Court File and Parties

Ontario Court of Justice

Date: 2015-12-15

Court File No.: Brampton, 13-10232

Between:

Her Majesty the Queen

— and —

Rajeev George

Before: Justice J. M. Copeland

Heard on: October 14, 2014, December 1, 2014, March 18, 2015, November 23, 2015

Reasons for Judgment released on: December 15, 2015

Counsel:

• R. Rota, P. Quilty — counsel for the Crown
• The defendant Rajeev George — on his own behalf

Judgment

Copeland J.:

[1] Rajeev George is charged with refusing to provide a breath sample, contrary to s. 254(5) of the Criminal Code of Canada.

[2] Mr. George is self-represented. No Charter application was filed in this case. As a result, strictly speaking, the only issue is whether the elements of the offence of refusing to provide a breath sample have been proven beyond a reasonable doubt. However, because Mr. George is self-represented, I have considered the validity of the initial stop, and the validity of the ASD demand as potential s. 8 and 9 Charter issues. The validity of the breath demand (the intoxilyzer demand) could potentially also be a Charter issue; however, since a valid demand is an element of the offence of refusing to provide a breath sample, I deal with it in relation to the elements of the offence.

[3] In addition, late in the trial, it became apparent there was an issue regarding whether Mr. George was strip searched at the police station prior to being taken into the breath room. As previously noted, no Charter notice was filed. As the strip search issue did not crystallize until late in the trial, and I felt that the issue was serious enough that I had a duty to ensure it was explored as a matter of trial fairness, I advised Mr. George and Crown counsel that I would allow the Crown to re-open its case to lead evidence regarding the search, and allow Mr. George to lead further evidence if necessary to respond on issues related to the search.

[4] I address the issues raised in this case in the following order:

1. The legality of initial stop
2. The validity of ASD demand
3. Whether there was a strip search in violation of s. 8 of the Charter
4. If so, should the evidence be excluded under s. 24(2) of the Charter
5. Are elements of offence of refuse breath sample proved beyond a reasonable doubt?

1. The Legality of the Initial Stop

[5] The legality of the initial stop of Mr. George's car turns primarily on the evidence of Cst. Dane Pallet, and the evidence of Mr. George.

[6] Cst. Pallet testified that he based the stop on the manner of driving he observed, and s. 48 of the Highway Traffic Act (the "HTA"). Section 48(1) of the HTA provides that "a police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code."

[7] Cst. Pallet testified that he made the following observations before making the stop of Mr. George's vehicle. Cst. Pallet was in uniform in an unmarked cruiser travelling Northbound on Dixie Road, approaching Steeles Avenue, just before 12:58 a.m. on August 5, 2013. He observed a vehicle (Mr. George's) travelling Southbound in the Northbound lanes of Dixie Road. He observed the vehicle travel over the dirt and gravel median, and back into the Southbound lanes. He observed that the vehicle had a New York State plate. Cst. Pallet turned on the emergency lights on his cruiser, made a U-turn, and stopped the vehicle at 12:58 a.m. to check the driver's level of sobriety, relying on s. 48 of the HTA. The evidence of what occurred after the stop was made is discussed below in relation to the validity of the ASD demand.

[8] In cross-examination, Mr. George suggested to Constable Pallet that there was construction in the area where he was observed driving by Cst. Pallet, which may have been confusing to a driver. Cst. Pallet agreed that there was construction, but he testified that he did not think someone who was sober would be confused by the construction.

[9] In relation to the initial stop, Mr. George testified that the night of the arrest, he had been visiting Canada for about 10 days. His wife's father had recently died, and the burial had been that afternoon. He was tired and emotional from the death of his father-in-law and the family obligations this involved. He testified that the road where he was driving as he was pulled over was under construction, and there were traffic cones and gravel in the road. Essentially, he said he was concerned about damage to his car from the gravel, and the road signs for the construction were unclear about where cars should go.

