Citation: R. v. Ding, 2014 ONCJ 24

ONTARIO COURT OF JUSTICE Old City Hall - Toronto

BETWEEN: HER MAJESTY THE QUEEN — AND — CHEN DING

M.-A. Mackett For the Crown

P. Lindsay For the Defendant

Heard: June 12-13 and November 26, 2013

REASONS for JUDGEMENT

MELVYN GREEN, J.:

A. INTRODUCTION

[1] The Ontario Provincial Police (OPP) investigated Chen Ding, the defendant, for "stunt driving" early on September 4, 2012. An odour of alcohol led to a roadside approved screening device (ASD) demand with which, says the Crown, the defendant did not comply. As a result, he was charged with failing or refusing to comply with a breath demand (contrary to s-s. 254(5) of the Criminal Code) and with the excessive speeding that initially attracted police attention.

[2] A joint trial was conducted, the evidence called on the Criminal Code prosecution applying with the consent of the parties to both charges. The only witness was the arresting officer, Sgt. Gerry Lannigan. At the close of the Crown's case, the defendant conceded his culpability for the Highway Traffic Act (HTA) s. 172 offence of "stunt driving" (defined, in this context, as "driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit": O. Reg. 455/07, s. 2(2)). He resists the Code charge on the basis that the officer's ASD demand was not valid or lawful and, in the alternative, that the Crown has not proven the requisite mens rea for the offence of failing or refusing to afford an appropriate roadside breath sample. As in all criminal prosecutions, the ultimate burden rests on the Crown to prove beyond reasonable doubt all the essential elements of the offence charged.

B. EVIDENCE

[3] Sgt. Gerry Lannigan is a 28-year veteran of the OPP. He was monitoring traffic on Highway 404 in north Toronto after midnight on September 4, 2012. Utilizing an approved laser speed detection device, Lannigan clocked the defendant driving northbound at 161 kph in a 100 kph zone at 1:38am. He pursued the defendant who reduced his speed to between 100 and 110 kph (in direct examination) or 80 kph (in cross-examination) by the time he entered the slow lane. The defendant stopped when Lannigan activated his emergency equipment.

[4] Lannigan banged on the driver's side window three times before the defendant rolled it down. He immediately smelled an odour of alcohol on the defendant's breath and from inside the vehicle. The defendant initially denied having had anything to drink and then admitted having had one drink at 11:15. He produced a G2 licence, a condition of which license is that the holder not have any alcohol in his system while driving a motor vehicle.

[5] Lannigan formed the grounds to make an ASD demand at around 1:40 to 1:41am. He returned to his police car at 1:42am and immediately called for a "Drager" ASD. One officer, Cst. Husain, positively responded, although he did not say when he would arrive. (Husain did not testify at trial.) Lannigan began to fill out several documents related to the charge of stunt driving (including a seven-day license suspension and a vehicle impound notice) while waiting for Husain. This "paperwork", according to Lannigan, takes between 15 and 20 minutes to complete. Lannigan was not going to release the defendant until the ASD arrived and he had conducted the roadside tests; the defendant, he agreed, was detained throughout this process.

[6] Cst. Husain pulled up at 1:50am with a Drager Alcotest 7410 GLC. Lannigan put aside the still incomplete HTA documentation and turned his attention to conducting the roadside breath tests. Lannigan's last training on a Drager ASD was some 13 to 15 years prior.

[7] At Lannigan's request, the defendant attended the police vehicle at 1:52am. He was read the ASD demand a minute later – some 12 to 13 minutes after Lannigan first formed the grounds (in essence, that the defendant had alcohol in his body while driving) to advance the demand. Lannigan explained that his training and practice was to not make an ASD demand until he had the device at hand. Later he amended his testimony: the stunt driving paperwork, he said, created an exception to the immediacy imperative; had there been no form-filling requirements he would have made the roadside breath demand earlier. Whether or not Husain had by then arrived, Lannigan intended to make the ASD demand and "Mirandize" the defendant once he completed the HTA stunt-driving documentation.

