Court Information
Ontario Court of Justice
Date: September 17, 2015
Court File No.: Toronto
Parties
Between:
Her Majesty the Queen
— and —
Gil Brenner
Before the Court
Justice Riun Shandler
Heard on: July 6 and August 20, 2015
Reasons for Judgment released on: September 17, 2015
Counsel
Ms. G. Gaganiaras — counsel for the Crown
Ms. L. Shemesh — for the defendant Gil Brenner
Judgment
A. Introduction
[1] Mr. Gil Brenner was charged with failing to comply with a demand for a sample of his breath into an approved screening device (ASD), contrary to s. 254(5) of the Criminal Code, arising out of a R.I.D.E. check stop on October 3, 2014 at around 1:45 am in the morning.
[2] Sergeant Churkoo was in charge of the R.I.D.E. check and he made the breath demand of the defendant. After repeated attempts to provide a sample, Sergeant Churkoo reached the conclusion that the defendant was deliberately failing in his attempts to provide a sample and arrested him for failing to provide.
[3] Although framed slightly differently by counsel, in my view, the issue in this case comes down to a relatively simple proposition: has the Crown proven beyond a reasonable doubt that the defendant intentionally failed to comply with the breath demand.
[4] Prior to dealing with that issue, it is necessary to set out a brief review of the facts.
B. Background
[5] Sgt. Churkoo set up the R.I.D.E. spot check with Officers MacDonald and Leonard on Wilson Avenue, just east of Bathurst Street, at approximately 1:45 am on October 3, 2014. At approximately 1:50 am, he saw the vehicle being driven by the defendant and signalled the driver to stop. The defendant complied and stopped his vehicle. As Sgt. Churkoo approached the vehicle, the defendant was holding his driver's license out the window of his car. Sgt. Churkoo advised the defendant that it was not necessary for him to produce the driver's license and asked whether he had had anything to drink tonight. The defendant advised that he had one drink. Sgt. Churkoo testified that he purposely stuck his head inside the defendant's motor vehicle to determine whether he had been consuming alcoholic beverages and also testified that the defendant's eyes were red and bloodshot. He asked the defendant to pull his vehicle in front of the police cruiser which the defendant did. From this point onwards, the interactions between the defendant and the police are captured on the in-car recording system.
[6] Sgt. Churkoo escorted the defendant from his car to the front of the cruiser and made the breath demand. Sgt. Churkoo testified that he was satisfied that the machine was in proper working order as Officer MacDonald had tested the unit prior to taking it on the road that night; however, as Officer MacDonald testified, he had only tested the device just prior to bringing it to Sgt. Churkoo.
[7] After giving the defendant the breath demand, Sgt. Churkoo put the device in front of the defendant's face and said "I am going to ask you to blow into this machine. Blow." The defendant is not provided with a demonstration or given any instructions in respect of providing a sample.
[8] The defendant immediately responds and at 1:53:17, he makes his first attempt at providing a sample. That attempt is presumably unsuccessful although Sgt. Churkoo does not communicate that verbally or provide any explanation as to why the attempt may have been unsuccessful. The officer simply checks the device, puts it back in front of the defendant's face and says "Make a tight seal and blow into the machine."
[9] The defendant again responds immediately by blowing into the machine and makes his second attempt at providing a sample at 1:53:32. The officer advises him that he is not blowing into the machine. He states further that he is not making a tight seal and is blowing outside the machine. The officer then says "I'm going to caution you right now." This is approximately thirty seconds after the defendant attempted to provide his first sample.
[10] The officer advises the defendant that he is going to change the mouthpiece, then changes the mouthpiece and reinstructs the defendant to make a tight seal and blow into the machine. The defendant responds immediately and at 1:54:02, he makes his third attempt at providing a sample. This again is presumably unsuccessful although the only comment made by Sgt. Churkoo is that the machine says ready. The defendant asks to try again. At this juncture, Officer MacDonald who has been standing in the background is heard to say, "Take a deep breath and don't stop until we tell you."
