Ontario Court of Justice

Date: 2018-01-10 Court File No.: 16-407 Location: Wikwemikong

Between:

HER MAJESTY THE QUEEN

— AND —

SHAWNA LAIGHT

Before: Justice V. Christie

Heard on: November 29 and December 8, 2017

Reasons for Judgment released on: January 10, 2018

Counsel

K. Athanas — counsel for the Crown

B. Middleton — counsel for the defendant Shawna Laight

CHRISTIE J.:

Charges

[1] Shawna Laight is charged with two offences, specifically:

On or about the 24th day of September 2016 at the Village of Wikwemikong in the said region did without reasonable excuse, failed to comply with a demand made to her by William McComb a peace officer under subsection 254(2) of the Criminal Code in the circumstances therein mentioned, to provide forthwith a sample of her breath as in the opinion of the officer was necessary to enable a proper analysis of her breath to be made by means of an approved screening device, contrary to Section 254(5) of the Criminal Code of Canada.

and further;

On or about the 24th day of September 2016 at the Village of Wikwemikong in the said region did resist William McComb and Elizabeth Makadebin a peace officer to wit police constables with the Wikwemikong Police Service engaged in the execution of their duty of effecting arrest by willfully pushing and pulling away from the said peace officers in the execution of his duty contrary to Section 129(a) of the Criminal Code.

[2] The Crown elected to proceed summarily.

Facts

Constable William McComb

[4] Constable McComb testified that he has been a member of the Wikwemikong Tribal Police since August 2005.

[5] On the day in question, September 24, 2016, he was on duty. He started his shift at 8:00 a.m. His partner was Constable Makadebin. He was driving a marked car and was wearing a uniform. His duties that day were general law enforcement and responding to calls.

[6] Constable McComb's involvement in this matter began just before 9:00 a.m. He testified that Constable Makadebin received a call from dispatch and they advised of an anonymous complaint regarding an erratic driver in the Bayview Heights area. He explained that Bayview Heights consists of a collection of apartment buildings. Due to a second call for service, he and his partner split up to handle the two matters, and he attended to the report of the erratic driver shortly after 9:00 a.m. He noted the weather as clear at the beginning of his shift.

[7] He was given an address by dispatch, attended there and spoke with a female resident. The resident informed the officer that a black car had pulled up, a male exited and threw something in the bush. She further advised that the male then picked the item up and ran into the bush, at which point the female in the car sped off. The female resident could then hear yelling in the bush. This occurred above the Bayview Heights apartments in the wooded area.

[8] Constable McComb testified that he proceeded to that area. As he drove there, people were pointing to the grave site area, west of Bayview Heights, so he started going in that direction. He was then flagged down by a male who indicated that the black car sped by and that he did not know the driver. As he continued to patrol, the black vehicle came out and proceeded to Gasongi Lane. The car disappeared in the suicide hill area. He patrolled the area. From the apartments, a male pointed in a direction and Constable McComb followed where he pointed.

[9] Constable McComb then saw a black car go by him. He testified that he knew there was no way out from where the car was going, so the car would either need to turn around and come back to him or stay down that road. Constable McComb then parked and waited at the intersection of two unnamed roads. He advised dispatch of the licence plate of the vehicle which he had observed and let them know where he was going to be. As Constable McComb waited at this intersection, the car came out and stopped.

[10] Constable McComb stated that he approached the vehicle at 9:13 a.m. and observed a female driving the car. He spoke with her and asked her to shut off her car. She indicated that she was in Wikwemikong for a funeral and the officer knew of the funeral which was that day. She also indicated where she was staying in Wikwemikong. During the interaction, the driver provided the officer with her name, as Shawna Laight, and date of birth. In cross-examination, Constable McComb admitted that she had no difficulty providing this information. Constable McComb testified that the information about the vehicle attached to the licence plate did not come back to this name.

[11] Constable McComb testified that Constable Makadebin approached shortly after he came into contact with the vehicle. Constable McComb was already speaking to Ms. Laight when Constable Makadebin pulled up.

[12] When Constable McComb first approached the vehicle, Ms. Laight was in the driver's seat. No one else was in the vehicle. As the officer arrived at the vehicle, Ms. Laight got out of the car on her own. Constable McComb observed that Ms. Laight had a brace on her foot and she explained to him that she had health problems as a result of a serious accident, including that she wears a diaper due to the fact that she could not control when she urinates. Constable McComb admitted that he was told about the accident fairly early on in the interaction and that he could also see injuries, specifically the brace. Constable McComb denied being told about asthma at that point or about collapsed lungs. Constable McComb also did not recall being told by Ms. Laight that she had a colostomy bag. In cross-examination, Constable McComb recalled that before getting out of the vehicle, Ms. Laight told him that she had urinated.

[13] As they spoke, Constable McComb testified that he could smell an odor of alcohol. He asked if she had been drinking and she said no. However, she explained that there were empties in the trunk and suggested this was where the smell was coming from. The female driver offered to show Constable McComb the trunk and he accepted that offer. In the trunk were some Vex cooler bottles, however, he could not smell any alcohol in the trunk. As they walked to the trunk, Constable McComb noticed her limited mobility from the brace on her leg.

[14] As a result of his observations including the smell of alcohol, the fact that Ms. Laight denied consuming alcohol but indicated the smell was from the empties in the trunk, and the fact that there was no odor in the trunk, just before 9:20 a.m., he issued a demand to provide an approved sample into a screening device. Ms. Laight responded "yeah". Ms. Laight was asked to come to the police vehicle for the test.

[15] Constable Makadebin had the approved screening device and she administered the test. However, Constable McComb was there the whole time. Constable Makadebin went through the proper administration of the device and described how to blow into the device.

[16] Constable McComb testified that several attempts were made to have Ms. Laight provide a sample. In cross-examination, Constable McComb agreed that she did take the device and did "go through the motions". Constable McComb did not log every attempt but he testified that there were several. On the first couple of times, she did blow into the machine but did not blow hard enough to set off the audible signal which sounds when sufficient breath is entering the device. Constable Makadebin explained several times how to do the test properly and even demonstrated. Ms. Laight made another attempt to blow, took a deep breath in, but nothing came out. At that point, Ms. Laight was cautioned that she would be charged with fail to provide and was given a further opportunity to provide a sample of breath into the device.

[17] When asked whether Ms. Laight ever explained why she was having difficulty, Constable McComb stated that during the testing, she said she suffered from asthma and that her medication was in the console of the car. According to Constable McComb, this was the first time that Ms. Laight had mentioned having asthma. Constable McComb investigated that claim, however, there was nothing in the car to indicate anyone had asthma. Constable McComb also testified that there were no indicators that Ms. Laight was having a hard time breathing. In cross-examination, Constable McComb testified that he did not recall being told anything about collapsed lungs.

