ONTARIO COURT OF JUSTICE
DATE: 2023 04 28
COURT FILE No.: Kitchener (Region of Waterloo) 4411-998 21-651(00); 999 21-70(00)
BETWEEN:
HIS MAJESTY THE KING
— AND —
RIJAH MARTIN
Before: Justice C. A. PARRY
Heard on: February 15, 2023 and April 4, 2023
Reasons for Judgment released on: April 28, 2023
Counsel: E. Jamieson, counsel for the Crown J. Drexler, counsel for the defendant Rijah Martin
PARRY J.:
I. INTRODUCTION
[1] Rijah Martin stands charged with committing the Criminal Code offence of failing without reasonable excuse to comply with a roadside breath demand made by WRPS Officer Michael Sullivan – an offence contrary to s. 320.15 of the Code. She also stands charged with a single offence under the Highway Traffic Act: Make Turn not in Safety, contrary to s. 142(1). Both charges arose out of a single driving incident, which occurred on January 22, 2021. On the day scheduled for trial, Ms. Martin entered a guilty plea to the HTA offence and pleaded not guilty to the Criminal Code charge. The Crown introduced the facts pertaining to the HTA offence when introducing evidence in support of the Criminal Code charge.
[2] In the trial, the defence raised only one issue: the existence of a reasonable excuse. The defence conceded that the Crown had proven all other elements of the Criminal Code charge. Naturally, the defence also conceded that Ms. Martin also made a turn not in safety.
[3] The Crown called one witness, Michael Sullivan.
[4] Ms. Martin testified in her own defence.
[5] Ms. Martin’s counsel argued that Ms. Martin proffered a reasonable excuse for her failure to provide a breath sample.
[6] For the reasons that follow, I reject Ms. Martin’s purported excuse. I have no doubt that she lacked any reasonable excuse and that she was criminally culpable for her failure to comply with the officer’s breath demand. Indeed, I conclude that she deliberately failed to provide a sample.
II. THE EVIDENCE FOR THE CROWN
[7] Mr. Sullivan is now retired. On the date of the incident, he was a WRPS officer in uniform and operating a marked cruiser.
[8] On the night of the incident at about 1:02 a.m., Sullivan drove along Benton Street, towards Charles Street in downtown Kitchener. He came to a stop at the red light at the intersection. Across the intersection, Ms. Martin’s car sat positioned in the left turn lane. When the light turned green, Sullivan advanced forward while Ms. Martin simultaneously turned left and came directly into the path of Mr. Sullivan’s cruiser. Sullivan hit the brakes to avoid a collision.
[9] After the near collision, Ms. Martin continued down Charles Street. Sullivan decided to follow her.
[10] Ms. Martin stopped at the intersection at Cedar Street and turned right. She drove one block, to Courtland Street. Then she turned right again.
[11] Sullivan activated his roof lights and followed Ms. Martin along Courtland. Ms. Martin then pulled over near the intersection of Peter and Courtland Streets.
[12] Ms. Martin was accompanied by a man, who sat in the passenger seat. When Sullivan approached the driver’s side door, Ms. Martin rolled down the window. Ms. Martin appeared nervous. She was also smoking a cigarette. After Sullivan asked her to extinguish the cigarette, she took one last drag before putting it out. She made a perfect seal around the cigarette when taking a drag.
[13] Due to her driving behaviour, her fixed stare, and a slight slur to her speech, Sullivan decided to make a roadside breath demand.
[14] Unsolicited and after butting out her cigarette, Ms. Martin advised Sullivan that she was asthmatic. Sullivan did not notice Ms. Martin experiencing any difficulty breathing at any point in their interactions.
[15] Sullivan retrieved the ASD from his cruiser. To ensure it was working properly, he performed a test on himself, using a clean mouthpiece. He provided a 4-5 second blow, with the force he equated to the forced used to blow bubbles into a drink through a straw. He did not require a deep inhalation for this modest exhale. The ASD accepted his sample and provided a result: zero. Sullivan was thus satisfied that the ASD was in proper working order.
[16] He then made an ASD demand.
