Court File and Parties

Court File No.: Toronto Region Ontario Court of Justice

Between:

Her Majesty the Queen

M. Savage, for the Crown

— And —

Balachandiran Vethavanam

H. Spence, for the accused

Heard: November 20, 2012, January 11, 2013

Judgment

Feldman J.:

Facts

[1] Balachandiran Vethavanam entered a not guilty plea to Refuse Breath Sample. It is alleged that after having been stopped by the police while driving and a roadside breath sample demanded, the accused unlawfully feigned numerous attempts to provide a suitable sample of his breath.

[2] The Crown called the arresting officer and tendered in-car video surveillance in support of its case. Mr. Vethavanam testified in his own behalf.

[3] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the onus of proof on the Crown.

The Evidence

[4] On December 10, 2011, at 6:17 p.m., P.C. Matthew Sattler was driving eastbound on Finch Ave East and while waiting to turn south on Tapscott Rd. in Toronto observed the defendant in his motor vehicle driving out of a plaza on the west side of Tapscott Rd., making a wide turn and then straddling two lanes while heading south. The officer later described the straddling as drifting into the curb lane. He said he had an unobstructed view from about 10 car lengths behind.

[5] P.C. Sattler pulled the accused over at 6:18 p.m. There were 3 occupants. On request, Mr. Vethavanam handed over his driver's license.

[6] Using a flashlight, the officer saw 8 open beer bottles on the floor behind the driver's seat. He said he was, as well, concerned by his observation that the front passenger had a full ski mask over his face, given the number of armed robberies and convenience store holdups in the area, including a recent robbery. For safety reasons he ordered everyone out of the vehicle in order to search for weapons. None were found.

[7] P.C. Sattler explained to the defendant the reasons for the stop and asked him where he was coming from. In receiving his answer, the officer said he detected an odour of alcohol coming from Mr. Vethavanam's breath. He told the accused he believed his ability to drive was impaired by alcohol. The defendant indicated that he had one beer.

[8] Because it was cold outside, the officer allowed the defendant to sit in his car, but took his keys and cell phone as he was unsure whom he might attempt to reach given his earlier concerns. He said he called for a roadside instrument at 6:22 p.m. Another officer brought one 7 minutes later from a station that was 5 minutes from their location. It had last been calibrated on December 9th.

[9] P.C. Sattler read the roadside breath demand to the accused at 6:30 p.m. He said they both spoke in English and he had no doubt that by his words and gestures Mr. Vethavanam understood the officer's instructions.

[10] Following the demand, P.C. Sattler told the court he had the defendant open a mouthpiece that his detainee proceeded to drop but was still prepared to use and placed on the instrument. The officer said he explained that the accused was to blow until told to stop and demonstrated how to do so.

[11] P.C. Sattler testified that on the first attempt he observed Mr. Vethavanam breathing in and out with the result that the machine registered an error. He could not remember what the error code read, whether indicating malfunction or insufficient breath sample. The officer then demonstrated how to blow, again showing the accused that it only took a few seconds to register a reading if he were to blow properly into the mouthpiece.

[12] Counsel for the accused provided, in exhibit 2, a Toronto Police Service document setting out 'Screening Device Guidelines' that included the following error codes that indicate when an instrument may not be working properly. 'E0' means, "test person not blowing hard and evenly enough". 'E1' reflects "sensor fault". Its remedy requires that the technician turn the switch on and off. If the code reappears, the instrument is to be sent in for service. 'E5' indicates "fault in the sampling system". The remedy is to repeat the measurement and if the code reappears to send the machine in for service. Finally, 'E6' suggests "instrument malfunction". In that case, the instrument is to be sent in for service.

[13] P.C. Sattler said that the defendant made several attempts to blow thereafter but placed his mouth around the mouthpiece, was again blowing in and out each time and was stopping and starting. The officer indicated that he could see Mr. Vethavanam puffing up his cheeks and stopping to blow, which resulted in the machine again registering an error. He said he cautioned him about this several times. On one occasion the defendant asked if he should breath in and out. P.C. Sattler told him to breathe out into the mouthpiece. He told the court it was his experience, and in this case his belief that what was occurring was part of common games people sometimes play in order to avoid recording a true reading.

[14] P.C. Sattler also testified that he had no doubt the accused sufficiently understood English in light of his words and gestures, in addition to the fact that his friends spoke to him only in English.

[15] A review of the in-car camera video helps clarify some of the officer's evidence with regard to the roadside process. Initially, P.C. Sattler can be heard telling the accused that if he doesn't get out of the car he'll drag him out. Once the defendant is out, he tells him he is drunk and that he should put his hands on the trunk, consistent with the officer's safety concerns. He calls for a roadside instrument, or ASD (alcohol screening device), at 6:21 p.m. and then searches the car. At 6:23 p.m., he tells the accused he can leave if the breath samples he provides indicate he does not have alcohol in his system.

[16] At 6:26 p.m., the officer takes the defendant's ignition key out and then allows him and his companions to sit in the car given the temperature outside. He tells Mr. Vethavanam he thinks he is drunk and so he won't let him drive.

