Court File and Parties

Court File No.: Halton 11-3064 Date: 2013-12-03 Ontario Court of Justice

Between: Her Majesty the Queen — and — Stephen Belbin

Before: Justice Stephen D. Brown

Heard on: October 31, 2012 and September 5, 2013

Reasons for Judgment released on: December 3, 2013

Counsel:

• Mary Ward, for the Crown
• Stephen Darroch, for the accused Stephen Belbin

Brown J.:

1. Charges

[1] The defendant is charged with Impaired Operation of a Motor Vehicle and Refusing to provide a Breath Sample contrary to ss. 253(1)(a) and 254(5) respectively. The Crown proceeded summarily.

[2] Three police officers testified in this case. The defendant elected to call no evidence.

2. Issues Before the Court

[3] Credibility of the officers who testified before me is central to this case. Mr. Darroch argues that the officer's testimony is inconsistent on many grounds and that on others there is exaggeration and therefore their evidence does not allow me to reach the conclusion that the essential elements of these offences have been proven beyond a reasonable doubt.

2.1. Evidence at the Trial

2.1(a): Evidence of Victoria Lean

[4] Constable Lean has been a Halton Regional Police officer since 2002 and previous to that was an officer with the Hamilton Regional Police for two years.

[5] On September 30, 2011 she was operating her marked police cruiser southbound on John Street in the City of Burlington at 2:23 a.m. when she observed a green Kia Sorento driving in front of her. Her attention was drawn to the vehicle because it was travelling at "an unusually slow rate of speed".

[6] The vehicle then made an "exaggerated stop" at a stop sign and then proceeded to make a right turn onto James Street and, as he did so, he weaved over the centre line.

[7] The defendant, who was the sole occupant of the motor vehicle, then started to make a right-hand turn onto Brant Street, but cut the corner sharply and then, while making the turn, put on his right turning signal.

[8] He proceeded northbound on Brant Street at an unusually slow rate of speed, at which time Constable Lean activated her emergency lighting and, rather than stopping immediately, he proceeded about another two blocks before signalling and turning right and then pulling over to the right on Caroline Street just when the officer was about to pick up her microphone and request assistance.

[9] Once stopped, the defendant immediately exited his vehicle and as he stepped out of the vehicle he was unsteady on his feet and had to hold onto the open driver's door with his right hand to steady himself.

[10] Constable Lean exited her cruiser and told him to get back in his vehicle. She testified that it took him a minute to process that instruction, but then he nodded and re-entered his vehicle.

[11] She then approached his vehicle and asked him where he was coming from and he indicated that he had been at a bar called Honey West that was close to where they were and he also added that his girlfriend had just broken up with him.

[12] She noted that he had the odour of an alcoholic beverage coming from his mouth and that his eyelids were heavy and his eyes were glossy. She asked for his driver's license and, as he was retrieving it, Constable Wozny had approached her and was at her side. She asked him to step out of the vehicle and he looked at her blankly. She asked him again and he slowly stepped out of the vehicle.

[13] By this point Constable Lean had formed the opinion that his ability to operate a motor vehicle was impaired by alcohol and at 2:32 a.m. she advised him that he was under arrest for impaired operation of a motor vehicle and she then handcuffed him and walked him back to her cruiser where he was placed in the backseat.

[14] Mr. Belbin asked her several times why she had pulled him over and she says that she had to explain it to him several times. He did not agree with the fact that he was under arrest and she explained to him that he did not have to agree with it, just to understand that he was under arrest.

[15] As she commenced to read him his rights to counsel, the primary and secondary cautions and the breath demand he said that he did not understand and that he wanted a witness there. By this time Constable Wozny had arrived to assist. Constable Lean tried to explain his rights to him again in common terminology, but again he said that he did not understand. She explained it to him one more time and then he stated that he wanted to know what the evidence was. At that time she told him that the evidence would be discussed in court. He then said that he wanted to speak to a lawyer. When asked if he had a lawyer he said yes it was Cass and Bishop and then he smirked and chuckled after he said this. She said that he could call counsel when they arrived at the station.

[16] She stated that he was being very "difficult" and sometimes he would not answer questions but just smile when asked a question. He also at one point asked to see a "toxologist" [sic].

[17] When asked by the Crown what was happening between the time of his arrest and the time that they left for the station (an 18-minute period) she explained that a lot of this time was taken up trying to explain his rights to counsel to him and she said that although he was not rude and that he was polite, he was being difficult.

[18] It was not until 2:50 a.m. that they left the scene for 3 District arriving at 3:02 a.m.

[19] Upon arrival at the police station Mr. Belbin was taken into the booking room and booked. No notations were made by Constable Lean of any difficulty that he had walking from the cruiser to the booking room and she agreed in cross-examination that if she observed difficulty in these tasks she would have made a note of that.

[20] In the booking room she testified that he was difficult and defiant and continued to ask her why she had pulled him over. In her view, he would pretend not to understand any of the questions and that when questions were asked of him he would smirk and would not answer them directly and it seemed to her that he was deliberately delaying the process.

[21] She stated that Constable Wozny placed a call to his counsel of choice, the law firm of Cass and Bishop, but there was no answer at that time of night so she left a voicemail message.

[22] The defendant was then asked if he wanted to speak to duty counsel and he said that he did not, so he was taken into the breath room and introduced to Constable Moore, the qualified technician.

[23] Mr. Belbin had provided a number for the police to call but would not tell them who it was. Constable Wozny did call the number and asked to speak to Peter Cass and, although Constable Lean could not hear the other side of the conversation, she noted that Constable Wozny then hung up the telephone. Mr. Belbin then told her to call the number back and ask for "Cal" but he would not tell the police who that person was, only that he was his counsel. Constable Wozny then called the number again and spoke to Mr. Belbin's father who said that he would attempt to contact counsel for his son.