[11] At 1:54:15, the defendant makes his fourth attempt at blowing into the machine. Sgt. Churkoo says, "No, you are blowing outside the machine, sir."
[12] Sgt. Churkoo then advises the defendant that he is going to demonstrate how to provide a sample. There are no verbal instructions; rather, Sgt. Churkoo changes the mouthpiece, gives a breath sample into the machine and says the machine is working. Sgt. Churkoo then advises the defendant that he is going to give him "a couple more chances," failing which he is going to arrest him. This is approximately two minutes after the defendant attempted to provide his first sample.
[13] At 1:55:36, the defendant makes his fifth attempt at providing a sample. Sgt. Churkoo advises him that he is blowing out all the air into him and says again, "I'm going to caution you, you are going to be arrested for failing to provide a suitable sample." The defendant advises him that he will do it again and says "I'm trying, I'm trying." Sgt. Churkoo responds by saying, "There is no trying here."
[14] At 1:56:09, the defendant makes his sixth attempt at providing a sample. Sgt. Churkoo advises him that he is blowing out and that he has to make a tight seal and that he will give him one more chance. PC MacDonald is again heard giving instructions at the same time.
[15] At 1:56:17, the defendant makes his seventh attempt at providing a sample. At this juncture, Sgt. Churkoo simply says, "No." The defendant says that he doesn't know what is happening as he is blowing. The defendant is told by Sgt. Churkoo that he will get one more chance.
[16] At 1:56:45, the defendant makes his eighth attempt at providing a sample. Sgt. Churkoo says "No, No." Officer MacDonald steps forward and gives a warning to the defendant of the consequences of providing a sample. Sgt. Churkoo advises the defendant that he "reeks of alcohol" and tells him to "put it in your mouth, make a tight seal, like you are blowing up a balloon."
[17] At 1:57:20, the defendant makes his ninth attempt at providing a sample. Sgt. Churkoo says "No, you are blowing all over me" and then arrests the defendant for failing to provide a sample. The defendant immediately asks to be allowed to blow again. The defendant repeats his requests to blow again throughout the next half hour that he is detained at the roadside, advising the officers that he was trying to cooperate, not trying to not blow, and to please let him do it again. The defendant is not provided another opportunity to provide a sample.
[18] Sgt. Churkoo testified that the unit was in proper working order. He was of the opinion that the defendant deliberately failed to provide a sample and based on his observations, was simply feigning in his attempts. Sgt. Churkoo testified that the defendant spoke English well and understood his directions, that he had personally demonstrated the test and changed the mouthpieces twice. Sgt. Churkoo testified that he had given the defendant a "last chance" and that "at some point" he had to make a decision to arrest or not.
[19] In cross-examination, Sgt. Churkoo acknowledged that in other cases, he had allowed individuals to provide a further sample after being arrested for failure to provide but that was in cases where there were language issues or where the individual doesn't understand what he is being asked to do. This was not such a case albeit Sgt. Churkoo acknowledged that individuals can become nervous in the presence of the police and when told that they may be placed under arrest.
[20] Officer MacDonald also testified. Officer MacDonald testified that in respect of the first two samples, he could see that the defendant was not giving a sufficient sample into the unit. In respect of the remaining samples, however, the officer was standing off to the side and couldn't say what the defendant was doing. Officer MacDonald had no recollection of the defendant repeatedly asking to do the test again although I note the videotape clearly shows the officer present when the defendant asks to provide another sample while being arrested.
[21] The defendant testified and acknowledged having one drink prior to arriving at the R.I.D.E. stop. He was not concerned about the R.I.D.E. stop as he had no concerns about his blood alcohol level concentration. The defendant had been through stops before, including a R.I.D.E. stop that same evening on his way to the restaurant where he had one drink. The defendant also acknowledged having blown into roadside devices before and that he had not encountered any problems. As he testified, he expected that he would provide a sample and then be on his way. The defendant was challenged on this in cross-examination but was unshaken in his denial that he had reasons to not provide a sample.
