Court File and Parties

Ontario Court of Justice

Date: 2015-06-18

Court File No.: Brampton 14-1170

Between:

Her Majesty the Queen

— and —

Mr. Omar Amjad

Before: Justice P. F. Band

Heard on: September 5, 2014, February 6 and May 8, 2015

Reasons for Judgment released on: June 18, 2015

Counsel:

• Ms. J. Thompson — counsel for the Crown
• Mr. A. Di Carlo — counsel for the accused Mr. Omar Amjad

BAND J.:

I. Introduction

[1] On January 16, 2014, Mr. Omar Amjad was charged with failing to comply with a demand that he provide suitable samples of his breath into an approved instrument.

[2] In the breath room and at trial, Mr. Amjad claimed that he was doing his best to provide samples, but that a medical disorder known as allergic bronchitis prevented him from doing so successfully.

[3] The issue in this trial is the following:

Was Mr. Amjad unable, despite his best efforts, to provide suitable samples because he was suffering from allergic bronchitis, or

Was he faking it and using allergic bronchitis as a smokescreen?

[4] I heard from two witnesses. The Crown called PC Simmonds, who was both the arresting officer and the Qualified Breath Technician. Mr. Amjad testified on his own behalf. The video of the events that transpired in the breath room was played in court and admitted as Exhibit 1. PC Simmonds and Mr. Amjad both commented on it at length in their testimony. While some portions of it were difficult to hear on the television in court, I was able to discern most everything in chambers using headphones. There is one exception: whether Mr. Amjad told PC Simmons that his puffer was in his car or not. Mr. Amjad testified that he did and there is a passage on the video where that is entirely possible, but it is difficult to hear for certain. Based on my ultimate conclusions in this matter, that issue is of little importance.

[5] After many fruitless opportunities, which I will discuss further, Mr. Amjad did produce one suitable sample of his breath into the approved instrument. Based on the broken up nature of the tones emanating from the approved instrument and the testimony of PC Simmonds, that sample was not the product of one continuous and constant blow; however, it was nonetheless suitable in PC Simmons' opinion. The result was that Mr. Amjad was "Over 80", to use the vernacular. There is no dispute about that. It is also clear that PC Simmonds told Mr. Amjad that the result showed excess blood alcohol before Mr. Amjad was required to produce a second sufficient sample.

[6] There is also no dispute about the fact that, again after many fruitless opportunities, Mr. Amjad failed to provide a second suitable sample as required by law. Also, there can be no dispute that Mr. Amjad understood what was required of him. The video makes that clear, as did his testimony in court. Mr. Amjad is an intelligent, articulate and worldly man in his early 30s, and PC Simmonds' explanation and demonstration could not have been clearer.

[7] The only issue in this trial is whether Mr. Amjad's failure should attract criminal liability or whether it was the result of an inability to produce the required samples due to a condition known as allergic bronchitis.

[8] Mr. Amjad mentioned this medical condition many times to PC Simmonds in the breath room and in his testimony. It was also a central feature of Mr. Di Carlo's defence of his client. But the defence did not present any admissible, independent medical evidence of its existence during the trial.

[9] As a result, the breath room video evidence and Mr. Amjad's credibility are the focal points of this case.

II. The Applicable Legal Principles

Burden of Proof

[10] It goes without saying that the Crown bears the burden of proving Mr. Amjad's guilt by proving the essential elements of the offence beyond a reasonable doubt.

Actus Reus

[11] The actus reus of this offence is the failure to comply with the demand to provide two suitable samples: see R v Lewko (2002), 2002 SKCA 121, 169 C.C.C. (3d) 359 (Sask. C.A.).

Mens Rea

[12] There is currently a split in the jurisprudence of this province concerning the mens rea of this offence: see R. v. Porter, 2012 ONSC 3504; R. v. Greenshields, 2014 ONCJ 35, R. v. Soucy, 2014 ONCJ 497 and R. v. Slater [2015] O.J. No. 1464 (C.J.).

