Court File and Parties

Ontario Court of Justice

Date: June 30, 2017

Court File No.: Brampton 16-924

Between:

Her Majesty the Queen

— and —

Narinder Anand

Before: Justice A.R. Mackay

Heard on: October 26, 2016 and April 12, 2017

Reasons for Judgment released on: June 30, 2017

Counsel

Tyler Powell — counsel for the Crown

Frederick Fedorsen and Adam Little — counsel for the accused Anand

Judgment

MACKAY J.:

Introduction

[1] Mr. Anand is charged with failing to comply with an approved screening device ("ASD") demand pursuant to s. 254(2) of the Criminal Code, contrary to s. 254(5) of the Code as a result of an incident on December 13, 2015. The allegation is that he was 'feigning to blow' and did not provide a suitable sample. Mr. Anand was given 7 opportunities to provide a suitable sample before he was arrested. He was subjected to a pat down search and placed in the back of the police car after he was given the ASD demand.

[2] Mr. Anand has brought a Charter argument to exclude the evidence of his refusal or failure to comply with the demand based on section 8 and 9 of the Charter. These reasons address those issues.

Section 8 of the Charter

[3] At the time of the pat-down search Mr. Anand was not under arrest. He was under investigative detention in order to determine if reasonable grounds existed for his arrest for driving over the legal limit.

[4] In R. v. MacDonald, 2014 SCC 3 at para 41, the Supreme Court has made it clear that an investigative detention does not justify an incidental search as a matter of course:

… but although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann and reaffirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45). The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on "reasonable and specific inferences drawn from the known facts of the situation" (Mann, at para. 41).

[5] Here the officer simply had a vague general belief that it was safer to put Mr. Anand in her cruiser and to perform a pat down search. It could not be said that she had reasonable grounds to believe he posed a safety risk. It was the officer's practice to conduct a pat-down in almost every case where she placed a person in the patrol car. If it was summer time she would not in every case conduct a pat-down search as she could more easily detect if they were carrying anything in their pockets. A general suspicion of all detainees is not sufficient to meet the legal test. With respect to the objective component, there was nothing in the facts before me which would confirm there was a safety risk to the officer. Accordingly, I find that there was a violation of s. 8 of the Charter.

Section 9 of the Charter

[6] Mr. Anand was placed in the back of the police car. The police car is locked once he is placed inside and he is not able to open the door unless the officer opens it for him. Mr. Anand was not under arrest and the defence argues that this was a violation of his s. 9 Charter rights.

[7] In R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408 at para. 39, Justice Moldaver in dealing with a similar situation of a pat-down search occurring before an accused was seated in a police car set out the parameters for a lawful detention as follows:

Accepting, as the trial judge did, that Constable Burke was concerned about the appellant walking away, I am nonetheless of the view that in the context of this case, in order to justify securing the appellant in the back seat - knowing that this would also entail a pat-down search - detaining the appellant in that manner had to be reasonably necessary. In other words, the question to be asked is whether there were other reasonable means by which Constable Burke could have addressed his concern about the appellant disappearing into the crowd, short of doing what he did. If there were other reasonable means to ensure the appellant would not flee the scene, then detaining him in the police cruiser could not be said to be reasonably necessary and would thus have constituted an unlawful detention within the meaning of s. 9 of the Charter: Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 20.

[8] See also: R. v. Azarnush, [2016] O.J. No. 3248 (Ont. C.J.), at paras. 40-42; R. v. Ng, [2013] O.J. No. 2823 (Ont. C.J.), at paras. 6-11; R. v. Singh, [2015] O.J. No. 5922 (Ont. C.J.), at paras. 21-28; R. v. Cole, 2017 ONCJ 83, 2017 CarswellOnt 2747, 137 W.C.B. (2d) 222, 35 C.R. (7th) 427.