[10] The burden of proof on this issue, as it is a Charter issue, is on Mr. George on a balance of probabilities. However, on the central issue of whether Cst. Pallet had a legal basis to make the initial stop, there is not really a conflict in the evidence. Mr. George did not challenge Cst. Pallet's evidence that his car was not travelling in the proper place on the road; rather, Mr. George raised that the construction area was not well signed, and that he was concerned about the gravel damaging his car.

[11] Under s. 48 of the HTA, Cst. Pallet did not require any particular grounds to make a stop for the purposes of determining if there was evidence to justify making a breath demand. I accept Cst. Pallet's evidence that he made the stop for that purpose because of the observations he had made of Mr. George's car not being in the correct portion of the roadway. Thus, it was a valid stop.

[12] I find that Constable Pallet was a credible and honest witness. He gave his evidence in a coherent manner. He was also candid in the limits of his evidence. For example, as I discuss further below, one of the indicia of impairment noted by Cst. Pallet after he had stopped Mr. George was that he observed that Mr. George had bloodshot eyes. In cross-examination, Mr. George asked Cst. Pallet to look at his eyes and asked if they appeared bloodshot (during the trial). Cst. Pallet agreed that they did. I note as well that Cst. Pallet appeared to be candid about possible signs of impairment that he did not observe in Mr. George. For example, Cst. Pallet testified that he did not observe any issues with Mr. George's balance.

[13] For all of these reasons I find that the initial stop of Mr. George was valid under s. 48 of the HTA.

2. Validity of the ASD Demand

[14] Section 254(2) of the Criminal Code requires that for a valid ASD demand, the officer must have reasonable grounds to suspect that the detainee has alcohol in his body and has driven a motor vehicle in the previous three hours. The officer is not required to have a reasonable suspicion that the driver is impaired; rather, what is required is that the officer has a reasonable suspicion that the driver has alcohol in his body. Reasonable suspicion is something more than a mere suspicion, and something less than reasonable and probable grounds. Like reasonable and probable grounds, reasonable suspicion is an objective standard that requires "objectively discernable facts, which can be subject to independent judicial scrutiny". However, reasonable suspicion is a lower standard than reasonable and probable grounds, looking at reasonable possibility, rather than reasonable probability. The trial judge must consider whether the reasonable suspicion threshold is met in the totality of the circumstances. It is a fact-based, flexible assessment, grounded in common sense and every day experience: R. v. Valere, 2013 ONCJ 594 at paras. 11-13, and cases cited therein.

[15] Cst. Pallet's evidence in relation to what he observed after he stopped Mr. George's car was as follows. He asked Mr. George if he had been drinking. Mr. George replied: "No, I have not". Cst. Pallet observed that Mr. George's words were slurred, that he had a strong odour of alcohol on his breath, that his eyes were bloodshot and watery, and that his cheeks were flushed. Cst. Pallet asked when Mr. George had last consumed alcohol, and Mr. George replied: "last week". Cst. Pallet noted that the word "last" was slurred. Cst. Pallet then asked for Mr. George's driver's license. Some conversation followed in which Mr. George asserted he was a New York police officer. Cst. Pallet then advised Mr. George that he would have to get out of his car to provide a sample of his breath (the ASD sample). When Mr. George got out of the vehicle, Cst. Pallet did not observe any issues with his balance.

[16] Cst. Pallet testified that he formed reasonable suspicion to make the ASD demand at 1:00 a.m. He read the demand to Mr. George, and Mr. George said he understood. When he took the ASD test, Mr. George registered a fail result.

[17] In cross-examination, Mr. George suggested to Cst. Pallet that during the course of the stop he had said to Mr. George words to the effect that: "There's a big festival going on in Toronto, and we're busting – we busted 500 Americans due to this festival for all drinking and whatever stuff they do." Cst. Pallet denied that he had said anything like that.

