Citation: R. v. Westerman, 2012 ONCJ 9

ONTARIO COURT OF JUSTICE

Central West Region

Brampton Ontario

B E T W E E N :

HER MAJESTY THE QUEEN

-and-

JAMAAL WESTERMAN

REASONS FOR JUDGMENT

Duncan J.

[1] The defendant is charged with failing to provide a breath sample for roadside testing, offence date May 30 2010. He defends the case both on substantive and Charter grounds.

[2] The facts can be briefly stated: At 3:56 am on May 30 the defendant was driving a car in a residential area of Brampton. He had two passengers, his wife and another male who it was later learned was being dropped off at a nearby home. A police officer stopped the vehicle. She said it had been speeding, a point denied by the defendant, and she also wanted to do a sobriety check. There was a smell of alcohol coming from inside the car. When asked, the defendant admitted to having had one drink. The officer suspected that the defendant may have alcohol in his blood and decided to screen him. She did not have an ASD and called for one. A demand was made at 3:58. The machine arrived in four minutes, at 4:02.

[3] The defendant was given a mouthpiece sealed in plastic wrap and was directed to unwrap it and insert it into the device. In doing so he accidentally dropped it on the ground (the testing was being conducted outside, between the vehicles). There was not a second mouthpiece so another device was summonsed. It arrived at 4:10.

[4] Several attempts were made to get a suitable sample from the defendant. The mouthpiece was inspected and tested. It was not obstructed. The machine readily received samples of the officer’s breath. The officer described the defendant as giving short pulsing breaths rather than the continuous flow required.

[5] At 4:20 am the defendant was arrested and charged with failure to provide a sample. He was read his rights to counsel. He was held in the back of the police car, handcuffed, for about ½ hour then released on an appearance notice and permitted to leave in the same vehicle, now driven by the male passenger.

[6] The defendant is a resident of New Jersey. His mother lives in Brampton about five minutes away from where the defendant was stopped. The car was hers. The defendant was on his way to her home after being in downtown Toronto that evening.

[7] The defendant testified that he tried to provide samples but was unsuccessful. He was unable to explain why. He did not claim to have any health issues. In fact, he is a robust young man who plays football for the New York Jets of the NFL. He said he was willing to go to the station to provide samples there. He was surprised when he was charged because up to that point the officer had repeatedly said that if he didn’t give a roadside sample he would be taken downtown for a “harder test”.

[8] No recitation of rights to counsel was provided to the defendant until his arrest. The defendant had a cell phone as did his wife and passenger. He said that if he had been told that he had a right to consult counsel before or during the roadside detention he would have done so.

“Forthwith” – the Big Shot argument:

[9] It is first argued that the testing did not proceed “forthwith” – an argument that has intertwined substantive and Charter implications. If it was not “forthwith”, the argument goes, it is not a demand within section 254(5); the refusal is not a crime: R v Grant [1991] 3 CR 139. If it was not “forthwith”, the exception to the right to counsel does not apply and the detainee will have suffered a breach of 10(b).

[10] “Forthwith” has been defined in relation to whether there existed a reasonable opportunity to consult counsel. The connection flows from the logic that the suspension of the right to counsel in the roadside testing situation is a reasonable limit only because of the requirement that the testing occur “forthwith” and the impracticality of legal consultation within such a timeframe. However where time and circumstances are such that consultation is practical, the justification for the limit falls away as does the limit itself. [^1]

[11] It has been authoritatively determined that whether there was a reasonable opportunity to consult counsel will depend on an assessment of all of the circumstances in the case: R v Gill [2011] OJ No 3924 (Ont Sup Crt. Durno J). Counsel for the defendant relies on the unique personal circumstances of the defendant. He argues that the defendant had a cell phone and is an NFL player who had immediate access to a posse of lawyers who in turn had connections with Canadian lawyers. In essence, counsel argues that the defendant is a big shot, a man in a position of power and privilege (my characterization) that would have enabled him, more so than others, to almost immediately access legal advice.

[12] In my view, this argument cannot be accepted. While the case law says that the particular circumstances must be considered, I am firmly of the view that principles of equality dictate that the circumstances must be limited to those circumstances that would be common to any and all detainees in the circumstances presented, that is, essentially, the time passing until arrival of the screening device and the time of day.[^2] At least the assessment cannot include circumstances that flow from the particular detainee’s wealth, power or connections. This principle and limitation was recognized in the earlier cases which rejected assessment based on detainee –specific facts. In R v Smith 1996 CanLII 1074 (ON CA), 105 CCC (3d) 58 (Ont CA) Doherty J.A. wrote:

• The [detainee's] second ground of appeal is premised on the contention that there must be a case-specific assessment of the justification for the limitation on the [detainee's] right to counsel. The [detainee] argues that even if s. 48 of the H.T.A. imposes a justifiable limitation on his right to counsel, that justification disappears where, as here, the appellant, to Constable Stuckey's knowledge, had immediate access to a cellular phone.

