Court File and Parties

Ontario Court of Justice

Date: 2018-02-21

Court File No.: Kitchener Info # 15-8324

Between:

Her Majesty the Queen

— and —

Terrance Colson

Before: Justice Scott Latimer

Heard on: December 20, 21, 2017; January 26, 2018

Reasons for Judgment released on: February 21, 2018

Counsel:

• Anna Drahovzal, counsel for the Crown
• Thomas Brock, counsel for Terrance Colson

Judgment

LATIMER J.:

[1] Charges and Plea

Terrance Colson has pleaded not guilty to charges of impaired driving and refusing to provide a breath sample. The allegations against him are particularized as follows:

(1) on December 14, 2015, in the City of Waterloo, while his ability to operate a motor vehicle was impaired by alcohol, he did operate a motor vehicle, contrary to section 253(1)(a)…

(2) on December 15, 2015, in the City of Kitchener, did without reasonable excuse fail or refuse to comply with a demand made to him by Cst. Adams, a peace officer, to provide then or as soon thereafter as was practicable samples of his breath as in the opinion of Adams were necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood, contrary to section 254(5)…

I. INTRODUCTION

[2] A motor vehicle collision occurred on December 14, 2015, at the intersection of Benjamin Road & Westmount Road in Waterloo. Terrance Colson's vehicle struck the trailer of a left-turning SUV at the intersection, causing damage to both vehicles. His car ended up in a ditch to the east of the intersection. Police and other emergency personnel were called to the scene, and the defendant was simultaneously arrested for impaired driving and transported to the hospital for medical assistance. While at the hospital, the police waited for medical clearance before demanding breath samples for their criminal investigation. Clearance was eventually granted, but no breath was provided. The defendant was ultimately charged with impaired operation and refusing to provide a sample. He was discharged from the hospital, only to return the next day, still complaining of chest pain. A further medical review determined that he had suffered a fractured sternum in the collision, a fracture that had gone unnoticed during his initial medical treatment.

[3] Counsel have conducted a focused trial and identified the key issues for determination: whether Terrance Colson was impaired by alcohol at the time of the collision and whether the elements of the refuse offence are made out, given his physical condition at the time of testing.

II. THE FACTS

A. At the collision scene

[4] The written statement of Gheorghe Sirbu was admitted into evidence upon agreement of the parties. He was travelling westbound on Benjamin Road, towing a trailer, when he attempted to make a left turn onto Westmount Road. His SUV proceeded through the intersection safely, but the trailer he was towing did not. It was struck by an eastbound vehicle driven by the defendant. Sirbu mistakenly thought he had enough time to clear the intersection. He advised the police that he could not make the left turn quickly because of his trailer and some of the contents inside. The police subsequently charged him with careless driving contrary to s. 130 of the Highway Traffic Act (Ontario).

[5] Sharioz Rattansi was behind Sirbu when the collision occurred. Her view of the defendant's vehicle was obscured until after the collision. She described the road conditions as "pretty clear… really cold". The intersection itself was very dark, with almost no lighting. There were two lanes, one in each direction, and it was an area where she knew she had to drive cautiously, on account of the poor lighting.

[6] She described seeing the defendant's vehicle "plow through" the trailer and proceed into the ditch. She pulled over to make sure both drivers were okay. The SUV driver seemed fine, as he was standing on the road picking up items that had been knocked out of his trailer. She turned her attention to the defendant, who had also exited his vehicle. Rattansi described a conversation with the defendant where he was non-responsive to questions, simply repeating that he was "fucking cold" over and over. She noted his nose was bleeding and it appeared that he was in shock. "In his own little world" was how she described him.

[7] Soon another motorist approached and offered assistance. The defendant was still not saying much. Based on his demeanor, it seemed like he just wanted to be left alone. After about twenty minutes, he sat in the other motorist's vehicle in an attempt to get warm. Rattansi saw him either sleeping in the car, or sitting with his eyes closed. She estimated that he was in the vehicle for approximately fifteen minutes before the police arrived.