[9] Applying the Supreme Court's decision, the issue I must consider is whether the officer had grounds to believe that her safety was at risk based on reasonable and specific inferences drawn from the known facts of the situation and that securing Mr. Anand in the back of the police car was the only way to address those concerns (see: R. v. Singh, 2015 ONCJ 643).

[10] Mr. Anand was observed by Officer Sklery to drive approximately 20 kms below the speed limit. He pulled over immediately when directed to do so and complied with all of the officer's requests. There was nothing unusual or threatening about his behaviour. Officer Sklery had no reason to believe that Mr. Anand had a history of violence or criminal behaviour. The mere fact that Officer Sklery was by herself did not by itself support the inference that Officer's safety was at risk. Officer Sklery stated she did not know what was in Mr. Anand's van and was essentially cautious as anything could happen. It is her practice to always bring a motorist in her cruiser to perform an ASD test. She does this for her safety. While Officer Sklery was concerned they were in a live lane, she agreed that it was warm for December on the day of the stop and that there was not much traffic at this time of the morning. She was not suggesting it was not safe to do the test on the passenger side of Mr. Anand's car. Officer Skerly was of the view that a number of situations could happen when people are drinking. She is aware that once an individual is in the back seat they are locked inside until the officer opens the door. Although the ASD is now portable and she could physically perform the test at Mr. Anand's vehicle, she indicated for officer's safety she does the test in her cruiser. Officer Sklery explained that she has no idea if an individual she stops has a weapon in his vehicle or whether there is another set of keys in the vehicle. I find that given all of the circumstances Officer Sklery did not have grounds to believe that her safety was in jeopardy. Officer Sklery could have easily had Mr. Anand attend at his passenger side door or the back of her cruiser to perform the roadside test. Placing Mr. Anand in the back of her police car with the door locked was a breach of his s. 9 Charter right.

Section 24(2) of the Charter

[11] Section 24(2) of the Charter empowers a trial court to exclude evidence as a remedy for a Charter breach provided that the evidence was "obtained in a manner that infringed" the Charter right.

[12] As for being "obtained in a manner," the impugned evidence must be obtained in a way that infringed or denied the accused's Charter rights: R. v. Strachan, [1988] 2 S.C.R. 980. This can be demonstrated by showing that the evidence is part of the same transaction or course of conduct that involves the Charter breach. Temporal, contextual and causal relationships between the Charter breach(es) and evidence are all taken into account: R. v. Wittwer, 2008 SCC 33 at para. 21. Tenuous and remote connections cannot form the foundation upon which the exclusion of evidence rests. (see: R. v. Moulton, 2015 ONSC 1047).

[13] In this case the Charter breaches are all within a short period of time and, therefore, the evidence of the failure to provide breath samples can be said to be part of the same transaction. I am satisfied that they meet the s. 24(2) "obtained in a manner" pre-requisite.

[14] The Supreme Court of Canada has clarified the criteria relevant to determining when the admission of evidence obtained by Charter breaches would bring the administration of justice into disrepute: R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. In assessing and balancing the effect of admitting the evidence on society's confidence in the justice system, the court must consider:

1. The seriousness of the Charter-infringing state conduct;
2. The impact of the breach on the Charter-protected interests of the accused; and
3. Society's interest in the adjudication of the case on its merits.

I. The Seriousness of the Violation

[15] I do not find that the breach in this case fell at the "blatant and flagrant" end of the spectrum. However, it is not a technical breach either. Police officers need to be aware of their obligations and the limits of their powers. Police should not be locking civilians in police cars unless they have legitimate grounds for doing so. I do take note that Officer Sklery is a female officer and that she was alone with Mr. Anand after 3:00 a.m. Further, he was only detained for a relatively short period of time and according to Mr. Anand the officer opened his door to give him another demonstration of the ASD.

