Court File and Parties

COURT FILE NO.: SCA 1183/18 DATE: 2020-04-23 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Patrick Quilty, for the Appellant

- and -

ROBERTO DECAIRE Nicholas Xynnis, for the Respondent

HEARD: March 4, 2020

The Honourable Justice Catrina D. Braid

Reasons on Appeal

On appeal from the verdict of acquittal of Justice J. Stribopoulos of the Ontario Court of Justice dated July 10, 2018.

I. OVERVIEW

[1] What is the mens rea for the offence of failing or refusing to provide a breath sample? That is the issue on this summary conviction appeal.

[2] Roberto DeCaire was charged with refusing to comply with a breath demand. At trial, he testified that he was unable to provide a sample of his breath because he was suffering from severe sciatic pain. The trial judge had a reasonable doubt regarding whether Mr. DeCaire’s failure to provide a sample was deliberate or not, and acquitted him. The Crown appealed.

[3] For the reasons set out below, I dismiss the appeal.

II. EVIDENCE AT TRIAL

[4] On January 17, 2017, Mr. DeCaire was involved in a motor vehicle accident. His vehicle was struck on the driver’s side as he attempted to make a U-turn, causing significant damage.

[5] When paramedics arrived, they observed Mr. DeCaire walking around and speaking on his cellphone. Mr. DeCaire said that he had sciatic pain in his low back that radiated down his leg. A paramedic did a physical assessment. Mr. DeCaire stated that he was fine and that he did not want to be transported to the hospital. Mr. DeCaire was holding his leg and walking with a slight limp.

[6] A police officer detected an odour of alcohol on his breath and demanded that Mr. DeCaire provide a suitable sample of his breath into an approved screening device. The officer escorted Mr. DeCaire to the police cruiser. The officer physically demonstrated how to provide a suitable sample of breath. He told Mr. DeCaire to blow into the device as if he was blowing up a balloon and to make a complete seal over the mouthpiece with his mouth. The officer held the device directly in front of Mr. DeCaire’s face. The officer testified that Mr. DeCaire blew while his face was approximately two inches away from the device.

[7] The officer repeated the instructions for providing a sample of breath. Before he presented the device a second time, Mr. DeCaire stated that he was not feeling well. The officer accompanied him to the ambulance.

[8] The officer brought the approved screening device to the ambulance, where Mr. DeCaire was given another opportunity to provide a breath sample. The officer reminded him of the consequences of not providing a sample. The officer testified that Mr. DeCaire, once again, blew while his face was approximately two inches away from the device. The officer testified that Mr. DeCaire did not appear to have any difficulty blowing. The paramedics confirmed that the officer provided clear directions to Mr. DeCaire, and that he was not following those instructions properly.

[9] Mr. DeCaire did not provide an explanation as to why he did not bring his mouth into contact with the device. He was not complaining of pain and was not grimacing or clutching any part of his body at this point. Mr. DeCaire looked as if he was in some sort of discomfort, but did not tell the officer what the specific problem was.

[10] Once again, the officer asked Mr. DeCaire if he would provide a sample. The officer testified that Mr. DeCaire nodded his head (the officer could not recall whether the head nod was affirmative or negative). After the head nod, Mr. Decaire appeared incoherent and then said “no”.

[11] The paramedics became concerned about Mr. DeCaire’s level of awareness and asked him if they could do a finger prick to check his blood sugar. Mr. DeCaire refused to consent to the test.

[12] Mr. DeCaire was arrested for refusing to provide a suitable sample of his breath, contrary to section 254(5) of the Criminal Code, R.S.C. 1985, c. C-46. When the officer read his rights to counsel, Mr. DeCaire said that he did not understand and then said that he did not want to answer questions. He stated that he was not feeling well.

[13] Mr. DeCaire was taken to hospital. On the way to the hospital, he complained of nausea. At the hospital, the officer attempted to serve Mr. DeCaire with a form of release, but he was unable to understand and was not responsive.

