Court File and Parties

Court File No.: Brampton 15-12703 Date: 2017-03-17 Ontario Court of Justice

Between: Her Majesty the Queen — and — Christopher Beharry

Before: Justice N. S. Kastner

Heard on: November 9, November 10, December 20, 2016; March 17, 2017

Written Submissions: Filed by Defence November 23 and by Crown on December 5, 2016

Additional Admitted Evidence: December 19, 2016

Spoken to: December 20, February 1 and February 24, 2017

Reasons for Judgment Released: March 17, 2017

Counsel

Mr. Christopher Presswood — Counsel for the Crown

Ms. Pharah Bacchus — Counsel for the Defendant Christopher Beharry

Judgment

KASTNER J.:

Introduction

[1] Mr. Beharry is charged with failure to provide a breath sample on October 4, 2015, contrary to section 254(5) of the Criminal Code of Canada.

[2] The evidence on this trial consisted of two police officers, the defendant, his friend and some admitted evidence. Although the trial took place over two days, the issues were not complex.

[3] Counsel asked to make written submissions at the close of the case. After they were submitted and just before judgment, the defence filed records on consent relating to the installation and duration of an ignition interlock device in Mr. Beharry's vehicle. Judgment then went over to consider this new material. I wish to thank both counsel for their thorough and helpful submissions.

[4] The Court must thoroughly consider whether the Crown has established the essential elements of the charge beyond a reasonable doubt. There is no doubt that on the date alleged Mr. Beharry was found in the driver's seat of his motor vehicle in a parking lot annexed to a bar in Brampton, and that the officer formed the suspicion he had alcohol in his body while in care or control of his motor vehicle. He gave him the approved screening device demand. There also is no issue that the approved screening device was on hand and available for use. Mr. Beharry clearly refused to provide a sample to the investigating officer. His words were unequivocal.

[5] The main issue is whether the officer had a reasonable suspicion to ground the approved screening device demand in the first place; and secondly, whether the defendant had a reasonable excuse to fail to comply with the demand.

[6] Although the defence submissions focus largely on whether the defendant can be said to be in care or control of his motor vehicle at the time the officer begins his investigation, that is largely a non-issue if the officer subjectively has a reasonable suspicion there is alcohol in Mr. Beharry's body and that he either has driven within the last three hours or is in care or control of his motor vehicle, which must be objectively reasonable.

[7] No Charter application is made in this case.

[8] In assessing credibility of the witnesses, the Court has applied the suggested guidelines in R. v. D. (W.), [1991] 1 SCR 742. The Court can accept all, some or none of any witnesses evidence. I will summarize each of their testimony.

Evidence of PC Roman Marchyshyn

[9] At the time, he had four years of police experience and was working alone in a marked police cruiser in full uniform. At 1:45 a.m., he was patrolling in the parking lot of the Palm Palace bar at 50 Kennedy Road South, Brampton. He knew the establishment for Liquor License Act (LLA) offences, drug offences, and he had previous arrests from that establishment, which is part of his general patrol area. He denied that he was more suspicious, or that his senses were heightened because of the reputation of the area. He testified that he is aware at all times when on duty in his patrol zone.

[10] He observed as he drove in that lot with the window down. The lot is directly west of the entrance to the bar, and is large with almost 100 cars in the lot. The parked cars face north and south. It was possible that more than one car was running. The officer's plan was to drive through the lot and approach vehicles with people inside.

[11] He heard an engine running. It was very busy at that point with people inside vehicles, outside vehicles and lined up waiting to get into the bar. He observed a vehicle idling, a Black Lincoln license plate of #DVTT 401, with a male in the driver's seat. This vehicle was parked facing north, and the officer was just south of the vehicle. It was the first car idling he passed in the second or third row of vehicles, approximately in the middle of the row. He could see into the car, through the rear windshield of the Lincoln, the male driver in the driver's seat, and a female passenger.

[12] In cross-examination, the officer said he was positive he heard the vehicle running. There were vehicles all around the Lincoln with no one inside them. The officer had his own driver window down when driving up and down the lot on purpose. He also testified that he was directly behind the Lincoln and heard it. He added that he noticed that the windows were not fogged up. In his experience, if a vehicle were turned off, windows would usually fog up in the weather that night. He said the weather was wet outside, about 10 degrees, with wet roads and "a tad chilly".

[13] The location of this plaza lot has had many LLA violations. He stepped out and approached the vehicle, for possible LLA infractions. The vehicle was turned off when he pulled up behind it. As he approached the driver side, he observed Mr. Beharry in the driver's seat of the vehicle. He rolled down the window as the officer approached. He did not recall if he knocked on it. Later in his testimony, he added that the vehicle was warm.

[14] In cross-examination, he was asked if he saw anyone smoking a cigarette, but he had no memory of that. He agreed he did not know how long the vehicle was parked, and had not seen it being driven.

[15] He observed that the defendant had red-rimmed eyes. He advised him that the reason he was speaking to him was to investigate a possible LLA violation or a "drink drive" offence. He asked him if had had anything to drink. Mr Beharry looked down and away to the right from the window and stated "he had a drink way before". At the time he stated that, he was turning away from the officer and facing to the right. He did not smell alcohol at first. He was still "forming his suspicion". He found that action quite odd, as the driver was leaning forward, turning and almost blading his body to the officer. He did not recall asking him is he was coming or going.

[16] Police Constable Marchyshyn asked him step out, to "investigate a drink drive and to investigate any impairment or possibility of him drinking".

[17] He stepped out of the vehicle, at which point the officer observed a black and silver key right between his legs right on the seat underneath him. It was a black Lincoln car key, with various other keys attached, which were all attached to a lanyard. He agreed that he had never seen the keys in the ignition.

[18] He took the keys for his investigation, held onto them and gave them to Police Constable Douglas, who had attended at approximately 1:50 a.m. to see if everything was alright shortly after he heard him book out with a vehicle over the radio, so other officers would know where he was.

[19] He did look into the car cabin and noted nothing out of the ordinary, but saw a drink in the middle console in a paper cup, like a McDonald's cup. Nothing in the back seat caught his eye either. He did not search the car, or spend much time looking at it.

[20] Because it was a tight space between parked vehicles, he had asked Mr. Beharry to walk over to the trunk area at the rear of his vehicle. At that time, he asked him when he had consumed his last drink. He said "Way before", and as he spoke, he kept turning away from the officer, with his head and body turned to the right. He tried to lean in closer, and detected the odour of alcohol coming from his breath at this point.

[21] The suspicion crystallized when:

a. He had observed the defendant's bloodshot eyes;

b. He had admitted drinking before on that evening;

c. Along with the strange action, which the officer interpreted as trying to hide something from him, or purposefully avoiding speaking directly to him. He did, however answer the officer's questions; and

d. When he stepped out of the vehicle and had the key to the vehicle under his person.

