Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Marc Younes

Before: Justice C. Kehoe

Decision released on: May 12, 2015

Counsel:

• Mr. B. Lee-Shanok for the Crown
• Ms. A. Brylewski for the accused, Marc Younes

Decision

KEHOE, J.:

The Charge

[1] Mr. Marc Younes is charged that on July 2, 2014, he refused to comply with a demand for a sample of his breath into an approved screening device contrary to section 254(5) of the Criminal Code.

[2] Identity, date and jurisdiction are admitted.

Charter Application

[3] Ms. Brylewski, on behalf of Mr. Younes, brought a Charter application claiming that Mr. Younes' section 9 Charter rights were violated as Cst. Evans did not have a reasonable suspicion that he had alcohol in his body and therefore made an invalid demand.

[4] The matter proceeded as a blended Charter voir dire and trial.

Facts

The Traffic Stop

[5] Cst. Michael Evans, an OPP officer, was on duty on July 1 to 2, 2014. Cst. Evans was on patrol that night. He had two devices that he had prepared and tested prior to assuming traffic control duties on Hwy 417, a radar and an approved screening device (ASD). He was satisfied that both were in proper working order.

[6] At 00:15, Cst. Evans was parked, facing east bound, in the median on Hwy 417 near the Terri Fox exit. Due to construction at the time, the posted speed limit was 80 kph. At 00:15 he was working on notes when his attention was drawn to two vehicles on the highway by the sound of the vehicles. He put his notebook down and observed two vehicles traveling at a very high rate of speed. He used the radar to determine the speed, one vehicle was tracked at 158 kph and the other at 145 kph. They were both sedan type vehicles, one black and one silver. Cst. Evans put his vehicle in drive to follow and another two vehicles passed him at similar speeds. All four vehicles were ahead of him as he tried to catch up.

[7] As he accelerated, he observed two of the vehicles pulled over near the Eagleson Road off-ramp, one being the black sedan he had observed. Cst. Evans continued after the other two vehicles and saw a silver Honda Civic traveling at a high rate of speed. He identified the vehicle and activated the radar as he got closer. He got a speed of 137 kph on the vehicle. The speed limit at this point on the highway was 100 kph. Once he obtained the speed, he activated his emergency lights and the vehicle pulled over. He conducted the traffic stop for speeding at 00:16 hours between Eagleson Road and Moodie Drive.

Initial Observations

[8] Cst. Evans exited his vehicle and approached the driver's door on the Honda Accord. The driver's window was down about three inches and although the windows were tinted he could see other occupants in the vehicle. Cst. Evans asked the driver to lower the driver's window and the back passenger driver's side window. The driver lowered the rear window. Cst. Evans had to ask a second time before the driver's window was fully lowered. Mr. Younes was the driver.

[9] Cst. Evans advised Mr. Younes of the reason for the traffic stop, i.e. the speeding. He observed an odour of alcohol coming from the vehicle and asked the driver where he was coming from. Mr. Younes advised that they were coming from a party in Carleton Place. Cst. Evans asked if Mr. Younes had been consuming alcohol, which he denied. Mr. Younes advised that the other three occupants had been drinking.

[10] Cst. Mullen arrived on scene and stood at the passenger side of the vehicle. Cst. Mullen advised that he observed a green bottle on the front passenger side of the vehicle. Cst. Evans investigated the bottle which was non-alcoholic. Cst. Mullen also advised that there was an object wrapped in a towel on the floor in the rear of the vehicle. It was a 1.8 litre bottle of St. Remi Brandy, the seal broken. Mr. Younes denied that there was any drinking in the vehicle and that any alcohol out of the bottle was consumed at the party.

Isolation of the Odour

[11] Cst. Evans asked Mr. Younes to step out of the vehicle, as he wanted to establish the source of the odour of alcohol, i.e. on Mr. Younes or in the vehicle.

[12] There were no other physical signs of impairment. Cst. Evans asked Mr. Younes about the other vehicles and whether he was part of the three other vehicles he had observed. As Mr. Evans advised that he was traveling on his own, Cst. Evans observed a faint odour of alcohol coming from Mr. Younes' mouth. Cst. Evans testified that it was windy but he could still detect the odour of alcohol on Mr. Younes' breath. Mr. Younes was adamant that he had not consumed any alcohol.

