Ontario Court of Justice

Date: 2018-01-09

Court File No.: Durham region

Between:

HER MAJESTY THE QUEEN

— AND —

JOSEPH WALKER

Before: Justice B. Green

Heard on: December 11th and 12th, 2017

Reasons for Judgment released on: January 9th, 2018

Counsel:

• G. Hendry, for the Crown
• O. Mok, for the Defendant

Green J.:

A. Introduction

[1] Mr. Walker is charged with failing to comply with a roadside demand to provide a breath sample on April 16th, 2016 in the city of Pickering. While there were no admissions made at the outset of the trial, as the trial progressed, it became obvious that there were no issues with respect to the identity of Mr. Walker, the date of the alleged offence or the jurisdiction. In addition, Counsel conceded that there were no issues with the voluntariness of his client's statements to police at the roadside or at the station nor were there any concerns with respect to section 10(b) of the Charter.

[2] The issues in this trial were focused entirely on the reasons why Mr. Walker was stopped by the police, what happened after he was stopped at the roadside, whether the demand for a roadside breath sample breached his constitutionally protected rights and whether the demand itself was lawful. Mr. Walker's counsel submitted that he was only stopped and investigated by the police because he is a black man who was driving a nice car in Durham Region. Furthermore, he alleged that the police lied about why they stopped him and what happened after they stopped him that night. Finally, he asserted that, considering the chaotic exchange at the roadside between Mr. Walker and the Officers, he was not able to fully appreciate or understand the nature of the demand. As a result, he had a reasonable excuse for failing to provide a breath sample into the ASD.

[3] There were four distinct issues that were argued during submissions. It was submitted that:

1. The Officers breached Mr. Walker's rights as protected by sections 7 and 9 of the Charter because the stop and subsequent conduct of the police was racially motivated;

2. The Officers breached Mr. Walker's rights as protected by section 8 of the Charter because they did not have sufficient grounds to make a demand for a roadside breath sample;

3. The demand for a roadside breath sample was an unlawful demand; and

4. Alternatively, Mr. Walker established that he had a reasonable excuse for not complying with the Officers' demands to provide a roadside breath sample because he did not appreciate or understand the demand.

[4] While the issues seem fairly straightforward, it became complicated because of the divergent accounts of the unfolding of events that evening. While the Court will address the applicable legal principles, this case is ultimately a factual determination of what actually happened when the police interacted with Mr. Walker. It is essential to contextualize the issues to be decided within the findings of fact.

B. Evidence and Findings

i. Crown's case

Cst. Barnett

[5] There are certain facts that were not in dispute. On April 16th, 2016, Mr. Walker was at the Island Mix Restaurant and Lounge in Pickering. Officers Barnett and Doyle were on duty on patrol in the area in a police vehicle that PC Doyle was driving. Mr. Walker left the establishment driving his BMW with a female passenger. He was travelling southbound on Salk Road and stopped at a stop sign at the intersection of Salk Road and Bayly Street in Pickering. PC Barnett and Doyle were situated east of Salk road near the intersection of Brock and Bayly about 100 metres away. Their police vehicle was on Bayly Street facing westbound so they would have been in a position to see the intersection of Salk and Bayly where Mr. Walker had stopped for the stop sign.

[6] In an affidavit filed in support of the Charter motion which was filed as an exhibit during the trial, Mr. Walker asserted that various police officers and two police forces have been conspiring against him as a result of an allegedly profitable relationship with the family of his estranged spouse. PC Barnett was asked about her familiarity with Mr. Walker, his former spouse or her family. Cst. Barnett did not know any of them nor was she familiar with them or Mr. Walker's issues with other law enforcement officials. PC Doyle was not asked any questions about his knowledge or involvement with Mr. Walker's family even though Mr. Walker believed that his conduct was influenced in part by a conspiracy against him.

[7] Cst. Barnett advised that they were operating a police vehicle but she could not recall if it had suppressed markings or whether it was fully marked and easily identifiable. She indicated that they were on patrol "waiting to be dispatched or looking for something". It was 2:43 a.m. which was the time of the morning when local "bars" would be letting out. She was aware of two different licenced establishments in that area that served alcohol, the Island Mix and the 905 which is a strip club. In the past, the police have had "many many problems with drinking and driving out of the Island Mix". As result, she and her partner were concerned with ensuring the sobriety of drivers in the area.

[8] Cst. Barnett explained that their attention was drawn to Mr. Walker's vehicle because it appeared to be stopped at the stop sign for "an extended period of time". She was not able to discern the make of the vehicle initially other than it was running and stopped at the intersection. Mr. Walker's vehicle turned right heading west bound on Bayly Street and they started following his vehicle. The speed limit on Bayly is 60 km an hour and the vehicle was travelling below the speed limit at approximately 50 km an hour. She felt that this was "slightly odd behaviour" because, in her experience, most motorists drive the speed limit or a little above the speed limit. While she conceded that Mr. Walker was not committing any HTA offences, she explained that between the extended stop and the slow driving, the time of night and being in the area of licenced establishments, she became concerned about the sobriety of the driver.

[9] Although she could not recall which one of them did it, she testified that a computer check was run on the registered owner of the vehicle. She clearly recalled that this inquiry was conducted prior to them pulling up beside Mr. Walker's car. The Officers learned that the registered owner, Mr. Walker, was on conditions of bail at the time to remain away from a specific female as well as other terms. They could not tell who else was in the vehicle from their vantage point or who was driving it. As a result, her partner maneuvered the police vehicle alongside Mr. Walker's vehicle so they could get a look inside and determine if there was a female in the passenger seat. Cst. Barnett was in the passenger seat of their vehicle. Mr. Walker was in the driver's seat and the police vehicle was positioned to the left of the driver's side of Mr. Walker vehicle. As a result, Cst. Barnett was directly beside him.

[10] When they pulled up next to the car, PC Barnett testified that she could see that the driver was male but she could not tell whether the passenger was female. PC Barnett testified that she could not recall when she first realized the driver was black. Her first memory of his race was during the subsequent traffic stop although she agreed that she saw him when they pulled up beside him. She explained that "to me it didn't matter what colour his skin was, if there's a law being broken it doesn't matter or if I'm investigating it doesn't matter". While they were beside Mr. Walker's vehicle, she could not recall if either her window or Mr. Walker's window were lowered. PC Barnett consistently disagreed with any suggestion that there was a conversation between PC Doyle and Mr. Walker while they were in motion driving beside each other.

[11] PC Barnett advised that PC Doyle decided to pull the vehicle over to check on the sobriety of the driver and to ascertain whether the registered owner was the driver and whether he was complying with the terms of his bail. They stopped him at the intersection of Krosno and Bayly. As they exited their police vehicle, PC Barnett approached the passenger side and PC Doyle approached the driver's side of Mr. Walker's vehicle and engaged him in a conversation. PC Barnett noticed the passenger was a "young looking female" even though the window of the vehicle remained closed. She was also listening to her partner's conversation with Mr. Walker. She overheard them discussing that he had two different driver's licences, he claimed that he was not the registered owner even though his identification showed that he was the registered owner and PC Doyle was suggesting that he was not being truthful. She also heard Mr. Walker admit that he consumed one beer throughout the evening. PC Barnett also heard when her partner spoke to the female passenger to ascertain her identity.

[12] When the investigation progressed and PC Doyle asked the male driver to step out of his car, PC Barnett relocated to where they were standing. She took possession of his licence and identified him as the registered owner, Mr. Walker. She began to speak with Mr. Walker when he was outside of his vehicle and she detected an "odour of an alcoholic beverage emanating from his mouth or his breath". She made the determination that "there was a reasonable suspicion to believe that there was alcohol within Mr. Walker's body while he was operating a motor vehicle" so she directed Mr. Walker to a safer place on the curb to make a roadside breath demand. Three minutes after the initial stop, at 2:46 a.m., she read the formal demand to Mr. Walker from the back of her notebook. They had a readily available approved screening device in proper working order in their cruiser so she retrieved it to conduct the road side tests. She denied Counsel's suggestions that her hands were trembling with fear while holding the ASD. PC Barnett explained that once Mr. Walker was out of the vehicle and she smelled alcohol, she made the demand promptly because "when it comes to an impaired investigation timing is everything, timing matters".