[17] Afterwards, he provided Ms. Martin instructions on how to provide a sample. He also provided her with a new mouthpiece. Ms. Martin understood the demand.
[18] Ms. Martin made a number of apparent attempts to provide a sample, but none were sufficient.
[19] The first apparent attempt occurred at about 1:23-1:24 a.m. Ms. Martin made a seal around the mouthpiece and blew. The ASD hummed, thus signalling airflow. However, after about 2 seconds, she abruptly stopped and pulled away. Sullivan explained to her that refusal to provide a sample was an offence and that she could be charged if she did not provide a sample. He then again provided instruction on how to provide a sample.
[20] Ms. Martin then made a second apparent attempt. Again, the sample was insufficient. Sullivan testified that on this occasion, Ms. Martin made a seal, but it was “not great”. Also, Ms. Martin’s exhalation of breath lasted for only about 2 seconds.
[21] On the third apparent attempt, Ms. Martin made a proper seal, but exhaled no breath at all into the device. Thus, the device did not signal any tone during the apparent attempt.
[22] During the fourth apparent attempt Ms. Martin provided what Sullivan described as two cheekfuls of air.
[23] On a fifth apparent attempt Ms. Martin made what Sullivan described as a weak seal but provided no breath.
[24] Sullivan then told Ms. Martin that she was on the brink of being charged.
[25] She asked to attempt again.
[26] On 2 subsequent attempts Ms. Martin provided no breath at all and allowed a visible gap between her lips and the mouthpiece.
[27] Sullivan then arrested Ms. Martin at 1:28 a.m.
[28] Sullivan did not observe any laboured breathing at any point during this episode.
[29] Once Sullivan completed the appropriate paperwork, he released Ms. Martin at the roadside. Sullivan denied that, after her arrest, Ms. Martin ever offered to provide any blood sample at the police station.
III. EVIDENCE FOR THE DEFENCE
[30] Ms. Martin is 29 years old. She testified that she suffers from stress related mental health issues and was hospitalized for those health issues about 14 months after the night of her arrest. She currently relies upon ODSP for income. She sees a psychiatrist bi-weekly.
[31] At the time of her arrest, Ms. Martin lived on Waterloo Street, near where Waterloo Street intersects with Guelph Street, in the City of Kitchener. That location is close to the border between Kitchener and Waterloo, north of downtown Kitchener and south of downtown Waterloo.
[32] Ms. Martin testified that she was driving with her ex-roommate to her mother’s home to do laundry there, before being stopped by Officer Sullivan. She explained that her mother’s fiancé did not approve her coming to the house, so she attended when he was at work. He was a DJ and doing a gig that evening. In this manner, she explained the somewhat unusual hour of her laundry chore.
[33] Her mother lived in Laurelwood, a neighbourhood at the northwest corner of Waterloo. At the time of her traffic stop, she was thus travelling in the opposite direction of her mother’s house. She initially testified that she would normally take Queen Street enroute to her mother’s house. She then testified that she took Duke Street, turned right on Benton [having therefore drove right past Queen, her normal route], then “most likely [would have] continued down Queen [the street she already drove past], to Highland and then to Highland to Fischer Hallman. So, just took a different route that evening….” This description of her actual route was thus incongruent with her description of her supposed normal route and an entirely extended and round-about way of getting to her mother’s house. When questioned about the incongruity between her destination, her planned path, and her actual path, she first explained that there are several routes she takes to her mother’s house, one that involves turning right from her house and one that involves turning left. She also offered that she may have been driving to get cigarettes before going to her mother’s, though she did not specifically remember if she was in fact doing so. If going for cigarettes, she testified that she may have been going to the Big Bear convenience store, which is located on Highland Road near Spadina Road in Kitchener – about 4 km southwest of where she lives and not on any logical path towards her mother’s house. She could not recall, but she assumed she was following the directions of her companion when travelling to this convenience store at around 1 a.m. on the day of her arrest.