[22] At 1:47 a.m., he formed the suspicion the defendant had care or control of a motor vehicle with alcohol in his system, and read the approved screening device demand from his blue notebook. Mr. Beharry said "Yes. I will do it".

[23] The cruiser was not even 2 metres away. Mr. Beharry stood at the trunk of the police vehicle, and the officer went to the passenger side to retrieve his approved screening device, which he had with him, which was a Draeger Alcotest 6810, with a serial number ARDH0522. He brought the approved screening device to the defendant and told him "You have to blow".

[24] The officer explained to him that the approved screening device measures how much alcohol is in one's system. He explained its functions, and that it can show three different readings, and what each reading means. He presented the tube to him and showed him there were no obstructions. He explained he needed to make a tight seal around the tube. He demonstrated how to comply. Mr. Beharry seemed to follow and understand. At first he was listening, but then flat out said, "I will not be blowing into any machine", and "Officer please. I was waiting for my designated driver to come out from the bar."

[25] In response, the officer explained to him that the demand had been issued, and, he must comply with demand. If he chooses not to, or refuses, he would be charged with refusal. He further explained that it is a criminal offence to refuse to blow into the machine. He explained the actual charge, and the penalties it carries, including the seizure of the vehicle for seven days, the tow, the suspension of the driver's license for ninety days, the Court date he would have to attend, and that the charge carried the same penalty as impaired operation of a motor vehicle.

[26] After explaining these consequences, the officer asked him again, "Sir, you have to blow into the machine". He stated to Police Constable Marchyshyn, "No I will not". He again advised the defendant of the consequences of the offence of Refusal, and that it carries the same penalty as if he blew into the machine and failed.

[27] He asked, "If there is anything I can do for you or anything you need to be able to blow into the machine?" Mr. Beharry responded, "No. The vehicle was parked and I am waiting for my designated driver". Police Constable Marchyshyn opined that he gave Mr. Beharry many opportunities to provide a sample. He felt that when the device was actually produced, it started to sink in for him that this could affect his life, and that deterred him from providing a sample.

[28] He advised he was under arrest for refusal at 1:51 a.m., handcuffed to the rear, searched and placed in the rear of the cruiser. Rights to counsel were read from the driving offence notes beginning at 1:52 a.m. The caution was read at 1:54 am.

[29] As soon as the officer finished the rights to counsel he again explained to him that the refusal charge carries the same weight as if he blew into the machine and failed. He asked again, and told him he could blow into the machine "right now at any point. Are you going to blow? Mr. Beharry responded, "I will not blow". "C'mon man, you're young like me. Don't do this to me. C'mon".

[30] He said he gave a further opportunity because "I always do to ensure he understands. Although in custody for refusal, I would still give him the opportunity at any point to blow into machine if he wishes to do so". He stated that he had now refused four times to blow into the approved screening device, and for the last time went over the consequences. The defendant did not say anything, and again declined to blow or provide a breath sample into the machine.

[31] Police Constable Marchyshyn wrote him an appearance notice, went over the form of release and explained the dates, releasing him from the parking lot of the bar at 2:20 am. He gave the defendant one more opportunity to blow before being released on the charge. Mr. Beharry replied, "The car was not on. I was not driving. I was only waiting for a friend".

[32] Constable Douglas stayed to seize the vehicle. He stood by while Constable Marchyshyn was in the cruiser with the defendant going over everything. He had no contact directly with Mr. Beharry, and Police Constable Marchyshyn did not focus on what Police Constable Douglas was doing.

[33] The female passenger in Mr. Beharry's vehicle got out at one point during everything when Constable Douglas arrived.

[34] In cross-examination, he agreed that Mr. Beharry had told him he was waiting for someone to come; but said that was at a later time and not when he first approached the vehicle. He said he was waiting for a friend at one point.

[35] He said the defendant did not say immediately when he got out that he was waiting for his "DD" (designated driver) to come. It was said only one time.

[36] Counsel cross-examined the officer about when he had disbelieved that a DD was coming. He agreed he did not believe that, because the vehicle was warm, was idling, and the defendant was in the driver's seat. People say all the time they have someone coming to get them, and that is not the case.

[37] Police Constable Marchyshyn said that Mr. Beharry definitely did not say that his DD was coming to drive his car home because he had a Breathalyzer in the car and cannot start his car because he had alcohol. The officer was unaware of how the ignition interlock device functions but knew that it prompts a breath test to start the vehicle. He did not walk around the vehicle, and would not know if a light was attached to the front license plate. He agreed that if the defendant had an ignition interlock device (IID), that he would not be able to start the vehicle if he had alcohol in his system.

[38] The officer stated that at no point did the defendant tell him he had an IID system, and at no point did he observe an interlock system in his vehicle. He said that the defendant never told him something to the effect "he had a Breathalyzer in his car, that he can't start his car, he had some drinks and was not driving, so I don't need to blow into your machine". The officer said that he had written what the defendant had said to him verbatim, especially about when he asked him about the approved screening device.

[39] He did recall some mention of the term DD, but that was after he had made the approved screening device demand. He did not ask for any details, such as name and phone number of the proposed DD.

[40] Police Constable Marchyshyn agreed that he would have looked up Mr. Beharry in the police cruiser on the onboard computer, and that he would have seen a previous conviction for impaired or over 80. It would also show an IID on the Ministry record had he looked, but he did not look at conditions to his license at the time. He also did not look on the driver's license for the "I" designation, which would indicate, "interlock required". The officer testified in his experience, he does not look at the back of the driver's license for his notes, just the front.

[41] Four photographs were shown to Police Constable Marchyshyn of the interior of the Lincoln, showing an ignition interlock device by the cup holder. The photos were not taken proximate to the alleged offence date. They were not very good photographs. The officer testified he did not see any such device that evening, and that there was nothing in the centre console other than a cup. Such device was not mentioned that night, and he did not check this on the police computer.

Evidence of PC Scott Douglas

[42] Police Constable Douglas has about four years' experience on Peel Regional Police. At approximately 1:50 a.m., he heard Police Constable Marchyshyn over the radio stating he was with a vehicle in the parking lot of Palm Palace at Kennedy and Clarence Street in Brampton. He was very close so went around the corner to see if his colleague needed anything. He advised him that he had a suspicion the male in the driver's seat had consumed alcohol.

[43] Police Constable Douglas stood back, for safety purposes, and got the name of the female passenger and had general conversation with her. He had no dealings with Mr. Beharry at all and did not interact with him.

[44] He observed Mr. Beharry get out of the vehicle when asked to by Police Constable Marchyshyn. When he got up, he saw the keys to the vehicle on the seat as he got up.