[13] Mr. Walker "adamantly refused" to provide a sample of his breath right from the outset. She recalled explaining the demand and the consequences of refusing to comply with a demand a minimum of three times to Mr. Walker. She explained to him that she was making a lawful demand and if he refused to comply, he would be charged, he would receive a 90 day ADLS suspension and his car would be impounded for 7 days. Although Mr. Walker was initially calm and cooperative while he was inside his car, he became increasingly "agitated". She described him as a "large man" who was becoming louder, almost yelling and argumentative. She felt like he was "amping up" for a fight and his fists were clenched. For Officer safety reasons, one of them called for additional units to attend at their location. She felt that the presence of other officers may deescalate the situation. Counsel suggested to PC Barnett that Officer Doyle had his hand on his pistol during their roadside interaction and PC Barnett said that did not occur.

[14] During her exchange with Mr. Walker, Cst. Barnett recalled him saying something like he was not "resisting arrest" but that he would not be providing a sample of his breath. He also asked to speak with his counsel, Mr. Mok, but she explained that could not be facilitated at the side of the road at that stage. Cst. Barnett was not having any success with encouraging Mr. Walker to provide a breath sample. As a result, PC Doyle also explained the consequences to him and they both tried to give him every opportunity to provide a sample. Counsel suggested that PC Doyle was yelling and screaming at Mr. Walker to gain his compliance. PC Barnett firmly denied that her partner was yelling at him although she agreed that he was "more vocal" than she was with Mr. Walker. Counsel queried whether PC Doyle was "polite the entire evening" and she responded "from what I recall he was respectful and polite" with Mr. Walker.

[15] Between the two Officers, they requested that Mr. Walker provide a sample "multiple times" but he remained adamant that he would not provide a sample. She felt that they tried to give him every opportunity to provide a breath sample. He was arrested by PC Barnett for refusing to provide a roadside sample at 2:49 a.m. The entire length of time from initially stopping Mr. Walker to the arrest was 6 minutes in duration.

[16] PC Barnett advised that Mr. Walker "was not fighting the arrest by any means" but she required the assistance of "a couple of Officers" to handcuff him and "some force had to be used to properly position his hands to the rear of his body". He did not immediately put his hands behind his back when she requested that he do so and that is why other Officers assisted her with "maintaining control" of him. He was searched incident to arrest. His rights to counsel and cautions were read and he asked again to speak with his counsel Mr. Mok. Mr. Walker advised PC Barnett that his counsel's phone number was in his cell phone inside his vehicle so she went to look for it. She was unsuccessful the first time but when she returned to his vehicle the second time, the passenger moved and she located the phone. At 2:53 a.m., one of the Officers called Mr. Mok's office and left a message for him. Even though Mr. Walker testified that he specifically requested that Officer Barnett look in his car to locate his phone so he could contact his lawyer, counsel still suggested to Cst. Barnett that she was engaged in some kind of ruse to search his vehicle for drugs and firearms. This suggestion was unfounded in the evidence during this trial and overreaching.

[17] After Mr. Walker was arrested, at 2:59 a.m., Cst. Barnett noticed that Mr. Walker was a suspended driver as a result of unpaid fines. Neither she nor her partner noticed this additional information during their first computer inquiry. Once they returned to the station, during the parade process, Mr. Walker complained to the Sergeant on duty (Staff Sergeant Haight) about the reasons for being stopped. Cst. Barnett denied that any of the involved Officers engaged in a debriefing session following Mr. Walker's arrest and release from custody and none of the Officers collaborated on their notes or their recollections.

[18] I note that a few of the questions asked by Counsel and the submissions made that suggested that Cst. Barnett (a female officer) was "submissive" to the "dominant presence" of a more senior male partner were ill-advised, unhelpful to the Court and potentially viewed as misogynist. It was ironic that, during a trial about racial sensitivities, a female police Officer was subjected to demeaning suggestions/submissions that she was "submissive", she was just a "bystander" that she was told to go and "fetch" the ASD or that she was obeying the commands of her more senior male partner. I will not rely on any of these suggestions or submissions in any way nor will that type of commentary be condoned by this Court. PC Barnett is a fully qualified Police Constable and they were equal partners. Any concerns about her account of the unfolding of events that night have nothing to do with her gender or alleged passivity.

[19] Cst. Barnett presented very professionally while testifying and appropriately recited the legal tests to pull a vehicle over for sobriety concerns and the prerequisites to make a demand for a roadside breath sample. Nevertheless, she had some lapses in her memory about important details of the events that night that contradicted some aspects of her partner's evidence. For example, she did not recall noticing that Mr. Walker was black even though they pulled up right beside him while she believed they were still in motion and she would have been closest to him. She denied that either she or her partner lowered the windows in their cruiser and he yelled across her to communicate with Mr. Walker while they were still driving. She also denied that her partner was yelling at Mr. Walker at the roadside and described him as respectful and polite.

Cst. Doyle

[20] PC Doyle had a similar recitation of the sequence of events but he provided significantly more details and his recollection was better than his partner's memory of events. He related that they were both wearing full police uniforms and he was operating a low profile police cruiser that did not have roof lights and had suppressed markings. They were on patrol in the area of the Island Mix restaurant and he was aware that last call was at 2:00 a.m. and that they are obligated to clear out the bar by 2:45 a.m. The police have had issues with patrons drinking and driving after leaving this particular establishment. He explained that there was also a 24 hour Coffee shop in the same plaza as the Island Mix. Mr. Walker vehicle was located at an intersection that PC Doyle was familiar with where patrons leave out the back way from the Island Mix.

[21] PC Doyle was alerted to Mr. Walker's car because of the time, the location and that it was stopped for an above average amount of time to make a right hand turn. He said that the "roads were virtually empty of all traffic and ample opportunity to make a right-hand turn". There was no traffic in the intersection that stopped the car from making the turn. From his vantage point, PC Doyle could not see inside the vehicle because of the time of night and the windows were tinted. He could not see who was driving but he noted that the car was a 2008 BMW with and he eventually noted a particular marker. He stopped his cruiser to watch and wait for the vehicle to do something. When the vehicle finally turned, they began to follow it and it drove unusually slowly. At this point, he believed that PC Barnett ran the plates and the car was registered to Joseph A. Walker of 101 Waverly Road in Bowmanville. They also learned that he was on a restraining order prohibiting him from communicating with a female person. PC Doyle decided to pull up on the left side of the vehicle which was in the right lane, just behind it, and activate the emergency lights inside the police vehicle to pull it over.

[22] PC Doyle said that once the vehicle was pulled over and stopped, they pulled up "next to it". Mr. Walker's window was rolled down and PC Barnett's window was down. When this occurred, he could see the driver was male and the passenger was a female. Obviously, he could see that Mr. Walker is a black man. While he was still seated in his cruiser and both vehicles were stationary beside each other, he asked the male driver if he was the registered owner and Mr. Walker replied "no". PC Doyle denied that their vehicles were in motion when he spoke to the driver from his cruiser. Counsel suggested that he was speaking loudly to be heard by Mr. Walker across his partner and the vehicles and he agreed that he was "above normal speaking" which was louder than he was speaking in Court.

[23] PC Doyle backed up the police vehicle and pulled in behind Mr. Walker's vehicle. PC Doyle testified that the fact that Mr. Walker was black did not influence his decision to pull over his vehicle. Rather, he was checking on his sobriety and, once he saw that there was a female passenger, he wanted to ensure that Mr. Walker was complying with his restraining order conditions.

[24] Once they exited the cruiser, PC Doyle approached the driver's side of Mr. Walker's car and PC Barnett approached the passenger side because that is standard operating procedure for Officer safety purposes. PC Doyle asked Mr. Walker to produce his licence, ownership and insurance. He observed him pull out one licence, put it back in his wallet and then pull out another licence. It is a provincial offence to possess more than one driver's licence. He asked him why he had two licences and Mr. Walker advised him that one of them was expired. PC Doyle confirmed that the driver was in fact the registered owner and that neither licence was expired, they just had different addresses. During their conversation, he detected an odour of an alcoholic beverage coming from his mouth. PC Doyle asked him how much he had to drink and he responded that he consumed one beer at approximately 10 p.m. He noted that his eyes were brown and blood shot. He asked him to step out of the car to ascertain if the smell of alcohol was coming from Mr. Walker's breath as opposed to the vehicle or the passenger and he directed him to the sidewalk. Once he asked Mr. Walker to step out of his vehicle, he became "uncooperative" and began "questioning the validity of the traffic stop". Throughout his interaction with Mr. Walker outside the vehicle, he continued to smell an odour of an alcoholic beverage from his mouth.

