Court Information
Ontario Court of Justice
Date: February 23, 2016
Court File No.: Central East Region (Oshawa)
Parties
Between:
Her Majesty the Queen
— AND —
Jamie Turcotte
Before: Justice F. Javed
Heard on: June 17, 2015
Reasons for Judgment released on: February 23, 2016
Counsel
J. Kim — counsel for the Crown
W. Halkiw — counsel for the defendant Jamie Turcotte
Introduction
[1] The defendant, Jamie Turcotte is charged with the offence of failing to comply with a breath demand contrary to s.254(5) of the Criminal Code.
[2] Mr. Turcotte was investigated by Police Constable Birmingham of the Durham Regional Police on the driveway of his residence. A demand was made to provide a breath sample into an approved screening device (ASD). Mr. Turcotte refused to do so out of fear and anxiety.
[3] At trial, he testified and called a psychologist, Dr. Betty Kirshner, to advance his position. Mr. Halkiw on his behalf, submits that PC Birmingham breached Mr. Turcotte's rights under s.8 and 10(b) of the Charter of Rights and Freedoms (Charter) and the evidence of Mr. Turcotte's refusal should be excluded. The parties agreed that the evidence adduced on the various voir dires could apply to the trial proper.
[4] The issues in this case are whether PC Birmingham breached Mr. Turcotte's Charter rights and if not, has Mr. Turcotte met his onus by advancing a reasonable excuse related to his anxiety.
The Evidence
(a) Evidence of PC Birmingham
[5] On June 15, 2014, PC Birmingham, a police officer with 8 years experience, was dispatched at 3:52 a.m. to a call of a possible impaired driver. He was working alone and driving a marked police cruiser. He is 6'1 in height and weighs 225 pounds. On the night in question he was in full police uniform. Information received was that a male driving a silver Mazda had exited a McDonald's drive through yelling into the speaker. The caller got the impression that the driver might be impaired. A license plate of BTVA258 was provided.
[6] PC Birmingham ran the plate and discovered that the vehicle was registered to an address at 72 Somerscales Drive, the residence of Mr. Turcotte. He proceeded to the residence and parked his car 200-300 metres away from the home. He did so to avoid the possibility that a person may try to avoid the police. He saw a vehicle matching the description, which was driving without headlights or taillights, passing his cruiser. He confirmed the license plate to be the same. He noticed the vehicle turning left on Somerscales Drive. He followed and activated his emergency lights with the intention of doing a traffic stop. The vehicle did not immediately stop but instead turned into the driveway of 72 Somerscales Drive.
[7] He positioned his cruiser on the roadway blocking the driveway and could not recall if he left his driver's door open. He did so to prevent the driver from fleeing. Mr. Turcotte exited his vehicle. PC Birmingham approached him and told him that he had been dispatched to a possible impaired driver at a McDonald's. Mr. Turcotte is 6'4 in height and weighs around 220 pounds and confirmed he was recently at McDonald's. He noticed an "unmistakeable odour of alcohol" emanating from Mr. Turcotte's breath. He testified that it was "obvious" as the parties were standing outside and nobody else was around. He did not notice any other indicia of impairment. He asked for his driver's license and registration.
[8] Mr. Turcotte complied and walked to the trunk of his vehicle. He obtained his driver's license from a duffle bag. He asked him how many beverages he had consumed that evening. Mr. Turcotte responded "one beer". He denied telling him "if you tell me how much you had to drink tonight I will give you a break". He asked when he finished his last drink to which he responded "40 minutes ago". He strongly disagreed with the suggestion that he used words to induce him to admit any alcoholic consumption. He denied "tricking" or lying to him.
[9] It appeared to him that Mr. Turcotte understood his questions as he was polite and cooperative. He didn't recall Mr. Turcotte saying "I was the DD and I picked up and dropped off my friends, I'm not under [the] influence". Regardless, he testified that it would have not changed his investigation, as he smelled alcohol emanating from his breath and was responding to the 911 call.
[10] At 4:06 a.m., he formed the suspicion that Mr. Turcotte had alcohol in his body and read him an ASD demand. He responded "yeah whatever". In cross-examination, PC Birmingham was also asked if Mr. Turcotte told him "can I please go into my house" and he responded he may have but couldn't expressly recall. Even if that were the case, it wasn't an option as he was an adult (not a youth) who was being investigated for a criminal offence. He wouldn't have permitted him to knock on the front door as he had "an obligation to perform the ASD forthwith". Although he couldn't recall, it was possible that at that time, Mr. Turcotte had said, he was a DD and to "give him a break". Mr. Turcotte accompanied him to his cruiser which was 15 feet away. He took a seat in the back with his feet out of the car. He did not observe Mr. Turcotte to have any issues understanding him or even walking to his cruiser. He explained that while cooperative, it was clear to him that Mr. Turcotte was not thrilled about his situation and it seemed as if he wanted him to "flip a switch and turn it off".
[11] PC Birmingham showed him how to provide a suitable sample by registering a sample of his own breath, which showed a reading of zero. He showed him the reading. In his mind, it was "crystal clear" to him that Mr. Turcotte knew what was being asked of him. The ASD machine was properly calibrated and in working order. There does not appear to be any issue with this aspect of the case.
[12] At 4:09 a.m., he advised him of the consequences of not providing a sample. He told him the same thing [he] tells everybody which is "not to scare you but to be full frank and fair, the consequences of not providing a sample carries the same penalty". Mr. Turcotte said nothing to indicate he didn't understand this caution or needed clarification.
[13] At this point, Mr. Turcotte made the following comment: "I'm not doing this, arrest me let's go. I understand my rights to the fullest, I'm not being bullied into this. I'm not okay with this." He denied that Mr. Turcotte also said "arrest me, take me to the police station so I could speak to a lawyer".