[24] The next contact that she had with the defendant was at 6:03 a.m. when he was served paperwork and was to be released. Mr. Belbin asked that his father be allowed to be with him while the documents were being served and Constable Lean agreed to this. As Constable Lean was explaining the release documents to him he became agitated and wanted her to explain what her evidence was. She said that would come out in court. He also became agitated with the acting staff sergeant who was trying to explain the release papers to him. His father tried to calm him down, but he became agitated with him as well and then stated to the police that he wanted to remain in custody, so he was lodged in the cells and held for a bail hearing.

[25] In cross-examination Constable Lean admitted that she followed Mr. Belbin's vehicle for a relatively short distance before she pulled him over.

[26] She did not note his actual speed other than it was a slower than normal speed in a posted 50 km/h zone in the downtown area of Burlington at a time of night when one can be expecting some pedestrian traffic from the bars closing. Constable Lean, however, did not recall seeing any pedestrians and would not agree with Mr. Darroch when he suggested that it was not abnormal for someone to perhaps pause at a stop sign when being followed by a fully marked police cruiser that would have been visible to the driver.

[27] Even though it had rained earlier that evening, she would not agree that it would be prudent to wait for a brief time after a full stop to proceed and she pointed out that although it had rained earlier, it was not raining at the time.

[28] She also confirmed that she did not make a notation of a wide right turn in either her notes or her will-state, but she maintains that she has an independent recollection of that. She does not accept that there were cars parked on James Street when he made the right turn from John Street and that there were pedestrians in the area. She did not agree with the suggestion that he made the right turn and avoided parked cars and some pedestrian traffic. She maintained that there were no vehicles or pedestrians in that area that she saw.

[29] She also rejected the suggestion that the defendant's vehicle had to turn around cars parked on James Street and that it had to turn right at an angle onto Brant Street.

[30] When the vehicle turned onto Brant Street and she had decided to activate her emergency lights, she did not accept the suggestion put to her by counsel that even though the distance was less than 200 meters to where the defendant turned his vehicle onto Caroline Street and stopped, that the reason for this could have been that there were vehicles parked along Brant Street and it was prudent for him to turn onto a quiet side street to stop. She replied that she does not activate her emergency lights to do a traffic stop unless there is a good place to pull over. To her recollection, there were no cars parked that would have stopped him from pulling over immediately on Brant Street when signalled.

[31] She disagreed with Mr. Darroch when he suggested that it is fairly common for people to get out of their vehicles when pulled over by the police and stated that, in her experience, it seldom happens.

[32] Constable Lean maintained that she felt he was steadying himself with his right hand on the doorframe when he got out of the car and that he had to be told twice to get back into his vehicle. She did concede that he had no apparent difficulty getting back into the vehicle and that he was not taking corrective steps as he was holding onto the doorframe.

[33] She conceded that she did not note the words that he was slurring and cannot recall them at trial. She was unfamiliar with him and his normal patterns of speech. She stated that he obtained his driver's license from the glove box when asked and she suggested that this was done slowly.

[34] She noted that when she asked him to get out of his car she had to ask him twice and then she assisted him by holding his left forearm, but she conceded that she had no notes of having to assist him to prevent him from falling and that she did not have to steady him as he walked to the cruiser.

[35] She also conceded that he had no difficulty with his balance or walking as he exited the cruiser and went into the police station.

[36] She stated that his speech was still slurred when he was in the booking room, although she did not note it in her book.

[37] Officer Lean had relatively little contact with the accused for the remainder of the night and could not make observations of his physical state as she did not see him in his cell or walking into or out of the breath room.

2.1(b): Evidence of Jennifer Wozny

[38] Constable Wozny has been an officer on uniform patrol with the Halton Regional Police for 10 years when she testified before me. However, this trial was only the third time that she has testified in court.

[39] As an aside, one of those previous trials was before me and I made negative findings of credibility against her. See R. v. Brown, [2013] O.J. No. 1830. I therefore examined her evidence with a particularly critical focus.

[40] She assisted Officer Lean in this case. She testified that she arrived on the scene at 2:30 a.m. which was just moments after she heard the dispatch about Constable Lean's traffic stop of the defendant.

[41] She arrived at 2004 Caroline Street and saw the defendant's motor vehicle facing eastbound on the street. At that time, Constable Lean was standing outside of the driver's side door. She drove up to the vehicle to see if her assistance was needed.

[42] When she got out of her cruiser and approached the car, she heard Constable Lean say "He's done" which she understood to mean that he was impaired. As she approached the car she saw the defendant sitting back in his driver's seat very relaxed with all four windows of his vehicle rolled down.

[43] The vehicle had been turned off and the defendant was chewing gum. She has a notation in her notebook about smelling the odour of alcohol from the defendant's breath, but had no recollection of that during her testimony.

[44] She observed Mr. Belbin attempting to remove his driver's license from his wallet and noted that his movements were very slow and lethargic. She was present when Constable Lean asked him to get out of his motor vehicle and noted that he stared blankly at her and then after the second or third request he did comply. She described his eyes as glossy.

[45] When he exited the car she observed him to be unsteady on his feet, almost off balance.

[46] He was handcuffed to the rear, and when he was put in Constable Lean's cruiser she moved her cruiser off of the roadway.

[47] She returned to Mr. Belbin's vehicle and rolled up the windows because it had started to rain and then she located the keys under a map book on the passenger seat.

[48] She then returned to Constable Lean's cruiser and observed the defendant being read his rights to counsel and the caution. She said that Mr. Belbin was very chatty and asked several times for everything to be repeated and mentioned that he did not understand a lot of what was being said and, therefore, Constable Lean had to repeat her requests. He had asked Constable Lean four times why he was pulled over.

