Court Information

Ontario Court of Justice

Between: Her Majesty the Queen

Mr. D. Emmami for the Crown

— And —

Adam Caplan

Mr. D. Gomes for the defendant

Reasons for Judgment

Justice T. Lipson

Facts and Charge

[1] Adam Caplan is charged with refusing to provide a sample of his breath into an approved screening device on June 4, 2012.

[2] There is no dispute that Mr. Caplan voluntarily and unequivocally refused to provide a sample. The main issue centres on the sufficiency of the information provided to the defendant by the arresting officer with respect to the consequences of failing to comply with the demand and its impact on the validity of the demand and the refusal itself.

The Stop and Initial Observations

[3] On June 4, 2012 P.C. Crawford was conducting a RIDE spot-check program on Kennedy Road near Ellesmere Road in Scarborough. Shortly after 2 a.m. he stopped and investigated the defendant who was the driver and sole occupant of a motor vehicle. The officer asked Mr. Caplan some questions and smelled a faint odour of alcohol on the defendant's breath. Mr. Caplan's eyes were glossy and red. Mr. Caplan told P.C. Crawford that he had not been drinking. The officer also observed a cold ¾ full can of beer in a front cup holder of the vehicle. Mr. Caplan said that the beer belonged to a friend. P.C. Crawford testified that he formed a suspicion that the defendant had alcohol in his body and made an approved screening device demand pursuant to s. 254(2) of the Criminal Code.

Grounds for the Demand

[4] I am satisfied that P.C. Crawford had the requisite grounds to form a reasonable suspicion that Mr. Caplan had alcohol in his body and that he was entitled to make a demand pursuant to s. 254(2) of the Criminal Code.

The Refusal and Video Record

[5] Mr. Caplan refused to provide a sample. His conversation with the officer which includes the refusal was captured on video by the officer's in-car camera and is set out below:

OFFICER: I'll read you the formal demand and you'll have the option to taking part in it or not taking part in it. I'll explain to you the consequence of both. Fair enough?

CAPLAN: Yes

OFFICER: Hang tight. This right here is the camera. You're on it right now. Understand?

CAPLAN: Yes. Can I put my wallet on there?

OFFICER: Yes you can do that... I'll uh-

CAPLAN: I don't think I'm not going to blow inside that device.

OFFICER: You're not? OK. Give me a second. I'm going to read you the formal demand

CAPLAN: Yup.

OFFICER: and then you can again make your decision on that.

CAPLAN: Yup.

OFFICER: And I'll explain to you the consequences of that.

CAPLAN: Yup.

OFFICER: Do you want to fix your wallet so it doesn't blow over or anything like that?

CAPLAN: Can I make a phone call so I can get a pick-up in the morning, cause I realize that-

OFFICER: I'm going to make a demand of you right now. OK?

CAPLAN: Yup

OFFICER: Then you can decide whether you're going to take it or not.

CAPLAN: Yup

OFFICER: And if you decide you're not going to take it, then I'll explain to you the consequences of that. OK? And then you can.. you can make your phone call.. it's for transporting of them? In the morning?

CAPLAN: It's for transporting in the morning. Yes.

OFFICER: If in fact you decide you're not going to take the test, you're not going to be taken to jail. What is going to happen is I'm going to charge you here for refusing to take, to do this. You're going to be charged here and released here. OK? So you're not going to be going to the station and need a phone call.

CAPLAN: OK.

OFFICER: Understand that? If you need to take your phone call then, does that work for you?

CAPLAN: As long as I'm able to call my party then I'm-

OFFICER: Do you have a cell phone on you in the car?

CAPLAN: Yes I do. I just happen to drop someone off and left a beer in my car. And..

OFFICER: OK. Well if that's the case, then I'll read this to you and then you can decide. Fair enough?

CAPLAN: You know what, I'm not going to do the breathalyzer cause…

OFFICER: I'll still have to read this to you. OK?

CAPLAN: No problem.

OFFICER: Then you can decide…

CAPLAN: Not a problem.

OFFICER: I'd like you to have an informed opinion and an informed (inaudible). Fair enough right?

CAPLAN: Thank you very much. I'm not trying to be jerk or anything.

OFFICER: No no, I have no problem with that. I just want to make sure you're aware of the consequences of it. So that after I make it if you decide to do it… or decide not to… cause it's of no consequence to me, right?

CAPLAN: No no.. that's fair. I believe you.

OFFICER: Ok. 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 purposes of taking a sample. Do you understand?

CAPLAN: Yes I do.

OFFICER: Ok.

At this point, the officer writes in his notebook.

OFFICER: Now will you be taking the roadside screening device test?

CAPLAN: I will not.

OFFICER: You will not be. I'll ask you again. Will you take it?

CAPLAN: No.

OFFICER: No. Are you refusing- to take it

CAPLAN: I feel I have no reason to take it.

OFFICER: You feel like you have no reason? Based on suspicion of alcohol? That I have right now.

CAPLAN: Based on the fact that there was a full beer in there. I have no..

OFFICER: Yup. And that you drank tonight. And based-

CAPLAN: I had one beer tonight. I'm- That's it. I'm fine.