[17] Another officer brings the instrument at 6:28 p.m. At 6:30 p.m., P.C. Sattler escorts the accused to his scout car and explains how to blow into the machine. After the first attempt, the officer can be heard saying, "that's no good". He goes on to tell the defendant he must breathe into the mouthpiece hard for 10 seconds, that he should take a deep breath and when ready to go, "I'll tell you when to stop". During the next attempt, he tells Mr. Vethavanam to keep breathing and that he can't stop, later to breathe out, not in, that he can be charged with a refusal offence, to stop playing games and to blow out continuously or be charged.

[18] The accused makes other attempts. The officer tells him he sees no mental problems to interfere with understanding how to blow and Mr. Vethavanam appears to agree. The defendant tries again with the officer telling him to blow out and to "go, go, go", but the accused stops. P.C. Sattler responds by saying, "you're fucking around with me…if this keeps up I will charge you with refusal…a criminal charge…don't play games, you're speaking English."

[19] P.C. Sattler then says, "I'm going to show you…take off the dirty mouthpiece…do exactly what I do…I'm going to breathe out for 10 seconds." The officer then demonstrates again how to blow into the machine. In response, Mr. Vethavanam says he's got it now.

[20] P.C. Sattler tells his detainee to "do exactly as I do" and whenever he is ready to take a deep breath and to go ahead. As the accused blows into the mouthpiece, the officer tells him to keep going eight times and then exclaims, "you're stopping". Mr. Vethavanam says he can't breathe, but the officer accuses him of playing games. The defendant asks to try again and is told he has been given many chances.

[21] The accused blows again with the officer exhorting him to keep going, but he stops. P.C. Sattler offers one more chance but says the alternative is to be arrested, have his car towed and to wind up in jail and that he has had 8 or 9 opportunities. He says this will be the defendant's last chance and that he must blow until told to stop. Mr. Vethavanam made one more attempt but stopped. He was arrested and handcuffed.

[22] In his testimony, P.C. Sattler denied there was a language or comprehension problem but suggested the accused was playing games to avoid providing a suitable sample. He says the defendant had the benefit of seeing the officer conduct several simple self-tests but in his view chose to stop instead of continuing to blow into the mouthpiece. He believes the code 'E', meaning error, was a result of Mr. Vethavanam providing an insufficient breath sample and says the machine was working properly, particularly given the results of his own breath tests. He concedes 'error' could mean the machine was malfunctioning.

The Defendant's Evidence

[23] Mr. Vethavanam testified that he had one beer two hours prior to being stopped. He said he made a wide turn out of the parking lot because on releasing the clutch his foot got caught in the floor mat and the clutch was released suddenly. He indicated that he slowed down immediately after the officer activated his emergency lights.

[24] He said he felt scared when P.C. Sattler spoke to him in an angry tone. He was unsure why everyone had to get out of the car. He understood P.C. Sattler when the officer told him he had called for a roadside instrument and that he could get back in his vehicle while waiting for it.

[25] Mr. Vethavanam told the court that he understands English somewhat but not difficult words. He says he needs to speak very little in his work cleaning buildings and driving a taxi part-time but concedes he answered questions in English on his exam to qualify as a taxi driver. He let the officer know of his difficulty with language but did not feel listened to.

[26] He said P.C. Sattler spoke quickly and in an angry tone. That is apparent on the video. After the roadside instrument arrived, he claims not to have understood the breath demand but conceded he was able to gauge that he had to blow into it. He claimed to think at first that if he were to blow somewhere into the mouthpiece that would be enough. He insisted that when told to blow for a long time he did so.

[27] Mr. Vethavanam testified that after the officer's demonstration he better understood how to blow. He assented to the offer of a new mouthpiece, connected it to the instrument when instructed to do so and felt he was following the instructions to take a deep breath and blow for over 10 seconds. He said he had no concern he would fail the test and could not understand why the result did not register as suitable.

The Issues

1. Given the unsuitable samples provided by the accused has the Crown proven that the roadside instrument was working properly?

2. Has the Crown proven the mens rea element of the offence:

   • (a) In light of his language difficulties did the defendant understand the breath demand?
   • (b) Was the defendant feigning in his efforts to provide a suitable sample?

Positions of the Parties

[28] Ms. Spence, for the accused, submits that once the detainee makes effort to provide even unsuitable samples the burden falls on the Crown to show the instrument was in proper working order. Here she points out that the officer was unable to say what error codes were displayed that might indicate either a malfunction or an unsuitable sample or that the result of his own self-test was clear so that the court should be in reasonable doubt with regard to the prosecution's onus of proof in relation to this issue of fact.

[29] Mr. Savage, for the prosecution, submits the evidence proves that the defendant was feigning in his attempts in order to avoid a 'fail' result so that the point of law is moot.

[30] Counsel for the accused also says that there is a reasonable doubt on the evidence that Mr. Vethavanam fully understood the nature of the demand, both in relation to his legal obligation and its consequences and that even when it appeared after the officer's self-test that the defendant may have acquired that awareness he was not provided sufficient opportunity to meet his obligations.

