Court Information

Court: Ontario Court of Justice

Before: Justice Peter A. Harris

Heard: July 8, 2014

Reasons for Judgment Released: July 18, 2014

Parties

Between:

Her Majesty the Queen

— AND —

Artem Tikhonov

Counsel

For the Crown: C. Tomusiak

For the Defendant: T. Chan

Judgment

P. HARRIS J.:

Charge

[1] The defendant is charged with failing or refusing to comply with the demand to provide a breath sample necessary for analysis by means of an approved screening device (A.S.D.) on the 29th of July, 2013 on the 401 highway in Toronto.

Facts

[2] Just after 3:00 a.m. on July 29, 2013, a police officer in a marked OPP cruiser observed a vehicle weaving in its lane and straddling the left and right sides of the lane on the 401 highway westbound at Keele Street. The vehicle was stopped by the officer and in the course of communications at the roadside, the officer detected an odour of alcohol on the breath of the defendant and after further investigation, he formed the grounds for a demand for an A.S.D. The defendant accompanied the officer to the cruiser and was placed in the locked back seat area and the A.S.D. procedure was explained and administered through a sliding window in the barrier between the front and back seats. In the officer's opinion, the defendant failed to comply with the demand for a breath sample.

[3] The entire A.S.D. administration took place in the space of five minutes between 3:12 a.m. and 3:17 a.m. at which time the defendant was arrested. P.C. Josh Flowers testified that he first self-tested the A.S.D. instrument and obtained a reading of zero ― satisfying himself that the device was working properly. He then demonstrated the operation of the device for the defendant by blowing into it and explaining what the defendant was expected to do. Over the course of five minutes he provided the defendant with six opportunities to produce a suitable sample, but at no time did he obtain a reading on the device. He was asked what he observed during the first opportunity and he testified that the defendant was putting his tongue on the mouthpiece resulting in the absence of a tone and an unsuccessful attempt.

[4] On the second attempt the officer gave evidence that the defendant was still not blowing as there was no audible tone produced. He then had the defendant blow through the mouthpiece to ensure that it was not obstructed in any way. He stated he demonstrated the proper way to produce a suitable sample and warned him that he faced a criminal charge if he failed to provide a breath sample.

[5] P.C. Flowers testified that an individual would have to blow into the device for five seconds to obtain a reading. He stated that on the third and fifth attempts he heard an audible tone for about two seconds but the defendant did not blow long enough to produce a suitable sample. On the fourth and sixth attempts there was no audible tone, and in the officer's opinion the defendant was still not blowing long enough. P.C. Flowers reported that the defendant said to him: "Please, I need to work, I have a family." Later the defendant said: "Please give me a ticket and follow me off the highway. I need my car for work." P.C. Flowers stated that the defendant seemed very nervous about providing a sample. After his arrest and a recitation of his rights to counsel, the defendant was released at the scene on an appearance notice and he was transported from the side of the highway in the front seat of the tow truck that had been ordered for the removal of his vehicle.

[6] In cross-examination, P.C. Flowers stated that his only training on the Draeger Alcotest 7410 instrument was at the police college before he began working for Toronto Police Services in 2006. He gave evidence it was his understanding that the instrument had to be calibrated every seven days. He agreed that the calibration date on the device was outside of the seven-day range and that he would not have used that device if he had realized it had not been calibrated within the previous seven days. He testified he was not sure of the meaning of the various "error messages" that could be received while using the device. He was not able to say whether he checked to see that the green light was on ― meaning that the device was ready to accept a sample before each opportunity to blow into the instrument ― although he said that it was his practice to do so. P.C. Flowers agreed that he noted that the defendant had been given 10 opportunities to provide a sample in the synopsis he prepared for the Crown brief. He stated that this was a mistake and that he had been given 6 opportunities. P.C. Flowers agreed that he was giving an opinion about the defendant's tongue blocking the mouthpiece: that was not something that he had actually observed. He agreed he warned the defendant that if he failed to provide a sample the consequences "would be the same as impaired driving." He agreed that was all he said about the consequences of a failure to provide a sample. In contradiction to the latter statement, P.C. Flowers later testified that even though there was no reference in his notes he always explained the warning for failure to provide a sample by "explaining the charge, the 90 day suspension and the seven-day vehicle impoundment." The officer was then asked why he did not offer a final opportunity to provide a breath sample and he stated: "He already had six attempts in five minutes." "I didn't want to stay on the side of the highway to continue to give him opportunities." "It was dangerous."