[18] Ms. Laight never provided a suitable sample.

[19] In cross-examination, it was suggested to Constable McComb that at some point when she was trying to take the test, she urinated herself. Constable McComb said that she did not urinate herself at that time. It was suggested to Constable McComb in cross-examination that Ms. Laight suggested that she needed to go to the hospital, that they should get her an ambulance, and that at the hospital they could get a blood sample and it would be a "win-win" situation. Constable McComb testified that he did not recall that and said that Ms. Laight was not being cooperative at all. He then clarified that her lack of cooperation occurred when she was under arrest, however, he still maintained that he did not recall any discussion of hospital or ambulance.

[20] Just after 9:24 a.m., Constable McComb explained to Ms. Laight that she was under arrest for failing to provide a sample and explained to her what would happen. Ms. Laight became really upset. Constable McComb agreed that this was when Ms. Laight started to "act up". She got angry and started pushing and pulling away. Having already observed the scope of Ms. Laight's disability, the officers did not want to throw her to the ground and did not want to hurt her. Constable McComb described it as a "difficult process". Constable McComb testified that while Ms. Laight was resisting, she urinated. Constable McComb estimated that she was resisting for approximately 5 to 10 minutes before they were able to gain control of her. He estimated this on the basis that they arrived at the station at 9:37 a.m. and it takes a couple of minutes to drive to the station from where they were located. Constable McComb testified that it was hard to get her into the vehicle because of her disability, specifically, he stated that she was hooking her foot under the car to prevent them from putting her into the car. Constable McComb indicated that they tried different ways to get her into the car and they used as much force as necessary. In cross-examination, Constable McComb agreed that they are trained to control people and so they detained her, as in they stopped her from leaving and tried to speak with her the best they could, trying to calm her down. Eventually she said she would get in and they tried to assist her but she was continuing to hook her foot under the door, refusing to get in the back. He agreed that it is not very comfortable in the back seat.

[21] In the car, on the way to the station, Ms. Laight was yelling obscenities and screaming during the entire drive which is about 3 minutes. She did not lose her breath or pass out. In cross-examination, it was suggested to Constable McComb that Ms. Laight was screaming that she wanted to go to the hospital. Constable McComb disagreed with that suggestion and stated that she was screaming derogatory names, swearing and yelling all the way to the police station without losing consciousness and without losing her breath. He also added that throughout the struggle and on the way to the station, there were no asthmatic problems.

[22] They arrived at the station at 9:37 a.m. There were vehicles blocking the sally port so there was a bit of a delay in going inside. At 9:45 a.m., once inside the station, Ms. Laight was read her rights to counsel and caution. Constable McComb testified that up to this point, they had not had time to do this because of Ms. Laight resisting in the middle of the bush and they wanted to get her to a safe environment in the office. In response to her rights, Ms. Laight indicated that she did not understand so he started again and repeated the rights. During the time that her rights were being read, Ms. Laight kept interrupting the officer. Constable McComb formed the opinion that Ms. Laight understood even though she said she did not because when he tried to explain, she would cut him off and not listen. Constable McComb described her as belligerent, cutting him off and talking over his sentences. Constable Makadebin was present during this time as well.

[23] As previously indicated, Ms. Laight had urinated in her clothing and, after arriving at the station, she indicated that she wanted to change her clothes. Constable McComb stated that he would make some calls. Constable McComb knew there was a family funeral in town that day and he indicated that he would try to get a hold of people but that they might be busy.

[24] Ms. Laight was searched by Constable Makadebin and then lodged in the cell.

[25] A few minutes later, after Ms. Laight calmed down, Constable McComb read her rights again and she said she understood. She requested a specific lawyer but did not have a phone number. Constable McComb located a number through Google and left a message for the lawyer at 10:07 a.m., however, it was the weekend and it seemed that the office was not open on the weekend. Constable McComb advised Ms. Laight of this and then called duty counsel on her behalf at 10:44 a.m. Duty counsel called back at 11:06 a.m. and Ms. Laight commenced speaking with duty counsel at 11:09 a.m. Constable McComb also noted that the following Monday, he received a call from the office of the lawyer he had called, and he told them that Ms. Laight had been released on a promise to appear and advised them of the court date.

[26] Constable McComb did make some other calls for Ms. Laight and at 12:15 pm, he spoke with Dallas Recollet, her boyfriend at the time, now husband. He advised Mr. Recollet that Ms. Laight needed a change of clothes. Mr. Recollet provided the officer with a contact number but said he was at the funeral. He said he would get the clothes. Constable McComb called Mr. Recollet back at 2:35 p.m., as he had still not come by with the clothes.

[27] At 3:20 p.m. Dallas Recollet brought a change of clothes to Ms. Laight. At 3:55 p.m., Constable Makadebin assisted Ms. Laight in changing her clothing. At 4:23 p.m., Ms. Laight was released on a promise to appear.

Constable Elizabeth Makadebin

[28] Constable Makadebin testified that she had been a member of the Wikwemikong Tribal police for 26 years. She was on duty on Saturday, September 24, 2016 in Wikwemikong in a marked car and in uniform.

[29] Her involvement in this matter began just before 9:00 a.m. while she was still at the station. There were 3 complaint calls about a black vehicle in the Bayview Heights area, which is made up of 5 single apartment units. The first call was received while Constable Makadebin was still at the detachment at 8:48 a.m. The first complaint was that a black Ultima, with a female driver, was driving in and around the Bayview Heights area, a male with no shirt was seen leaving the vehicle and ran into the bush, and the female driver proceeded on. The caller described that the vehicle was driving from one apartment to another through a narrow road.

[30] Constable Makadebin testified that her partner, Constable McComb, responded to the initial suspicious vehicle complaint. She was responding to a second unrelated call, but she heard updates through the car radio coming from Constable McComb including that he spotted the vehicle. In cross-examination, Constable Makadebin clarified that she did not reach the other call as it was 10 or 15 kilometres away and as calls were coming in about this black vehicle, this was more urgent. The other call was not an active call. Constable Makadebin then started looking for the black vehicle as well.

[31] At 9:01 a.m., Constable Makadebin was in the area and she saw Constable McComb at the top of Gasongi Lane. Constable Makadebin was waved down by a pedestrian who had his arms in the air frantically trying to get her attention, and who advised that this car had been "driving crazy" around the apartments. The male pedestrian put his hand on his heart as he described this, which Constable Makadebin believed indicated how scared he was to see how this car was driving. Apparently, several young families with children live in the area. As Constable Makadebin continued to patrol the area looking for this vehicle, Constable McComb advised on the radio that he located the vehicle by the sliding hill. Constable Makadebin then proceeded to the top of that hill and observed Constable McComb at the bottom of the hill stopped at a black vehicle. Constable Makadebin proceeded down the hill to meet Constable McComb and described this ride down as "pretty bumpy" and that the undercarriage of her vehicle hit on the way down. Constable Makadebin arrived at Constable McComb's location at 9:14 a.m.

