Ontario Court of Justice

Old City Hall - Toronto

Between

Her Majesty the Queen

and

Colin Adams

Counsel and Hearing

For the Crown: N. Laton

For the Defendant: T.E. Chan

Heard: November 16 and 17, 2015

Reasons for Judgement

Justice Melvyn Green

A. Introduction

[1] Colin Adams was driving south on Toronto's Highway 400 in his BMW. It was about 5:30am on March 23, 2014, a Sunday. It was still dark. The roads were dry and in good condition. The traffic on the six southbound lanes was relatively light. The driver of a second car says the BMW flew by him at an excessive rate of speed. Within seconds, a collision apparently caused the driver of a third car, a Nissan, to lose control and skid east across several lanes of traffic, passing directly in front of the second car. The Nissan came to rest against the centre median on the left shoulder of the southbound lanes. It was facing north, the direction of oncoming traffic. Adams' BMW, bearing considerable damage, was located about 300 metres further south on the opposite side, the right shoulder, of the same highway.

[2] The police attended the scene and conducted a preliminary investigation. Two police officers testified that they detected the odour of alcohol on Adams. He was unresponsive to police demands that he provide a roadside breath sample. As a result, Adams, now defendant, was charged with both dangerous operation of a motor vehicle (contrary to s. 249(1)(a) of the Criminal Code) and refusing to comply with a valid approved screening device demand (Code, s. 254(5)). These are the same charges to which he pled "not guilty" upon his arraignment before me.

[3] The Crown called the two officers who dealt with the defendant at roadside and the drivers of the second and third cars. The defendant called no evidence. The burden, as always, rests on the prosecution: a conviction for either offence will follow only if the Crown proves beyond reasonable doubt all the essential elements of that offence.

B. Evidence

(a) Introduction

[4] With some small overlap, the evidence divides neatly into two chapters. The first, pertaining to the motor vehicle accident and its consequences, derives chiefly from the testimony of Gbenga Ajibola, the driver of the Nissan involved in an accident, and Kenny Pickering, the driver of the car that was overtaken by the BMW before the accident. The evidence regarding the charge of refusing to comply with a breath demand comes from two OPP officers who initially investigated the defendant, Provincial Csts. Scott Hearnden and Victor Gomes.

[5] All witnesses agree that the traffic was relatively light, the weather was good and the roads were dry.

(b) The Accident on the 400

(i) The Struck Driver: Gbenga Ajibola

[6] Ajibola mistakenly recalled that he was driving north when, by all other accounts, he was actually driving south. The traffic was "not too busy". Ajibola was in the second lane from the right shoulder (Lane 5) of the six-lane southbound 400 when he heard and felt a bang from the rear passenger side of his Nissan Maxima. It was about 5:30 on a Sunday morning and still dark. He lost control of his vehicle and ended up across four lanes of highway, his car pressed against the cement median and now facing the oncoming traffic. Ajibola did not see the car that hit him or its driver. He was "confused" by the collision.

[7] Ajibola was extricated from his car by emergency services and transported to a hospital where he spent several hours. He suffered a broken collarbone and had to wear a sling for about two months. He was still "getting better" at the time of trial.

(ii) The Overtaken Driver: Kenny Pickering

[8] Pickering was on his way to work in Toronto. It was about 5:30am and the traffic was light. He was driving south in Lane 2 of the 400, next to the fast lane, at about 110 kph when a blue BMW in Lane 5 passed him at an estimated 160-170 kph. Pickering had worked as an auxiliary OPP constable for about four years and had learned to estimate vehicle speeds as part of his laser gun training.

[9] Pickering did not see where the BMW entered the 400. It disappeared from his sightline within a couple of seconds as it passed a transport truck. A few seconds later, a Nissan skidded in front of him, bounced off the cement centre median to his left and came to rest facing north. Pickering had to slow for the Nissan, but he continued driving south. The Nissan hit the median head-on. Pickering did not observe any collision. Nor did he testify to seeing any car other than the Nissan careen eastward across the highway.