[7] Artem Tikhonov testified that he was born in Russia and emigrated to Canada in 1997. He stated he took language classes when he arrived and worked in construction with Local 183 of the Laborers Union and more recently worked as a self-employed renovator. He stated that he had never been charged with a criminal offence. He gave evidence that on July 29, 2013, he was working on a renovation job until very late at a private residence in Stony Creek. He said he left the site in his vehicle and felt very tired after a long day and drove back to Toronto. He stated that he had not consumed any alcohol before driving but did drink some beer two nights before the night in question. Mr. Tikhonov said that he thought he was taken into the police car to "take a test and check his ID on the computer." He said he was told: "you are not blowing hard enough." And that: "You better blow otherwise it will be very bad for you." Mr. Tikhonov testified: "I continued to blow, then, I tried to blow harder." "After a few tries he [the officer] said that's it." He testified:" I did not try to fake it. I did not know I would have no car for a week and no license for 90 days." He said: "My life changed right away."

[8] In cross-examination, Mr. Tikhonov was asked about weaving on the highway and he said that he was tired but still paying extra attention to the line on the road. He said nobody else was on the road at that time of night. The defendant agreed that he had asked about an alternative charge. He said: "I need a car to go to work. I ask if I can be punished in other ways than by taking the car." He was then asked about the demonstration given by the arresting officer and whether he observed that the officer blew in the device for a significant period of time. He answered: "Yes." He was then asked if he heard the sound of a tone when the officer was demonstrating the device. He answered that he did not know [about that]. He said the officer "was in the front seat." He stated: "I heard a tone when I blew." He told the court: "I did whatever he asked." The defendant stated that he thought he blew for more than 5 seconds. After blowing in the device several times, the defendant stated that he was given a paper and he asked: "What's next?" He said he was told, "You will see."

Analysis

(a) The Mens Rea Question

[9] The first issue in this case is the appropriate characterization of the mental element of the s. 254(5) offence. There was no defence of reasonable excuse asserted in this case. It was argued that the Court must be satisfied beyond a reasonable doubt that the defendant intentionally failed to provide a necessary sample for analysis into the roadside screening device. The issue for consideration therefore is ― whether the mens rea enacted in s. 254(5) is knowledge or awareness of the prohibited act; R. v. Porter 2012 ONSC 3504, [2012] O.J. No. 2841 (Ont. S.C.J.); R. v. Pletsas 2014 ONSC 1568, [2014] O.J. No. 1136 (Ont.S.C.J.) or must the Crown prove that the defendant intended to produce that failure: R. v. Campbell (2008), (Ont. S.C.J.); R. v. Stanley (2003), 42 M.V.R. (4th) 95 Ont. S.C.J.); R. v. Lewko (2002), 2002 SKCA 121, 169 C.C.C. (3d) 359 (Sask. C.A.); R. v. Greenshields, 2014 ONCJ 35 (Ont. C.J.).

[10] The second issue for determination is credibility which in this case is interconnected with the ASD function issues. Consequently, I have applied the recommended principles in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) ― which place the burden of proof on the Crown when resolving any issues of credibility that relate to the essential elements of the offence.

[11] As noted above, there are at least four Ontario Superior Court decisions (all summary conviction appeals) that have adjudicated on the particular state of mind to be proven by the Crown on the s. 254(5) offence. Two decisions have concluded that the mental element enacted in s. 254(5) is knowledge or awareness of the prohibited act: see R. v. Porter 2012 ONSC 3504, [2012] O.J. No. 2841 (Ont.S.C.J.); R. v. Pletsas 2014 ONSC 1568, [2014] O.J. No. 1136 (Ont.S.C.J.) while two decisions have held that Crown must prove that the defendant intended to produce that failure: R. v. Campbell (2008); R. v. Stanley (2003), 42 M.V.R. (4th) 95 (Ont.S.C.J.) Consequently, there is at present, no binding authority on this issue.