[14] PC Birmingham interpreted Mr. Turcotte's comments to be a clear refusal. For him, it did not warrant further explanation, although he didn't understand his reference to "bullying" as he hadn't bullied him. It was the first time he had met Mr. Turcotte. He asked him if he was going to provide a suitable sample of his breath to which he responded "no, I'm not, I respectfully decline, good sir". He did not ask him to clarify this response as in his view, "the prior statement [refusal] was pretty self explanatory and there wasn't a need for clarification".
[15] At 4:14 a.m., he arrested Mr. Turcotte for failing to provide a breath sample and handcuffed him to the front. He conducted a field search incident to arrest and found keys to the vehicle in his left jean pocket. While doing so, he continued to detect an odour of alcohol emanating from his breath.
[16] At 4:16 a.m., he seated him in the rear of his cruiser and advised him of his rights to counsel from his police issued card. There does not appear to be an issue with the informational component of the rights to counsel. When asked if he understood, he said "yup". When asked if he wished to call a lawyer he responded "no, I'm [not] trying to debate so not right now". He didn't know what the reference to "debate" meant nor did he press the point as he had read him his rights to counsel from his memo-book. He denied telling Mr. Turcotte that his reference to "now" meant at the police station. He added that if Mr. Turcotte had expressed an interest to speak to a lawyer at the roadside, he would have accomodated the request. According to him, he never asked.
[17] At 4:18 a.m., he was cautioned. He called for a tow truck and completed the ADLS notice. He explained that despite being on his driveway the vehicle had to be towed given the provisions of the Highway Traffic Act. He did not permit Mr. Turcotte to attend in his vehicle again and instead removed some items for him which included a gym bag, wallet, phone and charger.
[18] At 4:30 a.m., he served him with the Form 9 appearance. Mr. Turcotte signed the document and was released. He disagreed that he told him if he didn't sign the Form 9 he wouldn't be released. While doing so, he continued to smell an odour of an alcoholic beverage from his breath, which was not present in his vehicle before he was placed inside.
(b) Evidence of Jamie Turcotte
[19] Mr. Turcotte testified in his defence. He is 22 years old and has graduated with a diploma in operation management from Fanshaw College. He is employed as a financial services representative with TD Bank on a part-time basis. He doesn't have a criminal record nor any prior police involvement. A criminal conviction would be "detrimental to his career".
[20] He described some features of his life, which contributed to his anxiety. His parents separated when he was 11 years old resulting in years of family turmoil. Despite this, he has maintained a good relationship with both his parents and siblings. He wasn't sure if he caused this turmoil so he sought psychological counseling until he was 17 years old. He hasn't gone back. He testified that growing up, he was anti-confrontational and would avoid arguments. He excelled in hockey playing for many years. He avoided fighting in hockey and would often break up fights.
[21] He testified that his impressions of the police were shaped by popular culture and tainted by situations in his life. He found police officers to be intimidating and tried his best to avoid them. He cited a specific incident involving his sister's fiancée who he said was assaulted by the police. He did not witness the alleged incident but when told about it, it "opened his eyes". In counseling, he spoke about his fears in general and how to better deal with difficult situations.
[22] His mother, Roseanne Turcotte, also testified and corroborated the family turmoil and stated that as a young person, Mr. Turcotte was "reclusive" and "clingy". He saw a clinical psychologist for 5 years but stopped as he seemed to level out and was coping. While still suffering from anxiety, he had managed to deal with past trauma. On the topic of police impressions, she recalled one incident on vacation when the issue involving her daughter's fiancée was mentioned, Mr. Turcotte "just froze".
[23] On the date in question, he spent the afternoon with his two closest friends at a pool party. He did not drink any alcohol. At 10:00 pm, they were invited to another party. Since he hadn't consumed alcohol, he drove, designating himself to be their driver for the night. He didn't drink any alcohol until 1-2:00 am, when he drank one beer as they were out of bottled water. The group left at 3:30 am. His friends were extremely intoxicated as they had been drinking all day. They were loud and rowdy and wanted some food. At that time, McDonald's was open so they went to the drive through yearning for hamburgers. The employee told him that they had just changed the menu to breakfast items so they left. His friends were acting "drunk and stupid".
[24] On his way home, he noticed a police car but didn't think anything of it. As he exited his vehicle, the police officer approached him. Nobody was around so he immediately felt anxious. He described that PC Birmingham came "right up to my face" and asked him if he had been at McDonald's and if he was drinking alcohol. He shined a flashlight in his eyes, coming as close to 5-6 inches. He told him that he was the "DD" for the evening and had just dropped his friends off and was going inside his home. PC Birmingham asked him again if he had been drinking to which he responded the same way, which didn't deter him from asking a third time if he was drunk or drinking. This was followed by "listen, I'm trying to give you a break here, tell me if you were drinking or not". As noted above, PC Birmingham denies this conversation took place. He thought to himself that he was in a no-win situation as the Officer would either think he was drinking or lying so he responded honestly by saying "yes, one beer, hours ago". At that point, he was immediately asked to escort him to the police cruiser. He was told that he had to administer a screening device and to accompany him to his cruiser where the ASD machine was located.
[25] Mr. Turcotte testified that he felt "tricked" by PC Birmingham who had "lied" to him that he was going to give him a break. At his cruiser he told him "you just said you were going to give me a break, what's going on here". PC Birmingham ignored him and proceeded to show him how to provide a breath sample. He wasn't confused at this time as he was doing his best to answer his questions. His mother was inside the home. He said "I want to grab my mom" which he ignored. Instead he "stuck" the machine in his face and read him a breath demand. He described being terrified through the whole ordeal. He had no idea how to handle the situation and felt betrayed. He refused to blow into the machine. When asked why he refused, he responded "I had no idea what he would do, I didn't trust him at all with how he got me into this situation. It didn't seem right". He was concerned he would be punched or physically restrained.
