Court File and Parties

Court File No.: Central East - Newmarket 14-00963 Date: 2015-02-04 Ontario Court of Justice

Between: Her Majesty the Queen — and — Stanislav Andrievsky

Before: Justice P.N. Bourque

Counsel:

• S. Kumarasen, for the Crown
• D. Reeve, for the accused, Stanislav Andrievsky

Judgment

Released on February 4, 2015

BOURQUE J.:

Overview

[1] The defendant was stopped at a RIDE stop in York Region on the morning of January 30, 2014. The subsequent failure to provide an adequate sample in the approved screening device ("ASD") has led to a charge of refusal to provide the sample into the ASD device.

Evidence of Constable Travis Chamberlain

[2] Travis Chamberlain was a Constable with the York Regional Police with just more than 2 years' experience when he and several other officers set up a RIDE program in York Region and began to stop vehicles in the early morning hours of January 30, 2014. He had been involved in about a dozen other RIDE programs up to that time and he had been involved in about a half-dozen drinking and driving investigations.

[3] He stated that the defendant was driving alone in his car and was stopped by him. The officer stated that upon speaking to the defendant (the officer said that he did not put his head right into the vehicle), he smelt the odour of an alcoholic beverage. The defendant, upon questioning, denied he had any alcohol that evening. The officer stated that he continued to smell the alcohol from his mouth and he made an ASD demand. In cross-examination, the officer admitted he did not put into his notes that the alcohol smell was coming from the mouth, only that the odour was coming from him. The officer felt he had a reasonable suspicion that the defendant had alcohol in his body and had been operating a motor vehicle.

[4] The officer testified that the ASD device was from another officer's cruiser at the scene and he was informed by that officer that it had been tested by him at the start of his shift. The officer also saw a sticker on the Alcotest 7810 GLC that it had been calibrated on January 19, 2014. The officer said he thought the device was in good working order.

[5] After the breath demand, the officer stated that he gave the defendant a mouthpiece in a plastic wrapper, which the defendant unsealed and placed upon the opening of the ASD. The officer instructed him how to blow and the officer stated that for the first 5 attempts, the defendant did not blow in, but was sucking out from the device as he could see his cheeks and he heard a "sucking sound." The officer stated that after 5 attempts, the officer got a fresh mouthpiece for himself, demonstrated and the device returned a reading of "0". The officer then instructed the defendant to place his original mouthpiece back into the device and the defendant made about 5 further attempts. The officer stated that, for most of these attempts, the defendant was no longer sucking but he could see the defendant's lip covering part of the mouthpiece and heard the device make a tone for a very short time and then the defendant would stop blowing. The officer then explained that he would be charged with a refusal, and told the defendant that he would have two more chances. In any event the defendant had three more attempts but did not provide a sample. The officer did not make specific notes of each and every attempt and, in fact, stated that the defendant had "about 13 attempts." The officer then arrested the defendant and placed him in his cruiser.

[6] It was pointed out that the officer had forgotten to turn on his video recorder for any of the events which happened outside of the cruiser, including all of the attempts. The officer, after placing the defendant inside the cruiser, made no further notations of any smell of alcohol, and did not make any further notations of any signs of impairment (he had noted none previously).

[7] The officer gave the defendant his rights to counsel and caution and then, for a reason he could not fully explain, read the defendant the breath demand (without having any reasonable and probable grounds that the defendant was impaired or had more than 80 milligrams of alcohol in his body) and transported the defendant to the station for a breathalyzer test. At the station, he spoke to a Duty Sergeant on the radio who instructed him that he could not demand a breath test and then took the defendant to his home.

Has the Crown Proven Beyond a Reasonable Doubt That the Device Used by the Officer Was an Approved Screening Device?

[8] The information alleges that the defendant failed to comply with a demand to provide such sample of breath into an approved screening device. The defence points to the evidence of the police officer who describes that he had an approved screening device and said that it was an "Alcotest 7810 GLC." The defence further points out that there is no such approved device as described. There is an Alcotest 7410 GLC and a Drager Alcotest 6810, but not the device actually described. I note that the totality of the officer's evidence is that there was a calibration sticker on the device and that they are calibrated every two weeks. He also stated that the device came from another officer who stated he had tested it. I also note that the officer specifically described it as an ASD or approved screening device. I believe that I can look at the totality of the evidence to decide whether the Crown has proven beyond a reasonable doubt that the device was indeed an approved screening device in accordance with section 254(2) of the Criminal Code. Upon review of all of the evidence, I am satisfied that the device used was indeed an approved screening device and the officer's misdescription was anything other than an error (I will discuss other errors from this officer below). I rely upon the cases of R. v. Leggett, [2008] O.J. No. 3607 and R. v. Latulipe, [2005] O.J. No. 4521 in support of the proposition that other evidence can support the finding that the device was an approved screening device where evidence of the specific device was incorrect in some respect.

Has the Crown Proved Beyond a Reasonable Doubt That the Approved Screening Device Was Operating Properly?

