Court File and Parties

Court File No.: Toronto Region Ontario Court of Justice

Between:

Her Majesty the Queen

R. Fried, for the Crown

— And —

Sivarasan Sathasivan

J. Masse, for the accused

Heard: January 8, 29, 2013

FELDMAN J.:

The Charge

[1] Sivarasan Sathasivan entered a not guilty plea to a charge of Refuse Breath Sample. It is alleged that while detained at the roadside he failed without reasonable excuse to provide a suitable sample of his breath.

[2] The Crown called the two investigating officers in support of its case. Mr. Sathasivan testified in his own behalf.

[3] The defendant submits that it ought to have been apparent to the arresting officer, P.C. Clarke, that his comprehension of the English language was questionable and that there were 'special circumstances' that required any instructions regarding his legal obligations to be provided by a Tamil interpreter. He says the evidence raises a reasonable doubt that he wilfully failed or refused to provide a suitable sample, and in addition, submits that the officer also erred in refusing post-arrest to offer him a second chance to blow into the roadside instrument.

[4] Mr. Fried, for the prosecution, submits the evidence establishes that the accused had sufficient grasp of English to understand the officer's instructions and that Mr. Sathasivan knowingly failed to comply with a proper demand.

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

The Evidence

[6] On the evening of February 15, 2012, extending into the early hours of the morning on February 16, P.C. Clarke was one of several officers participating in a Ride program at Birchmount Ave near Highway 401 in Scarborough. The officers wore brightly lit yellow vests. As cars came over a crest approaching an underpass, there was a large sign together with pylons indicating they were to stop for a spot-check. Two police cars had their roof lights activated and rear lights flashing.

[7] P.C. Clarke testified that at 12:22 a.m., the defendant drove up to this location and despite the clear warnings neither slowed down nor stopped, only sliding to a halt almost at the end of the spot-check and then only in response to the officer yelling at him to do so. It permitted the inference that Mr. Sathasivan was inattentive.

[8] P.C. Clarke was in uniform. He approached the driver's side window of the accused's car and waited 5-8 seconds expecting him to open the window. This was done only after the officer motioned for him to do so. He said he smelled alcohol on the driver's breath.

[9] P.C. Clarke told the defendant he was conducting a Ride Spot-check and asked if he had been consuming alcohol in the last 24 hours. There was silence but eventually Mr. Sathasivan said he had 2 beers but that he also ate something. The accused added that he had the beers four hours ago, held up four fingers, said he had them while at his residence, had eaten some food and was on his way back home when stopped, but would not answer where he was coming from. He provided his driver's license immediately upon request, all of which indicated some level of comprehension on his part.

[10] Given the circumstances and the smell of alcohol on the defendant's breath, the officer was satisfied that Mr. Sathasivan had alcohol in his system and demanded a roadside sample of his breath. No issue is taken with the officer's reasonable suspicion.

[11] Mr. Sathasivan complied with the officer's direction to pull his car in front of the police vehicle. As asked, the defendant walked back to the front of the cruiser where there was an in-car camera. The officer said Mr. Sathasivan was able to walk in a straight line.

[12] P.C. Clarke then read the breath demand from the back of his memo book. Mr. Sathasivan told the officer he spoke Tamil and that his English was not so good. P.C. Clarke told the court that he felt the accused understood him sufficiently given his earlier responses and compliance with directions.

[13] P.C. Clarke demonstrated the roadside test using a new mouthpiece through which he blew onto the defendant's hand. Mr. Sathasivan said he could feel the officer's breath. He had the accused do the same test in reverse, as well as blow through the mouthpiece into a plastic bag that moved and fogged up from the moisture in the defendant's breath.

[14] P.C. Clarke then told Mr. Sathasivan to put the mouthpiece into the roadside instrument but the defendant was unable to do so. The officer asked the accused if he understood. Mr. Sathasivan said it was his first time. Indicating impatience and conceding sarcasm, if not cynicism, P.C. Clarke asked Mr. Sathasivan if he meant speaking English or doing the test. The defendant said he meant the test, again indicating reasonable understanding of the interchange.