[16] The s. 8 breach was serious but I do not find that officer Sklery acted in bad faith. However, she has been an officer for many years and it is expected that she be aware of the development of the law with respect to officer's power to search. Unfamiliarity with the law should not be "rewarded or encouraged": Grant, supra at para. 75; R. v. Kokesch, [1990] 3 S.C.R. 3 at pp 32-3; Buhay, 2003 SCC 30 at para. 59; R. v. Moulton, 2015 ONSC 1047.

[17] I am mindful, however, that the case law has developed relatively quickly and recently with respect to roadside stops and placement of accused's persons in police vehicles when administering a roadside test. Although the parameters for investigative detention and searches were set out 13 years ago in Mann, Aucoin in 2012 and MacDonald in 2014, they have only been applied in more recent times to drinking and driving investigations (See: R. v. Cole, 2017 ONCJ 83, [2017] O.J. No. 977; R. v. Singh, [2015] O.J. No. 6588; R. v. Medeiros, [2015] O.J. No. 6588 (O.C.J.); R. v. Toupin, [2016] A.J. No. 204 (A.P.C.); R. v. Osoba, [2015] A.J. No. 1122 (A.P.C.); R. v. Schwab, [2015] A.J. No. 903 (A.P.C.); and R. v. Wondou, [2015] A.J. No. 430 (A.Q.B.)) Mr. Anand was charged in December 2015.

II. The Impact of the Breach

[18] Under this line of inquiry, the court must determine the extent to which the breach undermined the interests protected by the right that was infringed. With respect to the s. 8 breach, an unjustified use of a pat-down search is an intrusion into the personal integrity of the accused, and as such, impacts the protected rights of the accused. However, I find that the search was minimally intrusive: it was a brief pat-down search; Officer Sklery did not check Mr. Anand's pockets; she did not pat very far down his legs; it was done over his clothing and nothing was found or seized.

[19] With respect to the s. 9 breach, Mr. Anand was not kept in the back seat for a lengthy period of time. However, as the Supreme Court of Canada recognized in R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 at para. 133, "an arbitrary detention of any length ... has a substantial impact on a person's Charter-protected interests". See also: R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34, at para. 31.

[20] In all the circumstances, I find that the breaches in this case did not have a significant impact on Mr. Anand's Charter-protected interests.

III. Society's Interest in a Trial on the Merits

[21] This line of inquiry requires the court to determine whether the truth-seeking function of the trial process would be better served by the admission or the exclusion of the evidence. Excluding reliable evidence that will gut the prosecution is a relevant consideration militating against exclusion. See: R. v. Spencer, 2014 SCC 43 at para. 80; R. v. Taylor, 2014 SCC 50 at para. 38; R. v. Moulton, 2015 ONSC 1047, at para. 125.

[22] This branch clearly favours admission. The observations made by Officer Sklery, if accepted are conclusive evidence of the offences and indispensable to the Crown's case.

Balancing

[23] Having balanced the relevant factors and bearing in mind all the circumstances of this case, I am not persuaded that the evidence should be excluded. While the conduct of the police resulted in both s. 9 and s. 8 Charter breaches, those breaches had a limited impact on Mr. Anand's Charter-protected interests and there is a strong societal interest in a trial on the merits. I find that the admission of the evidence would not affect the preservation of the reputation of the administration of justice.

The Substantive Issue

[24] The pivotal issue for me to decide at this juncture is whether the Crown has proven beyond a reasonable doubt that Mr. Anand willfully intended to refuse or fail to comply with the roadside demand.

[25] The pertinent facts with respect to this matter are as follows:

[26] On December 13, 2015 Officer Sklery was working with a RIDE team. She was working with the approved screening device Drager Alcotest 6810. She tested the device at the start of her shift and was satisfied that it was in proper working order. She noted the date it was last calibrated.