[12] I would begin by confirming that the mental element of the s. 254(5) offence we are concerned with is the element required to prove the failure or refusal to provide a breath sample and not the statutorily included defence of "reasonable excuse." As noted in the leading decision on this point, R. v. Taraschuk (1977), 25 C.C.C. (2d) 108 (SCC): "Reasonable excuse, ….refers, in my view, to matters which stand outside of the requirements which must be met before a charge can be supported.." In the case at bar, the defendant is not raising as a defence some external explanation as to why he was not able to produce an A.S.D. result such as a health-related reason for the failure and consequently the defence of reasonable excuse is not engaged.

[13] The ratio in R. v. Porter, supra (followed by Campbell J. in R. v. Pletsas, supra) proceeds upon two suppositions: (1) at paragraph 34, Code J. asserts that: "There is 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;" (2) additionally, Porter held that in the absence of the term "wilfully" in the statute it must be concluded that s. 254(5) is an offence of general intent and accordingly knowledge of the failure to provide a suitable sample, in other words that the accused knew he or she failed to supply a suitable sample, is a sufficient mens rea: "Their reason for failing to provide a suitable sample is simply their motive, an explanation, or excuse and not their intent," (paragraph 35, Porter).

[14] Respectfully, this position is conclusory and based on a flawed analogy. First, the general intent/specific intent dichotomy is not edifying in this context. For example, it is trite law that an assault under section 266 of the Code is an offence of general intent but few would maintain that "knowledge" rather than "intention" fully expresses the mens rea element of that offence. Additionally, the mere fact that there is an absence of the term "willfully" and no other mention of the applicable form of subjective mens rea in offences such as Breach of Trust (s. 122, Code), Common Nuisance, (section 180, Code), Uttering Counterfeit Money, (section 452, Code), and Trafficking, (Section 5, C.D.S.A.) and a host of other criminal charges would hardly lead to a conclusion that "knowledge" rather than "intention" fully expresses the mens rea element of these offences.

[15] Secondly, it is correct to say that respecting some offences involving some immediate act, knowledge will be a sufficient mens rea. For example where the immediate act is possession, knowledge is a common form of mens rea for possession-based offences. As the Supreme Court explained in R. v. Beaver (1957), 118 C.C.C. 129 (S.C.C.), a person in physical possession of a substance could not be said to possess that substance unless he knew the nature of that substance. As Cartwright J. stated: "There is in law no possession without knowledge of the character of the forbidden substance." However, just because an immediate act in the context of the s. 254(5) offence may be said to be the failure to provide a breath sample, there is no basis in logic for a conclusion that knowledge is ipso facto a sufficient characterization of the mens rea element of the offence. The difficulty with this conclusory reasoning is that after every unsuccessful attempt to provide a sample, the officer will inevitably inform the accused that he or she failed to produce a result. That information would supply the requisite knowledge and unless the accused raises the defence of "reasonable excuse", conviction must follow. Surely, consistency with the presumption of innocence must allow the accused to raise a reasonable doubt as to whether he or she intended the consequence ─ the resulting breath test failure. In my view, as a matter of justice and fairness, in respect to the full mens rea offence set out in section 254(5) of the Code, the accused's intention in relation to that consequence must be the requisite mental element of the s. 254(5) offence.

[16] There is no definitive jurisprudential rule as to when the mens rea element of a Criminal Code offence is relegated to "knowledge" as opposed to "intention." Historically it has been judicial interpretation as to the elements of the offence that results in the delineation of the requisite mental element. As McLachlin J. explained in R. v. Théroux, [1993] 2 S.C.R. 5 (SCC):

To put it another way, following the traditional criminal law principle that the mental state necessary to the offence must be determined by reference to the external acts which constitute the actus of the offence…the proper focus in determining the mens rea of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit, falsehood or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation, including the risk of deprivation).