[45] He also saw lying on the back seat of the car an empty LCBO paper bag. He had no idea how long it had been there. Although nighttime, the lot was well lit. He also noted the inner lights of the vehicle were on. He did not recall if the back seat was untidy.

[46] He stayed with the Beharry vehicle, and asked the passenger to step out to search the vehicle for further signs of alcohol consumption. He found nothing other than the empty bag. He did not find any ignition device in the front or back of the vehicle. He did not look for one. He did not step into the vehicle, just poked his head in from each individual door.

[47] He paid no real attention to the driver side of the vehicle on arrival, as Police Constable Marchyshyn was there.

[48] The passenger called for someone to pick her up and left. The vehicle was towed at 2:40 a.m.

[49] Police Constable Douglas was also shown the photos in cross-examination of the Lincoln interior. He remarked that the photo is cut off at the bottom and he could only see part of an object so he could not identify it.

Evidence of Christopher Beharry

[50] Mr. Beharry works as an apprentice doing truck bodywork and is 28 years of age. He has a record in 2009 for driving with excess alcohol and fail to comply; and in Feb. 2010 for impaired driving and fail to remain.

[51] He had an ignition interlock device installed in his Lincoln motor vehicle, because of a requirement with the Ministry of Transport due to his record. He said it was operating properly on the night of this incident.[1]

[52] On this night, he went to a movie near Kennedy Road and Steeles Avenue in Brampton with a friend, Tiffany Khan. He did not recall when they went but it was one of the second last movies, so it started at approximately 10:00 p.m. He drove there. He did not recall what time it ended. Afterward, they went to a club/restaurant called Palm Palace at Kennedy and Clarence Street in Brampton, because they wanted to "socialize". He drove there as well. There was no line up. They went in and saw some friends. He bought a few drinks for her. He had two beers a little later on.

[53] He did not know how long he was at the bar, but he left before the bar closed which he thought was 2:30 a.m. to 3:00 a.m. He believes he got there around midnight.

[54] He had not remembered the empty LCBO bag, and did not know how long it was there, or if it was his or a friend's. It was among his work clothes, a blanket and other things.

[55] He bought his own drinks. He did not plan to drink when he got there, but later "bought one beer, it led to a second". He drank nothing else, and consumed no other intoxicants. After he got the second beer, he knew that even if he waited until closing, he would still have alcohol in his body and would not pass blowing into the device in his car. At that point, he said he called his friend Wandy, "hopefully he could be DD for me". In cross-examination, he agreed he did not call his friend immediately after arriving at the bar, only later when he had consumed beers. He added that he told him to get him in an hour. He said he only had two beers and drank them over more than one hour. After he finished his second, he went out to the car to wait. He denied being intoxicated.

[56] Mr. Beharry had the Life Saver device installed in his car in September 2014, and he kept it installed for approximately one and a half years, until February 2016. He knew the conditions of use, and recalled that he should not consume pizza before driving, because the dough has yeast, which could interfere with the instrument. He had to do training with the technician on its use. He identified the photographs of his device, but acknowledged, "You can mainly just see the cord".

[57] He described how the device works. He has to put the keys into the ignition all the way, in order to get power. The vehicle will not start unless he gives a breath sample and passes (no alcohol on his breath). Then he would be able to start the vehicle, but periodically it can go off, and he would have to blow into it again. If he fails to provide a sample on these random requests, an alarm goes off and tells him to pull over at the nearest stop. In addition, the technician installed a sound box to make a screeching sound, and a light under the license plate, which will flicker if he fails to comply.

[58] The device was normally stuck to his front dash with Velcro so that if it activates, the driver would see and blow in time before the alarm goes off and lights up his plate. If it was not there, he sometimes put it in the cup holder. If it were cold in the winter, he would put it in the armrest to keep it a little bit warmer. It would be visible to anyone when on the dash or in the cup holder. It is not visible if in the armrest, but the cord would be. That night he was sure it would not be in the armrest because it was not cold enough to do that. His answers were hesitant as to where he stored his IID, and he appeared to change his answer as to whether he kept it in the armrest when the temperature was above zero degrees.

[59] He agreed in cross-examination that someone looking in the driver window because it is behind the steering column might not see the device, if on the dash.

[60] Mr. Beharry testified the device was installed and working properly on the night he was investigated.

[61] Mr. Beharry said his driver's license, had a letter "I" or number 1, on the front under the category "restrictions". When you flip to the back of the driver's license, under "restrictions", it says, "interlock required". On the offence date, his driver's license had the same demarcations. The officer confiscated his license that night.

[62] He testified he had called his friend Wandy to ask if it was possible to come and get him because he had been drinking and needed a DD. He did not recall the time of the call, but it was later on in the night. Wandy said he was with "his girl" but was willing to come get him. He told Wandy he would be out in the parking lot, and to just call him when he arrived.

[63] He had shown Wandy how to use the device when it was first installed, and Wandy had blown into it at least three times after. Wandy had driven Mr. Beharry home the majority of times when he drank alcohol, even in the morning after because of drinking the night before. Wandy could drive Tiffany home because he lived just across from her.

[64] He went to the car to wait because his feet were hurting from standing and he could sit and smoke a cigarette. He put the key in the ignition only half way to use the car lighter, but not all the way. When he lit the cigarette, he took the key out of the ignition. He stated that when the keys come out of the ignition, it still has power for the interior lights, exterior lights and radio, and the power only cuts off when the car door is open. He denied ever starting the car. He had no intention to drive and the gear was in park. In cross-examination, he stated that he thinks the keys must have been on his lap, and when he got up, he threw them behind him and on the seat.

[65] Tiffany did not have a driver's license and was drinking as well, so she could not be the driver.

[66] The parking lot was full. He rolled his driver window down at least three-quarters of the way while he smoked his cigarette. The police came not too long after, and he estimated at least ten minutes, because his lights would remain on for that period. When the officer opened the car door, the lights came off.

[67] Two officers approached. The "main officer" (Police Constable Marchyshyn) asked him if he was coming or going. He told him he was waiting for his designated driver. He did not recall looking away from him and was not avoiding him. Only one of the officers talked to him.

[68] That officer told him to step out of the vehicle. He did not think he had red eyes. In cross-examination, he remembered the officer asking him if he had been drinking, and he had responded that he "had beers before". He denied saying "way before". At this time, he asked him to provide a breath sample. He testified he told the officer he had a Breathalyzer in his car[2] and was waiting for a designated driver. He said that only one time when standing up, and one time in the cruiser. The officer did not ask any questions about the device in his car. He had wanted to make it clear that he had an IID installed, and cannot start his car. The defendant did not think the officer acknowledged his remark about his device because he never responded when he told him about it[3]. He asked if he was drinking, and Mr. Beharry replied that he was drinking before. When he asked if he could wait for the DD to come, the officer did not acknowledge him.