[13] In light of my conclusions in this matter, it is not necessary for me to rule as to which line of authority I find most persuasive. Rather, I propose to apply the Greenshields/Soucy/Slater line of authority in this case as it places the most demanding burden on the Crown.

[14] That is, has the Crown proved that Mr. Amjad intended to produce the failure to provide suitable samples of his breath?

Reasonable Excuse

[15] The burden of proof does not shift to Mr. Amjad at any time unless Mr. Amjad intends to demonstrate, on a balance of probabilities, that he had a reasonable excuse for failing to comply with the breath demand. The Supreme Court of Canada appears to have settled this issue recently in R. v. Goleski, [2015] S.C.J. No. 6.

[16] The concept of reasonable excuse, "refers to matters that stand outside the requirements that the Crown is obliged to prove": see R. v. Pletsas, 2014 ONSC 1568, [2014] O.J. No. 1136 (S.C.), and also R. v. Moser (1992), 71 C.C.C. (3d) 165 (C.A.) at p. 176.

[17] For many years now, Courts have held that the reasonable excuse issue ought not to be considered unless and until the Crown has proven both the actus reus and the mens rea beyond a reasonable doubt: see R. v. Campbell [2008] O.J. No. 47 (S.C.).

[18] In answer to a question of mine during submissions, Mr. Di Carlo submitted that the defence was based "mostly" on mens rea rather than reasonable excuse. This apparent equivocation is understandable, given that in cases involving an apparent failure to provide a sample (as opposed to an outright refusal) the courts have indicated that the "bright line" distinction between the elements of the offence and an extraneous reasonable excuse becomes harder to maintain: see R. v. Butler, [2013] ONSC 2403.

[19] In my view, the difficulty in maintaining the distinction becomes even greater in failure to provide cases if the mens rea for the offence is understood as the intention to produce the failure.

[20] Nonetheless, I am required to avoid merging the two issues.

[21] I will therefore address the defence position under both rubrics. If I am not left with a reasonable doubt that Mr. Amjad failed to provide suitable breath samples, I will then consider whether he has demonstrated, on a balance of probabilities, a reasonable excuse for his failure. See R. v. Peck, (1994), 1 M.V.R. (3d) 197 (N.S.C.A.), cited in R. v. Pletsas.

Use of Evidence of Compelled Direct Participation at the Roadside

[22] During the course of the trial, Crown counsel elicited evidence that Mr. Amjad had had no difficulty providing a suitable sample into the approved screening device (ASD) and that the air pressure required by both the ASD and the approved instrument is comparable. I, too, asked a question about it for clarification.

[23] Defence counsel did not object to that evidence being led, and it made its way into the closing submissions of both parties.

[24] I have since conducted research into this area of the law and have concluded that it would be unfair to make any use at trial of the fact that Mr. Amjad was able to provide a suitable sample into the ASD. Courts in Ontario have held that the admissibility of evidence acquired through an accused person's "compelled direct participation" in roadside testing is limited as a matter of trial fairness: see R. v. Quenneville, 2009 ONCA 325, [2009] O.J. No. 1549 (C.A.), R. v. Brown, [2011] O.J. No. 5355 (S.C.J.) & R. v. Bijelic, [2008] O.J. No. 1911 (S.C.J.). I have instructed myself accordingly.

III. The Evidence at Trial

The Breath Room Video

[25] The breath room video spans approximately one hour and 15 minutes, between 4:00 and 5:15 a.m. Moments after entering the breath room, Mr. Amjad asks for an opportunity to use the men's room to urinate. Since he had just done so, PC Simmonds refuses to allow him another opportunity so soon. Mr. Amjad tells him that he has a medical problem with his bladder, and so PC Simmonds allows him another trip to the men's room. Approximately 12 minutes later, Mr. Amjad requests another men's room break. This time, PC Simmonds tells him that the first sample must take priority.

[26] Shortly after being cautioned about statements to persons in authority, Mr. Amjad tells PC Simmonds that he is a "bronchitis patient." Thereafter and throughout the video, Mr. Amjad talks about this disorder, and insists that he intends to comply with PC Simmonds' demand and be cooperative.