[34] Ms. Martin also testified that her ex-roommate had been visiting her that evening. He arrived at around 5 p.m. They most likely had dinner together, but she could not recall for certain. She also initially indicated in cross-examination that she could not recall if she consumed any alcoholic drinks with her companion. Later in cross-examination, she testified that she did not think she would fail the roadside screening test but did not necessarily think she would register a zero. She subsequently explained that she may have consumed alcohol at some earlier point in the evening, although she assumed she only consumed two drinks at most.
[35] When Ms. Martin was at the intersection of Benton and Charles Street, she turned left when the light turned green. She acknowledged that, in doing so, she ought to have allowed the police car to proceed straight through the intersection before she turned left. After turning left onto Charles Street, she quickly turned right onto Cedar Street and right again onto Courtland Avenue, because she wanted to see if the officer was following her.
[36] Soon thereafter, the officer pulled her over.
[37] On her evidence, she felt anxiety about being pulled over. She acknowledged receiving the breath demand and agreed that she understood it. Although professing to experiencing anxiety about the traffic stop, Ms. Martin testified that she did not expect to fail the screening test, even if she did not necessarily expect the result of the test to indicate a zero BAC.
[38] Ms. Martin agreed that the officer provided her seven opportunities to provide a sample but could only remember 4 of her seven alleged attempts. On the first attempt, her breath only lasted 2 seconds or so. She attributed the insufficiency of her sample to anxiety and nervousness. Time seemed to be passing quickly. She did not think she inhaled sufficiently before exhaling into the ASD. On the second attempt, she quickly tried to provide a sample. Again, she believed that she failed to take a sufficiently deep breath and, accordingly, could not blow or exhale sufficient air. She again attributed this failure to nervousness and anxiety.
[39] After the initial failures, Ms. Martin remembered the officer cautioning her and providing instructions on how to provide a proper sample. On her evidence, she felt intimidated and under pressure. She described the officer as firm.
[40] Although she lacked a specific recollection of the next three alleged attempts, she testified to experiencing increased anxiety with each attempt. She also alleged that the officer became more agitated with each fail and responding with comments like, “Cummon. Are you serious?”.
[41] After the fifth attempt, Ms. Martin asked the officer if she could keep trying.
[42] On the sixth alleged attempt, Ms. Martin purportedly felt exasperated. She was blowing after only short little inhalations, hoping to please the officer and not agitate him. She claimed to be trying to comply with the demand.
[43] On the seventh alleged attempt, Ms. Martin testified that she tried to fill her lungs fully and had her mouth full of air as well. She testified that she attempted to provide a suitable sample but was unable to do so.
[44] The officer arrested her after this 7th test.
[45] According to Ms. Martin, once she was in the back of the cruiser, she asked if she was being released at the scene. According to her, she told the officer that if he was taking her to the station, she could provide further testing, whether a blood sample or further breath analysis. The officer told her she was already arrested and would be released from the scene.
[46] During cross-examination, Ms. Martin indicated that between alleged attempts, she and the officer spoke. Ms. Martin suggested that the discourse included her indicating to the officer that she had asthma. She also volunteered in her cross-examination that she was experiencing a “major anxiety attack” during the tests and that she informed the officer of this fact. When pressed on this assertion, she walked back the claim somewhat, indicating, “I definitely told him I was very nervous” and that “I was anxious”, and said that she didn’t use the term “anxiety attack”.
[47] Ms. Martin acknowledged that she was not coughing during her interaction with the officer. However, she claimed her speech was very short. She was very short of breath. Everything was happening a mile a minute. She also claimed that she was definitely wheezing and experiencing laboured breathing, which deprived her of the ability to make full inhalations. She then walked back the wheezing claim and substituted a claim that she was hyperventilating, breathing in and out quickly.
[48] Ms. Martin agreed that she could not refute the allegation that she failed to make a seal around the mouthpiece during attempts 3 through 5, given she could not recall those attempts.
[49] Ultimately, the upshot of Ms. Martin’s evidence was that she was sincerely trying to provide a sample, but her anxiety attack rendered her incapable of doing so.
IV. FINDINGS
[50] Simply put, I do not believe Ms. Martin’s evidence about her anxiety attack and its purported impact upon her ability to provide a sample. I find it to be untruthful. I have several reasons for this ultimate conclusion, which I will now summarize.