[25] Once they were standing on the sidewalk, Cst. Barnett also engaged Mr. Walker and she formed the grounds to make an ASD demand for a roadside breath sample. Over the next minute or two, PC Doyle testified that Mr. Walker kept saying in a "loop" over and over that he didn't know what his rights were, he wanted to speak to his lawyer Otto Mok and he refused to provide a breath sample. PC Doyle repeated the consequences and advised him that he could speak with his lawyer if he was arrested. However, when either he or his partner tried to speak with him and explain the process, Mr. Walker would talk over top of them. Although PC Barnett had assumed the primary role of making the initial demand, he also tried to assist by explaining the consequences of a refusal to Mr. Walker to gain compliance. PC Doyle testified that he "ultimately made a final appeal if there was anything I could say or do to get him to provide a sample" and Mr. Walker said "no".

[26] While they were at the roadside, PC Doyle advised that he was the one who called for additional units to attend because of Mr. Walker's untruthfulness about being the registered owner, his lack of compliance and he was "getting more worked up". He believed that three additional officers responded to the scene. During cross-examination, Counsel asked PC Doyle how long he had been a police officer and whether he had ever been injured by a black man during the course of an arrest. PC Doyle said he has been an Officer for 10 years and he could only recall one or two occasions when he had been injured or attacked by a black detainee. He was not seriously injured during these altercations. Counsel asked PC Doyle if he ever used a specific racial epithet either personally or professionally and PC Doyle unequivocally responded no. Counsel also suggested that because PC Doyle was engaging a black man, his hand was "ready" by his side "next to your gun". PC Doyle pointed out the obvious that his hand is always next to his firearm because when his hands are at his side so is his firearm. Counsel did not specifically suggest to PC Doyle that his hand was on his firearm or was gripping his firearm.

[27] Throughout his examination in chief, PC Doyle did not mention that he raised his voice while speaking with Mr. Walker. I do not find that he deliberately left that out of his evidence because, while being cross-examined, he readily admitted that he "became frustrated with Mr. Walker when he wouldn't listen about the approved screening device demand". He indicated that he didn't know how many times his partner made the demand before he "chimed in" and he agreed that he raised his voice. He agreed that both he and Mr. Walker were speaking "louder" and that his voice got "elevated". Later on during his evidence when he was being asked about why he moved Mr. Walker's cuffs from the back to the front, he made an insightful comment. PC Doyle said that "meeting Mr. Walker's aggression with my own was not making things better so he took a different tact" at that point at the station. Based on his evidence, it is apparent that he was being verbally aggressive with Mr. Walker at the roadside to secure his compliance. PC Doyle was responding to a particularly challenging detainee who "appeared to be intentionally being difficult for the sake of being difficult". He was not being verbally aggressive because Mr. Walker is a black man. He tried a more forceful approach to gain compliance from an obstinate and belligerent man.

[28] After Mr. Walker was arrested, they tried to facilitate placing a call to Mr. Mok at the roadside. Mr. Walker would only say that his cell phone was "in the car" but he wouldn't tell them where it was located. While his partner went to look for his phone, he searched up Mr. Mok's number on his own cell phone and obtained the number. He called the number and left a message for Mr. Mok.

[29] At some point later on, PC Doyle acknowledged that he became aware that Mr. Walker's licence was suspended for unpaid fines. They transported Mr. Walker to the station that was located around the corner "based on his request to speak to a lawyer, in order to facilitate those – that right". While Mr. Walker was being paraded, PC Doyle heard Mr. Walker objecting to the validity of the traffic stop. Nevertheless, when Mr. Walker inquired about whether he was going to be released, Cst. Doyle advised the Sergeant that he should be released. After he was paraded and after repeatedly insisting on specifically speaking with Mr. Mok, Mr. Walker requested to speak to Duty Counsel. Another Officer facilitated a consultation with Duty Counsel and Mr. Walker was subsequently released on a promise to appear.

[30] Counsel played a portion of an exchange between PC Doyle and Mr. Walker at the station after Mr. Walker was paraded as they entered a room to remove his handcuffs and facilitate a call to counsel. PC Doyle can be heard on the recording telling Mr. Walker to get out of his face as they entered the room. PC Doyle explained that this exchange started before the recording because Mr. Walker was staring him down in the basement which he perceived to be threatening conduct. Counsel pointed out that Mr. Walker was handcuffed to the rear at the time. PC Doyle advised that he was handcuffed but it was to the front because Mr. Walker had been complaining so much, he had switched the cuffs to the front in an attempt to improve his demeanor. PC Doyle agreed that he told Mr. Walker before entering the room that, if he was unable to reach his lawyer, he may have to wait until the next morning for his counsel of choice to call back. It is hardly surprising that when he was faced with that possibility, Mr. Walker changed his mind and asked to speak with Duty Counsel.

[31] The recording did not reflect well on PC Doyle's professionalism at that moment. It was evident that Mr. Walker's persistent conduct had frustrated him and he was sarcastic with him. While Officers are people just like everyone else and they can be baited by detainees, they are expected to rise above this type of behaviour and not to respond in kind. Officer Doyle's choice of how to address Mr. Walker at the roadside was not ideal and seemed to only exacerbate Mr. Walker's belligerence and his sarcasm at the station was unnecessary. Nevertheless, this conduct did not breach Mr. Walker's constitutionally protected rights in any way. PC Doyle articulated the following constellation of factors that informed his decision to pull over Mr. Walker's vehicle and ultimately for his partner to make a demand for a roadside breath sample:

• the area had a licenced establishment with a history of drinking and driving incidents and a nearby strip club;
• it was closing time for the Island Mix;
• the vehicle made a prolonged stop at an intersection that was an exit point for patrons from the Island Mix and there was no surrounding traffic that explained the unusual stop;
• Once the vehicle made the right hand turn it proceeded slowly, less than the speed limit;
• they ran a check on the plate and the registered owner came back with a restraining order with respect to a female; and
• when they pulled up beside the vehicle he saw a female passenger and the driver denied being the registered owner

[32] PC Doyle decided to check on the sobriety of the driver and to check on whether he was in fact the registered owner and to check compliance with his conditions. He was the one who made the decision to pull him over so he made the request across his partner about whether Mr. Walker was the registered owner. Once at the roadside, PC Doyle felt that Mr. Walker was being dishonest, he smelled a moderate odour of alcohol on his breath, Mr. Walker admitted to consuming one beer 4 hours earlier, his eyes were bloodshot and he was becoming increasingly uncooperative. PC Doyle was unequivocal that the colour of Mr. Walker skin in no way factored into his interactions with Mr. Walker. He candidly admitted his own failings that night that he was frustrated with Mr. Walker's attitude and behaviour and he responded verbally aggressively.

[33] While PC Barnett downplayed her partner's verbal aggression with Mr. Walker, I accept that she was dealing with a loud and difficult person and she was focussed on his conduct. From her perspective, while PC Doyle was being more "vocal", he was trying to assist her with gaining compliance. They both wanted to give Mr. Walker every opportunity to reconsider his decision to refuse. In addition, I acknowledge that PC Barnett forgot about PC Doyle talking across her to Mr. Walker while they were still in their cruiser and she seemed to suggest that when they pulled up beside Mr. Walker's vehicle, they were still in motion. I found her to be a credible witness but her recall of events was less reliable than her partner's, PC Doyle.

[34] PC Doyle presented as a police officer who could have handled the situation better but he was frank about his conduct. He was a credible witness and a reliable historian. As noted, PC Doyle's verbal aggression with Mr. Walker was a poor choice of action with this particular person. While that approach may have worked with other people, Mr. Walker's pre-existing distrust and dislike of the police was intensified by PC Doyle's conduct. Nevertheless, from both Officers' accounts, their conduct throughout their dealings with Mr. Walker was motivated by their observations of a number of objectively discernible factors and Mr. Walker's attitude, not the colour of his skin or the make of his vehicle. Furthermore, if these Officers wanted to conspire against Mr. Walker, they could have easily recorded in their notes or colluded about when they became aware that Mr. Walker was a suspended driver to provide another justifiable reason for the stop. Instead, they were both honest and admitted that they did not realize that additional relevant information until after Mr. Walker had been arrested. Finally, it was obvious that they did not discuss their evidence before they testified or engage in some kind of collaborative debriefing to craft their notes. PC Barnett did not recall a number of details that PC Doyle readily volunteered during his evidence.