[8] Constable Kevin Current was the first police officer to arrive on the scene. He is a senior officer with the Waterloo Police Service. He arrived and saw the defendant being escorted to an ambulance by paramedics. He described Mr. Colson as being "a little unsteady on his feet". Current entered the ambulance as well, and observed indicia of impairment emanating from the defendant: a strong odour of alcohol, bloodshot eyes, and slurred speech. He was uncooperative both with the paramedics and the officer, answering some but not all of the paramedic's health related questions. He soon after refused medical attention. Constable Current, possessed of a reasonable belief that the defendant had recently been operating his motor vehicle while impaired by alcohol, arrested him at 10:42 p.m. for impaired driving. He applied handcuffs and escorted the defendant back to the police cruiser. A sealed bottle of Vodka and an unopened bottle of Heineken beer – in packaging that suggested there had at one point been additional bottles – was found in the defendant's car.

[9] Constable Current next provided Mr. Colson with his rights to counsel and administered a breath demand. At this point, the defendant advised that he did wish medical treatment at the hospital. Constable Current believed the defendant was "being difficult" with him, and noted that his change of heart regarding medical treatment followed being notified about a criminal investigation into his driving and a demand for a sample of his breath. Nevertheless, Current took Colson over to the paramedics and together they went to the hospital, arriving at 11:14 p.m. Colson continued being difficult and using foul language in the ambulance. He said he was in pain, and that his chest hurt.

B. At the hospital

[10] Once at the hospital, Constable Current requested a breath technician attend for the purpose of obtaining breath samples from the defendant. He otherwise waited while hospital staff attempted to treat the defendant, whom he observed continuing to swear and otherwise being rude to the staff. He also refused to allow a nurse to take his blood.

[11] At approximately 11:30 p.m., Constable Richard Adams, the breath technician, arrived. Time continued to pass as the defendant received medical treatment and spoke to duty counsel over the phone. Adams was suspicious of Colson's post-arrest claim of injury. At 11:33 p.m., he introduced himself to Colson and explained that he was there to obtain breath samples once the doctor said it was okay to do so. Colson responded, "I'm not giving you none, fuck you". Adams testified that he explained the penalties for non-compliance, following which Colson indicated a willingness to provide.

[12] Constable Adams thought Mr. Colson uncooperative. He found his attitude "shocking", particularly because Adams did not understand Colson to have been at fault for the collision. In Adams' view, Colson had clear indicia of, at a minimum, alcohol consumption if not impairment. Adams was an experienced breath technician; Mr. Colson was the 210th test subject in his career.

[13] The defendant's oppositional attitude continued towards the nursing staff and the police officers. At one point, he asked Constable Adams if he was "a nigger". Colson said he could not see Adams. Adams asked if Colson was a racist, and he described Colson to laugh "freely" in response, in a manner that suggested to Adams that Colson did not have particularly bad chest pain. Adams did not think he had any trouble laughing. At 12:49 p.m., he was taken for X-rays, which took approximately three minutes. Thereafter the attending physician, Dr. Furqan, advised Constable Adams that the defendant was physically capable of providing a breath sample. This occurred at 1:07 a.m., following which Constable Adams read the defendant a standard Intoxilyzer breath demand. After re-reading it and explaining it in simpler terms, the defendant advised Adams that he understood.

[14] Constable Adams, having already set up the Intoxilyzer in the hospital room, provided the defendant a mouthpiece and explained how he was to blow. The defendant was sitting upright in his hospital bed at the time, with Adams right beside. Constable Current, who was observing, did not believe the defendant was blowing into the device, as the instrument was not registering any breath and the mouthpiece was not fogging up, which is a common occurrence during a successful breath testing process. Current, who is not trained to operate an Intoxilyzer, observed that this pattern continued throughout testing – Colson would put the mouthpiece in his mouth but, when told to blow, it appeared that he would not. The device remained silent and no reading resulted. Both officers recalled that the defendant was able to pass breath through an unattached mouthpiece, but not when it was connected to the Intoxilyzer. Constable Current described Colson's breathing as "very slow" when he would exhale. He also recalled the defendant to have ceased his swearing by the time of testing, and described him as cooperative.

[15] Constable Adams also testified to his observations during the testing process. He gave the defendant a mouthpiece and told him to "take a deep breath and blow through" it to make sure it is not blocked. The defendant blew for five seconds; Adams considered it to be a "deep breath", and it reinforced his view that the defendant was capable of providing a sample. The defendant was not complaining of pain. He testified that normally three to four seconds of blowing would provide a sufficient sample of breath.