[10] Pickering did see the BMW veer to the right side of the 400 and appear to hit the guardrail on the right shoulder. He pulled over to the right shoulder, well in front of the BMW. From there he could see damage to the rear of the Nissan across the highway. He walked back to the BMW. Its front end was heavily damaged. The apparent driver was out of his vehicle but not interested in talking. Pickering could see no one else inside or outside the BMW. He returned to his car, called 911 and spoke with an OPP communications dispatcher. He left the area after about five minutes and before any police officers had arrived. He was contacted later that day and, at about 2pm, attended an OPP detachment and gave a statement to PC Gomes.

(c) The Police Investigation

(i) PC Scott Hearnden

[11] Scot Hearnden, a veteran OPP officer, was dispatched to a motor vehicle collision on the southbound 400 at 5:41am on March 23, 2014. Approaching from the north, he first observed a vehicle on the left shoulder. Several hundred metres south, he noticed a second vehicle, a BMW SUV, against the guardrail on the right side of the six-lane stretch of highway. The BMW had suffered severe damage to its front-end and left side. Its front axle appeared broken and the right front tire was hanging off the axle.

[12] Hearnden approached two black men standing near the BMW and asked who was driving. In response, the man Hearnden ultimately identified as the defendant raised his hand. The second man pointed to the same man. The defendant produced his driver's licence on demand. He indicated that his shoulder was sore and asked the second man to retrieve the ownership and insurance papers from inside the BMW, which the second man did. The officer, from a distance of about three feet, asked the defendant what happened. The defendant replied that someone had hit his car. There were, says Hearnden, no apparent communication or comprehension difficulties. At 5:56am, Hearnden generally cautioned the defendant that charges may or many not follow his investigation of the collision. The defendant then sat in an attending tow truck while they awaited the arrival of EMS personnel. The defendant had no apparent difficulty walking to or getting into the tow truck.

[13] EMS arrived at 6:20am. The defendant got out of the tow truck and "walked without trouble" to the ambulance. Hearnden joined two paramedics and the defendant in the ambulance. The defendant sat in a jump seat in front of the stretcher while Hearnden, who was closest to him, and one or both paramedics sat on a bench. For the first time, the officer detected an odour of alcohol coming from the defendant. He returned to his cruiser, collected his approved screening device (ASD), returned to the ambulance and read the ASD demand to the defendant at 6:24am. The officer did not ask the defendant if he had consumed any alcohol. His grounds for the demand, as he articulated them, were the odour of alcohol and the motor vehicle collision. He made no express mention of the defendant being the driver.

[14] The defendant did not acknowledge the demand or otherwise respond. Hearnden reread the ASD demand. Again, there was no verbal response. The defendant, rather, slumped forward and reclined or fell to the floor in front of the jump seat.

[15] In Hearnden's opinion, the defendant was "pretending to be injured" so he could ignore what the officer was saying and thereby avoid having to conduct the ASD procedure. He did not afford the defendant a "last chance" warning or caution him as to the legal consequences of failing to comply with an ASD demand. At 6:29am, Hearnden said to the defendant: "I am now charging you with refusing ASD demand". As he had not arrested the defendant, he did not then read him his Charter rights to counsel or otherwise caution him. Again, there was no response from the defendant. The paramedics unsuccessfully tried to get the defendant off the floor. PC Gomes entered the EMS ambulance at some point and, at the paramedics' direction, he and Hearnden tried to lift the defendant onto the stretcher. In Hearnden's opinion, the defendant "played dead". He was "very rigid" and it took ten to fifteen seconds before the two officers could get him onto the stretcher.