[26] He testified that he refused to blow telling him "I'm not okay with this", "arrest me, let's go, I'm not being bullied into this". He explained that knew he was already in trouble. If he didn't blow, he would be arrested regardless. He refused because he didn't trust him. He wanted to speak to a lawyer and his mother who could help him. He felt as if he was bullied into the situation. In cross-examination he agreed that his reference to bullying was part of his general decision not to participate as he didn't appear to have a choice, which included not blowing into the machine. PC Birmingham was largely ignoring his protests and proceeded to ask him if he was going to provide a sample. He candidly responded: "no, I respectfully decline, good sir". He was trying to be respectful.
[27] PC Birmingham then told him he was under arrest. He read him rights to counsel and asked if he wanted to speak to a lawyer "right now". He interpreted this to mean immediately so he wanted to use his cell phone at that time but PC Birmingham said "now" means at the police station. He told him he was confused as to what "right now" means. He didn't know how to handle the situation and didn't tell him that he had a cell phone or a phone in his home. Nor was it ever offered as an option. He didn't know what to do so he signed his promise to appear hoping to clear it up later.
[28] It is noteworthy that Mr. Turcotte was not questioned about his anxiety or phobia of police officers during his interaction with PC Birmingham. Nor did he testify about communicating any of these issues to PC Birmingham.
The Position of the Parties
[29] Mr. Halkiw submits that Mr. Turcotte's refusal was tentative or incomplete. He advances two breaches of his client's rights. First, PC Birmingham didn't have the requisite grounds to make a breath demand thus breaching his client's rights under s.8 of the Charter and second, the police breached his client's rights under s.10(b) of the Charter by not allowing him to contact counsel immediately. He seeks an exclusion of evidence (the statements of the refusal) under s.24(2) of the Charter. Alternatively, he submits that Mr. Turcotte's pre-existing anxiety contributed to his refusal, which on balance, is a reasonable excuse.
[30] Mr. Kim submits that the refusal was not tentative and there were no Charter breaches in this case. Further, Mr. Turcotte's purported excuse is not reasonable, as the pre-existing anxiety and Dr. Kirshner's opinion supporting it, should be given very little weight.
The Applicable Principles
[31] Section 254(2) of the Criminal Code provides:
If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:
(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
[32] In terms of the actus reus, the Crown must establish: (i) a demand by a peace officer authorized under s. 254, (ii) that the device/instrument is approved under s. 254(1) and (iii) a failure by the defendant to comply with the demand.
[33] In terms of the mens rea, the Crown must establish that Mr. Turcotte's failure/refusal to produce the breath sample was intentional. There is currently a debate in the jurisprudence in Ontario as to the proper mens rea for the offence and in particular whether it's a general or specific intent offence. Mr. Kim submits that I should follow the authorities holding that it's a general intent offence where the standard is knowledge or awareness (i.e. recklessness) of the prohibited act. This standard was affirmed in R. v. Porter, 2012 ONSC 3504 per Code J. Other cases take the view that the Crown must prove an intention to produce the failure to provide the sample. For example, see R. v. Lewko, 2002 SKCA 121; R. v. Campbell, [2008] O.J. No. 47 (S.C.J.). For purposes of these proceedings, I need not weigh in on this debate as this case involves a straight refusal. It's not one where Mr. Turcotte tried to provide a sample but due to his anxiety could not. While it doesn't matter, I will proceed on the basis that there's a higher fault requirement.
[34] Accordingly, while the onus remains on the Crown to prove the offence beyond a reasonable doubt, as well as any breach of s.8 of the Charter, Mr. Turcotte bears the onus on a balance of probabilities, both on the alleged s.10(b) Charter breach and the defence of reasonable excuse.
Analysis
[35] The determination of this case really turns on whether Mr. Turcotte has discharged his onus as to whether he had a reasonable excuse in refusing to blow. In considering this issue and making credibility assessments, I am guided by the three-part test in D.W. v. the Queen. For reasons that I will expand on below, I do not find that PC Birmingham breached his rights under ss.8 and 10(b) of the Charter. I would not exclude the evidence of the refusal under s.24(2). I propose to address the Charter issues tracking the elements of the offence.
(i) Was there a lawful demand under subsection 254(2)(b)?
[36] Mr. Halkiw submits that PC Birmingham breached Mr. Turcotte's rights under s.8 of the Charter as he did not have "reasonable grounds to suspect" that Mr. Turcotte had alcohol in his body at the time of the roadside demand. Mr. Kim submits that the police did have the requisite suspicion.
[37] Reasonable suspicion means "something more than a mere suspicion and something less than belief upon reasonable and probable grounds". The Supreme Court of Canada explained in R. v. Chehil, 2013 SCC 49 that reasonable suspicion is a lower standard than reasonable grounds as it engages reasonable possibility, rather than probability of crime. In assessing whether or not this threshold is met, a reviewing court must have regard to the "totality of the circumstances". An officer does not have to believe that an accused committed a crime. (R. v. Lindsay)
[38] The smell of alcohol on a driver's breath is sufficient grounds to form a reasonable suspicion for the roadside screening device demand notwithstanding that a driver might have an explanation for it. Moreover, the smell is enough to satisfy the reasonable suspicion standard even in situations where the driver denies prior consumption of alcohol. See Lindsay, supra, R. v. Carson, 2009 ONCA 157. Further, a police officer is entitled to rely on hearsay information in forming a reasonable suspicion for a screening device demand. See R. v. Regan, [2005] O.J. No. 2355 (C.A.) at paras.12-23.