[15] The officer frankly told the court he was frustrated and felt the accused was playing games or buying time given his ability to answer previous questions. This attitude and his impatience marked the relationship with his detainee. He told the court that no Tamil officers were available at his division to translate, although were that not the case he would have called for one so as to avoid questions of language in court. It is not clear if there were elements of resignation or even sarcasm in that latter testimony. He did not check with other divisions.

[16] P.C. Clarke gave evidence that he explained to the accused that he had to blow steadily and breathe continuously into the mouthpiece around which he was to make a proper seal with his lips so that no air escaped. He added that the instrument would hum or buzz when a proper breath sample was given. Mr. Sathasivan said 'ok'.

[17] In giving his evidence, the officer spoke so quickly that I had difficulty keeping up and writing down some of its material elements. It is interesting to note that in providing these instructions at the scene, as recorded in the in-car video, P.C. Clarke literally raced through his instructions to the accused, even interrupting him when he started to speak in broken English, tending in his impatience to repeat his instruction even more loudly.

[18] The officer had an obligation to ensure that the defendant understood his words, particularly in these circumstances where English was the accused's second language. While the video indicates P.C. Clarke's demonstration of how to blow was clear, simple and understandable in word and deed, his manner of instruction, given the language issue, does not serve to strengthen the Crown's position that Mr. Sathasivan understood his obligations and how to meet them, but rather weakens it.

[19] P.C. Clarke testified that on his first three tries, the defendant blew into the air, not the mouthpiece. The officer said he again explained what to do. Mr. Sathasivan put his mouth on the mouthpiece and started blowing, but stopped. This happened four times.

[20] The officer then used the mouthpiece to demonstrate the procedure again and completed the test himself. He was satisfied the instrument was working properly.

[21] Mr. Sathasivan made 7 more unsuccessful attempts, almost completing 2 or 3 of them. The officer told the court that on the fifth try, the accused started to blow but then opened his lips and stopped. On one of the latter attempts, he stopped just before his sample would have been sufficient. This is apparent on the video.

[22] After the last failed attempt, P.C. Clarke arrested the accused. When asked if he understood, Mr. Sathasivan said, "Sir, it's a family problem".

[23] A review of the video reinforces the notion that the defendant struggled at times to express himself in English. Following the arrest, P.C. Clarke had to ask the accused three times to put his hands behind his back and then raced through the right to counsel having to press his detainee four times on whether he had a lawyer. Mr. Sathasivan said he didn't understand. The officer asked the accused three times if he had a job. Mr. Sathasivan answered in broken sentences using simple words. When told his car would be towed, the accused said he had to go to work in the morning. He was able to provide his home phone number. He said he understood his conditions of release, later changing his evidence on that issue of fact.

[24] P.C. Joseph Pirelli escorted the arresting officer. He felt the accused spoke English well and recalled that he had multiple opportunities to blow into the roadside instrument. His notes have few observations or details as he says he was only there to assist. He did not record any of the questions and answers as between P.C. Clarke and his detainee. As well, he told the court that he does not recall the accused hesitating to answer questions, be unresponsive or give strange answers. On the issue of language, his evidence is of little assistance.

[25] Mr. Sathasivan has been in Canada for 10 years. He has no formal English education. He works in a printing factory where he says he speaks only Tamil and does not have much opportunity to speak English outside of work. At home, he, his wife and her parents speak only Tamil as does his landlord. He took his written driving test in his native language.

[26] The defendant testified that on February 15 he consumed 2 beers at home some 4-5 hours prior to briefly visiting a friend and then being stopped by the police on his return. He said he was scared and nervous and when asked to get out of his car told P.C. Clarke that he didn't know much English.

[27] Mr. Sathasivan agrees he understood the officer's direction that he pull his car over, as well as questions about consuming alcohol in the previous 24 hours, his address and phone number, providing his driver's license, and the nature his job.

[28] He recalls the officer reading him the breath demand but claims not to know what P.C. Clarke said. He admits understanding the officer's demonstration and tried to do his best to provide a breath sample. He heard the officer tell him to blow hard and says he did so. He denies understanding the consequences of failing to provide a suitable sample. He claims to have asked to blow into the instrument again after his arrest but believes the officer paid no attention to his last chance offer.