[16] Adams next had the defendant "dock" the mouthpiece into the tube attached to the Intoxilyzer, and advised him to "inhale deeply", fill his lungs and stomach with air, and blow out until Adams told him to stop. He estimated it would take five to six seconds. On the first attempt, Adams, who was holding the tube, felt a "slight tap", which experience told him meant that the defendant had put his tongue over the mouthpiece entry point to the tube, blocking any air from getting through. Adams warned him about putting his tongue, or his teeth, on the mouthpiece.

[17] On the second attempt, Adams testified that no air went into the instrument. The defendant's cheeks were not puffed, he did not take a deep breath prior to the attempted sample, and Adams believed he was playing games. He told the defendant, "We're not going to do this all night".

[18] On the third attempt, again Adams perceived no air entering the instrument. He testified that the instrument did not provide any tone, which is a signal to indicate the receipt of air pressure. He did not believe the defendant was attempting to provide a sample. A fourth attempt followed, with similar results. Adams testified that he can hear air going through the tube when someone is blowing, but in the defendant's case he heard nothing. While the defendant kept saying he was trying to blow, Adams did not believe him, in part on account of his understanding of the minimal amount of air pressure required to register a sample. He also knew the instrument he was operating was in proper working order. He believed Colson to be intentionally, or "wilfully", refusing to provide a sample. He stopped the testing process and told the defendant he was going to be criminally charged for not providing a sample.

[19] The defendant was subsequently released from the hospital and taken to a local police station by Constable Current, where he was held because of "intoxication". Current's last contact with him was at 2:20 a.m.; he recalled Colson to still bear indicia of impairment and, in his view, to still be impaired by alcohol.

C. The defendant's evidence

[20] Terrance Colson testified in his own defence. He is fifty-three, the father of three boys, and works as a heavy equipment operator. At the time of the accident, he was working for a paving company doing mostly physical labour-type work. He advised that he uses a lot of foul language on account of his workplace environment. He indicated that he has high blood pressure, and as a result takes medication that causes a flushed red face. On December 14, 2015, he had been visiting a friend, Pat, in St. Clements. He drank two beers with Pat and his wife while they socialized, and then began driving his rental car towards his next destination. He was not feeling any effect from the alcohol consumed. The intersection where he collided with the trailer was about six to seven minutes from Pat's house. He saw the SUV in the intersection, but not the trailer, which he believed did not have any attached lighting.

[21] As stated, the defendant did not see the trailer before the collision occurred in the intersection. His vehicle subsequently struck a tree when it went off the road. The air bags deployed, hitting him in the face, and the steering wheel struck his chest with considerable force. He received a cut on his nose, face, and black eyes. He subsequently learned, the day following the collision, that he had also suffered a fractured sternum and sciatic nerve damage.

[22] Mr. Colson accepted that he originally said that did not want to go to the hospital, attributing this statement to shock resulting from the accident. Once taken there, he felt great pain; he testified that it was like a "truck had been dropped on his head". Every bone in his body felt sore. His sternum was extremely sore, and he had a hard time breathing. He was only able to take short breaths. He was struggling to fill his lungs with air immediately following the collision, and it was painful for him to exhale.

[23] During his interaction with Constable Adams, Colson understood that he was demanding a breath sample into the Intoxilyzer. Adams told him, "take a deep breath in, and then exhale as hard as you can as long as you can". Colson kept telling him that he couldn't breathe, or was having a hard time breathing, but Adams did not believe him.

[24] In cross-examination, Mr. Colson acknowledged some lack of recall with regard to events following the collision. He testified that he was "out of it", on account of the "hard impact", and that he remembers "bits and pieces" of the events. He indicated that he thought he was in shock, and "I didn't think I was hurt until a couple minutes after".

[25] Mr. Colson also acknowledged that he used foul language to the hospital staff, mostly because he was upset about how he was being treated medically. He didn't want blood drawn because he does not like needles, however he did agree with Crown counsel that he did accept pain medication intravenously. He said that was less of a concern because the needle was giving him something instead of taking his blood. He acknowledged telling the nurses to "fuck off", and that he was upset because "I knew my chest was sore, and they weren't attending to that". He acknowledged and apologized for using the word "nigger" to Constable Adams, stating that he "has black friends and [is] not a racist". He also suggested that there was more of an exchange between them at the time then what Adams testified to. He did not recall or remember initially telling Adams that he was not going to provide a sample.