[8] Lannigan personally checked the ASD to ensure that it had been calibrated within the recommended previous 14-day period. This, he said, was a "requirement" and one he always followed. The device, in fact, had last been calibrated on August 19, 2012, some 16 days earlier, but Lannigan testified that he did not realize this until after the testing was complete, the defendant was charged and released, and he, Lannigan, was back at the OPP station. He explained that he expected Husain to tell him if a calibration had not been conducted within the previous 14 days and, had he been so advised, he would have called for a second ASD. He agreed that he should not have been using the ASD delivered by Husain to conduct roadside breath testing.

[9] Lannigan advised that Husain (who, again, did not testify) told him he had personally tested the ASD. However, Lannigan did not know when Husain performed these tests or their results. At no point did Lannigan himself test the ASD or physically demonstrate the procedure to the defendant. He was not then aware that an Alcotest 7410 GLC "Training Aid" prepared by the Toxicology Section of the Centre of Forensic Sciences (CFS) directed officers administering roadside testing to personally test the device after several unsuccessful subject tests. In re-examination, Lannigan effectively agreed that he "believed" Husain had also performed those other "commencement of tour of duty" checks directed by the CFS Training Aid. In fact, Lannigan was not even aware of the existence of the CFS Training Aid until another officer had advised him about the manual on the evening between the first and second days of his cross-examination. He had then located and read it. He agreed he would follow CFS-recommended procedures in future.

[10] Lannigan explained the point of the testing procedure to the defendant and afforded him six opportunities to "blow" between 1:54 and 1:58am. He was looking for a six-second-long tone that indicates that a suitable sample is being provided. The officer heard no air entering the ASD and no tone signaling the passage of air. "It was like [the defendant] was trying to blow but no air was coming out", he testified. Lannigan reported seeing the defendant "tongue" the inside of the mouthpiece – effectively blocking the passage of air – on a "couple" of occasions. He was not satisfied the defendant's efforts were sincere.

[11] Lannigan could feel the defendant's breath when he asked him to blow into a new, unconnected mouthpiece at 1:58am. He then attached the new mouthpiece to the instrument, repeated the ASD demand and gave the defendant four further and equally unavailing opportunities to provide a suitable roadside sample. Lannigan cautioned the defendant about the penalties for "refusing" to blow and afforded him three final attempts. He was met with no air, no tone and, as had occurred at least once earlier, several "EO" error messages (none other) for about one second. Each of the defendant's total of thirteen efforts was of a different duration. Although Lannigan kept no notes in this regard, he agreed that some of the "attempts" lasted as long as eight seconds.

[12] Lannigan denied that the defendant properly "blew" into the ASD on each occasion. He also denied getting angry and swearing at the defendant. At 2:06am, after the last of the thirteen test opportunities, Lannigan directed the defendant to stop. An arrest for refusing to provide a suitable sample followed at 2:08am and, for the first time, Lannigan read the defendant his right to counsel, followed by the conventional post-arrest cautions. Lannigan testified that he first learned the defendant possessed a cellphone when the defendant asked him to retrieve it at 2:12am, after his arrest. The defendant declined Lannigan's offer of privacy to call his lawyer or duty counsel. The defendant was ultimately released at roadside on a Promise to Appear.

C. ANALYSIS

(a) Introduction

[13] Upon satisfaction of specified standards of suspicion or belief, Code s. 254 empowers police officers to demand, in three situations, that drivers submit to certain tests to determine whether their ability to operate a motor vehicle is impaired by alcohol or drugs. In each case, absent a reasonable excuse (and none is here advanced) the failure or refusal to comply with the demand, if lawful, amounts to an offence under sub-s. 254(5): "Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section".

[14] The "demand" at issue in the instant case is the ASD demand set out in sub-s. 254(2). The relevant portions of that provision reads:

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 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 … . [Emphasis added.]