[35] It is important to emphasize what was going on at the side of the road with Mr. Walker. These two Officers made observations that allowed them to form a reasonable suspicion that Mr. Walker was operating a motor vehicle with alcohol in his system and they both made the appropriate demand and explained the consequences to him multiple times. Neither one of them suggested that they had reasonable grounds to charge him with impaired driving. Rather, they were trying to get through to him that, if he didn't blow, he would be charged with a crime that had the same consequences as if he blew over the legal limit. If he blew and did not fail, he could have walked away without any criminal charges. Even though Officer Doyle may not have approached Mr. Walker the best way, he and his partner were trying to encourage him to blow to give him an opportunity not to be charged as opposed to unjustifiably looking for a reason to detain and/or arrest a black man in a nice car.

ii. Defence Evidence

Mr. Walker

[36] In advance of the trial, Mr. Walker swore an affidavit in support of the Charter application. In the "background and prologue", he devoted nine paragraphs to his belief that his former spouse's family had the power and means to influence the police force. While his Counsel submitted that these statements were only meant to explain his client's mind set at the time, it was evident in the affidavit and during Mr. Walker's evidence that even before he interacted with these two police officers, he believed that the stop of his vehicle was somehow motivated by the influence of his former spouse's family. He stated at paragraph 20 that he "felt that that there was no reason for me to be pulled over other than the fact that I was black and that the McArthur's influenced them to give me a hard time just like my last cases." He also claimed that PC Doyle said that he could smell alcohol on him while he was still driving and "this heightened my suspicions of his motives". Mr. Walker had a mind-set that police were out to get him and that influenced how he interacted with the police that night and it has also influenced his recollections of the events.

[37] As part of the blended hearing, Mr. Walker elected to give evidence on the voir dire and the trial proper at one time. He has no prior record and he works as a mortgage broker with the Mortgage Alliance. It is essential to his continued employment that he not have a criminal record and a conviction could be detrimental to his career.

[38] Mr. Walker admitted that he was a suspended driver that night. He provided a convoluted explanation for how it was that he ended up driving his motor vehicle. He claimed that he lent his car to a friend. His friend came and picked him up in Mr. Walker's car at his work and then they drove to the Island Mix restaurant. His friend told him that they were going for a bite to eat and they were going to meet up with two of his friends. During cross-examination, he claimed that even though this "friend" had his car and he knew him for a year, he only knew his first name which was "Frank".

[39] They arrived at the restaurant around 9:30 or 10:00. He spent the next four to five hours at this establishment with his friend and two women. Mr. Walker believed that people were watching different sporting events. He advised that, even though he had no intention of driving because he had a driver, he only consumed one beer at 10 o'clock over the course of the whole night and his friend was not drinking. In contrast, the two women that they met up with were drinking and they became intoxicated. Since the two women were in no shape to drive and they came in one vehicle, he decided he would drive one of them home in his car and his friend would drive the other one to the same place in her car. I note that PC Doyle did not see any other traffic in the area when he noticed Mr. Walker's vehicle stopped at the intersection.

[40] Mr. Walker was confronted during cross-examination with the fact that he had many other choices to arrange for the intoxicated women to get home rather that driving while suspended. He could have called for a cab or "keys to us". Mr. Walker replied that I am sure "Officer Doyle would say that here has been a lot of break-ins and car theft at the Island Mix so leaving a car there was not a good idea. He described that area as having a "very high crime rate".

[41] Mr. Walker made a point of insisting that the Island Mix is a "family run restaurant" and even though they sell alcohol, there are kids there and adults there. He acknowledged that it is called the "Island Mix Restaurant and Lounge" but he described as more of a family restaurant. While it may be frequented by families with children during the day, it was incredulous to insist that this was a family establishment as opposed to a restaurant/bar between 10 p.m. and 2 a.m.

[42] Mr. Walker left with one of the women who was in the passenger seat. He explained that he was driving his BMW and it had "factory tint" on the windows but you could still clearly see through the windows even at night. He came to a complete stop at the intersection of Salk and Bayly in Pickering. He saw a vehicle coming westbound on Bayly towards the intersection and he was waiting for it to pass but it suddenly came to a stop just prior to the intersection. He did not realize at that time that it was a police vehicle until he was later approached by the Officers. Even though it was in the middle of April and very late at night, he advised that when he was at this intersection his windows were "all the way down" to air out his car because of the smell of spicy food. He made a point of insisting that his window was down to support his claim that the Officers saw that he was black and that's why they pulled him over. Although I doubt his window was actually down, it does not really matter because I accept the Officers' evidence that they could not see that Mr. Walker was a black man from their initial vantage point until after they decided to pull up beside him to check who was in his vehicle. During cross-examination, Mr. Walker added that a few other vehicles also passed through the intersection while he was stopped before he finally turned. He said that he "came to a complete stop, then like, maybe two cars pass then I noticed a third car coming, was waiting for the vehicle to pass." According to him, he was at that intersection for some time. He also claimed that he and his friend left the Island Mix at the same time and they were travelling to the same place, the home of the woman in his car, but he could not explain why his friend was not behind him or where he went after they left.

[43] Mr. Walker turned right and then began to accelerate. As he was accelerating, he recalled that he "put up the windows". Mr. Walker agreed that he was driving either 50 or 60 km an hour and that he is a very cautious driver because of the time of night and he didn't want to drive too fast and get a ticket. It is notable that Mr. Walker confirmed some of the Officers observations but from a different perspective. He was stopped at the intersection and stayed a bit longer because he was allowing the vehicle driven by the police to pass through but they stopped. He also confirmed that he was driving cautiously on Bayly at or below the speed limit. Clearly, the Officers were not lying about their initial observations or that there were nearby licenced establishments or that this was a bad area or that it was closing time.

[44] Mr. Walker was driving along Bayly when a vehicle that he claimed that he still did not realize was a police vehicle pulled alongside of him. He said he noticed the "girl" (Officer Barnett) in the other vehicle was leaning all the way back in her seat. Even though she was in a full police uniform and their window was lowered, he claimed that he could not make out that she was a police officer. He said that PC Doyle began "screaming out" from the driver's side, across PC Barnett at him. He also testified that he did not realize during this initial interaction that PC Doyle was a police officer even though he was also in a full police uniform and their cruiser was positioned directly beside the driver's side of his vehicle. He said that he lowered his window all the way down and said "huh" in response to whatever the "man" was saying to him. He said that it was windy and he couldn't hear what he was saying to him but he initially thought that he was a nice person asking for directions so he lowered his window. Throughout his evidence, although he claimed that Officer Doyle was "screaming" at him across PC Barnett at him, he also claimed that PC Doyle initially came across like a "very nice guy" and then suddenly wanted to pull him over. While he insisted that both vehicles were in motion, he conceded during cross-examination that he slowed down because he thought PC Doyle was a nice man looking for directions.

[45] Despite initially claiming that he could not hear what PC Doyle was saying because it was windy, Mr. Walker testified that PC Doyle engaged in him in a conversation while they were both driving after he lowered his window. He claimed that, while they were driving beside each other, PC Doyle yelled over "hey how you doing tonight" and "where are you coming from" and then "I can smell alcohol from your breath". At that moment, when PC Doyle said he could smell alcohol, he inexplicably realized that they were police officers. After PC Doyle claimed that he could smell alcohol on his breath, he said "I'm going to pull you over, make sure you are following your court order." I do not believe that PC Doyle shouted across his partner some pleasantries to Mr. Walker and then randomly shouted that he could smell alcohol while they were driving and his partner was in between them. I accept that PC Doyle did pull up beside Mr. Walker and stopped to see whether there was a female seated beside him and he did ask if Mr. Walker was the registered owner and that Mr. Walker may not have heard that initial query.