[69] Police Constable Marchyshyn asked a second time to provide a breath sample. He said no, and his thought process was because "I did not see a difference between his and mine and can't start the car anyway without a blow, so that's why I told him no". He did not state that to the officer. He did not believe he had said that he "won't blow into any machine". He denied saying his DD was inside the bar.

[70] The officer asked a third time, and his partner said that he looked sober enough; he did not know why he doesn't give him a sample. In cross-examination, he remembered saying "No, I will not" in response to the demand. The officer never read him anything from a book, pamphlet or document.

[71] After the third time, the officer told him he was being arrested. He was shocked, particularly because he told him he had a DD coming and a Breathalyzer in his car, and the officer never once checked his vehicle. He did not ask him to do so.

[72] Mr. Beharry said that the officer never showed him the device or demonstrated it, nor explained how it works. However, the approved screening device was in plain sight in his hands. He remembered the lights on it. He never asked any questions about it. In cross-examination, he did not recall which of the two officers produced the approved screening device. Mr. Beharry admitted that the officer told him the "charge carries pretty much the same penalty as blowing over", but said he was only told that once.

[73] He said that before he was placed in the back seat of the police vehicle, he was searched and the officer took his wallet, and was reading information from the driver's license, and searching his criminal background on his computer. He remembered the officer saying, "Oh, you have a Breathalyzer in your car" or something to that effect. He did not know if the officer said Breathalyzer or Interlock. The defendant did not say anything to that. He never pointed it out, he "was hoping he would check the vehicle after I said I had it". He acknowledged in cross-examination that he did not think the officer had seen the device in his car.

[74] He then was read his right to counsel, and was released on an appearance notice. He then walked over to his car, but Tiffany was not there. He called her and found she had taken a taxi. He received some keys from his lanyard from the tow truck driver, and took a taxi. He never saw Wandy.

[75] Although absent in his narrative in his testimony in chief, he conceded in cross-examination that he had asked the officer "c'mon, you are young like me, don't do this to me". Although he said he was nervous, he was confident enough to ask the officer to cut him a break, but he did not ask him more than once. He added that he had pretty much given up about the officer taking into consideration both his personal screening device, and his designated driver.

[76] Mr. Beharry did not know if the officer had asked him what he could do to assist him giving a sample.

[77] The defendant agreed that he had said no to each of the officer's demands to provide a breath sample. He demurred on the words he had uttered to the officer after asking for a break. He said "something along those lines" but did not say he was waiting for a friend, he said "designated driver".

[78] He said there are bars on Avondale, which is not where he was that night. Avondale is closer to Wandy's house, and about a ten-minute walk to Kennedy Road.

Evidence of Wandy Ventura Peralta

[79] Mr. Peralta testified before Mr. Beharry. He was a neighbour of his originally and became good friends for the last ten years. He lives about three minutes away from him.

[80] He has a criminal record, but received a conditional discharge in 2009. He works fulltime.

[81] He testified that on the night of Oct. 3 to 4, 2015, Mr. Beharry called him at approximately 11:50 p.m. to pick him up from a bar at Kennedy and Avondale. He did not remember the name of the bar, but said Guyanese people hang out there. When lead by counsel, he said he thinks Palm Palace is the bar. He said the bar was Avondale and Kennedy where McDonalds is.

[82] Mr. Peralta was with his girlfriend at the time watching movies. He said "ok", but was not decisive. He was indecisive because his girlfriend was with him and he was busy. Mr. Beharry replied, "Ok. Whatever, I am waiting for you". In cross-examination, he testified that five minutes later he called him to say they will go five minutes after the movie finished.

[83] Mr. Beharry never told him a time. Mr. Peralta said once he finished his movie, he would pick him up. He said he left about 1:00 a.m. or past 1:00. His girlfriend would drive his vehicle and he would drive Mr. Beharry's car to his home, and then he would drive the two girls home.

[84] Mr. Peralta had driven Mr. Beharry's car approximately four times before, and knew that he had a "Breathalyzer" in it. On a prior occasion, he had asked him if he wanted to drive his car because he was going to have a few drinks. He had seen the car the day before, "so it must have had the Breathalyzer in it." He first saw it four to five months before when he went to the Beharry house for some food his mother made him.

[85] He said Mr. Beharry keeps the Breathalyzer beside the stereo where he has a little sticker purchased in the Dollar Store to place it on the dash, or sometimes it is in the glove compartment. He has seen it in both places. It has a cord and a little object on it to blow.

[86] In cross-examination, he said when in the "glove box", he meant beside the arm compartment. He has seen Mr. Beharry store it in the compartment, but said you would see the cord. It is a curly cord, so not like a phone cord.

[87] He identified a photo of the two men beside their respective vehicles but did not recall if it was taken before or after the incident. The defendant told him if you blow into the IID when drinking, a light will flash and the police will see that.

[88] Mr. Peralta said he did go to the bar, and got there "maybe past 1:00" and Chris Beharry was not there. He talked to him later on that day and was angry, thinking he got another driver. He did not see police cars in the parking lot, or a tow truck. He did not see his car at all.

[89] When asked if he went to the bar parking lot before 2:20 a.m., he did not recall what time he was exactly in the lot. The bar was about five minutes from his house. When the call came at 11:50 pm, he knew last call was 2:00 am, so there would be time to finish the movie. He did not recall if he went after last call.

Position of the Parties

[90] Ms. Bacchus submits that Mr. Beharry's refusal was not direct and was equivocal or tentative. She advances two failures of Police Constable Marchyshyn. First, she submits he did not have the requisite grounds to make a breath demand thus subjecting her client to an unlawful demand, which he did not have to comply with; and second, that the police failed to properly follow up on an equivocal response by her client to the demand. Further, she submits that the defence submitted evidence of the interlock device in the car which, she says, supports his credibility. Alternatively, she submits that Mr. Beharry's nervousness and misunderstanding because he had an interlock in his car contributed to his refusal, which on balance, is a reasonable excuse.

[91] Mr. Presswood submits that the officer had reasonable suspicion to make the approved screening device demand and that the demand was lawful. Further, he submits the refusal was not tentative but unequivocal. Further, he says that one cannot rely on the defendant's after-the-fact assertions, and he submits Mr. Beharry's purported excuse is not reasonable, and cannot amount to a reasonable excuse.

Applicable Principles

[92] 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.

[93] 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 or refusal by the defendant to comply with the demand.

[94] Some general considerations bear repetition. The burden of proof rests upon the Crown to establish guilt beyond a reasonable doubt on all the essential elements of the charge. That burden does not shift. There is no onus on Mr. Beharry to establish anything. He bears an evidentiary burden only on the issue of reasonable excuse.

[95] The Court must instruct itself in this case about the limited use to be made of Mr. Beharry's criminal record for like offences. The defence adduced the record to show why the defendant had an ignition interlock device installed in his car that evening. It is admissible on a very limited basis. It is not admissible for any prohibited propensity purposes. I expressly do not do so.

