Information and Parties

Information No.: 12-1173

Ontario Court of Justice

Her Majesty the Queen

v.

Mohammed Pourtahmasebi

Reasons for Judgment

Before the Honourable Justice B. Pugsley

on August 26, 2014, at Orangeville, Ontario

Appearances

• L. Marcon – Counsel for the Crown
• R. Lepore – Counsel for M. Pourtahmasebi

Reasons for Judgment

PUGSLEY, J. (Orally):

Mohammed Pourtahmasebi faces a single Criminal Code allegation of failing or refusing to provide a suitable sample of his breath into an approved screening device. There were three witnesses: The Officer in Charge, the defendant and the defendant's former girlfriend.

Crown's Case

Constable Beaton of the Caledon Detachment of the O.P.P. was the sole Crown witness. He has been a police officer for some 11 years. On August 27th, 2012, he was in the company of other O.P.P. officers at a RIDE checkpoint in Caledon, in this judicial district.

At 12:12 a.m., he stopped the vehicle driven by the defendant at that checkpoint. The defendant's passenger was his then girlfriend, Ms Belbin. Constable Beaton detected an odour of an alcoholic beverage on the defendant's breath and asked the defendant if he had consumed any alcohol. The defendant stated he had consumed one beer about three hours before.

Constable Beaton and the defendant spoke about the defendant's employment and other local police officers that the defendant knew. Constable Beaton asked the defendant to pull around the corner onto the shoulder and exit his vehicle to perform an approved screening device test.

The defendant parked and accompanied Constable Beaton to the officer's police vehicle for the purpose of the breath test. At 12:13 a.m., the officer read the defendant the ASD demand. Constable Beaton had such an approved screening device with him and knew that it had been properly calibrated. He demonstrated the ASD test to the defendant by performing a self test. He then gave the defendant a fresh mouthpiece, had the defendant blow through it to demonstrate that there were no obstructions. He had the defendant insert the mouthpiece into the ASD.

The defendant continued to puff air through the unattached mouthpiece. Constable Beaton repeated his request that the defendant insert the mouthpiece into the ASD. The defendant said he didn't know how to do that and reminded Officer Beaton that he knew one of that officer's colleagues.

Constable Beaton inserted the mouthpiece into the ASD and presented the device to the defendant. The defendant presented his closely pursed lips to the end of the mouthpiece and sputtered air into the device. The quantity of air was not sufficient and the device registered an error code of E0, meaning that not enough air had been placed into the device for analysis.

Constable Beaton testified that he immediately cautioned the defendant about failing or refusing to provide a proper breath sample for analysis. He reasoned that the defendant's continuing to blow into the mouthpiece instead of inserting it into the device immediately, and denying knowing how to insert the mouthpiece, combined with the defendant's repeated references to where he worked and the police officers that he knew, represented what the officer interpreted to be a stall tactic.

He told Mr. Pourtahmasebi that if he failed or refused to provide a breath sample into the ASD, he could face a criminal charge similar to failing the breathalyser test by providing a sample analyzed at over the legal limit.

The defendant stated that he lived just around corner. Constable Beaton presented the ASD and seated mouthpiece to the defendant at 12:18 a.m. As he held the device out towards the defendant, the defendant moved away from the mouthpiece and to the side. The defendant asked Constable Beaton why he was being so aggressive with him. Constable Beaton said that he explained to the defendant that he had to provide a breath sample. Constable Beaton read the ASD demand again to the defendant.

He testified that the defendant continued to lean his mouth away from the device. The closest his lips came to the mouthpiece was perhaps 12 inches. Officer Beaton told the defendant that he was going to give him one last chance to provide the breath sample or he'd be arrested. He testified that the defendant leaned away and was concerned about how aggressive Officer Beaton was being.

At 12:19 a.m., the defendant was arrested by the officer for the charge before the Court. The defendant was handcuffed, searched and placed in the rear of the officer's police cruiser. Constable Beaton then read the defendant rights to counsel and caution and prepared the papers to release the defendant from the scene. The defendant stated he did not understand the Appearance Notice.

