Ontario Court of Justice

Her Majesty the Queen

v.

Janele Haverson (nee Reeve)

Before the Honourable Justice Peter C. West

Date: July 24, 2014 at Newmarket, Ontario

Appearances

Counsel for the Crown: S. Renaud

Counsel for the Defence: F. Fedorsen; A. Little

Table of Contents

• Reasons for Judgment
• Exhibits

Transcript Ordered: July 29, 2014

Transcript Completed: January 12, 2015

Ordering Court Notified: January 12, 2015

Reasons for Judgment

WEST, J. (Orally):

Introduction

[1] On March 30, 2013, Janele Haverson (nee Reeve) was charged with failing to provide a suitable sample of her breath into an approved screening device pursuant to a demand under s. 254(2)(b) of the Criminal Code.

[2] The defence contested the legality of the police stop and argued there was a reasonable doubt as to whether the officer had a reasonable suspicion to make the demand in the first place. Various Charter applications were brought by the defence for a stay pursuant to s. 24(1) of the Charter but argument on those issues was postponed until after my judgment on whether the Crown had proven the charge beyond a reasonable doubt. The main issue on this trial was whether the Crown had proven that Ms. Haverson intentionally failed to provide a suitable sample of her breath into the ASD.

[3] The Crown called the investigating officer, P.C. Lafleur, of the O.P.P. Barrie Detachment on the issue of proving the charge. Ms. Haverson testified in her defence and a criminal lawyer, Mr. Eginhart Ehlers, who attended the roadside and at the police detachment, also testified for the defence.

Factual Background

[4] On March 30, 2013, at 1:06 a.m., P.C. Lafleur stopped Ms. Haverson's vehicle on Bayfield Street, Barrie for travelling at 75 kilometres in a 50 kilometre per hour zone. There were two occupants in the car, Ms. Haverson (nee Reeve), who was the driver, and her then boyfriend, Robert Haverson, who was in the front passenger seat. P.C. Lafleur told Ms. Haverson he stopped her because she had been speeding. Both occupants were smoking cigarettes. As he spoke to the driver, he detected a strong odour of alcohol coming from inside the vehicle. He asked Ms. Haverson if she had consumed any alcohol that evening and she said she had not.

[5] The passenger told the officer he was the only one drinking, and the officer observed an open can of Molson beer in the passenger door. When the officer asked who owned the beer, Mr. Haverson said it was his. P.C. Lafleur asked Mr. Haverson to identify himself, which Mr. Haverson initially refused to do. Mr. Haverson only identified himself after the officer advised him of the requirements of the Liquor Licencing Act (LLA). Mr. Haverson was clearly under the influence of alcohol and became confrontational and aggressive towards the officer.

[6] The officer testified he asked both parties to get out of the vehicle, although he was vague as to exactly what he said. In fact, he had not noted asking Ms. Haverson to exit the vehicle in his notes or synopsis; they only indicated requesting Mr. Haverson to exit the vehicle. He did not specifically recall what he said, if anything, to get Ms. Haverson to exit the car. He was still dealing with Mr. Haverson and the open beer can at the passenger's side of the car.

[7] P.C. Lafleur's synopsis indicates he went to the passenger door and requested Mr. Haverson to exit the vehicle. P.C. Lafleur asked if there was any other alcohol in the car and Mr. Haverson replied there was another can under his seat. When the officer indicated he was going to search the vehicle, Mr. Haverson again became challenging and argumentative, telling the officer he had no authority to search the car. Once again, P.C. Lafleur advised Mr. Haverson the LLA gives him authority to search a vehicle if he finds someone committing an offence, such as possessing open liquor in a car. P.C. Lafleur agreed his attention and focus was more on Mr. Haverson because of his intoxication and behaviour.