[46] It was apparent during the trial that Mr. Walker has confused some of the conversation that took place while they were inside their vehicles with what the Officers said to him after they pulled him over. Moreover, throughout his evidence, significant aspects of Mr. Walker's account seemed to have some small basis in the truth but these facts were then exaggerated, embellished and distorted by him. I also note that suggestions were made to the police witnesses to make out a purported racial profiling which were contradicted by Mr. Walker's evidence. For example, counsel suggested to the police witnesses that they did not run Mr. Walker's plates before they decided to pull him over. According to Mr. Walker, the Officers must have run Mr. Walker's plates before they engaged him at the roadside because he said Officer Doyle told him that he was going to check to see if he was complying with his conditions. PC Doyle could not have known that he was on conditions before he pulled him over unless they had already conducted a computer inquiry.

[47] Mr. Walker said that the police vehicle then pulled in behind him, the police lights were activated and he stopped immediately. Mr. Walker advised the Court that he was wearing his seat belt and he was not speeding so he could not understand why he was being pulled over. His evidence that he was perplexed as to why he was pulled over was disingenuous if not intentionally misleading considering he knew that he was a suspended driver.

[48] Once he was stopped, PC Doyle approached him and engaged him in a conversation. PC Doyle asked him for his documentation and he agreed that he did have two driver's licences in his wallet as well as a few older expired insurance documents. He said that he had one licence with an older address and he changed his licence to his new address but he kept both of them in his wallet. He said that Officer Doyle began accusing him of producing a fake licence and he began "screaming at him" and had his "hand on his gun" while gripping the handle and told him to get out of his car. It is notable that Counsel never suggested to Officer Doyle that he was actually gripping his gun, he was only asked if his hand was beside his gun.

[49] Mr. Walker indicated that Officer Doyle was saying that he could smell alcohol on his breath and he could smell it on him while he was driving. As noted, I accept that Officer Doyle told him that he could smell alcohol on his breath after they were stopped and he was standing beside him. I do not accept that PC Doyle screamed across his partner while he was in the cruiser that he could smell alcohol. While at the roadside, Mr. Walker also said that PC Doyle asked him why he lied about not being the registered owner. Mr. Walker explained that this must have been what PC Doyle was asking when he couldn't hear him while his window was still up. He did not dispute that Officer Doyle asked him this question while in his cruiser, he just didn't hear the question.

[50] When they were engaged in the conversation at the roadside, Mr. Walker claimed that PC Doyle told PC Barnett to go and get the machine and she came back with the instrument and both of her hands were trembling. PC Doyle asked Mr. Walker if he had been drinking and he replied that he had one beer at ten o'clock. PC Doyle then told him that he was going to blow and Mr. Walker replied that he wanted his lawyer and "I'm not getting shot tonight". He held his hands out to Officer Barnett and told her to cuff him because PC Doyle was telling him that he could smell alcohol while they were driving and "quite frankly I didn't trust him." Mr. Walker then began explaining to the Court how he had problems in the past with police because of his ex-spouse's families' influence over York Regional Police and Durham Regional Police and he believed that this "was another attempt to basically get me arrested." The police were "in cahoots with the family to basically lock me up." Near the end of his evidence in chief, he repeated that his ex-spouse donates millions of dollars to the York Regional and Durham regional police and he had been the victim of a police "cover up" in the past. He felt that he was "being set-up again because he had no reason to stop me."

[51] Mr. Walker confirmed many aspects of the Officers' grounds to make a roadside breath demand. He reluctantly agreed that he was leaving a licenced establishment, it was a Saturday night and it was the time of morning when bars let out. He confirmed PC Doyle's evidence that he was asked if he was the registered owner, he did have two driver's licences, the Officer did tell him at the roadside that he smelled alcohol on his breath and he did reply that he had one beer at 10 o'clock. He recalled all of these details but yet he claimed that he was unable to recall whether, when and who read him the roadside breath demand even though he pointedly said that he was told to blow in the roadside device.

[52] Mr. Walker stated PC Barnett was "very respectful" with him throughout her dealings with him at the roadside. Mr. Walker described PC Barnett as the "nice officer" but he could tell that she was new and that PC Doyle was "in command" at the roadside. He felt that PC Doyle did not respect or trust her especially considering he was yelling across her to speak with him while he was still in the cruiser. He described PC Barnett as "reasonable" but PC Doyle was "in charge" and she was doing what he told her to do. He advised that he could not recall which one of the Officers made the demand for him to provide a roadside sample because there was a lot of "screaming because PC Doyle had his hand on his gun". He said he had his hands extended towards PC Barnet and he was stating you can arrest me, I am not resisting arrest and here are my hands but PC Doyle kept on repetitively screaming "you gotta blow" at him. PC Doyle then called for back-up to come to the scene.

[53] When counsel asked Mr. Walker what he did for Officer Doyle to call for back up, he emphatically stated "I did nothing. I submitted. I offered my hands. I did nothing. I said, look, I'm not resisting arrest, right, here's my hands arrest me". Within seconds of that response, Mr. Walker contradicted himself. He said that the situation was really "heated up", he was going to "allow Doyle because he clearly, I felt he clearly was – basically pulled me over because I was black". He said that the commotion between him and Officer Doyle lasted maybe 5 or 10 minutes with Officer Doyle yelling at him and he was yelling back. Later on his evidence he advised that his "attitude was the result in how PC Doyle dealt with me, right. Doyle was not honest, right. Um, he basically was screaming at me, trying to intimidate me, like you know, blow in the machine, you know um sit down, like just his whole gesture, right." He claimed that "Officer Doyle is screaming, I'm screaming back at him. Barnett is somewhat quiet … like I said she was a very nice Officer".

[54] The Crown confronted Mr. Walker with the obvious fact that it made no sense that he would be screaming at an Officer but at the same time he was doing nothing and submitting because he was fearful that he would be shot. Mr. Walker added "he's screaming at me to blow, everyone is screaming, I'm like here's my hands, I'm not resisting. That's the screaming that was going on." Mr. Walker felt that PC Doyle initially tried to act like a "nice guy" and then he was trying to intimidate him. Once he was placed in the cruiser, he said that a "bunch of police cars" arrived on scene, as many as "three, four, five, six". Similarly, in his affidavit he said that he saw "5 or 6 police cars" arriving on scene for back up when he was being arrested. As will be noted below from the other defence evidence, there were only three additional Officers who arrived on scene. Mr. Walker's recollections of the number of Officers arriving and the tone of PC Doyle's voice as "screaming" were exaggerated and his initial claims of innocently surrendering to avoid being shot were incredulous at best based on his own self-reported behaviour.

[55] Mr. Walker was not able to provide a consistent account of either his conduct at the roadside or PC Doyle's. He went from claiming that he was passively submitting because he was fearful that he would be shot to stating he was engaged in a heated verbal exchange with the same Officer and he was yelling at him. He vacillated between a conspiracy theory, to an Officer terrifying him with his hand on a gun, to a battle of wills between him and the Officer because he felt that the Officer lied about smelling alcohol while driving and that he was being pulled over because he was black. During his evidence, he repeatedly insisted that Officer Doyle had his hand on his gun and that is why he refused to provide a sample because he was afraid of being shot. Despite the pivotal importance of this fact during his viva voce evidence, he never mentioned that Officer Doyle had his hand anywhere near his gun in his affidavit. He only complained that he noticed that the male Officer was "very aggressive" with him. When confronted with this glaring omission, he claimed that he deliberately left out this fact because he was concerned that the Officers may collude and tailor their evidence to dispute his allegations. The Crown aptly pointed out that he swore the affidavit shortly before the trial so that could not have been the reason. In addition, most of his other assertions were set out without any concern that the Officers would try to change their evidence to address those claims.

[56] Mr. Walker's varying accounts of his conduct were irreconcilable. It made no sense that he was both engaged in a heated verbal confrontation with a police officer but he also claimed that he "submitted" to him and did "nothing" because he was terrified that he would be shot. The real source of Mr. Walker's upset became apparent while he testified. He repeatedly stated that he did not feel that Officer Doyle was being honest about his reasons for pulling him over and he didn't trust him so he was not going to comply with his request to provide a roadside sample. Even though Officer Barnett was polite and respectful with him, he felt that "PC Barnett was being commanded" by PC Doyle. I find that the raised voices at the roadside had nothing to do with PC Doyle having his hand on his gun as Mr. Walker initially alleged during his evidence in chief. Rather, as he stated during cross-examination, "the Officer pulled me over telling me that I was smelling alcohol while driving. That set the credibility right here. Right? So when the officer was telling me he told Officer Barnett to go get the machine and he said, you're going to blow in this right now. Right? That set the tone. That's when all the screaming and yelling started. So obviously he was speaking over me, I was speaking over him." He repeated that they both spoke over each other which is consistent with both Officers' account of what actually transpired at the roadside.