[27] At 3:16 a.m. she stopped Mr. Anand northbound on highway 410 near Bovaird. She noticed that the van was travelling about 95 kilometers, slower than other traffic. The average speed for most on that highway is 120 kilometers. The vehicle exited at Bovaird. Although it slowed it did not make a stop at the red light. Officer Sklery then activated the cruiser lights and pulled the vehicle over. She spoke to Mr. Anand and advised him why she stopped him. She asked for his driver's license, registration and insurance. During her conversation with Mr. Anand she could detect an odour of an alcoholic beverage emanating from him. She also noticed that his eyes were bloodshot. Mr. Anand stated that he did not drink alcohol that night. Officer Sklery advised Mr. Anand that she could smell alcohol on him and he stated he had a glass of wine at 7:00 p.m. At that point Officer Sklery formed a suspicion that Mr. Anand was driving with alcohol in his blood. She read Mr. Anand the ASD demand. She asked him to attend at her cruiser for the purpose of the test. She did this for safety reasons and to prevent the possibility of Mr. Anand fleeing. She stated she did not know what he had in the Van. She did not want a situation with Mr. Anand taking off in the van with her standing beside it. At 3:18 a.m. Mr. Anand was in her cruiser. She could still smell the odour of alcohol on Mr. Anand. Officer Sklery demonstrated to Mr. Anand how to use the device. She blew into the instrument and it registered a zero. She estimated that a breath test could take about 5 seconds to obtain but she does not regularly note the time.

[28] Prior to starting with Mr. Anand's first attempt, she used a brand new mouth piece. The first attempt occurred at 3:21 am. Officer Sklery stated that Mr. Anand did not blow at all. She could not hear any breathing going through the machine. She did not see his chest rise. Mr. Anand had pursed his lips to make it look like he was blowing, as if he was playing the trumpet.

[29] At 3:22 a.m., Mr. Anand made a second attempt. Officer Sklery stated he did the same thing. He did not blow at all and his chest did not rise. He also pursed his lips. At this point the officer took the mouthpiece off the ASD and had him blow through it. She could hear at this time that he was blowing and she could feel the air on the back of her hand. In her opinion this air would have been suitable to make a proper sample. She explained to Mr. Anand that there were no obstructions in the mouth piece but he did not respond.

[30] At 3:23 a.m., on the 3rd attempt Mr. Anand blew lightly and then stopped. This caused an error to come on the device, it said "blow interruption." She had no concern with respect to the proper working order of the ASD. Officer Sklery indicated that you could hear the difference when someone is blowing softly versus hard.

[31] At 3:24 a.m., the 4th attempt, Mr. Anand pursed his lips but no air was going through the mouth piece, there was no raising of his chest. The officer then warned Mr. Anand of the consequences of not blowing. She explained that the consequence he would suffer would be the same as if he blew a fail and that he would be arrested for refusing to provide a sample.

[32] Mr. Anand told Officer Sklery he was blowing and the officer replied that he was not. He did not respond. He never raised any medical problem which would prevent him from providing a sample.

[33] Officer Sklery did not charge Mr. Anand after the 3rd attempt because she wanted to make sure it was perfectly clear to Mr. Anand what was expected of him.

[34] On the 5th attempt, Mr. Anand did what he had been doing previously. No air was going through the device. At 3:25 a.m. Officer Sklery warned Mr. Anand again. She once again explained the potential consequences and demonstrated to him how to provide the sample in the ASD. She went through this explanation as she understood that some people can be nervous. On the 6th attempt at 3:27 a.m., the same thing occurred. Mr. Anand did not blow into the mouth piece while he pursed his lips. The officer kept telling him to take a deep breath and blow all the air into the mouthpiece. Officer Sklery took another new mouth piece and had Mr. Anand blow through it, she could hear the breath going through and could feel the air on her hand. She was satisfied there was nothing wrong with the mouthpiece. On the 7th and final attempt at 3:27 a.m. Mr. Anand did not blow air through the mouth piece and again pursed his lips.

[35] At 3:28 a.m. Mr. Anand was placed under arrest for failing to provide a sample. He was given his rights to counsel at 3:31 a.m.