[8] P.C. Lafleur testified he was standing outside with Mr. Haverson at the passenger door. Mr. Haverson was to his right and Ms. Haverson was standing to his left on the passenger side of her vehicle. She was attempting to calm Mr. Haverson down. While P.C. Lafleur was dealing with Mr. Haverson, he testified he detected an odour of alcohol coming from Ms. Haverson's breath as she was no longer smoking a cigarette. He was standing two feet from Ms. Haverson and observed her eyes were bloodshot. As a result of these observations, P.C. Lafleur believed she had consumed and did have alcohol in her body. He advised Ms. Haverson she had to come to his police vehicle to provide a sample of her breath into an approved screening device. As they walked to his SUV, he observed her walking but did not observe any signs of impairment.

[9] Ms. Haverson testified that after the officer first spoke to her in her car he advised her she had to come to his police SUV to provide a "breathalyzer" to determine if she had consumed any alcohol. He walked with her to his SUV and put her in the backseat. She only heard her boyfriend initially refuse to provide his name to the officer when they were still sitting in the car. According to Ms. Haverson, after she was put into the SUV's backseat, the officer returned to her vehicle and dealt with her boyfriend.

[10] P.C. Lafleur did not have any notes concerning his search of the car for more alcohol but he believed he searched the vehicle and he found another can of beer, unopened, on the passenger side. P.C. Lafleur testified Mr. Haverson tried to interfere with his taking Ms. Haverson to the SUV and he called for backup.

[11] At 1:16 a.m., the officer read Ms. Haverson a roadside demand. She indicated she did not understand and he repeated the demand at 1:19 a.m. Ms. Haverson blew into the ASD eight times over the next nine minutes; at 1:20 a.m., 1:21 a.m., 1:22 a.m., 1:24 a.m. (2 blows), 1:25 a.m., 1:27 a.m. and 1:28 a.m. None of the breath samples were suitable as each blow produced an E0 message on the ASD. At no time did Ms. Haverson outright refuse to provide a sample of her breath. P.C. Lafleur used an Alcotest 7410 GLC, which the defence conceded was properly calibrated and in good working order.

[12] P.C. Lafleur related his practice of asking an individual before the test whether they had ever provided a sample of breath previously. Ms. Haverson advised she had. He testified that as a result of her telling him she had provided a sample previously he did not have to provide as detailed an explanation or instructions concerning how to blow into the device.

[13] After the second failed blow, P.C. Lafleur warned Ms. Haverson of her legal obligation to provide a suitable sample of her breath and advised her of the consequences of not providing such a sample. He testified Ms. Haverson was cooperative and polite throughout his dealings with her and he believed she understood what was required of her.

[14] P.C. Lafleur testified Ms. Haverson admitted to him in the police vehicle she had consumed alcohol that night. Further, she told him she had consumed a considerable quantity of alcohol the previous night and was concerned about whether that would affect the result.

[15] P.C. Lafleur gave Ms. Haverson instructions that she needed to take a big breath, form a seal around the mouthpiece, blow long and hard until the officer told her to stop. He agreed in cross-examination he had nothing in his notes as to what instructions he provided Ms. Haverson. He testified her third attempt was much better and it was longer and a good effort but this still resulted in an E0 message. He did not have any notation as to why he believed this was such a good attempt and he did not note how long she blew for. In cross-examination, P.C. Lafleur agreed he did not note how long Ms. Haverson blew each time she provided a sample of her breath, nor did he note the amount of pressure she was blowing with. It was his explanation he had no way of measuring these things. He agreed the length of Ms. Haverson's blows could have been long enough but not hard enough, which is referring to the amount of pressure.

[16] P.C. Lafleur agreed if the mouthpiece was not attached properly a suitable sample might not be able to be made. He always holds the ASD and he can feel pressure when the individual is putting the mouthpiece into the device. P.C. Lafleur makes a conscious effort not to ever touch the mouthpiece in any way. He could visually see the mouthpiece was attached properly in Ms. Haverson's case. He disagreed the mouthpiece might not have been attached properly as an explanation for why Ms. Haverson was unable to provide a suitable sample of her breath. Although there was nothing in his notes concerning how the mouthpiece was attached, each time he removed the mouthpiece he found it to be securely attached. If it was not attached properly, the mouthpiece would fall off each time he took the ASD back to see the message, which never happened.

