Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Laura Fantini

Before: Justice H. Borenstein

Heard: March 25, 2015

Reasons for Judgment Released: May 12, 2015

Counsel:

• Ms. D. Mitchell for the Crown
• Mr. M. Sciarra for the accused Laura Fantini

Judgment

BORENSTEIN J.:

The Charge

[1] Ms. Fantini is charged with one count of refusing to provide a suitable sample into approved instrument.

[2] The case is very straightforward.

Background Facts

[3] Ms. Fantini has no record and has worked for 22 years for the Toronto Public Library. She went out after work with some friends. She and her friend Joanna went to a bar that Joanna worked at part time. Their other friend Lana joined Ms. Fantini at the bar. They remained at the bar for about 2 ½ hours. According to the testimony of both Ms. Fantini and Lana, they each had two Heineken beers.

[4] When they left the bar, Ms. Fantini was driving home with Joanna when they were stopped in a RIDE program. She admitted having two drinks and was told to provide a sample into the Approved Screening Device. After five to six attempts where she did not provide a suitable sample, the officer cautioned Ms. Fantini who then provided a suitable sample into the ASD and failed the test.

Events at the Police Station

[5] Ms. Fantini was arrested and taken to the police station. After all preliminary matters were taken care of, she was taken into the breath room before the qualified breath technician, Officer Thompson, who explained and demonstrated how to provide a suitable breath sample. He ensured the Approved Instrument was in excellent working order. He turned on the digital recording device. The events in the breath room were captured on video tape however the audio portion was not working.

[6] Officer Thompson instructed Ms. Fantini as to the proper procedure. He took out a new mouthpiece. He told her to take a deep breath, form a seal with her lips and blow with good pressure until he told her to stop. She never said she did not understand his instructions. At 10:57 p.m., Ms. Fantini began to provide a breath sample. During her first three attempts, she began to provide a suitable breath sample but abruptly cut off the flow of air. He knew this because the Approved Instrument produces an audible tone when it receives a stream of air flow. When Ms. Fantini stopped supplying a suitable flow of air, the tone stopped. After these three attempts, he stopped her. He noted that her tongue was moving in the bottom of her mouth. He told her that it takes about eight to ten seconds of continuous air to provide a suitable sample into the Approved Instrument. He allowed her another attempt. She began to blow into both the mouthpiece and out her nose at the same time. He could also see her lips open up and she expelled air through the side of her mouth. He testified that they probably went through five or six opportunities at this time and each time, Ms. Fantini came up with a new way to not provide the sample. He took out a new mouthpiece and demonstrated how to blow. He then gave her a free standing mouthpiece, unconnected to the Instrument, and asked her to blow and she was able to do so.

[7] He then reconnected that mouthpiece but the Instrument "timed out" which it does after five minutes. He conducted a systems check and it was again ready to receive a sample. Officer Thompson cautioned Ms. Fantini about refusing to provide a breath sample. He explained that she will not have an unlimited number of opportunities. On the next attempt, she had the same issue and there was no air flow. In the next attempt, she blew air out her nose. On the next, she began providing a proper sample but abruptly cut off the air flow. He told her her opportunities were running out. The machine timed out again and it reset. She was given three further opportunities with no more success. At 11:09, he stopped the testing sequence and told her she would be charged. According to Officer Thompson, over the 12 minutes of testing, Ms. Fantini made some 10 or so attempts to provide a breath sample but none were suitable. He was unable to recount the conversation that occurred in the breath room without the audio portion of the video.

[8] The arresting officer, P.C. Corrie, testified that he did not make detailed notes of the events in the breath room as he was aware that there was a video recording the events. He did not know the audio portion was not working.

Defence Evidence

[9] Ms. Fantini testified in her own defence. Further, the Crown conceded the evidence of four character witnesses who were present in Court who would testify that Ms. Fantini is a woman of good character and has a general reputation as an honest person.

[10] Ms. Fantini testified that, after work, she and her ex co-worker Joanna went downtown to the Zanzibar where Joanna was going to work. Ms. Fantini's friend Lana joined them at the bar. They got to the bar around 6:45 p.m and remained for two hours. Ms. Fantini testified that she and Lana each had two drinks. Ms. Fantini had two Heinekens. Ms. Fantini bought one round for the three women which cost around $35.00. Lana also bought a round. Ms. Fantini agreed in cross examination that she had no particular reason to be counting her drinks but maintained that she had only two beers. The first was around 7:40 p.m., she was unsure of the second, but it was close to 8:30 p.m.

[11] Ms. Fantini and Joanna left the bar. As they were driving home, they got stopped in a RIDE spot check.