[49] She described Constable Lean as being very patient in explaining things to him in her delivery and repetition of her requests.

[50] Constable Wozny thought at first that Mr. Belbin was trying to be sincere and trying to understand the situation that had occurred, although her initial opinion later changed.

[51] She stated that at the booking room Mr. Belbin's charm dissipated and it became just repetitive asking of questions and saying that he did not understand what was being asked so it would have to be repeated to him in different ways.

[52] She testified that she contacted Peter Cass, his counsel of choice, at 3:19 a.m. and she left a voicemail. When told this, Mr. Belbin asked her to contact someone by the name of Cal and provided a phone number but would not say who he was or what his relationship was with him.

[53] Nonetheless, she did contact that number and found out that it was his father, who said that he would contact Mr. Cass at home.

[54] She does not recall if the defendant spoke with duty counsel, but does know that duty counsel phoned the station at 3:42 a.m.

[55] At 3:56 a.m. Peter Cass called the station and Mr. Belbin was allowed to speak with him in private. When she turned around once the consultation room door was closed, she noticed that Mr. Belbin was just dangling the receiver and he said no one was there. She asked him if he had just hung up the phone and he replied "I don't recall".

[56] The lawyer shortly afterwards did call back and Mr. Belbin spoke to him until 4:06 a.m. The defendant then asked to use the washroom and did so until 4:18 a.m. Constable Moore went in to confirm whether the accused had used the washroom because the toilet had not flushed in that period.

[57] Both officers suspected that the defendant was delaying the procedure.

[58] He was then taken to the breath room with Constable Wozny standing outside and she observed that he continued to ask Constable Moore to repeat questions and that he did not understand what was being said.

[59] At 4:34 a.m. a criminal lawyer, Bruce Daley, telephoned and Mr. Belbin was escorted to the telephone booth and allowed to consult with Mr. Daley from 4:34 a.m. to 4:38 a.m.

[60] He then returned to the breath room and provided one sample of breath at 4:58 a.m. that yielded a reading of 150 mgs of alcohol in 100 mLs of blood according to the Certificate of Analysis that is Exhibit 1(b). He was not told this result and then, according to Constable Wozny's times, at 4:55 a.m. he asked to go for a third washroom break and was escorted back to cell 6 to use the washroom cell.

[61] While he was using the washroom, Constable Moore was asking him questions to prepare the Alcohol Influence Report and Constable Wozny states that every time Constable Moore would ask the defendant a question he would flush the toilet in response to that question without making a verbal response.

[62] Constable Wozny testified that he was then escorted back to the breath room at 5:11 a.m., and at 5:18 a.m. he refused to provide a second sample of his breath.

[63] In retrospect, Constable Wozny, although initially thinking that the defendant was sincere, soon formed the opinion that he was attempting by his actions to deliberately delay the process.

[64] In cross-examination Constable Wozny indicated that she heard Constable Lean say "He's done" as she was approaching her cruiser on foot and prior to him retrieving his driver's license. Although standing beside Constable Lean at the time, Constable Wozny cannot recall whether the door of Mr. Belbin's vehicle was open or closed.

[65] When Mr. Darroch showed her the will-state that she had created that stated that the driver's door was open, it still did not assist Constable Wozny in refreshing her memory. She also does not remember where he retrieved his driver's license from and does not recall him getting it from the glove box.

[66] She did not recall if he also got insurance and ownership papers and produced those documents.

[67] Although it was suggested to her, she did not agree that it is common for people involved in a traffic stop to have some difficulty getting their driver's license out of a wallet unless it is behind a plastic sheet, but Constable Wozny does recall that he retrieved it from a slip inside his wallet in what she described as a lethargic manner.

[68] When asked if she thought that he could have been confused when asked to step out of the vehicle, she did not agree and said that he just stared blankly when asked and that Officer Lean had to repeat the request.

[69] She maintained that he appeared unsteady on his feet walking toward Officer Lean's cruiser. She does not recall other aspects of the arrest such as where he was when he was handcuffed or who attended to the tow of his vehicle.

[70] She stated he had no problem getting into the cruiser.

[71] Constable Wozny indicated that she has in her notes "Provided breath sample" but does not recall observing that at about 4:54 a.m. or anytime. She also does not have a recollection of any discussions that went on regarding the taking of the first sample.

[72] She does not have a recollection of what happened at 3:30 a.m. when he was first taken into the breath room other than what is in her notes. Even then, she admits that she does not recall events that are written in her notes.

[73] She does have in her notes that at 5:11 a.m. he was taken back into the breath room and at 5:18 a.m. he refused. However, she has no recollection of the events that occurred during that period, the words used or any other observations of Mr. Belbin during that period.

[74] She agreed at the end of the cross-examination that it is likely that she received information from Constable Moore that he refused at 5:18 a.m. and that is why she wrote that in her notes.

2.1(c): Evidence of Carey Moore

[75] Constable Moore is a qualified Intoxilyzer technician employed by the Halton Regional Police.

[76] He was tasked with obtaining breath samples from Mr. Belbin that morning. As part of the normal protocol, all proceedings in the breath room are recorded on DVD and used as evidence in court. In this case, however, it appears that the length of the DVD is about two hours and four minutes and, due to the numerous interruptions in the process to enable the defendant to consult with counsel and to use the washroom, the breath room video runs out before the defendant is alleged to have refused the second sample of his breath.

[77] Constable Moore was unaware that the video had run out and, accordingly, did not take detailed notes of the proceedings, assuming that his interactions with the defendant were being captured on the video and audio recording.