The "forthwith" requirement has been judicially construed as informing not only the timing of the provision of the requested sample but, as well, the timing of the investigating officer's ASD demand. (See, by way of example only, R. v. Fildan (2009), 2009 45315 (ON SC), 69 C.R. (6th) 65 (Ont. S.C.J.), esp. at para. 39; R. v. Degiorgio, [2011] O.J. No. 3337 (C.A.), at paras. 35-37; and R. v. Quansah (2012), 2012 ONCA 123, 92 C.R. (6th) 1 (Ont. C.A.), at para. 46.) Where, as here, the driver is detained the constitutional expectation is that the demand is, in the ordinary course, to be made immediately. The defendant's first position is that the twelve to thirteen minute delay between the crystallization of Cst. Lannigan's "reasonable suspicion" and intention to administer a roadside test and his actual articulation of the ASD demand fails to comply with the immediacy requirement captured in the word "forthwith" in s. 254(2). As a result, says the defence, the demand is unlawful and the defendant was not obliged to comply with it.

[15] In the alternative, the defence asserts that the Crown has simply failed to prove to the requisite standard that the defendant failed or refused to comply with the officer's demand. An analysis of this latter claim must begin with an appreciation of the essential elements of the offence charged, the subject to which I now turn.

(b) Section 254(5): The Elements of the Offence

[16] The sub-s. 254(5) offence of failing or refusing to comply with a breath demand has attracted considerable jurisprudential attention. One oft-quoted statement of the essential components of the offence – that is, the elements the Crown is required to prove beyond reasonable doubt – is that succinctly provided by the Saskatchewan Court of Appeal in R. v. Lewko, 2002 SKCA 121, [2002] S.J No. 622, 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.

[17] The second Lewko factor describes the actus reus or conduct element of the offence. The proper approach to determining the conduct element (and, for that matter, the mental element) in cases other than those of outright refusal involves an analysis of the totality of the events. As said in R. v. Tavangari (2002), 28 M.V.R. (4th) 104 (Ont. C.J.), at paras. 15-16 and 22:

In considering whether the Crown has proved beyond reasonable doubt that the accused has refused or … failed to comply with a screening device demand, the court must look at all of the circumstances of the entire transaction between the police officer and the accused.

These cases typically involve conversation between the parties that is likely to be unique, as well as a variety of circumstances which tend to combine in ways that again are particular to the case. There can be no specific rules isolating one factor, such as the number of tests to be conducted, from the other circumstances of a transaction to determine whether there has been a failure to provide a sample. Each case must be individually assessed, looking at all of the circumstances of the transaction between the officer and the accused as a whole, to determine whether the Crown has proved a refusal or failure within the meaning of s. 254(5). [Emphasis added].

Evidence of a "refusal" may be unequivocal or may, like that of "failure", depend on a close assessment of a defendant's conduct and his or her roadside exchange with the police. As said in R. v. Bijelic, 2008 17564 (ON SC), [2008] O.J. 1911 (Ont. S.C.), at para. 30, "[r]efusal to comply may be quite express or may logically be inferred from the totality of the detained driver's behaviour". Like constructive refusal, proof of "failure" similarly depends on determining, through inferential reasoning, whether the requisite standard has been crested.

[18] The third ingredient of the offence identified in R. v. Lewko (that describing the element of mens rea) has been subject to recent and critical re-consideration. In R. v. Porter, 2012 ONSC 3504, [2012], O.J. No. 2841 (S.C.), Code J., at para. 34, reasoned that,

… the flaw in these cases [Lewko and its progeny] is that they treat the mental element enacted by s. 254(5) as a specific intent rather than a general intent, that is, they read in the term "wilfully".

Following a review of the statutory history of the offence, a comparative analysis of related provisions and the application of general principles of statutory construction and criminal law, Justice Code persuasively concludes that, "the mens rea enacted in s. 254(5) is knowledge or awareness of the prohibited act". In short, s. 254(5) is a general intent offence rather than one that requires (as earlier prescribed by Lewko) any element of intentionality in the sense of a desire or purpose of bringing about an unsuitable test result. (See also: R. v. Kitchener, [2012] No. 3857 (S.C.), at para. 36; R. v. Singh, 2013 ONSC 6324, [2013] O.J. No. 4573 (S.C.), at para. 19.) Accordingly, the critical question, to which I now turn, is whether the Crown has adequately established the defendant's mens rea in the sense defined in R. v. Porter.