The officer testified that he went to tell Ms Belbin what was happening and bring her back to the cruiser to explain the Appearance Notice to the defendant. Officer Beaton described Ms Belbin as being fairly belligerent and two other police officers came over to help Officer Beaton. They escorted her back to her car.

The defendant signed his Appearance Notice at 12:40 a.m., and he and Ms Belbin left with the tow truck.

Cross-Examination of Constable Beaton

In cross-examination, Officer Beaton agreed that Ms Belbin had told him that the defendant was not impaired and that he had told her he wasn't being charged with impaired driving but rather with failing to provide a proper ASD test. He agreed that she demanded to let Mr. Pourtahmasebi try again and that she said it was a violation of the defendant's rights not to let him try again. He described Ms Belbin as yelling at him to that effect and holding on to the defendant as she did so. Another officer had informed Constable Beaton that Ms Belbin was intoxicated. Officer Beaton denied that any alcohol odour that he detected when he first stopped the defendant was from Ms Belbin's breath. He specifically noted that the odour of alcohol was from the defendant's breath when he first stopped the vehicle.

There was an absence of any of the usual signs of impairment by alcohol in his observation of the defendant at the scene and the defendant was released from the scene on an Appearance Notice. Officer Beaton agreed that from the time the defendant stopped to the time he was arrested was seven minutes. From the time of the ASD demand to the time of arrest was six minutes. Officer Beaton agreed that this was definitely a short period of time because of the defendant's actions in avoiding providing a proper sample. The only actual attempt was at 12:17 a.m., and the defendant was arrested two minutes later, including time for the caution, the second reading of the ASD demand and the last chance warning to occur.

At no time did the defendant refuse in words to provide the sample, nor did he step away. Rather, the defendant leaned back and to the side when the ASD was presented to him for a sample and asked Constable Beaton why the officer was being so aggressive with him. Officer Beaton testified he did not, as was suggested, shove the device into the defendant's face, but rather was holding the device out to collect the sample of the defendant's breath with his arm extended towards the defendant, holding the ASD in his hand. He disagreed that the defendant could have seen this as being an aggressive act, and noted that the defendant had already placed his lips against the mouthpiece for the first unsuccessful attempted sample.

Officer Beaton agreed that Ms Belbin asked that the defendant be allowed an opportunity after arrest to provide a suitable sample, but did not recall that the defendant himself ever asked for this chance.

Defence Case

Testimony of the Defendant

The defendant testified as the first witness for the defence. He is 32 years of age and lives with his father and stepmother in Bolton. He is the manager of the Pizza Nova restaurant in that town. The defendant agreed that between 2002 and 2006 he was convicted of four separate Criminal Code allegations, none apparently involving an offence related to the charge he faced here. On the day in question, he and his then girlfriend, Ms Belbin, were returning from dinner at the defendant's mother's home in Woodbridge. They had been there from 6 or 6:30 p.m., until 11:30 or so. Ms Belbin was going to drink at dinner and he was going to drive home with her in her car after dinner. Mr. Pourtahmasebi testified that he drank one Corona beer at about 7:30 p.m. and nothing alcoholic after that.

As they drove home, he saw the RIDE checkpoint. Constable Beaton came to his window and asked if he had consumed any alcohol. The defendant stated that he had had one beer three hours before. He was asked to get out and go to Constable Beaton's police car for the ASD test.

He had provided a sample into an ASD on previous occasions. Constable Beaton explained and demonstrated the ASD, put the device in front of the defendant. The defendant stated he shoved it in front of his face and told him to blow. The defendant complied as best he could and the device gave three beeps. Constable Beaton made a comment to the effect that the defendant didn't want to give him a breath sample and shoved the device right into the defendant's face. The defendant said he kind of felt like Constable Beaton was trying to taser him. His reaction was to move his face away by tilting his head back. He was worried that the officer was trying to taser him or punch him and he wasn't 100 percent sure that Constable Beaton didn't have a taser on his belt.