[78] Officer Moore took custody of the accused at 3:30 a.m. and when he was read his rights Mr. Belbin said that he wanted to speak to a lawyer, so he left the room to do so at 3:34 a.m. and did not return to Officer Moore's custody until 4:06 a.m. These times have to be coordinated with the breath room video times because it does not have a time stamp on it but a counter. According to the counter of the video, the officer receives the defendant at 33 minutes on the counter.

[79] Constable Moore then relates that Mr. Belbin in the intervening period then used the washroom in the cell, which is off camera. He relates that the defendant sat on the toilet for a considerable period of time with nothing coming out and that he refused to come out of the washroom twice when Constable Moore asked him to and said it was time to get back to the breath room to start the first sample. Once he returns to the breath room, the giving of the first sample is recorded and there is no need to review that in detail at this point.

[80] He is then allowed to use the washroom again and Constable Moore tries to expedite the process by asking him questions for the Alcohol Influence Report while he is using the cell washroom. When he is asked a question he refuses to answer it and his only response is to flush the toilet. This results in Constable Moore asking him a series of questions only to be met with the sound of a flushing toilet on most occasions. During that time, Constable Moore went into the cell washroom on three separate occasions and would ask him to stand up and would see nothing in the bowl.

[81] After this, Mr. Belbin is taken back into the breath room at 5:11 a.m. and he is asked to provide a suitable sample and given instructions on how to do so but does not, and at 5:18 a.m. he is charged with refusing to provide a sample. The following excerpt sets out Constable Moore's evidence regarding the refusal starting at page 69 of the transcript of Oct 31, 2012:

Q. Okay. All right. So you walk back to the breath room. And give as much detail as you can. Tell us what happens since we don't have a video.

A. At that point the 17 minutes had elapsed so I started the breath test sequence, and the instrument goes through its checks, it does its calibration check, it does its diagnostics, and at that point I was ready to initiate the second breath sample.

Q. Just—you just keep going. You just keep telling us what happened in the room, okay?

A. Okay. So between the hours of 5:11 and 5:18, the subject attempted to blow on two different occasions, kept telling me, give him a minute, give him a minute. I gave the instructions again. He would delay, telling me to give him a minute, again. And at that point he never did blow into the mouthpiece at all, and at that point I told him he had refused.

Q. Okay. Let's go back and I'll just try and get a little more detail from you, then, about whether he—you said he never did blow in, but you also said he tried to blow two times. Tell us about what you mean by that, okay?

A. Sorry. I attempted to get him to blow. He kept refusing by saying, give him a minute, give him a minute.

Q. Um hum.

A. Again, he was continuing to try and pretending to cough and have stomach issues, what—the same type of thing we'd already seen in the video. He did attempt to blow on two more occasions…

Q. Um hum.

A. …but no sample registered with the intoxilyzer.

Q. And why would that have been?

A. Because there was no breath going in.

Q. Okay.

A. Again, the intoxilyzer will give an audible sound when breath is going into the breath tube, and there was no breath going into the breath tube.

Q. Okay. What would you say to him after that?

A. I woulda' gave him the first warning.

Q. Did you?

A. Yes.

Q. Okay.

A. At that point he would've tried it again, he woulda' put it up to his mouth.

Q. When you say, "…he would have"—and I know sometimes it's just a way of speaking…

A. Yeah.

Q. …but you need to be clear. Can you tell us what actually happened?

A. Yeah. I gave him the breath tube again, gave him the instructions to place his lips around the tip of the mouthpiece and to take a deep breath and to blow a long, steady blow…

Q. Okay.

A. …and at that point, again, for the second time, no audible tone with the intoxilyzer, so no breath was going into the breath tube.

Q. Okay. Is there anything else or is that it, in terms of the time?

A. That is all I have in my notes.

Q. Okay. Are you—that's your notebook and…

A. Yep.

Q. …and what time did he refuse at?

A. He refused at 05:18, so that took a total of 7 minutes, between 5:11 and 5:18.

[82] Constable Moore described the signs of impairment that he observed. He states at page 75 of the transcript as follows:

Q. All right. Okay. And in terms of observations that you made of him, can you tell me about that?

A. My observations as a breath tech', he was very unsteady on his feet, he had slurred speech, he would almost walk and fall into the walls as he walked, and his eyes were glossy and watery, and he had a strong odour of an alcoholic beverage on his breath.

Q. Okay. How about on your alcohol influence report? Any physical observations that you made in addition to that?

A. For breath, I said there was copious amount of smell of alcohol, the colour of his face was flushed, his eyes were watery, his pupils were dilated. He was wearing casual clothing. He was wearing running shoes. His attitude was indifferent, cocky, antagonistic, arrogant and belligerent, and his speech was slurred. And unusual actions, he was belching.

Q. Okay. What was your opinion as to the effects of alcohol on him?

A. I believe he was impaired; his ability to operate a motor vehicle was impaired by alcohol.

[83] On cross examination, Constable Moore was asked why, if at 4:06 a.m. when he knew that the defendant had just spoken to counsel, would he read him his rights to counsel again ending with the question "Do you want to speak to a lawyer now?". Constable Moore indicated that it is his practice to do this and it covers a situation such as when a person has spoken to duty counsel and then wishes to speak to a counsel of choice.

[84] However, when Mr. Belbin asked to speak to his lawyer after the caution at 4:06 a.m. Constable Moore indicated, "You have just spoken with your lawyer". He was also aware that he had refused to speak to duty counsel, so he wanted to press on with the breath test. It is to be noted that later when Mr. Daley called the station he was allowed an opportunity to speak to him. It is also noted that no s. 10(b) Charter application has been filed in this proceeding.

[85] Constable Moore was vigorously questioned on what was suggested by Mr. Darroch to be a lack of unsteadiness on his client's part when he entered and exited the breath room on two occasions as depicted on the video.