[39] In this case, PC Birmingham testified that he responded to a 911 call where he was told of a possible impaired driver. Mr. Turcotte doesn't dispute that his friends whom he was driving through the McDonald's drive through were inebriated and acting out of character. He himself was not acting "drunk" as he was the designated driver. He also admitted to consuming one beer, which, along with the smell of alcohol on his breath, would have furnished PC Birmingham with grounds to suspect that Mr. Turcotte had alcohol in his body. I accept the evidence of PC Birmingham that he detected an odour of alcohol on the breath of Mr. Turcotte which didn't dissipate throughout his dealings with him. It was present initially during his conversation on the driveway and while he was seated in his cruiser. I'm satisfied that based on the totality of the circumstances, including the time of day, information he received, the admission by Mr. Turcotte of consuming one beer and the smell itself, he had reasonable grounds to suspect that Mr. Turcotte had alcohol in his body. From an objective and subjective standpoint, there was more than sufficient cause for a roadside breath demand under subsection 254(2)(b) of the Criminal Code. Accordingly, I do not find that he breached Mr. Turcotte's rights under s.8 of the Charter.
(ii) Was the instrument used an approved screening device?
[40] This issue doesn't appear to be in dispute. I am satisfied that the approved screening device was an approved instrument for purposes of section 254 of the Criminal Code. In submissions, Mr. Halkiw conceded as much.
(iii) Did Mr. Turcotte fail to comply with the demand?
[41] This issue was also not pressed by the parties and in my view, the evidence establishes that Mr. Turcotte had no difficulty understanding the demand that was made of him. There is no evidence to suggest that the ASD malfunctioned or was not operating properly. It had been calibrated and PC Birmingham believed that it was working properly. Mr. Turcotte doesn't dispute this. Mr. Turcotte did not have any difficulties in understanding the demand. He responded "yeah whatever". This was followed by a clear refusal: "I'm not doing this, arrest me let's go. I understand my rights to the fullest. I'm not being bullied into this. I'm not okay with this". In my view, there can be no dispute that he failed to comply with the demand. The statement "arrest me, I know my rights to the fullest" is clear in its meaning and would have been sufficient to permit PC Birmingham to not try to persuade Mr. Turcotte to do otherwise.
[42] The statements of Mr. Turcotte that he wouldn't blow into the machine were not the subject of a voluntariness voir dire. While this issue was not argued by the parties, the evidence of the refusal did not require a voir dire because it formed part of the actus reus of the offence. See R. v. Rivera, 2008 ONCJ 57. I will return to this issue later as it's also relevant to the alleged Charter breach under s.10(b).
[43] I am satisfied that in considering all the circumstances of the entire transaction between Mr. Turcotte and PC Birmingham, his comments were clear – he was not going to provide a breath sample. The refusal was express and unequivocal. PC Birmingham went further and made sure he understood the consequences of not providing a sample. I find that the response "no I'm not, I respectfully decline, good sir" while bizarre, was self-explanatory. PC Birmingham was justified in not taking extra efforts to make sure he understood the implications of the decision that Mr. Turcotte was making. This was not a case where there was ambiguity in the response or even some reluctance on Mr. Turcotte's part. He was not obligated to debate the issue and try to persuade him to blow. Mr. Turcotte made a firm decision and the investigation proceeded accordingly. The actus reus has been proven.
(iv) Was the failure to provide a breath sample intentional?
[44] Subsection 254(5) criminalizes the conduct of anyone who without reasonable excuse "fails or refuses" to comply with a lawful breath demand. This is not a case of a "failure" where attempts were made to provide a sample but were unsuccessful for some reason. Instead, this is a case where Mr. Turcotte refused, indicating that he would not provide a sample. Mr. Halkiw submits that Mr. Turcotte's refusal was "tentative" and predicated on a breach of his client's rights under s.10(b) of the Charter. Mr. Kim disagrees.
[45] While framed generally as a breach of s.10(b), I understood Mr. Halkiw's submission to have two prongs. First, the police were obligated to allow Mr. Turcotte to exercise his right to counsel prior to the refusal and second, they failed to permit him to implement his right. Further, he submits a breach of this right impacts the "fairness of the trial" and thus should be excluded under s.24(2). With respect, both arguments fail on this record.
[46] Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The right contains both an informational and implementational component. The underlying purpose of s.10(b) informs the content of these components. That purpose has been described as ensuring "that a suspect is able to make a choice to speak to the police investigators that is both free and informed". See R. v. Sinclair, 2010 SCC 35. Section 10(b) is designed to effect that purpose by ensuring that detainees have an opportunity to be informed of their rights and obligations under the law and obtain advice on how to exercise those rights and perform those obligations.
[47] However, the law is well settled that the above right to counsel is suspended at the roadside while police conduct brief sobriety tests and inquiries – the type of inquiry that PC Birmingham was making in this case. In R. v. Bleta, [2012] O.J. No. 944 (S.C.J.) Justice Code explained at paragraph 5:
This suspension of rights is due to the operational necessities of various statutory and common law roadside sobriety testing regimes which are s. 1 "reasonable limits" on the driver's Charter rights. The quid pro quo for this suspension of Charter rights is that the incriminating results of these tests and inquiries have limited admissibility at a subsequent trial and can only be used to provide the grounds for an arrest and for a breathalyzer demand pursuant to s. 254(3). See: R. v. Elias and Orbanski, 2005 SCC 37; R. v. Milne; R. v. Coutts.
