Court File and Parties
Ontario Court of Justice
Date: 2015-12-10
Court File No.: Halton 2724/13
Between:
Her Majesty the Queen
— and —
Peter Basciano
Before: Justice Lesley M. Baldwin
Heard on: March 17, 2015 and June 11, 2015
Reasons for Judgment released on: December 10, 2015
Counsel:
- Ms. A. Woolf — counsel for the Crown
- Mr. B. Starkman — counsel for the defendant Peter Basciano
BALDWIN J.:
Introduction
[1] Peter Basciano is charged with failing to comply with an ASD demand contrary to s. 254(2) of the Criminal Code on September 4th, 2013, in Oakville. The Crown proceeded summarily.
[2] Identity, jurisdiction and date of offence were not in issue.
[3] At the end of the trial the issues to be determined were as follows:
- Did the accused unequivocally refuse to provide an ASD breath sample;
- After the accused was arrested, did he ask for another chance to blow;
- If he did ask for another chance to blow, are the police legally required to give him another opportunity to provide a suitable sample?
Summary of the Testimony of Officer Chris Brown
[4] He was working in a uniformed capacity in the City of Oakville during the evening of September 4th, 2013. He received a phone call from an employee at the Glen Abbey golf course that several golfers were leaving and many of them had been drinking heavily that day.
[5] He positioned his cruiser at the entrance off of Dorval Drive in Oakville to set up a RIDE program at the exit from the golf course.
[6] At approximately 9:55 p.m., the accused pulled up in his truck. He was the driver and lone occupant.
[7] Officer Brown asked the accused if he had consumed any alcoholic beverages that evening.
[8] The accused first advised that he did not consume any and then immediately corrected himself and advised he had one alcoholic beverage.
[9] The Officer was approximately two feet away from the accused when he detected an odour of an alcoholic beverage coming from his mouth.
[10] At 9:56 p.m., Officer Brown formed the reasonable suspicion that the accused had alcohol in his blood. At that time he read the standard ASD demand from his police-issued notebook.
[11] Officer Brown testified that the accused understood the demand. He asked the accused to step out of his vehicle. Officer Brown had an ASD with him which he had tested earlier at the station.
[12] Officer Brown explained how to provide a suitable sample to the accused. He explained that it was a very easy process, like blowing up a balloon and that even people with asthma are able to provide a sample.
[13] The accused appeared to understand the instructions and had no questions about the procedure.
[14] A new mouthpiece was put on the device and the accused was given his first opportunity to provide a suitable sample.
1st Attempt
[15] The accused was moving his head down and blowing a stream of air at a downward angle. He also had puffy cheeks. The Officer could hear air blowing into the device, but it was not a steady or strong blow of air. Nothing registered on the ASD. Officer Brown told the accused that he was failing to provide a sample. Officer Brown again explained how to provide a suitable sample.
2nd Attempt
[16] The accused again puffed out his cheeks and did not blow a steady flow of air into the ASD. The ASD did not register a suitable sample.
[17] During this failed second attempt, Officer Brown advised the accused that failing to provide a sample is the same as refusing to provide a sample and would result in a criminal charge.
3rd Attempt
[18] This attempt also resulted in an unsuitable sample. Officer Brown testified that it was the same as the other two attempts. The accused puffed out his cheeks and did not provide a steady flow of air into the device.
4th Attempt
[19] Officer Brown took out the mouthpiece and inserted a new one. He used the device in front of the accused and again instructed him on how to properly provide a sample. The device registered a zero BAC with Officer Brown's breath.
[20] A new mouthpiece was inserted for the 4th attempt to provide a suitable sample.
[21] At 9:58 p.m., the fourth attempt was similar to the others. The accused puffed out his cheeks and did not provide a steady flow of air into the device.
5th Attempt
[22] Officer Brown advised the accused again that he was not blowing a steady flow of air and that the ASD was not obtaining a reading from him.