Officer Sklery's Cross-Examination

[36] In cross-examination Officer Sklery testified to the following:

[37] She did not perform over 1,000 tests with the new ASD. She could not say for certain but believed she had been using the new 6810 ASD for about a 1 ½ years before 2015. The new device is completely portable. It works with batteries and officers do not have to worry about being close to a power source or to their cruisers to use the device. Officer Sklery did not record the entirety of all conversations she had with Mr. Anand. She indicated that she did recall he said something about coming from a banquet hall. This was not in her notebook. She stated she tried to put everything in her notebook that she believed was relevant. She agreed with defence counsel that Mr. Anand said he thought he was providing a sample and that he was not doing anything wrong.

[38] The officer agreed that she received training on the new device. However, she had not read the manual with respect to this ASD in a long time. She explained that she really wants motorist to provide samples and stated she has only had three refusals in her lengthy career. Most of the time she is able to convince people to provide a sample. Officer Sklery did not record in her notebook what she said to Mr. Anand to convince him to blow. She did not put it in her notebook because she uses this persuasive technique all the time. She was clear that she had an independent recollection of trying to persuade him to blow into the ASD.

[39] Officer Sklery did not believe that she got out of the car and open Mr. Anand's door to get him to blow after his second attempt. She advised she does not normally get out of the car.

[40] Officer Skerly agreed that she did not put in her notes that she used a new mouth piece when demonstrating to Mr. Anand how to blow. She stated that if she does a second test herself, she always gets a new mouth piece for herself and the motorist. Officer Skerly was adamant that she would not have blown into a mouth piece that a motorist blew into and she would not have had him blow into a mouth piece that she had just blown into. Such a practice would not be hygienic.

[41] Defence counsel suggested Officer Sklery could not have been too concerned about hygiene as she failed to follow the protocol on how to remove the plastic from the mouthpiece. Officer Sklery agreed that she did not open the mouth piece as instructed to do so by the OPP directive of the Deputy Commissioner dated November 2013.

[42] Officer Sklery stated the new mouth pieces are a long piece of tube and that it is more practical to take it out of the plastic completely. The protocol instructs officers not to remove all of the plastic until it is on the device and to leave on the plastic covering the portion that will come into contact with the subject's mouth until the mouthpiece is correctly fitted to the device.

[43] The motorist is to remove the plastic from the section where he is to blow. Officer Sklery advised that she does not touch the part that would come in contact with his mouth. It is the center of the mouth piece that you put on to the top of the screening device.

[44] Officer Sklery said for her to make sure there is no obstruction in the mouth piece she makes sure she takes all the plastic off of the mouth piece before affixing it to the ASD.

[45] Officer Skerly agreed that with the old mouth pieces you could remove some of the plastic, affix it and then allow the motorist to take the remainder of the plastic off.

[46] In answer to Mr. Fedorsen's suggestion that she chose to disobey a directive on how to remove the plastic from a mouthpiece, she stated she chose to do what was practicable for the situation she was in. She did not attempt to tell any superiors about the fact that the memo was not practicable but intends to after the court case.

[47] Officer Sklery was adamant that each time she blew into the device she opened a new mouth piece and did the same for Mr. Anand.

[48] Officer Sklery conceded that it was possible for plastic to get stuck in the mouth piece and this is why she takes it completely off. I accept officer Sklery's evidence that she would not have used the same mouth piece as Mr. Anand and vice versa.

[49] She was not aware that the same OPP manual mandated officers to perform another self-test after an accused person was charge for refusal. Officer Sklery did not do a self-test after charging Mr. Anand. She believed that she was only required to do so when they registered a fail. However, on the same shift, after charging Mr. Anand, she did a self-test when she stopped another motorist.

[50] Counsel reviewed point 9 on page 7, from the same OPP memo which directed officers to retain the mouth piece of the accused and of the officer. She was also not aware of this requirement.