[26] Mr. Colson testified that he was in significant pain when Adams was trying to get him to blow into the Intoxilyzer. He recalled having tears in his eyes, and being very vocal with regard to his pain and the difficulty he was having blowing. He was saying that his "chest was sore", and that he was "having a hard time breathing". He denied laughing at any time, as he said he would have been in too much pain to do so. He gave his best effort to provide a sample, but his injuries prevented him from so doing. Adams became upset because he did not believe Colson was trying, and subsequently pulled the equipment away and ended the testing process. Later, he was transported to the police station before returning to the hospital the next day, where his fractured sternum was identified following additional medical examination.

D. The medical evidence

[27] Dr. Neil Harte was working in the hospital emergency room when Mr. Colson returned on December 15. He reviewed the previous night's X-rays, and had an additional sternal X-ray conducted. He confirmed that Mr. Colson had suffered a fractured sternum. When asked about what sort of pain that would cause, he indicated that it was variable, "but most people have a fair degree of pain". The variability depends on individual pain tolerance. Also, there are different types, or degrees, of sternal fractures. He provided the opinion, on consent, that a sternal fracture could effect a person's ability to inhale and exhale air. The defendant had a "mildly displaced fracture", which Dr. Harte confirmed would impact breathing. Harte noted on the defendant's medical chart that his breathing was "non-laboured", which he described as his own physical observations regarding the defendant's ability to breathe (e.g. not breathing fast, or not working hard to breathe).

III. THE CHARGES

A. Impaired Operation – Law & Analysis

[28] The law in this area is clear and likely does not bear repeating – proof beyond a reasonable doubt of impairment, even slight, of a motorist's ability to drive is sufficient to base a conviction: see R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont.C.A.), aff'd , [1994] 2 S.C.R. 478, 90 C.C.C. (3d) 160. As is often said, however, what is required is evidence of (at least) slight impairment; not slight evidence of impairment. The burden of proof must be kept front of mind in this regard.

[29] In the present case, the evidence falls short of establishing the requisite impairment beyond a reasonable doubt. Sharioz Rattansi, the witness who tried to help the defendant immediately following the collision, did not witness any driving prior to the collision and, while she did acknowledge that she was congested that evening, she never smelt alcohol on the defendant's breath during their interaction. She described him as suffering from shock and seeming dazed, perhaps from the head injury that caused the bleeding nose that she witnessed.

[30] Constable Current was the first officer on scene. He described Mr. Colson as "a little unsteady" on his feet, or "swaying a little bit". Current sat next to the defendant in the ambulance and noticed a "strong odour of alcohol", bloodshot eyes, and slurred speech. Following his arrest, he was difficult with police and hospital staff during the currency of his police detention. During cross-examination, the officer fairly conceded that some of the observed indicia, like bloodshot eyes, could have come from other sources, such as a lack of sleep or a foreign particle in the eye. This last possibility has some evidentiary value, as the defendant's airbag had deployed during the collision. Finally, a sealed bottle of Vodka and a bottle of beer, within Heineken packaging, were located in the defendant's vehicle. The beer and packaging were located in a cooler, along with food items, in the rear seat of the vehicle.

[31] To summarize, no witness testified to bad driving that might permit an inference as to its source. While the defendant did strike the trailer, it was unlit and the intersection was very dark. As is common in cases involving a motor vehicle collision, it is difficult to parse out whether the observed indicia are alcohol related or collision related. The first witness on scene attributed the defendant's condition to shock. There is no reason not to accept her observations at face value. However, the officer, a trained observer, noted alcohol specific indicia. While I accept his evidence as well, when considered in totality it falls short of convincing me, beyond a reasonable doubt, that Terrance Colson was impaired by alcohol when he was driving a car that evening. The fact that he was involved in a collision does not assist, as there is no evidence that his conduct led or even contributed to the collision. Indeed, there is some evidence before me that the SUV driver was at fault in turning left into the path of an oncoming vehicle. That vehicle belonged to the defendant, who I find not guilty of impaired driving in the circumstances.

B. Refuse Breath Sample

[32] The refuse breath sample analysis is more involved. There is no doubt that, at the time of testing, Terrance Colson had recently suffered a significant injury proximate to his lungs – a fractured sternum. There is also no objective record, such as a video, of the testing process because it occurred at the hospital due to the defendant's need for medical treatment. Determining what actually transpired between the defendant and the breath technician requires a factual determination. An assessment of this issue also requires creating a structure to the applicable legal framework. I propose to address that framework first.