OFFICER: OK. Now, again. Before I ask you again. I'll ask you one last time. It'll come up with three readings. Do you understand it? The test itself or...

CAPLAN: I totally understand the test. I feel I don't need to… you pulled a full beer out of there. I'm admitting that I had a beer – one – tonight. I haven't had…

OFFICER: I have suspicion that you've had alcohol tonight. Right?

CAPLAN: I've given you- I've admitted that I have had one beer. There is no other. You have no other reason to subject me to any other tests.

OFFICER: Ok. That's fine. Hands behind your back. (Inaudible), you're under arrest for refusing to take a roadside screening device.

CAPLAN: You said I was going to get released.

OFFICER: Yeah. After you get arrested. And charged.

CAPLAN: Right.

OFFICER: Right? I told you, you would be charged with refusing, right?

CAPLAN: Yup. That's no problem.

OFFICER (speaking to dispatch): Traffic Charlie Call.

DISPATCH: Go ahead.

OFFICER (speaking to dispatch): Can you please mark one in custody.

DISPATCH: Alright (inaudible)

CAPLAN: Can I…

OFFICER: Uh, you're going to go to the car. I'm going to read you your rights to counsel.

CAPLAN: Ok.

OFFICER: And then I'm going to write up your release form.

CAPLAN: Ok.

OFFICER: Formally charge you.

CAPLAN: Ok.

OFFICER: And then release you.

CAPLAN: Ok.

OFFICER: Your licence will be suspended.

CAPLAN: For how long?

OFFICER: For 90 days.

CAPLAN: So how am I supposed to drive my friend tomorrow?

OFFICER: I… you're not.

CAPLAN: So, can I call them and let them know that?

OFFICER: Yeah. Once you get released then you can make your phone call. You're going to get released from here.

CAPLAN: So what am I supposed to do with my car though, right now?

OFFICER: It'll be… It'll be towed.

CAPLAN: No. I'll get someone to pick it up.

OFFICER: No… it'll be towed.

CAPLAN: No but I can get someone to pick it up.

OFFICER: You can get someone to pick it up tonight?

CAPLAN: Can I try to get that to happen?

OFFICER: When we're done with the release forms you can do anything you want, k?

At this point, Mr. Caplan is arrested.

OFFICER: Right here… right here… anything on you?

CAPLAN: No. Money.

OFFICER: How much money?

CAPLAN: Over 20.

OFFICER: You under any charges or anything like that?

CAPLAN: No. I'm good

OFFICER: Man, I don't know you.

CAPLAN: I know.. I can

OFFICER: I don't know you.

CAPLAN: I can understand…

OFFICER: I don't know how many beers you had. You said you had one right.

OFFICER: Tell me what you understand.

CAPLAN: I understand that one can make you blow over.

Analysis of Information Provided

[6] This discussion between the officer and the defendant establishes that P.C. Crawford did advise Mr. Caplan that he would be charged with a criminal offence if he did not comply with the ASD demand. It is also evident from the video that after refusing to blow, Mr. Caplan appeared to be surprised when the officer handcuffed him and placed under arrest. However I am satisfied that the defendant's surprise was based on a mistaken impression that he was going to be detained overnight, contrary to P.C. Crawford's earlier indication that he would be released at the scene. The officer did eventually allay Mr. Caplan's concerns.

Legal Principles on Information Requirements

[7] In most cases police officers will provide a detainee with more fulsome information about the consequences of failing to provide an ASD sample including potential penalties for non-compliance. However, neither the Criminal Code nor the common law impose an obligation upon the police to provide complete and accurate information to a defendant about the consequences of failing to comply with a roadside demand. In R. v. Danychuk, [2004] O.J. 615, the Court of Appeal held that where there is an outright refusal to provide a breath sample, the failure of a police officer to apprise a motorist of the process and consequences of non-compliance does not affect the validity of the demand. Other decisions also make it clear that a peace officer is not obliged to persuade or provide legal advice in order to obtain compliance with the breath demand. An officer's failure to thoroughly review the consequences of non-compliance with the roadside demand does not give rise to a reasonable excuse for a refusal to provide samples: R. v. Sures, [2010] O.J. 1615 (S.C.J.); R. v. Xhelili, 2011 ONCJ 420 (C.J.).

Voluntariness of Refusal

[8] The evidence establishes that Mr. Caplan's refusal to provide a sample was intentional and voluntary. From the outset, the defendant expressed a clear intention to not provide a sample. Any deficiency in the information conveyed to Mr. Caplan has, in my view, no bearing on any essential element of the offence.

The 15-Minute Waiting Period Argument

[9] The defence also submitted that P.C. Crawford should have waited 15 minutes before administering the ASD in order to rule out the possibility of mouth alcohol skewing the test. This argument must fail since there was an outright refusal by Mr. Caplan to comply with the demand. Because of the defendant's refusal to comply with the demand, P.C. Crawford was not required to consider whether to delay the testing.

Conclusion

[10] For all of the above reasons, I am satisfied that the Crown has established beyond a reasonable doubt that Mr. Caplan is guilty as charged.

Released: May 2, 2013

Justice T. Lipson