[23] Officer Brown again stated that failing to provide a sample was the same as refusing to provide a sample and would result in the same criminal charge. The accused was told that he would be arrested if he was unable to provide a sample.
[24] The 5th attempt was the same as the others. The accused puffed out his cheeks and did not blow a steady stream of air into the device.
6th Attempt
[25] Again there was no steady flow of air into the device. The ASD did not register a reading.
[26] Officer Brown again stated that if he could not provide a suitable sample he would be arrested.
[27] At this time, the accused asked if could go back to the club house and get a ride with someone else. Officer Brown said no, and demanded that he provide another sample. He told the accused that there were no other options.
[28] The accused response was "No, not right now". (Transcript March 17, 2015 p. 13)
[29] Officer Brown asked the accused if he was refusing to provide a sample. The accused replied "I'm not providing a sample". (p. 13)
[30] Officer Brown told him again that he would be arrested and the accused again said that he was not going to provide a sample. (p. 13)
[31] At 10:05 p.m. the accused was placed under arrest for refusing to provide a breath sample. The accused was asked if he understood and he replied "yes". (p. 14)
[32] The accused was searched and placed in the back of Officer Brown's cruiser.
[33] The accused was very quiet in the back of the cruiser. Officer Brown testified that the accused did not make any subsequent offers to provide a sample.
[34] Officer Brown testified that the ASD was in proper working order and that he had been trained in its proper use. (pp. 16 and 17)
Cross-Examination
[35] Officer Brown did ask the accused what alcohol he had consumed and when. The accused did not respond to those questions. Officer Brown testified that he did not make a note of these questions and no responses. He testified that he has an independent recollection in that regard.
[36] When the accused was asked to step out of his vehicle, Officer Bacon was present to assist.
[37] Officer Brown testified that Officer Bacon is senior to him.
[38] Officer Brown denied that the accused asked for another chance to blow soon after he was arrested.
[39] Officer Brown denied asking Officer Bacon what he should do about that.
[40] Officer Brown denied that Officer Bacon said 'no, he had his chance'. (p. 19)
[41] Officer Brown repeated that the only question the accused asked of him was if he could go back to the club house and get a ride with somebody else, which was before the arrest.
[42] Officer Brown agreed that if the accused did ask for another chance to blow after the arrest, he might have asked the more senior Officer on scene what to do.
[43] Officer Brown testified that after speaking to Duty Counsel back at the station, the accused did not ask for another opportunity to provide a sample. (p. 22)
Summary of the Testimony of Officer David Bacon
[44] Officer Bacon was part of the RIDE program set up at the Glen Abbey golf course.
[45] Officer Bacon walked over to the accused's vehicle as Officer Brown was making the ASD breath demand.
[46] Officer Bacon was present for all the failed attempts.
[47] Officer Bacon observed the accused to puff out his cheeks. He could hear small amounts of air going into the device. Officer Bacon was present when the accused was advised that he would be arrested if he was unable to provide a sample.
[48] Officer Bacon was present when the accused refused to provide a sample.
[49] Officer Bacon testified that he has no knowledge that the accused may have requested to provide a sample after the arrest. If he had been aware of such a request, he would have "absolutely" noted it in his notebook. He has no such note.
Cross-Examination
[50] Officer Bacon did not agree that moments after the arrest, Officer Brown approached him and said, 'He wants to blow again, what should I do?' Officer Bacon did not agree that he told Officer Brown 'no, he's already had his chance'.
[51] Officer Bacon testified that he dealt with towing of the accused's vehicle at the scene. Later back at the station, there was no indication to him that the accused was requesting another opportunity to provide a sample.
Summary of the Testimony of Peter Basciano
[52] He is 52 years of age. He is married and has two children.
[53] He lives in Peterborough and works as a material supplier.
[54] His company was having a golf tournament on September 4th, 2013.
[55] He consumed 3 beers, two-and-a-half hours before he left the tournament.
[56] He was on his way home when he was stopped by the police.