• …. Individuals who can afford and choose to use cellular telephones do not have broader constitutional rights than the rest of us. The second ground of appeal fails.

[13] It is recognized that the jurisprudence has developed away from the strict approach in Smith, at least with respect to the possession and availability of cell phones, now such a ubiquitous item as to be almost always at hand and therefore part of the common relevant circumstances. But no case that I am aware of has gone so far as to support the submission that a detainee’s position and power should have a bearing on his constitutional rights. To the contrary the non-exhaustive list compiled by Durno J in Gill (supra para 32) of circumstances considered relevant by the authorities does not contain any circumstance of this kind. [^3]

[14] In any event, even if the defendant’s unique privileged circumstances are to be taken into account, it is my view that there was still no reasonable opportunity to consult counsel, which includes not just making a call but also making contact and receiving legal advice R v Torsney 2007 ONCA 67, 217 CCC (3d) 571 (Ont CA). It was 4 a.m. The first machine arrived within 4 minutes of the demand. The time probably stops there, as a detainee cannot rely on delay caused by his own action, however inadvertent (dropping the mouthpiece). Even stretching it to the arrival of the second machine at 4:10am (total 12 minutes), there was no reasonable opportunity for anyone to consult counsel in the circumstances.

Substantive Issue:

[15] As outlined in the summary of facts above, the defendant testified that he was trying to provide a sample but was unable to do so. He could not explain why. Is this a defence? If so, what burden of proof applies?

[16] There is no disagreement in the case law that an inability to provide a sample will provide an answer to a refusal charge. There is however a disagreement as to whether it should be characterized as an issue of “reasonable excuse” or of a negation of mens rea. The distinction is important because different burdens of proof apply – if it is a reasonable excuse, the burden is on the defendant on a balance of probabilities[^4] otherwise, the burden is on the Crown. The distinction has particular significance in this case because the defendant’s claim is rather thin. There is no explanation as to why he could not provide a sample. From his occupation, it can be assumed that he was in excellent condition, with superior lung capacity. The female police officer had no problem providing a sample nor presumably did the passenger who was allowed to drive the defendant home. The officer said that the defendant was blowing contrary to instructions – ie being deliberately obstructionist. Still, the defendant says otherwise and he is entitled to the benefit of reasonable doubt on credibility. He presented as credible on the witness stand. There was no indication that he was impaired or evidence that he had had more than the one drink. His wife, also credible, supported him as to his consumption. If his consumption was modest as claimed and his condition sober, he would have nothing to hide or reason to attempt to avoid testing. I have a reasonable doubt – though barely so -that his failure to provide a sample was intentional. I am certainly not satisfied to any higher standard including a balance of probabilities.

[17] There is a line of cases dealing with this question in the specific context of a claim of inability to comply due to medical condition. I think there is no conceptual difference between those cases and the present case. Both are equally cases where the defendant is asserting that his non-compliance with the demand was not intended, the only difference being that in the medical cases the defendant asserts a reason for his inability to comply. The inability of the defendant to point to a possible reason makes his case weaker but does not in my view alter the essential nature of the defence.

[18] In R v Sullivan [2001] OJ No 2799 I discussed this issue and concluded that the proper characterization is one of intention, an element of the offence, and when evidence puts the issue in play, the Crown bears the burden of proving intention beyond a reasonable doubt. Some cases have disagreed with this view but, having given those cases careful consideration, I am not persuaded that I should change the opinion I expressed in Sullivan. I am encouraged in this in that the preponderance of more recent authority – including decisions from provincial Courts of Appeal and the Superior Court of Ontario - share the conclusion I reached in Sullivan: R v Lewko 2002 SKCA 121, [2002] SJ No 622 (Sask CA); R v Carmichael [2003] AJ 316 (CA);R v Gutierrez [2001] OJ No 3659 (Ont S.C); R v Stanley [2003]OJ 2076. Further, I believe this view accords with general fundamental criminal law principle. It appears to be accepted that the mens rea of the refusal offence is that the failure to provide a sample be willful - voluntary[^5] and intentional: see Kenkel Impaired Driving in Canada PP 142-3 and authorities cited. If that is so, then I find it impossible to understand how a denial of having such intention can be anything other than a “defence” that goes to the elements of the offence which when it has an air of reality, must be negated by the Crown.