[96] I also draw no adverse inference by the failure of either Crown or defence to call Ms. Khan as a witness.

[97] If the Crown is able to establish beyond a reasonable doubt that the demand is lawful, the device the officer had is approved, and that the defendant refused to provide a sample into the approved screening device; then the Court must assess whether the defendant had a reasonable excuse for failing to comply with the demand.

[98] There are two lines of jurisprudence as to whether the defendant bears the burden of establishing reasonable excuse on a balance of probabilities or raising a doubt; or whether the Crown must rebut reasonable excuse beyond a reasonable doubt: see for example R. v. Sullivan, [2001] O.J. No. 2799 at para. 16 (O.C.J.) and R. v. Lewko, 2002 SKCA 121, [2002] S.J. No. 622 at paras. 35-36 (C.A.).

[99] The matter has become more settled in Ontario, as the Court explains in R. v. Nash, [2004] O.J. No. 4522 at para. 21(SCJ), aff'd [2005] O.J. No. 3783 (CA):

Since the defence of reasonable excuse is extraneous to the elements of the offence, and since the particular excuse often will be known only to the accused, it does not fall to the Crown, at least initially, to adduce evidence negating the excuse, or to satisfy the trier of fact that no excuse is available to the accused. The correct approach to the adjudication of an excuse is probably the one described by Bayda C.J.S. in R. v. Lewko (2002), 2002 SKCA 121, 169 C.C.C. (3d) 359 at paras. 16 to 20 (Sask. C.A.). He stated that the defendant bears an evidential burden of putting into play an exception, exemption, proviso, excuse or qualification prescribed by law that operates in his or her favour. If this evidential burden is met, then, and only then the Crown will bear the legal or persuasive burden of disproving the matter, in rebuttal, beyond a reasonable doubt.[5]

[100] Other decisions in the Superior Court of Justice on summary convictions appeals subsequently follow the same logic regarding the onus in such cases: see for example R. v. Slater, [2016] O.J. No. 1592 (S.C.J.) per Nordheimer J.

Analysis

Refuse to Provide a Breath Sample into an Approved Screening Device

1. Was the approved screening device demand lawful?

[101] The lawfulness of the approved screening device demand is the main issue in this case. If Police Constable Marchyshyn's demand failed to accord with section 254(5) of the Criminal Code, then the Crown would be unable to prove an essential element of the charge, and Mr. Beharry would be entitled to an acquittal without the need for further analysis.

[102] The two officers involved are very experienced officers. The first officer, Police Constable Marchyshyn was acting in a proactive way to enforce the Criminal Code and Liquor License Act (Ontario) in a parking lot somewhat notorious for pre-drinking and drug offences in the city. As such, the first officer slowly drove through the parking lot looking for possible violators, and to check sobriety of persons about to exit the parking lot. He was looking for occupied vehicles stationary in the lot. The second officer, Police Constable Douglas, arrived shortly after and stood by to assist if needed, and was responsible for the tow of the car.

[103] Police Constable Marchyshyn provided his observations, which led him to believe the vehicle was running: he heard the car engine; he saw it had stopped running as he parked behind it; he had his driver window down to make observations; the windows were not foggy despite the cool weather even though two people were in the car; and the vehicle was warm.

[104] Certainly, Mr. Beharry was in the driver's seat of his vehicle, and had access to the keys. He admits in his testimony to putting the keys in the ignition but only half way to power the accessories, such as interior lights and the cigarette lighter. For some reason the keys were under him when he got up from his seat.

[105] Much of Mr. Beharry's evidence corroborates that of Police Constable Marchyshyn on this issue, although he is adamant that he did not have the engine running. He definitely had the keys to the vehicle and made use of its fittings while seated in the driver's seat. He did operate the window, the lighter, and the interior lights. He did drive to that parking lot somewhat earlier, and on his evidence less than two hours before the officer found him seated in the car.

[106] The officer needed to have reasonable grounds for the belief specified in section 254(2) of the Criminal Code. They are two-fold:

a. That he suspects that a person has alcohol or a drug in their body; and

b. He suspects that the person has, within the preceding three hours, operated a motor vehicle or had the care or control of a motor vehicle…whether it was in motion or not.

[107] There can be no real issue that the officer suspected the defendant had alcohol in his system. He asked him if he had been drinking and Mr. Beharry admitted he had, but "way earlier"[6]. He noted that the condition of his eyes was consistent with the consumption of alcohol. Mr. Beharry turned his body and face downward and away from the officer when speaking to the police officer, which indicated to the officer he was likely hiding something from him. Additionally, his vehicle was parked outside a local establishment, which served alcohol, and the timing coincided with proximity to "last call". When he exited his vehicle, the officer smelled alcohol on his breath, which was before the formal demand.

[108] Ms. Bacchus argues that her client was not in care or control of the motor vehicle and that this dilutes the reasonable suspicion of the officer needed to make a lawful demand. She applies the analysis in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157.

[109] The Crown submits that the defendant's argument has "convoluted the standard of proof at trial for a care and control case with the reasonable suspicion standard required for a lawful Approved Screening Device ('ASD') demand". He says that because Mr. Beharry was occupying the driver's seat of the Lincoln MKZ when Constable Marchyshyn approached, as a result, the defendant was in presumptive care and control of the vehicle in accordance with section 258(1)(a) of the Criminal Code of Canada.

[110] Furthermore, when questioned about consumption of alcohol, the defendant acknowledged having had a drink earlier; the officer also observed the defendant to have red-rimmed eyes and following Mr. Beharry exiting his vehicle, the officer noted an odour of alcohol on his breath. The Crown says this completely supports that the demand made was lawful, and in compliance with section 254(2).

[111] The Crown argues that the analysis by Ms. Bacchus of the R. v. Boudreault case, applies to proving the case beyond a reasonable doubt before the trier of fact; and that the analysis from Boudreault has no application to whether the approved screening device demand is lawful in the circumstances. Mr. Presswood concedes that had the defendant complied with the approved screening device demand, he may very well have been in a position to rebut the presumption from section 258(1)(a) of the Code. The "alternate plan" referenced in the defendant's written submissions and the absence of a risk of danger noted in them are not, however, factors that apply to the lawfulness of the officer's approved screening device demand.

[112] I agree that the cases which concern rebutting the presumption of care or control, the existing plan not to drive, and the risk of change of mind of intention to drive, do not assist in resolving the basic question of whether the approved screening device demand made here was lawful, based on both a subjective and objective reasonable suspicion.

[113] The officer needs to comply with the standard of the Criminal Code, and no more. A police officer making a s. 254(2) demand does not have to determine whether he could establish care or control beyond a reasonable doubt, or whether the defendant might at the trial be able to rebut the presumption in s. 258(1)(a) of the Code.