(i) The elements of the refusal offence

[33] The s. 254(5) offence involves failing or refusing to comply with a breath demand. In R. v. Soucy, 2014 ONCJ 497, 316 C.C.C. (3d) 153, Justice Paciocco (as he then was), helpfully broke down the constituent elements. With regard to the actus reus, Justice Paciocco provided the following in paragraph 26:

First, the Crown must prove [the factual condition of] the existence of a demand having the requirements of one of the [six] types mentioned in ss.(2) and (3) [and 3.1, 3.3 and 3.4], Second the Crown must prove an [act of] failure or refusal by the defendant to produce the required sample of breath or the required sample of blood [or a failure or refusal to submit to the evaluation of an evaluation officer]

[34] The mens rea component has been the subject of sustained judicial comment over the past sixteen years: see Soucy, supra at paras. 27-55; R. v. Lewko, 2002 SKCA 121, 169 C.C.C. (3d) 359; R. v. Sullivan, [2001] O.J. No. 2799; R. v. Porter, 2012 ONSC 3504; R. v. Greenshields, 2014 ONCJ 35; R. v. Slater, 2016 ONSC 2161, 94 M.V.R. (6th) 224, at paras. 5-14. Paciocco J., after reviewing this body of jurisprudence, as well as some of the traditional mens rea cases from the Supreme Court of Canada, concluded that the mental element necessary for the offence was intention or recklessness on the part of an accused. At paragraph 50, he stated:

If the principles of mens rea are properly applied in my view, the basic mens rea of intention that is to be read into section 254(5) requires, at its highest, no more than that the accused must refuse or fail "on purpose."

[35] In 2016, Justice Nordheimer (as he then was) released Slater, a summary conviction appeal judgment that, in my mind, brings further clarity to this issue. The debate regarding knowledge vs. intention was missing the point that, in circumstances of a knowing refusal, a detainee's intention to effect such a result can be inferred absent evidence to the contrary. At paragraph 12, Nordheimer J. stated:

The decision in Sullivan is consistent with what I say is the proper reading of both Lewko and Porter and, that is, that, absent evidence to the contrary, or evidence that raises a reasonable doubt, proof of the requisite mens rea for the offence will be met by the application of the general principle that a person, who does something that has predictable consequences, usually intends or means to cause those consequences. Put more directly, evidence that a person who tries multiple times to provide a breath sample, and in each instance fails to provide a sample, gives rise to an inescapable inference that s/he is intending that result, absent some other evidence being present that would suggest an absence of such an intent, or at least raise a reasonable doubt about it.

[36] The remaining component of s. 254(5) is reasonable excuse. Even if the elements of the offence are otherwise made out, an acquittal will occur if an accused satisfies the court, on a balance of probabilities, that he had a reasonable excuse why he did not provide a sample: R. v. Goleski, 2015 SCC 6, [2015] 1 S.C.R. 399, 320 C.C.C. (3d) 433.

[37] In R. v. Moser, [1992] O.J. No. 602, 71 C.C.C. (3d) 165 – a case that bears some factual similarity to the present facts – Justice Doherty, writing in concurrence with the majority of the Court, states the following at page 176:

The essential elements of the offence described in s. 254(5) consist of a proper demand and a refusal or failure to comply with that demand. The defence of "reasonable excuse" is not a denial of either of those essential elements but refers to "matters which stand outside the requirements which must be met ... before a charge can be supported," per Laskin C.J.C. in R. v. Taraschuk [citations omitted]. 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.

[38] In Moser, the defendant was taken to the hospital following a serious motor vehicle collision. His neck was broken, although Mr. Moser did not know it at the time. What he did know was that he had suffered some form of injury to his neck and back, and that he was in considerable pain. At the hospital, after a brief examination, a doctor told the officer that Moser was capable of providing a sample. However, after multiple conversations with his lawyer, he refused to participate until he had been examined by his own doctor. He was charged with refusal and the police left the hospital. Approximately one hour later, hospital staff diagnosed fractures to Moser's vertebrae. An orthopaedic surgeon testified at trial that the original doctor was wrong to advise that Moser was fit to provide a sample; in fact, the movement required for the provision of a breath sample "might immediately have rendered [Moser] a quadriplegic". The Court of Appeal found the circumstances to constitute a reasonable excuse, and allowed the appeal and entered an acquittal.