The defendant said that his response was the officer was livid. The defendant was scared and didn't know how to react and asked Constable Beaton why he was being so aggressive with him. He stated this at least twice to the officer and in response, Constable Beaton became very angry with the defendant. He clenched his teeth, physically turned the defendant around and handcuffed him.

The defendant agreed that he had told Constable Beaton that he worked at the Pizza Nova and that he saw O.P.P. officers, including Constable Page, on a day to day basis and that they knew he was a nice guy and so why was Constable Beaton threatening him like this.

The defendant testified in chief that he begged Constable Beaton to let him give a breath sample and that Constable Beaton told him that he had given him one chance and that was it. After he was arrested, Constable Beaton handcuffed him and, as he stated, threw him in the back of the police cruiser. He was there 5 or 10 minutes and then Constable Beaton took him out, took off the handcuffs, took him to the back of the cruiser and slammed a piece of paper onto the trunk and told him to sign the paper. The defendant testified that he read the paper and didn't understand some of the words and so he asked if his girlfriend could come over and read it before he signed it.

At first Constable Beaton got a bit angry about that, but then said, "No problem" and the other police officer brought Ms Belbin over to Constable Beaton's cruiser. Ms Belbin read the release paper and asked the defendant about why he didn't give a breath sample. The defendant testified that he told her he wanted to, but Constable Beaton wouldn't let him. She advised him not to sign the paper and asked Constable Beaton why he wasn't giving the defendant the right to provide a sample.

PC Beaton told Ms Belbin he had given the defendant one chance. Ms Belbin became aggressive, was then threatened with arrest and was then "dragged" by the police back across the street to her car. The defendant then changed that description to forcibly walking her away against her will. Constable Beaton asked the defendant if he wanted to go to jail with his girlfriend that night. He then signed the release papers.

The defendant also told the police that he had given breath samples before, probably three or four times over the last seven years and had never before had any difficulty, nor been charged. In the past he has had to try two or three times before getting a reading on the device and police let him try until he gave a proper sample. He, at all times, intended to give a proper sample because he knew that he would pass and that the alcohol the officer smelled in the defendant's car came from Ms Belbin and not from him.

Cross-Examination of the Defendant

The defendant was vigorously cross-examined by the Crown Attorney. In cross-examination the defendant stated that on the evening in question he and Ms Belbin came to his mother's house in separate vehicles and met there. Right away at his mother's house, he and Ms Belbin agreed that she would drink and he would not, and they would go home to his place after dinner. He had one beer at 7:30 p.m., and they left around 11:30 p.m.

The defendant had no problem seeing the RIDE checkpoint ahead. He'd been to RIDE programs more than 10 times before. At the window he spoke to Constable Beaton for about 20 seconds before he was told to step out of the car. The defendant denied speaking to Constable Beaton about knowing PC Page from his work at Pizza Nova at that point. Rather, there was no conversation, Constable Beaton just showed him the device and shoved it into his face and he blew. Only when Constable Beaton tried to shove the device at his face a second time and a third time did he mention to Constable Beaton about PC Page and other officers that he knew.

Mr. Pourtahmasebi testified that he knew how to provide a proper sample into the ASD because he had done so five or seven times before. Constable Beaton did not demonstrate how to blow by doing a self test. He did not give the defendant any directions as to how to provide a sample. The defendant speculated that the officer probably could tell from reading the defendant's body language that the defendant had given ASD samples before.

He never told Constable Beaton that he had and Constable Beaton never asked. Maybe Constable Beaton's check of the defendant's driver's licence showed that he had done ASD tests before or maybe other officers checked.

Constable Beaton did read the defendant the ASD demand. He didn't understand everything about the test, but did understand that if he didn't do the test he would get arrested or go to jail. He told Constable Beaton that he understood the ASD demand.