[17] By the fifth blow, Ms. Haverson was "sucking and blowing", which resulted in an E0 message. After the sixth failure, P.C. Lafleur removed the mouthpiece from the ASD and took a new mouthpiece out of its plastic wrapper, attached it to the ASD and provided a sample himself to demonstrate the proper way to blow into the ASD. This produced a reading of 000, indicating zero alcohol being present in his breath.

[18] P.C. Lafleur produced the first mouthpiece used by Ms. Haverson, which he had seized, and it was marked as Exhibit 1. The mouthpiece can be described as a plastic apparatus with a bulb, approximately one and a half to two inches in diameter, with two small straws at either end, approximately an inch and a half in length, with a diameter of perhaps an eighth of an inch. Each of the straws can be pushed into a smaller opening on the ASD. P.C. Lafleur described how he provided the mouthpiece in a sealed plastic bag, had Ms. Haverson remove it from the plastic bag and then put it onto the ASD. He described having her blow into the mouthpiece to ensure there were no obstructions in his evidence in-chief. When he was asked about this in cross-examination, he testified although there was nothing in his notes about having her blow into the mouthpiece before putting it onto the ASD, this is his usual practice and therefore he would have requested her to blow into the mouthpiece before she attached it.

[19] Ms. Haverson had no difficulty with her motor skills in putting the mouthpiece each time onto the ASD. P.C. Lafleur did not believe Ms. Haverson demonstrated any signs of impairment throughout the course of his involvement with her. On her seventh attempt to provide a sample, Ms. Haverson was again "sucking and blowing" when she blew into the ASD.

[20] In cross-examination, P.C. Lafleur did not recall Ms. Haverson crying. He did not have any note of her crying when she was in his police vehicle. He agreed she was very upset but indicated he believed anyone would be upset being in the back of a police cruiser. His evidence changed from not recalling if she was crying to not believing she was crying to never observing her crying in his vehicle. When he was questioned about his observation of Ms. Haverson "sucking and blowing", he disagreed this could have been because Ms. Haverson was crying. It was at this point in his evidence he testified Ms. Haverson never cried while she was in the backseat of the SUV.

[21] P.C. Lafleur gave her another warning after her seventh attempt telling her this next attempt was her last chance to provide a suitable sample; if she failed again, she would face the consequences of being charged with the offence of fail to provide a sample. Ms. Haverson's next blow was not long enough and it resulted in an E0 message.

[22] Throughout the time Ms. Haverson was inside the police SUV, her boyfriend was standing on the sidewalk outside the police vehicle interacting with Barrie police officers. A Barrie City police supervisor was dealing with Mr. Haverson, who was yelling and confronting the officers. He was repeatedly warned about being charged with cause a disturbance. P.C. Lafleur observed the interaction between Mr. Haverson and the Barrie police and he observed that it was upsetting Ms. Haverson and he agreed this could have affected her providing a suitable sample of her breath.

[23] P.C. Lafleur also testified that a lawyer, Mr. Ehlers, arrived on scene after the first blow and one of the Barrie police officers advised him Mr. Ehlers wanted to speak to Ms. Haverson, who was his client.

[24] After the eighth fail to provide a sample, P.C. Lafleur arrested Ms. Haverson for failure to provide breath sample. He exited the SUV, went to the rear passenger side and opened the door. A female Barrie police officer removed Ms. Haverson from the SUV, searched her, handcuffed her to the rear and placed her back in the rear seat.

[25] At 1:34 a.m., P.C. Lafleur advised Ms. Haverson of her right to counsel, which she understood. At 1:36 a.m. and at 1:38 a.m., he read her a caution, which she ultimately indicated she understood. At 1:40 a.m., P.C. Lafleur transported Ms. Haverson to the Barrie O.P.P. detachment.