(c) Is the Offence Made Out?

[19] No suitable sample was provided in the case before me. That is not, I find, the result of an unequivocal refusal to comply with the officer's demand. There is no evidence, as sometimes occurs in other prosecutions, of the defendant verbally rejecting an officer's demand, stubbornly protesting the police effrontery or demanding he be promptly charged. Nor is the defendant's conduct unambiguously consistent with a refusal: while the sincerity of the defendant's performance is open to question, he did at least go through the motions of putting his lips to the mouthpiece at each request, did not argue with the officer, and participated (fully, it appears) in the mid-course instructions. Assuming its lawfulness, the factual question is not whether the defendant refused Lannigan's demand but, rather, whether he knowingly failed to blow on each of the multiple occasions he was afforded.

[20] There is substantial evidence from which a knowing failure to comply could be inferred. Despite thirteen opportunities, repeated instructions, a fresh mouthpiece and a penal caution, no suitable sample was ever collected by Sgt. Lannigan. Further, Lannigan did not observe the telltale flow of air or the device-generated tone that, to him, signaled that a driver was endeavouring to provide a breath sample. Further still, on two occasions Lannigan says he observed the defendant tonguing the mouthpiece, which Lannigan interpreted as an effort to block the passage of air into the device. As well, the alcohol prohibition attending the defendant's G2 licence provides, says the Crown, a motivation to defy or evade compliance so as to escape the detection of any alcohol in the defendant's body.

[21] On the other hand, and as earlier noted, the defendant did uncomplainingly follow at least the front end of Lannigan's instructions on each of the thirteen occasions he was asked to blow. Although Lannigan did not observe any passage of air, audio tone or error messages on about half of these occasions, these indicia, however modest, of the defendant's efforts to comply characterized the other (chiefly latter) half of his attempts. Further, while the duration of the defendant's expulsions of air varied from test to test, some efforts apparently lasted as long as eight seconds in circumstances where Lannigan had instructed the defendant he need only blow for approximately six seconds. Further still (and, admittedly, by way of an observation that could cut either way), Lannigan at one point characterized the defendant's behaviour like that of a person who "was trying to blow but no air was coming out".

[22] So, does the defendant's failure to generate a suitable sample after thirteen opportunities ineluctably infer the requisite mens rea? Or is there some extraneous source for doubt about the defendant's criminal intent? Put otherwise: can I be satisfied beyond reasonable doubt that the defendant was only simulating compliance by "going through the motions" or am I left with some doubt in this regard due to evidence of potential defects in the device? Although not critical to the resolution of the case then before it, this question was posed, if not directly answered, by the Court of Appeal in R. v. Danychuk (2004) 2004 12975 (ON CA), 183 C.C.C. (3d) 337. The Court, at para. 25, acknowledged a line of authority standing for the proposition 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. [Emphasis added.]

This issue would not arise, of course, were I satisfied that the defendant's conduct amounted to a "refusal" as the mechanical propriety of the ASD – or whether it was even a roadside breath-testing device as opposed, say, to a Cracker Jack box – would then have no bearing on an assessment of the defendant's intent. (See R. v. Danychuk, supra, at para. 20, and R. v. Degiorgio, supra, at para. 58.) The situation is different, however, where as here the Crown theory ultimately rests on "failure" and there is an evidentiary basis for concern about the operation of the device at issue.

[23] There are indeed reasons, grounded in the evidence, for some disquiet about whether the ASD administered by Sgt. Lannigan was in proper working order. The sources of concern include the following:

• Lannigan himself never personally tested the device. As directed by the CFS Training Aid, and effectively adopted as best practice by Lannigan in the course of his cross-examination, the operator of the device should "conduct [a] personal test to verify that [the] instrument will accept a sample" before administering it to a subject at roadside. Lannigan, it appears, relied on Husain's assertion (unspecified as to timing or result) that he had tested the operability of the device. Husain, however, did not testify, and Lannigan's account of what Husain may or may not have said is of no moment where the issue before me is the functionality of the instrument – not (as might be the case in the course of a Charter application) Lannigan's good faith in proceeding as he did. In short (and unlike the vast majority of roadside demand cases), there is here no admissible positive evidence of the operability or reliability of the device.