The first time Constable Beaton shoved the device at him was less aggressive than the second and third time he did so. He never saw Constable Beaton demonstrate with a self test, but it was dark and cars were going by at the scene and his girlfriend was crying, so maybe the officer did do that self test.

The defendant never blew through the mouthpiece before it was placed into the device and he was directed to blow. The defendant understood what he had to do to give a proper sample. He testified that he blew as hard as he could to get a result. The officer never told him to stop blowing. When he heard the noise from the device, he thought he had blown enough and so he stopped. Constable Beaton then became very angry with him. He estimated that he blew for seven or eight seconds and then ran out of air. He moved his head back and heard the device go beep three times, like maybe the battery was maybe dying or something.

Constable Beaton was angry and said something like, "You don't want to give me a breath sample." He testified that the officer never told him what he was doing wrong. He never told him that if he didn't give a sample he could be facing a criminal charge. When Officer Beaton rapidly shoved the device at his face the second and third time, the defendant mentioned Constable Page to tell Constable Beaton that these other police officers were his friends whom he sees every day.

The second try was maybe 30 seconds after the first, and was a shove with the device in his direction and the defendant had to move away because he was shocked, and the officer was saying to blow. Never in his previous ASD samples had a police officer shoved the device in his face like Officer Beaton did on this occasion. If he hadn't moved his head, the officer would have shoved the device into his eye. Constable Beaton shoved it like he had never intended for the defendant to provide a sample into it.

When asked if he knew after blowing once into the device that it wasn't a taser, the defendant testified he that didn't know. It was very small and maybe Constable Beaton could have grabbed the taser from his back pocket. Everything happened very quickly. After the error in the first test he knew that there would be another attempt but he didn't expect the device to be shoved in his face like it was.

The defendant testified he didn't recall any caution about failing to blow nor any words about a last chance. There was no time for any such conversation. The device was just shoved in his face, withdrawn back and then shoved again. He never even knew it was a second attempt, let alone his third. He testified he was 100 percent sure that the officer didn't tell him that it was his last chance to blow or he would be charged.

He was immediately arrested after the second shove of the device. His girlfriend then told him if he signed the release papers it meant that he agreed that he had refused and he hadn't. Ms Belbin wasn't screaming at that point, but was getting, as he testified, a little bit angry. When Officer Beaton said that the defendant had had his last chance, then she started to scream. Although she asked that the police give him another chance to blow into the ASD, the defendant testified that he never asked to do so. He reasoned that until he was released he didn't know that maybe the first sample he had given was a fail and that was what the beep meant. He can't say 100 percent that the first sample had been an error.

The defendant testified that he never asked to provide another breath sample. Then he stated that when he was being released, of course he asked, because he had never refused to do the test. In fact, the defendant testified that he demanded, he begged the officers to let him blow and he even told the female officer this, but it was Constable Beaton's investigation so it was up to him. He mentioned Constable Page because he felt that Constable Beaton was trying to be racist against him and that's why he used PC Page's name.

He couldn't understand how Constable Beaton could be like he was. He just wanted to give a breath sample, that he knew he would pass and other officers had told him after he was charged that they would have let him blow as often as he wanted to get a proper sample, and other defendants as well.

PC Beaton had only given him one chance. He would have blown a zero if the officer had let him try.

Testimony of Ms. Kelly Belbin

The second defence witness and the final witness overall, was the defendant's former girlfriend, Kelly Belbin. Ms Belbin testified that she and the defendant had gone to the defendant's mother's home for dinner. After they arrived they decided that Ms Belbin would drink and the defendant would not. He had one beer, she believes. They left at around 11:30, in Ms Belbin's vehicle with the defendant driving. The defendant was sober. She would not get into a car with a drunk driver.

On the way back to the defendant's residence they came upon the RIDE checkpoint. Ms Belbin testified that she was a little bit buzzed but not very drunk. The witness had been in the car when the defendant had been required to perform a roadside test in July of 2012, an earlier occasion to this. He had had no problem with the test on that occasion and they were allowed to drive away.