[18] As his evidence relates to the validity of the ASD demand, Mr. George testified that he had not been drinking that night. He testified that he was tired and had not slept in several nights. He testified that his eyes are always red. Mr. George said that after Cst. Pallet pulled him over, Cst. Pallet was disrespectful to him and verbally aggressive. It was Caribana weekend, and Mr. George said that Cst. Pallet made a comment to him that, "You American guys come here for this festival, and you guys cause all these problems, and we already arrested like four or five hundred of you guys already." Mr. George said as a result he and Cst. Pallet got into a verbal altercation.

[19] The burden of proof on this issue, as it is a Charter issue, is on Mr. George on a balance of probabilities.

[20] The issue regarding validity of the ASD demand relates to Cst. Pallet's subjective belief that the required standard of reasonable suspicion was met, and whether that belief was reasonable. For the most part, Mr. George's evidence did not contradict Cst. Pallet's evidence on the factors that Cst. Pallet relied on for the ASD demand; rather, Mr. George sought to provide alternate explanations for them (for example, that his eyes are always bloodshot, that the construction was not well-signed, that he had not slept in several nights).

[21] For reasons previously given, I find Cst. Pallet to be a credible witness. I accept his evidence of the indicia of impairment that he observed and relied on to make the ASD demand, in particular: that Mr. George drove in the wrong direction on the road, that Cst. Pallet smelled alcohol on Mr. George's breath, that his eyes were bloodshot and watery, that his cheeks were flushed, and that his speech was slurred. I find that taken together they constituted objectively reasonable suspicion that Mr. George had alcohol in his body and was operating a motor vehicle. While there may be possible explanations for these observations other than Mr. George having alcohol in his system, those other possible explanations do not change the fact that taken together the observations amounted to reasonable suspicion that justified the making of the ASD demand. Further, with respect to the challenge based on the alleged statement by Cst. Pallet about stopping a large number of Americans, I accept Cst. Pallet's denial that he made that statement.

[22] I further find that the ASD demand was made forthwith, and the sample was provided forthwith, as required by s. 254(2)(b). According to Cst. Pallet's evidence, which I accept, Mr. George's vehicle was stopped at 12:58 a.m. The ASD demand was made at 1:00 a.m. The ASD sample was provided at 1:02 a.m.

[23] For these reasons, I find that the ASD demand was valid.

3. The Alleged Strip Search – Was There a s. 8 Violation?

[24] Mr. George testified that when he arrived at the police station, he was searched and was made to remove all of his clothes except his boxer shorts. He said his shoes, his hoodie, and his belt were taken. He said that his jeans and the tank top were also initially taken, but then he was given back the jeans and the tank top to wear. He said that he was given a choice whether to have the tank top or the hoodie. Mr. George testified that he chose the hoodie, but that the police would not give it to him and gave him the tank top instead. In the breath room video, which was shown on the second day of the trial, Mr. George makes reference to having his clothes taken from him. In the breath room video, Mr. George is wearing a tank top and pants. There is also reference in the breath room video to Mr. George not having his shoes, and the breath technician getting the shoes for Mr. George. Mr. George also testified that he has acne on his shoulders, and he would not have worn a tank top without something else over it by choice.

[25] In response to the strip search issue, the Crown called Cst. Arroyo, who conducted the search of Mr. George, and played about one hour of video recorded in the booking area that night. The booking videos were authenticated by Cst. Arroyo as an accurate record of events. The videos have no sound. The videos show several different camera angles. The videos cover all of the time from Mr. George's entry into the booking area when he arrived at the station until his entry into the breath room, and then show the time from when he exits the breath room until he is taken to the cells.

