Ontario Court of Justice

Old City Hall - Toronto

Court Information

Between: Her Majesty the Queen

And: Tho Loi

Counsel:

• C. Sweeny, for the Crown
• M. Kerbel, for the Defendant

Heard: February 29, 2012

Released: March 23, 2012

Justice: Melvyn Green

Reasons for Judgement

A. Introduction

[1] Tho Loi, the defendant, parked his car on the wrong side of a Toronto street in the early hours of September 20, 2008. The police investigated. A roadside breath demand soon followed. The defendant was afforded many opportunities to provide a suitable sample of his breath. Eventually he was charged with refusal to do so.

[2] The only evidence called at the trial was that of the officer who made the demand (PC Marco Ricciardi) and that of a second officer (PC Stephen Chen) who attended during the roadside testing procedure. The defence position, in essence, is, first, that the objective circumstances preceding the demand did not meet the statutory threshold of "reasonable suspicion" for such demand, thus relieving the defendant of any legal obligation to comply. The second position is that there is reasonable doubt as to whether the defendant's non-compliance with the breath demand was intentional. The burden of proving this mental element, and all other essential elements of the offence, falls, as always, on the Crown on a standard of proof beyond reasonable doubt.

B. Evidence

[3] PC Marco Ricciardi was driving southbound on Claremont in central Toronto a little after 2am on September 20, 2008. No parking is permitted on the west side of Claremont. Ricciardi saw a blue car parked on the west side of the street with its four-ways activated. He pulled in behind the car and began writing a ticket. He first noticed the defendant in the driver's seat and two passengers in the rear as he left his scout and approached the driver's side of the blue car at about 2:19am. The driver's window was down and there was a strong smell of alcohol emanating from the interior of the car. The defendant, in response to Ricciardi's questions, admitted to having consumed one or two drinks. His eyes were bloodshot and watery and there was an odour of alcohol about his mouth. (Ricciardi testified to making this olfactory observation before articulating a breath demand, although it's only reference in his notes is in the context of "during the tests".) Ricciardi formed a reasonable suspicion that the defendant had alcohol in his body. He asked the defendant to exit his vehicle. Then, at 2:27am, he read him an approved roadside screening device demand. The defendant, says Ricciardi, was "walking normal".

[4] Ricciardi provided instructions on the proper testing technique although he did not initially demonstrate the technique himself. The defendant, according to Ricciardi, appeared to be blowing "softly" and, at times, to be sucking when he should have been blowing. The officer encouraged him to blow more strongly. He gave the defendant many chances as he appeared to be "trying". After about ten futile attempts, Ricciardi replaced the mouthpiece and demonstrated the proper technique. The officer registered a "0" on the device, indicating that there was no alcohol in his body. The defendant was then permitted a number of further attempts, registering an error message on each occasion. At some point the defendant appeared to "give up" and said, "just arrest me". Ricciardi encouraged the defendant to try again, advising that although it was his "right" to refuse there would be consequences for doing so and that it would be to his, the defendant's, benefit to continue. (In cross-examination, Ricciardi also recalled advising the defendant he would be arrested for refusing to blow; this caution is not reflected in his notes.) The defendant agreed to try again.

[5] In response to a radio dispatch, PC Stephen Chen arrived on scene around 2:48am. Chen (whose general recall was shaky at best) could not remember having a roadside testing device with him that evening. Ricciardi, however, recalled replacing the device he had been using with the one delivered by Chen and provided the serial numbers of the second machine. In any event, the defendant continued to generate error code messages, indicating unsuitable or insufficient breath samples to permit a reliable roadside assay. Although Ricciardi made no mention of it, Chen recalled the defendant spontaneously explaining that he smoked a pack of cigarettes a day. Both officers testified that the defendant appeared as though he was going to collapse from the exertion of his exhalations. As a result, he was allowed to sit on the backseat of the first officer's scout (according to Ricciardi) or on the curb (according to Chen) as he continued his efforts. He was told he had three chances left. After a total of 15 to 20 unsuccessful attempts to generate a suitable sample, Ricciardi, at 2:52am, arrested the defendant and read him his rights to counsel.