[57] Officer Brown made an ASD breath demand and he was given 6 opportunities to provide a sample.
[58] He was trying to provide a sample that would register 'but not so it would blow over – I was concerned I would blow over'.
[59] He recalls saying 'no, not right now', to the Officer when given another chance to blow.
[60] He accepts Officer Brown's evidence that he refused to provide a sample.
[61] After he was arrested he asked Officer Brown for another chance to blow. Officer Brown spoke to Officer Bacon and he shook his head no.
[62] Officer Brown then said, 'I'm going to arrest you.'
[63] After he had been placed in hand cuffs, he asked for another chance to blow. He asked again back at the station.
[64] 'I had nothing to lose – I wanted a chance to blow under'.
Cross-Examination
[65] He agrees that he lied to Officer Brown when he initially said that he had not been drinking.
[66] Mr. Basciano repeated his evidence that he was concerned that he would blow over.
[67] He agreed that he knew that he had to provide a sample and that he was not blowing hard enough.
[68] He agreed that he feigned 6 attempts and when another demand to provide a sample was made he said 'no, not right now'. Mr. Basciano testified that he wanted more time to consider his options.
[69] He agreed that he made a decision not to provide an adequate sample.
[70] Mr. Basciano testified that he was never told that after a certain amount of tries he would be arrested.
[71] He agreed that he knew that failing to provide a sample was against the law.
Position of the Parties
Defence Position
[72] Mr. Starkman submits that this was not an unequivocal refusal to provide a sample. He submits that the words 'no, not right now' do not equate to an unequivocal refusal. It is submitted that if his client did say that he was not going to provide a sample, then his client just mis-spoke because of the tension of the situation.
[73] Mr. Starkman further submits that the Court should accept the accused's evidence that after his arrest, he made an immediate request to blow again.
[74] It is submitted that the accused's credibility in this regard is enhanced by his testimony that Officer Brown asked the more senior Officer, Officer Bacon, what he should do about that.
[75] It is submitted that courts in other cases have held that this further opportunity should have been provided and/or lead to a reasonable doubt with respect to there being an intentional and unequivocal refusal.
[76] Counsel referred to the following cases in support of his submissions: R. v. Hines, [1998] O.J. No. 5831 (OCJ, General Division); R. v. Chance, [1997] O.J. No. 4939 (OCJ, Prov. Div.); R. v. Persaud, [2005] O.J. No. 129 (OCJ); R. v. Gutierrez, [2001] O.J. No. 3659 (OSCJ); R. v. Moser, [1992] O.J. No. 602 (OCA); R. v. Sajjad, [2007] O.J. No. 2726.
[77] Counsel concedes that his client was playing games with the police. However, because persons subject to ASD demands have to act as their own legal counsel, courts have given them extra "wiggle room" when considering if they should be given another chance to blow upon request.
Crown's Position
[78] The Crown submits that they have established beyond a reasonable doubt that the accused intentionally and clearly refused to provide a sample after 6 feigned attempts to do so.
[79] The Crown submits that based on his own evidence, the accused was trying not to provide a suitable sample because he was concerned he would blow over the legal limit. He testified as well that he knew that it was against the law not to provide a suitable sample.
[80] The Crown submits that the Court should accept the evidence of Officer Brown that the accused was cautioned 4 times before his arrest that he would be arrested for failing to provide a sample before the accused out-right refused.
[81] The Crown submits that the words 'no, not right now' is an unequivocal refusal. The accused did not say give me a minute to think. It is submitted that to testify at trial that that is not what he meant is incredible.
[82] The Crown submits that the Court should accept the testimony of Officers Brown and Bacon that the accused did not ask for another chance to blow after he was arrested.
[83] The Crown submits that even if the Court finds that this request was made, or is left in a state of reasonable doubt on this issue, that there is no requirement in law for this post-arrest chance to be given.
