Court File and Parties

Court File No.: St. Catharines - 2111-998-12-S0372-00

Date: 2013-03-20

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Lawrence Passero

Before: Justice D.A. Harris

Heard: January 17, 2013

Reasons for Judgment: March 20, 2013

Counsel:

C. Lapointe for the Crown

N. Xynnis for the accused, Lawrence Passero

Reasons for Judgment

HARRIS J.:

Introduction

[1] Lawrence Passero has been charged with failing or refusing to comply with a demand to provide a sample of his breath into an approved screening device contrary to s. 254(5) of the Criminal Code.

[2] During his trial, provincial Constable Peter Tucker testified for the Crown. Mr. Passero and Ms. Alyssa Soloegb testified for the defence.

[3] Following the hearing of their evidence, counsel for Mr. Passero conceded that the Crown had proven all elements of the offence beyond a reasonable doubt.

[4] Counsel argued however that Mr. Passero was acting in reliance on erroneous information received by him from Constable Tucker and that I should stay the charge on the basis of this officially induced error.

[5] Accordingly, I will first review the law regarding officially induced error.

Officially Induced Error

[6] It was in obiter comments in his concurring reasons in R. v. Jorgensen, [1995] 4 S.C.R. 55 that Lamer C.J. first proposed that Canadian courts should recognize officially induced error as a legal excuse. He further attempted to define the conditions under which such an excuse would be allowed.

[7] Provincial appellate courts, including the Ontario Court of Appeal subsequently applied this reasoning.

[8] Then, in Lévis (City) v. Tétreault, 2006 SCC 12, [2006] S.C.J. No. 12, LeBel J. stated at para. 27 that "this analytical framework has become established".

[9] The following is a summary of that analytical framework.

The Legal Framework

[10] Officially induced error of law exists as an exception to the rule that ignorance of the law is not an excuse.

[11] Such mistakes of law will only be exculpatory in narrowly defined circumstances.

[12] Anyone relying on this excuse must establish five things:

(1) He must first demonstrate that he considered the legal consequences of his actions. He must have considered whether his conduct might be illegal and sought advice as a consequence.

(2) He must then demonstrate that the advice obtained came from an appropriate official.

(3) He must demonstrate that the advice was reasonable in the circumstances.

(4) The advice obtained must also have been erroneous.

(5) Finally, he must demonstrate reliance on the advice.

[13] Officially induced error of law functions as an excuse rather than a full defence. It can only be raised after the Crown has proven all the elements of the offence beyond a reasonable doubt.

[14] As this excuse does not affect a determination of culpability, it is procedurally similar to entrapment. Like entrapment, the successful application of an officially induced error of law argument will lead to a judicial stay of proceedings rather than an acquittal. Consequently, as a stay can only be entered in the clearest of cases, an officially induced error of law argument will only be successful in the clearest of cases.

[15] The elements of the officially induced error excuse must be proven on a balance of probabilities by the accused.

[16] Mr. Passero failed to do that here.

[17] Even if I had believed him, his evidence fell short of establishing an officially induced error. I will deal with this in more detail later in this judgment.

[18] However, I believed very little of what he said. I did not believe much of what he said both because of the almost arrogant manner in which he gave his evidence and because of what he had to say. I found his evidence to be internally inconsistent at times and so unreasonable on other occasions that it defied common sense.

[19] I will therefore review his evidence and that of the other witnesses at some length.

The Evidence

Accused's Evidence

[20] Mr. Passero testified that he had been at a friend's birthday party along with his girlfriend Ms. Soloegb. He drank part of one Caesar. He indicated that he had a medical condition and that he was involved in a medical research trial and that he was not able to consume any alcohol.

[21] This was the first problem with his evidence.

[22] He said that he could not consume any alcohol. He elaborated on that saying that he should not drink alcohol because he was involved in a medical research trial that required that he not consume any alcohol.

[23] However, he did drink alcohol that night.

[24] He said that he should not have done that "in the eyes of the medical staff".

[25] When questioned about this apparent inconsistency, Mr. Passero played it down and suggested that he drank Caesars because he liked to have something in his hand and he could fill that particular drink with beans and celery. He was not asked and he did not offer any explanation for why he could not have accomplished the same thing with a non-alcoholic version of the same drink, especially if he was not supposed to consume any alcohol.