Testimony of the Accused

[14] Mr. DeCaire testified that he had been suffering from pre-existing sciatic pain that radiated from his back down his leg, and that the accident made the pain worse. He stated that, prior to the accident, he had been undergoing acupuncture treatments to ease the sciatic pain, and he provided receipts for those treatments. He denied that he was walking around outside the car when the paramedics and police arrived.

[15] Mr. DeCaire testified that he knew how to give a proper breath sample because he had given one before. He stated that it was very uncomfortable to lean forward to reach the device when he was in the back seat of the cruiser.

[16] During cross-examination, the Crown suggested that Mr. DeCaire was not forming a tight seal around the straw with his lips. He testified that he was doing the test properly but was not able to blow for the duration of the time required because it was hard for him to focus, due to the severity of the sciatic pain.

[17] Mr. DeCaire stated that he refused the blood sugar test because he thought the paramedics were trying to inject him with something and he did not want any needles. He denied ever refusing to take the breath test.

III. REASONS OF THE TRIAL JUDGE

[18] The trial judge found that a lawful demand for a breath sample was made and that Mr. DeCaire failed to provide a breath sample. The only live factual issue at trial was whether Mr. DeCaire failed to provide a breath sample because of the debilitating effects of sciatic pain.

[19] Regarding the issue of mens rea for the offence of failing or refusing to provide a breath sample, the trial judge relied on the decisions of R. v. Stanley, [2003] O.J. No. 2076 (SCJ) and R. v. Soucy, 2014 ONCJ 497. He stated that the Crown must prove, beyond a reasonable doubt, that Mr. DeCaire’s refusal or failure to provide a breath sample was on purpose.

[20] The court described Mr. DeCaire’s position as follows: he wanted to provide a breath sample, but overwhelming sciatic pain made it impossible for him to do so. On his account, the failure to provide a breath sample was not deliberate, but he was unable to focus because of the debilitating pain he was suffering.

[21] The trial judge stated that he did not believe Mr. DeCaire, and that Mr. DeCaire would not have met his burden of establishing a reasonable excuse on a balance of probabilities.

[22] In considering whether the Crown had proven intent beyond a reasonable doubt, the court examined Mr. DeCaire’s evidence within the analytical framework of R. v. W(D), [1991] 1 S.C.R. 742. First, the trial judge did not believe Mr. DeCaire, and gave cogent reasons for his “serious reservations” about his testimony.

[23] Second, the trial judge carefully listed six pieces of evidence that were arguably supportive of Mr. DeCaire’s account. He noted that the burden of proof was on the Crown to establish, beyond a reasonable doubt, a deliberate failure to provide a breath sample.

[24] After considering all the evidence, the trial judge stated that he was not sure whether Mr. DeCaire’s failure was deliberate or the result of an inability to provide a breath sample due to his suffering the effects of extreme pain. The trial judge therefore had a reasonable doubt and found Mr. DeCaire not guilty.

IV. ANALYSIS

A. Did the Trial Judge Err in Law When Deciding the Applicable Mens Rea for the Offence of Fail or Refuse Breath Sample?

[25] Section 813(b)(i) permits an appeal by the Attorney General from dismissal of an Information in summary conviction proceedings based on an error of law: R. v. Labadie, 2011 ONCA 227, at para. 61. A summary conviction appeal judge has no basis upon which to interfere with a trial judge’s findings of fact unless they are unreasonable: R. v. Smits, 2012 ONCA 524, at para. 67.

[26] The central issue on this appeal is whether the trial judge applied the proper standard for determining whether the Crown has proven the required mens rea for the offence. Two lines of authority were put before the trial judge and framed as “conflicting”. Later in these reasons, I will explain that the perceived conflict between these lines of authority does not actually exist.

[27] There has been significant judicial comment regarding the mens rea of the offence of fail or refuse to comply with a breath demand. I shall address the lines of authority below:

i. Knowledge of the prohibited act (Porter line of authority)

[28] The first line of authority articulated by the trial judge describes the mens rea as knowledge or awareness of the prohibited act, namely that the accused knew that he was failing to provide a suitable sample. The seminal decision that represents this position is R. v. Porter, 2012 ONSC 3504, which was subsequently followed in R. v. Singh, 2013 ONSC 6324; and R. v. Pletsas, 2014 ONSC 1568. The mental element of the offence does not require the Crown to prove any specific intent on the part of the accused to bring about the failure to provide a suitable breath sample. It only requires the Crown to establish the general intent of knowledge or awareness of the prohibited act.