[39] In summary, the Crown must establish the following elements of the offence beyond a reasonable doubt:

(1) The existence of a lawful demand;

(2) An act or series of acts that constitute a failure or refusal; and

(3) An intention, as explained in Soucy and Slater, to commit the act

[40] If these elements are proven, an accused is still entitled to raise a reasonable excuse for non-compliance, but will bear a persuasive burden, on a balance of probabilities, in so doing.

(ii) Analysis

[41] The defendant is presumed innocent. The Crown bears the burden of displacing that presumption with proof beyond a reasonable doubt that Terrance Colson committed a criminal offence. With regard to the refusal allegation, the defendant can only be found guilty if I am satisfied to this exacting standard with regard to the three components listed above in paragraph 39, and he additionally does not satisfy me, on a balance of probabilities, that he had a reasonable excuse for not complying with the officer's demand.

[42] The evidence provided by the witnesses, in particular the officers and the defendant, diverges at several relevant points. Resolution of this case involves determining what facts I accept. In doing so, I expressly re-instruct myself on the burden of proof and the presumption of innocence. The question is fundamentally not which witness I believe more. This case is not a credibility contest between the defendant and the officers. As will become clear in a moment, in my view the Crown bears the exclusive burden of proof on all relevant issues in this particular case. The defendant having made the decision to testify, I am guided by the jurisprudential principles that follow from the Supreme Court of Canada's decision in R. v. W. (D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 at 409:

If I accept any exculpatory evidence provided by the defendant, I must find him not guilty of the offence.

If I do not accept that evidence, but it nevertheless raises a reasonable doubt regarding an essential element, I must find him not guilty of the offence charged.

Finally, even if I reject his evidence, I must look to the remaining evidence to determine if the Crown has met its burden of proving this charge beyond a reasonable doubt.

[43] The principal defence position is that the charge is not made out because of the evidence relating to Mr. Colson's sternal fracture. It is submitted that this injury prevented him from providing a proper sample. The Crown argues that this issue exclusively relates to the reasonable excuse component of s. 254(5), and is otherwise unrelated to the offence elements, for which it bears the burden of proof. Put another way, the Crown position is that Mr. Colson must prove – on a balance of probabilities - that his injury compromised his ability to provide a sample, instead of the Crown having to prove beyond a reasonable doubt that it did not. While this argument is not without jurisprudential support, I find I cannot agree with it in the circumstances of this case.

[44] The relevance of physical incapacity to the elements of the s. 254(5) offence is tied to the specific facts at hand, and whether the act in question amounts to a refusal or a failure to provide. In Moser, the accused refused to comply with the demand because of concerns regarding his injury and physical well-being. As it turned out, those concerns were well-founded. In those circumstances, where Mr. Moser intentionally committed the act of refusing, the elements of the offence were clearly made out; the issue was whether his concern about occasioning further injury amounted to a reasonable excuse. In Greenshields, the accused suffered from cardiopulmonary impairments. Justice Duncan found this fact, among others, relevant to whether Mr. Greenshields intentionally failed to provide a breath sample at the roadside; i.e. it was relevant mens rea evidence. Justice Paciocco applied similar reasoning in Soucy to the defendant's purported medical condition: see Greenshields, supra at paras. 4-5, 15, 19-22; Soucy, supra at para. 58.

[45] In the present case, the testing process occurred but the defendant did not provide a sufficient sample. His position is that he did not fail on purpose, he failed to provide a sample because he was physically unable to do so. This is different factually than what occurred in Moser. I consider this an issue relevant to mens rea, not reasonable excuse. If a doubt exists in this regard, the defendant is entitled to an acquittal.

[46] There are some relevant facts that are not capable of much dispute. First, the defendant suffered a significant injury that was originally missed by hospital staff during his first attendance. Second, I entirely accept that Mr. Colson was in legitimate pain during the testing process, as a result of his fractured sternum and other related injuries. The perspective of the police officers, who did not think he was so injured, was tainted by the misinformation they were provided by Dr. Furqan. Had they known the true state of affairs, I expect they would have viewed Mr. Colson's complaints about pain differently.

[47] The defendant has testified that this pain prevented him from providing a proper sample into the Intoxilyzer. Having considered the totality of the evidence, I make the following findings with regard to the defendant's evidence.