[27] When he is first told that the required sample is 10-12 seconds long, Mr. Amjad says "oh wow" and again indicates that he is willing to do the sample as many times as necessary, but warns that he might have to stop "half-way."

[28] PC Simmonds provides a very clear explanation of how to provide a breath sample, indicates that one should take a deep breath and fill one's lungs with air. He then also performed a demonstration of the procedure.

The First Sample

[29] Approximately 20 minutes into the procedure, Mr. Amjad provides a suitable, albeit broken up, sample after approximately a dozen failed opportunities. He is cautioned about the potential consequences multiple times, and provided with a number of so-called "last chances."

[30] The circumstances surrounding that dozen or so opportunities are as follows.

[31] During the demonstration and test of the mouthpiece, Mr. Amjad does not make a seal and has to be instructed. He is cautioned.

[32] On the next attempt, no sound can be heard and it appears that he is blocking the mouthpiece. He is cautioned again.

[33] On the first attempt into the approved instrument, no sound can be heard from the instrument, but air is escaping from the sides of Mr. Amjad's mouth.

[34] On the next attempt, Mr. Amjad does not appear to be blowing at all. PC Simmonds pulls the tube from his mouth and there is no sound of air escaping from his lips. He is cautioned again.

[35] On the next attempt, Mr. Amjad causes a short tone to come from the instrument. After the tone ceases, PC Simmonds pulls the tube from his mouth. Again, there is no sound of air escaping from his lips. He is cautioned again.

[36] Before the next opportunity, Mr. Amjad does not try to inhale or fill his lungs with air. The same thing happens during that attempt, and he is cautioned again.

[37] He asks for a glass of water. PC Simmonds refuses because, as he put it, "you'll have to piss again."

[38] Prior to the next opportunity, PC Simmonds tells Mr. Amjad that breathing normally into the instrument would make a tone.

[39] Mr. Amjad says, "would it? Ok, I won't pile up any breath and just breathe into it."

[40] His next opportunity generates a very brief tone. PC Simmonds pulls the tube from Mr. Amjad's mouth and there is only a faint sound of air escaping from his lips.

[41] Prior to the next opportunity, the mouthpiece is removed and Mr. Amjad is able to audibly blow through it. He is cautioned that the next opportunity will be his last.

[42] Before doing so, he exhales significantly.

[43] While his lips are creating an audibly problematic seal, the opportunity causes some tones to come from the instrument.

[44] Before the next opportunity, Mr. Amjad inhales very shallowly and then makes very short, quick puffing sounds much like a weight lifter does before a "clean and jerk" lift. The result is a poor seal and when PC Simmonds eventually pulls the tube away form Mr. Amjad's lips, there is no sound of air escaping from his lips.

[45] He is cautioned and told the next opportunity will be his last.

[46] The next opportunity generates a longer, albeit broken, tone.

[47] PC Simmonds tells him he "almost had it that time." Mr. Amjad tells him "I actually worked my ass off this time," and explains that for the same reasons, he has difficulty swimming.

[48] Mr. Amjad asks for another men's room break, and indicates that it is a "medical issue."

[49] The next opportunity generates a series of 5 or 6 tones, but the sample is insufficient. He is cautioned again.

[50] He begs to use the men's room, claiming to have a bladder problem.

[51] On the next opportunity, Mr. Amjad again does not inhale. The result is a short tone.

[52] After inhaling deeply, Mr. Amjad appears to make a more genuine effort, after which he asks "Why do I need to do this?"

[53] He then asks for one more opportunity, and tells PC Simmonds that he has "already figured out what to do."

[54] At approximately 4:36 a.m., he inhales deeply, and provides the first suitable sample.

The Opportunities to Provide a Second Sample

[55] After a men's room break, Mr. Amjad returns to the room. He repeats that he does not know why he is there.

[56] PC Simmonds tells him that based on the first sample, he is "over the legal limit."

[57] A short time later, Mr. Amjad then tells him "I'm near death's door. This is impossible for me. I don't know why we have to do it twice." He asks PC Simmonds to accompany him to his house so he can show him his medication, and explains that this is why he does not swim.