[9] Where there is an unequivocal refusal to take the roadside test, there is no requirement that the Crown prove that the device was functioning. Whereas in our case, the charge is a failure to provide a sample and there is evidence of many attempts (at least 13 in our case) then there is an onus on the Crown to prove beyond a reasonable doubt that the device was operating properly. The officer tested the device partway through (after 5 attempts) and he was able to provide a sufficient sample. There is no evidence that the officer did not have a proper working knowledge of the functioning and use of the device. The defence, however, states that since the officer did not take any specific steps to see that the mouthpiece used by the defendant was free of obstruction, then I should be left with a reasonable doubt as to whether the mens rea of the offence has been proven; that is, that the defendant intentionally did not provide a sufficient sample. He relies upon the case of R. v. Goulet where on summary conviction appeal, the Court did not disturb a trial judge's finding that "I have no evidence before me that the mouthpiece was, in fact, in order. None. Maybe it was the mouthpiece. How do I know? Not guilty."

[10] I believe in our case that while the officer did not take specific steps to check for obstructions in the defendant's mouthpiece, I can rely upon the other evidence to be satisfied beyond a reasonable doubt that there were no obstructions. They are:

(a) the mouthpiece was taken by the defendant from a sealed package;

(b) the officer heard on several occasions a sucking sound;

(c) the officer on at least two of the later occasions heard the sound from the device indicating that a sufficient flow of air was moving into the machine. The failure to provide a sufficient sample was due to the minimal duration of the blow.

[11] I am satisfied beyond a reasonable doubt that the failure to provide a sufficient sample was not due to any obstruction in the mouthpiece.

Did the Officer Make a Valid Demand and Has the Crown Proven Beyond a Reasonable Doubt That the Defendant Intentionally Failed to Provide a Suitable Sample of His Breath Into the ASD?

[12] I am dealing with both of these items together because they both rely upon the ability of the officer to make the necessary observations on both issues.

[13] With regard to the issue of the validity of the demand, it turns upon the evidence presented which would give an officer a "reasonable suspicion" that the defendant had alcohol in his body. (I am of the view that this analysis in the context of a failure to provide a suitable sample into the ASD does not require a Charter application. As stated in R. v. Misasi, [1993] O.J. No. 150 "...where a demand is made outside the ambit of s. 254(2), a motorist is not obliged to comply with it. Since no offence is committed by a refusal to comply, no Charter relief is necessary with respect to that offence.").

[14] In our case, there were no signs whatsoever of any impairment, neither any physical symptoms or any driving. There was no admission of any drinking, and in fact there was a denial. There were no signs of belligerence or lack of cooperation. The only fact relied upon was the officer's statements about the smell of alcohol. Most importantly, the issue is whether there was a smell of alcohol coming from the mouth of the defendant. The officer said first that there was a smell of alcohol but that it was from the car. There was a subsequent statement that it was coming from the defendant and in his evidence in-chief he stated it was from the mouth. In cross-examination it was noted he never put in his notes that there was a smell of alcohol coming from the mouth of the defendant.

[15] In fact, the officer stated that it was not his practice to initially put his head right into the car but to stay back from doing so (for officer safety perhaps). I also note that after the arrest and the placing of the defendant into the back of his cruiser, he admitted that at no time did he smell alcohol, and he was in the vehicle with the defendant for at least 45 minutes. I accept that if I can find that the officer smelled an odour of alcohol coming from the mouth of the defendant, then that could be sufficient evidence to provide the officer with a reasonable suspicion of alcohol in the body of the defendant. I am, however, for the reasons stated above and for other subsequent difficulties in the officer's evidence, unable to make that finding of fact.

[16] Some other aspects of the officer's evidence give me concern. His description of the procedures surrounding the various attempts to blow was not well documented, and I also note that he forgot to engage the video in his car, which would have been the best evidence of the interaction at the front of the police car. Of great concern is the fact that upon the arrest of the defendant, for the refusal, he also made a breath demand when he admitted that he had absolutely no grounds to make such a demand. While it is post-offence conduct by the officer, it does impact upon his understanding of his duties and responsibilities in the context of a drinking and driving investigation.

[17] As such (and while there was no section 9 application under the Charter for the continued detention beyond what was necessary in this case) it supports my doubts about his "reasonable suspicion" of alcohol in the defendant's body.

[18] With regard to the evidence of the officer concerning his actions surrounding the actual taking of the samples, it suffers from the deficiencies noted above. I am particularly concerned about the lack of specific note taking concerning the taking of the various samples. The officer used a lot of generalizations to describe several of the attempts. I also note there was little to no evidence of the conversations between the officer and the defendant as this was progressing. While I had no contrary evidence from the defendant about the sequence of events, I cannot say that I am satisfied by all of the descriptions made by the officer, especially since they are so generalized. I contrast this with the recent case of R. v. Soares, 2014 ONCJ 668, where I commented favourably on the evidence of the officer which was supported by specific notations of each specific attempt and the observations made and conversation between the officer and the defendant.

[19] To found a conviction for a failure to provide a necessary sample, I must be convinced beyond a reasonable doubt that the defendant intended not to provide such sufficient samples. In R. v. Soucy, 2014 ONCJ 497, Paciocco J. reviewed extensively the jurisprudence about the mens rea for this offence. He concluded:

[50] If the principles of mens rea are properly applied in my view, the basic mens rea of intention that is to be read into section 254(5) requires, at its highest, no more than that the accused must refuse or fail "on purpose."

[20] To make that finding, I must be satisfied that the events transpired in the fashion as stated by the officer. My concerns about his observations, as they were in my opinion, sparsely reflected in his notes, does not give me the confidence to say that I am satisfied beyond a reasonable doubt that his failure to provide a sufficient sample was "on purpose" and thus subject to criminal sanction.

Conclusion

[21] Having made the findings noted above, I find the defendant not guilty.

Signed: "Justice P.N. Bourque"

Released: February 4, 2015