When Constable Beaton came to the driver's window, he asked the defendant if he had consumed any alcohol and the defendant said, yes, one drink. The officer ordered them to park, then escorted the defendant to the police car. She remained in her car. She saw movements from the defendant outside the police car, as if he was taking the roadside test. She then saw the defendant placed into the rear of the police car and a tow truck started to move back to hook up her car to tow it away. A police officer told her her boyfriend was being arrested for refusing a breath sample and she stated that this could not be so. She asked to speak to the defendant and the officer asked why she wanted to do that. She said she wanted to ask the defendant why he had refused. That officer told her she could not speak to the defendant.

Soon after, the police asked her to come to the car where the defendant was being released. The defendant had asked to speak to her before he signed some papers. She looked at the papers and noted that they said he had refused the breath test. She asked the defendant whether he had refused and he said no. She then told him not to sign any papers. She asked the defendant if he would to the test again if he had another chance and he said yes. She told the police to give the defendant that other chance. The officer said that the defendant had had his chance. Ms Belbin told the police that they were denying the defendant his human rights. She denied, however, yelling or screaming, stating that she never did so and would never use profane language to a police officer in any event. Ms Belbin and the defendant felt that the police were being aggressive, abusive and unfair. They later filed a formal complaint against Constable Beaton. She was intimidated she stated.

Ms Belbin testified that she and the defendant had broken up their relationship in January of 2013 and no longer talked.

Cross-Examination of Ms. Belbin

In cross-examination, Ms Belbin agreed that she was not keeping track of who drank what alcohol at the defendant's mother's home that evening. She was near the refrigerator and so she would have noticed if the defendant had come there and obtained more beers that evening. She was told by the defendant that he had only one beer and he wouldn't lie to her. The decision as to who would drink at the dinner was made at the dinner itself.

Constable Beaton was rude when he told them to pull over at the RIDE checkpoint. While the defendant was with Constable Beaton it looked like Constable Beaton was pushing something at the defendant. She never saw Constable Beaton put the object near his own face. The events all happened quickly and she did not see any three chances to provide a sample.

When she went over to the police car, it was because the defendant had told the police he didn't understand the papers that he was supposed to sign. She read them and said to the defendant that it said he'd refused and asked if he had. He said no. She asked the defendant if he would take the test again. He said yes, and she told Constable Beaton to give the test again and that it wasn't fair. The officer told her no. She found him to be intimidating and condescending and after all, he had a gun. Ms Belbin denied being angry but said she was frustrated and slightly raised her voice. Another officer took her arm and walked her back to her car.

Submissions

Defence Submission

The defendant submitted that the Crown had not proven the mens rea element of the offence, that the defendant never intended not to provide a breath sample and that before the end of the transaction, the defendant had asked for another chance to provide a sample which the police denied.

Crown Submission

The Crown submitted that the actions of the defendant were actions that demonstrated his intention to avoid the test. The defendant knew he was going to blow and fail, and so name-dropped other police officers, his local employment and his nearby house to try and avoid being tested at all. By his action in moving away when the device was presented to him, even after being cautioned by the officer, the offence, it was submitted, was fully made out.

Court's Analysis

The Purpose of the ASD

In my view, the officer here fundamentally forgot what the approved screening device is designed and used for. The device is intended to assist the police investigating drinking and driving offences. It is an investigative tool.

While the Criminal Code makes failing or refusing to provide a proper breath sample a criminal offence, in my view, that prospect ought to be considered a last step after the test subject has been given a fulsome opportunity to both provide a breath sample and understand the criminal consequences of not providing a proper sample. Notably, there was no particular need to rush to a criminal consequence here. Pausing, taking a step back and de-escalating the situation would have been both advisable and fair.

Assessment of Officer's Conduct

Constable Beaton testified that he found the defendant's actions to be nothing more than a stall tactic. Perhaps the officer was annoyed at the attempt by the defendant to name-drop other police officers' names. Realistically however, in the context of the very, very few moments that Officer Beaton and the defendant were together to provide the ASD sample, there was no likely stall of any significance because the time moved too quickly for that.