[58] PC Simmonds performs another demonstration, and Mr. Amjad blows through the new, unattached mouthpiece with no apparent difficulty.

[59] The opportunities to provide the second sample begin at approximately 4:59 a.m., some 23 minutes after the first suitable sample.

[60] The first two opportunities generate short, broken up tones. It is evident that Mr. Amjad is not blowing as hard as he did when he provided the first suitable sample.

[61] When PC Simmonds tells him that he's not blowing at all, Mr. Amjad responds that he is blue in the face.

[62] PC Simmonds tells him he's acting, and cautions him.

[63] Mr. Amjad tells him he is about to be in medical distress.

[64] During the next opportunity, Mr. Amjad's lips are not making a seal. Nonetheless, he says he is doing his best.

[65] The next opportunity generates some short tones.

[66] Before the next one, PC Simmonds tells him to fill his lungs with air. Mr. Amjad does not inhale. In the ensuing opportunity, PC Simmonds pulls the tube from Mr. Amjad's mouth. No sound of air can be heard escaping his lips.

[67] The instrument times out, and PC Simmonds tells Mr. Amjad he will be charged. Mr. Amjad begs for another chance, indicating that he is doing his best and that he is not refusing.

[68] He says he can try harder.

[69] He asks for another men's room break.

[70] The next two opportunities are like the previous one: Mr. Amjad does not inhale and it appears that he is not blowing into the instrument.

[71] The next opportunity generates some short intermittent tones, after which PC Simmonds pulls the tube from Mr. Amjad's mouth. No sound of air can be heard escaping his lips.

[72] The next attempt generates short, broken up tones.

[73] Mr. Amjad is cautioned that he will be charged if the instrument times out.

[74] On the next opportunity, Mr. Amjad's lips make a poor seal, and air can be heard leaking from the sides.

[75] He says he will pee his pants.

[76] At approximately 5:14 a.m., the instrument times out and Mr. Amjad is charged.

PC Simmonds' Evidence

[77] PC Simmonds is an experienced qualified breath technician. He gave his evidence very frankly. In-chief, when asked whether Mr. Amjad mentioned that he had his puffer at home, PC Simmonds very fairly responded that Mr. Amjad "might have mentioned it was in his car." He also acknowledged that he believed from very early on that Mr. Amjad was playing games. I believed PC Simmonds' evidence.

[78] PC Simmonds testified that the approved instrument will make a tone if one does little more than breathe normally into it and that one can provide a suitable sample by doing so.

[79] He saw no signs of any respiratory distress or difficulty. Rather, he felt that Mr. Amjad was providing choppy samples on purpose, and that his requests to use the men's room were nothing more than attempts to delay the process.

[80] In cross-examination, PC Simmonds indicated that Mr. Amjad was speaking normally throughout the testing process.

[81] While he hoped to obtain a second suitable sample, PC Simmonds explained that it was obvious that Mr. Amjad was not trying.

[82] PC Simmonds continued to provide opportunities because it is his job to obtain suitable samples and Mr. Amjad is obliged by law to provide them.

IV. Analysis in the context of Mr. Amjad's Evidence

Actus reus and Mens Rea

[83] Despite the absence of any independent medical evidence, I accept that Mr. Amjad suffers from bronchitis of some nature. The question before me is whether that disorder played any part in his failure to provide two suitable samples of his breath.

[84] I found Mr. Amjad's evidence at times to be evasive, materially inconsistent with events captured on the breath room video, self-serving and contrary to common sense.

[85] Mr. Amjad testified that he reviewed the video before testifying.

[86] He explained that he became scared during the process, as PC Simmonds seemed to be "pissed off" at him and was threatening to charge him. He felt that he was treated unfairly by being rushed, and that he simply was not given enough time.

