Court File and Parties
Court File No.: Central East - Newmarket 13-00091 Date: 2014-09-22 Ontario Court of Justice
Between: Her Majesty the Queen — and — Roberto Soares
Before: Justice P.N. Bourque
Counsel:
- M. Ventola, for the Crown
- R. Covre, for the accused, Roberto Soares
Judgment
Released on September 22, 2014
Overview
[1] The defendant faces a charge of failure to provide a breath sample into a roadside screening device. He was stopped at a RIDE stop on the evening of December 15, 2012. After 7 attempts without obtaining a suitable sample, the defendant was charged.
Officer Andreas Kotsopoulos
[2] . . . is a York Regional Police officer of just over 3 years' experience. After setting up at an on ramp to the 407 Highway in Vaughan, having performed a self-test on the Alcotest 7410 ASD, the following is the sequence of his investigation:
| Time | Event |
|---|---|
| 20:13 | He performed a stop of the defendant's vehicle. The defendant denied having anything to drink but the officer said he could smell alcohol on the breath of the defendant. He asked him to pull to the side and asked him to get out of the vehicle as he had a suspicion that the defendant had alcohol in his body. The officer made an ASD demand and brought the defendant over to the front passenger side of his cruiser where the ASD was plugged in. |
| 20:15 | The officer provided a demonstration of the machine and blew a sample of his own breath. The officer explained to the defendant that he had to blow hard enough for the machine to make a tone and to keep blowing until it stops and the green light goes out. The officer asked the defendant if he understood and the defendant said "yup". The officer gave the defendant a plastic mouthpiece and the defendant blew into the mouthpiece into the officer's hand and the air came through and there was condensation in the mouthpiece. |
| 20:17 | The first attempt by the defendant consisted of a light blow which activated the tone for one second and it stopped and the machine showed a "E0", meaning that this was an insufficient sample. The officer told the defendant that the blow was too soft and he needed a long continuous hard blow and to make sure that his lips were around the mouthpiece. The defendant stated "Ok" that he understood the instructions. |
| 20:18 | The second attempt by the defendant who blew very lightly for 1 second. The tone came on and then stopped. The device registered an "E0". The officer said that he did not think that the defendant was blowing hard enough and his cheeks were not puffing out and the sound of the air was light and soft. The officer told him he was not blowing hard and long enough. The defendant replied "Yes, I am". The officer asked him if he had any medical conditions such as asthma or emphysema and the defendant stated: "No". The officer stated he was not blowing hard enough and the defendant stated "Okay, but I think I am". |
| 20:19 | The officer provided a further demonstration. The officer narrated as he did the demonstration. The device gave a tone until the sample was sufficient and the defendant confirmed he had heard the tone and seen the light indicating the sample was sufficient. The defendant stated: "Yea, I know it." |
| 20:20 | The third attempt by the defendant, the officer is coaching him this time and telling him to blow "hard" and to "blow, blow, blow". The officer does not see any condensation on the mouthpiece and there is no tone. The officer tells the defendant he is not blowing and the defendant insists that he is. The officer cautions the defendant the results of a failure to provide a sample, that it is an offence and would lead to a 3 month ADLS licence suspension and a 7 day impoundment of his motor vehicle. The defendant then volunteers to the officer "Yes, okay, boss, I had two beers. I'll be honest with you", and "Yeah, but I'm blowing for you". The officer provides him with a new mouthpiece and it is tested for obstructions and he states to the defendant: "So you understand my instructions and I have provided 2 samples and the machine is working and mouthpiece is not obstructed. I will give you 4 more tries and after that, you will be arrested". The defendant says: "Okay, I will blow". |
| 20:23 | The fourth attempt, the machine produces a tone and the officer tells him to keep going, going, and after 3 seconds, the tone stops and another "E0" fail result is produced. The officer asked him why he stopped and the defendant stated: "Let me try again". The officer again told the defendant not to stop blowing until he is told to stop and the defendant states: "Okay, boss, I'm blowing", and, "Yes, fine, okay". |
| 20:23 | The fifth attempt, the defendant blows and produces a tone and the officer tells him to keep going but he stops blowing almost immediately. The defendant removed his mouth and moved back from the device. The officer said "I said keep going, why did you stop?" and the defendant stated: "This is bullshit". The officer reminded the defendant that he has two more tries and again explained the consequences of a refusal. The defendant stated, "I am providing samples over and over, it is not working". The officer asked him if he wanted a demonstration and the defendant stated: "I get it, okay, let me blow". |
| 20:24 | The sixth attempt, the defendant places his mouth over the mouthpiece and makes a very light blow, and there is a whistling noise and there is no tone, signifying no pressure in the blow. The officer said: "harder, harder, blow, blow". The tone started to tone and it went on for 3 seconds and the defendant stopped and pulled back. The officer asked "why are you stopping?" and the defendant answered: "You know what, I am done. Take me in, this is bullshit. I am blowing and you tell me that I am not". The officer informed him that he had one more try. |
| 20:25 | The seventh attempt, the defendant takes a visible deep breath and blows and there is a tone and the officer tells him to keep blowing and moves his hand in a circular motion, but the tone stops and produces the same "E0" result. The defendant pulls back from the mouthpiece. |
| 20:26 | The officer places the defendant under arrest for failure to provide a suitable sample. |
[3] The officer was questioned about whether the mouthpiece was firmly placed on the device and he believed it was from his observation and the fact that he was holding the device when the defendant (he believed that the defendant put it on the device) put it on and he could feel it inserting. The officer believed that the defendant was just not making the effort to blow sufficiently to provide a sample. In cross-examination the officer indicated that he had performed hundreds of ASD tests upon many people including pre-teens and seniors and they were all able to provide a suitable sample. He also stated that at this time of day there was not a great deal of traffic on this on ramp to the 407. The officer was not shaken in any aspect of his evidence. It would appear that his notes were comprehensive and it was not pointed out that his notes were in any error.