[26] Mr. George is searched after the booking questions, beginning at approximately 1:35 a.m., prior to speaking to duty counsel, and prior to being taken into the breath room. The search is clearly visible on the videos of the time in the booking area. What is visible on the videos is a pat down search of Mr. George followed by wanding with an electromagnetic wand for metal. Initially Mr. George is seen wearing a white hoodie, jeans, and shoes. He can be seen removing his earrings and jewellery. Cst. Arroyo testified that these were placed in a property locker, as they are not allowed in the cells. Prior to the pat down search, Cst. Arroyo has Mr. George lift his hoodie, but not the tank top underneath. In this process, Mr. George's skin under the tank top is not bared. Cst. Arroyo testified that this was to see if he had a second layer of clothing on because Peel Police policy is that detainees can only wear one layer of clothing. On the videos, Cst. Arroyo then has Mr. George remove the hoodie, but Mr. George keeps on the tank top throughout the search and the time he is in the booking area. On the video Mr. George can then be seen showing Cst. Arroyo something on his shoulders. Cst. Arroyo testified that Mr. George said something to him about having some kind of skin condition that he did not want exposed, and asked if he could have his sweater. Cst. Arroyo testified that normally hoodie sweatshirts have a drawstring in the hood, and the police do not allow detainees to keep them for safety reasons.

[27] Cst. Arroyo then has Mr. George remove his belt and his shoes. He then has Mr. George stand facing the wall with his hands against the wall. Cst. Arroyo then empties Mr. George's pockets one by one, and does a pat down search. Cst. Arroyo testified that for safety reasons belts are not allowed in the cells. When Mr. George removes his belt, his jeans sag a couple of inches because the waistband is relatively larger than Mr. George's waist, and without the belt to hold the jeans up, they sag. This sagging is only a couple of inches. When the jeans sag, the top couple of inches of Mr. George's boxer shorts become visible, basically the waistband of the boxer shorts. At all times, Mr. George's jeans cover his full buttocks. It is clear from the video that the reason the jeans sag is due to the size of the waistband. At no point does Cst. Arroyo pull down Mr. George's jeans or attempt to remove them in any way. After the pat search, Cst. Arroyo conducts an electromagnetic wand search to detect any metal objects not found in the pat search. This involves passing the wand over Mr. George's body over his clothes, approximately one inch away from his body.

[28] After the search is completed, the video shows Mr. George sitting on a bench in the booking area for approximately 12 minutes (still prior to the callback from duty counsel). He is then called up to the booking desk by Cst. Arroyo and appears to sign some papers. Cst. Arroyo testified that this was for Mr. George to sign the prisoner log and the property log. Mr. George can then be seen going into a room adjacent to the booking room alone. Cst. Arroyo testified that this is the room to speak to duty counsel on the phone. The time stamp on the booking video was 1:54, which corresponds to the time Cst. Pallet testified that Mr. George began speaking to duty counsel. Mr. George is then seen exiting the phone room, and then Cst. Pallet escorts him into another room. Cst. Arroyo testified that this was into the breath room. The time stamp at this point on the video is 2:00 a.m., which corresponds to the time Cst. Pinheiro testified that Mr. George was brought into the breath room.

[29] The videos show Mr. George being brought out of the breath room at time stamp 2:26. Mr. George exits out of the frame of the video. Another camera angle of the same time shows Mr. George going into another room alone. Cst. Arroyo testified that Mr. George was going into a washroom at that time. Mr. George returns to the booking area soon after. Cst. Arroyo testified that he returned to the booking area to escort Mr. George to the cells. On the video, Mr. George appears to indicate something to Cst. Arroyo. Cst. Arroyo testified that Mr. George was asking for his hoodie back. Cst. Arroyo testified he agreed to give the hoodie to Mr. George. On the video, Cst. Arroyo can be seen removing the string from the hoodie before he gives it to Mr. George. Cst. Arroyo testified that he obtained Mr. George's agreement to do this. He testified that this was done because strings are not allowed in the cell area. Cst. Arroyo then directs Mr. George to the washroom. Cst. Arroyo testified that he gave Mr. George the hoodie, and took the undershirt back after he changed in the washroom, because of the policy of only allowing one layer of clothing. Mr. George is then seen exiting to the cells.

[30] The video evidence introduced by the Crown regarding Mr. George's time from arrival at the police station, booking, and time before and after the breath room video was very helpful in clarifying the issues in relation to the search of Mr. George. I accept as true the version of events that is shown in the booking video evidence, which I have summarized above at paragraphs 25-29. I am satisfied that the video clips cover the entire time that Mr. George was in the booking area, both before and after the time he was in the breath room.