[17] Typically, guilty knowledge will be determined to be the mental element of an offence where the doing of some act with particular knowledgeable mental state will constitute the offence ― in other words where the external acts which constitute the actus of the offence presuppose a mental element that entails a subjective knowledge or awareness of the wrongfulness of that act. For example, the offence of "Operating a motor vehicle while Disqualified:, (S. 259(4), Code) makes no reference to any particular mens rea, but the mental element to be proven could hardly be anything other than knowledge of the driving prohibition at the time the accused operated the vehicle: R. v. Prue (1979), 46 C.C.C. 257 (SCC). Similarly, a Fail to Comply with Probation charge under s. 733.1 of the Code must reasonably require the proof of an act such as a curfew violation accompanied by an awareness of the wrongfulness of the act, in other words, knowledge that the conduct was prohibited by a probation order. However it does not follow that because the Fail/Refuse roadside Breath Sample sounds like it contains the same elements ― a failure to comply with a legal requirement without reasonable excuse ― it must therefore be defined by the identical form of mens rea as the offence of Fail to Comply - Probation. The s. 254(5) offence is nothing like an offence of failing to comply with a court order, the terms of which a probationer would be expected to have been aware.

[18] The Porter conclusion - of liability flowing from a failure to produce an ASD result combined with knowledge or recklessness of the prohibited act, is respectfully, unsound public policy as well. First, where an accused tries but fails to produce a valid ASD result, this formulation of the mens rea will often unfairly place a burden of proof on the accused to establish a reasonable excuse on a balance of probabilities to avoid liability: R. v. Moser (1992), 71 C.C.C. (3d) 165 (Ont.C.A.). For those who honestly attempt to provide a breath sample, this construct presupposes the ready availability of an evidentiary justification for the failure to produce a viable ASD result. Surely it is to be expected that there will be those who try but fail for reasons that are not known, ranging from underlying heath issues of which they are not aware, to ASD mechanical or operational shortcomings, to other emotional and situational exigencies. For these individuals, the presumption of innocence would be little more than empty rhetoric under the Porter concept of the s. 254(5) offence. Second, the ASD instrument was never intended to be a reliable science-based investigative tool. In R. v. Orbanski, 2005 SCC 37, [2005] S.C.J. 37 (SCC) Charron J. for the majority, confirmed that compelled evidence from a roadside breath test device may be used to confirm an officer's grounds for making a breath or blood demand but not for incrimination at trial. The ASD was clearly designed to provide a superficial screening of blood-alcohol in a way that was as minimally disruptive to the motorist as possible. As well, unlike the approved intoxilizer instrument, it is expected that an ASD would be utilized in less than ideal testing conditions, such as ─ late at night on dark highways and in every imaginable type of weather. And often, as in the case at bar, it is extended through an opening in the prisoner's compartment in the rear of a police vehicle. Surely, this type of portable breath screen that is used in all kinds of operational conditions was never designed to provide the type of dependable and trustworthy evidence that could support a much diminished mens rea such that a failure to produce an ASD result combined with knowledge or recklessness respecting the failing result ― could result in criminal liability. The irony is that in the haste to find efficiencies in removing high risk motorists from our highways there is the potential to undermine basic principles of trial fairness.

[19] As a result of the above conclusions, I have determined that the Crown must prove that the defendant intended to produce the failure to provide a suitable breath sample, following R. v. Campbell, R. v. Stanley, supra.

(b) The Credibility/ASD Function Issue

[20] P.C. Flowers was of the opinion that Mr. Tikhonov failed to provide a proper sample by failing to exhale into the instrument in the prescribed manner. At one point he thought the defendant was blocking the airflow by placing his tongue over the opening of the mouthpiece of the instrument. He agreed that this was an assumption on his part, not an observation. The Criminal Code contemplates a peace officer's opinion as to whether the necessary sample has been provided to enable a proper analysis of the breath to be made. Section 254(2) reads as follows:

S. 254(2): Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who was the care and control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such sample of breath to be taken. (Emphasis added)

