Court Information

Ontario Court of Justice Old City Hall - Toronto

Between: Her Majesty the Queen And: Shameer Washington

Counsel:

• M. Mackett, for the Crown
• N. Charitsis, for the Defendant

Heard: April 15, 2013

Reasons for Judgement

Justice Melvyn Green

A. Introduction

[1] It was close to midnight on January 28, 2012 when the defendant, Shameer Washington, was pulled over on Highway 401. He admitted consuming beer, and was then the subject of an approved screening device (ASD) demand. Despite several opportunities, no suitable sample was ever provided. The defendant was charged, that he "without reasonable excuse, failed or refused to comply with a demand made to him by a police officer … to provide forthwith a sample of his breath … to enable a proper analysis of his breath to be made by means of an approved screening device".

[2] The two investigating officers testified at the defendant's trial, as did the defendant who, in essence, says he was trying to follow the ASD demand instructions and never refused to do so. The ASD administered to the defendant was last calibrated some six weeks before the date of the alleged offence. As in all criminal cases, the burden of proving all of the essential elements of the offence falls exclusively to the Crown.

B. Evidence

[3] OPP Cst. Jeffrey Nicholas was the officer driving the police vehicle on the evening of January 28, 2012. He also administered the ASD tests. An auxiliary officer, Peter Stezik, accompanied Nicholas. The officers had begun their 12-hour shift in a "ghost" Crown Victoria at 4pm. They changed to an unmarked Chevrolet Tahoe at 6:10pm. Nicholas had checked the calibration of the ASD (an Alcotest 7410 GLC) in the Crown Victoria when he began his shift. He did not transfer that ASD to the Chevy Tahoe as the Tahoe was already equipped with an ASD. He did not check the integrity of the latter ASD.

[4] At about 11:25pm, the officers observed the defendant's eastbound vehicle move from lane to lane on the 401 near Meadowvale. The vehicle appeared to be swerving or, at least, had difficulty maintaining steadiness within each lane. Nicholas activated his lights and siren and pulled over the defendant's vehicle. He approached the driver's side and requested a driver's license from the defendant, the sole occupant of the vehicle. The defendant complied. In answer to Nicholas' question, he also advised that he had had two beers that evening. Nicholas could smell a faint odour of alcohol on the defendant's breath. He asked the defendant to accompany him to the officers' truck to provide a roadside sample of his breath. The defendant twice placed something from his centre console into his mouth, replacing it on each occasion in response to Nicholas' command. It appeared the item was a penny, the purported ASD-defeating properties of which Nicholas characterized as an "urban myth".

[5] Nicholas read the formal ASD demand to the defendant at about 11:30pm, once he was in the police truck. The defendant appeared to understand. Nicholas then demonstrated how to provide a sample, blowing into the device for ten seconds and registering a "0.00", indicative of BAC of zero. He gave the defendant a wrapped mouthpiece and explained the possible ASD test results and the potential criminal consequences of failing or refusing to provide a suitable sample. The defendant's first two attempts generated error messages – "E.O." – indicating "insufficient air". Nicholas reminded the defendant of the penal risks attending a charge of failure or refusal. The defendant stopped blowing after two to three seconds on his third attempt. The machine did not emit a tone that signals that air is actually being released into the ASD. The defendant's fourth and fifth attempts generated the same E.O. error message as the first two. The consequences of failing or refusing to blow were again explained to the defendant after his fourth attempt. Nicholas could see the defendant covering the mouthpiece with his tongue during his fifth effort. The defendant then said, "I'm not going to blow again". Nicholas again cautioned the defendant about the consequences of a refusal (including a 90-day driving suspension), announced that the next test would be his "last chance", and demonstrated once more the proper means to provide a breath sample. The defendant's response, at 11:45pm, was, "I will not blow".

[6] Nicholas asked the defendant to exit the police vehicle so he could formally arrest him. "But why?" the defendant responded, "I didn't refuse". Nicholas replied, "You did. I gave you a last chance and you said you will not blow". The defendant was physically removed from the truck, struggled, and was cuffed behind the ear when he refused to put his hands behind his back. He then complied and was returned to the police truck with the auxiliary officer's assistance. At 12:16am, the defendant was served with notice of a 90-day driving suspension and released on an Appearance Notice.

[7] The notes on which Stezik, the auxiliary officer, relied to refresh his memory are somewhat sketchy. Nonetheless, his recall of the events surrounding the police investigation of the defendant was generally consistent with Nicholas' testimony. He had only minimal training or experience in the operation of breath-testing devices and instruments and had little or no appreciation of the difference between roadside and breath room machinery. However, his evidence closely paralleled that tendered through Nicholas as to the defendant's driving conduct, his putting something in his mouth, Nicholas' cautions respecting the potential consequences of refusal, the defendant's inadequate testing performance and ultimate refusal to provide any further samples, and the defendant's resistance to being handcuffed and arrested.