[29] Under this line of authority, reasonable excuse is a defence that falls outside proof of the essential elements of the offence. The onus is on the accused to establish, on a balance of probabilities, that some additional factual circumstances preclude the imposition of criminal liability.

[30] At trial and on this appeal, counsel for the Crown argued that the court should adopt this approach. The Crown submitted that, since Mr. DeCaire knew that he had to provide a suitable sample of his breath and did not do so, the intent for the refusal offence was proven beyond a reasonable doubt.

ii. Intention to produce refusal or failure (Lewko line of authority)

[31] The second line of authority articulated by the trial judge describes the mens rea as an intention to produce the refusal or failure. The cases cited by the trial judge for this position were R. v. Stanley, supra and R. v. Soucy, supra. This approach was first articulated in R. v. Lewko, 2002 SKCA 121, 169 C.C.C. (3d) 359; and subsequently adopted in Stanley, Soucy, and R. v. Drouillard, 2018 ONSC 4295. Under this approach, the Crown must prove, beyond a reasonable doubt, that the accused's failure to provide a sample was voluntary and intentional. The basic mens rea for the offence under section 254(5) requires that the accused refuse or fail the test "on purpose".

[32] If the accused was unable to provide a breath sample due to a physical or medical condition, he would not be guilty because he did not intend to refuse to comply with the demand or intentionally fail to provide a sample. The reasonable excuse defence only comes into play after the court is satisfied, beyond a reasonable doubt, that the accused intentionally failed or refused to provide a sample.

[33] As a matter of common sense, if a device was shown to be in good working order, the accused was given a clear explanation of its operation, and a sufficient opportunity to provide a sample was furnished, it can generally be inferred, in the absence of raising some question about the ability of the accused to comply, that the accused intended to avoid furnishing a suitable sample: Soucy, at para. 57.

[34] On this appeal, counsel for Mr. DeCaire argued that this court should uphold the trial judge’s decision, which followed this approach.

iii. A fair and harmonious reading to the lines of authority

[35] Trial counsel only brought the Porter and Lewko lines of authority to the attention of the trial judge. This left the trial judge with a stark choice between what he perceived to be two competing lines of authority. In his oral decision, reported at R. v. DeCaire, 2018 ONCJ 635, at para.15, the trial judge stated:

I have carefully considered these two conflicting lines of authority. Both are binding but also irreconcilable. I must therefore choose between them. In that regard, I am required to follow the binding precedent that I find most persuasive.

[36] However, trial counsel failed to provide the court with the decision in R. v. Slater, 2016 ONSC 2161. In that decision, Nordheimer J. (prior to his elevation to the Ontario Court of Appeal) reconciled the Lewko and Porter lines of authority by recasting those decisions and dissolving their apparent disagreement on the appropriate mens rea standard. For Nordheimer J., subsequent court decisions that characterized conflict between Porter and Lewko misinterpreted the thrust of those decisions.

[37] With respect to Lewko, Nordheimer J. pointed out that the Court of Appeal for Saskatchewan did not create such an exacting standard as to require that the Crown prove an actual intention to refuse to give a sample. This is “a task that would be impossible since no one can crawl inside another person’s mind to find actual intent”: Slater, at para. 13. On the facts of Lewko, the Court found intention where the only inference that one could draw, in light of there being no other explanation, was that “the pathetic quality of the attempts was produced by [the accused’s] choosing to produce that quality”: Lewko, at para. 31.

[38] With respect to Porter, Nordheimer J. found that the decision does not say that proof of a failure to provide a breath sample is sufficient for the mens rea requirement. Rather, where the Crown establishes that an accused did not provide a sample, and the accused knows he has not provided a sample, then absent other circumstances which explain that failure, the inference is the accused intended that failure: Slater, at para. 9.

