Court File and Parties

Ontario Court of Justice

Date: 2020-01-24

Court File No.: Ottawa 19-A7701

Between:

Her Majesty the Queen

— and —

Dario Wharton

Before: Justice P.K. Doody

Heard on: January 3, 2020

Reasons for Judgment released on: January 24, 2020

Counsel

Sabrina Goldfarb — counsel for the Crown

Michael Smith — counsel for the defendant

DOODY J.:

Introduction

[1] Dario Wharton is charged with refusing to provide a suitable sample of breath to enable a proper analysis to be made by means of an approved screening device at the roadside, contrary to s. 320.15(1) of the Criminal Code.

[2] There is no issue with respect to the propriety of the demand. The defendant did not contest that the officer had a reasonable suspicion that Mr. Wharton had alcohol in his body when he demanded that he provide a sample of his breath and that he made a lawful demand. Nor is there any issue that Mr. Wharton did not provide a sample. The defendant submits, however, that he did not carry out the actus reus, and did not have the necessary mens rea, because his response to the officer's demands that he provide a breath sample was that he wanted to speak to a lawyer.

[3] I do not accept that submission. I have concluded that the Crown has proven all of the elements of the offence beyond a reasonable doubt. These are my reasons why I have reached that conclusion.

Facts

[4] On January 13, 2019, the defendant was driving westbound on Besserer Street, having turned onto that street after driving southbound on Cumberland Street. Both streets are one way in the opposite direction from that driven by the defendant. Cst. Stewart was following him in a police cruiser. He signalled him to stop. Cst. Stewart approached Mr. Wharton's car and detected a faint odour of alcohol. He asked Mr. Wharton if he had been drinking, and the defendant said that he had not. Cst. Stewart testified that, at this point, he had not formed a reasonable suspicion that the defendant had alcohol in his body because the odour was slight and both those streets are confusing in the way that they become one way for short stretches.

[5] Cst. Stewart asked Mr. Wharton for his driver's licence. Mr. Wharton asked him to repeat himself. The radio in Mr. Wharton's car was loud. Cst. Stewart asked him to turn it down and repeated his request. Mr. Wharton fumbled in his pockets and handed him his cell phone. Cst. Stewart told him that he wanted to see his driver's licence. He found it and provided it. Cst. Stewart then asked him for the car registration and proof of insurance. He provided them.

[6] Cst. Stewart then formed a reasonable suspicion that the defendant had alcohol in his body. That suspicion was a result of all the circumstances – driving the wrong way, the odour of alcohol which persisted while he was dealing with the defendant, the unusual failure to turn down the radio after being stopped by a police officer, Mr. Wharton having handed him his cell phone instead of his licence, and his having to fumble about to find his driver's licence. I accept Cst. Stewart's evidence on these points.

[7] The defendant testified and did not differ about these points, except that he said he gave the officer his cell phone after the officer demanded he provide a sample of his breath and he explained that he fumbled for his licence because he was wearing a winter coat over a blazer and it took him some time. Nothing turns on these points. The officer had a reasonable suspicion even if the defendant had not handed him the cell phone before he formed the suspicion. The fact that there was a reasonable explanation for one of the bases of the suspicion does not eliminate it from all of the circumstances that the officer must consider before determining whether he has a reasonable suspicion.

[8] Cst. Stewart demanded that Mr. Wharton provide a sample of his breath, using the language set out in his notebook. There is no issue with the adequacy of that demand. The defendant said that he did not understand. Cst. Stewart told him that he had to accompany him to the cruiser where he had to use an approved screening device to measure the amount of alcohol, if any, in his blood.

[9] The defendant sat in the back seat of the cruiser. The door was open and the defendant was sitting facing out, with his legs extending out of the cruiser. Cst. Stewart demonstrated how the device worked by blowing into it himself, producing a zero result. He explained to the defendant that this meant that the device was working properly. He showed him that he had to make a tight seal around the mouthpiece with his lips and blow into it, continuing until he told him to stop.

[10] Cst. Stewart told him that he had made the demand and that the defendant only had two options – he could either provide a sample or not, and if he did not do so he would be charged with a criminal offence. He told him that he would not necessarily be committing an offence if the test showed that he had some alcohol in his blood – that he was allowed to have a certain amount.