[26] All of this left me with the definite impression that Mr. Passero was not overly concerned with other people's rules. Neither was he overly concerned with factual details which might not fully support his particular version of what had happened.

[27] Mr. Passero said that he and his girlfriend left the party because she was not feeling well. He drove her vehicle. He was speeding. That he agreed with.

[28] The police officer, Constable Tucker, stopped him and asked him if he knew how fast he was going. Constable Tucker also asked him for identification.

[29] After that point in his evidence, Mr. Passero pretty well disagreed with everything that Constable Tucker had to say.

[30] So I will now review the pertinent parts of Constable Tucker's evidence.

Constable Tucker's Evidence

[31] Peter Tucker had testified that he had been a provincial Constable with the Ontario Provincial Police since 1994.

[32] He was patrolling the Queen Elizabeth Way in St. Catharines at about 1:28 AM when he clocked a vehicle travelling 148 kilometres per hour in a 100 kilometre per hour zone. He pulled the vehicle over. He approached the vehicle. Mr. Passero was the driver. The female owner of the vehicle, Ms. Soloegb, was in the passenger seat.

[33] Constable Tucker spoke with Mr. Passero about how fast he was going. Constable Tucker detected the smell of alcohol on Mr. Passero's breath. He believed Mr. Passero had alcohol in his system. He asked Mr. Passero about this. Mr. Passero indicated that he had not been drinking.

[34] Constable Tucker then questioned Mr. Passero about a clear drinking glass which was located in the centre console of the vehicle. The glass contained a pink liquid. Mr. Passero indicated that he had not seen it before. It was not his. He gave the glass to Constable Tucker who determined that the pink liquid was not alcohol.

[35] Constable Tucker invited Mr. Passero back to his police cruiser where he made a demand for an approved screening device test.

[36] When asked by Crown counsel to repeat this in court, Constable Tucker read the following from a card:

I demand that you provide a sample of your breath into an approved screening device to enable a proper analysis of your breath to be made and that you accompany me now for the purpose of taking the sample.

[37] Constable Tucker said that he then asked Mr. Passero "Do you understand?" Mr. Passero replied "Yes but I have heard stories about these machines."

[38] Constable Tucker asked "When was your last drink?" Mr. Passero replied "I had one drink at 9:45 PM." He said that he was not a drinker.

[39] Constable Tucker presented the approved screening device to Mr. Passero who shook his head indicating no. Then he said "no". Constable Tucker asked if he was going to provide a sample and Mr. Passero again said "no".

[40] Constable Tucker explained all of the consequences of refusing. Mr. Passero then said "No. I think I can beat it."

[41] Constable Tucker placed Mr. Passero in the police cruiser. He did the necessary paperwork. A tow truck arrived to take the vehicle. Another officer arrived to transport Mr. Passero and his girlfriend wherever they wanted to go.

[42] Later that morning Constable Tucker was in Tim Horton's in Niagara Falls. Mr. Passero approached him from behind and engaged him in conversation. He wanted to thank Constable Tucker for the break that he gave Mr. Passero on the speeding ticket. He said that he did not know what a "shit storm" he had unleashed by refusing. Constable Tucker told him not to say anything further.

[43] During cross-examination, Constable Tucker insisted that he read the approved screening device demand to Mr. Passero from a pre-printed card. He did not have the wording of the demand memorized.

[44] Constable Tucker also said that Mr. Passero did not have any gum in his mouth. Constable Tucker would not have administered the test if Mr. Passero had said that he had anything in his mouth.

[45] Constable Tucker said that when Mr. Passero first refused to provide a breath sample, he explained to Mr. Passero that Mr. Passero would be charged with a criminal offence as well as subjected to an administrative driver's licence suspension and that the car would be towed and impounded. He told Mr. Passero that the penalties for not blowing could be the same as for failing the test. He made it clear that there would be criminal penalties as well as administrative penalties and financial penalties. He stated quite clearly that it was not possible that he told Mr. Passero that the only consequence of not blowing would be a 30-day licence suspension.

Accused's Cross-Examination

[46] As I stated earlier, Mr. Passero disagreed with much of this.