[48] Accordingly, the right to counsel under s.10(b), while engaged upon detention, crystalized upon arrest. In this case, the appropriate time frame for analysis is after Mr. Turcotte had been arrested, not before. Prior to this time, there was no legal duty on PC Birmingham to advise Mr. Turcotte of his right to counsel and help him exercise that right. Upon arrest, PC Birmingham was obligated to inform Mr. Turcotte of his right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel and if Mr. Turcotte had indicated a desire to exercise this right, provide him with a reasonable opportunity to exercise this right and to refrain from eliciting evidence from him until he had this reasonable opportunity. There does not appear to be much controversy about the informational component of the right to counsel upon arrest. I find that it was met in this case. The complaint is the alleged failure of PC Birmingham to allow Mr. Turcotte to exercise this right in the manner in which he desired.
[49] The implementational duties on the police are not triggered until detainees indicate a desire to exercise their right to counsel. Absent an articulated desire to do so, the police have no duty to either provide a detainee with a reasonable opportunity to exercise the right or to refrain from eliciting evidence from the detainee until they have had a reasonable opportunity to exercise the right. Here, I find that after PC Birmingham provided Mr. Turcotte with his rights to counsel, Mr. Turcotte clearly understood by stating "yup" but declined to exercise the right. I accept the evidence of PC Birmingham that he responded "no, I'm not trying to debate so no not right now". Mr. Turcotte explained in his evidence that he refused to provide a sample because he felt he had been "tricked" by PC Birmingham into admitting alcoholic consumption. He said that PC Birmingham told him that he "he would give him a break if he admitted alcoholic consumption". I have difficulty accepting the veracity of this as PC Birmingham received the information from a 911 dispatch and had no reason to doubt it. Moreover, he smelled alcohol on Mr. Turcotte's breath, which together would have given him the requisite grounds. It does not make sense that he would go further by lying to him about giving a break. The demand did not hinge on the admission of alcohol. If anything, PC Birmingham was set on performing his duties as opposed to taking a more conciliatory approach to the events as they were unfolding. I cannot accept that he was actually "tricked" despite feeling this way.
[50] Mr. Turcotte testified that he was doing his best to answer the questions posed to him and was terrified about the whole ordeal. I don't doubt that any encounter with a person in authority especially a police officer on one's driveway early in the morning with nobody around can be daunting. This is especially the case because I can understand Mr. Turcotte's point of view that in his mind, he didn't commit a criminal offence but was being investigated for one. He thought he was being unfairly singled out but with respect, this was misguided. I do not find he was treated unfairly. Be that as it may, it does not excuse not complying with a lawful demand. He understood what was being asked of him but didn't want to participate. Mr. Turcotte explained that he wanted to speak to a lawyer and his mother who could help him and felt that he was being "bullied". He wanted to use his cell phone to make a call but was confused. He didn't have a clear understanding of what was going on. He was desperate to get into his home. I have great sympathy for Mr. Turcotte and his predicament at the time, but the difficulty is, for purposes of the Charter, none of this information about how he felt or that he wanted to call a lawyer from inside his home was ever communicated to PC Birmingham.
[51] I do not find that his comment "no not right now" was a desire by Mr. Turcotte to exercise his right to counsel later on. Instead, when I assess the circumstances as a whole, the comment was indicative of his desire to terminate the investigation as quickly as possible and enter the safe confines of his home. As a result, the duties on PC Birmingham to implement his right to counsel never arose because I accept PC Birmingham's evidence that Mr. Turcotte declined to speak to counsel. Nor was there a correlative duty on PC Birmingham to probe Mr. Turcotte's mindset as to why he was alleging certain things – such as being bullied or debating with him. There was no debate. There's a difference between not being overly sensitive to one's predicament and disregarding one's Charter rights. What is debatable is whether PC Birmingham could have treated Mr. Turcotte more gently, but in my view, he did not breach his Charter rights. Mr. Turcotte might have felt bullied but had no reason to feel as such. Based on my findings of fact, I do not find this to be the case nor am I left in reasonable doubt about the issue. I do not find that Mr. Turcotte has met his onus under s.10(b) of the Charter.
[52] However, even if am I wrong that there was a breach of s.10(b) of the Charter on the basis that Mr. Turcotte's expression "no not right now" was a desire to exercise the right in the future, I would not exclude the evidence under s.24(2). In my view, Mr. Halkiw's argument that to admit the evidence of a tentative refusal would impact the "fairness of the trial" does not arise on this record because the circumstances involve one of a clear refusal as opposed to a constructive one where a series of events, including statements made by Mr. Turcotte ultimately lead to the refusal. Since the refusal itself formed the gravamen of the offence and preceded any alleged breach of the Charter, it was not obtained in a manner that violated the Charter. This principle was established in R. v. Hanneson and recently affirmed by Justice Code in Bleta, supra. He stated that in breath sample refusal cases, the accused's conduct in response to a breath demand could itself constitute the offence, and therefore is admissible pursuant to the actus reus exception. Accordingly, the limited use of the incriminating evidence exception carved out by the Elias court does not apply to cases where there's a clear refusal because the refusal itself is the offence. This analysis is even more pointed in cases involving a roadside demand pursuant to s.254(3)(a) where the right to counsel is subject to an override under s.1 of the Charter (see paras. 33-44).
[53] Here, the refusal was "not obtained in a manner that violated the Charter" because the refusal formed part of the actus reus of the offence. The offence was completed before the right to counsel issue arose. As a result, the circumstances foreclose me from even considering the Charter issue. This is not a case where the right to counsel at the roadside was not suspended, such as cases involving a breath demand into an approved instrument. See R. v. Cobam; R. v. Williams. Nor is it a case where the refusal at the roadside was not clear and involved some attempts before it crystalized engaging a voluntariness inquiry. See R. v. Rivera, supra. This was a case of a clear refusal.