[31] The Crown suggests the evidence demonstrates adequate understanding on the part of the accused to establish the mens rea element of the offence and that he was given enough chances to comply.

Analysis

The Crown's Onus to Prove the Instrument was Working Properly

[32] Where the Crown shows an outright refusal on the part of the accused by either words or deed to provide a suitable sample into the roadside instrument it need not prove that the machine was in working order. The offence is complete as a result of the refusal. However, where the Crown relies on an inadequate sample based on insufficient or feigned efforts to blow, the authorities require the prosecution to prove the machine was working properly: R. v. Farkas, [2002] O.J. No. 4682 (Ont. C.J.), per Pringle J., at para. 13.

[33] There is evidence to permit the inference that the machine was functioning properly. It was an approved screening device properly calibrated; there were no obstructions to the mouthpieces so that the defendant's breath could directly enter the instrument; even after an error was registered, it appeared to receive breath from both the officer in his self-tests and the accused; and it is open to be inferred that any error resulted from the accused not making a genuine effort.

[34] On the other hand, there is some evidence concerning the workings of the machine that is unclear, unassisted by gaps in the officer's recollection. When an error appeared, he made no note of what it indicated, whether malfunction or insufficient breath sample. When he conducted a self-test he described the result as "no register", meaning '0', as opposed to the required result of '000', an uncertain designation.

[35] The meaning of 'error' here and the weighing of the significance of 'no register' in relation to the officer's self-test are determinative. It is of note that all codes other than 'E0' require an adjustment or remedy. The self-test result is to be viewed in the context of all the evidence including the issue of 'error', the meaning of 'no register' and any inferences drawn with regard to the question of feigning on the part of the accused.

The Mens Rea Element

(a) Did the Accused Understand the Demand and was it Valid?

[36] One of the constituent elements of the offence in s. 254(5) that the Crown must establish is that the individual of whom the demand was made understood the demand: R. v. Degiorgio, [2011] O.J. No. 3337 (Ont. C.A.), at para. 43.

[37] P.C. Sattler was of the view that the defendant understood English sufficiently well. He noted that his friends spoke to him in English and that he answered the officer's questions in English. The accused admitted answering exam questions in English while qualifying as a taxi driver. He appeared to follow the officer's directions up to the point of providing a suitable sample. I am satisfied on this evidence that he had a reasonable facility in English.

[38] P.C. Sattler's attitude did not enhance the prosecution's case. The evidence indicates he spoke quickly and raised his voice demonstrating impatience, used sarcasm and insults and seemed angry at times. In this, he allowed his role within the administration of justice to be diminished.

[39] Mr. Vethavanam said he did not know difficult words, uses English infrequently at work and claims not to have understood the breathe demand. He said he let the officer know of his problem.

[40] The breath demand is not complicated. The officer's demonstration led the accused to say, "I've got it now". He told the court he understood he had to blow hard for 10 seconds but failed to do so. He asked for further chances but continued to stop prior to his providing a suitable sample.

[41] On all the evidence, I infer to the requisite standard that the defendant tended to minimize his facility with the English language as I do on the question of whether he understood he was subject to arrest should he fail or refuse to provide a suitable sample. He didn't ask for more chances because he merely wanted to finish what he started. I'm satisfied beyond a reasonable doubt that he understood the demand.

(b) Was the Accused Feigning?

[42] While I was unimpressed with the officer's impatience with Mr. Vethavanam, I found this experienced officer's observations of the defendant's efforts to be objective and reliable. I accept that the accused continued to stop and start while blowing into the mouthpiece. The accused conceded that he knew he had to blow continuously and hard and in fact almost provided a suitable sample more than once. I infer on all the evidence that he was attempting to hold back from registering a true result. I accept, but for medical issues, it is not burdensome to provide a suitable sample, one the defendant failed to do despite numerous chances and warnings. I reject as self-serving his evidence that he blew for a long time and that he had no concern he would fail the test. He was feigning, establishing the actus reus element of the offence.

[43] In the result and arising from this finding, I am satisfied beyond a reasonable doubt that the error code to which the officer referred read 'E0', indicating the accused was not blowing hard or even enough. Given this finding, I am satisfied on all the evidence to the requisite standard that the instrument was in proper working order.

[44] Counsel for the accused also raised the issue of "forthwith", that is, was the demand made and test taken within an acceptable time in the circumstances. No authorities or submissions of any substance were given and the issue was not pressed. I cannot give effect to this claim that brings into question the defendant's right to counsel under the Charter.

Conclusion

In R. v. Porter, 2012 ONSC 3504, [2012] O.J. No. 2841 (Ont. S.C.), Code J. concluded that Fail or Refuse Sample is a general intent offence and that knowledge or awareness of the prohibited act informs the mens rea element. I have found that the actus reus has been established. I am satisfied on the evidence that he had the requisite knowledge. In the circumstances, I am of the view that the Crown has proven the essential elements of the offence beyond a reasonable doubt. There will be a finding of guilt.

Released: May 15, 2013

Signed: "Justice L. Feldman"