[32] Constable Makadebin observed that Constable McComb's vehicle was at an angle in front of the black vehicle in a manner that would block the black vehicle from going further. In cross-examination, Constable Makadebin clarified that the vehicle looked like it was coming from the ATV trails. Constable McComb was talking to a female at the rear of the black vehicle, and she was opening the trunk of the vehicle. In cross-examination, Constable Makadebin clarified that as she was driving down the hill, she observed Constable McComb and the female approaching the trunk of the car and they were in conversation. By the time, Constable Makadebin arrived and got out of her vehicle, the trunk was closed. Further in cross-examination and upon reviewing her notes, Constable Makadebin recalled the female having difficulty walking and that she lost her balance. At some point, Constable Makadebin noticed that she had a leg brace.

[33] Constable Makadebin heard the female speaking to Constable McComb as she was opening the trunk, telling him the odor of alcohol was coming from the trunk, not from her person. The female was also telling Constable McComb about her injuries and that she had been in a motor vehicle accident a few months prior. Constable Makadebin testified that the female appeared intoxicated, as her face was flushed and her eyes were droopy, red and bloodshot. The female was argumentative about the fact that the odor of alcohol was coming from the trunk. Constable Makadebin could not see in the trunk. Constable McComb advised the female that he detected an odor of alcohol on her. The female said she had nothing to drink. Constable McComb then said he had grounds to do a roadside test, based on the odor of alcohol coming from her. Constable Makadebin did not notice whether the female had urinated in her pants at that time.

[34] Constable Makadebin had the roadside device in her vehicle and she advised Constable McComb and the female of that fact. Upon advising her of that, Constable Makadebin walked by the female and detected a sweet odor of alcohol coming from the female, which she described as "like coolers".

[35] Constable Makadebin described the device she had with her that day as a Dräger Alcotest and explained what that device is designed to do. Constable Makadebin retrieved the device from her vehicle. She activated the machine and demonstrated blowing into it, proving that it was working properly. Constable McComb had already read the female the roadside demand, but asked Constable Makadebin to conduct the test, as she had been the one to prove that it was in proper working order. Constable Makadebin testified that she provided a demonstration to the female and provided her with instructions. Constable Makadebin held onto the device while the female blew into it.

[36] There were a few opportunities given for the female to provide a suitable sample into the device, but no suitable sample was ever obtained. In cross-examination, Constable Makadebin estimated that there were 8 to 10 opportunities given to Ms. Laight and that she was warned for refusing to provide a breath sample. Constable Makadebin described the female as quite belligerent and argumentative, insisting that she had no alcohol. The female blew with a short quick breath and pulled away before it could register. Constable Makadebin advised the female to blow into the device as long as she could, in fact, until she was told to stop. The female did not follow the instructions. The female disputed her ability to be able to blow into the device due to her disabilities. On at least one occasion, the female used her tongue to block the mouthpiece. On at least one other occasion, the female had her cheeks puffed out but was not blowing and stated, "see, I can't". Constable Makadebin explained that she can typically hear when air is going into the instrument but nothing could be heard. When asked whether the female provided any reason that she was unable, Constable Makadebin testified that the female advised that it was due to her disability from the motor vehicle accident. She said that would cause her difficulty with performing the test. The female also said she had an asthma inhaler. In cross-examination, Constable Makadebin stated that she had more than one excuse as to why she was unable to blow and at one point she said she was blowing.

[37] Constable Makadebin was aware that Constable McComb searched for an inhaler in the vehicle but was unable to find one. The female did not have an inhaler on her person. She did have a cell phone on her person. In cross-examination, Constable Makadebin indicated that she tried to stop Ms. Laight from reaching into her shirt for this cell phone. It was suggested to Constable Makadebin that she was reaching toward her colostomy bag, however, Constable Makadebin repeated that she pulled out a cell phone. Constable Makadebin noted that she was otherwise breathing properly and had no difficulties breathing or speaking while in her presence. Constable Makadebin testified, "Based on my experience, in my career, you know when someone is not providing a breath sample, cheeks were blown out, but no air was going into the mouth piece, as it clouds over when air is going in, like a mist, and there was nothing". Constable Makadebin was asked whether she was advised at the scene that Ms. Laight had a colostomy bag. She responded that she was not advised of this at the scene.

[38] Constable Makadebin testified that Constable McComb arrested the female at 9:24 a.m. for failing to provide a suitable sample. Constable Makadebin testified that the test was administered at approximately 9:22 a.m., 2 minutes prior to the arrest.

[39] After she was advised of the arrest, the officers attempted to place Ms. Laight in police custody. Constable Makadebin testified that she was resisting arrest. She was refusing to get into the rear of the force vehicle, and they had to wrestle with her. She was keeping the officers at a distance with one arm. She grabbed Constable Makadebin by the thumb of her right hand to pull the officer off of her, while the officer was trying to complete the arrest. The female pushed away from police. At one point, she ran around the cruiser to the front passenger side and used the passenger door to keep the officers away from her, using the door as a barrier between here and the police. The officers were asking Ms. Laight to cooperate. Ms. Laight did not respond to requests or commands for her cooperation. Eventually, Constable Makadebin raised her voice insisting that Ms. Laight cooperate.

[40] Constable Makadebin was asked whether Ms. Laight told them that she needed an ambulance to be taken to the hospital and that they could get their sample through blood. Constable Makadebin denied this was said, and clarified that Ms. Laight was argumentative and fought with them physically, including the fact that she pulled away from them as they were completing the arrest. Constable Makadebin stated that Ms. Laight was not injured. Further it was suggested to Constable Makadebin that Ms. Laight advised them that she was having difficulty with her colostomy bag and diaper and that she wanted an ambulance. Again, Constable Makadebin testified that she did not hear Ms. Laight say that during her interaction with her. Constable Makadebin repeated that she heard Ms. Laight repeatedly state that she did not have anything to drink that night and that the odor of alcohol was from the trunk of the vehicle. Constable Makadebin also repeated that she had her own detection of alcohol when she was in Ms. Laight's vicinity.

[41] Constable Makadebin testified that they eventually put Ms. Laight into the back of Constable McComb's cruiser. She was not going in willingly. In cross-examination, Constable Makadebin admitted that at this point, while trying to get her into the rear seat, she noticed that she had urinated in her pants. Further in cross-examination, Constable Makadebin said that it was at this point, just as she got into the cruiser with no more fighting, that she explained that she had a colostomy bag. Constable Makadebin testified that it took several minutes to complete this arrest.