[22] The defendant recalled the entire matter happening very quickly and that he was nervous. He testified he did blow into the device and notwithstanding that, he was being repeatedly told to blow harder. He recalled being told that he would be arrested for failing to provide a sample, which shocked him. He couldn't understand what was happening as he was trying to provide a sample and was following the directions of two separate officers giving instructions simultaneously. He testified he was told to blow harder and thought he was blowing hard from the outset. He didn't understand why it wasn't working. He was stressed by having the officers hovering around him with two of them telling him different things. The defendant did ask for one of the mouthpieces that he used in providing a sample to try and understand what was going wrong. The defendant maintained his position in cross-examination that he was trying to follow the direction of the officers and, that from his perspective, he was blowing into the machine.
[23] The defendant testified that after being arrested, he "begged" the officer to let him blow again. He asked approximately five to ten times, when being arrested, when placed in the back of the cruiser and when his parents came to pick him up. There was no challenge to the defendant's evidence of repeated requests to provide a sample.
C. Analysis
1. Has the Crown proven that the defendant intentionally failed to comply with the breath demand?
[24] The Crown must prove beyond a reasonable doubt that the accused willfully or intentionally failed to comply with the screening device demand. In assessing whether the Crown has met its onus on this element of the offence, the court must look to all of the circumstances of the transaction between the police officer(s) and the accused. In R. v. Tavangari, Kenkel, J. helpfully summarized some of the applicable factors, the following ones which are relevant in this case as follows:
the explanation given to the accused about testing procedure, R. v. Chance;
evidence or lack of evidence of the accused's efforts to provide a sample R. v. Frianchi (1999), 49 M.V.R. (3d) 48 (Ont. S.C.J.);
the amount of time during which testing was conducted, R. v. Tynkaluk [1989] O.J. No. 957 (Ont. Dist. Ct.) ten minutes, R. v. Brown [2002] O.J. No. 2821 (Ont. C.J.) - seven minutes;
the number of tests attempted, R. v. Tynkaluk, supra eight attempts, R. v. Chance, supra four attempts;
whether the accused was warned it was a criminal offence to refuse, R. v. Tynkaluk, supra;
whether the accused was told of the consequences of refusal, R. v. Fontaine (1990), 25 M.V.R. (2d) 308 (Alta. Q.B.), R. v. Chance, supra;
whether the accused had been warned that he was being given a final chance to provide a suitable sample R. v. Tynkaluk, supra, R. v. Cameron [1997] O.J. No. 587 (O.C.J.);
where the Crown alleges a failure to provide a sample, the reasons given by the police constable for terminating the testing, R. v. Taylor, supra;
where there is a request to take a further test post arrest, whether the equipment and operator were still available, R. v. Tynkaluk, supra, and, the ease of setup and operation of a screening device (to take a further test), R. v. Chance, supra;
the time delay, if any, between the arrest for failure or refuse and the request for another chance to provide a sample, R. v. Hines [1998] O.J. No. 5831 (Ont. Gen. Div.) eight minutes, R. v. Frianchi, supra immediate;
the reasons given by the police constable for not providing a further opportunity post-arrest if requested R. v. Taylor, supra;
other circumstances which tend to show whether there was a wilful failure or refusal by the accused to provide a suitable sample.
[25] I note, from the outset, that the defendant was cooperative throughout this process as evidenced in the videotape and agreed to by Sgt. Churkoo with the proviso that he did not provide a suitable sample. He can be seen on the video listening to the police, following their demands albeit it would appear not all of their instructions. The defendant can be heard speaking politely and coherently and, while the officers testified as to an odour of alcohol and red bloodshot eyes, there were no other signs of intoxication or impairment on the defendant's part that they noted or that were apparent from the video.
[26] I also note that this entire transaction took place in roughly four minutes with the defendant providing repeated samples of his breath without having been given an initial demonstration or instructions. The officer simply tells the defendant to blow into the machine and puts it in front of the defendant's face. When the first sample is unsuccessful, nothing is communicated to the defendant as to what did or did not occur. The officer just gives his first brief instruction which is to make a tight seal and blow into the machine. When that sample doesn't register, the officer gives his first caution.