[114] Police Constable Marchyshyn is a very believable witness. He was extremely detailed in his testimony concerning his method of investigating the parking lot. He was not argumentative in cross-examination, nor did he shirk from the questioning about the presence or absence of an ignition interlock device. He did not see one. He did not say there was not one. On the defendant's evidence, he might not see it from the driver window, if it was either on the dash behind the steering column, or in the armrest.

[115] I find that Mr. Beharry did not even mention the ignition interlock device until after the officer was writing up the form of release on the charge. Most of his musing about the device he admitted was internal monologue as to why he was not going to provide a sample. When he did mention it, he felt the officer may not have heard him, or was ignoring him. He only mentioned the interlock device one time in his dealings with the officer in the cruiser. He did not follow up on it at all. I do not accept that he mentioned it when standing outside his vehicle. He never told the officer that he felt that if he had to blow into his own Lifesaver device to drive, that he did not have to blow into the officer's approved screening device.

[116] The officer stated he had only taken information or identification data from the front of the defendant's driver license, and did not flip it over to look for conditions to the license. This is believable because he only needed to ensure Mr. Beharry had a license and to obtain his date of birth, full name, and address. He did not have to do more. His explanation makes sense, particularly because he was releasing him on scene, and not continuing the investigation.

[117] The Court is unable to rely on Mr. Beharry's evidence of the sequence of events and the words spoken. Admittedly, he had been consuming alcohol, which could affect his recollection. The officer was taking either verbatim notes or comprehensive notes either at the time, or shortly after. The defendant is undoubtedly incorrect about the officer never producing the approved screening device or demonstrating it. He did not even remember which of the two officers had the device. He later admitted he saw the lights on the device at one point.

[118] He did not tell his counsel in his examination in chief that he asked the officer for a break, but he admitted as much to the Crown in cross-examination.

[119] He also now articulates his thought process, which he did not tell the officer that night. He admitted the officer might not have heard, or ignored him.

[120] Mr. Beharry's evidence does not mesh well with Mr. Peralta's evidence. Either Mr. Peralta got the wrong bar to attend, since he said he was at Avondale and the defendant was not there, nor was his vehicle or any officer(s) at a time likely to be before the Lincoln was towed at 2:40 a.m.; or, he was mixed up with another time he had to go rescue Mr. Beharry when he had been drinking and could not drive.[7]

[121] I accept that Mr. Beharry also told Police Constable Marchyshyn that he was waiting for his designated driver to come from the bar. This is directly opposed to his testimony of arranging for Mr. Peralta to come from his home to pick him up. He lied to the officer to try to get him to exercise his discretion to decline to lay a charge, by inferring that his driver was within metres of him.

[122] These are just a few examples of the problems with Mr. Beharry's evidence. It is difficult to place any weight on it, and it is rejected and it does not raise a reasonable doubt.

[123] Police Constable Douglas was not involved in the main investigation. He looked after the female passenger and the tow, and "stood by". His search was perfunctory to look for alcohol in the vehicle. He found none, but did find an empty bag for carrying a liquor purchase. He did not get into the vehicle and do a thorough search. The fact he did not recall an interlock device is of no moment. He was not the officer making the demand.

[124] The presence of an ignition interlock device in a vehicle does not make the vehicle inoperable. It is still a motor vehicle. It still operates, albeit with some restrictions.

[125] Even if he had put the fact that Mr. Beharry's vehicle was equipped with an IID into the equation, the officer was never asked if he believed that the vehicle could or could not operate with the device installed. He agreed generally with the defence suggestion that one needs to blow into the device to start the car. There was no evidence about the functioning of the device, except through Mr. Beharry's testimony. His evidence at its highest is that if he did not continue to blow into the device when asked randomly when driving, a light would illuminate by his front plate on the vehicle, and the device tells him to pull over. If authorities were not alerted and pulled the car over, there is no evidence that the vehicle ceases to function on its own.

[126] The defendant states that the engine would not turn on at all if he had any alcohol on his breath. He was in a busy parking lot, and if so, he could have asked someone sober to initialize the device. If he managed to engage the engine, I have no evidence that he could not operate it. All he told the officer was that he was not driving and was parked, not that he could not start the car. He is mistaken about much of the events of that night and I cannot rely on his evidence in this regard. It does not raise a reasonable doubt.

[127] I accept the admitted evidence that at the operative date, Mr. Beharry had an ignition interlock device installed in his vehicle. It is not necessary in this case to make factual findings regarding the functionality of the device in the defendant's car. I accept that the officer saw the car was running when he approached it in the parking lot. Even if it was not running, but the officer believed that it was, Mr. Beharry was in de facto care or control seated in the driver's seat with the keys, and as such founded the suspicion of the officer in that regard.

[128] The approved screening device demand made that evening complied with the Criminal Code requirements.

2. Did Mr. Beharry refuse to provide a breath sample? If so, was it wilful?

[129] Previously, the Court indicated that it accepts the credibility of Police Constable Marchyshyn. I accept that Mr. Beharry told him on three or four separate times in response to the demand that he would not comply with it.

[130] What constitutes a refusal depends on all the circumstance of each individual case. "A single conversation may contain many twists, turns, or pauses, and one should not dissect it minutely or take a single sentence out of context": R. v. Cunningham, 1989 ABCA 163, [1989] A.J. No. 544 (C.A.).

[131] The actual words spoken by Mr. Beharry to the officer in this case are clear. They include, "I will not be blowing into any machine" and "no, I will not", and "I will not blow". He refused four times[8].

[132] The defendant also offered three excuses for not complying; that he "was waiting for his designated driver to come out from the bar", that his vehicle was parked, and that he was not driving, and that he was just waiting for a friend.

[133] He also implored the officer to give him a break because he is young.

[134] Ms. Bacchus submits that his refusal was not direct, because his thought process was that he did not have to do so because he had his own device installed in his motor vehicle. The Crown submits that a breath demand was made and Mr. Beharry refused to comply with that demand. He did so more than once. The psychology behind his refusal may have application to a defence of 'reasonable excuse' but it is clear that the defendant heard and understood the demand and refused to comply with it.

[135] I agree with Mr. Presswood that Mr. Beharry's refusal(s) were unequivocal. The officer went on to make certain that Mr. Beharry knew the consequences of the refusal; and the defendant continued to refuse to comply with the approved screening device demand. There was no obligation for Constable Marchyshyn to persuade Mr. Beharry to comply with the demand; even absent that obligation, the officer tried to assist the defendant by asking if there was anything he could do to change the defendant's mind.

