Court File and Parties

Court File No.: County of Renfrew 11-0850 Date: 2012-04-26 Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Andrew Hamilton

Before: Justice R.G. Selkirk

Reasons for Judgment released on: Thursday, April 26th, 2012

Counsel:

• Terri James, for the Crown
• W. Mark Wallace, for the accused Andrew Hamilton

Judgment

SELKIRK, J.:

Issue

[1] Mr. Hamilton is charged that on the 12th day of June, 2011 that he did fail to provide a sample into an Approved Screening Device. The issue is whether the failure by the police to provide a "last chance" warning in the circumstances raises a reasonable doubt as to whether the refusal was unequivocal.

Facts

[2] The relevant facts are that at 01:58 a demand under s. 254(2) was made of the accused. Use of the ASD was then explained and demonstrated to the accused. On the first attempt the accused put his lips to the mouthpiece but did not blow as no tone was heard. On the second attempt the accused did blow for a short period as there was a tone but it was for an insufficient period of time to be suitable.

[3] The officer testified that he explained the consequences of a failure and provided the accused with a new mouthpiece.

[4] The third attempt occurred with the accused sitting inside the cruiser as the officer thought that perhaps this would make it easier for the accused. This time there was a longer blow but again the accused stopped before sufficient air had been received into the device.

[5] On the fourth attempt, the officer let the accused hold the ASD in the hopes that this would make it easier for the accused. The accused started to blow, then stopped, then started to blow again but as the breath must be continuous this was also an unsuitable sample for analysis.

[6] The accused is then arrested, the paperwork is done at the scene and he is released.

[7] During the above attempts, the officer testified that the accused would in effect be coached by the officer to, "keep going, keep going until the tone stops."

[8] The timing of those attempts is relevant. The first was at 02:02; the second was at 02:03; the third was at 02:06 and the fourth was at 02:08. The arrest was at 02:09 or seven minutes after the first attempt. The accused immediately asks for one more chance which is refused. He is searched, given his right to counsel and is cautioned. At 02:12 he again asks for a last chance which is again refused.

[9] The officer indicated that he could have given the accused another chance as they were still in the cruiser and the ASD was present and in working order, but that he believed the accused had had ample opportunity. He did not appear to question the sincerity of the requests, however, and given the circumstances the accused found himself in, I am comfortable in finding that his requests for a last chance were sincere.

[10] The officer said the second attempt was better than the first and that the third was better than the second. The officer thought the accused was close to success on the third try.

[11] The officer said that after the third attempt that he did not tell the accused that the next attempt was going to be the last.

Legal Analysis

[12] The issue is whether I can find beyond a reasonable doubt that the refusal was unequivocal. While there is no doubt that the accused had been playing a game with the officer in that his attempts were not at all genuine and that he had been told that the consequence of not providing a sample is similar to that of a conviction for Over 80, the question remains as to whether that is sufficient to make his conduct criminal as discussed in Domik (supra).

Case Law Review

[13] The following case law has been cited to me. The first I will address is R. v. Tynkaluk (1989), O.J. 957, Summary Conviction Appeal. In that case the accused made eight unsuccessful attempts, was arrested and then pleaded for another chance. The incident had taken ten minutes in total.

[14] Tynkaluk points out that s. 254(2) (as it now reads), does not speak of a final refusal or any other kind of refusal; it speaks of a refusal.

[15] The court in Tynkaluk goes on to discuss R. v. Sagh (1981), 62 CCC(2d), 299 (Alta.Q.B.) where that court focused on the shortness of time between the refusal and the request for another opportunity and found that,

"It was not possible to segregate a short conversation into components, rather it must be taken in its entire context or true meaning of the conversation is lost.....It was not, in my view, a case of an unequivocal refusal as nothing from his evidence makes the refusal and apparent immediate willingness two separate incidents."

[16] The court in Tynkaluk also makes the point that, "where a person makes false attempts to comply with a demand he is refusing to provide adequate samples.....a subsequent offer in such a case should be treated no differently than an offer made following an outright refusal."

[17] The court in Tynkaluk concludes,

"In the case at bar, the accused was given eight opportunities to provide a proper sample of his breath, and he failed to do so on each of these occasions. The time that elapsed between the first attempt and the request by him for another chance was approximately ten minutes. As well, the officer and the testing apparatus were clearly still available. Further, the evidence indicates that the accused's offer to try again followed immediately on the heels of the arrest. I agree with Judge MacKinnon in Stowe that there must come a time when a person can reasonably conclude that there has been a failure to comply, and this case comes very close to that point as the accused was given a number of opportunities to comply. However, the entire incident took place over a period of just over ten minutes, and there was no problem with the availability of the required equipment. As well, there was no warning given to the accused at any point that his next attempt would be his last opportunity to provide a suitable sample. In response to the accused's "pleading" for another chance, which appears to have followed immediately upon the arrest, the officer should have given him one final opportunity to give an adequate sample.

Thus, in the specific circumstances of this case I find that the Learned Provincial Judge erred in law in finding the failure of the appellant to provide a sample of his breath was final and unequivocal."

[18] R. v. Domik 1979 O.J. 1050, Summary Conviction Appeal, affirmed 1980 O.J. 643, (OCA), dealt with an accused who had refused twice before agreeing to provide a sample. Justice Grange wrote,

"It is also my opinion that the whole circumstances of the accused's alleged refusal must be considered; and when, as in the case at bar, an accused changes his mind and agrees to provide a sample of breath at a time and place where the breathalyser machine and the qualified technician are available, the technician should not refuse to receive the breath sample for analysis. If the accused person's willingness to comply with the demand is made within the two hour period mentioned in [then s. 235(2)] of the Criminal Code and in the circumstances of the case at bar, a person should not be accused or convicted of refusal or failure to comply with the demand that he provide a sample of breath."

Mr. Justice Grange concluded at p. 307 that:

"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 interf