Assessment of Defendant's Evidence

The defendant's evidence was unimpressive in general. He exaggerated his actions and had no memory of the officer's acts. As an example, he testified that he begged the officer to let him provide a sample. I found this hard to believe. Further, given his past experience of multiple roadside tests, it is apparent that the defendant has historically displayed a cavalier attitude towards drinking and driving in general. I did believe the defendant, however, when he testified as to the feeling of intimidation he felt when the officer held the approved screening device towards him in what he could reasonably perceive as an aggressive fashion.

It was at that point where the officer stopped trying to use the ASD as an investigative device and began to become annoyed with the defendant to the point where he moved very quickly through the steps of the caution and last chance over a period of mere moments. The ASD had stopped being used as an investigative device and had been transformed into a source of a criminal charge on its own.

Assessment of Ms. Belbin's Evidence

Ms Belbin's evidence was of little assistance to me in this case. Although she and the defendant are no longer a couple, she was not an independent observer here at all, nor do her actions appear to be those of a person who was at all intimidated. To say that, "After all the police had guns," was disingenuous and reduced her credibility. Further, I find that the witness was far more intoxicated than she admitted to in her evidence. There was, however, value to Ms Belbin's evidence on two points: First, as to the arrangement she and the defendant had made as to who was to drive; and second, as to the request made by her in the presence of the defendant and Constable Beaton for a last chance to provide a proper breath sample. These are factors I include in considering all of the facts here when considering whether the charge is proven beyond a reasonable doubt.

Legal Framework: Regina v. Grant

To this end, the structure set out by Justice Durno in Regina v. Grant, a 2014 summary conviction appeal court case, is helpful. The elements of this offence engage a fact-specific analysis of three factors:

1. Was there a valid demand?
2. Did the defendant fail or refuse to provide a suitable breath sample?
3. Did the defendant intend to fail or refuse to provide a suitable breath sample?

Here, clearly there was a valid ASD demand. The defendant had been driving and admitted to some alcohol consumption. Second, no proper sample was obtained. On the first attempt there was an insufficient sample and on the two subsequent potential samples, the defendant never placed his lips anywhere near the mouthpiece, instead, he moved away avoiding the mouthpiece.

Analysis of Mens Rea

In this case, therefore, the result revolves around the third element of proof beyond a reasonable doubt, and that is evidence that the defendant's refusal was intended by the defendant. Justice Durno assists by setting out six factors as a non-exclusive list of circumstances a trier of fact ought to consider when assessing proof of the defendant's mens rea. As recorded by His Honour, those factors include:

1. The words and actions of the defendant from which the officer concluded that the defendant refused to provide a suitable sample.
2. The number of opportunities the officer provided to the detainee.
3. The instructions given by the officer to the defendant including the applicable law, how to provide the sample and whether the defendant was told he had one last chance to give the sample.
4. The defendant's state of intoxication and attitude.
5. The availability of, in the instant case, the ASD.
6. Where the defendant has been told he has refused to provide a suitable sample and will be charged and indicates that he wants another opportunity, the time between the arrest and the offer, the number of opportunities the defendant has already had to provide a proper sample and the number of previous last chance offers. These factors help to decide if the last chance offer was bona fide.

Application of the Six Factors

It is on this last element that the Crown's proof of the defendant's mens rea fails. First, I do not find that there were three discreet attempted samples here. There was one sample resulting in an error and then a second, very short continuum when the ASD was held out, words were exchanged aggressively between the officer and the defendant and the defendant was arrested. At most, there was one failed attempt and a very short argument. This answers the second circumstance as well. Unlike most, if not all fail cases as opposed to outright words of refusal, there is no attempt by the police to de-escalate any disagreement or misunderstanding here. Rather, the officer moved quickly to arrest the defendant.

