant's offer to comply with the demand, given the Court of Appeal's explicit direction, in R. v. McGibbon, 31 O.A.C. 10, to raise such issues for a self-represented accused. The Crown submitted that in the absence of any trial testimony from the defendant, a positive finding of fact on this issue could not be made on the video alone. He also submitted that the last minute offer to comply with the demand was insincere, as is found in cases like R. v. Kitchener, 2012 ONSC 4754.

[84] Respectfully, I disagree. To begin, there is no evidential burden on the defendant to call trial evidence on the point. This issue does not raise the doctrine of "reasonable excuse" law. The question of whether an accused has refused to comply with a demand, or not, remains the Crown's burden to discharge beyond a reasonable doubt.

[85] I am of the view that the video amply suffices for me to make finding of facts on this issue. After repeatedly reviewing the scout video, I believe that the defendant's offer to comply was entirely sincere. This was evidenced in the defendant's palpable change of tone and language. When he realized his car would be impounded, the defendant clearly changed his mind and honestly offered to comply. The only reason why he did not provide a sample, ultimately, was because PC Rossi told him it was too late.

[86] Turning to the factors that Hill, J. directed be considered in determining whether this change of heart fell within a single transaction or outside it, I find the offer to provide a breath sample was part of a single transaction.

[87] Firstly, the period between refusing to comply and offering to comply was temporally brief. It happened at the scene of the vehicle stop on Queen Street. The first clear demand occurred at 2:44:04. The second clear demand occurred at 2:51:00. The defendant was arrested at 2:52:34. He offered to provide a breath sample at 2:53:10. His offer to comply came thirty six seconds after his arrest, or two minutes and ten seconds after the last demand, which PC Chong characterized for him as the "official" demand. This was not an offer made for the first time at the police station, although he did repeat it there too. It was made, on scene, either within or very close to the ten minutes that PC Rossi had to wait to obtain a valid breath sample.

[88] Secondly, the approved screening device was still on scene, or seconds away from the scene, at the time the defendant offered to comply with the demand. This conclusion is clear from reviewing the scout car video. The opportunity to provide a breath sample was still live, and the defendant would have reasonably known this when he offered to comply.

[89] Finally, the facts of the refusal support the defendant's change of heart as being real. As stated above, there was a discernable difference between the defendant's tone and attitude when he refused and when he offered to comply. His demeanour and commentary, in the scout car before, during, and after transport, supported this conclusion further. Alone inside the scout car and talking to himself, Mr. Gomes links losing his car and losing his life, showing the sincerity of his offer to give a sample right after learning he would lose his car. He also maintained that, during his booking process, he was not refusing to provide a sample.

[90] Additionally, the circumstances under which the demand was given were confusing and, at times, equivocal. I rely on, without repeating, the factors enumerated in paragraph 76. I appreciate that a significant degree of confusion was driven by the defendant's own misbehaviour. But similarly, at times the officers were responsible for communicating a confusing and equivocal message about the breath demand. While their overall message was clear when I considered the evidence as a whole from start to finish, the defendant's earliest refusals must still be interpreted in this context.

[91] In consideration of all the circumstances, including the defendant's offer to provide a breath sample while still on the scene, I have more than a reasonable doubt that the Mr. Gomes refused to provide a breath sample in law. Accordingly, he must be acquitted.

A Postscript

[92] Given my conclusion on the trial proper, I have not meaningfully resolved the defendant's Charter application in my reasons for judgment. I should add that many of the defendant's submissions raise issues outside the jurisdiction of this court and outside the facts of this one case. I cannot assist him, respectfully, with many of the issues raised in his Essays on Social Responsibility.

[93] With respect to the defendant's s. 10(b) argument, there was no breach in the police failure to provide the defendant his cell phone. The defendant's voir dire testimony did to establish that he requested a lawyer when asked. Neither did it establish him requesting to use his cell phone. Inside the scout car, he appears to waive his right to counsel. It is arguable whether s. 10(a) was breached in this case. PC Rossi advised the accused he was detained on suspicion of having consumed alcohol, which is not an offence. However, given my decision on the merits of this case, I have not considered the issue further.

[94] Mr. Gomes submitted he was arbitrarily detained from medical care. On this evidence, however, police did provide medical assistance to the defendant, eventually, and he was transported to hospital. On scene, he presented no immediate medical concerns, from my review of the video.

[95] Mr. Gomes argued that the officers should have released him, from the roadside scene, on a Form 9 promise to appear. With respect, I see no basis to second guess the officers' initial decision to hold Mr. Gomes for show cause, given his criminal record. A roadside release was impossible, given the volatile scene largely generated by the defendant's behaviour, as well as his threats of suicide and the resulting need to take him to hospital.

[96] Finally, the defendant's prolonged, unnecessary detention in the back of the scout car, for well over an hour, windows rolled up for most of the time, while he sat handcuffed to the rear, periodically weeping, was not appropriately explained by the wait for a shift change. Even if the defendant presented with absolutely no mental health issues, the experience had to be disturbing for any human being. That said, I have not considered whether the circumstances of this detention occasioned a specific Charter breach and, if so, whether this was one of the clearest of cases as to merit a stay. I need not resolve this issue, given that the defendant must be acquitted on the merits of the charge.

Released: November 2, 2018

Signed: Justice H. Pringle