[12] She testified that she was genuinely trying to provide a suitable sample into the instrument. She denied doing the actions the officer accused her of such as blocking the air flow with her tongue or the other actions. She was cautioned and understood the caution. She was trying her hardest to provide a sample. She was blowing her hardest. She was not holding her breath and never failed to provide any air into the Instrument.

[13] Ms. Fantini's friend Lana testified. She works for Toronto Public Health in Tobacco Enforcement. She described Ms. Fantini as one of the most honest people she knows.

[14] She testified that she arrived at the bar around 6:30 p.m and left around 9 p.m. They both bought a round of beers that costs "$30.00 plus" per round. She spoke to Ms. Fantini the day after the arrest and was surprised she was arrested since they only had two beers. She could not say whether Ms. Fantini had anything to drink before she met her. She testified that she only discussed the case with Ms. Fantini day after the incident, December 2, 2013, yet she remembered so many minute and unimportant details such as which tables they sat at, that they changed tables, who went to the washroom, who bought the first round, etc. The detail was so remarkable and identical to Ms. Fantini's evidence that it sounded rehearsed and scripted to the point that I lost faith in her evidence.

[15] That was the evidence called in this trial.

Crown's Submissions

[16] The Crown submits that Ms. Fantini's evidence was incredible in light of Officer Thompson's evidence and the video which, according to the Crown, plainly shows that she is not blowing. The Crown submits that you can tell this by the fact that the lights on the Instrument sometimes do not come on indicating that no air is passing through the Instrument. The audio portion is unnecessary according to the Crown.

Defence Submissions

[17] The defence submits that Ms. Fantini is honest, has a reputation for honesty and her evidence should at least raise a reasonable doubt about whether she was feigning.

Legal Analysis and Decision

[18] I subscribe to the view most recently expressed by Justice Melvyn Green in R v. Slater, 2015 OJ 1464. The Crown must prove beyond a reasonable doubt that the accused intended to fail to provide a suitable sample of her breath. Whether expressed in terms of general or specific intent, at a minimum, the Crown must prove that intention, or recklessness. In other words, this is something Ms. Fantini intended on purpose. It is not sufficient that she merely be aware that she was not providing a suitable sample. She must have intended that as well. That is before the issue of any reasonable excuse comes into play.

[19] While I am not prepared to put much reliance on Lana's evidence, that does not automatically result in the complete rejection of Ms. Fantini's evidence. Turning to Ms. Fantini's evidence, I do not accept the Crown submission that I can rely on Ms. Fantini's conduct at roadside to assess her evidence in the breath room. Her taking of the tests at roadside is a justifiable limit on her right to counsel – primarily because it only relates to grounds, and not to incriminate her or to be used to evaluate the credibility of her trial testimony. That submission is appropriate to the extent it was made in response to the defence submission that Ms. Fantini's difficulties at roadside should have been told to Officer Thompson or that her difficulties at the side of the road should enhance her evidence before the Court as to what happened in the breath room. Beyond that, her conduct on the side of the road plays no part, positive or negative in the assessment of her evidence as to what occurred in the breath room. The Crown submits that the video, without the audio, strongly supports the Crown's case and undermines the defence.

[20] I have watched the video several times. Ms. Fantini's first attempt to provide a sample began at 11:00:16. In fact, her first three attempts span from 11:00:16 to 11:00:46 – meaning only 30 seconds passed during which she allegedly feigned the test three times and, on the first, she appeared to be blowing into the instrument from 11:00:16 to 23 seconds, some 7 seconds.

[21] Obviously, those three attempts failed to yield a suitable sample. She and the officer are then seen having a conversation. She is attempting to explain something to him. She is gesturing to her chest as she does so. The audio is missing.

[22] A fourth attempt begins at 11:03:46 and ends 18 seconds later. The officer was holding the tube during that test which was unsuccessful. A fifth test is attempted with Ms. Fantini holding the tube. That began at 11:04:37 and ended 24 seconds later. That did not produce a sample. A sixth commenced at 11:06:53 and ended at 11:07:18. Again, Ms. Fantini is clearly trying to explain something to the officer but we do not know what it is. The officer then gave Ms. Fantini a detached mouthpiece to blow through which she did. She then inserted the mouthpiece into the device and attempts to provide another sample which she does from 11:09:15 to 11:09:35. She was then charged.

[23] It is not obvious to me, as it is to the Crown, that the video demonstrates clearly that she is not providing a sample of her breath into the Instrument or that the Instrument's lights are not coming on.

[24] In the end, in the absence of the audio portion depicting what occurred and what was said, I do not completely reject Ms. Fantini's evidence that she was genuinely trying to provide a suitable sample. While not likely true, it is not rejected. Therefore, the Crown has not proved its case beyond a reasonable doubt.

Released: May 12, 2015

Signed: Justice H. Borenstein