The ASD Demand

[13] Once he had smelled the alcohol on Mr. Younes' breath, Cst. Evans informed Mr. Younes that he was going to be making an ASD demand and that he would have to come to his cruiser. Cst. Evans had left his notebook with the demand card in it in his vehicle. He read the demand to Mr. Younes at 00:21. Cst. Evans informed Mr. Younes that he was not under arrest but that he would have to accompany him for the test. Mr. Younes replied that he understood.

[14] Cst. Evans retrieved the ASD, a Dragger Alcotest 6810, turned the device on and showed Mr. Younes the mouthpiece used to blow into the device. At that point Mr. Younes advised that he did not know why he had to provide a sample because he had not consumed any alcohol.

[15] Cst. Evans explained that he suspected that there was alcohol in his body due to the odour of alcohol coming from the vehicle, the open (seal broken) bottle of brandy and the odour of alcoholic beverage coming from his breath once he isolated him from the odour coming from the vehicle. Mr. Younes advised again that he understood the demand but that he would not be consenting to it. Mr. Younes advised that he thought it was unfair and would not submit to it.

[16] Cst. Evans explained the consequences, that he would be arrested if he refused and could be charged with refusing which was a criminal offence with the same consequences of blowing over or impaired driving and that if he was found guilty, his licence would be suspended for at least one year with heavy fines associated. Cst. Evans also mentioned that his licence would also be suspended for 90 day. He explained that if he provided a sample and was under a warn range, the penalties would be much less and that if he had consumed no alcohol and that was confirmed by the ASD, he would be able to drive home in a matter of moments.

Continued Refusal

[17] Cst. Evans testified that Mr. Younes continued to refuse. He advised that he would not be providing a sample. At that point, Cst. Mullen asked if he could speak to Mr. Younes privately.

[18] Cst. Mullen and Mr. Younes had a conversation between 00:24 and 00:28. Cst. Mullen advised that he was unsuccessful and that Mr. Younes was still refusing to provide a sample of his breath.

[19] Cst. Evans then repeated all of the information provided the first time concerning the consequences of not providing a sample and Mr. Younes advised that he understood the demand but that he did not know why he had to provide a sample because he had not consumed alcohol. Cst. Evans again explained his reasons for suspecting that he had alcohol in his body and again went over the consequences that he would be arrested and charged with a criminal offence that carries the same penalties. Mr. Younes advised that he did not have to provide a sample to have his claim proved and that Cst. Evans should just trust his words. Mr. Younes explained that he is Muslim, that he was fasting and that he could not consume alcohol during Ramadan and that his father would be very upset with him if he was consuming alcohol.

[20] Cst. Evans again explained the consequences and Mr. Younes again refused saying that he did not want to be disrespectful to Cst. Evans but he would not be providing a sample.

Arrest

[21] At that point Cst. Evans felt that he had exhausted all his efforts to get him to comply with the demand and that Cst. Mullens had also spoken to him. Cst. Evans placed Mr. Younes under arrest for refusing to provide a breath sample at 00:35 hours. Mr. Younes was handcuffed, searched and placed in the rear of the cruiser. Cst. Evans read rights to counsel and cautions at 00:40 and 00:41.

[22] There is no issue concerning the wording of the rights and caution.

Post-Arrest Events

[23] Cst. Evans then began to prepare the documents for his charge, i.e. the appearance notice etc. His plan was to have the vehicle towed and impounded. The passengers had called to have friends come and pick them up. The passengers were all identified. Cst. Evans next note was at 00:55 that he was preparing the appearance notice. It was at that time that Mr. Younes asked if he could provide a breath sample. Cst. Evans advised Mr. Younes that the time had passed for providing a breath sample, that it was too late.

[24] Cst. Evans testified that Mr. Younes made further requests and at 01:05 began to complain that it was too warm in the cruiser and the handcuffs were too tight, which Cst. Evans addressed.

[25] Mr. Younes was released at 01:30.

Evidence in Cross-Examination

[26] In cross-examination, Cst. Evans agreed that Mr. Younes was compliant, cooperative and polite throughout. He agreed that, other than the odour of alcohol in the vehicle, the unsealed brandy, and the odour of alcohol on Mr. Younes' breath there were no other signs of impairment. He agreed that he did not have reasonable and probable grounds to make an arrest for impaired driving and that he wanted to confirm his suspicion with the ASD.