[51] I reject Ms. Martin’s claim about her destination that evening. While I cannot determine where she was coming from nor where she was going, I disbelieve entirely her claim that she was going with her ex-roommate to do laundry at her mother’s house at 1 a.m. In that regard, I note that the alleged route taken does not come close to constituting a logical, efficient, or direct route to her mother’s house. Also, Ms. Martin provided inconsistent descriptions of her route and differing rationales for taking her route. At first, she indicated that she normally took Queen Street to get to Highland Road, and then to Fischer Hallman to get to her mother’s house. She admitted that this was a long route, but that admission fails to explain why she would pass right by Victoria Street, the first major thoroughfare that connects Duke to Fischer Hallman; nor does it explain why she passed Queen [her supposed normal route] enroute to Benton Street, if Queen was in fact on her planned route. If she passed Queen accidentally, her turn at Benton took her further away from Queen, rather than bringing her back onto it. Careful attention to her initial description of her route reveals that it was nonsensical. She then appeared to abandon her assertion that she was taking a deliberate albeit indirect route to her mother’s home, in favour of a supposition that she was actually travelling to an out-of-the-way 24-hour convenience store to get cigarettes. Then she testified to aborting her route to the out-of-the way convenience store, turning right instead of left, to assess whether or not the police car was following her. Collectively, I find her evidence on the subject of her activities that night to be at times illogical and nonsensical, at other times inconsistent from one moment to the next, and at other times based wholly upon vague supposition rather than actual memories. As a result, I find her evidence on this subject to be the product of obfuscation and deceit.
[52] I also conclude that Ms. Martin’s assertions about her alcohol consumption lack any credibility. Ms. Martin provided an evolving account about her drinking patterns. Initially, she could not recall if she had consumed any alcohol whatsoever. However, when discussing her anticipation of the results of any breath tests, she testified that she did not expect the results to necessarily indicate a zero BAC. She then acknowledged that she may have consumed alcohol with her friend earlier in the evening but assumed, despite a lack of any specific recollection on the point, that she only had two drinks at most. It defies logic to put a hard cap on an activity about which one has no recollection. When I consider this consumption evidence in conjunction with her suspect description of her whereabouts and destination, I conclude that Ms. Martin failed to provide me with an honest account of her drinking patterns that evening.
[53] I also reject Ms. Martin’s assertions about her purported anxiety attack. In coming to this conclusion, I note that Ms. Martin’s own descriptions about her symptoms changed as she testified. Initially, she asserted that she was very short of breath. Then she testified that she was wheezing and experiencing laboured breathing. Then she walked back the wheezing claim and instead claimed that she was hyperventilating. Through it all, she was clearly implying that her distressed physical condition was and ought to have been manifestly apparent to the officer. The officer, for his part, saw no signs of physical distress. He saw an ordinarily nervous driver that did not exhibit any breathing difficulties during the course of his interactions with Ms. Martin. Whatever her purported condition, it admittedly did not impede her from taking drags of a cigarette immediately before the officer made the ASD demand.
[54] Ms. Martin’s inconsistent claims about what she communicated to the officer also cause me to reject her assertion of an anxiety attack. Initially, in cross-examination, she testified that she told the officer she was experiencing an anxiety attack. She then retreated from that assertion and testified that she merely told the officer that she was nervous and anxious. Whether or not she told the officer those things, it is abundantly clear that, when presented with the prospect of performing breath tests, she told the officer she had asthma. On the evidence, it is abundantly clear that Ms. Martin has not purported to have been experiencing an asthma attack. On the officer’s evidence, Ms. Martin’s assertion of asthma was unsolicited and after Ms. Martin took her last extremely ironic drag from her cigarette. On Ms. Martin’s evidence, it appears she offered it as an excuse in between the alleged attempts. On any version, Ms. Martin declared what constituted an irrelevancy, because Ms. Martin did not purport at trial to be experiencing an asthma attack. I infer that Ms. Martin volunteered the existence of this medical condition in an effort to provide an excuse for non-compliance with the demand. Given the absence of an actual asthma attack, I infer she offered it as a false excuse. The fact Ms. Martin made a false excuse at the roadside contributes to my disbelief of the excuse she now proffers at trial. Given all the faults in her evidence, I also infer from Ms. Martin’s false excuse an unlawful intent to deliberately fail to provide a sample. In doing so, I also reject entirely Ms. Martin’s claim of an anxiety attack.