1) Credibility Assessment

I did not find the defendant to be an impressive witness. In cross-examination, he was argumentative and often, in my mind, intentionally obtuse. He was aggressive with Crown counsel during early questioning, regarding his job requirements and his movements on December 14 before he visited his friend Pat. When asked if he was a regular drinker, he asked Ms. Drahovzal "what that means". When she amended her question to ask if he drank alcohol often, he asked "what does often mean". I find that Mr. Colson was deliberately difficult during this exchange. Later, when it was suggested that the medical staff at the hospital were trying to assist him, Mr. Colson responded, "in what way?", and did not agree that the doctors and nurses were trying to help him before he went for an X-ray. In my view, his answers to Crown Counsel's questions about the medical staff were needlessly argumentative and not the answers of an honest witness.

2) Internal Inconsistencies

Further, Mr. Colson was internally inconsistent at several points in his evidence. For example, early on in cross-examination Ms. Drahovzal asked him if he had been planning on working on December 15 before he became involved in the accident, and he answered "Yes". However, shortly after, he mentioned in answer to another question that he had been planning to head north on December 15 to visit his girlfriend. When confronted with this apparent inconsistency, Mr. Colson gave an answer involving his EI status that I found incomprehensible and unhelpful to his credibility. He ultimately retreated to a position that he was supposed to work, but he did not because EI had said that he was medically unable – "EI made me fill out a medical certificate saying I was unable to work". This new position, that he had not been working because he was not medically able, was itself inconsistent with his earlier evidence that he had been working as a labourer for a paving company prior to the collision. He then agreed that EI only ruled him medically unable to work after the collision. Suffice to say, this series of questions and answers negatively impacted Mr. Colson's credibility and make it difficult to rely on his version of events.

3) Unsubstantiated Claims

At a certain point in his evidence, Mr. Colson testified that he could tell Constable Adams was pushing medical staff to let him conduct the breath test. When asked on what basis he said this, Mr. Colson said he could "hear things". When further pressed he changed his answer, in my view, to something amounting to a non-answer, "I could just feel, I don't really know what he did, but I was hurt, I wanted an X-ray… he didn't say hurry up, but I could tell he was, he wanted to hurry up… I could just tell". In this exchange I had the distinct sense that Mr. Colson had stated something untrue – that Adams was saying things to pressure hospital staff to allow him to conduct the test – and then immediately retreated from that untruth following further questioning.

4) Memory Issues

Mr. Colson acknowledged, in chief and in cross-examination, that his memory of events that evening was incomplete; he recalled "bits and pieces" of events at the hospital. He further testified to memory problems generally, and specifically about that particular evening. These memory failings inhibit his reliability.

[48] Having considered the defendant's evidence, both in isolation and in context with the evidence as a whole, I find that I do not accept his testimony, nor does it raise a reasonable doubt. I accept that he was injured and in pain, as that is corroborated by Dr. Harte, whose evidence I do accept. Dr. Harte, however, did not testify that a sternal fracture would automatically render an individual incapable of providing a breath sample. Each patient would experience pain and have their breathing inhibited differently. He offered no specific opinion regarding Mr. Colson's particular injury. I do not accept that the defendant's injury rendered him incapable of providing air into the Intoxilyzer. Ultimately, Mr. Colson's evidence, uncorroborated, is in my view simply not worthy of belief.

[49] Having made this finding, I turn now to the remaining evidence to determine if the Crown has proven this charge beyond a reasonable doubt. I make the following findings in that regard:

1) Officer Credibility and Reliability

With regard to Constables Current and Adams, I have paid close attention to the fact that both men believed the defendant to be fabricating or exaggerating his injuries during their encounter with him. The medical misinformation they received from the original doctor no doubt encouraged such a belief. I have considered whether their erroneous perspective has, consciously or otherwise, impaired their ability to reliably recount the defendant's attempts to comply with the testing procedure. Upon an examination of the evidence as a whole, I have concluded that it does not. I note the two men corroborate each other regarding the testing procedure process, and the defendant's actions during that process. They were each reliable witnesses and internally consistent. They made reasonable concessions in cross examination, such as Constable Adams agreeing that the defendant's gait, as witnessed in the courthouse the day of trial, was consistent with his movements back at the hospital. Constable Current also reasonably conceded that some of his perceived indicia at the roadside could have been caused by factors other than alcohol consumption. I find that I can reliably accept their evidence in this proceeding. I do not accept that Constable Adams would have been pressuring hospital staff, as Mr. Colson suggested he did.