[16] The defendant remained passive until placed on the gurney. He then became "very combative", pushing away the paramedics. The two officers had to restrain the defendant who, throughout, said nothing. The ambulance left the scene for the hospital at 6:40am. Hearnden then spoke with PC Gomes about the incident but he could not recall the content of their conversation. He attended at the hospital and served the defendant with court-related papers with respect to charges of both dangerous driving and refusing an ASD demand. He never formally arrested the defendant.

(ii) PC Victor Gomes

[17] Gomes has been employed by the OPP for more than 12 years. He was dispatched to the scene of the accident where he parked near the damaged Nissan at 5:54am. Emergency crews were already attending to the driver who, Gomes determined, had not recently consumed alcohol.

[18] Gomes prepared a Motor Vehicle Accident Report. Based on his inspection of skid marks on the southbound 400 and the damage to the two vehicles, he concluded that the front left side of the BMW struck the right passenger side of the Nissan, causing both vehicles to veer east, across three lanes of traffic, and collide with the cement median to the left that separated northbound and southbound traffic. On Gomes' reconstruction, the Nissan came to rest against this median while the BMW bounced off, re-crossed all six lanes of the 400 in a westerly direction, and ended up on the western shoulder and ditch area of the highway. The BMW had extensive damage, mainly to the passenger side and some to the front end.

[19] Apart from the skid marks, Gomes' conclusion that the BMW had hit and bounced off the centre median before crossing the entire width of the highway was based on three factors: heavy damage to the passenger side of the BMW; what he took to be BMW debris in the centre median area; and his brief roadside phone conversation with the civilian witness Pickering, during which Pickering told him the BMW had blown past him and that he believed it had also hit the centre median. Gomes had never been trained in accident reconstruction, nor had he ever been qualified as an expert in tendering such evidence. He agreed that there was debris in Lane 3, but he had been unable to examine it as only Lanes 1 and 2 were closed during the OPP investigation. He also had not compared the skid marks he had examined with the tires mounted on the BMW.

[20] Gomes entered the ambulance near the BMW at 6:26am. The defendant was lying on the floor. His eyes were closed. Gomes could smell an odour of alcohol on the defendant's breath that was so strong it appeared to be "coming from the pores of his body". Other than heavy breathing, the defendant was unresponsive to repeated requests that he get up. At the paramedics' request, the two officers tried to lift the defendant onto the gurney. According to Gomes, the defendant kept his arms tightly by his sides and "played dead". Once finally on the gurney, the paramedics asked the officers to restrain the defendant, which they did. The defendant "tensed up" and resisted the officers. In Gomes' opinion, the defendant "was faking the whole time".

[21] Gomes formed grounds to believe the defendant had been driving dangerously after his roadside phone conversation with Pickering. He conveyed his opinion and its basis to Hearnden, the officer in charge, before Hearnden left the scene to attend on the defendant at the hospital. Gomes had no note of his roadside phone conversation with Pickering or of then sharing the information he received with Hearnden. His only notation of speaking to Pickering by phone was when he called him at 1:40pm that day to arrange his attendance at the detachment in order to provide a statement.

[22] Gomes was not present when the ASD demands were read to the defendant. Nor did he attend at the hospital.

C. Analysis

(a) Introduction

[23] The evidence of dangerous driving is circumstantial: civilian testimony of speeding and an accident and police evidence from which it can reasonably be inferred that that the defendant drove one of the damaged cars and had earlier consumed alcohol. Without more, says the defence, the offence of dangerous driving is not made out.

[24] The police accounts of the defendant's unresponsiveness to the ASD demands make up the prosecution's case on the "refuse" charge. Here, the defence position is that the demand was not legally valid and, in the more vigorously pressed alternative, that neither the physical or mental elements of the offence have been adequately established.

(b) Dangerous Driving

(i) The Governing Legal Principles

[25] Negligence is a long-settled basis for fault-finding in civil, regulatory and criminal law. It rests on recognition of a duty of care arising in certain situations or relationships and the imposition of liability for departures from the appropriate standard of care – that, in civil law, of the reasonably prudent person. "Simple" negligence leading to adverse consequences affords a venerable foundation for finding compensable tortious conduct. In essence, the same objective approach to the determination of negligence applies to regulatory offences such as "careless driving" – whether or not resulting in any material damage or injury.