The Authorities

Special Circumstances and Wilfulness

[29] On the issue of language, the 'special circumstances', described by Marin J. in R. v. Shoal, [1998] O.J. No. 2233 (Ont. C.J.), obliging authorities in situations where there are indications the detainee lacked comprehension to take additional steps to ensure that the individual understands his or her rights and obligations, were apparent in this case. In this context, in previous authority, the prosecution's onus was to prove wilfulness by the accused in failing or refusing to provide a breath sample: R. v. Nguyen, [2004] O.J. No. 5190 (Ont. C.J.); R. v. Burk, [2005] O.J. No. 384 (Ont. C.J.).

[30] More recently, the focus has changed. In a thoughtful analysis in R. v. Porter, 2012 ONSC 3504, Code J. discusses the appropriate burden of proof on the Crown and explains the essential elements of the offence under s. 254(5).

[31] From his review of the authorities, Justice Code points out that the actus reus or conduct element of the offence "consists of a proper demand and a refusal or failure to comply with that demand.": R. v. Moser (1992), 71 C.C.C. (3d) 165 (Ont. C.A.). The defence of 'reasonable excuse' is engaged only after the Crown has proved a proper demand and a failure or refusal to comply with that demand: R. v. Taraschuk (1977), 25 C.C.C. (2d) 108 (S.C.C.).

[32] Justice Code reviews additional authorities in setting out the common sense principle that direct or constructive refusal or failure to provide a breath sample "may logically be inferred from the totality of the detained driver's behaviour.": R. v. Bijelic (2008), 77 W.C.B. (2d) 118 (Ont. S.C.); R. v. Tavangari (2002), 28 M.V.R. (4th) 104 (Ont. C.J.).

[33] In relation to the mental component, Justice Code notes that s. 254(5) does not enact the element of "wilfulness" and is silent as to mens rea. Importantly, in this regard, he refers to "a strong line of binding authority to the effect that where a criminal offence is silent as to the mens rea and where the actus reus is the doing of some immediate act without any ulterior consequence, then knowledge or recklessness as to the doing of the prohibited act is a sufficient mens rea".

[34] In essence, Justice Code concludes that this offence is one of general intent, so that wilfulness plays no role in the burden of proof analysis. Rather, knowledge is the basic mens rea, that is, knowledge or awareness of the prohibited act, as distinct from the accused's motives and excuses in failing to provide a suitable sample. I am bound by this decision and persuaded by its logic.

Application to this Case

[35] It is clear that Mr. Sathasivan had limited fluency in his second language. He was slow to respond at times likely in part because of the speed with which P.C. Clarke expressed himself. Some of the words the officer used were legal or technical. He could have done better. His certainty that it was unnecessary for him to take more care and his impatience were misplaced and added to the Crown's burden.

[36] At the same time, the evidence indicates that by his responses and actions, noted earlier, the defendant had a broader understanding of English than he would have the court believe. I view his evidence in this light and conclude he tended to minimize his ability to use and understand English. Nonetheless were the standard one of wilful failure to blow, this would be a borderline case on the issue of language. But wilfulness is no longer an essential mens rea element.

[37] It is the very clear nature of the officer's demonstration and its simplicity, the defendant's admission that he understood he was to blow hard and his few near successful attempts in the context of all the evidence, including the defendant's responses to questions, that tend to permit the reasonable inference that the defendant had knowledge of his obligations and consequences of refusal or failure to provide a sample.

[38] On the evidence, I am not left in reasonable doubt that Mr. Sathasivan lacked awareness in that regard. I am satisfied to the requisite standard that he knowingly failed to provide a suitable sample.

Last Chance

[39] Mr. Sathasivan said that upon arrest he asked to blow 'one more time'. The circumstances here warranted such a consideration by the police. Where the refusal and offer are close in time and the technician and instrument are available, and where there was no warning that the last attempt would be final, it would not be unreasonable to permit a last chance to the accused: R. v. Domik, [1979] O.J. No. 1050 (Ont. C.A.); R. v. Chance, [1979] O.J. No. 4939 (Ont. C.J.).

[40] P.C. Clarke does not recall an offer from the accused. My review of the video at the relevant part does not support Mr. Sathasivan's evidence. I am not left in reasonable doubt that the defendant asked for a second chance.

[41] In the result, the accused will be found guilty of Fail to Provide Breath Sample.

Released: February 26, 2013

Signed: "Justice L. Feldman"