[86] Commencing at page 86 of the October 31, 2012 transcript the following exchange indicates the point Mr. Darroch is trying to make:

Q. Okay. And you saw him walk in when you were watching the video today?

A. Yes.

Q. Okay. And then you saw him walk out again around 3:42?

A. At 3:34, I believe.

Q. 3:34, sorry.

A. Yes.

Q. You saw him walk out at 3:34, and you saw him walk back in at 4:06?

A. That's true, correct.

Q. Okay. And then you saw him walk back out again at 4:34?

A. That's correct.

Q. And you saw him walk back in at 4:48?

A. That's correct.

Q. Okay. On all of the occasions you have note entries with respect to—he was walking in and then walking out?

A. Yes.

Q. You'd agree with me that you don't have anything in your notes with respect to whether or not he was unsteady on his feet during these enter—when he was entering and exiting the room?

A. Yep, not during those times; I don't have that in my notes, no.

Q. And you'd agree with me that that was something you were watching for…

A. Yes, that's correct.

Q. …his steadiness? Okay. Or unsteadiness. And you'd agree that when you review the video, there's really — I mean, this—His Honour's going to make up his own mind — but, really, when you look at the video, he wasn't unsteady on his feet, was he?

A. Well, there's really no wall leading into the breath room for him to lean on. When he was outside, there's a long wall leading up to the lawyers and down to the cells where he would lean against the wall and walk.

Q. So you're describing some sort of—he would, like, have his shoulder against the wall and…

A. Yes…

Q. …walking down the wall?

A. …similar to that, yes.

Q. Yet, when he was in the breath room he—you'd agree with me that he appeared to be quite stable on his feet and was able to sit down and stand up without any difficulty?

A. Yeah, walking in the breath room he was.

Q. Yep. And you'd expect someone who was having difficulty because of the consumption of alcohol, difficulty keeping their balance, if—that's something that would affect them throughout the course of your dealings with them and wouldn't sort of come and go, right?

A. Yeah, at some point.

[87] Mr. Darroch pointed out that it was not a lot of time during the first breath testing that Constable Moore was quick to say to Mr. Belbin that "That is a refusal" when he was not providing an adequate flow of air into the device, but that after two attempts he provided a lengthy good sample. Constable Moore agreed with this characterization.

[88] It was suggested to Constable Moore that the pattern that was exhibited between 5:11 a.m. and 5:18 a.m. was similar to that which led up to the first successful sample being given. Constable Moore agreed that he had warned Mr. Belbin twice before that he was refusing to provide a proper sample when he then provided a suitable sample. He agreed with counsel that there was nothing in his notes to indicate that he was going to give Mr. Belbin "one further chance" and he testified that he could not recall whether he said that.

[88] When it was suggested that he would normally note that, his response was, "Normally I don't note it because it is on video".

3.0. Analysis

[90] The burden of proof in this case, as in every criminal allegation, is upon the Crown to prove the facts in support of the guilt of the defendant on the basis of proof beyond a reasonable doubt. A reasonable doubt, as per Mr. Justice Cory's comments in R. v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, is defined as "a doubt based on reason and common sense which must logically be based upon the evidence or lack of evidence". Alternatively, it has been defined by Mr. Justice Iacobucci of the Supreme Court of Canada in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 as "falling much closer to absolute certainty than to proof on a balance of probabilities".

[91] In this case, the defendant has not testified, as is his right, and I draw no adverse inference against him for choosing not to. I am mindful of the dictates of the Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742, 63 C.C.C. (3d), 397. Mr. Justice Cory, for the majority, indicated that in a case where credibility is important, the trial judge is required to instruct the jury or himself, if it is a judge alone matter, that the defendant must be acquitted if the defendant's evidence is believed. The defendant is entitled to an acquittal even if the trier of fact disbelieves his evidence but his evidence raises a reasonable doubt with respect to his guilt. Thirdly, even if the trier of fact is left in no doubt by the evidence of the accused, the trier of fact must, nevertheless, ask himself, on the basis of the evidence which he does accept, if he is convinced beyond a reasonable doubt by that evidence of the guilt of the defendant. I am applying this same analysis because even though Mr. Belbin chose not to call evidence, evidence in support of his contention that he was unable to provide a suitable second sample and evidence regarding his impairment or lack thereof is captured on the breath room video.

[92] In assessing a witness' credibility and reliability, I must consider the witness' perception, memory and sincerity. I must consider the witness' ability to observe, store, recall and report evidence accurately, reliably and truthfully. I must consider the witness' interest or bias, if any, including animosity. I must consider the witness' evidence in the context of its internal consistencies or inconsistencies, its consistencies or inconsistencies with other evidence from other witnesses and, finally, its consistency with reason and the probability of truth. The Court can expect discrepancies and inconsistencies from time to time. Such is the nature of our human personalities and frailties. Some inconsistencies and discrepancies have a need to be resolved and some do not. The evidence must be considered in totality as a whole.

[93] I am able to accept some, all or none of a witness' evidence.

[94] My failure to refer to any specific witness' evidence or document filed as an exhibit, or case law cited to me, does not mean that I have not considered that evidence or law in coming to my conclusions.

[95] The assessment of evidence that is required in coming to a conclusion in this case does not involve the choosing of one witness' evidence over the other. I am not required to choose between two competing versions of events. I am able to accept or reject some, all or none of a witness' evidence.

[96] I find that the officers in this case gave their evidence in a credible and straightforward manner and I find that their evidence was not shaken on cross-examination.

[97] Although it is true that Constable Lean only followed Mr. Belbin for a relatively short period of time, I am satisfied that the observations that she made and recounted were accurate and truthfully related in evidence. I am satisfied that they gave her sufficient grounds to believe both subjectively and objectively that Mr. Belbin was operating his motor vehicle while his ability to do so was impaired by alcohol.