The Defendant
[4] . . . testified in his own defence. He spoke of going out for dinner with friends that evening and then after dinner, driving to his girlfriend's house where he was stopped at the RIDE program. His evidence in-chief indicated that he was out to dinner for some two hours but the times indicate that he was at the restaurant for a much longer time. He insists that he only drank two beers while at the restaurant. He admitted that he originally lied to the officer when he told him that he had had nothing to drink that evening, although he stated that he didn't think that the two drinks were really important.
[5] His evidence was not a lot different from the police officer's, save in one respect. It was the defendant's evidence that he was blowing hard and long enough. He denied that he ever stopped blowing or that on one occasion he did not blow enough to generate a tone on the machine. He stated that he had done a roadside test on another occasion (and had gotten an administrative suspension) and he knew how to blow. He confirms that the officer demonstrated the use of the device. He confirms he had several opportunities to blow and confirms that the officer gave him instruction and coached him during at least one blow. He did not say there was any difficulty in comprehension. He did not say he had any medical issues. He did not deny saying any of the things that the officer said that he spoke during the interview. In fact, in cross-examination, he admitted that he could have blown harder and stated that he was not blowing nearly as hard as a blow to blow up a balloon. He admitted that he had blown up balloons and he admitted that he chose not to blow that strong.
[6] The ultimate thrust of his cross-examination was that he believed that he was blowing "sufficiently" to provide a sufficient sample and he used his previous experience of taking a roadside test successfully to determine what the proper blow would be.
Analysis
[7] The Crown bears the burden at all times of proving all of the essential elements of the offence beyond a reasonable doubt.
[8] Section 254(2) provides that an officer with reasonable grounds to suspect that a person has alcohol in his body, may by demand require the person:
(b) to provide forthwith a sample of breath that in the officer's opinion will enable a proper analysis to made by means of an approved screening device. . .
[9] Section 254(5) states "Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section."
[10] The defence asserts that if the defendant's evidence is analyzed in accordance with the requirements of R. v. W.D., then I should have a reasonable doubt as to whether he had the necessary mens rea to have intentionally refuses to comply with the request.
[11] As an initial matter, I have great difficulty with accepting the defendant's evidence. The defendant initially lied to the officer when he said that he had had nothing to drink. I believe he intentionally told the officer this as to avoid the consequences (which he was aware of, having failing a roadside test on a previous occasion) of a possible failure of the ASD test.
[12] I also note that in some aspects of his evidence, he is clearly wrong, including the estimate of time at the restaurant. His assertion that he never stopped blowing or always blew hard enough to engage the tone is directly contradicted by the officer's evidence.
[13] I will comment on the officer's evidence as I find that it was most credible. He made a detailed record of the actions that he took and the responses of the defendant and they were set out in his notes. None of his detailed note entries were in any way contradicted. I have set out his evidence in this matter in some detail. I do this for two reasons; namely to show the extreme detail of his evidence, and to also illustrate the totally professional manner in which conducted this roadside stop and ASD procedure. It was of such a nature as it could be a positive example for other officers conducting such an investigation. Wherever there is a contradiction between the evidence of the defendant and the evidence of the officer, then I accept the officer's evidence.
[14] Having rejected the defendant's evidence, does it nonetheless leave me with a reasonable doubt. It does not, for more than one reason.
[15] First and perhaps most importantly, if I were to accept the defendant's evidence, I would have to accept the principle that a driver in this circumstance would be at liberty to make an assessment of whether his breath sample was sufficient. This is obviously incorrect in law. Under section 254(2) it is the officer's opinion which determines the sufficiency of the sample. This opinion was not attacked in any way. The Alcotest 7410 was operating and was being operated properly. The defendant admitted that he was capable of providing a stronger "blow" but he simply chose not to do so. This cannot lead to a finding of doubt about the mens rea of the offence. He was directed to blow stronger and longer by the officer and he chose not to do so. He had no reasonable excuse and he had no physical impediment to complying with the officer's directions.
[16] Secondly, having found that the defendant is not a credible witness, I do not accept that he was not providing an adequate sample because he felt he was providing a sufficient sample. I specifically find that for all of the 7 attempts he was aware that this sample was not sufficient. Being mindful of a previous experience where a suitable sample of his breath led to a suspension of his licence, I find he was intentionally attempting to forestall a same result.
Conclusion
[17] Having disbelieved the evidence of the defendant, and finding that even if his evidence were accepted, it would not constitute a valid defence in law, I find the defendant guilty of the offence of refusing to comply with a demand made to him by Constable Kotsopoulos under section 254(2) of the Code and is therefore guilty of the offence under section 254(5) of the Code.
Signed: "Justice P.N. Bourque"
Released: September 22, 2014