[8] Nicholas first realized that there was a "calibration problem" when he was preparing his notes at 12:45am. On reading the calibration sticker on the device, he discovered that the ASD he used to administer the roadside tests to the defendant had last been calibrated on December 18, 2011. He understood that the OPP ASD calibration protocol mandated re-calibration every 14 days. Nicholas had been a qualified breath technician. He was not, however, aware of the manufacturer's specifications for the machine. He had assumed the ASD administered to the defendant was working properly since he had registered "0.00" on the two occasions he tried it that evening. Asked whether the readings might reflect a machine error, Nicholas said that he did not know. He would, he said, have ordered a properly calibrated ASD had he noticed the problem before roadside-testing the defendant: "There's always another instrument available", he explained. He could not recall ever using an ASD where he knew the device was outside the OPP calibration period.

[9] The defendant was a 47-year old mechanic without criminal antecedents. He had no health problems and no trouble breathing that day. He did not dispute "most" of the police officers' evidence. He recalled having one beer with some fellow employees after work. He agreed that he had been afforded four or five opportunities to blow and that he had been warned of the consequences of not blowing – he "could end up going to jail". He also agreed that he never heard a tone during his testing procedure. The defendant claimed that he tried to follow the police instructions and that he never refused to blow or said he would not blow. He intended, he said, to try one further time. He wanted, he testified, to complete the roadside testing as he was confident it would confirm his insignificant level of alcohol consumption. The defendant denied ever putting anything in his mouth while in his own vehicle.

C. Analysis

(a) Introduction

[10] As set out in subsection 254(2) of the Criminal Code:

If a peace officer has reasonable grounds to suspect that a person has alcohol … in their body and that the person has, within the preceding three hours, operated a motor vehicle … the peace officer may, by demand, require the person to comply … with either or both of paragraphs (a) and (b) …:

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device ….

Subsection 254(5) then prescribes that, "Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section".

[11] Other than the defence of "reasonable excuse" (which is not advanced in the case before me), the essential elements of the offence set out in s. 254(5) of the Code are summarized in the oft-cited case of R. v. Lewko, 2002 SKCA 121, at para. 33:

1. A proper demand;
2. A failure or refusal by the accused to produce the required sample; and
3. The intention of the accused to produce a failure or refusal.

(See, also, R. v. Degiorgio, [2011] O.J. No. 3337 (C.A.), at para. 43.)

To some degree, Crown satisfaction of all three elements identified in Lewko is at issue. The defence, in brief, submits that the defendant never failed or refused to provide the requested sample (the actus reus) or that, in any event, it was never his intention to do either (the mens rea). Further, the defence, put simply, argues that the demand was invalid, and thus relieved the defendant of having to comply with it, as the Crown has failed to adequately establish that the ASD at issue was not only a nominally "approved screening device" but, as well, a properly functioning unit in view of the police failure to observe OPP calibration protocol.

(b) Did the Defendant Fail or Refuse to "Blow"?

[12] The police witnesses speak to the defendant's failure and ultimate refusal to comply with the ASD demand. The defendant denies failing or refusing to provide an adequate sample. No other evidentiary source supports this latter proposition. An acquittal must follow if I am left with a reasonable doubt by the defendant's testimony as to his bona fide efforts to comply with the demand and his ever refusing the demand or his lack of intention to either fail or refuse to "blow".

[13] The appropriate analytical approach to, as here, contests of credibility, is set out by the Supreme Court in R. v. W.(D.). As explained in R. v. J.H.S., 2008 SCC 30, at para. 9, W.(D.) "simply unpacks what reasonable doubt means in the context of evaluating conflicting testimonial accounts". (See also, R. v. C.L.Y., 2008 SCC 2, at para. 8.)

As any trier of fact I may, with reason, accept none, some or all of the evidence of any witness: R. v. J.H.S, supra, at para. 10; R. v. Francois, [1994] 2 S.C.R. 27, at para. 14; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Abdallah, at paras. 4-5.

I can, where reasonable, also accord different weight to different parts of the evidence that I do accept: R. v. Howe, at para. 44.

Further, where, as here, a defendant has testified, his evidence – like that of any witness – cannot be assessed in a vacuum. As said by Code J. in R. v. Humphrey, 2011 ONSC 3024, at para. 152, "the first and second stages of the W.(D.) framework for analysis can only be undertaken by weighing the accused's evidence together with the conflicting Crown evidence". (See, also, R. v. Newton, at para. 5; R. v. Hull, at para. 5; and R. v. Hoohing, 2007 ONCA 577, at para. 15.)

Finally, acceptance of a contradictory account may itself be a proper basis for rejecting a defendant's testimony: R. v. D. (J.J.R.), at para. 53; R. v. M. (R.E.), 2008 SCC 51, at para. 66; and R. v. Thomas, 2012 ONSC 6653, at para. 26.