[31] Mr. George argued in submissions that the booking room videos were not reliable evidence because, in his submission, the time stamps on the videos were inconsistent, and because there was no audio. I reject the argument that the time stamps on the videos were inconsistent. Because the booking room videos capture different camera angles, there is some overlap in the time stamps on the different portions on the videos. Cst. Arroyo testified that he could not speak to the accuracy of the time stamps on the booking room videos. I find that the time stamps on the booking room videos are accurate. It is clear from reviewing the booking room videos that events occur at time stamps on the video that match the times that Cst. Pallet and Pinheiro testified to various events occurring, such as the arrival at the division, the time Cst. Pallet called duty counsel and left a message, the time Mr. George went in to the room to speak to duty counsel, and the time Mr. George went into the breath room. As I have indicated elsewhere in my reasons, I accept the evidence of Constables Pallet and Pinheiro as credible.

[32] With respect to the lack of audio, I find that the lack of audio does not render the booking room videos unreliable in relation to the nature of the search conducted on Mr. George. While it is true that the videos do not assist the court with what was said during the search, the video portion is very clear and allows me to assess the nature of the search conducted.

[33] Based on the booking videos and Cst. Arroyo's evidence, I find that Mr. George was pat searched and wanded. His shoes, belt and hoodie were taken. But his tank top was never removed, and his jeans were never removed. The jeans only sagged a couple of inches, and only did so because his belt was taken and they had a large waistband. The officer did not remove or pull down Mr. George's jeans at any time. I find that the booking video evidence presents an accurate picture of the nature of the search done on Mr. George, in light of the time stamps on the videos, and the amount of time the video's cover which fits the general chronology of events that evening. I find that Mr. George's recollection of the nature of the search is not reliable, and I do not accept his version of events on this issue. Again, I note that on this Charter issue the burden of proof is on Mr. George on a balance of probabilities.

[34] The decision of the Supreme Court of Canada in R. v. Golden, 2001 SCC 83 sets out the constitutional limits on the common law power to conduct a strip search incident to arrest. A frisk or pat search may be conducted incident to arrest based on the reasonable and probable grounds to make the arrest. Because a strip search is a much more invasive type of search, a strip search is subject to special requirements, which are set out in detail at paragraphs 99-105 of Golden. The Court adopted the following definition of strip search at paragraph 47 of Golden: "the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person's private areas, namely, genitals, buttocks, breasts (in the case of a female), or undergarments."

[35] I find that the search conducted on Mr. George was not a strip search. Although his hoodie was taken by police, his tank top was not removed (except later when he was given privacy to change and switch the tank for the hoodie). Nor were his jeans removed at any point. The fact that his jeans sagged a couple of inches when his belt was taken, exposing the waistband of his boxer shorts but not exposing either the rest of the boxer shorts or Mr. George's skin, does not amount to a strip search.

[36] I accept that Mr. George was uncomfortable when his hoodie was taken and he was left with only the tank top covering his upper body, leaving his shoulders exposed. I do not in any way minimize that discomfort, which was based both on being in the unfamiliar situation of a police station, and his feelings about baring his shoulders. However, I find that what occurred in this case did not constitute a strip search and did not violate s. 8 of the Charter. I heard very little evidence on the reasons for the policy of the Peel Region Police Service allowing only one layer of clothing for detainees – only a generic assertion of a safety concern. I confess to having difficulty seeing the reasons for the one layer policy. However, the search of Mr. George was not a strip search and did not amount to an infringement of s. 8 of the Charter.

4. S. 24(2) – If There Was s. 8 Violation, Should the Evidence Be Excluded?

[37] As I have not found a violation of s. 8 of the Charter, it is not necessary to engage in the analysis under s. 24(2).

5. Has the Crown Proven the Elements of the Offence Beyond a Reasonable Doubt?

[38] This brings me to the whether the Crown has proven the elements of the offence of refusing or failing to provide a suitable breath sample beyond a reasonable doubt.