[55] Unlike Ms. Martin, I found Officer Sullivan to be a credible and reliable witness. While, for personal reasons [which need not be repeated here], Officer Sullivan’s evidence was obviously reluctantly provided, his evidence was cogent, logical, straightforward, and credible. None of it was seriously challenged in cross-examination by the accused, by Ms. Martin’s evidence, or during submissions. Ms. Martin’s evidence, on the other hand contained numerous deficiencies, which I have already described. Where there exists any discrepancy between Sullivan’s evidence and Martin’s about the allegedly attempted breath samples, I have no hesitation in rejecting Ms. Martin’s and accepting Sullivan’s.
[56] Sullivan’s description of the ASD procedure depicts a malingerer intent on avoiding true participation in the test. Here, I note that Ms. Martin could not refute any of Sullivan’s descriptions of her behaviours during samples 3 through 5. In the third sample, she provided no breath whatsoever. In the fourth sample, she provided only two cheekfuls of air. In the fifth sample, she made only a weak seal, but provided no breath. At no point in her evidence did Ms. Martin indicate she was ever incapable of providing any breath whatsoever. At no point in her evidence did Ms. Martin indicate her anxiety caused her to make an imperfect seal around the mouthpiece. Despite the evidence provided by Ms. Martin, and to some degree because of that evidence, the behaviours and observations described by Sullivan lead, overwhelmingly in my view, to the inference that Ms. Martin was intentionally avoiding giving a sample.
[57] Given my general concerns about Ms. Martin’s credibility, I reject her contention that she asked after her arrest to perform tests at the police station. I instead accept Sullivan’s contention that no such request was made. On this issue, I would also note that Ms. Martin did not go so far as to assert that she had changed her mind and was seeking a second chance. No. She testified that she told the officer that if he was taking her to the station instead of releasing her at the scene, she could provide further testing, whether a blood sample or further breath analysis. It was a purportedly conditional offer premised upon the officer’s decision to take her to the station instead of releasing her at the roadside. That alleged conditional offer does little to raise the possibility in my mind that she had any real desire to establish her innocence or belatedly comply with the officer’s earlier demand. Like other parts of her evidence, her assertion here lacked credibility.
[58] In sum, I conclude that Ms. Martin deliberately failed to provide a sample. I reject entirely her purported excuse. I come to this conclusion despite the limited indicia of overt impairment observed by the officer prior to Ms. Martin’s failure to comply with the breath demand.
V. ANALYSIS
[59] My factual findings in this case make short work of the legal analysis necessary for the disposition of this case.
[60] By the close of submissions, only one live issue needed resolving: the presence or absence of a reasonable excuse. The defence concedes that the Crown has proven the requisite unlawful act and the requisite intent. As for the requisite unlawful intent, the defence concedes that the principle of stare decisis dictates that I follow the decision of R. v. Arudselvam, 2022 ONCJ 445, in which Justice Amarshi held that the mens rea for the offence in question is an offender’s subjective knowledge that a demand has been made. I agree.
[61] I turn then to the question of Ms. Martin’s purportedly lawful excuse.
[62] The Crown argues that the accused bears the burden on a balance of probabilities to establish an excuse.
[63] The defence argues that she need only establish the existence of an air of reality to this excuse. Once established, the Crown then bears the burden of disproving it beyond a reasonable doubt.
[64] Having considered the excellent materials provided to me by counsel, I conclude that the position taken by the defence is the correct one.
[65] In 2018, parliament enacted new impaired driving provisions in the Criminal Code and repealed their predecessors. At the same time, parliament repealed s. 794(2) of the Criminal Code, which previously prescribed the burden of proof applicable when an excuse is raised the charge at issue here.
[66] Section 794(2) applied exclusively to summary conviction trials, like Ms. Martin’s. Before its repeal, this section declared that
the burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information.