[11] Cst. Stewart put a new mouthpiece on the device, leaving the plastic on the tip to show that it was clean and suitable for use, leaving the plastic to be removed by the defendant. He presented the device to the defendant. The defendant did not remove the plastic and did not blow into the mouthpiece. Instead, he turned his head to the side. He did this three times. He turned his head to the side, in Cst. Stewart's words, as a toddler does when he is not going to eat food presented to him.

[12] I make these findings on the basis of Cst. Stewart's evidence, which I accept. The defendant's evidence was essentially the same.

[13] Cst. Stewart and Mr. Wharton also both testified that Mr. Wharton asked a number of times to speak to a lawyer. They differ about when the first such request was made and how many times Mr. Wharton asked. Those differences, in my view, are not material. Mr. Wharton made it clear that he would not provide a sample until he had spoken to a lawyer.

[14] Cst. Stewart said that Mr. Wharton first asked to speak to a lawyer when he presented the mouthpiece to him when he was seated in the back seat of the car. Cst. Stewart testified that Mr. Wharton told him that he wanted to call his lawyer. Cst. Stewart said that it was in response to this request that he told him that he had only the two options. He also testified that he told the defendant that his right to counsel was suspended until he provided a sample. Cst. Stewart testified that Mr. Wharton asked to speak to a lawyer at least twice after being presented with the mouthpiece and asked to provide a sample.

[15] Mr. Wharton testified that he first asked Cst. Stewart to speak to a lawyer when he made the demand while the defendant was still in his car. He said that he repeated the request three times, each time that he was presented with the mouthpiece and asked to blow. He also asked to speak to a lawyer after he was arrested for refusing. This was confirmed by Cst. Stewart.

[16] Mr. Wharton testified that he turned his head away because he was frustrated because Cst. Stewart would not listen to his request to speak to a lawyer. He said that he turned toward Cst. Stewart's partner, who was standing behind and to the side of Cst. Stewart, to see if he would let him call a lawyer.

[17] Mr. Wharton testified that he was confused. He said that he wanted validation that the officers were doing the right thing. In cross-examination, he testified that he understood that Cst. Stewart was telling him that his rights to a lawyer were suspended, but he did not understand why. He did not understand the law. He admitted that the officer had taken the time to explain the law to him in clear language. He understood that he had been told that a sample had been lawfully demanded and that if he refused he was committing a criminal offence, but said that he wanted to confirm that he had to do so.

[18] Mr. Wharton gave the following evidence:

Q. You were not going to provide a sample unless you were able to speak to a lawyer – that is what happened right? You weren't going to provide a sample into the approved screening device unless you got what you wanted and spoke to a lawyer.

A. I guess so.

[19] I accept this evidence. Mr. Wharton decided that he would not provide a sample unless and until he spoke to a lawyer. As a result, he did not provide a sample. Instead, he turned his head three times when the device was presented to him.

[20] I find that he told Cst. Stewart a number of times that he wanted to speak to a lawyer. Whether he first did so when the demand was first made or when he was in the cruiser is not material. Nor is it material whether he wanted to ask the other officer to let him speak to a lawyer when he turned his head after the mouthpiece was presented to him. The material facts are that a lawful demand was made, and Mr. Wharton did not provide a sample because he wanted to speak to a lawyer to determine whether he had to comply with a demand.

[21] The issue is whether those facts, which I accept as having been proven beyond a reasonable doubt, suffice to justify a conviction.

The Law

[22] The onus of proof is on the Crown to prove the following elements of the offence beyond a reasonable doubt:

(a) the existence of a lawful demand;

(b) an act or a series of acts that constitute a failure or refusal (the actus reus); and

(c) an intention to produce that failure or refusal (the mens rea).

[23] This has been established by a series of cases in the Superior Court in summary conviction appeals which are binding on me: R. v. Slater, 2016 ONSC 2161 at paras. 6-9 per Nordheimer J. (as he then was); R. v. Drouillard, 2018 ONSC 4295 at para. 19 per Hebner J.; R. v. King, [2019] O.J. No. 2468 at para. 4 (S.C.J. per Taylor J.).

[24] If these elements are proven, a defendant is still entitled to raise a reasonable excuse for non-compliance, but will bear a persuasive burden, on a balance of probabilities, in so doing. (Drouillard at par. 20; R. v. Colson, 2018 ONCJ 118 at paras. 39-40 (per Latimer J.))

Analysis

[25] There is no doubt that Cst. Stewart made a lawful demand.