2) Lawful Demand

There is no issue in this case that a lawful demand was made and that Mr. Colson understood that demand. Constable Current read the demand at the roadside, and Constable Adams read it once again at the hospital. The information particularizes a refusal from Adams' demand. The defendant did not initially understand the demand at first, but after it was explained to him, along with the penalties for non-compliance, he indicated to Adams that he understood. I accept that he did.

3) Actus Reus Element

With regard to the actus reus element, I must consider the totality of the circumstances, including conduct and statements of the accused that are part of the physical act of refusing or failing to comply: see R. v. Bleta, 2012 ONSC 1235, 285 C.C.C. (3d) 261, at paras. 48-52; R. v. Virgilio, 2017 ONCJ 870, at para. 21; R. v. Rivera, 2011 ONCA 225, 270 C.C.C. (3d) 469, at paras. 50, 90-92. In Rivera, Justice LaForme, writing for the Court, noted that "I don't care, charge me" is a good example of a statement "properly admitted as evidence of the actus reus": see para. 92. In the present case, I accept that the defendant told Constable Adams – after he explained that he was present at the hospital to obtain a breath sample – "I'm not giving you none, fuck you". This statement is admissible as part of the actus reus, and informs my perspective on Mr. Colson's subsequent actions during the breath testing procedure.

4) Testing Procedure Observations

I accept both officers' evidence that the defendant was blowing through the mouthpiece when it was unattached, and that such blowing stopped when the tube was connected. Constable Adams' is an experienced breath technician, capable of observing when a test subject is placing his tongue in the mouthpiece to block the flow of air. I accept that occurred here. I further accept his observations regarding the defendant's cheeks not being puffed, and the lack of air being blown into the instrument. I note there was no issue in this case that the instrument was working properly at the time of testing. The device never registered a tone during any of the defendant's sample attempts.

5) Defendant's Ability to Breathe

I accept Constable Adams' evidence that at one point Mr. Colson laughed. This observation is relevant to my assessment of the defendant's ability to provide a breath sample, and the impact of his sternal fracture on his ability to breathe in and out.

[50] Ultimately, while I accept that the defendant was suffering from a significant injury at the time of testing, having considered the entirety of the evidence I am satisfied beyond a reasonable doubt that Mr. Colson was intentionally not providing a sample of breath into the instrument as required by Constable Adams. His injury did not prevent him from laughing, or from blowing into the mouthpiece before it was attached to the tube. His failure to provide a sample into the Intoxilyzer – which I conclude was on purpose – was predicted when he first told Constable Adams, "I'm not giving you none, fuck you". This statement informs the defendant's actions that evening, and assists in satisfying me that he was intentionally failing to provide a breath sample. The Crown has met its burden with regard to this count on the information.

DISPOSITION

[51] The defendant is found not guilty of impaired operation of a motor vehicle, but guilty of refusing to provide a breath sample.

Released: February 21, 2018

Signed: Justice Scott Latimer

Footnotes

[1] Exhibit 2 is a Google map depicting the intersection.

[2] Both counsel advised, at the time of admission, that proceeding in this manner would not lead to a circumstance where there would be a factual disagreement between a paper witness and viva voce testimony: see R. v. Khan, 2011 ONSC 1310, at para. 40; R. v. Coburn, [1982] O.J. No. 41, 66 C.C.C. (2d) 463 (C.A.), at para. 13.

[3] As discussed with the parties in Court, this hearsay utterance is not admissible for the truth of its contents, but is relevant and admissible with regard to Constable Adams' state of mind and rationale for proceeding with the testing process.

[4] I note this is how his face looked in court.

[5] While it does not impact my analysis in this case, I am left to wonder how difficult it would be for the police to bring recording equipment with them, along with the approved instrument, when they leave the police station to conduct breath testing. A video is an objective record of the officer-detainee interaction, and a defendant's attempt, or lack thereof, to provide a sample. Given the burden of proof, and the fact that reasonable doubt can accrue from the evidence or the absence of evidence, an unrecorded breath test might very well meaningfully impact the assessment of evidence in a particular case. See, generally, R. v. Moore-McFarlane, [2001] O.J. No. 4646, 56 O.R. (3d) 737 (C.A.); R. v. Bero, [2000] O.J. No. 4199, 151 C.C.C. (3d) 545 at 564 (C.A.).

[6] Emphasis added.