[27] As evidenced by the videotape, it is clear that matters escalated quickly. The officer's first caution is given immediately following the second attempt, within 30 seconds of the first attempt and with no explanation given by the officer as to why he was already cautioning the defendant. Certainly, it is not evident from the videotape that the defendant is feigning in his attempts to provide a sample.
[28] After the officer changes the mouthpieces and the defendant provides his third sample, there is again no discussion or explanation as to whether the sample registered or what the defendant is doing incorrectly. The only comment made is that the machine says ready. At this point, Officer MacDonald begins providing instructions as well.
[29] The fourth attempt is also unsuccessful where Sgt. Churkoo indicates for the first time that the defendant is blowing outside the machine. He says he will provide a demonstration and does so but there are no verbal instructions given during that demonstration. Sgt. Churkoo simply changes the mouthpiece and blows into the machine.
[30] It seems clear that the intended purpose of the demonstration from Sgt. Churkoo's perspective was to show that the device was ready and working properly. It is not clear, however, what the defendant is doing incorrectly. Nor is he given any detailed instructions as to what the officer expects him to do. Rather than providing a detailed instruction at that point (or any other point), Sgt. Churkoo tells the defendant that he is only going to be given a couple more chances and then he is going to be arrested.
[31] At this juncture, the defendant has seemingly been cooperative, provided four samples of his breath and has only been given direction in respect of two of those samples. Only two minutes has elapsed yet the defendant is being given competing directions and repeated cautions by two different officers at times simultaneously. It would be completely understandable that an individual would become very nervous and stressed when faced in a situation that escalated so quickly. I accept the defendant's evidence that he became nervous and stressed at this point.
[32] In the two minutes that follow, the defendant makes five more attempts and is given a caution each by Sgt. Churkoo and Officer MacDonald that he is going to be arrested. In respect of two of those samples, no instruction is given to the defendant in respect of the manner in which he is providing the sample. Sgt. Churkoo simply says "No." The defendant tells the officers that he will try again and that he is trying. The response from Sgt. Churkoo is "There is no trying here."
[33] When there is instruction given to the defendant, he is only told that he is blowing outside the machine and that he has to "make a tight seal." The only additional instruction is just prior to the final attempt when Sgt. Churkoo adds "like you are blowing up a balloon." Following that attempt, the defendant is arrested.
[34] It would appear that Sgt. Churkoo was quickly of the view that the defendant was feigning in his attempts to provide a sample, given that he gave his first "caution" after thirty seconds and his second "caution" two minutes later. However, this apparent feigning was not evident in the video. Indeed, while Sgt. Churkoo apparently attributes the defendant's error to not sealing his lips around the mouthpiece, Officer MacDonald is heard providing different advice; namely, to take a deep breath and continue blowing until told to stop.
[35] I appreciate that the defendant was given nine attempts to provide a sample as well as being repeatedly cautioned as to the consequences of a failure but that all occurred within a four minute period in which matters escalated very quickly. Moreover, in at least four of the accused's attempts to provide a sample, he is given no explanation for why the sample isn't registering. He is only directed to provide another sample.
[36] In all the circumstances, the defendant's evidence that he was trying to provide a sample to the police and that he did not wilfully fail to comply with the officers' request leaves me with a reasonable doubt. In reaching this conclusion, I take into account the defendant's immediate and repeated requests to be given another opportunity to provide a sample. Those repeated offers are part of the overall transaction between the police and the accused. I note that the defendant was detained at the roadside for an additional 30 minutes, that the screening device was available and that no satisfactory reason was given as to why the defendant should not be afforded a final opportunity to provide a sample.
[37] I find the defendant not guilty of failing to comply with the demand.
Released: September 17, 2015
Signed: Justice Riun Shandler
[1] R. v. Tavangari, [2002] O.J. No. 3173 (O.C.J.) at para. 16.