[47] He did agree during his testimony that he was speeding before Constable Tucker stopped him and asked him if he knew how fast he was going. He also agreed that the police officer asked him for identification.

[48] He made no mention either way about whether Constable Tucker asked him if he had been drinking. He made no mention either way about whether he initially told Constable Tucker that he had not had anything to drink, but that he had later told Constable Tucker that he had completed consuming one drink by 9:45 that evening.

[49] He did say that he asked for permission to step out of the vehicle because he had about $1500 cash in his pocket which made it difficult for him to retrieve his identification. Constable Tucker asked him about this and a brief conversation about his use or non-use of banks ensued. That conversation ended with Constable Tucker saying "OK" and moving on. Mr. Passero eventually provided his identification and then got back into the vehicle.

[50] Constable Tucker then came back and looked into the vehicle. He saw an empty coffee cup on the driver's side of the centre console and a glass with something in it located on the passenger side. He asked what was in the glass. Mr. Passero said he did not know, that it was not his car. The police officer took the glass, smelled the contents and then poured them out. He then asked if it was alcohol. Mr. Passero said "no". Constable Tucker said that he could not tell if it was alcohol but that he believed that the liquid in the glass might possibly have been alcohol. He could not prove it but it may have been alcohol and that based on that he was asking Mr. Passero to use the breathalyzer.

[51] Mr. Passero asked if he could spit out his gum. He had heard something about this. Constable Tucker gave him permission and he spit out the gum. He then asked if he could rinse out his mouth with water. Constable Tucker said "no". He told Mr. Passero to "take the breathalyzer right now". Mr. Passero said he was not blowing until he rinsed out his mouth. He believed it might affect the results. Constable Tucker then said that he would tell Mr. Passero one more time only.

[52] Mr. Passero did not blow into the device.

[53] He stated that it was absolutely false that Constable Tucker pulled out a card and read from it.

[54] He said that Constable Tucker told him that if he did not comply, Mr. Passero would receive a roadside licence suspension for 30 days and the car would be impounded. Constable Tucker did not tell him about a 90-day licence suspension or criminal charges or anything else. If Constable Tucker had told him what would actually happen he would have blown. In that Constable Tucker did not tell him that, Mr. Passero stated that "This is ridiculous". Constable Tucker told him to do it but Mr. Passero replied that he was not blowing.

[55] He said that he had offered to perform a roadside sobriety test, to walk a straight line or to give a blood sample.

[56] However, Constable Tucker insisted that he blow. Mr. Passero felt backed into a corner and so he refused to blow.

[57] He suspected that his girlfriend's vehicle would be impounded for seven days and his driver's licence would be suspended for 30 days. He thought that the whole thing was ridiculous.

[58] Had Constable Tucker said that he would face criminal charges and a mandatory 90-day suspension, he would have considered his options differently, a lot more carefully. He would have blown. As it was, he thought he had a right to demand to do something different.

[59] He concluded his examination in chief by indicating that it was all ridiculous. It came down to Constable Tucker being "snarky" about Mr. Passero having so much money on him. He wanted to back Mr. Passero into a corner and be on his way, and he did just that.

[60] During cross-examination, Mr. Passero was somewhat inconsistent about what had happened at the conclusion of his conversation with Constable Tucker regarding the issue of the cash that was in his pocket.

[61] At one point he agreed that Constable Tucker said "OK" and moved on. Then he indicated that Constable Tucker never said "OK". Rather, he left the issue of the cash open-ended but became negative towards Mr. Passero. Mr. Passero assumed that Constable Tucker was past this as an issue but that it apparently came up again in a conversation between Constable Tucker and Mr. Passero's girlfriend.

[62] He indicated that there would have been no problem if he had been allowed to spit out his gum and to rinse his mouth out with water. He indicated that this position was based on a misconception of the effect that this would have had. He indicated further that he had learned whatever law he knew from watching television.

[63] He indicated he had been prepared to provide a blood sample or perform a roadside sobriety test "or some other song and dance".

[64] However, Constable Tucker made it clear that blowing into the device was his only option.

[65] Mr. Passero indicated that this was ridiculous in that he was not impaired.

[66] At the conclusion of his cross-examination he stated that he had been entrapped by Constable Tucker. He had been misinformed and wronged. This had only happened because Constable Tucker was upset and jealous about his money.