[42] They cleared the area at 9:30 a.m. The constables left the area in separate vehicles. Ms. Laight was with Constable McComb. As Constable McComb was clearing the call with the dispatcher on the radio, advising that they were on their way to the station, Constable Makadebin could hear the female yelling and swearing in the background. Constable McComb had to yell over her.

[43] At the detachment, there were other units parked inside the sally port. Constable Makadebin got out of her force vehicle to remove the vehicles from the sally port. Ms. Laight continued to be agitated in Constable McComb's vehicle and was kicking at the windows of the back doors of the cruiser. When they opened the force vehicle, she remained aggressive and argumentative. She was escorted into the booking area. Ms. Laight was asked to remove her jewelry in order to lodge her in the cells. She talked over the police officers when they were trying to speak to her. Constable Makadebin testified that Ms. Laight was advised of her Charter rights by Constable McComb repeatedly, however, she was yelling and arguing and being belligerent after arriving at the detachment.

[44] Constable Makadebin described the first search as difficult because she was not allowing the police to touch her. She continued to pull away and was upset. At one point, she pulled a half-pack of cigarettes from inside her shirt. At 10:10 a.m., she was demanding a change of clothing once in the cell and she advised where she had left her luggage. She indicated that she was from out of town with her fiancé, and that they were staying with his family members. Constable Makadebin contacted the woman she named and the woman did have her clothes at her place in her basement and was going to drop them off.

[45] Constable Makadebin became involved in other calls at this point.

[46] A little later in the afternoon, around 2:05 p.m., Ms. Laight's boyfriend attended at the station, and said he had received a message from his relative about Ms. Laight. He said he would pick up clothing and bring them over. Constable Makadebin believed that he was going to come right back with the clothing. At 2:25 p.m., Ms. Laight was awake and she was upset again because she had not received a change of clothing and that her waste bag was overflowing and irritating her skin. At 2:27 p.m., Constable Makadebin contacted the residence where Ms. Laight was staying to repeat the request for clothing.

[47] When the clothing arrived, Constable Makadebin escorted Ms. Laight to the staff changeroom to allow her to change her clothing. Ms. Laight advised Constable Makadebin that she could not control her bladder due to the motor vehicle accident and that the urine irritated her skin. Ms. Laight also had colostomy supplies in the bag that she received. Constable Makadebin provided some assistance when she changed her clothing, as she was unable to bend to reach her feet. Constable Makadebin did not recall Ms. Laight wearing a diaper.

Shawna Laight

[48] Shawna Laight testified at this trial.

[49] She was 23 years old at the time of her testimony. She indicated that she was from Six Nations near Caledonia, where she lived with her parents until about a year ago. She is a status native with the Six Nations reserve. For part of her childhood, she lived and went to school in Hamilton. At the time of the trial, she was residing in accessible housing in Brantford with her husband, as she requires the assistance of a wheelchair.

[50] Ms. Laight completed high school. She subsequently attended Mohawk College for a Youth and Child Worker program. She did not complete the program at Mohawk. She was then offered an aboriginal program at Trent, so she transferred there to take indigenous studies. Once at Trent, she took a semester off to secure a unionized job at the Beer Store.

[51] Ms. Laight has been in a relationship with Dallas Recollet for three years. They are now married. They were in a relationship on September 24, 2016.

[52] Ms. Laight was in a very serious motor vehicle accident on November 4, 2014. Ms. Laight was driving the vehicle and Mr. Recollet was a passenger. As a result of the accident, Ms. Laight was ejected from the vehicle and sustained multiple serious injuries, including, but not limited to, broken T3s in her upper back, shattered pelvis, collapsed lungs, damaged sciatic nerve, compound fracture to her dominant right arm, and injury to her left leg. The accident left her incontinent and she wears diapers. The injuries resulted in Ms. Laight having a colostomy bag until June 2017 when she had surgery to alleviate the need for this device. She has had extensive rehabilitation. She walks with a limp. The injury to her left leg requires her to wear a brace permanently as she cannot control her ankle movement and cannot move her foot up and down. The brace keeps her foot at a 90 degree angle. She was in a coma for a month and a half. She spent many months in the hospital. She has had multiple surgeries to different parts of her body. In fact, about a week prior to September 24, 2016, she had a surgery to her back to remove metal rods and screws. She continues to attend rehabilitation programs.

[53] Various exhibits were entered at trial, including:

• Exhibit 1 – Motor Vehicle Accident Report from November 4, 2014 including a diagram of the accident and where the vehicle came to rest

• Exhibit 2 – Ambulance Call Report from November 4, 2014, including the incident history on page 3 which in part states "pt not sob, good equal air entry all fields" which the Court assumes means "patient not short of breath".

• Exhibit 3 – Emergency Record – Hamilton General Site, which describes major trauma

• Exhibit 4 – Hamilton Health Sciences – Discharge summary – which describes various admission and discharge diagnoses as well as procedures performed. One of the diagnoses mentioned is bilateral pneumothorax with lung contusion – which the parties agree means double lung collapse.

• Exhibit 5 – Trauma and Rehabilitation Medicine Services – McMaster University dated April 2, 2015. In this report, there is reference to pain in various parts of her body as well as a self-report of other problems, including moodiness, depression, sadness, anxiety, fearfulness, anger, confusion, lack of confidence, disappointment, fatigue, family stress, and being bothered about being unable to work. There is no mention of breathing problems. The report concluded that she suffers from major depressive disorder, post-traumatic stress disorder, and psychological factors affecting other medical conditions.

• Exhibit 6 – Minerva Comprehensive Pain Management Program dated April 27, 2015.

• Exhibit 7 – Trauma and Rehabilitation Medicine Services – McMaster University dated September 1, 2015. The report states in part:

  Ms. Laight is limited in her education and this is a challenge for rehabilitation. Her presentation and history suggested the possibility of a co-morbid personality disorder. We are continuing to make observations for differential diagnosis. She does have features and predisposing history consistent with Borderline Personality, Antisocial Personality, and Avoidant Personality. She may qualify for a diagnosis under substance abuse. The implication is that she is an individual with compromised personality development, likely deeply rooted anger, impulsivity, has difficult finding good relationships, is not goal directed, and has little experience succeeding through the use of discipline, structure, and knowledge acquisition. She is not a good problem solver. Since rehabilitation requires adherence to structure, protocols, rules, quotas, and involves a learning process, treatment of Ms. Laight is quite challenging.

  The report also refers to emotional outbursts both before and after the accident.

• Exhibit 8 – An excerpt from the Merck Manual that defined a pulmonary contusion and also defined a pneumothorax as a collapsed lung.

[54] All of these exhibits were admitted for the truth of their contents. It is of note that none of these exhibits refer to breathing difficulties or to Ms. Laight suffering from asthma.