[136] Mr. Beharry agreed in cross-examination that the officer told him a refuse charge carried the same weight as blowing over. He chose not to comply. As Mr. Presswood stated, "Mr. Beharry was fully cognizant of what was being asked of him when the demand was communicated to him. He made the choice not to participate. The consequences were outlined to him. Mr. Beharry continued to choose not to comply with a lawful ASD demand".

[137] Ms. Bacchus suggests that the non-compliance was not wilful. The Crown responds that is not the case. The defendant explicitly declined to provide a sample of his breath into the approved screening device. The Crown suggests that the "inescapable inference" that Nordheimer J. refers to in the R. v. Slater decision can clearly be drawn here. Mr. Beharry knew the consequences of refusing and intended that result by declining to comply with the demand.

[138] As Justice Kenkel states in his book[9] concerning the law of drink/drive offences, "whenever there has been an outright refusal, mens rea can be presumed."

[139] Mr. Beharry asked the officer to give him a break. When that was not forthcoming, he decided not to cooperate regardless of the consequences.

[140] The Court finds beyond a reasonable doubt that Mr. Beharry refused to comply with a lawful approved screening device demand.

3. Was there a reasonable excuse to refuse to provide a sample?

[141] Section 254(5) of the Criminal Code states that "everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section".

[142] A great many cases have considered the meaning of "reasonable excuse". Justice Doherty in the case of R. v. Moser, [1992] O.J. No. 602 (O.C.A.) provides a clear explanation of how the concept operates:

This legislation stands as an exception to the general rule that a person suspected of having committed a criminal offence is under no legal obligation to assist the police in their investigation of that offence. Where the appropriate demand has been made, a person must provide potentially damning evidence against herself or face conviction for the equally serious crime of refusing to provide the evidence. That person may refuse a proper demand only where she has a "reasonable excuse" for that refusal. The adjective "reasonable" indicates there must be an objective component to the assessment of any excuse proffered.

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 of the requirements which must be met . . . before a charge can be supported": per Laskin J. in R. v. Taraschuk, [1977] 1 S.C.R. 385, 25 C.C.C. (2d) 108, at p. 388 S.C.R., p. 110 C.C.C. 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.

Both courts below held that the excuse relied on must be reasonable and must also have been the reason for the refusal. The summary conviction appeal court put it this way:

From my review of the authorities I have concluded that the test of "reasonable excuse" is both subjective and objective. The state of mind of the accused at the time of refusal constitutes a subjective test but the requirement in the Criminal Code that the excuse be a reasonable one involves an objective concept that the excuse be supportable. I agree with the proposition advanced in the respondent's factum that an honest belief in a state of affairs which is reasonably supported by the facts which, if true, would constitute a justification for refusal is the definition of reasonable excuse.

In so holding, the court distinguished between an excuse which caused the accused's refusal and an after-the-fact attempt to justify the refusal for reasons unknown to the accused at the time of the refusal.

The distinction is semantically sound. As was observed in the court below, excuse is defined as:

. . . a reason alleged for doing or not doing a thing; a matter alleged as a reason for relief or exemption from some duty or obligation . . .

The requirement that an accused know and rely on the facts or circumstances said to constitute the excuse is also consistent with the criminal law theory underlying defences which excuse liability. Generally speaking, and apart from excuses which pertain to criminal capacity (e.g., age), defences which excuse hold that a criminal act may be excused (in whole or part) if in the circumstances the conduct was not culpable. This determination of culpability requires an inquiry into the accused's state of mind and her reasons for acting as she did. Duress and provocation provide statutory examples of excuse- based defences where the accused's state of mind is central to the availability of the defence: see Glanville Williams, "Offences and Defences" (1982), 2 Legal Studies 233, at pp. 243-44; Glanville Williams, "The Theory of Excuses", [1982] Crim. L.R. 732, at p. 735; Smith in Justification and Excuse in the Criminal Law (London: Stevens & Sons, Hamlyn Lectures, 1989); Robinson, "A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability" (1975), 23 U.C.L.A. Law Rev. 266, at pp. 274-75, 288-91; Eric Colvin, Principles of Criminal Law, 2d ed. (Toronto: Carswell, 1991), at pp. 196-97.

[143] The Court referred to approximately 20 offence-creating provisions of the Criminal Code, which allow for a statutory defence of "reasonable excuse", or the similar defence of "lawful excuse" or "lawful justification".

[144] Justice Doherty delineates the scope of the "reasonable excuse" defence, and reiterates the premise that it refers to matters which are extraneous to the essential elements of the offence:

A plea of "reasonable excuse" is an admission that the essential elements of the crime have been established, combined with an assertion that some additional fact or set of facts precludes the imposition of criminal liability. In this respect, the "reasonable excuse" defence is comparable to the "lawful excuse" defence provided in s. 351(1) of the Criminal Code. In R. v. Holmes, [1988] 1 S.C.R. 914, 41 C.C.C. (3d) 497, per McIntyre J. (for the majority), at pp. 946-47 S.C.R., pp. 520-22 C.C.C., that phrase was said to refer to defences which were available for the particular offence and not to those general criminal law defences which were available for all offences. This court placed a similar interpretation on the phrase "lawful justification or excuse" in s. 450 of the Criminal Code: R. v. Santeramo (1976), 32 C.C.C. (2d) 35, 36 C.R.N.S. 1 (Ont. C.A.), at p. 44 C.C.C., p. 12 C.R.N.S. (at para. 42)

[145] It is important to also examine the statutory intent in enacting the defence of "reasonable excuse" for offences such as the one Mr. Beharry is charged with. As the Ontario Court of Appeal found in the Moser case,

The relevant statutory provisions form part of a comprehensive statutory scheme relating to drinking and driving. The seriousness of the problems associated with drinking and driving can hardly be overstated. In response to these problems Parliament has created particular offences and armed the police with extraordinary investigative powers aimed at the expeditious obtaining of evidence referable to drinking and driving offences. Not only are the police given these extraordinary powers, but those suspected of having committed drinking and driving offences, and who are subject to a proper demand, are required under threat of criminal sanction to assist in the gathering of the evidence unless they have a reasonable excuse for not providing that assistance.

As serious as the problems relating to drinking and driving are, Parliament has placed limits on a police officer's right to demand a breath or blood sample. In addition to limitations which are not germane to this case, the potential effect on the suspect's health of providing the sample limits the officer's right to make the demand and the authorities' right to take the sample. (at paras. 51 to 52)

[146] The "reasonable excuse" defence in s. 254(5) is both fact and offence specific.[11] With that framework in mind, I will set out the argument in this case.

[147] Ms. Bacchus submits that Mr. Beharry had a reasonable excuse for his refusal to supply a breath sample to Police Constable Marchyshyn at the roadside, or parking lot.

[148] She articulates the excuse as the fact he had an interlock device (and that he had a designated driver or alternate plan, and could not start his vehicle himself).