[26] P.C. Lafleur testified he spoke to Mr. Ehlers at the scene and advised him Ms. Haverson was going to be transported to the Barrie O.P.P. detachment and he could speak to her there. He testified further that he requested Mr. Ehlers not to allow Mr. Haverson to come to the detachment. There are Charter issues concerning whether P.C. Lafleur, pursuant to s. 497 of the Criminal Code, should have released Ms. Haverson at the roadside; however, for the purposes of this judgment, I need not address those issues.

[27] Ms. Haverson testified she did not consume any alcohol prior to being stopped by the police officer. She worked until 9 p.m. on March 29, 2013. After work, she went home to change and then she attended the Bowlerama with Mr. Haverson and three other friends. She did not consume any alcohol at the Bowlerama as she was driving. When she was 19, she had previously blown into a "breathalyzer" and registered a "warn" and was suspended from driving for three days. As a result, she testified she never drinks when she is the driver.

[28] The officer kept asking her if she had been drinking when they were in the police SUV and she kept telling him she had not been drinking. She never told him she had consumed alcohol that evening. She did tell him in the back of the police vehicle the last time she had consumed alcohol was 24 hours previously. She never told the officer she was concerned her consumption from the previous evening would affect her readings.

[29] The officer told her after he spoke to her at the driver's side window she would have to accompany him to his vehicle to blow into a "breathalyzer" to ensure she had not been drinking. After she got into the backseat of the police vehicle, the officer went back to her car and had a confrontation with her boyfriend.

[30] After dealing with her boyfriend, P.C. Lafleur got back into the front seat of the police vehicle and read something to do with a breathalyzer, which she did not completely understand. He repeated it and she said she understood. He gave her a mouthpiece and told her to put it on the device. She did this and he told her to blow into the device using the mouthpiece. She understood what she was supposed to do. She testified she tried to provide a sample of her breath but as soon as she put the mouthpiece in her mouth the officer said she was not doing it properly and he took the machine away from her. She was still blowing when he pulled it away. She was aware she would be charged if she did not provide a sample.

[31] Ms. Haverson believed the officer warned her about being charged after her second or third attempt. The officer told her she was doing it wrong and was getting frustrated with her. She was trying to provide a proper sample as she had no reason not to as she had not consumed any alcohol. After the officer warned her, she began to cry and was sobbing. She did not believe she had done anything wrong. She was crying while she was trying to blow. She was genuinely trying to provide a proper sample and to blow into the machine the way the officer was telling her but he kept telling her she was doing it incorrectly. She testified she was making a good effort the entire time she was blowing into the machine. Ms. Haverson denied she was playing games when she was attempting to provide a sample of her breath. She was not trying to "suck" but the officer accused her of this and she became more upset. She agreed with the Crown's suggestion her ability to blow into the machine was probably affected when she was crying.

[32] In cross-examination, Ms. Haverson testified she saw her boyfriend and other officers having a confrontation outside the police vehicle. It was very upsetting to her as she did not want to see him getting himself in trouble. From what she saw, it was not a pleasant conversation. She agreed he had too much to drink. She did not know he had brought beer cans from home until he opened one after they left Bowlerama. She did not see all of the confrontation between P.C. Lafleur and her boyfriend because she had already been put into the backseat of the SUV.

[33] It was Ms. Haverson's evidence the officer would pull the machine away from her before she was finished blowing. He did this each of the times she attempted to blow into the machine, often while she was still blowing, advising her that she was not doing it properly. She believed she blew for four to six seconds and the officer would take the machine back telling her she was not doing it properly. She did not time each of her attempts so she cannot say whether the officer let her blow each time for at least four seconds.

[34] Mr. Ehlers testified he never spoke to P.C. Lafleur until he arrived at the Barrie O.P.P. detachment and called to advise he was outside as the doors were locked. He was advised by the Barrie female officer that Ms. Haverson was being taken to the Barrie O.P.P. detachment. P.C. Lafleur never spoke to him at the scene and never advised him not to bring Mr. Haverson to the police station. Mr. Ehlers testified Ms. Haverson was very upset and crying when he spoke to her in the police cell. He also testified that upon her release, about two and a half hours after her arrest, when she was in his car he asked her to blow in his face and he could not smell any odour of an alcoholic beverage.