[98] Looking at the totality of her evidence, the fact that the defendant was driving at an unusually slow rate of speed, the wide turn and then followed by the short turn and the late signalling, the odour of alcohol and the admission of drinking, the difficulty retrieving his license, his slurred speech, glossy eyes and his unsteadiness when alighting from his car and having to hold onto the door to steady himself, which I accept that she observed, all lead me to the conclusion that she certainly had authority to make a breath demand because she had the reasonable and probable grounds both subjectively and objectively that he was operating his motor vehicle while his ability to do so was impaired by alcohol. The fact that she did not note the words or phrases that would be examples of Mr. Belbin slurring his speech serves to reduce somewhat the weight of her opinion in that regard, but having viewed the video of his interactions in the breath room I must say that I noticed a slight slurring of certain words and odd phrases used.

[99] As was pointed out by the defence in submissions, Constable Lean did not give a time that she read the breath demand to him and, therefore, he argues that the Crown has not proven the requirement that it was read "as soon as practicable" as required in s. 254(3) of the Criminal Code.

[100] I reject that argument. In my view, the demand was read within a reasonably prompt time. It was read just following the arrest and cautions and temporally when he asked for a witness and Constable Wozny had arrived. Although it would have been preferable for Constable Lean to record the time of the rights to counsel and the breath demand being read, her failure to do so does not, in the circumstances of this case, have me find that omission as fatal to the legality of the demand.

[101] Constable Wozny corroborates the evidence of impairment to some extent. For instance, she notes that the defendant had glossy eyes and the odour of an alcoholic beverage coming from his breath. She confirmed the blank stare when Mr. Belbin was asked to step out of the vehicle on two occasions by Constable Lean.

[102] She corroborates that the defendant was slow and lethargic in removing his driver's license from his wallet, although she did not confirm that he reached into his glove box to retrieve the license. This discrepancy between her evidence and that of Constable Lean does not trouble me. She may have arrived at the point after he had retrieved the wallet from the glove box.

[103] Her evidence that states that Mr. Belbin was unsteady on his feet when he stepped out of his car to be arrested is not corroborated by the evidence of Constable Lean and I do not give it much weight.

[104] As well, Constable Wozny does not corroborate any slurring of speech as testified to by Officers Lean and Moore.

[105] In my view, Constable Wozny's evidence strikes me as being worthy of less weight than that of Constable Lean or Constable Moore. I was somewhat concerned more with the reliability of her evidence rather than her credibility in this case because her memory seemed to be poor of some events and she had no recollection of some events that she had made notes of.

[106] That said, she attended diligently to ensuring that Mr. Belbin's rights to counsel were implemented even when he had provided to her a number to call but would not tell her who it was. As it turned out, it was his father, and his father facilitated not one but two private counsel calling the police station and giving advice to Mr. Belbin.

[107] In regards to the evidence of Constable Moore, I found that his evidence was very credible and reliable. He testified without bias or animus towards the defendant even though his interactions with Mr. Belbin that evening would have been trying for the most patient of breath technicians.

[108] His evidence that Mr. Belbin was very unsteady on his feet when walking to the cell or the breath room, which was not borne out by his video evidence in the breath room, was adequately explained to me by his disclosure that there was no wall in the breath room and when in the hall leading to the cell and back, Mr. Belbin would tend to lean against the wall for support.

[109] However, what I find as most corroborative of his evidence is the portion of the breath room video that I have reviewed numerous times.

[110] I will now proceed to analyse the video and my impressions of it. The times set out are those of the counter on the video and I have not converted them to actual times of the events; they are merely to be used as reference points.

[111] Mr. Belbin is found to come into the breath room by the video at 33 minutes on the breath room video time counter and he then leaves after three or four minutes to speak to his lawyer.

[112] At 33:26 on the video, Mr. Belbin appears to fall asleep or to be faking sleep as soon as he sits down and as Constable Moore starts to speak to him and give him his rights to counsel, the cautions and breath demand. Constable Moore has to touch his shoulder to rouse him. He then says he wants to speak to his lawyer and Moore says that would be a good idea and they then leave the room.

[113] At 1:19:50 of the breath room video when he enters the breath room for the second time and is told to take a seat in the chair, he leans against the counter for a few seconds before sitting down. I note that he holds onto the counter to his right as he is sitting down and it appears to me that he is using the counter for assistance to sit down.

[114] Then at 1:20 on the video he is told by Constable Moore that he pretended to fall asleep the first time and then he was wide awake when they took him out of the breath room. Constable Moore says he understood that he has just spoken with the lawyer of his choice, Peter Cass, and declined duty counsel.

[115] At 1:22:50 of the breath room video he is given the primary police caution regarding statements and is asked by Constable Moore two times whether he understands, but he refuses to answer and just stares blankly at the officer. Then Constable Moore says that he is awake and he presumes that he understands the caution, to which his response is "No that is an assumption on your behalf".

[116] Also, the secondary caution is read to him and he is again asked twice if he understands and he does not answer. Finally he says that he does not.

[117] He is then read the breath demand, and when asked if he understands this he says no. Constable Moore then explains it to him in simple terms and he still says he does not understand and then returns to asking to speak to his lawyer.

[118] At 1:26:05 he is re-read the breath demand by Constable Moore and he is asked if he understands and no response is given.

[119] As Constable Moore then walks over to the Intoxilyzer machine Mr. Belbin asks if they can go over the question about his rights to counsel again and Constable Moore says, "No we have gone over that and you have spoken extensively with your own lawyer".

[120] At 1:27:13 Constable Moore stated to him that he spoke with his lawyer Peter Cass and the defendant responded by saying "that, we would have to look into".