[87] While PC Simmonds' demeanour was clearly that of someone who felt that he was being manipulated, it was not intimidating or angry. What is more, throughout the video, Mr. Amjad argued with him and made jokes. During the second series of opportunities, Mr. Amjad was issuing commands to PC Simmonds to repeat his demonstration so that he, Mr. Amjad, could pull the tube from his mouth as PC Simmonds had done to him earlier.

[88] Mr. Amjad testified that he was "absolutely out of breath" after the first suitable sample. That is simply not so. Immediately after the sample, he said "I told you!" in a loud voice.

[89] Mr. Amjad testified that he could feel his ability degrade over time as tests continued on. That evidence is belied by the fact that his best effort took place after over 10 opportunities.

[90] It must also be remembered that the second testing sequence began after a break of over 22 minutes and after Mr. Amjad had been told that he was over the legal limit. Mr. Amjad's performance involved a mixture of improperly sealed lips, non-blowing or short tones. I do not believe that fatigue or degradation in his ability were the reasons.

[91] He testified that he does not recall a time when he put his mouth to the machine and the machine "didn't at least start making noise." That evidence is contradicted by a significant number of instances I observed and described above.

[92] In cross-examination, Mr. Amjad was asked about the signs and symptoms of his disorder. His first salvo was an explanation of the triggers of the condition. I found this approach evasive.

[93] When asked again, he explained that "you'll be out of breath if involved in strenuous activity and then not be able to perform it." You would present with shortness of breath. Coughing and wheezing are possible signs.

[94] When asked if he agreed that he was not visibly out of breath after the first suitable sample, Mr. Amjad asked for the Crown to explain what she meant. The question was straightforward, and I have no doubt that Mr. Amjad understood it.

[95] In any event, none of the signs Mr. Amjad described were present at any time during the testing procedure. To the contrary, Mr. Amjad was very talkative throughout, and his voice never appeared to weaken.

[96] Mr. Amjad testified that only he can hear his own wheezing; others cannot. This evidence is self-serving in the extreme, and strains one's credulity.

[97] Mr. Amjad later explained that he knows his own limitations. While he does swim, he does the backstroke so that he can keep his head above the water. This evidence is inconsistent with the claim he made in the breath room that he does not swim because of his disorder. It is also self-serving and something of a non-sequitur.

[98] Mr. Amjad did not explain the reasons for the numerous times his lips failed to make a proper seal around the mouthpiece.

[99] Nor were Mr. Amjad's alleged bladder problems canvassed in his evidence.

[100] In the breath room video, Mr. Amjad's response to being told that breathing normally can yield a suitable sample is to say that he will therefore stop "piling up" his breath. I found this to be disingenuous. After demonstrations and verbal explanations of the need to fill one's lungs with air, this response was an obvious attempt to play the fool and to delay the inevitable.

[101] Simply put, I did not believe Mr. Amjad's testimony concerning his intention to comply. I find that he understood what was expected of him and intentionally failed to do so by engaging in tactics aimed at delaying or avoiding the process. He was cautioned in the clearest of terms and afforded an abundance of opportunities over a considerable period of time.

[102] The Crown has therefore proven the actus reus and mens rea of the offence beyond a reasonable doubt.

Reasonable Excuse

[103] I must ask myself whether I am satisfied on a balance of probabilities that Mr. Amjad's bronchitis provides him with a reasonable excuse for failing to provide suitable breath samples. Given how tightly the mens rea and the bronchitis claim are interwoven in this case, this exercise is largely academic.

[104] Mr. Amjad's evidence does not explain how or why it is that, on numerous occasions, he either did not inhale, or inhaled but then exhaled, before appearing to attempt to provide a sample.

[105] Mr. Amjad's evidence does not explain how or why, even after inhaling, he did not provide any air into the approved instrument on numerous occasions.

[106] Mr. Amjad's evidence does not raise a reasonable doubt in my mind that he was unable to provide suitable samples in the circumstances presented to him owing to a respiratory disorder that presented no outwardly observable signs or symptoms.

[107] Obviously then, Mr. Amjad's evidence cannot satisfy me on a balance of probabilities.

[108] I find Mr. Amjad guilty as charged.

Released: June 18, 2015

Justice P. F. Band