[54] Moreover, there is no evidence that had Mr. Turcotte been given an opportunity to consult with counsel he would have changed his mind. He didn't ask for a second chance at any point during the interaction. By the time he was given his right to counsel, the offence had been committed. This is not a case where the refusal had to be inferred from all the circumstances, which might attract Charter scrutiny. I disagree that the refusal was tentative or put differently, constructive. Unlike Rivera, supra, there were no attempts or even feigned attempts. Mr. Turcotte was strident in his position – he was refusing.
[55] In a case where there's a refusal, the proof of mens rea is often dependent on circumstantial evidence. Here, when considering the entire interaction between him and PC Birmingham, there's a common sense inference that he simply was not going to budge on his refusal and he intended to refuse. As the Supreme Court explained in R. v. Seymour at para 19: if a person does an act likely to produce certain consequences, it is in general, reasonable to assume that the accused also foresaw the probable consequences of his act and if he nevertheless, acted so as to produce those consequences, that he intended them. The greater the likelihood of the relevant consequences ensuring from the accused's act, the easier it is to draw the inference that he intended those consequences." Even if I were to apply a higher fault requirement espoused by the Lewko authorities, the circumstances result in a compelling inference that Mr. Turcotte's refusal to provide a breath sample was intentional.
[56] In my view, the Crown has proven a prima facie case. I now turn to whether in light of the circumstances highlighted above, could Mr. Turcotte's refusal be excused.
(v) Did Mr. Turcotte have a reasonable excuse for refusing to provide a sample?
[57] A "reasonable excuse" is not a denial of either the physical or mental elements of the offence but refers to matters that stand outside the requirements that the Crown is obliged to prove. It must be some circumstance, which renders compliance with the demand either extremely difficult or likely to involve a substantial risk to the health of the person on whom the demand has been made. The test to be applied as to whether an "excuse" is a reasonable one is an objective one. See R. v. Pletas, 2014 ONSC 1568 at para. 67; R. v. Fuglerud, [2012] O.J. No. 5467 (S.C.J.) at para. 15.
[58] In R. v. Goleski, [2015] S.C.J. No. 6, the Supreme Court of Canada confirmed that the burden of raising a defence of "reasonable excuse" in refusing a breath demand lies with a defendant as opposed to the prosecution. The court adopted with approval the comments of Doherty J. in R. v. Moser at 176 (C.A.) where he stated:
The essential elements of the offence described in s. 254(5) consist of a proper demand and a refusal or failure to comply with that demand. The defence of "reasonable excuse" is not a denial of either of those essential elements but refers to "matters which stand outside the requirements which must be met ... before a charge can be supported": per Laskin J. in Taraschuk v. The Queen.
The defence of "reasonable excuse" is engaged only after the Crown has proved a proper demand and a failure or refusal to comply with that demand.
[59] Mr. Turcotte testified that he refused to provide a breath sample because he did not trust PC Birmingham and thought that he had been "tricked" into admitting alcohol consumption so he refused to participate further. Mr. Turcotte didn't specifically testify that he was suffering from an anxiety driven panic attack or some other medical ailment that rendered him unable to blow. Nor did he testify about any medical history that would support this position. Instead, he explained his state of mind at the time and what he meant by the various comments he made to PC Birmingham. In effect, he advanced a psychological, not medical excuse.
[60] In R. v. Malicia, [2004] O.J. No. 6106 (S.C.J.) Epstein J.A (as she then was) wrote at paragraph 32 in the context of a medical excuse:
32 I adopt the statement of law enunciated by Richard J. of the Yukon Territory Supreme Court in R. v. Pederson, [1993] Y.J. No. 72, dated March 25, 1993, where he states at paragraphs 5 and 6:
"In my respectful view, the trial judge, in his oral reasons, correctly stated the law as to when a medical condition constitutes a "reasonable excuse" in the context of s. 254(5):
"The law is clear that if a person cannot provide a sample of this kind by reason of a medical condition that is a reasonable excuse. Now, when say he cannot provide a sample, this does not mean that it is absolutely and utterly impossible for him to provide a sample. It means that the medical condition must make it either extremely difficult or extremely painful and/or uncomfortable or involve some risk to the accused's health. So it is not an absolute, but it must be a condition which, as I say, makes compliance extremely difficult. It is simply not the case that any respiratory difficulty which makes it more difficult for the accused than for the average person involves a reasonable excuse."
This statement of the law is in accordance with R. v. Nadeau, (1974), 19 C.C.C. (2d) 199 (N.B.S.C. App. Div.) and R. v. Phinney. And the onus is on the accused person to satisfy the trial judge that he had a reasonable excuse. I refer to R. v. McDougall as well as R. v. Phinney, supra.
[61] She went on to note that "the question therefore comes down to whether Mr. Malicia has satisfied me that proper compliance with the breath demand would have been extremely difficult or painful and/or uncomfortable". I find this analytical approach persuasive even in the context of a psychological excuse because it places the burden on the defendant to bring this information to the forefront when it can't be expected of a police officer engaged in an investigation to reasonably know this. This is more so in cases of a psychological issue because a medical/physical issue may be more obvious. The difficulty with Mr. Turcotte's position is that there is no evidence before me that he made efforts to bring these issues to the attention of PC Birmingham, which would have rendered his refusal to blow, more reasonable. I could reasonably surmise that if Mr. Turcotte had made his anxiety an issue, the police investigation could have taken a different turn. Here, not one attempt was made to blow. In the many cases that I have pored over in considering my decision, most, if not all cases involve defendants who at least made some efforts to blow but for some reason, medical or otherwise, couldn't successfully provide a sample.
[62] I find that on Mr. Turcotte's evidence, his conduct wouldn't amount to a lawful reasonable excuse. He didn't comply with the demand because he felt he was being treated unfairly and panicked. At no time did he try to provide a sample or communicate to PC Birmingham that he felt anxious or scared about his predicament. He never related his anxiety to his ability (or inability) to blow.