[55] Ms. Laight provided the Court with a reason that she did not have a medical report about her lungs. She stated that when she first came home from the hospital, she was seeing a doctor who has since retired. Since that time, she has been struggling to maintain a relationship with a doctor that understands her physical and psychological needs and that she does not have a family doctor at this time. Ms. Laight testified that she had been referred by a walk-in clinic to a respirologist but at the time of the trial, had not seen that specialist. In cross-examination, Ms. Laight testified that she got the referral for the specialist about 3 weeks or a month prior to trial in November 2017, yet her family doctor retired in 2015 or 2016. She also admitted that between getting out of the hospital and now, she has had no rehabilitation on her lungs. Ms. Laight testified that there is nothing much that can be done.

[56] Ms. Laight testified that prior to the accident, she was a very active person, engaged in her education, engaged in sports, engaged in work. This has all changed. Ms. Laight stated that the collapsed lungs affect her when she is upset and it is hard for her to breath. She has trouble breaking down phlegm in her throat and sometimes chokes on the phlegm. She is no longer able to participate in sports. The effects of her post-traumatic stress disorder are that she can be cheery and happy, but if something is said to her, she will be miserable, irritable, angry, and depressed. She is still attending rehabilitation and seeing psychologists and counsellors.

[57] On the weekend of September 24, 2016, Ms. Laight came to Manitoulin Island with Dallas Recollet. Mr. Recollet's grandmother had passed away and the funeral was being held that weekend. Both Ms. Laight and Mr. Recollet were planning to attend the funeral, in fact, Mr. Recollet was to be a pallbearer.

[58] They arrived in Wikwemikong the night before the funeral, which was the day prior to her arrest. When they arrived in Wikwemikong, Ms. Laight and Mr. Recollet dropped their belongings at Aunt Patsy's, then they went out to visit and have a few drinks. In cross-examination, Ms. Laight stated that they arrived at Patsy's around 6:30 or 7:00 p.m. and that they went visiting around 8:00 p.m. Ms. Laight testified that she had 3 or 4 coolers that night. In cross-examination, she said that she was probably visiting for about 2 hours. Ms. Laight returned to Aunt Patsy's without Mr. Recollet at about 10:30 or 11:00 p.m., as he was continuing to visit with some people he knew. Ms. Laight stated that she had to leave as she was getting really sore. In cross-examination, she admitted that the medication she was taking was affected by the alcohol and so she left. The medication she was taking at the time included pain medication and anti-depressants. She was also getting frustrated with Mr. Recollet as she wanted to get to bed and to be presentable for the funeral in the morning. Ms. Laight indicated that she did not know Wikwemikong that well and did not know many people there. She only knows the main road and the way to Aunt Patsy's Aunt Patsy was upstairs but the door was left unlocked so she simply let herself in and went down to the basement where they were staying.

[59] Sometime in the morning of the 24th of September, 2016, Ms. Laight received a call from Dallas Recollet. He asked her to pick him up, as Ms. Laight had the car, and was trying to describe where he was to be picked up. It was still partially dark at that time but was just becoming daylight. In cross-examination, Ms. Laight admitted that she was "pretty pissed off and thought he would be home by then."

[60] Ms. Laight left Aunt Patsy's in the car and was trying to follow the directions Mr. Recollet had given to her. Mr. Recollect indicated that he would be standing outside to meet her. Ms. Laight located Mr. Recollet, who had been drinking all night. He got into the vehicle. Ms. Laight was disappointed. She had wanted him to come home earlier, given that this was the day his grandmother was being buried.

[61] Ms. Laight was angry and picked an argument with Mr. Recollet. Ms. Laight testified that they started bickering and arguing, and that Mr. Recollet opened the car door and jumped out and took off into bush. She said she had to slow down fast. She did not know the area. She was screaming out for him. She was trying to find Mr. Recollet. Ms. Laight testified that he was drunk and it was his grandmother's funeral, therefore he had to get presentable, and she was fearful of what state he would be in. She was driving around looking for Mr. Recollet and screaming his name from inside the vehicle, hoping he would answer back. Ms. Laight stated that she was "freaked out" and that she turned into a few places when trying to find Mr. Recollet. At that time, it was still partially dark and she was "creeped out". She said that even if she coughs or sneezes, she would urinate, and that when she was screaming for Dallas, she urinated in her pants. In cross-examination, Ms. Laight stated that she was screaming out for Mr. Recollet for about 15 or 20 minutes. She admitted in cross-examination that she was irritated when driving around looking for Mr. Recollet in a strange place and that she was worried because she knew the funeral was taking place in a few hours. She agreed that her main objective was to find Mr. Recollet and get back to Aunt Patsy's to get presentable for the funeral.

[62] At some point, Ms. Laight comes to a police vehicle parked diagonally across the road and she had to come to a stop. Ms. Laight testified that a police officer walked to her vehicle and she voluntarily got up out of the car. The police officer asked her name and where she was from and she answered his questions. In cross-examination, Ms. Laight agreed that she wanted to make this interaction with the police as short as possible.

[63] Ms. Laight testified that the officer wanted her to do the roadside test, where she would be required to walk one foot in front of the other. When asked if the officer said why he wanted her to do that, she testified that he said he smelled alcohol. Ms. Laight testified that she did not do the test and she told the officer that she was physically unable to do that test, putting one foot in front of the other foot, and further that she made him aware of her brace and directed him to the disabled parking sticker in the window. Ms. Laight testified that she made it clear to the officer that she had multiple injuries from a motor vehicle accident. Ms. Laight further testified that when the officer said he smelled alcohol, she suggested that it could be because of the empties in the trunk. In cross-examination, Ms. Laight disagreed with the suggestion that she denied having anything to drink and stated "I think the cop in his first statement said that I admitted to having a few drinks".

[64] Ms. Laight testified that she opened the trunk for the officer and showed the empties inside the trunk.

[65] After the second officer arrived, Ms. Laight testified that they were making remarks about the fact that she had urinated in her pants and suggested it was because she had been drinking. Ms. Laight testified that she told the officers that it was because of injuries she had suffered as a result of the motor vehicle accident.

[66] When asked to clarify whether in fact she performed the physical sobriety tests, Ms. Laight testified that she began to do the test, and the male officer suggested that she could not do the test because she was drunk. Ms. Laight felt that he was making fun of her disability.

[67] At one point during her examination in chief, Ms. Laight stated that the second officer arrived while she was still seated in the driver's seat with her feet outside the vehicle and that she told the officers that it was difficult for her to stand very long.

[68] With respect to her reaction to being asked to do the roadside screening test, Ms. Laight testified, "I was kinda frustrated. I thought they made up their minds because I couldn't do the physical test." Ms. Laight testified that they made her blow into the machine and gave her a warning that if she did not comply, she would be taken to jail. Ms. Laight testified that she told the officers that she had just come from surgery and that if she was going anywhere, she would prefer the hospital.