[121] At 1:27:55 Mr. Belbin appears to slur the word "assumptions", in my opinion. It is my opinion from a close watching of the video that his speech is slightly slurred on many occasions. He seems to me to slur the word "understand" around the 1:20:15 mark on the video.

[122] Constable Moore is to be commended for the restraint and professionalism that he exhibited in dealing with Mr. Belbin, who, upon a close viewing of the breath room video, is found by me to be obstructionist, argumentative, obstreperous and attempting to delay the process. I have concluded that his complaints of stomach trouble are yet further manifestations of this conduct and are feigned.

[123] When Constable Moore is entering data to prepare the Intoxilyzer for the first sample at 1:29:31 on the video, Mr. Belbin asks to go to the washroom and Constable Moore refuses this request pointing out to him that he had gone on two occasions for an extensive time and that there was "nothing there". He said that the last time he sat in the washroom for almost 20 minutes and nothing came out.

[124] He said to the defendant that "We will get through this and then you can use the washroom again". Mr. Belbin responds to this by saying that it is called "Kung Pao chicken otherwise knowing [sic] as the 'Houdini wipe'". This rather absurd comment is only slightly amusing because it refers to a famous escape artist and illusionist. I have no doubt that Mr. Belbin wished that he were Harry Houdini during the time that he was in the police station.

[125] At time stamp of 1:30:46 on the video Mr. Belbin, just after the above conversation, then asks Constable Moore if there is somewhere where he can sleep commenting that "We have been here for quite a while". Constable Moore wryly states, "Yes we certainly have".

[126] At 1:33:52 on the video when the mouthpiece attached to the approved instrument is presented to him, he then bends over in his chair as if he is in pain, asking to speak to his lawyer again and then stating that his lawyer suggested that the test should be done in his presence in the conversation that preceded this. All of this conduct I find amounts to a poorly acted and insincere attempt to avoid the requirement of having to provide breath samples pursuant to the demand.

[127] For instance, he did not cough or clutch his stomach during this 13-minute interaction with Constable Moore. He only does this when the breath test is imminent.

[128] He says that he has a cold and is told by the breath technician that it will not affect his reading. He is asked twice to provide a sample into the approved instrument but does not do so. Constable Moore then warns him that that is his first refusal.

[129] Constable Moore then asks him twice more to provide a sample of his breath and he fails to do so. He is leaning over and coughing on the video at 1:34:45 and I do note that he did not cough or lean over at any time in the previous interaction with the breath technician and only began to cough and lean over when he was presented with the mouthpiece.

[130] At 1:35:20 on the tape, Constable Moore takes him out of the room because he is advised that counsel, who would have been Mr. Daley, has called for him.

[131] At 1:50:40 of the tape he returns to the breath room. He apologizes for the delay but then almost immediately starts to say that his stomach was very upset and appears at one point to be rubbing his stomach while looking up at the video camera. He keeps rubbing his stomach in a circular fashion that seems to be more of a light touching rather than a manipulation of a sore stomach. To me it seems again to be the poorest quality of acting and totally self-serving.

[132] At 1:55 he attempts his first sample of breath but does not blow hard enough to emit a tone from the instrument and is warned again by Constable Moore that he considers that to be a refusal. The next attempt is a successful one and a suitable sample is obtained. That sample taken at 4:54 a.m. yielded a result of 150 mgs of alcohol in 100 mLs of blood.

[133] He then immediately asks to take another bathroom break and stands up in the breath room and leans against a counter. He is told to sit down but does not.

[134] After the sample is processed he is then allowed to again go to the washroom. He leaves the room at the 1:57 time stamp. While Mr. Belbin is off camera you can hear the toilet being flushed about once per minute for a period of time.

[135] The breath room video then ends at 2:04:24 and just before it ends you can hear Constable Moore saying "Stephen stand up". Trying as best as I can to coordinate the time stamps on the breath room video with the actual time, this would have occurred at about 5:03 a.m.

[136] The breath room video then ends. Constable Moore testified that he did not know that the subsequent actions were not recorded, as there was no notification that the recording had ceased.

[137] It was not unreasonable, in my view, to have a two-hour time limit on recordings of occurrences in the breath room. In my experience, even with accused persons exercising rights to counsel and attending to personal needs, this is the first case where, because of these factors, the breath testing procedure exceeded two hours.

[138] Because of that, the "refusal" is not recorded on the breath room video. That is unfortunate because there is no better evidence than a video of a refusal or failure to assist a trial judge in a determination of this issue.

[139] That said, the video that exists paints a telling picture to me of an individual who is attempting to delay or deflect his obligation to provide a proper sample of his breath. What is especially important to me is the demeanour of the accused and Constable Moore preceding the ending of the video.

[140] As stated before, the accused, in my view, is being, to say the least, "difficult" while Constable Moore, although understandably perturbed by his behaviour, is interacting with him in a calm, professional manner.

[141] I accept that Constable Moore did not know that the final interaction concerning the refusal or failure to provide the breath sample was not being recorded because the video recording had exceeded its allotted limit.

[142] I have no doubt that Constable Moore was acting consistently in an honest, patient and professional manner in dealing with a person who was attempting to thwart the obligation that the law had placed upon him to provide a suitable sample of his breath into the approved instrument.

[143] I find that Mr. Belbin was being deliberately coy and obtuse during his interactions with Constable Moore as recorded on the breath room video. I have no doubt that this conduct continued after the video ended.

[144] On at least three occasions Constable Moore cautioned Mr. Belbin that the proceedings were being video and audio taped as a reminder to the defendant that his conduct would not play well in court. Despite these warnings, Mr. Belbin's obstructionist conduct designed to delay the taking of the breath samples continued.