[14] Standing alone, and untested by any contrary evidence, there is nothing about the defendant, his demeanour or his testimony that calls into question the honesty or reliability of his account of the events on the evening in question. The defendant's account, however, does not stand alone. It must be read against the background of the evidence tendered through the two police witnesses. I note, here, that the defendant accepts "most" of the police testimony. Other than whether he placed anything in his mouth prior to the testing and the number of beers he had consumed, his only material departures from the police narrative are with respect to whether he endeavoured to comply with the demand or ever refused to do so.

[15] I accept Cst. Nicholas' evidence as to the salient events. I find that Nicholas was a straightforward and sincere witness. He made notes of the events very soon after their occurrence. He may well have been negligent in failing to check the calibration of the ASD before he administered it to the defendant, but he identified the potential defect in his notes as soon as he realized the problem. His detailed recollection of the defendant's various opportunities to afford a suitable sample and of his efforts to defeat or evade the provision of such samples were essentially corroborated by his escort, an auxiliary officer whose candour more than compensated for his lack of training or experience. The defendant's account, on the other hand, is entirely uncorroborated, and he made no notes to help him recall events that occurred almost 15 months before his trial.

[16] In the end, I believe the police account. The defendant, I find, both failed and unequivocally twice refused to provide a suitable roadside-screening sample upon demand. I have no difficulty in inferring from his behaviour that his failures and refusals were intentional. Nor do I find any qualification of the defendant's refusal in his on-scene assertion that he had not refused to provide a sample given the repeated cautions he had previously received, Cst. Nicholas' "last chance" warning, and the absence of any evidence, even from the defendant, that he offered to conduct any further breath tests.

(c) The ASD Calibration Issue

[17] In the alternative (indeed, the only available alternative given my adverse findings of fact), the defence submits that Cst. Nicholas could not, as mandated by s. 254(2), have reasonably formed the opinion that a sample of the defendant's breath would "enable a proper analysis to be made by means of an approved screening device" since the ASD at issue had not been calibrated for nearly six weeks when OPP protocol, as conceded by Crown counsel, prescribes recalibration on a biweekly basis. (Although neither necessary to my reasoning nor part of the evidentiary record before me, I believe I can take judicial notice of the fact that the 2006 Alcotest 7410 GLC Training Aid prepared by the Toxicology Section of the Ontario Centre of Forensic Sciences directs, at p. 12, that the device "should be calibrated at least biweekly ((not more than 14 days)) by a qualified technician trained in the calibration procedure".) In these circumstances, says the defence, the defendant's failure and/or refusal to "blow" are of no legal moment since he was under no obligation to comply with an unlawful demand.

[18] There is some precedent, and of recent vintage, for this expanded approach to the legally requisite basis for the opinion of the officer making the ASD demand: see, for example, R. v. Tran, 2013 ONCJ 153. In my view, however, the appellate, and therefore governing, authorities in this province do not go this far. Although addressed to a slightly different point, the Court of Appeal's decision in R. v. Danychuk is, in my view, dispositive in the circumstances of the case before me.

The summary conviction appeal judge in Danychuk held that ASD demand included the requirement that the device "be present at the scene and ready to accept a sample of breath, having been tested to ensure that it was ready". In restoring the conviction entered at trial, the Court held, at para. 20, that in the face of a categorical refusal to provide a breath sample "the Crown need not even demonstrate the device in question was an approved screening device as a prerequisite to a valid demand".

The Court did acknowledge, at para. 25, that some authorities indicate that:

[I]n circumstances where there has been an "unsuccessful attempt" to provide a breath sample – either because of efforts by the person subject to the request to feign compliance, or because of a faulty device – the Crown may be required to lead evidence to show the screening device was in good working order: [citations omitted]. These cases are founded on the theory that such proof may be necessary lest the evidence raise a reasonable doubt the unsuccessful attempt was due to a flaw in the device.

However, this scenario is very different from one, as in the instant case, that includes a categorical refusal to "blow". As the Danychuk Court made clear, at para. 26:

Where, as here, there has been an outright refusal to provide a breath sample, it is not a prerequisite to such a demand that the Crown establish the approved screening device was … tested and ready to accept a sample ….

The Court of Appeal explained and effectively affirmed this proposition in Degiorgio, supra, at para. 58: "the police officer's ability to actually take the sample in accordance with the demand is not relevant to culpability on a charge of refusing to take a sample" (emphasis added).

[19] In the circumstances presented by this case, I need not decide whether the officer's failure to observe the OPP calibration protocol is of material relevance to the result. Whether or not the defendant failed, and intentionally so, to provide a suitable sample, I have no doubt that he unequivocally refused to do so. Accordingly, the offence with which he charged is made out.

D. Conclusion

[20] For the reasons I have just recited, I find the defendant guilty of the offence of refusing to comply with an approved screening device demand.

Released on September 10, 2013.

Justice Melvyn Green