[27] Cst. Evans agreed that he did not record the conversation verbatim but that he recorded the gist of his explanations of the consequences of refusing and Mr. Younes' refusals. Cst. Evans disagreed or could not say that Mr. Younes was overwhelmed by what was happening as his demeanour and the conversation was calm.

[28] Cst. Evans agreed that he did not say "this is your last chance" but testified, "other than saying that if you are going to continue to refuse then you will be arrested" which he told him a few times.

[29] Cst. Evans agreed that once he read all the rights, cautions, he consulted with Cst. Mullens outside of the cruiser about the passengers and the vehicle. He agreed that it was within a few minutes of Cst. Evans getting back into the cruiser that Mr. Younes asked for an opportunity to provide a sample and that the ASD was still available to do that. Cst. Evans agreed that the request was sincere but felt that the opportunity had passed. Cst. Evans testified that it was more the timing of the request than anything, i.e. if he would have asked two or three minutes after he would have allowed him but that was not the situation. Cst. Evans agreed that he was not in the cruiser within 2 to 3 minutes of the last refusal and Mr. Younes' arrest.

Sgt. Mullen's Evidence

[30] Sgt. Brendan Mullen, an OPP officer was on duty on July 2, 2014. He testified that he arrived to assist Cst. Evans as he was traveling east bound and saw the traffic stop. Cst. Evans was already speaking with the driver. He confirmed his observations of the bottles in the vehicle.

[31] Sgt. Mullen confirmed that he observed the difficulties Cst. Evans was having with Mr. Younes, i.e. getting him to provide a sample, and asked to speak with him in order to get him to provide a sample. He testified that he stepped in a spoke to the accused at 00:24 explaining the circumstances as he understood them, i.e. that Mr. Younes was stopped for speeding, that there was an unsealed bottle of liquor in the vehicle, an odour of alcoholic beverage in the vehicle and on Mr. Younes' breath once isolated. He explained that Cst. Evans had read a legal breath demand which placed a requirement on him to provide a breath sample. Sgt. Mullen testified that Mr. Younes was interrupting him while he tried to explain with a reason or excuse to avoid the situation. Sgt. Mullens testified that he believed that Mr. Younes understood because he was very adamant that he did not feel the need that he had to provide a sample. Mr. Younes commented that he was a G2 driver, that he was Muslim, fasting for Ramadan and that he did not feel it was necessary to do what he was being instructed to do.

[32] Sgt. Mullens explained that police are not scientists and that in these circumstances used the ASD to help them determine what quantity of alcohol a person had been drinking and that if he had not been drinking the alcotest would be 0 and he would be free to go. He explained that a refusal was a criminal offence and that the penalties were the same as the penalties for over 80 or impaired driving charges. Mr. Younes had a similar response, saying that he was not going to blow, that he did not feel it was necessary as he had not been drinking. Sgt. Mullens testified that Mr. Younes was quite certain and specific that he was not going to comply with the breath demand. Sgt. Mullen testified that he could not sway or convince Mr. Younes that it was a legal obligation. He testified, "He wasn't on the fence saying well maybe I will do it, my explanation, I couldn't convince him to comply."

[33] In cross-examination agreed that Mr. Younes was calm and polite. Sgt. Mullens did not agree that Mr. Younes was overwhelmed by the situation.

[34] Sgt. Mullens agreed that once he had the conversation with Mr. Younes he returned to the vehicle and the passengers although he did speak to Mr. Younes after the arrest when he was seated in the back of the cruiser. He was not present when Cst. Evans read the rights.

Legal Submissions

Crown's Submissions

[35] Mr. Lee-Shanok, on behalf of the Crown, submits that the Charter application is really a moot point because if the demand was invalid for lack of a reasonable suspicion, there was no obligation for the accused to comply.

[36] Mr. Lee-Shanok submits that the case law is clear that an odour of alcohol on the accused's breath is sufficient indicia of consumption on its own. He submits that Cst. Evans confirmed many times that he smelled the odour of alcohol on the accused's breath. Mr. Lee-Shanok refers to R. v. Lindsay, [1999] O.J. No. 870 at para. 2 and R. v. Carson, 2009 ONCA 157, [2009] O.J. No. 660, at para. 1. He submits that it is clear that Cst. Evans believed that the accused had consumed alcohol and that is a sufficient basis for the demand.