[39] The elements of the offence of refusing to provide a breath sample are well settled and are as follows: (i) a valid demand; (ii) failure or refusal of the detainee to provide a suitable breath sample; and (iii) that the detainee intended to refuse to provide a suitable breath sample: R. v. Grant, 2014 ONSC 1479 at para. 81-82. The burden of proof on each of these issues is on the Crown beyond a reasonable doubt.

[40] I will consider each element of the offence in turn.

(i) Was There a Valid Breath Demand?

[41] Section 254(3) of the Criminal Code authorizes a police officer to demand an intoxilyzer breath sample where the officer has reasonable and probable grounds to believe that a person is committing or at any time in the preceding three hours has committed the offence of impaired operation or driving "over 80". Reasonable and probable grounds has a subjective and an objective component. The subjective component requires that the officer have an honest belief that the suspect committed the offence. That belief must be supported by objective facts. The objective component is satisfied where a reasonable person in the position of the officer would be able to conclude that there were reasonable and probable grounds for the officer's belief. The test is whether, objectively, there were reasonable grounds to believe that the suspect's ability to drive was even slightly impaired by consumption of alcohol. It is a fact-based assessment, considering totality of the circumstances: R. v. Bush, 2010 ONCA 554 at paras. 36-49, 54-58.

[42] I find that there were reasonable and probable grounds to believe that Mr. George's had over 80 milligrams of alcohol per 100 millilitres of blood at the time Cst. Pallet made the arrest and breath demand. I will not repeat the evidence summarized earlier, but in particular I rely on Cst. Pallet's observation of Mr. George driving Southbound in the Northbound lanes of Dixie Road, the observations of indicia of impairment when he stopped Mr. George (outlined above at paragraphs 7, 15, 21), and the ASD fail result.

[43] Mr. George argued in his closing submissions that I should have a doubt as to the reliability of the ASD fail result. I find that the Crown has proven that the ASD was functioning properly, and thus that the ASD fail result was reliable as part of the reasonable and probable grounds to make the breath demand. Cst. Pallet testified that the ASD device had been tested at the start of his shift that day at 6:45 p.m., and last checked for accuracy on July 28, 2013, which was within the previous 15 days as is required. He was satisfied that the ASD device was in proper working order. Cst. Pallet testified that the fail reading on the ASD which resulted when Mr. George took the test indicated that Mr. George's blood alcohol level was over 100 milligrams of alcohol per 100 millilitres of blood. Cst. Pallet was challenged in cross-examination regarding the possibility of the machine not giving an accurate result if the sample was not sufficient. Cst. Pallet testified that he believed that ASD reading was accurate, because the machine will beep and indicate in words if there is insufficient volume for a sample or if the blow is interrupted.

[44] I accept Cst. Pallet's evidence that he subjectively believed Mr. George had in the preceding three hours committed the offence of operating a motor vehicle with over 80 milligrams of alcohol per 100 millilitres of blood. I also accept that the grounds described above provided objective facts such that a reasonable person in the officer's position would also believe that Mr. George had in the preceding three hours committed the offence of operating a motor vehicle with over 80 milligrams of alcohol per 100 millilitres of blood.

[45] Cst. Pinheiro's evidence regarding his belief that there were reasonable grounds to believe that Mr. George had operated a motor vehicle in the previous three hours with over 80 milligrams of alcohol per 100 millilitres of blood essentially tracked the evidence of Constable Pallet, since he was given the information to form those grounds by Cst. Pallet. Cst. Pinheiro testified that the basis for his reasonable and probable grounds was the following information provided by Cst. Pallet:

• That Cst. Pallet has observed Mr. George's vehicle travelling Southbound in the Northbound lanes on Dixie Road near Steeles;
• That Cst. Pallet had observed the car cross over the median into the Southbound lanes;
• That Cst. Pallet had conducted a traffic stop;
• That he had a conversation with the driver, the sole occupant of the car;
• That Cst. Pallet smelled alcohol from the driver's breath;
• That Cst. Pallet observed that the driver had bloodshot and watery eyes and slurred speech;
• That the driver advised Cst. Pallet that he had not consumed alcohol;
• That Pallet formed a suspicion that the driver had alcohol in his body and had operated a motor vehicle;
• That Cst. Pallet administered the ASD to the driver and the result was a fail;
• That Cst. Pallet formed the opinion that there were reasonable grounds that the driver (Mr. George) had operated a motor vehicle with excess alcohol in his body, and arrested Mr. George, and then transported him to 12 Division.