Analysis

[35] Section 254(2) of the Criminal Code provides:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle...or had the care or control of a motor vehicle...the peace officer may, by demand, require the person to comply...in the case of alcohol:

(b) to provide forthwith a sample of breath that, in the officer's opinion will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

Section 254(5) of the Criminal Code provides:

Everyone commits an offence, who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

[36] There is no doubt that Ms. Haverson failed to provide a suitable sample of her breath into the approved screening device after eight attempts. Her defence for her failure is that she intended to provide a sample and did her best to do so. To put it more succinctly, her counsel submits she lacked mens rea. In a recent judgment, R. v. Greenshields, [2014] O.J. No. 475 (O.C.J.), Justice Duncan considered the two lines of authority dealing with whether intent is required to be proven by the Crown respecting a charge of fail to provide a breath sample.

The Saskatchewan Court of Appeal in R. v. Lewko (2002), 2002 SKCA 121, 169 C.C.C. (3d) 359, held the mens rea in a refusal/fail to provide sample offence is:

The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existence of a demand having the requirements of one of the three types mentioned in ss. [254] (2) and (3). Second, the Crown must prove a failure or refusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus). Third, the Crown must prove that the defendant intended to produce that failure (the mens rea).

Justice Duncan, in R. v. Sullivan, [2001] O.J. No. 2799, had come to a similar conclusion shortly before Lewko. His decision has been followed by a number of courts in Ontario, including R. v. Stanley (2003), 42 M.V.R. (4th) 95 (Ont. Sup. Ct.), R. v. Campbell, [2008] O.J. No. 47, also a decision of the Ontario Superior Court. Subsequent to these decisions, Code, J., in R. v. Porter, 2012 ONSC 3504, [2012] O.J. No. 2841 (Ont. Sup. Ct.) at paragraphs 35 to 37, disagreed by classifying a refusal/fail to provide sample offence as one of general intent and held the mens rea is merely knowledge of the prohibited act; that is, knowledge by the accused that he is not providing a sample.

[39] Justice Duncan, in Greenshields, at paragraph 10, held while the offence "may be one of general intent, [he] could not agree that mere knowledge by the accused that he is not providing a suitable sample compromises the mens rea." He continued, "In fact, I am not even sure that such formulation necessarily describes a mental state accompanying the act or omission at all, as opposed to being an after-the-fact assessment of what has occurred."

[40] I agree with Justice Duncan's conclusion at paragraph 11:

In my view, the bottom rung basic intent applicable to any crime, absent words to the contrary (The Supreme Court of Canada recently re-affirmed the principle that mens rea is presumed in the absence of words specifically removing it as an element of the offence: R. v. MacDonald, January 17, 2014), generally speaking, is the intent to do the act or omission that constitutes the offence. Specifically, with respect to the present offence, the mens rea of failure to provide a breath sample is the intent to not provide a breath sample.

[41] In support of his position, he refers to Justice Cory's decision in R. v. Daviault, [1994] 2 S.C.R. 63, at paragraphs 6 and 7; R. v. Rees, [1956] S.C.R. 640; R. v. Docherty (1989), 51 C.C.C. (3d) 1 (SCC); and in Smith and Hogan, Criminal Law, 6th edition, page 70, where the authors defined the principle of "Basic Mens Rea" as:

...in crimes requiring mens rea, as distinct from negligence, the defendant should be liable only for that which he has chosen to bring about, or to take the risk of bringing about ie that he intended, or was reckless whether all of the elements of the offence, both results and circumstances, should occur.

[42] I agree with Justice Duncan's analysis and adopt his conclusion that the Porter decision would lead to absurdities and unjust results. Consequently, if a reasonable doubt exists as to whether the defendant's failure to provide a breath sample was volitional or intentional, it must result in an acquittal.

Finding re Mens Rea

[43] Applying this conclusion to the evidence in this case, I find I have a doubt. I have a doubt that Ms. Haverson's failure on the eight attempts was intentional.