[26] The importation of objective fault-finding into the criminal law context mandates a stricter or more demanding construct of negligence than that that which obtains in a civil or regulatory setting. As said by Cromwell J. for a unanimous Supreme Court in R. v. Roy (2012), 2012 SCC 26, 281 C.C.C. (3d) 433 (a case addressing the negligence-based criminal offence of, as here, dangerous driving), "Giving careful attention to the fault element of the offence is essential if we are to avoid making criminals out of the merely careless" (at para. 2). The rationale for an elevated standard of fault flows from both constitutional obligations imposed by s. 7 of the Charter and the principle of restraint as applied to the construction and application of the criminal law. The distinction impacts on both the physical and mental elements of crimes rooted in negligence. Again addressing the offence of dangerous driving, the Supreme Court in R. v. Beatty (2008), 2008 SCC 5, 228 C.C.C. (3d) 225, observed that the proper approach must be one in "accord with fundamental principles of criminal justice". At paras. 6-8, the Court explained:

Unquestionably, conduct which constitutes a departure from the norm expected of a reasonably prudent person forms the basis of both civil and penal negligence. However, it is important not to conflate the civil standard of negligence with the test for penal negligence. … Fundamental principles of criminal justice require that the law on penal negligence concern itself not only with conduct that deviates from the norm, which establishes the actus reus of the offence, but with the offender's mental state. … Moreover, where liability for penal negligence includes potential imprisonment, as [does dangerous driving] …, the distinction between civil and penal negligence acquires a constitutional dimension.

The modified objective test … remains the appropriate test to determine the requisite mens rea for negligence-based criminal offences. … [T]his test for penal negligence "modifies" the purely objective norm for determining civil negligence … in two important respects. First, there must be a "marked departure" from the civil norm in the circumstances of the case. … It is only when the conduct meets the higher threshold that the court may find, on the basis of that conduct alone, a blameworthy state of mind.

Second, unlike the test for civil negligence …, the modified objective test for penal negligence cannot ignore the actual mental state of the accused. … Hence allowances are made for defences such as incapacity and mistake of fact. This is necessary to ensure compliance with the fundamental principle of criminal justice that the innocent not be punished. [Emphasis in original.]

[27] The yardstick of a "marked" (as opposed to "mere") departure from the appropriate standard of care is the constitutionally compliant floor for any claim of criminal liability founded on negligence. This follows not only from R. v. Beatty, supra, but a consistent line of Supreme Court authority stretching back more than two decades. (See, for example, R. v. Gosset (1993), 83 C.C.C. (3d) 494, R. v. Finlay (1993), 83 C.C.C. (3d) 513, and R. v. Gunning (2005), 2005 SCC 27, 196 C.C.C. (3d) 123.) Indeed, in R. v. Roy, supra, at para. 38, the Supreme Court plainly asserted that "marked departure … is the minimum fault requirement" in criminal offences dependent on proof of negligence.

[28] The Supreme Court has several times emphasized that it is a mistake to focus on the consequences of the impugned driving or on its dangerousness alone in assessing culpability. Addressing the test of "marked departure" in R. v. Beatty, supra, at para. 49, Charron J., on behalf of the majority, wrote:

If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need to pursue the analysis. The offence will not have been made out.

(The opinions of McLachlin C.J., at para. 66, and Fish, J. at para. 88, are to like effect.) The Supreme Court unanimously reaffirmed this principle in R. v. Roy, supra, at paras. 42 and 46, a further appeal arising from a dangerous driving conviction:

Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances … . In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.

Said again, a conviction for dangerous driving only lies where there is a "marked departure" from the legally defined norm.