[6] The defendant was calm, courteous and co-operative throughout. He evidenced no signs of slurring, unsteadiness or any other indicia of impairment, nor was he arrested for this offence. In summary, Ricciardi opined that the defendant "was trying to give me a sample, he just didn't". In Chen's view, the defendant either did not provide a suitable sample or was unable to do so.

C. Analysis

(a) Introduction

[7] As noted earlier, the defence advances two positions. The first is that there was an inadequate objective basis for the approved screening device (ASD) demand and, as a result, the defendant was under no obligation to comply with what, on this analysis, amounts to an unlawful demand. The second is that the Crown has failed to prove to the requisite criminal standard that the defendant had the necessary mens rea – that is, intentional non-compliance with the demand. The offence at issue is that set out in sub-s. 254(5) of the Criminal Code: "Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section" (emphasis added). A demand for a roadside breath sample is one "made under this section" (s. 254).

[8] I address each of the defendant's arguments below.

(b) The ASD Demand

[9] Any peace officer who has "reasonable grounds to suspect" that a person has alcohol in his body and has within the previous three hours operated or had care or control of a motor vehicle may "by demand, require the person" to "provide forthwith a sample of breath that … will enable a proper analysis to be made by means of an approved screening device": Code, s. 254(2). As to the conditions precedent to a lawful ASD demand, no challenge is taken to the propriety of the machine or machines used, to the existence of the requisite condition that the defendant drove or had care or control of his vehicle during the previous three hours, or to the integrity of PC Ricciardi's claim to subjectively suspect the existence of the necessary prerequisites. The only issue is whether Ricciardi's suspicion that the defendant then had "alcohol in his body" was founded on "reasonable grounds".

[10] The standard of reasonable suspicion contemplates both subjective and objective considerations. While not an invisible standard, it is a conspicuously low threshold for the exercise of a police power and the jeopardy of criminal consequences for non-compliance. Ricciardi's suspicion that the defendant had alcohol in his body was founded on a constellation of factors: the odour of alcohol in the car and emanating from the defendant's mouth, the defendant's bloodshot and watery eyes, and his admission that he had consumed one or two drinks.

[11] The appearance of the defendant's eyes and the odour of alcohol in a car in which there were several passengers may well not amount, even when combined, to a reasonable basis for an ASD demand. However, I am well satisfied that the remaining factors (particularly the admission of alcohol consumption) afford ample objective basis for the demand made – even if the observation as to the odour of the defendant's breath is deleted from this calculus. While there is no evidence as to when the defendant consumed his one or two drinks or what they contained, the issue at this stage is whether there is an objective basis to "suspect" that there was any alcohol in the defendant's body – not the defendant's blood alcohol concentration. Further, given the context of their interaction and the nature of their exchange, I find it was at least reasonable for Ricciardi to suspect that the defendant was admitting to recent alcohol consumption (that is, within the previous three hours) when he answered the officer's predicate question. Accordingly, I have no difficulty concluding that the ASD demand was lawful and valid.

(c) The Mens Rea Issue

[12] As framed, the charge faced by the defendant is that he "did without reasonable excuse refuse to comply with a demand" made by a peace officer under s. 254(2) to provide a sample of his breath suitable for a proper analysis by means of an approved screening device, thus violating s. 254(5) of the Code. As said in R. v. Lewko (2002), 2002 SKCA 121, 169 C.C.C. (3d) 359 (Sask. C.A.), at para. 9, with respect to the ingredients of a charge under s. 254(5):

The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existence of a [valid] demand … . Second, the Crown must prove a failure or refusal by the defendant to produce the required sample of breath … (the actus reus). Third, the Crown must prove that the defendant intended to produce that failure (the mens rea).