[67] While there had been some debate about the nature of the burden imposed by s. 794(2), the Supreme court settled the matter in R v Goleski, 2015 SCC 6. In that case, the Court concluded that s. 794(2) imposed upon the accused the persuasive burden of establishing on a balance of probabilities the existence of any lawful excuse in summary conviction matters. In particular, the Court confirmed that this burden applied to any excuses proffered in answer to a fail/refuse charge. The court did not, however, use the opportunity to adjudicate upon the constitutionality of the provision.
[68] Nevertheless, since the advent of the Charter, in proceedings not governed by s. 794(2) – that is, indictable proceedings – the Supreme Court has repeatedly affirmed that imposing a burden on the accused to prove the existence of a lawful defence violates the accused’s constitutional right to the presumption of innocence. In doing so, the court has repeatedly declared that the violation occurs whether the reversed burden applies to a defence which challenges an element of the offence or which asserts the existence of a justification or excuse. In either case, the presumption of innocence is violated when there exists the possibility of a conviction despite the existence of a reasonable doubt about the existence of the purported defence: see for example, R. v. Holmes, 1988 SCC 84, [1988] S.C.J. No. 39; R. v. Whyte, 1988 SCC 47, [1988] S.C.J. No. 63. In so doing, the Supreme Court has repeatedly affirmed that the accused need only show that there exists an air of reality to any purported defence. Once that evidentiary threshold has been met, the Crown then bears the burden of disproving any defence beyond a reasonable doubt.
[69] Accordingly, given the preponderance of Supreme Court jurisprudence on reverse burdens in indictable matters, I am inexorably led to the conclusion section 794(2) violated the presumption of innocence. The only conceivable remaining issue is whether this violation could have been justified and saved by section 1 of the Charter. However, given that the Supreme Court declined to consider the constitutionality of the provision in Goleski and given that the provision has since been repealed, there exists no word from the Supreme Court about whether this apparently unconstitutional provision might be saved by section 1 of the Charter.
[70] I make reference to section 1 of the Charter to draw attention to the distinction between the options available to parliament and the options available to the court in determining what burden of proof may apply in respect of any common law defence. Parliament possesses the inherent prerogative to enact laws that infringe or place limits on constitutional rights, like the presumption of innocence. In doing so, Parliament can seek to rely upon section 1 of the Charter to save an otherwise unconstitutional enactment. On the other hand, the courts, in developing the common law, do not possess such a prerogative. The common law must evolve in a manner that is consistent with Charter values. Where a common law rule is inconsistent with the Charter, the courts must modify it, if possible, to make it Charter compliant: see, for example, R. v. Swain, 1991 SCC 104, [1991] 1 S.C.R. 933; R. v. Salituro, 1991 SCC 17, [1991] 3 S.C.R. 654.
[71] Therefore, absent a statutory imperative, this court cannot impose a persuasive burden upon an accused to establish the existence of a reasonable excuse to a charge laid pursuant to section 320.15. To do so would violate the presumption of innocence. Charter-influenced common law principles prohibit this.
[72] Consequently, with the repeal of s. 794(2), I conclude that the accused must only surmount an evidentiary burden when raising an excuse to a charge laid pursuant to s. 320.15. Once an air of reality exists to any excuse or justification proffered in answer to an alleged violation of s. 320.15 of the Code, the Crown bears the burden of disproving that justification or excuse beyond a reasonable doubt.
[73] In her trial, Ms. Martin has suggested that her anxiety attack rendered her incapable of providing a sample, despite her subjective desire, effort, and intention to provide a sample. In effect, she argues that her failure was involuntary.
[74] Having regard to my factual findings, I conclude that Ms. Martin’s purported excuse is a fabrication and lacks any air of reality. Ms. Martin’s evidence and the evidence as a whole leaves me with no doubt whatsoever that Ms. Martin lacked any reasonable excuse for providing a breath sample. I find her guilty of the s. 320.15 charge. Given her guilty plea and acknowledgement of the essential elements of the offence, I also find her guilty of the HTA charge.
Released: April 28, 2023
Signed: Justice C. A. Parry