[19] By contrast, it is difficult to understand how a requirement that the defendant prove the absence of mens rea on a balance of probabilities can be consistent with fundamental principle or for that matter, compliant with the presumption of innocence guaranteed by the Charter. The former case law that placed reliance on s794(2) of the Code can no longer be considered valid, given the more recent restrictive interpretation of that subsection in R v H.P. 2000 CanLII 5063 (ON CA), 143 CCC (3d) 223 (Ont CA). The handful of cases still adhering to the “reasonable excuse” view (see R v Bichon [2003] OJ No 5840(CJ); R v O’hene [2003] OJ No 3829(CJ) purport to find support in the judgment of the Court of Appeal in R v Moser 1992 CanLII 2839 (ON CA), 71 CCC (3d) 165 wherein Doherty JA confirmed that “reasonable excuse” refers to matters “outside of the elements of the offence”. With respect, I don’t see how this supports the view that non-intentional failure comes under “reasonable excuse”. Isn’t it just the opposite, since intention is an element of the offence?

[20] In my opinion the law is accurately and succinctly stated by Gorman J. a prolific and thoughtful judge of the Newfoundland Provincial Court in R v Sheehan [2003]N.J. No 57:

In my view, the actus reus of this offence is the failure or refusal to comply with the demand. The mens rea element requires that the failure or refusal to comply be intentional. Therefore, a person who fails to provide an appropriate sample despite genuinely attempting to do so, will not have committed the mens rea of this offence. It is important to keep in mind that this has nothing to do with whether or not the accused had a reasonable excuse.

[21] In summary, it remains my view that a reasonable doubt as to whether the defendant’s failure to provide a breath sample was willful or intentional provides a sufficient answer to the charge. I have such a doubt. The charge is dismissed. [^6]

January 11 2012

B Duncan J

J. Sone, V. Aujula for the Crown

P. Ducharme for theDefendant

[^1]: While the logic of defining “forthwith” in relation to opportunity to consult counsel may be sound, certain practical difficulties arise: See discussion: R v Beattie [2009] OJ No 4121 para 15-16.

[^2]: There may be other relevant circumstances as well. It is not my purpose to compile an exhaustive list.

[^3]: There are other reasons to reject a highly individualized assessment of circumstances relevant to this issue. The police officer will often be unaware of such circumstances. It would be unfair, to say the least, to require him to govern himself in accordance with circumstances of which he has no knowledge. In this case there was no evidence that the officer knew the defendant was an NFL big shot. Further a detainee who has a lawyer immediately at hand – literally (as in the passenger seat: as postulated in R v Parkes [2007] OJ 502) or figuratively (as submitted here) would be immune from roadside testing because it could never be accomplished “forthwith”.

[^4]: Or so it is usually said. As discussed in Sullivan infra, I am not sure that that is correct. But as in Sullivan it is unnecessary to resolve this issue in this case. I am prepared to assume that the burden on the accused follows if the defence comes under “reasonable excuse”.

[^5]: Whether voluntariness is considered an aspect of mens rea or actus reus does not matter for present purposes.

[^6]: As a final footnote, I would repeat the comments made by Justice Blacklock in R v Sajjad [2007] OJ 2726 to the effect that the police should be aware that that they can avoid the problems that arise when they believe a roadside detainee is faking it by arresting him and taking him for an intoxilizer test rather than simply charging him with refusing the asd: > “In cases other than a direct and blatant refusals, there is much to be said for taking a different approach than is generally taken by Officers across the Province in these cases. I agree with Justice Duncan ( in R v Persaud [2005] OJ No 129) that behaviour of the general nature engaged in by the accused in this case can provide the necessary additional grounds to support a full breath demand, an arrest for impaired operation and a trip to the Police Station for a breath test there. I also agree with him that this approach ensures the accused has legal advice before he is charged with a serious offence, when he may not be sure what his actual responsibilities are. It furthermore avoids what can be delays arising out the dance we often hear about at the roadside as the Officer attempts to put himself in a position where he has evidence to establish a failure beyond a reasonable doubt, and the accused in an uninformed way attempts to extricate himself as best he can from the difficulty he may perceive himself to be confronting.”