[51] Officer Sklery advised that she will from now on follow these directives. She stated that the directives were relatively new.

[52] Officer Sklery denied that she raised her voice after the second attempt but believed she may have after other failed attempts.

Witness Testimony: Jagmohan Singh

[53] Mr. Singh is a chef who works for Mr. Anand at his banquet hall. On the night of Mr. Anand's arrest he had been with Mr. Anand until 1:30 a.m. He recalled that he gave Mr. Anand one glass of wine when he served him dinner. He stated that Mr. Anand only has one glass of wine one or twice a month. He has never seen him drink more than one glass of wine in the years that he has worked for him. They usually work 6 days a week together.

[54] In cross-examination Mr. Singh testified to the following:

[55] He has worked for Mr. Anand for 7 years. He agreed that he relies on Mr. Anand for his income. On the night in question, they had an event at the banquet hall. Mr. Anand would not always been in the kitchen. He would do about 10 or 12 rounds around the banquet hall. He would spend about 5 or 10 minutes in the kitchen He only saw Mr. Anand when he served him his dinner and when he checked in on the kitchen. Mr. Singh agreed that he does not know what Mr. Anand is drinking when he is not in his presence. He stated the last time he saw Mr. Anand drink before he was arrested was about a 1 ½ months prior. Mr. Anand on that occasion brought a bottle of wine and said "I feel like drinking."

[56] Mr. Singh was not concerned that he would be fired if he did not assist Mr. Anand. He said if he was fired he could find a job anywhere.

[57] Mr. Singh was not with Mr. Anand for significant portions of the night.

Witness Testimony: Narinder Anand

[58] Mr. Anand is 58 years old, he is married with 4 children. All of his children are successful professionals. He does not have a criminal record. He has owned the banquet hall for over 7 years. He normally starts work at 11:00 a.m. and works about 17 or 18 hours. On the evening before he was arrested he drank one glass of wine at around 7:00 p.m. with his super. He left the hall between 2:00 and 2:15 am. He dropped off two of the waiters at McLaughlin and Ray Lawson. He always drops them off and takes the same route each time. He drove slow and went through a red light. He drove slow because the van was full of empty bottles and garbage from the banquet hall. He was pulled over by the officer and she asked him if he knew why she stopped him. He replied yes because of the stop. Officer Sklery advised him that she could smell alcohol on him and asked if he had been drinking. He initially said no because he had a glass of wine hours before at 7:00 p.m. When the officer asked him a second time he said that he had a glass of wine. He got out of his truck and the officer searched him and told him to get in the back of his cruiser. He leaned towards the window dividing them and she gave him the device. She showed him how to use the device. Once Mr. Anand blew into the device Officer Sklery told him that he was not doing it right. She showed him how to do it and he tried again. She told him he was playing games and Mr. Anand apologized and said he had not done this before. He explained to the officer that he was a respectable person who gave donations to the police and charities. When Mr. Anand was first asked if the officer got out of the car he first said no. He was asked a second time and then said after two attempts she came out of the car and she opened his door. He stated that on his first attempt he did what the officer had told him but she was not satisfied. On the second attempt she stated "you are playing games". Mr. Anand told her he was not playing games. He saw the officer hold the machine and blow into the device prior to him blowing into it. He did not see her remove cellophane from the mouth piece. He blew two times when she sat in the front seat.

[59] Mr. Anand stated the officer was very upset and then opened his door and said "OK, I will show you how to blow." Mr. Anand blew on the officer's fingers. He believed he did this through the mouth piece. The officer gave him the machine and she said it was better than before and she said you can do better. The Officer asked him to do it again and then after he blew, she was upset with him again. The officer asked him if he wanted to go home or to the police station. She was angry when she spoke. Mr. Anand tried a couple of more times, then he said he was not sure, maybe 3 or 4 more times and the same thing happened. The officer was not satisfied and she was getting upset. He stated that he was blowing the same way. He only blew through the one mouth piece that he was originally given.

