Court File and Parties

Court File No.: Halton Region, Central West 1211-998-14-38

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Salvatore Isabella-Valenzi

Before: Justice Alan D. Cooper

Heard on: September 15 and October 22, 2014

Reasons for Judgment released: December 16, 2014

Counsel:

• Anthony G. MacKinnon for the Crown
• Russell M. Allegra for the defendant Salvatore Isabella-Valenzi

Case History

[1] On December 29, 2013, officer Courtney Lawson of the Halton Regional Police Service was parked near a licensed bar called Nyx, on Speers Road, west of Dorval Drive in Oakville. She was carrying out what is sometimes referred to as proactive policing, or operating a mobile RIDE program, by checking the sobriety of persons leaving a particular drinking spot.

[2] The defendant and a male passenger were leaving the Nyx parking lot in a black Ford pickup and went eastbound on Speers Road, and were stopped at 2:32am. Officer Lawson approached the driver's side and stuck her head into the truck and could smell mint gum and a faint odour of alcohol coming from the breath of the defendant.

[3] At 2:35am, the officer formed the reasonable suspicion that the defendant was operating a motor vehicle with alcohol in his system, and read a screening device demand to him. Because she was alone, she requested the assistance of another officer, and officer David Nicholls arrived shortly after.

[4] Officer Lawson repeated the screening device demand and six tests were conducted between 2:40 and 2:46am. On the first two, officer Lawson was of the opinion that the defendant was not exhaling enough breath into the device. On the next two, the same thing was happening and Mr. Isabella-Valenzi's cheeks were puffing up. During the last two tests, the officer said the defendant was holding his tongue against the mouthpiece, and this stopped the flow of air. At this point, the defendant put his hands behind his back and asked to be arrested, and he was charged with refusing to provide a sample of his breath into an approved screening device.

[5] In cross-examination, officer Lawson agreed that she made no notes concerning the odour of alcohol coming from the breath of the defendant, except for when she put her head inside his truck window.

[6] Officer David Nichols never said he smelled alcohol on the defendant's breath, but he did find a receipt on his person after he was arrested. It recorded the sale of three vodka drinks, three rye drinks, and one rum drink, and the total cost was $47.75. The receipt did not indicate where it came from and officer Nicholls testified that he was unable to say that it came from the Nyx bar. He also said that the defendant may not have been blowing as hard as he could, but that he saw no efforts by him not to supply an adequate breath sample into the machine.

Defence Evidence

[7] The defendant is a carpenter who operates his own business. His passenger, Eugenio Rosso, is his cousin from Chicago. The defendant has done carpentry work at the Nyx bar in the past, and the manager Vince Pisani paid for vodka drinks ordered by Mr. Rosso. Mr. Isabella-Valenzi said he drank no alcohol in the bar, or before going there. He does not drink alcohol because of his high blood pressure and because he does not want to drink and drive.

[8] The defendant said he could not recall where the receipt found on him came from. He puts all receipts in his back pocket and it could have been there for a week or two.

[9] The defendant said he is a smoker and when not smoking, he chews gum. On this occasion, it was peppermint gum. On the first breath test he gave evidence that his tongue could have hit the mouthpiece. His dentist has told him to keep his tongue from moving when work is being done on his teeth. On all the tests, he said he blew until he had no more air in his lungs, and told the officer to arrest him because he was exasperated.

[10] Vince Pisani, the manager of Nyx, testified that he installed a furnace in the defendant's mother's home, and when Mr. Isabella-Valenzi did work at Nyx, he did not charge the bar for this. He offered to buy drinks for the defendant, but he refused. He did give free drinks to Mr. Rosso, and no receipt was issued. He did not know where the receipt found on the defendant came from. Nyx receipts are electronically generated and have the word Nyx on them.

Onus of Proof

[11] The Crown has to establish beyond a reasonable doubt that the defendant intended not to supply a sample of his breath. Only a general intent is required; see R. v. Pletsas, 2014 ONSC 1568 at para. 67. Once this has been proven, the defendant must establish on a balance of probabilities that he had a reasonable excuse for not complying; Pletsas, supra, at para. 67.