[149] The Crown submits that it is irrelevant whether Mr. Beharry had an interlock device in his vehicle; it does not provide him with a reasonable excuse for failing to comply with a lawfully made approved screening device demand.

[150] On Mr. Beharry's evidence, he did not comply with the demand because he had a 'Breathalyzer' in his car. In his version of events, he communicated that information to the officer once and thereafter never provided any further detail to the officer as to why he would not provide a sample of breath into the approved screening device.

[151] The defendant's submissions speaks to Mr. Beharry's state of mind at the time of incident; and he argues he did not believe he needed to provide a breath sample because he had a 'Breathalyzer' in his vehicle. Importantly, none of this reasoning was provided to the officer at the time of the investigation. Mr. Beharry admitted it was only his thought process.

[152] Although Ms. Bacchus' submissions indicate that the defendant testified that "the only reason he said 'no' when the officer demanded a sample of his breath was that in his mind, the officer wanted to see if he was fit for the street, and he didn't see the difference between his 'Breathalyzer' and the officer's device;" significantly, the defendant never said this theory aloud at the time of the incident. In his testimony, he mentions the 'Breathalyzer' once in the cruiser without comment about how his device and the approved screening device are the same to him.

[153] Mr. Presswood says that this amounts to Mr. Beharry advancing a psychological excuse for refusing the demand. Similarly, the defendant in R. v. Turcotte, [2016] O.J. No. 1728 presented such an excuse. During the incident, Mr. Turcotte did not advise the officer why he was refusing to comply with an approved screening device demand; at trial he asserted that he was being treated unfairly by the officers and panicked as a result. As with Mr. Beharry, Mr. Turcotte did not even attempt to provide a single sample into the approved screening device, he flatly refused to participate.

[154] In Turcotte, Javed J. considered the evidence of the defendant that if he had blown he would not have registered a fail and made the following comment:

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.

A demand was made in this case, and Mr. Beharry made the decision that he would not provide a sample into the approved screening device. On his evidence, he may not have failed that approved screening device test. Further, on his evidence, Mr. Beharry may have also had a legitimate opportunity to rebut the presumption that is contained in section 258(1)(a) of the Code. However, the Crown submits that these hypotheticals do not assist this Court because Mr. Beharry is not charged with having care and control of a vehicle with over 80 milligrams of alcohol in 100 millilitres of his blood; he is charged with refusing to comply with an approved screening device demand. I agree.

[155] Mr. Presswood analogizes the defendant's purported reasonable excuse to a citizen believing they are innocent, and as such simply declining to comply with a legal obligation presented by a police officer. He also compares it to a person who, while being arrested on reasonable and probable grounds, is of the view that they are innocent and as a result resists arrest. He submits, "Neither of these scenarios are permitted by our criminal law nor should Mr. Beharry's refusal be found to be reasonable on a balance of probabilities because he was of the view that his vehicle would not start".

[156] "Reasonable excuse" is a very fact-specific defence. Neither counsel were able to find any case like the one at bar, involving a vehicle with an ignition interlock device installed.

[157] The criminal sanction imposed for refusing to provide a breath sample should reach only those cases where the statutory provisions recognize an obligation to provide that sample. This case is one of them. The installation of an ignition interlock device into one's vehicle, does not exempt anyone from complying with a lawful roadside demand.

[158] Justice Kenkel gives many examples of "reasonable excuse" cases, which may allow for the defence in other factual circumstances[12]; such as, concern about the device, conduct of the police, economic loss, emotional state, impairment, intervention of third party, language issues, legal advice, medical conditions, post-driving consumption, weather conditions, et cetera.

[159] Although the Crown must prove beyond a reasonable doubt that the person to whom the demand was made was in fact operating the motor vehicle, or had care or control of it, section 254(5) prohibits the refusal of lawful demands[13].

[160] In cases involving breath demands under s. 254(3), the fact that the accused was found at trial not to be operating or in care or control of the vehicle does not provide a reasonable excuse for failing to comply with a breath demand[14]. Similarly, it is not a defence to a refuse charge that the accused was subsequently acquitted at trial of impaired driving.[15]

[161] "Reasonable excuse" is not any excuse. In this case, Mr. Beharry, at best, mistakenly felt, although did not express overtly, that his interlock device trumped the officer's roadside test, and he did not have to do that test. This was not an officially induced error. It was only his subjective opinion. It is a mistake of law, which is not excused. It is not based on reason, or objectively sound.

[162] At worst, Mr. Beharry knew he had to provide a sample, but was hoping to avoid it. The actual words that he spoke to the officer tend to support the latter interpretation.

[163] It cannot be left to the individual, who having consumed alcohol, subjectively feels he or she wants to eventually challenge the charge or rebut a statutory presumption, to choose not to comply with an otherwise lawful s. 254 demand[16]. His or her remedy if the demand is found wanting by a court, is to have the charge dismissed for want of proof beyond a reasonable doubt, or to seek Charter relief in some cases.

[164] In the circumstances of this case, Mr. Beharry did not have a reasonable excuse for non-compliance with the approved screening device demand.

Conclusion

[165] Unfortunately, Mr. Beharry made several errors of judgment on the night this happened. He decided to go to a bar and consume alcohol, and then enter his vehicle, sit in the driver's seat, and use the keys to turn on the car, however brief it was. Even on his evidence, he decided to use the car as a waiting spot until a friend arrived to drive him home, if that even was hastily arranged around midnight, about two hours before he was investigated. He used the car fittings and accessories.

[166] He took a risk of being caught behind the wheel in that state, even with the benefit of the privilege to drive with an ignition interlock device installed. He made a grave error by refusing to comply with the demand of a peace officer to provide a breath sample into an approved screening device.

[167] Mr. Beharry knew he was in trouble because he tried to avoid the officer by turning away from him, and by secreting his car keys beneath him. He tried to plead with the officer, and ask for a break.

[168] All of the defendant's words and actions that evening evinced a purposeful lack of cooperation with the officer, and a failure to comply with his requests to provide a breath sample for analysis.

[169] The Court finds that Police Constable Marchyshyn made a lawful approved screening device demand in all the circumstances of that night. He believed Mr. Beharry was in care or control of his motor vehicle. His belief was subjectively held, and objectively sound. He believed that there was alcohol in his body. Admittedly, he had consumed some alcohol.

[170] The officer gave Mr. Beharry many opportunities to comply with the demand. The defendant flat out refused, and did not have a reasonable excuse not to do so.

[171] Both counsel were extremely helpful in providing written submissions. I have reviewed them extensively, and although not expressly restating each nuanced submission, I have considered all the submissions made with attention and care. Notwithstanding the able argument of Ms. Bacchus, Mr. Beharry is found guilty of the charge of refusing to provide a sample in accordance with section 254(5) of the Criminal Code.

Released: March 17, 2017

Signed: Justice N. S. Kastner