[60] Mr. Anand stated he was trying to blow and explained that he is not a drinker. He advised the officer that he did not look drunk. He explained that he does not drink at work. He is the owner of the banquet hall and as such he has responsibilities when closing the establishment. He has to check the lights, washroom and put the alarm on. During events he needs to make sure everyone behaves and make sure everything goes smoothly. He never believed that he would blow over. He again wanted to express that he was honest and that he gives donations to the police. He advised the officer that he is not the type of person to cheat and was not asking for any favours. Ms. Anand said the officer was not trying to persuade him she just told Mr. Anand that he was playing games and said "do you want to go home or to the police station". He never saw the officer take the mouth piece he used and exchange if for another.

[61] In Cross-examination Mr. Anand testified to the following.

[62] He agrees that he was with the officer for about 12 minutes prior to his arrest and that she gave him several chances to blow into the device.

[63] He did not have any medical problems that affected his breathing or his lungs. He takes a tablet each day for acid issues.

[64] Mr. Anand admitted that he had said the officer was happy with him when he blew onto the officer fingers and that she told him how his blow was perfect. He disagreed that he was exaggerating when he said earlier that the officer was upset the whole time. It appears he was given to some exaggeration. He was asked to repeat what the officer had said that night. He stated Officer Sklery said are you "playing games with me", "you are not doing it right," she kept repeating this, I did it again and she said "you are not doing it right and try again." He said she did not really say anything else. The Crown asked Mr. Anand if the officer read him the demand. And he replied Yes. He could not remember her exact words. He advised that the officer scolded him; that the officer said "Do you want to go home or to the police station." The Crown demonstrated that Mr. Anand could not remember the whole conversation of what the officer had said to him. He said he remembered most of it. He could not remember the exact number of attempts he made. At one point he said 5 to 7 and at another point he said 6 to 8 attempts. He explained that when he was blowing the officer would tell him to stop even though he was blowing as hard as he could. The officer would say you are not doing it right and try again. She said "you are not blowing hard enough". Mr. Anand had also stated that the officer said nothing was happening when he was blowing but he later denied making this statement.

Section 254(5) of the Criminal Code

[65] Section 254(5) of the Criminal Code makes it an offence to fail or refuse to comply with an ASD demand. It states as follows:

Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

[66] The elements of a s. 254(5) Criminal Code offence are:

1. a lawful demand; and
2. an intentional (the mens rea) failure or refusal (the actus reus) to comply with the ASD demand.

[67] The Supreme Court of Canada in R. v. Goleski (2015), 72 M.V.R. (6th) 1 (S.C.C.) has settled this issue with respect to the mens rea aspect. Once the Crown proves the actus reus (a failure or refusal to comply with the demand) and mens rea (an intentional refusal or failure to comply) elements of a s. 254(5) refusal offence, the accused must be convicted unless she or he can establish, on a balance of probabilities, a reasonable excuse for having failed or refused to comply with the demand.

[68] The Crown bears the burden of proof and must establish each element beyond a reasonable doubt. Mr. Anand has testified that he did not intentional fail to comply or feign blows in the ASD.

[69] The Defence submits that the Crown has not proven the mens rea required for this offence which is a wilful intentional refusal to provide a suitable sample.

[70] The Defence relies upon a number of cases in support of its position, these include: R. v. Greenshields, [2014] O.J. No. 475 (Ont. C.J.); R. v. Tikhonov, [2014] O.J. No. 3479 (Ont. C.J.).

Analysis

[71] Applying the principles in R. v. W.D. (1991), 63 CCC (3d) 397, I must consider whether having heard Mr. Anand's evidence I am left in a state of reasonable doubt. Even if I reject his evidence completely, I must consider whether the Crown has proven the charges beyond a reasonable doubt on the evidence which I do accept.