[57] Mr. Walker testified that once he was arrested and placed in the cruiser, he "courteously said I want to speak to my lawyer". He said I want to speak to Otto Mok because "I don't trust this, you know, this is kind of strange. I want to speak to my lawyer". He asked for his phone and Officer Doyle offered to go and look for it but he told PC Doyle that he didn't want him in his vehicle, he wanted PC Barnett to go and look for it. He didn't trust PC Doyle and he was concerned that he was going to plant something in his vehicle.

[58] Mr. Walker was taken to the station and paraded before Sergeant Haight. He made a point of telling the Sergeant that PC Doyle was "lying" and that he drove up beside him. He claimed that Officer Doyle was "laughing" during the parading process and kept up his "rude demeanour" saying that "I'm drunk" and that he pulled me over because "I'm driving suspicious". None of this rude behaviour was captured during the recorded parade. In addition, it is notable that Mr. Walker was quite comfortable with complaining to the Sergeant at the station about the invalidity of the stop of his vehicle and calling Officer Doyle a liar but he did not mention at any point during the recorded portion that Officer Doyle had his hand on his gun. When the Crown pointed out this omission, Mr. Walker claimed that he was pretty sure that he told the Sergeant that he had his hand on his gun but his main point was that the Officer claimed he could smell alcohol while he was driving at 50 to 60 km an hour. Similarly, when he was summing up his evidence in chief, he stated that he was "very upset that this police officer that people trust to do the right thing, is – is – is lying and saying that he smelled alcohol from my breath outside. I just felt that this was another set-up, a clear indication of another set-up … so right then and there, my mindset is here we go again". The issue that was foremost in Mr. Walker's mind was that he did not believe that the Officer smelled alcohol on his breath so this was a "set up" not that an Officer had his hand on a gun or that he was stopped because he was black.

[59] Mr. Walker became argumentative during cross-examination when he was confronted with the apparent implausibilities of his claims that Officer Doyle had his hand on his gun yet he never complained to Sergeant Haight about this serious allegation. He provided shifting explanations of whether, when and to whom he complained that he was afraid for his life during his exchange with PC Doyle. He kept returning to his primary complaint that PC Doyle lied about smelling alcohol on his breath while they were in motion. The Crown did interrupt Mr. Walker while he was testifying but then he would talk over top of the Crown when his evidence was being contradicted and the Crown suggested that's exactly what he did at the roadside. Mr. Walker replied "if things are being said to me that's incorrect, I am very quick to correct it."

[60] Mr. Walker also complained that his handcuffs were uncomfortable behind his back but the Officers did not listen to him until he was at the station and "on camera". Once they were at the station, his handcuffed were repositioned to the front of his body to accommodate his request. He advised that while they were at the station, PC Doyle came in his face and PC Doyle was telling him to move back. Mr. Walker advised that he wanted to speak to his lawyer but PC Doyle explained that they had already tried to reach Mr. Mok and they couldn't reach him so they could try again in the morning. When he realized that he may be a "resident" at the station that night, he switched his requests and asked for duty counsel. He advised that it was only when he pointed to the camera and said that this is recording that PC Doyle said that he could speak with counsel. I accept that Mr. Walker had a good reason for changing his mind and opting to speak with counsel. I also accept that he was aware that the camera was recording his interaction with PC Doyle so he altered his demeanour but PC Doyle still engaged him in an unprofessional exchange.

[61] Mr. Walker was both an incredible witness and an unreliable historian. There were many internal inconsistencies in his evidence and external inconsistencies with the affidavit that he swore in support of the Charter application. I do not accept nor does his evidence raise a doubt in my mind that PC Doyle was shouting that he could smell alcohol on Mr. Walker's breath while they were driving beside each other. I do not accept nor does it raise a doubt that PC Doyle ever had his hand on his gun while interacting with him, rather, I find that Mr. Walker made that up during the trial to justify his histrionic conduct. I do accept that Mr. Walker was initially calm and cooperative but once PC Doyle told him that he could smell alcohol on his breath at the roadside and asked him to step out of his vehicle the situation quickly escalated because Mr. Walker believed that PC Doyle was lying and that he was being set up by PC Doyle. I accept that PC Doyle made some poor choices and that both he and Mr. Walker were raising their voices at each other but I do not accept that PC Doyle was screaming at any point. PC Barnett explained that while they were trying to read the demand to Mr. Walker, he would consistently talk over them. PC Doyle unsuccessfully tried an aggressive approach to gain compliance with a roadside breath demand and Mr. Walker adamantly refused to cooperate while engaging in melodramatic and unwarranted behaviour of stating he was "not resisting" and demanding his lawyer.

[62] While Mr. Walker asserted that it was the police who had preconceived notions about him because of the colour of skin, it became apparent while he was testifying that it was his own preconceived notions that the police were corrupt and untrustworthy that influenced his interactions with the police that night. It was evident that once the Officers began to direct his movements, he became argumentative and unreasonable. He clearly stated that he had no intention of cooperating with them and providing a breath sample because he did not trust PC Doyle. I do not accept nor does it raise a reasonable doubt that he did not understand or appreciate the demand that was being made because of the chaotic environment. He stated numerous times during his evidence that he knew exactly what the Officers wanted him to do and he made an informed choice to refuse to provide a sample. He wanted to speak to his lawyer because he didn't trust the police.

Additional Defence Evidence

[63] Mr. Mok called Sergeant Haight as a witness and two of the responding Officers. He called Sergeant Haight to inquire about the partnership between PC Doyle and Barnett and his client's conduct during the parading process.

[64] Sergeant Haight confirmed that Officers Barnett and Doyle were a good team and that he never heard of any conflicts between them or complaints about them. He also advised the Court that during his interactions with Mr. Walker at the station, he noted a "moderate odour of alcohol on his breath" both during the parade and later on when he released him. He confirmed that Mr. Walker's eyes were blood shot. Sergeant Haight agreed that Mr. Walker was "quite talkative" and he was disagreeing with the order of events that were related to him by PC Doyle. During cross-examination, he was asked if Mr. Walker ever complained that he was fearful that he was going to be shot and the Sergeant responded "absolutely not". He was asked if Mr. Walker ever complained that PC Doyle yelled at him or had his hand on his gun during their interaction and he replied "no". The Sergeant was asked if he would have made a note of any such allegations and he replied "absolutely".

[65] Officer Graff was one of the officers who responded to PC Doyle's request for back up that night. He was called at 2:46 a.m. and he was on scene within a minute at 2:47 a.m. Prior to arriving on scene, he did not hear any yelling or screaming over the radio. When he arrived and exited his cruiser, he saw Officers Doyle and Barnett speaking with a large black male. As he was approaching, he heard Officer Doyle reading Mr. Walker the standard roadside screening demand. He stood behind Mr. Walker for Officer safety reasons. He heard Mr. Walker saying that he would not do the roadside and he wanted to speak to his lawyer. He assisted with putting Mr. Walker's right arm behind his back to effect the arrest and advised that he was not resisting his actions.

[66] Officer Graff confirmed that he could detect an obvious odour of alcohol coming from Mr. Walker's breath while he interacted with him. He did not see any Officer on scene with their hands on their guns or threatening Mr. Walker. He explained that it was normal to call for back up if a person is "agitated" with the Officers on scene for Officer safety reasons. He confirmed that Mr. Walker appeared agitated when he arrived on scene.

[67] Finally, Officer Mackinnon was called as a witness. He responded to a general broadcast for other units to attend a scene. When he arrived, he observed a marked cruiser and Officers Doyle and Barnett. He only heard bits and pieces of the conversation between the Officers and Mr. Walker and the tone of the conversation was "slightly argumentative". His involvement was only cursory and he did not make detailed notes. Neither he nor any of the other Officers on scene engaged in a debriefing after the arrest of Mr. Walker. He was also asked if he knew Officers Doyle and Barnett and whether one was more "dominant" and the other was more "passive". He said that he didn't know.