Girlfriend's Evidence

[67] Alyssa Soloegb testified that she was Mr. Passero's girlfriend. They had gone to the party together. She had three drinks that night and he had one Caesar. He was driving back to Fort Erie when they were stopped.

[68] The police officer, Constable Tucker asked Mr. Passero if he knew how fast he was going. He then requested Mr. Passero's documents. Mr. Passero produced his driver's licence, along with the insurance and ownership papers.

[69] At this time Mr. Passero had to take out his money in order to get at his driver's licence. He asked Constable Tucker if he could get out of the vehicle in order to do this. Constable Tucker asked why he had so much money. Constable Tucker later asked her the same thing.

[70] Constable Tucker noticed the cup in the centre console and asked about it. They were not sure what was in it. Constable Tucker dumped it out and told Mr. Passero to get back in the car.

[71] Constable Tucker left them and then he returned and asked Mr. Passero to get out of the car again. Ms. Soloegb heard Constable Tucker ask Mr. Passero to do a breath test. Mr. Passero requested permission to spit out his gum and rinse his mouth. He offered to provide blood or perform some other test. Constable Tucker said no.

[72] Constable Tucker told Mr. Passero that he could lose his licence for 30 days and have the car impounded for seven days. There was no doubt in her mind that Constable Tucker said that.

[73] During cross-examination she confirmed that she was in the passenger seat of the vehicle. Constable Tucker and Mr. Passero were behind the vehicle. She had consumed three drinks that night. She was not feeling well. She had the window open and she could hear them through that. There were cars going by but there were not very many.

Analysis

[74] Mr. Passero made a number of unequivocal statements that defied logic and reason.

[75] As I mentioned earlier, he testified that he should not drink any alcohol but that he did in fact drink alcohol that night.

[76] He testified that Constable Tucker based the demand for a breath sample on the contents of the glass that was located in the centre console of the motor vehicle.

[77] This makes no sense in light of the fact that Constable Tucker testified that there was no alcohol in the glass. In addition, there was nothing to indicate whether the glass belonged to Mr. Passero or to Ms. Soloegb. For both of these reasons, the contents of the glass would not have provided a legal basis for a demand to be made. On the other hand Mr. Passero had, by his own admission, been drinking prior to driving the car. Constable Tucker said that he smelled alcohol on Mr. Passero's breath. That would have provided all of the grounds that Constable Tucker needed to make the demand. Constable Tucker testified that that was in fact the basis upon which he made the demand.

[78] Counsel for Mr. Passero did not cross-examine Constable Tucker about his reasons for making the demand. Neither did he argue that the demand had been made for the reasons described by Mr. Passero and that the demand was therefore not valid.

[79] Mr. Passero testified that Constable Tucker did not read the demand from a card. It was obvious in court, however, that Constable Tucker had not memorized the breath demand. He needed to use the card to read the demand in court. It only makes sense then that he also used the card to read the demand to Mr. Passero that night.

[80] Mr. Passero testified that he refused to provide a breath sample because he believed that the only consequences would be that his licence would be suspended for 30 days and that the car would be impounded for seven days. That makes no sense. How did he intend to get Ms. Soloegb or himself home that night if he could not drive and they had no vehicle? Was he assuming that Ms. Soloegb would be willing to give up the use of her vehicle for a week? If so, was he not being rather presumptuous in assuming that without consulting her first? It makes no sense that he would be prepared to do this, unless of course he possessed a level of arrogance that would be consistent with his decision to simply refuse to provide a sample.

[81] In any event, why would he be so willing to give up his driver's licence for 30 days? Common sense tells me that many, if not most, people would be reluctant to do this and to live with the inconvenience that it would cause. Mr. Passero provided no explanation for this in his evidence.

[82] While I note that Ms. Soloegb agreed with Mr. Passero on almost everything, I had trouble accepting her evidence overall. She had been drinking and she was tired. For whatever reason, she chose not to drive her car home that night. She was seated in the passenger seat of the car listening to a conversation that was taking place either on the other side of the vehicle or behind it. She suggested that there were not many cars going by but that there were some. Mr. Passero suggested that a car would have gone by about every 30 seconds. Constable Tucker was not questioned on this. These cars would have made noise which would have interfered with Ms. Soloegb's ability to hear the conversation between Constable Tucker and Mr. Passero.