[145] After numerous viewings of the breath room video, I have no doubt in my mind that this conduct continued. This type of conduct in the totality of all the circumstances, accepting as I do the evidence of Constable Moore, leaves me with the inescapable conclusion that Mr. Belbin refused to provide a second sample of his breath as required. I am satisfied beyond a reasonable doubt that for the second required breath sample Mr. Belbin was feigning compliance as the approved instrument was not emitting any tone showing that a proper breath sample was being provided. I am certain that this happened on two occasions and, though it tracked the pattern of the first successful sample of breath being given, because of the constant obstructionist tactics that Mr. Belbin had displayed the entire evening, I do not believe that Constable Moore was required to give him yet another attempt before charging him. I find that Mr. Belbin was feigning his blowing of air into the approved instrument and, as such, was wilfully failing to provide a proper sample. I find as a fact that there was no reasonable excuse for failing to comply and that his purported stomach problems and coughing were a ploy to avoid the testing procedure.

[146] Accordingly, in my view, the Crown has proven beyond a reasonable doubt all of the essential elements of this offence.

[147] Regarding the issue of whether Mr. Belbin's ability to operate a motor vehicle was impaired by alcohol, I have examined all of the evidence in this case and, although it was not argued before me, I have considered s. 258(3) of the Criminal Code. That section states:

(3) EVIDENCE OF FAILURE TO COMPLY WITH DEMAND — In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(1)(a) or in any proceedings under subsection 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 254 is admissible and the court may draw an inference adverse to the accused from that evidence.

[148] Duncan, J. provided a helpful analysis of this section in R. v. Padda, [2002] O.J. No. 5502 at paras. 35-37 (OCJ) where he says:

35 The drawing of the inference is permissive and not mandatory. When should it be drawn? There is very little case law on the sub-section. However, the case law that there is suggests that the inference is an important part of the over-all scheme set up by Parliament and that a Court should not be shy about applying it. 2 Nor should it reserve the inference for cases in which the reason for the refusal is expressly given by the accused as the fear of incrimination: Garneau, supra. The inference may be drawn unless there is something in the evidence indicating that it would be inappropriate to do so. An example might be where the defendant has some other reason for refusing, though that reason is not a recognized lawful excuse: see R. v. Conlon (1978), 12 A.R. 267. Where the alternative reason for refusing is not a rational or sensible one, it may negate the usual inference but at the same time support a conclusion that the irrationality is the result of a confused mind affected by alcohol: see R. v. Hillman, [1978] R.T.R. 124 (C.A.) cited in McLeod and Takach Breathalyzer Law in Canada, 3rd ed. p. 20-12.

36 As an aside, it seems to me that section 258(3) is simply a statutory example of the rule of circumstantial evidence known as consciousness of guilt, though that term has fallen into disfavour: see: R. v. Peavoy (1997), 9 C.R. (5th) 83 (Ont. C.A). That rule, simply stated, is that the trier of fact should not draw an inference of guilt with respect to the offence being tried if the apparent guilt-betraying conduct might be referable to something else, including a different criminal offence: R. v. Arcangioli, [1994] 1 S.C.R. 129 (S.C.C.). In my view, the sparse case law under section 258(3) is consistent with this rule.

37 Where the inference is drawn under section 258(3), it is not necessarily conclusive of guilt. It is one more piece of evidence. The weight to be attached to it might vary depending on the circumstances. I have found that the defendant's refusal(s) were a combined product of his upset and his attempt to avoid incrimination. Under these circumstances, it is my view appropriate to place some weight on the refusal(s) as tending, through the adverse inference, to support a conclusion of impairment. Again I refer to the decision in Garneau, supra:

"It should be pointed out that, if the inference is drawn, it is not necessarily conclusive of guilt. It is but one of the factors to be considered along with all of the other evidence.

However, this inference can be the determining factor even though other evidence of driving patterns or physical difficulty fall short of being a marked departure from the norm: see R. v. Conlon."

[149] Regarding the issue of impairment, I accept the evidence of Constable Lean as to the observations that she made of the driving and the events during the roadside stop, and I also accept the evidence of Constable Moore. Although the video, in my view, corroborates some of their observations, I am aware that some are not capable of video corroboration. For instance, the video does not allow me to ascertain whether his eyes were glossy and his pupils dilated and of course the evidence of his unsteadiness in the hallway was not recorded.

[150] I accept and give greater weight to Constable Moore's evidence of his observations of impairment because he had the opportunity to observe Mr. Belbin for the longest period under the best lighting and was specifically looking for and noting signs of impairment and was able to see signs that the other officers did not see such as watery eyes, dilated pupils and a flushed face and unsteadiness on his feet when walking down the corridor between the breath room and the cell.

[151] I find that Mr. Belbin's unusual actions such as falling asleep just seconds after sitting down on a chair in the breath room or, alternatively, feigning sleeping, which I deem to be the more plausible explanation, is further evidence of impairment.

[152] His continued non-responsiveness to the officer's directions and inability to understand simple directions and explanations are also factors that weigh against him.

[153] Each one of these factors may have innocent explanations, however cumulatively I find that they indicate a significant departure from normal conduct. It is my view that the evidence as a whole indicates that Mr. Belbin's ability to operate a motor vehicle was more than slightly impaired by alcohol and that the Crown has satisfied me of this beyond a reasonable doubt.

[154] In examining the totality of the evidence before me, and applying the adverse inference that I am allowed to do pursuant to s. 258(3) of the Code, I have reached the inescapable conclusion that the defendant's ability to operate a motor vehicle was impaired on the date as set out in the information.

4.0. Conclusion

[155] I therefore find Mr. Belbin guilty of counts one and two in the information.

Released: December 3, 2013

Signed: "Justice Stephen D. Brown"