[21] While P.C. Flowers is certainly permitted by statute to offer an opinion on the sufficiency of the A.S.D. demand compliance, the weight of that opinion is a matter for determination. A basic tenet of evidentiary law is that a lay witness cannot give opinion evidence (with some notable exceptions: see R. v. Graat (1982) 2 C.C.C. (2d) 365 (SCC)) and is only permitted to testify about facts within his or her knowledge, observation and experience: R. v. Collins (2001), 60 C.C.C. (3d) 85 (OCA). P.C. Flowers was not formally qualified as an expert in the operation of the A.S.D. and it was clear that his training was limited to instruction at the police college before he joined the Toronto Police Services some seven years before the arrest on July 29th, 2013. According to R. v. Lavallee (1990), 55 C.C.C. (3d) 97 (S.C.C.) expert evidence is admissible to assist the trier of fact in drawing inferences in areas where the expert has relevant knowledge or experience beyond that of a layperson. However, the anomaly here is that while the opinion of a non-expert is generally inadmissible, (a witness may not give his or her opinion on matters calling for special skill or knowledge otherwise unavailable to the trier(s) unless the witness is an expert in such matters: R. v. Howard (1989), 48 C.C.C. (3d) 38 (S.C.C.)), an officer administering an ASD at the roadside is statutorily empowered to give an opinion as to whether the defendant provided "such sample as….is necessary to enable a proper analysis of the breath to be made." In other words, trial courts are expected to receive an opinion on a matter requiring some expertise, without that opinion requiring qualification to be admissible: see R. v. Ming-Hong Ma, 2006 ONCJ 64 (OCJ). However, as with all evidence, even properly qualified expert evidence, the weight to be accorded is to be assessed by the trier of fact, and considered in relation to the whole of the evidence in the case: R. v. Truscott, [1967] 2 C.C.C. 285 (S.C.C.).

[22] Notwithstanding P.C. Flowers lack of qualification to offer an expert opinion in relation to the operation of the A.S.D., his statutorily mandated opinion as to insufficient compliance has been received in evidence and, is entitled to some weight given the fact it was apparent he had some training and experience with the instrument. Ultimately, the weight to be accorded P.C. Flowers evidence is that of an experienced, 8-year veteran of the Toronto Police Services, but not necessarily the weight one would accord to an opinion based on qualified expertise in the operation of the device. While I find that P.C. Flowers was generally credible, there are a few nagging concerns about his administration of the A.S.D. testing. When asked what he observed he stated that the defendant was putting his tongue on the mouthpiece ─ an assertion he later admitted was just an assumption. Secondly, I am troubled about whether the consequences of failure were adequately explained and without any police notebook entries on this subject I have no ability to assess the officer's evidence. Thirdly, the brevity of the testing process (5 minutes in duration) seems to have been driven by extraneous considerations such as the danger of remaining in a parked vehicle on the shoulder of the highway ("I didn't want to stay on the side of the highway." "It was dangerous."). Fourthly, while not a statutory precondition, one additional factor to be considered is that there was no helpful pause in the opportunities to "blow" offered and a concluding well-documented "last chance" extended with a final warning about the consequences of a failure.

[23] Finally, I am apprehensive about whether the device was in good working order and operated properly in accordance with the evidentiary requirements in fail to provide breath sample cases: see R. v. Danychuk, [2004] O.J. 615 (Ont.C.A.). (1) The officer's only training on the device was at the police college before he joined the force, some 7 years before his contact with the defendant. (2) The officer testified that he would not have used the A.S.D. if he had known the calibration was out of date; (3) P.C. Flowers was not familiar with the error message codes and did not know whether he made sure the green "ready" light was displayed before every test (although it was his practice to do so); (4) The officer did not seem confident about how long an individual would have to "blow" to obtain a reading and had not timed the defendant's efforts and could only hazard a guess as to how long he heard the tone on two occasions (about 2 seconds). Like all disputed police/civilian interaction, a video depiction of the entire A.S.D. administration process would have greatly assisted in the determination of these issues.

[24] Mr. Tikhonov gave his evidence thoughtfully and in a forthright and straightforward manner. Essentially, he testified that he thought he did what he was asked to do. He gave evidence he tried to blow into the machine, and stated: "then I tried to blow harder. I didn't try to fake it." I have carefully considered the Crown's principal arguments: (1) there was no challenge to the officer's instrument demonstrations, the self-test by the officer, the opportunities offered or the fact the defendant failed to produce an ASD result; (2) the pleadings for leniency were the acts of a person who had a motive to feign his attempts knowing full well his blood-alcohol level was over the legal limit; (3) the defendant had no reason to be nervous if he was not over the legal limit and worried about losing the opportunity to drive.