[83] As well, her evidence seemed for the most part to be too neatly tailored to that of Mr. Passero.

[84] On the other hand, Constable Tucker disagreed with both of them on the key issues.

[85] Nobody provided me with a reasonable explanation for why Constable Tucker would have understated the consequences which would follow a refusal. Mr. Passero suggested that Constable Tucker was somehow put off by the large sum of cash that Mr. Passero was carrying and that Constable Tucker was jealous of him. Even if that was true, it still does not explain why Constable Tucker would do what Mr. Passero said he did.

[86] It would make no sense at all for him to do that if he wanted Mr. Passero to provide a sample of his breath.

[87] On the other hand, if, for some strange reason, Constable Tucker was looking to lure Mr. Passero into refusing, I do not see how he could have believed that telling Mr. Passero that his licence would be suspended for 30 days and that the car would be impounded for seven days would be an effective inducement. As I suggested earlier, it strikes me that, given that choice, most people would have elected to provide a sample of their breath into the device as demanded.

[88] If, on the other hand, Constable Tucker really wanted to play fast and loose with the rules in order to get Mr. Passero's licence suspended and the vehicle towed and impounded, all he had to do was to add two kilometres per hour to the clocked speed of 148 kilometres per hour in a 100 kilometre per hour zone and charge Mr. Passero under the "stunt driving" provisions of the Highway Traffic Act. Then Mr. Passero's licence would definitely be suspended and the car would definitely be seized.

[89] Constable Tucker did not do that however. According to Constable Tucker, he actually gave Mr. Passero an unspecified break on the speeding ticket. I note that counsel did not cross-examine him on that. Neither did Mr. Passero contradict him.

[90] I find as a fact that Constable Tucker did not play fast and loose with any rules and that he was genuinely following the rules and that he was genuinely trying to get Mr. Passero to provide a sample of his breath. So he told Mr. Passero about the criminal consequences and the administrative consequences and the financial consequences of not complying.

[91] He had no reason to do otherwise.

[92] I accept the evidence of Constable Tucker and reject that of Mr. Passero and Ms. Soloegb. I find that Mr. Passero's evidence was his version of "some other song and dance" presented in his belief that he "could beat" the charge.

[93] Mr. Passero was mistaken in that belief. He has failed to prove the officially induced error excuse on a balance of probabilities. He has fallen far short of establishing that this is one of the "clearest of cases" warranting a stay.

Application of the Officially Induced Error Test

[94] In any event, even on Mr. Passero's version of what happened, he has not established the defence of officially induced error.

[95] As stated earlier, the test as set out in Jorgensen, supra requires that he must have considered whether his conduct might be illegal and sought advice as a consequence.

[96] Mr. Passero never suggested that he ever considered whether his conduct might be illegal.

[97] On the contrary, he indicated that he believed that he did not have to blow if Constable Tucker did not let him spit out his gum and rinse his mouth out with water. He believed that he had a right to provide a blood sample or perform a roadside sobriety test or do something else instead.

[98] He never sought advice from Constable Tucker about this. According to Mr. Passero, he simply offered to do these things and then he was so shocked when Constable Tucker declined these offers that he refused to blow into the approved screening device.

[99] It was only after that refusal, that Constable Tucker allegedly told Mr. Passero that his licence would be suspended for 30 days and that the car would be impounded for seven days if he did not comply. What followed that was that Mr. Passero continued to refuse to blow into the approved screening device.

[100] I note finally that Mr. Passero never even suggested that Constable Tucker told him that it was not illegal for him to refuse to provide a breath sample. He simply indicated that Constable Tucker misinformed him as to the consequences that would flow from such a refusal. Any error in the mind of Mr. Passero was as to the full extent of the penalties rather than as to the legality of the refusal.

[101] So, either way, Mr. Passero failed to establish the prerequisites for the excuse of officially induced error.

Conclusion

[102] The Crown has proven Mr. Passero guilty beyond a reasonable doubt and I find him guilty and a conviction is registered.

Released: March 20, 2013

Signed: "Justice D.A. Harris"

Justice D.A. Harris