[44] I found Ms. Haverson to be a credible witness on the matter of her intent when she attempted to provide a suitable sample. I take into account Ms. Haverson's evidence. She had not consumed any alcohol on the evening of March 29 into the early morning hours of March 30. The officer observed no indicia of impairment and in fact formed the opinion she was not impaired. Mr. Ehlers, about two and a half hours after her arrest, asked Ms. Haverson to blow in his face and he did not detect an odour of alcoholic beverage. I find P.C. Lafleur's investigation after initially stopping Ms. Haverson's vehicle for speeding took an abrupt detour when he detected a strong odour of alcohol coming from the interior of the vehicle, the observation of the open Molson beer can in the passenger door, the passenger's admission the can was his and the passenger's refusal to cooperate by providing his identification.

[45] P.C. Lafleur had nothing in his notes respecting how or why Ms. Haverson exited the vehicle or where she ended up. His evidence was vague on this issue and, despite his attention being occupied with an increasingly antagonistic, uncooperative and aggressive Mr. Haverson, he claimed to observe an odour of alcohol now coming from Ms. Haverson's mouth, who unexplainably ends up to his left on the passenger's side of the car. Further, P.C. Lafleur did not have anything in his notes as to his searching the vehicle for more beer and his seizing another unopened can of beer prior to his backup arriving on scene; yet he recalled both searching the vehicle and finding the can of beer on the passenger's side. In my view, this lends credibility to Ms. Haverson's version that after denying any consumption of alcohol the officer took her to his SUV purportedly to administer an ASD ("breathalyzer") and placed her in the rear passenger side before he went back to deal with Mr. Haverson and the Liquor Licencing Act infractions.

[46] The stop occurred at 1:06 a.m. and the first ASD demand was not made until 1:16 a.m. inside the SUV. P.C. Lafleur testified he formed his reasonable suspicion while he was standing outside Ms. Haverson's vehicle purportedly dealing with Mr. Haverson who was becoming increasingly confrontational and aggressive towards the officer. The officer did not make a note of the time he formed his reasonable suspicion. It is my view the lack of notes by the officer respecting these important interactions affects the officer's credibility and reliability. A full ten minutes had passed, according to the officer, from the vehicle stop to his reading the ASD demand in the back of the police SUV.

[47] I accept Ms. Haverson's evidence that each occasion she attempted to provide a sample of her breath into the ASD the officer would pull the machine back into the front seat area and tell her she was not doing it properly. This is consistent with the evidence of the officer who testified he would bring the ASD back into the front seat to observe the reading or message and to allow the ASD to be reset.

[48] Ms. Haverson confirmed she told the officer, in answer to his question whether she had ever blown into an approved screening device previously, she had and it resulted in a three-day suspension. P.C. Lafleur testified as a result of Ms. Haverson, or any other driver, advising him of this he took the position he did not have to provide as detailed instructions on how to blow into the ASD. This was contrary to his evidence in-chief where he detailed the specific instructions he said he gave to Ms. Haverson. In cross-examination, for the first time, he indicated he gave her much shorter instructions as he did not have to re-invent the wheel. In fact, the officer had no notes as to what instructions, if any, he provided to Ms. Haverson throughout his interactions with her. In my view, this is a significant omission, particularly having regard to the officer's evidence respecting a reduced need to provide detailed instructions when a driver admits to having performed a breath test previously. Further, when P.C. Lafleur was questioned about his omitting in his notes the instructions on how to provide a proper sample, I found his responses to be evasive and argumentative in his attempt to justify why nothing was noted. In my view, many of his answers were not responsive to the questions he was asked.

[49] P.C. Lafleur agreed there was nothing in his notes about his keeping the two mouthpieces used by Ms. Haverson. He could understand on cross-examination why he should have put this in his notes.

[50] On the subject of P.C. Lafleur's notes, it was initially his position in his evidence in-chief that his notes were for his benefit to assist him in refreshing his memory. He finally, albeit reluctantly, conceded in cross-examination that his notes were for the purpose of providing disclosure to both Crown and defence. He finally agreed he recognized there was a Constitutional requirement and obligation for him to keep detailed notes. As will be seen, P.C. Lafleur's note-taking left much to be desired and did not, in my view, comply with this Constitutional purpose.

