Ontario Court of Justice

Date: 2015-12-10 Court File No.: Brampton 14-9423

Between: Her Majesty the Queen — and — Ashoka Ramlall

Before: Justice D.F. McLeod

Heard on: November 3, 2015

Reasons for Judgment released on: December 10, 2015

Counsel:

• Beaton, counsel for the Crown
• Buckler, counsel for the defendant Ramlall

D.F. McLEOD J.:

Legal Framework

[1] Section 254(5) provides that everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand. The statutory defence of "reasonable excuse" and the similar defences of "lawful excuse" and "lawful justification" appear in a number of offence-creating provisions of the Code. "Reasonable excuse" refers to matters that are extraneous to the essential elements of the offence. It is an admission that those essential elements have been established, combined with an assertion that some additional fact or facts precludes the imposition of criminal liability. The defence is both fact and offence specific. R v. Moser (1992), 71 C.C.C. (3d) 165 (O.C.A).

Defence Position

[2] The defendant submits that the reason he could not comply with the demand was due to his emotional state, which prevented his compliance.

[3] The defendant testified that he was nervous and felt that the condition that he found himself in was as a result of his interaction with the police. His testimony was that he had a lot on his mind as a result of the stop because this was his 2nd interaction with the police for an issue concerning impaired driving.

[4] Mr. Ramlall gave evidence that he was scared, and in turn nervous, when he realized that the police were travelling so close to his vehicle. He went further to testify that part of the origin of his fear had to do with the fact that he felt he may not provide a proper sample in light of the fact that he had one drink earlier. His emotional state manifested itself with his legs shaking and his lips trembling at the time the test was being administered.

[5] Mr. Ramlall stated that the officers were not intimidating; they did not yell at him nor was there any cursing at any time.

[6] After his 6th attempt, he was placed under arrest for 'failing to provide a breath sample.' PC Paradis does not recall seeing Mr. Ramlall shaking, nor does he recall at any point the defendant indicating that he was nervous or seeing his lips shuttering.

[7] The crown submits that Mr. Ramlall has not provided a sufficient enough justification to render this court persuaded that he could not comply with the demand to provide a breath sample.

Analysis

[8] The interplay between a police officer and civilian is generally anxiety-filled. The situations where police interact with everyday citizens are generally for reasons that involve an infraction, civil disobedience, or for investigative purposes. Most scenarios would leave the ordinary person – even those with the perception that they have done nothing wrong – with a heightened sense of anxiety.

[9] The scenario as it presents itself with respect to this matter is no different than that which happens on a regular and ongoing basis with respect to interactions between constable and civilian.

[10] Firstly, the catalyst of the emotional response by Mr. Ramlall is more a consequence of his past interaction with the police, which evolved as a result of a prior offence that was driving related. Secondly, and perhaps even more telling, is that his anxiety is triggered due to the understanding that he drank prior and may very well not pass the breath test.

[11] I am, however, sympathetic and open to those scenarios which have at their root some historical or physiological underpinning which expresses itself to such a degree that its impact takes on a physical manifestation.

[12] In the case of R v. Ohene [2003] O.J. No 3829 the Court observed the defendant whilst he was testifying, as well as taking into account the activities preceding the stop (such as the documentary that was watched by the defendant and the fact that he did not stop for the police until he was in a well-lit area). Which seemed to inform not only the actions of the accused but also his interaction with the police.

[13] In the matter before me, Mr. Ramlall gave his testimony in a forthright manner: his tone was even and his response time was typical for anyone testifying in a court setting. I note his court demeanour because when asked by the crown attorney if he was nervous whilst testifying, his response was in the affirmative. However, his actions were not consistent with those he claimed to exhibit when in police custody on the night in question.

[14] I was not provided with any evidence outside of a past infraction, which moves this court to believe that his non-compliance was a result of a valid defence.

[15] Do I believe that Mr. Ramlall was nervous when interacting with the police? I do. Do I believe that Mr. Ramlall was concerned about the ramifications of said interaction, which may occasion him in the event that he is charged with another driving offence? I do. However, I do not believe that his anxiety was a marked departure from that of a reasonable person similarly situated.

[16] The defendant has not satisfied me that it is more likely than not that he was so emotionally upset when being investigated that he could not comply with the demand to provide a breath sample. I therefore find him guilty of the charge before the court.

Released: December 10, 2015

Signed: "Justice D.F. McLeod"