[29] The Supreme Court very recently re-endorsed the same principles in R. v. Hecimovic, 2015 SCC 54, in which the majority dismissed an accused's appeal from convictions entered by the British Columbia Court of Appeal for two counts of dangerous driving, "substantially for the reasons of Willcock J.A.". Those reasons, reported at (2014), 2014 BCCA 483, 317 C.C.C. (3d) 503, include, at paras. 52-53 and 59-61:

The actus reus of the offence of dangerous driving, described by s. 249 of the Criminal Code, is operating a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances. …

… Mo[st] commonly, the offence will be said to have been proven by imputing or attributing the failure to exercise the requisite degree of care to the task of driving by an objective analysis of the accused's conduct.

The [Supreme] Court elaborated on the requisite mens rea at para. 48 of Beatty [supra] as follows:

… [W]hile proof of subjective mens rea will clearly suffice, it is not essential. In the case of negligence-based offences such as this one, doing the proscribed act with the absence of the appropriate mental state of care may instead suffice to constitute the requisite fault. …

The Court in Beatty unanimously held that a momentary lapse of attention without more cannot establish the actus reus and mens rea of the offence of dangerous driving, also noted in Roy [supra] at paras. 26 and 42.

The principles in Beatty are reiterated and summarized at a number of points in the unanimous judgment of the Court in Roy. At para. 28, the [Supreme] Court states:

…The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm.

And, as I shall have cause to further reiterate, it is the manner, not the consequences, of the driving that is the subject of the exercise.

(ii) Applying the Law

[30] A serious accident led to the defendant being charged with the offence of dangerous driving. The accident was unobserved. It happened very quickly. Two vehicles – the defendant's and another – were severely damaged, likely resulting from a collision between them.

[31] One officer, Gomes, developed a theory as to the dynamics of the accident. If accepted, it effectively faults the defendant for its occurrence. Gomes, however, had no training in accident reconstruction. He has never been qualified as an expert in this field of endeavour. His theory is largely based on information he says he received from an independent witness, Pickering, who neither testified as to the critical observation (that both the Nissan and the BMW careened across several lanes of traffic in front of his southbound vehicle) or of speaking to Gomes at the time the officer says he gathered this information from him. Further, Gomes has no note of his phone call with Pickering or of conveying the information to the officer in charge of the investigation. In the end, Crown counsel fairly allows that Gomes' reconstruction is likely mistaken, and eschews any reliance on it. Her position, simply, is that the defendant's excessively high rate of speed, after having consumed alcohol, amounts to dangerous driving in all the surrounding circumstances, including navigating a multi-lane highway while it was still dark.

[32] Without more potentially inculpatory evidence about the actual circumstances of the accident or the defendant's condition, I cannot accept the Crown's invitation to find him guilty of the offence of dangerous driving. I have no difficulty inferring the defendant had consumed alcohol. However, I have no idea as to when or, as no breath tests were ultimately conducted, the amount in his system. Further, the police evidence as to the defendant's conduct and demeanour do not suggest any indicia of alcohol-induced impairment. (Indeed, the defendant was never charged with impaired operation of a motor vehicle.) Speeding, the conspicuously errant "manner" of driving on which the Crown relies, is rarely itself sufficient to establish dangerous driving, and certainly not on a six-lane roadway with only light traffic. Further, the occasion of the collision and the gravity of the damage that followed do not add anything of probative value to the Crown's case. As said of the presenting facts by the Supreme Court in R. v. Anderson, [1990] 1 S.C.R. 265, at p. 273: "If driving and drinking and running a red light was not a marked departure from the standard, it did not become so because a collision occurred."