[37] Mr. Lee-Shanok refers to paras. 17-20 and paras. 21 to 28 of R. v. Sures, 2010 ONSC 1622, re the demand, i.e. that it was not equivocal and neither was the refusal.

[38] Mr. Lee-Shanok refers to paras. 17-19 in R. v. Marquis, 2011 ONSC 6514, where the parameters of the offence is set out, i.e. once there is a proper demand and an unequivocal refusal the offence is complete. He refers to paras. 18 and 19 in Marquis, and paras. 32 to 34 in R. v. Kitchener, 2012 ONSC 4754 concerning the argument in support of a "last chance" situation. The court finds that there is no artificial continuum as to when and if going to comply. He submits that there is no authority for a "last chance" requirement.

Defence Submissions

[39] Ms. Brylewski, on behalf of Mr. Younes, agrees that the Charter application and the reasonable suspicion issue are one in the same.

[40] Ms. Brylewski submits that Mr. Younes did in the end offer to provide a sample and therefore there should be a doubt raised as to the refusal.

[41] Ms. Brylewski submits that there is an issue concerning the objective component, i.e. whether Cst. Evans' reasonable suspicion is supported on the objective facts. Ms. Brylewski submits that there is a lack of objectively verifiable facts to support Cst. Evans' subjective belief given the lack of indicia other than the odour of alcohol.

[42] Ms. Brylewski submits that even if the demand was valid, the question is whether Mr. Younes' refusal or behaviour is sufficient to amount to being criminal. She submits that he was not informed that the exercise was coming to an end and that the explanations and conversations around the demand and his obligation to provide a sample were going in circles. She submits that at the first opportunity, Mr. Younes asked for a further opportunity to provide a breath sample and therefore it was not an outright refusal.

[43] Ms. Brylewski refers to R. v. Domic [1980] O.J. No. 710, where the accused was acquitted after twice refusing and then agrees to provide a sample after he is arrested. Ms. Brylewski agrees that while Mr. Younes' request was not as immediate in time as that in Domic, it was at the first opportunity as Cst. Evans was out of the cruiser.

[44] Ms. Brylewski refers to R. v. Chance, [1997] O.J. No. 4939, and R. v. Hines, [1998] O.J. No. 5831, for similar reasons and the factors to consider. Ms. Brylewski submits that similar to Chance, the ASD was still present and the request to provide a further opportunity could have been accommodated immediately.

[45] Ms. Brylewski submits that given the request, although late, there is a reasonable doubt that Mr. Younes refused the demand for the ASD breath sample.

Court's Analysis and Decision

[46] I have considered all of the evidence, the submissions of counsel and the cases referred to.

[47] I agree that when all of the circumstances are considered, there was an unequivocal and proper demand made that Mr. Younes refused to comply with. Cst. Evans had a subjective belief/suspicion, based on the odour of alcohol coming from the vehicle, the unsealed bottle of brandy and thereafter when the odour of alcohol was isolated and on the breath of Mr. Younes outside the vehicle. It is objectively supported on the evidence, which is the speeding, the odour in the car, the unsealed bottle of alcohol in the car, and the odour of alcohol on Mr. Younes' breath outside the vehicle. Cst. Evans testified at least twice that he believed, based on the above, that Mr. Younes had alcohol in his body. He explained his reasons, i.e. the above, to Mr. Younes on several occasions as well as his obligation to comply with the demand. Mr. Younes was adamant from the start that he had not consumed alcohol and therefore he did not have to comply with the demand. He understood the demand and was otherwise polite and cooperative.

[48] The case law establishes that there are not an infinite number of chances to provide a sample that must be provided and I find that Cst. Evans and Sgt. Mullens did their absolute best to provide Mr. Younes with very clear explanations of the reasons for the demand and his resulting obligation to comply as well as every opportunity to provide a sample. Mr. Younes refused several times knowing that the consequences of his refusal would be arrest and a criminal charge equivalent to an over 80 or impaired driving charge. There is no obligation to say the magic words "this is your last chance" as it was very clear that Mr. Younes refused from the outset.

[49] His request after the arrest, rights and cautions etc. was too late. I find Mr. Younes guilty.

Released: May 12, 2015

The Honourable Justice C. Kehoe