[84] The Crown relies upon the following cases in support of their positions: R. v. Johnson, 1999 BCCA 622, [1999] B.C.J. No. 2488; R. v. Xuan, [2014] O.J. No. 3825 (ONSC); R. v. Kosa, [1992] O.J. No. 2594 (ONCA); R. v. Weare, [2005] O.J. No. 2411 (ONCA); R. v. Leggett, [2005] O.J. No. 3607 (ONSC); R. v. Danychuk, [2004] O.J. No. 615 (ONCA); R. v. Mohammad Tavangari, [2002] O.J. No. 3173 (OCJ); R. v. Furtado, [2004] O.J. No. 6189 (OCJ).
Decision
[85] I have applied the test set out in R. v. W.D. in assessing the reliability and credibility of the witnesses.
[86] I agree with the submissions of the Crown.
Issue #1 — Did the accused unequivocally refuse to provide a sample?
[87] Mr. Basciano unequivocally refused to provide a sample of his breath after his admitted 6 feigned attempts to do so. He refused 3 different times according to the evidence of Officer Brown whose evidence I accept as accurate and true. His testimony on this issue was straightforward and unambiguous.
[88] After the 6 admitted feigned attempts, and three prior cautions that he would be arrested if he failed to provide a sample, Mr. Basciano said "no, not right now" after being told as well that he had no other options.
[89] Officer Brown asked the accused if he was refusing to provide a sample and Mr. Basciano stated "I'm not providing a sample".
[90] Officer Brown told him again that he would be arrested and Mr. Basciano again said that he was not going to provide a sample.
[91] In his evidence at this trial Mr. Basciano agreed that he refused to provide a sample.
[92] I am not left in any reasonable doubt on that issue.
Issue #2 — Did the accused ask for another chance to blow after his arrest?
[93] With respect to whether Mr. Basciano asked if he could be given another opportunity to blow after his arrest, I accept as accurate, reliable and true the evidence of the two Officers. They testified that at no time did Mr. Basciano make this request.
[94] Mr. Basciano's trial evidence was confusing as to when he allegedly made this request.
[95] First, he said that it was after he had been arrested by Officer Brown. Officer Brown then asked Officer Bacon what he should do and Officer Bacon shook his head indicating no.
[96] Then, according to Mr. Basciano, Officer Brown said I am going to arrest you.
[97] Clearly it cannot be both before arrest and after arrest that this exchange between the Officers took place.
[98] Mr. Basciano claims he asked again after he was put in cuffs and again when he was back at the station.
[99] None of this makes any sense given his clear and unequivocal refusal just moments before at the scene. I reject his evidence on this issue.
Issue #3 — Are the police legally required to give another opportunity to provide a sample?
[100] Even if I had accepted his evidence, or was left in a state of reasonable doubt about it, there is no obligation upon the police to provide post arrest opportunities to provide a sample in circumstances such as these.
[101] Every case supplied by defence counsel has distinguishing features.
[102] Examples include the following:
- The arresting officer did not give any cautions or warnings with respect to a failure to provide a suitable sample
- The arresting officer did not indicate that there were no other options or otherwise indicate a last chance
- It was not a verbal refusal to provide a sample case
- There were no feigned attempts prior to the arrest
[103] Every case, of course, turns on its own particular facts, and in this case I am satisfied that Mr. Basciano intentionally refused to provide a sample beyond a reasonable doubt.
[104] Even if he did request at some point after his arrest that he wanted another opportunity to blow, the law is clear that the police are not obliged to provide this. The law requires that drivers upon whom an approved screening demand has been made, must comply immediately with the demand. See: R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 (SCC); R. v. Kitchener, 2012 ONSC 4754, [2012] O.J. No. 3857 (OSCJ) at para 10: "parliament did not legislate 'refuses twice', 'refuses three times', or 'refuses four times', or require that the refusal be followed by a 'last chance', and/or 'after the consequences of the refusal has been explained'."
[105] For these reasons, a finding of guilt is registered.
Released: December 10, 2015
Signed: "Justice Lesley M. Baldwin"