[72] I found Officer Sklery to be a credible witness. I accept that she does make an earnest effort to have motorists provide suitable blows to avoid incurring a refusal charge. It was her evidence in fact that in all the years she has worked she has had only three refusals. While the officer did not follow all of the instructions when using the ASD, I have not heard any evidence that the method she did employ in unwrapping the device would lead to a malfunction of the device. I find her evidence in this area tends to further support her credibility as she openly admitted that she did not follow all of the instructions contained in the OPP directive. Officer Sklery also very humbly acknowledged that she would from now on record in her notebook that she used a new mouth piece when demonstrating to a motorist how to use the ASD. In addition, she admitted that is was quite possible after the two attempts that she may have raised her voice when speaking to Mr. Anand. She gave a detailed account of each blow. She observed Mr. Anand on all but one test, purse his lips as if pretending to blow; his chest did not raise and no air could be heard to pass through the machine. At one point she removed the mouth piece and had him blow through the mouthpiece on to her hand. Mr. Anand had no trouble blowing onto the officer's hand. Immediately after this exercise Mr. Anand blew lightly and an error message came on which said "blow interruption". Officer Sklery could hear Mr. Anand blow lightly into the machine. She stated one can hear the difference between a hard blow and a soft blow. Mr. Anand was warned twice during the failed attempts of the consequences for refusing to provide a sample. He was given clear, simple instructions. Mr. Anand never indicated he had any difficulty understanding the officer. However, he persisted with the same behaviour.

[73] Mr. Anand had indicated that he had tried his best to provide a sample of his breath. Although he said the officer had scolded him throughout he did not say that this affected his ability to blow, that it caused him to be anxious, nervous or unable to concentrate. Further, I find that he exaggerated how upset the officer had gotten with him. At one point he said that she was upset the whole time and at another he said that she said she was happy with some of his efforts. Mr. Anand advised he only had one glass of wine at 7:00 p.m. I find it unlikely that he would smell of alcohol 7 or 8 hours later. However, I do not put much weight on this observation as I had not heard contradictory evidence on this point. Mr. Anand attempted to say that the officer did not use a new mouthpiece and that he recalled everything that was said and occurred. It was clear after cross-examination that he could not. Mr. Powell made the point that it is unlikely that Mr. Anand would recall all of the details that occurred during his interaction with the officer and everything she said to him. Although Mr. Anand did not see the Officer open a new mouthpiece, I find it more likely than not that he simply could have missed this as she was sitting in the front seat of the cruiser while he sat in the back. Further, they were separated by the window between the front and the back. Mr. Anand at no time expressed any confusion with the instructions he was given. Mr. Anand advised he had no difficulty with his breathing or issues with his lungs.

[74] Officer Sklery tested the ASD and found it to be in proper working order, prior to performing an ASD on another motorist subsequent to Mr. Anand's arrest.

[75] Based on all the evidence I have heard, I do not accept that Mr. Anand attempted to provide a suitable sample of his breath, nor am I left in a reasonable doubt by it.

[76] I am satisfied the accused had the capacity to provide a suitable sample and that he deliberately failed to do so. Officer Sklery had Mr. Anand blow on her hand through the mouthpiece and testified that having made those observations, she believed he was capable of providing a suitable sample and that he feigned his blows. I am not, of course, bound to share her opinions. However, based on all of the evidence before me as they reveal themselves on this record as a whole, I am satisfied beyond a reasonable doubt that Mr. Anand intended to fail the roadside tests. Accordingly, Mr. Anand is found guilty as charged.

[77] I commend Mr. Fedorsen and Mr. Little on their representation of Mr. Anand. I also thank Mr. Powell for his professionalism and efforts as well.

Released: June 30, 2017

Justice Alison Mackay

Footnotes

[1] R. v. Singh, 2015 ONCJ 643

[2] O.P.P Approved Screening Device Operating Procedures Exhibit 1, page 4