[68] All these defence witnesses assisted the Crown's case. PC Graff confirmed that when he arrived he heard PC Doyle reading Mr. Walker the roadside breath demand. Mr. Walker was agitated and refusing to provide a sample. PC MacKinnon confirmed that the tone of the exchange was argumentative, not yelling or screaming as suggested by Counsel. PC Graff assisted with his arrest and confirmed what PC Barnett said that he was not resisting arrest. Both Sergeant Haight and PC Graff confirmed that they smelled alcohol coming from Mr. Walker's breath. Four different Officers in total smelled alcohol on Mr. Walker's breath and Sgt. Haight noted that it persisted for some time after he was at the station. Finally, the Sergeant confirmed that Mr. Walker never made any complaints about fearing for his life or that PC Doyle had his hand on his gun while he was in his presence.

C. Legal Analysis

i. Did the Officers breach Mr. Walker's rights as protected by sections 7 and 9 of the Charter because the stop and subsequent conduct of the police was racially motivated?

[69] Mr. Walker is alleging that the police capriciously abused their authority to stop his vehicle on the night in question and he was illegitimately targeted because he is a black man who was driving a BMW late at night in Durham region. This is a serious allegation of police misconduct. When there is evidence of racial profiling or racially motivated actions by police, our Courts must scrupulously guard against this insidious type of abuse of police powers because of the profoundly negative impact that it can have on our communities, the individuals involved and on the perception of the administration of justice. A Court must be sensitive to the importance of remedying a history of discrimination by protecting against this type of abuse of power. As Justices L'Heureux-Dube and McLachlin stated in R. v. S.(R.D.), 118 C.C.C. (3d) 353 at paragraph 46:

The reasonable person must be taken to be aware of the history of discrimination faced by disadvantaged groups in Canadian society protected by the Charter's equality provisions. These are matters of which judicial notice may be taken. In Parks, [1993] O.J. No. 2157, supra, at page 342, Doherty J.A., did just this, stating: Racism, and in particular anti-black racism, is a part of our community's psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes.

[70] In R. v. Sitladeen, 2017 ONCJ 805, [2017] O.J. No. 6125 (Ont.C.J.), Justice Band recently summarized the unique challenges with addressing this issue:

Racial profiling is a wrong that exists in our criminal justice system. Because the attitudes underlying it often exist only subconsciously, it is hard to prove. To do so requires that inferences be drawn from the existing circumstantial evidence. When alleged, it is a controversial and sensitive issue for the persons involved. The cynic and the skeptic will easily come to (opposite) judgments. I am not permitted to take such an approach. My task is more difficult. The law does not contain any presumptions in this area. I must look at the evidence objectively and dispassionately.

In many such cases, reasonable people aware of all the evidence can arrive at different conclusions. This means that valid racial profiling claims can be dismissed legitimately, leaving ruses unexposed, the problem rooted in place and the accused and others demoralized. In other cases, a positive finding may be unfair to an officer…

[71] While the Court may draw inferences from existing circumstantial evidence, the onus is on the defence to present some basis in the evidence to find on a balance of probabilities that the true motivation for the stop was the colour of Mr. Walker's skin. One of the most seminal decisions to address these issues is the oft cited decision of R. v. Brown, [2003] O.J. No. 1251. The Ontario Court of Appeal explained that:

11 Accordingly, to succeed on the application before the trial judge, the respondent had to prove that it was more probable than not that there was no articulable cause for the stop, specifically, on the evidence in this case, that the real reason for the stop was the fact that he was black.

And further:

44 A racial profiling claim could rarely be proven by direct evidence. This would involve an admission by a police officer that he or she was influenced by racial stereotypes in the exercise of his or her discretion to stop a motorist. Accordingly, if racial profiling is to be proven it must be done by inference drawn from circumstantial evidence.

45 The respondent submits that where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer that the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling. I accept that this is a way in which racial profiling could be proven. I do not think that it sets the hurdle either too low (which could be unfair to honest police officers performing their duties in a professional and unbiased manner) or too high (which would make it virtually impossible for victims of racial profiling to receive the protection of their rights under section 9 of the Charter).

[72] The context of the interaction between the police and the detainee is an essential part of the circumstances relating to a detention. This is not a case where a person was randomly stopped while walking on the street. Rather, this Court is concerned with the stopping of a motorist which is a highly regulated and licenced activity with significant associated police powers to ensure the privilege of driving is not abused. Police are unquestionably empowered to check the sobriety of drivers in order to protect the safety of the public and prevent the loss of life, injury and damage to property from individuals who abuse this privilege, especially, people who choose to drink and drive. It is incontrovertible that police officers have the authority to randomly stop motor vehicles to check on the sobriety of the driver whether that is in organized stops or random roving stops of vehicles regardless of the driver's race or gender. The Ontario Court of Appeal recently summarized the law on this issue in R. v. Gonzales, 2017 ONCA 543, [2017] O.J. No. 3437 at paras. 55 to 60 (Ont.C.A.):

Section 216(1) of the HTA authorizes a police officer to stop vehicles for highway regulation and safety purposes, even where the stops are random: Brown v. Durham, at para. 21; R. v. Ladouceur, [1990] 1 S.C.R. 1257, at p. 1288; R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 492. This detention is circumscribed by its purpose. It is limited to the roadside. It must be brief, unless other grounds are established that permit a further detention. An officer may require a driver to produce the documents drivers are legally required to have with them. To check those documents against information contained in databases accessible through the onboard computer terminal in police vehicles, an officer is entitled to detain the vehicle and its occupants while doing so: Brown v. Durham, at para. 24.

In addition to requiring production of various documents associated with the operation of a motor vehicle, a police officer, acting under the authority of s. 216(1) of the HTA, may also make a visual examination of the interior of the vehicle to ensure their own safety during the detention: Brown v. Durham, at para. 24; Ladouceur, at pp. 1286-1287; R. v. Mellenthin, [1992] 3 S.C.R. 615, at pp. 623-24. However, s. 216(1) does not authorize more intrusive examinations of the interior of the vehicle or inquiries of any occupant directed at subjects not relevant to highway safety concerns: Brown v. Durham, at para. 24; Mellenthin, at p. 623-24.

A trial judge's finding that highway regulation or safety concerns was a purpose that animated a traffic stop is a finding of fact. As a consequence, the finding is subject to deference and cannot be set aside by this court unless it is unreasonable or based upon a material misapprehension of the evidence adduced at trial: Brown v. Durham, at para. 27.

Sometimes, a traffic stop may have more than one purpose. However, the mere existence of another purpose motivating the stop, beyond highway regulation and safety concerns, does not render the stop unlawful. But the additional purpose must itself not be improper, or proper but pursued through improper means, and must not entail an infringement on the liberty or security of any detained person beyond that contemplated by the purpose that underpins s. 216(1): Brown v. Durham, at paras. 31, 34, 37-39 and 45.

Stops made under s. 216(1) will not result in an arbitrary detention provided the decision to stop is made in accordance with some standard or standards which promote the legislative purpose underlying the statutory authorization for the stop, that is to say, road safety concerns: Brown v. Durham, at paras. 51-54.

[73] The powers of the police to stop vehicles are not limitless. When considering the constitutionality of a random stop to check on a driver's sobriety, the justification for the stop and subsequent investigation will depend on the Officers' subjective motivation. Officers must be able to provide an objectively discernible articulable cause for the stop of the vehicle.

[74] The Officers in this case provided evidence that they were on patrol at closing time in the area of licenced establishments that had a history of problems with drunk drivers. They were alerted to Mr. Walker's vehicle because of a prolonged stop and slow driving. They articulated that they were concerned with checking on the sobriety of the driver. Officers Barnett and Doyle advised that the primary reason for the stop was to check on Mr. Walker's sobriety. After they ran his plates and discovered the restraining order, they also had a secondary purpose of checking to see if he was complying with his conditions. I accept that the Officers did not know what race Mr. Walker was before they ran his plate or before they pulled up beside him. I also accept that they pulled up beside him to check and see who else was in the vehicle. There is absolutely no evidence from which this Court can infer that the Officers were lying about why they stopped Mr. Walker. Quite the contrary, Mr. Walker confirmed salient aspects of their reasons for the stop.