• Lannigan did not retest the machine in the face of the defendant's first half-dozen unsuccessful assays. As directed by the Training Aid: "If after several attempts the subject is unable to provide a suitable sample, demonstrate that [the] unit is in proper working order by conducting a personal test using a new mouthpiece". Lannigan, of course, did no such thing.

• The ASD at issue was last calibrated outside the 14-day window consistent with police and expert protocol. As the Training Aid again directed ASD operators: "Check [the] calibration label … to ascertain that the Alcotest had been calibrated within the previous fourteen days". Although then unfamiliar with the CFS guidelines, Lannigan was aware of and, he said, scrupulously respected this "requirement". He himself checked the calibration label on the device and, for reasons both unexplained and inexplicable, appears to have satisfied himself that the required calibration had last occurred within the prescribed 14-day period – as opposed to sixteen days earlier, as recorded on the label. Lannigan testified that he should not have administered the roadside tests using the device delivered by Husain. He volunteered that he would have called for a second ASD if he were aware of the calibration problem at the time. A stale-dated calibration is, of course, not necessarily ruinous to the proper operation of an ASD. However, and unlike other suspect calibration cases, there is here no evidence independently verifying the device's functionality as may have occurred had Lannigan, by way of one alternative, conducted a personal test. In R. v. Grennan, [2013] O.J. No. 3733 (C.J.), for example, the last calibration was again two days outside the prescribed fourteen. In conspicuous contrast to the evidence before me, the officer in that case, as summarized by Blacklock J. at para. 12,

… gave evidence that he [him]self tested the machine as part of his demonstration to the accused prior to his providing a roadside sample. He correctly obtained breath readings of zeros. He gave evidence that this machine was in effect assigned to him. He did the calibrations on it since 2008. He indicated that this machine had never had a problem and whenever he calibrated it, it was always within proper parameters.

Further, there was "no evidence" from the officer in Grennan that he would not have used the device had he recognized that its last calibration was outside the CFS guidelines. Indeed, as Blacklock J. recites, at para. 14, the "officer in fact gave evidence that he would not have used the machine if he did not think it would have provided accurate results". This scenario is, of course, entirely distinct from that before me where Sgt. Lannigan, the officer conducting the ASD procedure, testified that he never personally tested the device, had no prior familiarity with it, and would not have used it had he recognized the calibration concern before he administered the tests.

• Finally, Lannigan readily admitted his ignorance of ASD practice and protocol. He had not been trained in the operation of the Drager Alcotest in some thirteen to fifteen years. He had no awareness of the existence of a CFS manual directed to the proper operation and administration of the ASD until he was midway through his cross-examination. He was, it became apparent, confused about the number, meaning and significance of the machine-generated error signals. Lannigan's ignorance about the ASD stands in telling contrast to the mastery he demonstrated of the mechanics and operation of the approved velocity-measuring device he used to clock the defendant's excessive speeding.

[24] No one of these considerations is itself fatal to the assertion that the ASD at issue was in proper working order. However, in combination – and when coupled to the evidence (tangible, if slight) of the defendant's efforts to comply with Lannigan's instructions – I am left with some real doubt as to whether the "failure" to produce a suitable sample was a product of the defendant's knowing misconduct or some defect inherent in the operation of the ASD. That doubt necessarily translates into a finding of "not guilty".

[25] In view of my determination of this issue, I see no need to pass on the defendant's claim that the officer's ASD demand was unlawful by virtue of the delay between his formation of the requisite suspicion and intent and the actual making of the demand and that, as a result, he, the defendant, was under no obligation to comply with that demand. My decision to forego the requisite analysis and assessment should not be read as an endorsement of either the defendant's claim or the Crown's position as to the legal propriety of the impugned delay.

D. CONCLUSION

[26] For the reasons here set out, I find the defendant guilty of the offence of "stunt driving" under the HTA but not guilty of the offence of failing or refusing to comply with a demand under s. 254 of the Code.

Released on January 15, 2014

Justice Melvyn Green