[63] I am left to consider whether, in light of his psychological state at the time, whether he was in a position that he couldn't even communicate his difficulties to PC Birmingham rendering his inactions, legally excusable. In this regard, the success of the reasonable excuse defence, if any, depends on the expert evidence of Dr. Betty Kirshner who testified that Mr. Turcotte was pre-disposed to anxiety, which would explain his behavior.
[64] Dr. Kirshner's evidence commenced as a voir dire into her expert opinion as Mr. Kim initially took the position that she was not a properly qualified expert and her evidence wasn't admissible under the Mohan criteria. By the end of the proceedings, Mr. Kim submitted that her opinion should be admitted but given very little weight. In support of this position, Mr. Kim cites several reasons: (i) it was based on a self-report by Mr. Turcotte, (ii) it was after the alleged offence, (iii) it wasn't neutral, (iv) it was hastily prepared, (v) the methodology was flawed and (vi) it overreached in its conclusions.
[65] I have considered Dr. Kirshner's evidence very carefully. Given the circumstances of this case, I'm of the view, that it's entitled to little weight on the issue of whether it assists in reasonably explaining Mr. Turcotte's behavior of refusing to comply with the demand. I arrive at this conclusion, for two reasons, the first of which is dispositive of the issue.
[66] First, I am not satisfied that Dr. Kirshner's opinion that Mr. Turcotte was pre-disposed to anxiety is entirely relevant to the decisive issue, which is Mr. Turcotte's actions (or inactions) towards PC Birmingham. While it may be an after the fact explanation for his actions, it certainly does not help in explaining the reasonableness of his inactions in raising the issue with PC Birmingham. If Mr. Turcotte was pre-disposed to anxiety, this means that his psychological issues existed at the time and manifested during the interaction. However, this pre-disposition also means that it would have been reasonable for Mr. Turcotte to raise the issue with PC Birmingham. On this record, he did not. Accordingly, Dr. Kirshner's opinion is of limited weight because it does not assist with the reasonableness of his actions. Mr. Halkiw did not point me to any authority which stands for the proposition that there was a positive duty on PC Birmingham to take steps to ascertain the source of Mr. Turcotte's behavior and refusal. Nor do I think in the post-Goleski era, such a proposition would be consistent with the burden that exists squarely with the defendant – not the Crown.
[67] Second, Mr. Kim attacked the soundness of her clinical impression that he was pre-disposed to anxiety. I disagree. Dr. Kirshner was extensively challenged on her opinion and in my view, any deficiencies, relate to the opinion being incomplete as opposed to being flawed. To place this submission in context, I propose to set out the methodology of the opinion.
[68] Despite Mr. Kim's concession, I would have qualified Dr. Kirshner as an expert. She has extensive experience in several areas including: issues of personality, risk of violence, re-offending, parenting, child development and competence to waive the right to have a lawyer. She has also opined on the state of mind of a person at the time of an offence. She has testified in a courtroom on 12-15 occasions.
[69] Dr. Kirshner's overall opinion was that Mr. Turcotte had a traumatic confrontation with PC Birmingham. While she could not diagnose any pre-existing medical issues, her clinical impression was that he was pre-disposed to anxiety, which explained his behaviour. She has subsequently diagnosed him with post-traumatic stress disorder and a specific phobia of police officers. As stated above, the issue with Dr. Kirshner's evidence is not with what it says but rather what it can't say. It may explain why Mr. Turcotte acted the way he did, but it can't speak to the objective reasonableness of his actions.
[70] To be clear, if Dr. Kirshner had testified that Mr. Turcotte's pre-disposition to anxiety rendered him physically incapable of blowing or even incapable of objectively communicating his fears to PC Birmingham, it would be probative of a live issue – but that's not what she said. In passing, she testified that Mr. Turcotte's actions on the night in question were akin to an "automaton" but this was qualified with her view that he wasn't thinking clearly. She did not testify, nor was it pressed by Mr. Halkiw, that her opinion supports a legal basis for a non-insane automatism verdict or put differently, that his involuntary actions did not stem from a disease of the mind. I find that there is simply no basis for such a position on this record. See R. v. Stone.
[71] In my view, the fact that her expert opinion cannot assist on the decisive issue in this case is dispositive of the diminished weight I attach to it. I need not fully consider Mr. Kim's other complaints of her opinion. However, given that the parties expended time on the evidence, I will offer some brief comments. In White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23, the Supreme Court reminded courts that trial judges have an ongoing gatekeeping function which takes place not only at the admissibility inquiry but also at the stage of receiving and weighing the evidence. Here, the admissibility of the evidence was conceded. I do not fully share the concern of Mr. Kim that she wasn't neutral. Instead, given the time constraints, I'm of the view that the opinion was not fully developed. I can't really fault Dr. Kirshner for this as her "mandate" was to explain why Mr. Turcotte was frightened by the ordeal.
[72] Dr. Kirshner was retained on an urgent basis. She is a tenant in Mr. Halkiw's office building, but in my view, not much turns on this. She met with Mr. Turcotte on June 9, 2015. She authored her report the following day. After completing her report, she didn't have the opportunity to conduct a follow up meeting given the time restraints but checked in on him by telephone.
[73] She interviewed Mr. Turcotte for 2.5 hours and had him fill out a multiple choice questionnaire known as a personality assessment inventory (PAI) (Exhibit 5). The PAI contains approximately 344 pre-printed questions and captures responses, which is then used as a statistical assessment to measure against other groups. The results do not diagnose but rather, produce a "score" which is used to interpret data and measure it against related groups. Thus, while the PAI is objective to some extent, it's interpretation is subjective. Mr. Turcotte was left alone to fill out the PAI and didn't appear to have any issues completing it. Both counsel took the position that despite any proprietary interest in the questionnaire, the PAI should be filed as an exhibit. Given the use that was made of it a trial, I agreed with the proviso that it would be sealed to prevent public dissemination and risk exposure of the private questions.