[51] It is interesting to note that in-chief, P.C. Lafleur testified a Barrie City police supervisor arrived around Ms. Haverson's seventh attempt to provide a breath sample, yet in cross-examination when he was referred to his own notes that indicated that between 1:16 and 1:19, and I am quoting now "BP on scene", which stands for Barrie police on scene, he had no recollection previously that the Barrie police had arrived between 1:16 and 1:19.

[52] A further deficiency in the officer's note-taking relates to his failure to record the length of Ms. Haverson's attempted blows. On the officer's evidence, the ASD requires a subject to blow for at least five to six seconds, as well as the blow must be a certain pressure before the ASD will analyze the sample of breath and produce a reading. Each attempt by Ms. Haverson resulted in an E0 message, which the officer observed after he took the ASD back from her. I find Constable Lafleur's explanation for not noting the length of each blow to be implausible and unbelievable, particularly in light of the fact that the majority of police officers testifying before me on other refuse trials are able to note these types of details in their notebooks and provide detailed descriptions of the attempted blows by individuals providing breath samples. These details are of particular importance in the assessment of whether the defendant is genuinely attempting to provide a sample of breath or playing games. In my view, the failure to note a detailed description of the attempted blow that resulted in an E0 message is a significant omission and further affects the officer's credibility and reliability.

[53] Ms. Haverson testified she became upset and began to cry after the officer warned her she would be charged with a criminal office if she did not provide a suitable sample. When P.C. Lafleur was initially questioned about whether Ms. Haverson was crying at any point during his interaction with her, his response was he did not recall, he did not remember. His evidence changed as the questioning continued, particularly when he was asked whether his observation of "sucking and blowing" might be explained by Ms. Haverson crying. He became more certain and emphatic that Ms. Haverson did not cry when she was in the police vehicle. She may have been upset but most drivers are upset when they are in the backseat of a police car. I accept Ms. Haverson's evidence that after the officer warned her of the consequences of not providing a suitable sample of her breath she started to cry. Further, her crying raises some question as to her ability to provide a sustained flow of breath for a sufficient time period.

[54] P.C. Lafleur observed that Ms. Haverson appeared to be very upset and was concerned about her boyfriend's interactions with the Barrie police, who were telling him they were going to charge him with causing a disturbance. This confrontation was happening just outside the O.P.P. SUV. P.C. Lafleur agreed Ms. Haverson's upset over this could very well have affected her ability to be able to provide a proper sample. In my view, this would have had a direct impact on Ms. Haverson's ability to provide a suitable sample and I accept her evidence that she was distracted by her concern for her boyfriend when he was interacting with the Barrie police, which I find occurred throughout her attempts to provide a sample of breath to Constable Lafleur.

[55] A further example of faulty note-taking by P.C. Lafleur related to his evidence that he spoke to Mr. Ehlers at the roadside before leaving to go to the O.P.P. detachment. I find that P.C. Lafleur did not speak to Mr. Ehlers until he arrived at the police station. I accept both Mr. Ehlers' evidence on this point and Ms. Haverson's evidence that the female Barrie police officer came to the O.P.P. SUV and advised P.C. Lafleur that Mr. Ehlers was present and wanted to speak to Ms. Haverson. P.C. Lafleur advised the Barrie officer he was taking Ms. Haverson to the O.P.P. detachment in Barrie and Mr. Ehlers could speak to her there. Although this does not directly bear on the issue of Ms. Haverson's intent to provide a sample, it does reflect on the officer's attention to important details, which I find to be lacking. The attendance of a lawyer at the scene was an unusual event and proper detailed note-taking was clearly important and relevant to any s. 10(b) Charter issues that may have arisen, yet P.C. Lafleur's notes indicate that he had direct communication with Mr. Ehlers. I find that he did not.

