Ontario Court of Justice

Date: July 19, 2016

Court File No.: Newmarket 15-05313

Between:

HER MAJESTY THE QUEEN

— AND —

SELVA THAMBIYAIAH

Before: Justice Joseph F Kenkel

Heard on: 21 June 2016

Judgment: 19 July 2016

Counsel

Mr. Brian McCallion — counsel for the Crown

Mr. Christian Pearce — counsel for the defendant

Decision

KENKEL J.:

[1] Mr. Thambiyaiah was charged with failing to comply with an approved screening device (ASD) demand contrary to s. 254(5) of the Criminal Code.

[2] The defence concedes that the accused was lawfully subject to the ASD demand. The sole issue is reasonable excuse – the accused failed to provide an adequate sample as required, but there was no outright refusal. The defence submits that language difficulties including the accused's request for an interpreter which was difficult to hear and not understood by the officer reasonably explains the confusion and the accused's failure to follow the instructions sufficiently to provide a suitable sample.

[3] Sergeant Hogan was very thorough and very patient with the accused. He explained and demonstrated the proper way to perform the ASD test. After 5 unsuccessful attempts where the accused stopped blowing before a suitable sample was captured, the officer demonstrated a proper blow again using the same ASD. After the accused failed 3 further attempts Mr. Thambiyaiah was charged with failing to comply with the ASD demand.

[4] Given the officer's patience, the plain demonstrations and the relative ease with which the officer provided a suitable sample the Crown may be right that the accused understood what was required regardless of his level of English comprehension. The officer would have taken further steps had he realized the limits to the accused's English but the accused's statements in that regard were very difficult to hear on the video and given other things the accused did say it's understandable why the officer wasn't alerted to the need for an interpreter.

[5] The defence submission is supported by the accused's efforts to provide a sample on the video. A number of times the accused appeared to provide continual shorter blows, apparently not understanding the requirement for one long continuous blow. That's the type of nuance that reasonably might not be understood by someone with limited English. The accused's request for an interpreter at the time, his statement that he didn't understand and the defence evidence of his limited understanding of English all provide a reasonable excuse.

[6] Considering the evidence as a whole I find that the evidence discloses a reasonable excuse due to language difficulties. The charge is dismissed.

Released: July 19, 2016

Justice J.F. Kenkel