As noted by Regina v. Grant, each case is fact-specific. There is no fixed criteria as to the number of chances a detainee may have to take the ASD test. Here, however, the officer could have and should have provided more instructions and more time to allow for a proper investigative ASD test. Instead, he was annoyed at the defendant's name-dropping and what he saw as stall tactics and moved in a pro forma way to the earliest possible arrest. There was absolutely no reason why the matter had to move ahead with the speed that it did.

Third, I accept that the officer demonstrated the device, told the defendant in a speedy and pro forma way the law with regard to a refusal, and did say that there was going to be one more chance only. The problem, as already noted, was that the officer's unnecessary and possibly aggressive move through these steps ended up very quickly leading to the arrest. I concluded already that there was really only one attempt and then a short argument. The steps canvassed in the third circumstance set out by Justice Durno were essentially treated in this case as checkboxes, ticked off by the officer enroute to the increasingly likely arrest of the defendant. Had the officer paused to consider the intended use of the ASD as an investigative tool to detect alcohol in a person's body quickly at the roadside, I believe that Constable Beaton would have taken a deep breath, stepped back and started the process again.

Fourth, the defendant here showed no signs of intoxication at all. This supports the evidence of the defendant and Ms Belbin, and also supports the defendant's position that he wanted to provide a breath sample because he well knew that he would pass. The Crown pointed to the name-dropping of the defendant as a sort of consciousness of guilt on the defendant's part. The evidence here does not support such a conclusion. Many persons name-drop to avoid tickets or other roadside distresses. This cannot be said to be consciousness of guilt.

The defendant said he mentioned the other officers because he wanted Officer Beaton to know that he was just an average good guy and not someone out to dodge the breath test that was increasingly going off the rails. This is not an unreasonable explanation, although as is often the case, a blatant name-dropping had the opposite effect to that intended by the defendant.

Fifth, the ASD was on site and ready for use, and sixth, the circumstance of the last chance. Although the defendant had been arrested, placed in handcuffs and lodged in the police car, he was still in custody and had not been released when an offer of a proper sample was made. The papers had been prepared but had not been signed and the ASD was still there and ready to be used.

The offer was made by Ms Belbin in the defendant's presence and was endorsed by the defendant. The officer told him it was too late. There is no fact here, however, that suggests that the offer was not bona fide. Certainly, as already noted, the number of opportunities the officer had given to the defendant before arrest was, to say the least, substandard.

Immediately after the arrest the defendant was lodged while the papers were prepared and had no opportunity to seek the last chance before being taken out of the car and told to sign the release papers. At this point Ms Belbin came on the scene and her alcohol-fuelled poor advice with regard to the release and the verbal attack on the officer again escalated the situation, making it all too easy for the officer to deny a last-chance sample.

I conclude that the offer was bona fide, was conveyed to the officer very soon after the alleged refusal and should have been taken up. By that time, however, human nature being what it is, that ship had indeed sailed.

Conclusion on Officer's Conduct

Police officers are human beings as well as sworn officers. We all have good days and we all have bad days. In my experience as a judge in this jurisdiction, I have often heard evidence from Constable Beaton. That evidence generally has shown him to be a thoughtful and thoroughly professional police officer and an officer willing to give other defendants under investigation a fair shake. Here I conclude that he was having a bad day. Clearly annoyed by the defendant's name-dropping and perceived avoidance, the officer moved too quickly to use the ASD as a route to a criminal charge instead of as an investigative device. There was no need for such speed and to move so quickly was uncharacteristic of this officer.

Verdict

In the result, the Crown has not proven that the defendant wilfully failed to provide a proper sample of his breath into the device. The number of tries offered were too few, the defendant had no signs of intoxication and would likely have passed the test, and a bona fide offer to do a proper test was dismissed as being too late when it ought to have been take up by the officer. On all the facts, the defendant is acquitted.

Thank you.

WHEREUPON THIS MATTER CONCLUDES

Transcript Ordered: August 26, 2014

Transcript Completed: September 4, 2014

Ordering Party Notified: September 4, 2014