[39] Both Lewko and Porter spoke about intent as something that can be inferred from the circumstances. Nordheimer J. reconciled these two lines of authority by describing the mens rea as an inescapable inference of intention, absent other evidence being present that would raise a reasonable doubt. When a person tries multiple times to provide a breath sample and, in each instance fails to provide a sample, it gives rise to an inescapable inference that he is intending that result, absent some evidence that would suggest a lack of such an intent (or that would at least raise a reasonable doubt about it). The reasoning in Slater has been followed in R. v. Esipu, 2017 ONSC 3439, R. v. Colson, 2018 ONCJ 118, and R. v. King, [2019] O.J. No. 2468 (SCJ).

[40] Under this approach, the Crown is still obligated to prove mens rea, but an inescapable inference makes this task straightforward. Proof of mens rea will be met by the application of the general principle that a person usually intends to cause consequences which are predictable.

[41] The Slater decision effectively created one line of authority in Ontario with respect to the constituent elements required to be proven by the Crown regarding a charge of failing or refusing to comply with a breath demand. Nordheimer J. gave “a fair and harmonious reading” to the decisions on this issue (Slater at para. 13).

[42] In the case before the court, the trial judge stated that the question to be determined was whether or not the Crown had proven, beyond a reasonable doubt, that Mr. DeCaire's refusal (or failure) to provide a suitable breath sample was on purpose. He examined the evidence within the framework of W(D).

[43] The trial judge was not sure whether Mr. DeCaire’s failure to provide a sample was deliberate or the result of an inability to provide a sample due to his suffering the effects of extreme pain. Put another way, while Mr. DeCaire’s multiple failures to provide a breath sample might give rise to the inescapable inference that he intended that failure, the evidence of his sciatic pain suggested that he may not have had such an intention. The trial judge was therefore left in a reasonable doubt.

[44] I find that the trial judge did not err in law in his analysis regarding the issue of mens rea.

B. Did the Trial Judge Make All the Necessary Findings of Fact?

[45] As an alternative argument, the Crown argues that the trial judge failed to resolve the factual issues necessary to decide intention. It is submitted that the trial judge should have determined whether the accused outright refused to provide a breath sample in the ambulance; and whether he formed a seal around the mouthpiece when he attempted to blow into the device.

[46] A trial judge’s reasons need not be perfect or lengthy. However, they must be sufficient to enable the parties, the general public and this court, sitting in review, to know whether the applicable legal principles and evidence were properly considered: Lawson v. Lawson (2006), 81 O.R. (3d) 321 (C.A.).

[47] Further, appellate courts are not to place an impossible burden on busy trial courts in terms of the writing of reasons. An appeal court cannot intervene merely because it believes the trial court did a poor job of expressing itself. An accused has a right to adequate reasons, not perfect ones: R. v. Tzarfin, [2005] O.J. No. 3531 (C.A.); R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245.

[48] In this case, the trial judge’s reasons deal more specifically with the failure to comply with a demand branch under s. 254(5). In his reasons, the trial judge did not address the refusal branch of the offence. Nonetheless, I reject the Crown’s argument as it runs up against the same issue with respect to mens rea. The trial judge made a finding of fact that Mr. DeCaire did not provide a breath sample in response to a lawful demand. Regardless of whether the sample was not provided due to a failure or a refusal, the Crown failed to prove beyond a reasonable doubt that the failure or refusal was intentional.

[49] I do not accept the submission that critical findings of fact were unresolved. The Crown was obliged to prove intent and the trial judge had a reasonable doubt. The trial judge made all the findings of fact that were necessary to conduct the analysis in this case.

V. CONCLUSION

[50] For all these reasons, the appeal is dismissed.

Braid, J.

Released: April 23, 2020

COURT FILE NO.: SCA 1183/18 DATE: 2020-04-23 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: HER MAJESTY THE QUEEN - and – ROBERTO DECAIRE REASONS ON APPEAL CDB Released: April 23, 2020