[69] In cross-examination, Ms. Laight suggested that the time between the request to do the physical sobriety test and the roadside screening device test was 5 minutes.

[70] Ms. Laight testified that she tried to blow into the roadside screening device multiple times. She indicated that she has shortness of breath, that she had collapsed both lungs, and that it was hard for her to "put lots of oxygen out or in". Ms. Laight stated that it is difficult for her to breath, and that even when crying, she has hyperventilated.

[71] Ms. Laight testified that the police officers indicated that there was an unsuccessful read, that it was undetectable and that she was not providing a good enough sample in their eyes. Ms. Laight was asked about the reaction of the police to the alternative that she suggested, being that if they took her to the hospital, she could give them a blood sample. Ms. Laight indicated that the police officers did not take that offer seriously until the next day when the female officer was helping her get her pants on. Ms. Laight testified that it was her belief that going to the hospital would be a win-win situation, as the police would get their blood sample and she would get medical attention. Ms. Laight again explained that the police did not take that seriously and that they "manhandled" her into the vehicle and that she had bruises from her elbow to her shoulder. Ms. Laight also added that she urinated in her pants again while the officers were trying to put her in the car.

[72] In cross-examination, Ms. Laight disagreed with the suggestion that she knew her interaction with the police would be longer if she blew into the device. Further, Ms. Laight disagreed with the suggestion that she did not want to blow into the device. She disagreed with the suggestion that she faked blowing into the device. However, she did agree that she wanted to get out of there to find Mr. Recollet.

[73] In cross-examination, Ms. Laight agreed that she was pushing and pulling away from police during the arrest. She said "I was pushing away from them grabbing me, manhandling me with my disabilities….I was pulling away from the officer." She admitted that she was doing this because "I did not want to be arrested where they had no grounds, I had a funeral to be at, I didn't want to be arrested because they were in the wrong".

[74] Ms. Laight admitted that the police officers told her at the scene the reason for her arrest. She further added "I guess so. It doesn't mean that what they are saying is the truth just because they are wearing a uniform and a badge." It was suggested to Ms. Laight in cross-examination that she thought they were arresting her for no reason and that she did not want them to put her in the cruiser. She responded to this suggestion, "I did not agree with their terms of arresting me, smell of alcohol, and not knowing their basic human rights with the way they treated me". She said "In my eyes, they did not have reasonable grounds". She agreed that she did not think she did anything wrong to warrant them arresting her. She then said it was not that she did not want to get into the cruiser, but that with a disability, it was very difficult for her to be placed in the back of a vehicle of that type and that was why she indicated she needed an ambulance. She then disagreed that she was being difficult. When asked whether she hooked her foot under the car to try to prevent the officers from putting her inside, Ms. Laight stated that the brace on her leg / foot is in the shape of an L and that it stays in that shape.

[75] Ms. Laight stated that she was taken to the police station. The officers took off her jewelry, her hair band, her brace and then put her in a cell and read her rights. Ms. Laight admitted that she was being difficult and angry. She does not remember being searched and said that when she woke up later on, she still had cigarettes in her bra.

[76] Ms. Laight testified that Constable Makadebin came to her at one point in the cell and informed her that one of the staff had to go home because she had urinated on them, which Ms. Laight stated degraded her and made her feel even worse.

[77] With respect to her colostomy bag, Ms. Laight testified that when the police were "manhandling" her, because she was being a little difficult, the flange started to rip off the skin, however, the bag was not full. She stated that this was when they were trying to put her in the back of the vehicle. She made it clear at the station that she needed to attend to that, but that she was left to inhale her own feces while she slept.

[78] Ms. Laight testified that she was requesting another set of clothes and supplies for her colostomy. Mr. Recollet did drop off some things later on, right before she was released which was in the afternoon. Ms. Laight stated that she needed some assistance to change as she had just had a surgery, which left her with an incision on her back and limited her from bending down.

Edward Laight

[79] Edward Laight testified that Shawna Laight is his youngest daughter.

[80] He confirmed that his daughter had been in a serious car accident back in November 2014 and that she was in the hospital for many months, then went to live with them.

[81] Mr. Laight described his daughter as a lot more irritable since the accident and that she gets frustrated easily. He explained that she sees a doctor / counsellor for psychological conditions.

[82] Since his daughter and Mr. Recollet, now her husband, moved to Brantford, they are about a half hour away from Mr. Laight. He testified that he sees them all the time and that Dallas Recollet works for him in the roofing business.

[83] Mr. Laight stated that since the accident, his daughter has really been trying to improve her behaviour and mental health. He stated, "She is working hard to cope with things and understand them. She seems to be doing a little better."

Position of the Parties

Defence

[84] Mr. Middleton on behalf of Ms. Laight submitted that there would seem to be little doubt that Ms. Laight was in a serious, in fact, catastrophic, motor vehicle accident, and that it is a miracle of modern medicine that she is here today. Mr. Middleton referred to the various exhibits which were entered, and referenced the fact that the injuries included two collapsed lungs.

[85] Mr. Middleton stated that Ms. Laight was less than pleased when she received a call from Mr. Recollet in the morning. She went to get Mr. Recollet and was upset about the shape he was in. They got into an argument. Mr. Recollet exited the vehicle and acted in a childish fashion by running off into the woods. Mr. Middleton submitted that Ms. Laight, not from Wikwemikong, was not familiar with the streets in the village, and that she had to track down her husband, and get him back to where they were staying to get to the funeral. She was driving down roads and alleys, stopping to yell, trying to get her husband out of the bush. Mr. Middleton suggested that this annoyed the neighbourhood and people called the police.

[86] Mr. Middleton submitted that by the time Ms. Laight had contact with the police, she had already urinated in her pants because of the fact that the motor vehicle accident left her with a lack of control over her bladder. Mr. Middleton indicated that Ms. Laight was cooperative with the police initially. Ms. Laight made the officer aware immediately that she was suffering from the effects of the motor vehicle accident and Mr. Middleton submitted that this would have been obvious from her walk.

[87] Mr. Middleton conceded that the roadside demand was valid. When the roadside device was presented, according to Mr. Middleton, Ms. Laight did not start yelling and screaming immediately, rather she made multiple attempts to blow. She followed directions and tried to blow several times. Mr. Middleton suggested that Ms. Laight told the officers that she had two collapsed lungs after the motor vehicle accident and it results in a loss of breath, but that she was not being taken seriously.