[12] Because the defendant testified, I must apply to his evidence the principles set out in R. v. W. (D.), [1991] 1 S.C.R. 742, in which Cory J. held that an appropriate way of dealing with the issue of credibility would be to instruct the jury first, that if they believe the testimony of the accused then they must acquit. Secondly, if they do not believe the testimony of the accused but are left in a reasonable doubt by it, then again the jury must acquit. Thirdly, even if the jury are not left in doubt by the evidence of the accused, they must ask themselves whether, on the basis of the evidence which they do accept, they are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Analysis

[13] Officer Lawson was of the belief that she smelled alcohol on the breath of the defendant, so that he was required in law to provide a sample of his breath into the approved screening device.

[14] Officer Lawson testified that, in her opinion, the defendant was deliberately not blowing properly into the machine, but the defendant said he was trying his best, and eventually gave up trying to do any better than he was already was, and he told the officer to arrest him.

[15] In my view, it is difficult to say that Mr. Isabella-Valenzi was deliberately trying to avoid giving a proper breath sample. I am unable to say he is lying in his testimony, and cannot say officer Lawson is anything but a credible witness.

[16] This is not an outright refusal situation, and the evidence of the testing which took place between 2:40 and 2:46am, must be closely looked at. In R. v. Pletsas [supra], Campbell J., in para. 67, states as follows:

The Physical Element: The physical element or actus reus of the offence consists of a proper police demand and a refusal or failure to comply with that demand by the accused. While express refusals made knowingly by an accused may be more easily resolved, whether an accused has, in fact, refused or failed to provide a demanded breath sample depends upon consideration of the totality of the circumstances of each case, including the conduct of the accused and any statements made by the accused to the police. The entire transaction between the accused and the police officer must be examined. See: R. v. Porter, at para. 30-32; R. v. Moser (1992), 7 O.R. (3d) 737, 71 C.C.C. (3d) 165 (C.A.), at p. 176; R. v. Bijelic, [2008] O.J. No. 1911 (S.C.J.), at para. 30; R. v. Cunningham, 1989 ABCA 163, 49 C.C.C. (3d) 521, at p. 533; R. v. Tavangari (2002), 28 M.V.R. (4th) 104 (Ont.C.J.), at paras. 15-16, 22.

[17] What actually took place during this testing is not all that clear to me. In R. v. Allen, [2012] O.J. No. 3162 (O.C.J.), Forsyth J. said the following:

134 In one of Mr. Allegra's precedents, R. v. Sajjad, 74 WCB (2d) 503, Mr. Justice Blacklock in the Ontario Court of Justice in 2007 stated at para. 8:

In this case, I find that I am in a state of reasonable doubt that the accused actually formed a clear intention to refuse or to fail to provide a sample, which in the Officer's opinion was suitable. It is conceivable to me on the particular facts of this case, having seen the two personalities involved, and bearing in mind the instructions that the Officer gave the accused in this particular case, that the accused may have at times been attempting to skate a very fine line. It may be that he was hoping that his efforts would at some point produce a result, which the Officer would accept, but would nonetheless minimize his reading. If this was his intent, in my view he was not committing the offence charged.

135 In this case, I am not even prepared to say that Mr. Allen was consciously attempting to skate that fine line that Mr. Justice Blacklock attributed to Mr. Sajjad. I must remember that I cannot find the accused guilty merely because I am left with a good dose of circumspection about his evidence after the appropriate application of the W.D. principles to his evidence in the context of the totality of the evidence.

[18] I agree with the comments of Forsyth J., and find them applicable to the case before this court. The evidence of the defendant is sufficient to raise in my mind a reasonable doubt, so that I cannot find beyond a reasonable doubt that he intended to refuse to supply an adequate sample of his breath.

Conclusion

[19] Mr. Isabella-Valenzi is found not guilty.

Released: December 16, 2014

Signed: Justice Alan D. Cooper