[56] Finally, P.C. Lafleur testified he does not release persons charged with refusal to provide a breath sample at the roadside, pursuant to s. 497 of the Criminal Code, despite acknowledging he did not have reasonable grounds for their further detention. He ultimately agreed it was his duty to release Ms. Haverson at the roadside on a summons or appearance notice considering the provisions of s. 497(1.1). During questioning on this issue, I found Constable Lafleur's evidence to be evasive, I found him not wanting to answer the questions that were being put to him, and, as I say, ultimately he agreed that his duty would have been to have released Ms. Haverson at the roadside rather than continuing his detention of her and bringing her to the police station for a further two and a half hours. This, in my view, is a further indication of P.C. Lafleur developing poor practices, which call into question his reliability and his credibility as to the actions he took while dealing with Ms. Haverson.

[57] Having regard to the totality of the evidence, I am left in a state of reasonable doubt that Ms. Haverson's failure to provide a breath sample was intentional. As such, the charge is dismissed.

[58] Now the defence also argued during submissions that a s. 8 Charter violation respecting P.C. Lafleur's reasonable suspicion that Ms. Haverson had alcohol in her body while operating a motor vehicle was not necessary. Mr. Fedorsen argued the issue of whether the ASD demand complied with the requirements of s. 254(2) of the Criminal Code is a finding of fact based on the evidence led during the trial. The defence relies on R. v. Grant, [1991] S.C.J. No. 78 at paragraph 19 to 21; R. v. Digiorgio, [2011] O.J. No. 3337 (Ont. C.A.) at paragraphs 42 and 43; and R. v. Davis, [2001] O.J. No. 2984 (A decision of Justice Libman of the Ontario Court of Justice). It is the defence position on the evidence I should have a reasonable doubt on the issue of whether P.C. Lafleur had a reasonable suspicion Ms. Haverson had alcohol in her body. Ms. Haverson testified after she advised the officer she had not consumed alcohol that he requested her to accompany him to his police vehicle to take a "breathalyzer to make sure she had not consumed alcohol." If I accept her evidence respecting this issue, I must acquit because there would have been no foundation that the ASD demand complied with the requirements of s. 254(2). And if I do not accept her evidence on this issue but still have a reasonable doubt, I also must acquit. It is an essential element of this offence that the ASD demand comply with the requirements of s. 254(2) and, consequently, I would have to accept P.C. Lafleur's evidence that he in fact had a reasonable suspicion Ms. Haverson had alcohol in her body while operating a motor vehicle within the previous three hours.

[59] I can indicate that based on my findings of fact concerning the poor note-taking of P.C. Lafleur, particularly as it relates to this issue having regard to the lack of notes as to how Ms. Haverson got out of the vehicle that then would have put her on the left of P.C. Lafleur while he was dealing with Mr. Haverson on the passenger side of the vehicle, it is my view that I do not believe that I would be able to accept all of P.C. Lafleur's evidence, nor would I be able to reject completely the evidence of Ms. Haverson as to what she says the officer did in taking her to his police vehicle. On this issue, as well, it is my view that the Crown has failed to prove the case beyond a reasonable doubt because the Crown has failed to demonstrate that the ASD demand complied with the requirements of s. 254(2), namely, that P.C. Lafleur had a reasonable suspicion that Ms. Haverson had alcohol in her body and that she had been operating her vehicle within the previous three hours.

[60] Given, as I say, my concerns about the reliability and credibility of P.C. Lafleur's evidence, as I have detailed, I am not satisfied beyond a reasonable doubt that the ASD demand complied with the requirements of s. 254(2). On that basis, as well, I would acquit Ms. Haverson and dismiss the charge.

Certificate of Transcript

Evidence Act (Subsection 5(2))

I, Debra Byrne, certify that this document is a true and accurate transcript in the recording of R. v. Janele Haverson (nee Reeve) in the Ontario Court of Justice, held at Newmarket Courthouse, Newmarket, Ontario, taken from Recordings 20130513, which has been certified in Form 1.

January 12, 2015

Debra Byrne, Certified Court Reporter Authorized Court Transcriptionist