[88] Mr. Middleton referred the Court to section 254(5) of the Criminal Code and submitted that the offence is only made out where the failure occurs without reasonable excuse. Mr. Middleton submitted that Ms. Laight provided the excuse of her car accident and that she suffered continued affects from her collapsed lungs. Ms. Laight offered the police an alternative; specifically that they could call an ambulance, and blood could be taken at the hospital. The police officers denied that this conversation took place. Mr. Middleton acknowledged that there was no medical report before the Court to establish the present effects of having previous collapsed lungs. Mr. Middleton explained that this was because Ms. Laight does not have a family doctor. However, Mr. Middleton submitted that the Court does have Ms. Laight's evidence that she is still suffering from the collapsed lungs and that she is not able to provide long bursts of air.

[89] Mr. Middleton submitted therefore that Ms. Laight has provided a reasonable excuse and therefore should be found not guilty of this offence.

[90] With respect to the offence of resisting arrest, Mr. Middleton submitted that Ms. Laight believed that the police did not have reasonable grounds to arrest her because she offered an explanation and an alternative. Ms. Laight did not feel that she was treated well. Mr. Middleton admitted that Ms. Laight acted in a less than admirable fashion, however, the Court should consider that she had urinated in her pants a couple of times, her colostomy bag was starting to come off, and she suffers from major depression.

[91] Mr. Middleton submitted that for these reasons, the court should have a reasonable doubt on this offence. The Court asked Mr. Middleton whether Ms. Laight's own testimony amounts to an admission on the offence of resist arrest. Mr. Middleton stated that it comes pretty close.

Crown

[92] Ms. Athanas, on behalf of the Crown, stated that Constable McComb's evidence was that he got a call of erratic driving and that he went to investigate. Ultimately, the officer found the car, there was a female in the driver's seat, he asked for her information, and she was cooperative. Constable McComb noted an odor of alcohol coming from Ms. Laight and Constable McComb testified that she denied consuming alcohol and suggested it was coming from empties in the trunk. Ms. Athanas pointed out that it was not put to Constable McComb that he had requested Ms. Laight complete physical sobriety tests. The officer and Ms. Laight went to the trunk of the car and he could not smell any alcohol coming from inside. Ms. Laight explained her injuries to the officers but both officers testified that she said nothing about collapsed lungs.

[93] Ms. Athanas submitted that at 9:20 a.m., the officers had reasonable grounds based on the smell of alcohol. Ms. Athanas on behalf of the Crown submitted that this was a valid demand. The officers smelled alcohol on her breath and that is enough to establish reasonable grounds to ask for a breath sample. It is a low threshold. Several opportunities were given to Ms. Laight to blow into the device However, Ms. Athanas submitted that Ms. Laight was simply not doing what she was told when she was given the opportunity, multiple times, to perform the test. Ms. Laight told Constable McComb that she suffered from asthma, yet there was no indication that she had asthma. Ms. Athanas pointed to the fact that there was no evidence that Ms. Laight was suffering from shortness of breath, including the fact that she was screaming for 3 to 4 minutes on the way to the detachment. Ms. Athanas submitted that Ms. Laight was simply not doing what she was being asked to do. She was cautioned as to what would happen if she did not blow and she continued to not follow instructions.

[94] Ms. Athanas submitted that Constable Makadebin demonstrated that the device worked properly. Ms. Laight would blow a short quick breath and pull away. Constable Makadebin observed the female to otherwise be breathing properly. Constable Makadebin also saw the female block the device with her tongue. Ms. Laight was given 8 to 10 opportunities. At one point, Ms. Laight said "see, I can't" and used the excuse that she had asthma. Ms. Athanas submitted that the excuse for not being able to blow provided by Ms. Laight was not anything to do with the motor vehicle accident, but rather was that she suffered from asthma. Ms. Athanas pointed out that there were no current records to show the condition of her lungs or any breathing problems. Ms. Athanas also pointed to the fact that Ms. Laight was able to scream for 20 minutes when she was searching for Mr. Recollet and that she would not have been able to do this if she was short of breath. The officers also did not notice any shortness of breath during their interaction with her. She was screaming in the back seat of the cruiser for 3-4 minutes. Based on the experience of Constable Makadebin, Ms. Laight was simply not providing a suitable sample. She testified that through her twenty plus years of service, she knows when someone is not providing a sample. According to Ms. Athanas, the evidence demonstrated that Ms. Laight was using preventative measures to not do the test properly.

[95] Further, Ms. Athanas submitted that Ms. Laight admitted that her objective was to make it out of there as soon as possible. The Crown's position is that Ms. Laight was fully capable of providing a breath sample but she simply failed to do so. She did not fail to provide the sample because of her lungs. She was purposely failing to do what the officers asked her to do. There was no reasonable excuse.

[96] With respect to resisting, upon arrest, Ms. Laight was really upset and was pushing and pulling away from the officers. Ms. Athanas submitted that Ms. Laight admitted to this during her testimony. Further, Ms. Athanas submitted that this is a general intent offence.

Analysis

Failure / Refusal to Provide a Breath Sample

[97] With respect to the failure or refusal to provide breath sample, the questions to be answered by the court are as follows:

1. Was there a valid demand properly made
2. If so, did the accused fail or refuse to comply with that demand
3. If so, did the accused have a reasonable excuse for the failure or refusal
4. Was there a demand for any samples of bodily substance other than breath or blood

[98] The Court of Appeal held that the offence is complete "upon proof that the preconditions to the demand in s. 254(2) existed, the officer demanded the sample 'forthwith', and the appellant unequivocally refused, without any reasonable excuse, to provide that sample. See: R. v. Digiorgio, 2011 ONCA 527, para 65

[99] In order to determine whether this was a reasonable demand, the Court must consider the following:

1. Was the police officer's suspicion that there was alcohol or a drug in the body reasonable?
2. Was the police officer's suspicion that the accused has, within the preceding three hours, operated a motor vehicle a reasonable one?

[100] An officer can reach the required suspicion based upon an odour of alcohol on the driver's breath.

[101] In this case, the Crown and the defence agree that the demand was valid. The officers were investigating a complaint of erratic driving that led them to the vehicle Ms. Laight was driving. Constable McComb smelled alcohol coming from Ms. Laight as he communicated with her. There were no other people in the area except Ms. Laight and the officers. Upon attending to the trunk of the car at the suggestion of Ms. Laight, Constable McComb did not note any odor of alcohol coming from the trunk. Constable McComb asked Ms. Laight if she had consumed alcohol and she denied consuming alcohol. Constable Makadebin also noted that Ms. Laight appeared intoxicated, as her face was flushed and her eyes were droopy, red and bloodshot. Ms. Laight was argumentative about the fact that the odor of alcohol was coming from the trunk. Constable Makadebin walked by the female and detected a sweet odor of alcohol coming from the female, which she described as "like coolers". While not determinative of this issue, I would also note that Ms. Laight disagreed with the fact that she denied the consumption of alcohol and said "I think the cop in his first statement said that I admitted to having a few drinks".