[33] Here, the defendant was driving in good weather on a dry six-lane highway at an hour when the traffic conditions were described as light. There is no evidence of delinquent driving – weaving through traffic, straddling lanes, abrupt speed changes or crowding other vehicles, for example – other than speeding. Whether or not Pickering's precise estimate of the defendant's velocity is accurate, it is not seriously disputed that the defendant was driving at an excessive rate of speed or that he had at some point that evening consumed alcohol. What remain uncertain, however, are the proportion of alcohol in his bloodstream and, most importantly, the cause of the collision. Did the defendant leave his lane? Did the driver of the Nissan veer from his? Did a third vehicle somehow intervene? In short, based on the absence of evidence other than that pertaining to speeding and the consumption of some alcohol (although not enough to render the defendant impaired), I am not satisfied that the actus reus is made out – that is, that there was such "marked departure" from the appropriate standard of care as to warrant a finding of guilt for the offence of dangerous driving. An acquittal necessarily follows on this count.

(c) Refusal to Comply with a Roadside Breath Demand

(i) Introduction

[34] Defence resistance to the second charge (that of refusing to provide a breath sample) is two-pronged: first, there was no valid demand; and second, and in the alternative, the physical and mental elements of the offence are not made out. The latter point commands some attention to the difference between failing to comply with a lawful demand and, as here prosecuted, an alleged refusal to do so.

(ii) The Lawfulness of the Demand

[35] Approximately a half-hour passed between the times Prov. Cst. Hearnden first encountered the defendant and when he first noticed the odour of alcohol coming from him. Defence counsel fairly concedes that the ASD demand – one that need be premised on no more than reasonable suspicion – was lawful if I am satisfied that the officer did detect such odour.

[36] In short, I am so satisfied. Hearnden did not notice the smell of alcohol when he dealt with the defendant outside his vehicle by the side of the highway on an open stretch of the 400. He did notice it when he and the defendant were confined in the small area in the rear of the ambulance. Gomes made a similar olfactory observation once he too joined the defendant in the back of the ambulance. I fully accept the officers' evidence on this point. Combined with the defendant's unchallenged admission that he was the driver of the BMW and the reasonable belief that the BMW had recently been involved in a motor vehicle accident, there is no basis to doubt the lawfulness of Hearnden's ASD demand.

(iii) The Charge of Refusal

[37] Sub-section 254(5) of the Code reads: "Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section". The authorized demands include the provision of a breath sample by way of an approved screening device, or ASD, under sub-s. 254(2). These provisions contemplate two means by which the same offence may be committed: by failing to comply with the demand or, as here alleged, by refusing to do so. The defence of "reasonable excuse" is not advanced by the defendant and, in any event, finds no purchase in the evidence.

[38] A failure to comply with a lawful demand comprehends a refusal. However, the two modalities have different physical attributes, and it is the latter, a refusal, that is here the basis of the Crown theory of culpability. The distinction between the two modes of commission can be difficult to delineate. In practice, multiple ineffectual attempts to provide an adequate ASD sample, whether or not patently feigned, usually result in a charge of failing to comply with a demand. On the other hand, declining or repudiating a demand is generally treated as a refusal. While, each case very much turns on its own facts, those premised on an allegation of refusal tend to focus on whether the conduct of the charged driver unambiguously amounts to a rejection or repudiation of an officer's demand.

[39] If the requisite physical elements of a failure or refusal are satisfied, there remains the question of an accused's mens rea. The jurisprudence, at least in Ontario, is here more than somewhat divided. On one side, there are those cases that follow the reasoning of the Saskatchewan Court of Appeal in R. v. Lewko (2002), 2002 SKCA 121, 169 C.C.C. (3d) 359. The Court, having held, at para. 9, that "the Crown must prove a failure or refusal" to produce the requested sample, concluded by imposing a parallel burden on the Crown to "prove that the defendant intended to produce that failure". More recently, in R. v. Porter, 2012 ONSC 3504, Code J. departed from the Lewko notion of intentionality, holding, at para. 34, that "knowledge or recklessness as to the doing of the prohibited act is sufficient mens rea" – an approach that has its own body of adherents. To be clear, in this debate I have earlier publically expressed my allegiance to the Lewko position: R. v. Slater, 2015 ONCJ 155. However, the ultimately correct answer is, in my estimation, of no significant moment to the proper disposition of the instant case.