[46] In addition, Cst. Pinheiro testified that based on his own observations he believed Mr. George was impaired. He smelled alcohol on his breath, and his speech was not normal (he did not specify anything particular about the speech).

[47] I accept the evidence of Cst. Pallet and Cst. Pinheiro, and I find that it objectively constitutes reasonable and probable grounds to make the breath demand.

[48] I further find that the breath demand was made as soon as practicable, and the breath technician was prepared to receive the samples as soon as practicable, as required by s. 254(3). As noted above, the ASD fail result was obtained at 1:02 a.m. Cst. Pallet testified, and I accept his evidence, that with the ASD fail result and his earlier observations, he formed reasonable and probable grounds to make the breath demand at 1:02 a.m. He arrested Mr. George at that time. He read Mr. George his right to counsel at 1:05 a.m. He read Mr. George the primary caution at 1:06 a.m. He read Mr. George the breath demand at 1:07 a.m. Cst. Pallet left the scene with Mr. George to drive to 12 Division at 1:13 a.m., and arrived at 1:23 a.m. He brought Mr. George into the booking area. He confirmed Mr. George wanted to speak to duty counsel. He called and left a message for duty counsel at 1:30 a.m. Cst. George provided his reasonable and probable grounds to Cst. Pinheiro at 1:34 a.m. As outlined above, Mr. George was searched after this. Duty counsel called back at 1:53 a.m. Mr. George spoke to duty counsel from 1:54 to 1:58 a.m. Mr. George was taken into the breath room at 2:00 a.m. According to Cst. Pinheiro, the intoxilyzer was ready to receive samples from Mr. George at 2:16 a.m.

[49] I find that this chronology establishes that the breath demand was made as soon as practicable, and that Cst. Pinheiro was prepared to receive the sample as soon as practicable: R. v. Squires at paras. 24-33.

[50] In light of the fact that this case involves an allegation of an express refusal to provide a sample, rather than an alleged feigning on inability to provide a sample, the Crown is not required to prove that the intoxilyzer was functioning properly: R. v. Weare, [2005] O.J. No. 2411 (ONCA); R. v. Danychuk; R. v. McNeil, [2002] O.J. No. 3982 (S.C.). In any event, I find that the Crown has proven beyond a reasonable doubt that the intoxilyzer was functioning properly. Cst. Pinheiro also gave evidence confirming that the machine he was using that day was an approved instrument, an intoxilyzer 8000C, designed to determine a person's blood alcohol level from a breath sample. He testified that he had done a diagnostic check on the instrument at 1:10 a.m. that night, and a calibration check at 1:15 a.m. He testified that he had done a self-test at 1:59 a.m., which registered zero milligrams of alcohol per 100 millilitres of blood. The records of each of these tests were entered as exhibits at trial. The machine was ready to receive Mr. George's sample, if one was given, at 2:16 a.m.

[51] For these reasons I find that the Crown has proven beyond a reasonable doubt that the breath demand was valid.

(ii) Did Mr. George Refuse or Fail to Provide a Suitable Breath Sample?

[52] I am satisfied beyond a reasonable doubt that Mr. George refused to provide a breath sample. I based this conclusion on the breath room video, and the evidence of Cst. Pinheiro, which I accept as true. Mr. George was asked multiple times in the breath room to provide a sample. He was advised repeatedly by Cst. Pinheiro of the consequences of refusing to provide a breath sample, and that he could be charged if he refused to provide a sample. Mr. George said in the video that he understood this. Each time Mr. George was asked to provide a breath sample he refused to do so. The reason he gave in the breath room for refusing to provide a sample was that he was unhappy with the way he was treated by Cst. Pallet and at the station prior to entering the breath room.