[26] The defendant submits that he did not commit the actus reus because he did not unequivocally refuse or fail to provide a sample. I do not accept that submission. He was required to provide the sample immediately. He did not do so. Instead, he communicated, by turning his head, refusing to blow into the device, and asking to speak to a lawyer, that he was considering whether to provide a sample at a later time. He was unequivocal about refusing to provide the sample when it was required – immediately. It is irrelevant that he did not say "no". When the sample was demanded, he did not provide it.

[27] The defendant also submits that he did not have the requisite mens rea because his request to call a lawyer showed that he may have provided the sample later, after he spoke with counsel, and because the Crown had not proven that he declined to provide the sample knowing that it would thwart the officer's efforts to obtain the appropriate sample. I do not accept that submission. As the defendant admitted in cross-examination, and as is apparent from the facts, he decided to refuse to provide the sample when it was demanded. This is not a case where he may have been attempting to provide a sample but could not do so. As I have found, he intentionally declined to comply with the demand when he was required to do so. He intended to refuse. He had the necessary mens rea.

[28] The defendant relies on two cases to support his submission that he lacked the requisite mens rea.

[29] In R. v. McCann, 2015 ONCJ 169, the defendant refused to comply with a lawful demand, saying that she wanted to speak to a lawyer to obtain legal advice. Horkins J. dismissed the charge, holding that he had a reasonable doubt that her refusal was unambiguous, unequivocal or final. He held that the defendant was operating under a mistake of law that she had a right to refuse the roadside breath demand and that, though mistake of law was no defence, she was mistaken and confused and if she had received legal advice she would have complied with the demand.

[30] In R. v. Kumar, 2016 ONSC 7928 at paras. 87-94, however, Bielby J. held that the McCann decision was wrongly decided. He was sitting as a Summary Conviction Appeals Court judge and his decision is binding on me. I do not accept defence counsel's submission that Kumar is distinguishable because trial judge in that case had found that the defendant did not tell the officer that he wanted to talk to a lawyer before he provided the sample. Bielby J. explicitly held at para. 71 that he would determine the issue on the basis that the defendant had told the officer he wanted to speak to a lawyer before providing the sample.

[31] In R. v. Delarm, 2013 ONSC 975, McMunagle J. dismissed a Crown appeal from a decision of Brunet J. of this court in which he had acquitted a defendant of refusing to provide a roadside breath sample. The defendant had testified that he told the arresting officer that he would not be providing the sample without speaking to an attorney. The arresting officer testified that there was no such statement – that the defendant had simply refused to provide the sample. It appears from the appeal court's decision that the trial judge had applied R. v. W.(D.) and held that the Crown had not proven beyond a reasonable doubt that the defendant had the required mens rea. McMunagle J. expressly held at para. 15 that the trial judge had not held that a requirement that a condition precedent, like speaking to a lawyer, be met before complying with a demand was tantamount to an equivocal refusal and a valid defence. In my view, this decision does not assist the defence.

[32] Both McCann and Delarm were written before the decisions in Slater, Drouillard, and King, which clearly established the actus reus and mens rea requirements of this offence. I decline to follow McCann. To the extent that Delarm stands for the proposition that a driver who refuses a lawful demand because of a desire to consult a lawyer does not have the appropriate mens rea, I respectfully decline to follow it as well.

[33] In my view, the issue raised by the defendant is most appropriately considered under the issue of whether a defendant has a "reasonable excuse" for refusing to immediately comply with a lawful demand when he wishes to speak to a lawyer before deciding whether to comply.

[34] The answer is clear. On the present state of the law, this is not a reasonable excuse. As the Court of Appeal held in R. v. George, [2004] O.J. No. 3287 at paragraph 55:

Where an officer is in a position to require that a breath sample be provided by the detainee before the detainee has any realistic opportunity to consult counsel, the detainee does not have the right to delay the production of the breath sample in order to consult counsel by virtue of the ready availability of a telephone.

[35] It is not relevant that the defendant had a lawyer's number in his cell phone and would have been able to quickly obtain advice. (George, para. 55)

[36] Nor is it relevant that he may well have provided the sample in short order had he been given an opportunity to speak to counsel. As Cst. Stewart advised Mr. Wharton, his right to counsel was suspended until after he had provided his sample. He did not have the right to speak to counsel before providing the sample.

[37] I find the defendant guilty.

Released: January 24, 2020.

Signed: Justice P.K. Doody