[74] She opined that at the time of interviewing him, Mr. Turcotte was pre-disposed to psychological issues and had pre-existing anxiety. This became clear to her when he recounted the events on the date in question. While some of this was probed by Mr. Kim, I have not placed too much weight on this because the issue of why he didn't address his anxiety with PC Birmingham wasn't explored. She determined that he was suffering from traits similar to post-traumatic stress disorder (PTSD). He also met the criteria of having phobias towards police officers. The difficulty is that the report doesn't adequately address the issues of why he wasn't able to address his phobia of police officers even if they were pre-existing. At trial, Mr. Turcotte maintained this position but his conduct on the day of seems to suggest otherwise, as he was engaging with PC Birmingham, respectful and according to PC Birmingham, didn't show any signs of being afraid.
[75] In preparing her report, she had the following sources of information: Mr. Halkiw's letter, a guilty plea synopsis, her interview notes and the results of the PAI. She did not source other medical records, counselling records nor interview other people. In her career, she had completed many assessments and agreed that motivation of the person was an important feature between somebody who is assessed (such as Mr. Turcotte) as opposed to being treated. This of course depends on the self-reported information that she receives. In this case, her report was based on the information provided by Mr. Turcotte and that was gleaned from the PAI.
[76] Mr. Kim submits that she wasn't neutral in her findings as they were skewed by Mr. Turcotte's self report which was difficult to confirm. In particular, he points to the "Validity of Test Results" section in the PAI, which warns against the effect of negative impression management. Among other conclusions, it states: "although the results do not suggest that this level of distortion is sufficient to render the test results invalid, the interpretive hypotheses that are presented in this report should be reviewed with this possible distortion in mind." In cross-examination, Dr. Kirshner acknowledged that she didn't specifically explain or deal with these various concerns in her report. She stated that they were "cautionary statements" and she took them into account when preparing her report.
[77] I am satisfied that Dr. Kirshner took care to arrive at her diagnoses of PTSD and phobias but again not much turns on this in this case. I don't doubt that Mr. Turcotte currently suffers from psychological issues related to his background. I even accept that he's pre-disposed to anxiety but again, she was not asked to offer a diagnosis of his actions at the time. In White Burgess Langille Inman v. Abbott and Haliburton, supra, the Supreme Court cautioned that experts have a special duty at common law to assist the court by giving fair, objective and non-partisan evidence. Here, Dr. Kirshner testified that it would be "unethical" for her to diagnose Mr. Turcotte at the time of the offence as she had had not treated him in the past. In my view, this was a reasonable position to take.
[78] While Mr. Kim may doubt her impression that he was pre-disposed to anxiety, it does not matter much because it only explained why he was "frightened" as she was asked to confirm. It doesn't go further in explaining the reasonableness of his inactions and failure to blow. In the end, not much turns on Dr. Kirshner's evidence as I must assess the reasonableness of Mr. Turcotte's refusal at the roadside. I must do so from an objective point of view. There is a paucity of evidence as to the efforts he made to bring his pre-existing fear or anxiety to the attention of PC Birmingham. The expert evidence labels his conduct but doesn't help in reasonably explaining it. Accordingly, I give it very little weight.
[79] This is not to say that anxiety can never ground a reasonable excuse for failing to blow. However, in all cases where the defence has succeeded, the actions of the accused at the time, not after the fact were assessed. In each case, the defendant tried to blow but couldn't.
[80] Mr. Halkiw cited the case of R. v. Ohene, [2003] O.J. No. 3829 (C.J.) wherein Defillipis J. acquitted an accused who was suffering from self induced emotional stress and anxiety and could not blow into a breathalyzer machine. However, unlike this case, the defendant tried to blow into the machine but could not produce an adequate breath sample. He accepted the evidence of a respiralogist who testified that the ASD machine in question required 5 seconds of continuous blowing and the police instruction of "blow as if into a balloon" was misleading.
[81] Similarly in the case of R. v. Mason, [2011] O.J. No. 3941 (C.J.), Thibodeau J. acquitted a defendant who testified that he was suffering from an anxiety given his prior involvement with the police. However, the court in that case was persuaded that the onus was met because Mr. Mason had a pre-existing diagnosis of anxiety for which he was prescribed medication for 3 years and was seeing a psychiatrist. Unlike this case, which is not a failure, there the defendant made five attempts to blow into the machine and his mental state was corroborated by the police officer who was administering the test. Also see Rivera, supra where the defendant tried to blow on 21 occasions but due to anxiety, couldn't.
[82] Many motorists who are detained at a roadside and asked to provide a breath sample may find the process riddled with anxiety. The psychological stress may be worse for those who are pre-disposed to anxiety as opposed to those who aren't anxious. The law doesn't treat these groups of people any differently. The legal test is, despite this anxiety, were the actions of the detained motorist objectively reasonable if one refuses to blow. On this record, I am not satisfied that Mr. Turcotte's actions or better yet, inactions, meet this legal test.
[83] As a final thought, I have not lost sight of the potential unfairness in this case. According to Mr. Turcotte, he was not drunk and had he provided a breath sample, he potentially would not have not registered a fail, which may have ended the police investigation. Unfortunately for him, that didn't happen. On occasion, the criminal law can be a blunt instrument. Regrettably, for Mr. Turcotte, on this occasion it will criminalize a grave error in judgment.
Conclusion
[84] Mr. Turcotte has not met his onus that his failure to blow amounted to a lawful reasonable excuse. Accordingly, he will be found guilty of the offence. I would like to thank both counsel for their assistance with this matter.
Released: February 23, 2016
Justice F. Javed