The defence of "reasonable excuse", as comprehended by s. 254(5), contemplates a positive defence that may be advanced once the Crown has adequately established the essential elements I have just outlined. Chief Justice Laskin, speaking for a unanimous Supreme Court in R. v. Taraschuk, [1977] 1 S.C.R. 385, explained that, "[r]easonable excuse, under s. 235(2) [now s. 254(5)], refers, in my view, to matters which stand outside of the requirements which must be met … before a charge can be supported under s. 235(2)". Here, counsel for the defendant accepts that there is no admissible evidence of a "reasonable excuse" and that the actus reus of the offence (that is, non-compliance with the demand as evidenced by a failure to produce a suitable sample) is made out. The defence position, put simply, is that a reasonable doubt remains as to the existence of the requisite mens rea – that is, as to whether the defendant's undisputed non-compliance was intentional. (See R. v. Gutierrez (2001), 21 M.V.R. (4th) 183 (Ont. S.C.J.), at para. 15; R. v. Lewko, supra, at paras. 9-10; R. v. Dolphin, 2004 MBQB 252, at paras. 22-23.)

[13] Section 254(5) creates a single offence of non-compliance, although it may be committed either by failing or refusing to comply with an officer's demand: R. v. MacNeil (1978), 41 C.C.C. (2d) 46 (Ont. C.A.), at paras. 6-7. Here, the charge faced by the defendant particularizes refusal. Proof of this manner of non-compliance is ordinarily found in a suspect's explicit verbal refusal to perform the test or in words or behaviour from which a trier can infer his or her rejection or repudiation of the officer's demand. Although the defendant here "gave up" at one point and invited his arrest, I find, on all the evidence, that this was more an expression of exasperation on his part than any refutation of an officer's demand. I am buoyed in this interpretation by the defendant's resumed efforts when encouraged by PC Ricciardi. I am left, in short, with a reasonable doubt as to whether the defendant intended to "refuse" to comply with the officer's demand.

[14] I do not, however, rest my decision on the legal distinction, if any, between "failure" and "refusal". I am left with the same reasonable doubt as the existence of the requisite mens rea if I simply ask myself whether the defendant's non-compliance with the officer's demand – be it failure or refusal – was intentional. I reach this conclusion in view of the combined effect of the following facts, as I find them:

• The defendant was co-operative and respectful throughout;

• While the defendant had consumed an unknown amount of alcohol, he did not exhibit indicia of impairment nor was he arrested for this offence;

• Other than parking on the wrong side of a street, there was nothing about the defendant's conduct that attracted criminal or regulatory attention;

• Although the defendant sometimes appeared to be blowing softly and inhaling when he should have been exhaling, neither experienced officer expressed the opinion that he was endeavouring to avoid giving a sample of his breath, only pretending to "blow", or otherwise feigning;

• PC Ricciardi, who was present throughout the investigation, encouraged the defendant to persist in his efforts even when he was prepared to "give up", from which I infer that he believed the defendant was earnestly trying to respond to the demand;

• The defendant's efforts were so forceful (at least at one point) that he appeared on the verge of collapsing and was permitted to sit down to continue his labours;

• Both officers spoke of the sincerity of the defendant's attempts to provide a sample; indeed, I construe their testimony as reflecting their own doubts as to the existence of the requisite intentionality: see para. 6, supra.

[15] To be clear, I do not positively conclude that the defendant persistently exercised due diligence in endeavouring to provide a suitable breath sample and that his failure to produce one rests with some defect extraneous to his own efforts. I do, however, have at least a reasonable doubt in all the circumstances that this failure was a product of any intentional conduct or omission on his part. Accordingly, an acquittal must follow.

D. Conclusion

[16] In the result, I find Tho Loi not guilty of the single offence upon which he was arraigned.

Released on March 23, 2012

Justice Melvyn Green