[25] Mr. Tikhonov's evidence was not shaken or seriously impugned in any way in cross-examination. The Crown has expressed valid concerns that are at least partly answered by the evidence adduced: (1) the defendant does not take issue with the fact the instrument was working when the officer administered a self-test: he asserts that he "did whatever he asked" multiple times and blew harder when asked to do so. He simply takes the position he did not intend a failure to provide a sample and does not know why a result was not recorded. (2) As to his pleadings for leniency, the defendant explained that the officer said his "driving was no good when he stopped me." What he understood from the statements of the officer was: "All I knew was that I could lose my car for one week." He explained that what he said to the officer was in the context of his work and his family responsibilities: "I said I can't be without a car." He asked if he could be "punished in other ways than by taking the car." (3) The officer's testimony that Mr. Tikhonov " seemed very nervous about providing a sample" must be recognized as speculation about the reason for the defendant's nervousness. It is a well-recognized phenomenon that for some people, contact with persons in authority engenders a nervous reaction no matter what the context. As well, it must be born in mind that the defendant was stopped on the 401 Highway after 3:00 a.m. and placed in the detention area of the police vehicle at a time when he was tired after a very long workday. Additionally, he was being asked to provide a breath sample into an instrument projected through an aperture in the barrier between the front and back seats of the police vehicle. It could well be the case that most drivers in Ontario would find this to be an anxiety and stress-inducing experience. In all the circumstances, I have concluded I do not disbelieve Mr. Tikhonov's evidence that he tried to provide a breath sample and did not feign his attempts to comply with the demand.

[26] Bearing in mind the previously expressed concerns about whether the device was in proper working order and operated in accordance with equipment standards and appropriate management, coupled with the defendant's efforts to comply, albeit inadequately, I have concluded that there is a reasonable doubt as to whether the failure to provide an A.S.D. reading was caused by the defendant or by a malfunction in the instrument or in the administration of the testing process. As noted above, having previously concluded that the mental element of the offence is "intention" rather than "knowledge", I have determined there is a reasonable doubt as to whether the defendant intended to fail to produce a result on the ASD test and a reasonable doubt arises in respect to the credibility/ASD function findings previously noted as well. In other words, even if my view of the applicable mens rea element in incorrect, the defendant is entitled to an acquittal on the basis of my credibility/ASD function conclusions, alone.

Conclusion

[27] In contemplating the credibility of the police officer who was of the opinion that Mr. Tikhonov was feigning all attempts to supply a sufficient breath sample, I cannot say I entirely disbelieve this experienced police officer. Yet I have such misgivings about the functionality and the administration of the A.S.D. testing as expressed in paragraphs 19 and 20, above, to cause me to have a reasonable doubt about whether the "failure" to produce a suitable sample was a product of the defendant's knowing misconduct (applying the test for mens rea in R. v. Porter) or some defect inherent in the operation of the ASD. As noted, an in-car video of the alleged offence being committed would have assisted considerably in the determination of whether the device was in good working order and explained, demonstrated and operated properly, with appropriate warnings as to the consequences of an intentional failure to provide a breath sample.

[28] Additionally, I have concluded that the Crown must prove that the defendant intentionally failed to provide a proper A.S.D. breath sample and I have determined there is a reasonable doubt as to whether the defendant intended to fail to produce a result on the ASD test. In other words, I accept Mr. Tikhonov's evidence that he tried to provide a breath sample and did not feign any attempts to comply with the demand and that finding raises a reasonable doubt as to the mens rea element of the offence.

[29] In the final result, I am not satisfied beyond a reasonable doubt that the charge under s. 254(5) of the Code of failing to provide a suitable A.S.D. breath sample has been proven by the prosecution. Consequently, the charge against Artem Tikhonov will be dismissed.

Date: July 18, 2014

P. Harris J.