[102] The real issue in this case as presented by the defence is whether Ms. Laight had the requisite intent to produce the failure or, alternatively, whether Ms. Laight had a reasonable excuse for the failure.

[103] Where there is no obvious refusal, the Court must assess whether the defendant intended to produce the failure. In other words, the Crown must prove beyond a reasonable doubt that the defendant intended to produce the failure in order to establish the mens rea for the offence. See: R. v. Campbell, [2008] O.J. No. 47 (Ont. S.C.), para 7

[104] The onus of proof regarding "reasonable excuse" is also on the Crown to disprove it once the accused makes it a live issue.

[105] There is no requirement that the defendant state at the time of refusal the reasonable excuse. See: R. v. Rivera, 2011 ONCA 225, para. 111 to 119

[106] The case law is divided on whether failure to provide a sample due to medical issues constitutes a reasonable excuse or lack of mens rea because the defendant did not intend to produce a failure.

[107] In this case, the evidence of Ms. Laight is that she attempted to do the test, however, she was simply unable to provide enough breath due to her health issues. Further, she testified that she offered the alternative of being taken to the hospital to provide a blood sample. In other words, Ms. Laight's evidence supported the conclusion that she lacked the mens rea to commit the offence. Alternatively, her evidence could be viewed as providing a reasonable excuse for the failure to provide the sample. Either a lack of mens rea or a reasonable excuse would result in an acquittal on this charge.

[108] Following the analysis in R. v. W.(D.), [1991] 1 SCR 742:

1. If the Court believes the evidence of Ms. Laight, there must be an acquittal;
2. If the Court does not believe the testimony of Ms. Laight but is left in reasonable doubt by it, there must be an acquittal;
3. Even if the Court is not left in doubt by the evidence of Ms. Laight, the Court still must ask itself whether it is convinced beyond a reasonable doubt of the guilt of Ms. Laight on the basis of the balance of the evidence which the Court does accept.

[109] Having followed the W.(D.) analysis, I do not believe the evidence of Ms. Laight regarding why she failed to provide a suitable sample of her breath. Further, I am not left in reasonable doubt by her evidence. I have reached this conclusion for the following reasons:

1. Ms. Laight testified that a police officer walked to her vehicle and she voluntarily got up out of the car. Later on, she stated that the second officer arrived while she was still seated in the driver's seat with her feet outside the vehicle and that she told the officers that it was difficult for her to stand very long. This would appear to be inconsistent.

2. Ms. Laight claimed to have trouble breathing and breaking down phlegm in her throat, especially when she is upset, yet she admitted she was able to scream for Mr. Recollet for upwards of 20 minutes, at a time when she was admittedly upset. She was also able to yell and swear in the police cruiser for another 3 to 4 minutes as she was being transported.

3. Ms. Laight provided a great deal of medical evidence to the court but when it came to respiratory issues, she claimed that she had no family doctor, that she recently obtained a referral from a walk-in clinic to a respirologist, but had not yet had an appointment. If this were really as severe an issue as Ms. Laight suggested, one would think that this would have been followed up on a long time ago, not 3 to 4 weeks before her trial. Even though the medical reports provided do refer to bilateral pneumothorax with lung contusion, none of the medical reports provided suggested that Ms. Laight suffered from shortness of breath. In fact, the opposite.

4. In cross-examination, Ms. Laight agreed that she was pushing and pulling away from the police during the arrest. She admitted that she was doing this because she did not want to be arrested and believed that they had no grounds. Later in her testimony, she disagreed with the suggestion that she was being difficult.

[110] I am convinced beyond a reasonable doubt that Ms. Laight did, without reasonable excuse, failed to comply with a demand made to her by William McComb a peace officer under subsection 254(2) of the Criminal Code in the circumstances therein mentioned, to provide forthwith a sample of her breath as in the opinion of the officer was necessary to enable a proper analysis of her breath to be made by means of an approved screening device, contrary to Section 254(5) of the Criminal Code of Canada. I have reached this conclusion on the basis of the following evidence which I do accept:

1. According to Constable McComb, during the first couple of attempts, Ms. Laight did not blow hard enough to set off the audible signal which sounds when sufficient breath enters the device.

2. Constable Makadebin explained several times how to do the test properly and even demonstrated.

3. During another attempt, Ms. Laight took a deep breath in but nothing came out.

4. Ms. Laight was cautioned and was given a further opportunity to provide a suitable sample.

5. It was at this point that Ms. Laight told Constable McComb that she suffered from asthma and that her medication was in the car. Nothing was found in the car.

6. Constable McComb testified that there was no indication from Ms. Laight that she was having trouble breathing or that she was suffering from asthma.

7. Constable Makadebin testified that Ms. Laight gave a short quick breath but pulled away before the device could register.

8. Ms. Laight did not follow Constable Makadebin's instructions to blow until she was told to stop.

9. Constable Makadebin testified that on one occasion Ms. Laight used her tongue to block the mouthpiece.

10. Constable Makadebin testified that Ms. Laight had her cheeks puffed out but she was not blowing and then stated "see, I can't".

11. Constable Makadebin testified that she can usually hear when air is going into the device and on this occasion she could hear nothing.

12. Constable Makadebin testified that the tube clouds over when air is going in – like mist – but in this case there was nothing.

13. Ms. Laight was able to scream for Mr. Recollet for 20 minutes just prior to being stopped by police.

14. Ms. Laight was yelling and swearing at Constable McComb in the police cruiser on the way to the station without losing her breath.

[111] Based on the totality of the evidence, I find Ms. Laight guilty of count 1.

Resisting Arrest

[112] With respect to the charge of resisting arrest, Ms. Laight admitted during cross-examination that she was pushing and pulling away from the police. By her own admission, she is guilty of this offence. Resisting arrest is a general intent offence. It does not assist Ms. Laight to suggest that she did not believe the police had reasonable grounds to arrest her or that they were not treating her properly.

[113] In R. v. Biron, [1976] 2 S.C.R. 56, the Court held that the validity of an arrest must be determined in relation to the circumstances which were apparent to the officer at the time the arrest was made. In Biron, it was held that the officer observed an apparent offence being committed by the accused and was therefore justified in arresting the accused.

[114] The circumstances which were apparent to the officers at the time the arrest was being made in this case were that Ms. Laight had failed to comply with a demand made to her by Constable McComb, a peace officer under subsection 254(2) of the Criminal Code, to provide forthwith a sample of her breath as in the opinion of the officer was necessary to enable a proper analysis of her breath to be made by means of an approved screening device. Ms. Laight was pushing and pulling away from the officers after they advised her of the arrest and were attempting to complete that arrest.

[115] Based on the totality of the evidence, I find Ms. Laight guilty of count 2.

Released: January 10, 2018

Signed: Justice V. Christie