[53] It should be noted that initially Cst. Pallet was in the breath room, but at 2:12 a.m. Cst. Pinheiro asked him to leave the breath room, and Cst. Pallet left the room. Based on my viewing of the breath room video, Mr. George had already twice expressly said he would not provide a breath sample before Cst. Pallet left the breath room, and Cst. Pinheiro had twice cautioned him that he could be charged with refusing to provide a sample if he did not provide one. Cst. Pinheiro testified that he asked Cst. Pallet to leave to try and "defuse" the situation. After Cst. Pallet left the breath room, Cst. Pinheiro asked Mr. George three further times to provide a breath sample, and each time Mr. George refused to provide a sample. Cst. Pinheiro also cautioned Mr. George once more after Cst. Pallet left the breath room that if he refused to provide a sample he would be charged.

[54] In his evidence at trial, Mr. George admitted that he refused to provide a breath sample. He agreed that he understood the requests by Cst. Pinheiro for a breath sample. He said he refused to give the sample because he was angry at the way he had been treated by Cst. Pallet.

[55] I find that Mr. George was asked to provide a breath sample multiple times by Cst. Pinheiro in the breath room, and repeatedly cautioned that he could be charged if he refused to provide a breath sample. I find that he understood the demands, and chose not to provide a sample. For these reasons, I find that the Crown has proven beyond a reasonable doubt that Mr. George refused to provide a breath sample.

(iii) Did Mr. George Intend to Refuse to Provide a Suitable Breath Sample?

[56] The determination of whether the last element of the offence, mens rea or intention to refuse to provide a sample, is satisfied beyond a reasonable doubt requires a case-specific analysis of all of the circumstances. These include, but are not limited to: the words and actions of the detainee; the number of opportunities given to the detainee by the officer to provide the sample; instructions provided to the detainee by the officer on how to provide the sample, including whether the detainee was told they were being given one last chance to provide the sample; the detainee's state of intoxication and attitude; the availability of the technician and intoxilyzer: Grant, supra, para. 82-83.

[57] As noted above, Mr. George admitted in his evidence at trial that he refused to provide a breath sample. This is also clear from the evidence of Cst. Pinheiro and the breath room video. Cst. Pinheiro asked Mr. George multiple times to provide a breath sample, and cautioned him about the consequences if he did not provide a sample. Mr. George expressly refused to provide a sample multiple times. Mr. George agreed on the breath room video, and in his evidence that he understood the demand that was made to him. Mr. George said both on the breath video and in his evidence at trial that he refused to provide the sample because he was angry at how he had been treated by Cst. Pallet.

[58] I find, based on the breath room video, and based on Mr. George's evidence, that he understood what he was doing when he refused to provide a breath sample. I find that he refused out of anger at what he perceived to be inappropriate treatment by Cst. Pallet.

[59] Mr. George's motive for refusing to give the sample is not the same as his intention. The evidence is uncontradicted, and I find it is proven beyond a reasonable doubt, that Mr. George intended to refuse to give a sample, and knew what he was doing when he refused to give the sample. His anger at Cst. Pallet is not a valid legal reason not to provide a breath sample. I find that Mr. George's intention to refuse to provide a breath sample is proven beyond a reasonable doubt.

[60] Further, I find that Mr. George's anger at Cst. Pallet does not constitute a reasonable excuse for refusing to provide a breath sample. As noted above, I have found as a fact that Cst. Pallet did not make the comments at the roadside about arresting Americans that Mr. George said he made. But even had those comments been made, they would not constitute a reasonable excuse for refusing to comply with a valid demand for a breath sample.

[61] For all of these reasons, I find that the Crown has proven the elements of the offence of refusing to provide a breath sample beyond a reasonable doubt. I find Mr. George guilty of refusing to provide a breath sample.

Released: December 15, 2015

Signed: "Justice J.M. Copeland"