[40] "In my view", as I said in Slater, at para. 25, "a refusal is an act of defiance. A failure is one of volitional non-compliance". Accepting that the Crown must prove intentionality, it is difficult to infer other than an intention to refuse from a direct and unequivocal act – be it verbal or physical – of refusal in the absence of contradictory evidence. Proving an intention to fail from ineffectual exhalation into an ASD is usually a more difficult bridge to cross. "Failure" cases often turn on a careful examination and weighing of the nature of the police instructions, the conduct of the testing, and behavioural cues bearing on whether an accused was or was not "blowing" properly. (See, for example, the factors and authorities canvassed by Justice J.F. Kenkel in Impaired Driving in Canada, 4th Ed., Markham, Ont: LexisNexis, 2015, at p. 225, on the question of whether "a failure to provide a sample was wilful".) Refusal cases, on the other hand, usually depend on the direct evidence of an attending officer as to the accused's express repudiation of the officer's demand. "Screw off", "No way I'm blowing" and "Not a chance" are typical responses recounted in "refusal" prosecutions. Unlike those that rely on an allegation of "failure", multiple demands or opportunities or "last chance" warnings have little if any bearing on the determination of cases predicated on "refusal". Absent some reason, founded in the evidence, to doubt the occurrence, sincerity or connotation of the response, "no" can generally be taken to both mean and be intended to mean exactly that – a refusal to comply.

[41] The focus in "failure" cases is frequently on the mental element (did the defendant intend to fail or defeat or evade the testing procedure?) while "refuse" cases are generally more concerned with satisfaction of the physical properties of the offence. The case before me reflects this division; the evidentiary challenge here rests with the actus reus. The defendant did not say, "no". Indeed, he said nothing at all in response to the two roadside screening demands made of him. However, as said in R. v. Bijelic, [2008] O.J. 1911 (Ont. S.C.), at para. 30, "[r]efusal to comply may be quite express or may logically be inferred from the totality of the detained driver's behaviour".

[42] This case clearly falls into the latter of these two categories. A refusal, if such it was, requires a close examination of the defendant's conduct. Here, the defendant gave no indication of impairment. He spoke with Prov. Cst. Hearnden when first engaged at roadside, identified himself as the driver of the BMW and produced his driver's licence on demand. He walked to and entered a tow truck without noticeable difficulty and, when EMS arrived, walked unassisted to and into the ambulance. Other than a sore shoulder, he had no complaints. Nor is there evidence that the defendant was hostile or even uncooperative until the ASD demand was first made of him. He then became silent, unresponsive and physically constrained. When asked a second time, he slumped forward, slid onto the ground and adopted a posture of rigid passivity. He did not respond to the requests of the police and paramedics to get up. Both officers commented on the defendant's physical resistance, his locked arms, his apparent thwarting of their efforts to elevate him to the gurney. They testified to their belief that the defendant was "pretending" or "playing dead". No evidence contradicts or even qualifies that tendered through the two OPP officers.

[43] This is one of those relatively rare cases of refusal by conduct. I am satisfied beyond reasonable doubt that the defendant understood the demand and refused to comply with it by physically locking down. His repeated non-responsiveness amounts to refusal. Read in the context of the entire sequence of events, I have no difficulty inferring from his conduct that the defendant intended to refuse to comply with Hearnden's demand. In the result, the offence of refusing to comply with a lawful breath demand is made out and I find the defendant guilty of that offence.

D. Conclusion

[44] Consistent with these reasons, the defendant is found not guilty of the offence of dangerous driving but guilty of the offence of refusing to comply with a lawful demand for a sample of his breath.

Released on December 7, 2015

Justice Melvyn Green