[75] Even though the Officers had more than one purpose for investigating Mr. Walker that did not invalidate the stop to check his sobriety. The Ontario Court of Appeal in Brown v. the Municipality of Durham, [1998] O.J. No. 5274 clearly stated that a secondary purpose for a stop does not necessarily invalidate the Officer's actions:

I agree with this conclusion as long as the other purposes motivating the stops are not themselves improper. For example, the police are entitled on a s. 216(1) stop to require drivers to produce their licences. That requirement is consistent with the highway safety concerns which underlie the power granted by the section. In addition to ensuring that the driver is properly licensed, the police may wish to identify the driver for other purposes. It may be, as in this case, that the police are interested in knowing the identity of all those who are connected with what they believe to be organized criminal activity. The gathering of police intelligence is well within the ongoing police duty to investigate criminal activity. As long as the additional police purpose is not improper and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating s. 216(1) of the H.T.A., I see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stops and detention. As the trial judge pointed out, known criminals should not be more immune from s. 216(1) stops than law abiding citizens who are not known to the police.

[76] While the Ontario Court of Appeal found that Officers may have secondary legitimate purposes, if the reasons for the stop include improper or illegitimate reasons, an otherwise constitutionally protected stop will be invalidated. The Court explained that:

While I can find no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further some other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additional improper purpose. Highway safety concerns are important, but they should not provide the police with a means to pursue objects which are themselves an abuse of the police power or are otherwise improper. For example, it would be unacceptable to allow a police officer who has valid highway safety concerns to give effect to those concerns by stopping only vehicles driven by persons of colour. Section 216(1) of the H.T.A. does not, in my view, authorize discriminatory stops even where there is a highway safety purpose behind those stops.

When I refer to improper police purposes, I include purposes which are illegal, purposes which involve the infringement of a person's constitutional rights and purposes which have nothing to do with the execution of a police officer's public duty. Officers who stop persons intending to conduct unauthorized searches, or who select persons to be stopped based on their sex or colour, or who stop someone to vent their personal animosity toward that person, all act for an improper purpose. They cannot rely on s. 216(1) of the H.T.A. even if they also have highway safety concerns when making the stop.

The police purposes, when effecting a stop and detention, must be ascertained from the evidence of the officers involved, the persons detained, and other evidence concerning the conduct of the stops. If the police routinely searched every vehicle stopped it would be easy to infer that one of the purposes behind the stops was to facilitate the conduct of unreasonable searches. Similarly, if only people of colour were stopped at a checkpoint, the inference could be made that the stop was discriminatory and, therefore, improper.

Stops which are selective in the sense that a certain person or group is targeted must be carefully scrutinized. Depending on the basis on which the person or group is selected, the stop may be improper and not authorized by s. 216(1) of the H.T.A. The criteria used to establish the "target" groups may be germane to highway safety concerns. For example, the police may stop only trucks because of heightened concerns about the mechanical fitness of trucks. Where the criteria used are rationally connected to highway safety concerns, they promote the effective use of the power granted by s. 216(1) of the H.T.A. while, at the same time, limiting the state interference with motorists' freedom. The criteria may be arbitrary but neutral. For example, the police may elect to stop every third vehicle. Section 216(1) of the H.T.A. authorizes arbitrary stops and arbitrariness alone will not take the stop outside the purview of s. 216(1): R. v. Ladouceur, supra. Finally, the criteria used may reflect an improper purpose for the stop, as when the decision to stop is based on the sex or colour of the driver. As indicated above, I would hold that such stops were beyond the statutory power granted under s. 216(1) of the H.T.A.

[77] In R. v. Brown, supra, the Court of Appeal set out the some of the facts upon which it relied to infer there was evidence to support a finding of racial profiling:

46 In the present case, in addition to submitting that the facts (a young black person wearing a baseball hat and jogging clothes driving an expensive new car) fit the phenomenon of racial profiling, the respondent refers to several features of the evidence which support the argument that the officer was not being truthful about the real reasons for the stop. I have set forth some of it in the outline of the evidence, above, and will refer to the evidence again in my consideration of the grounds of appeal relating to the application of the test for reasonable apprehension of bias. Briefly, the record includes: the respondent's evidence that the officer looked into his car before following and stopping him; evidence of the second set of notes prepared by the officer to firm up his reasons justifying the stop after he became aware the person under arrest was a well-known sports figure likely to undertake a defence of the charge against him; a licence check that the officer made before he stopped the respondent; and discrepancies between the times recorded in his notebook and those which he gave to the breathalyser technician.

[78] Mr. Walker is a black man who was driving a BMW in Durham Region late at night but that does not inexorably lead to the conclusion that is why he was stopped by the police. If that were the case, every stop that involved a person of colour in a nice vehicle would be constitutionally suspect regardless of the existence of ascertainable factors that justify or explain the detention. There is undoubtedly a long-standing history of racism that must be redressed and carefully guarded against by our Court. There are a number of cases where Courts have found abuses of police powers that have perpetuated this discrimination and mistreatment. This is not one of those cases. Quite the contrary, these Officers provided clear and objectively reasonable facts to support why they pulled over this vehicle. I accept that neither Officer realized that Mr. Walker was black until after they decided to investigate his sobriety which they were lawfully entitled to do in these circumstances. Cst. Barnett presented as genuinely insulted by the suggestion that Mr. Walker's race had anything to do with her decision to make the roadside breath demand. In stark contrast, Mr. Walker presented as a witness who was prepared to go to the extreme of falsely accusing PC Doyle of having his hand on his gun during their exchange at the roadside to try and justify his irrational behaviour.

[79] During his submissions, counsel pointed to the fact that the police were targeting the Island Mix, a restaurant that serves Caribbean food, as some evidence to support the allegation of racial profiling. First, the Officers explained that there were two licenced establishments in this area not just the Island Mix. Secondly, it is a restaurant and lounge. At 2:30 in the morning, most patrons are not still there for the food. Thirdly, the police had recent issues with patrons from the Island Mix drinking and driving at closing time. Mr. Walker acknowledged that this was a high crime area. Finally, it would be ignorant for this Court to assume that a patron leaving the establishment is black because it serves Caribbean food. All sorts of people enjoy Caribbean food and music. If there was any evidence that the police were only targeting establishments that served ethic food or that these two officers had a history of targeting black patrons or specifically targeted a black patron or they were not able to articulate a reason why they were in this area or why they selected this driver, that would be a different set of circumstances. However, the fact that a patron has left a licenced establishment that also serves "ethnic" food should not hinder or prevent police from performing their duties and checking on the sobriety of patrons who are driving away just after closing time.

[80] I do not accept that there is any evidence from which this Court can infer that Mr. Walker was pulled over by Officers Barnett and Doyle because he was black. Mr. Walker was treated respectfully and kindly by Officer Barnett. She performed her duties professionally and appropriately. While Officer Doyle was verbally aggressive and raised his voice with him that was because he was being unreasonable and melodramatic. Cst. Doyle's conduct at the roadside and later on at the station was responsive to Mr. Walker's attitude not his race.

[81] The Officers articulated a constellation of objective factors that explained why they stopped Mr. Walker's vehicle to check on his sobriety: the time of the morning was closing time, he was driving close to licenced establishments, police have had issues with drinking and driving in this area, the driver stopped for a unusual period of time at a stop sign for no apparent reason and then proceeded to drive slower than the speed limit. They made an informed choice to check the driver's sobriety and they also had a secondary purpose of checking whether he was the registered owner and if he was complying with the conditions of his bail. As a result, I find that Mr. Walker's rights as protected by sections 7 and 9 of the Charter were not breached.

ii. Did the Officers breach Mr. Walker's rights as protected by section 8 of the Charter because they did not have sufficient grounds to make a roadside breath sample demand?

[82] Section 8 of the Charter protects individuals from unreasonable searches and seizures. Since Mr. Walker refused to provide a breath sample and his subsequent search incident to arrest did not yield any results, nothing was seized from him by the police. Accordingly, section 8 is inapplicable to these facts. The Crown, however, must prove beyond a reasonable doubt all of the essential elements of the offence. One of the prerequisites to establishing Mr. Walker's guilt is establishing that the demand was lawful.

iii. Was the demand for a roadside breath sample a lawful demand in these circumstances?

[83] Mr. Walker is charged with is failure to comply with an approved screening device demand. An essential element of this offence is that the demand to provide the sample was valid. As a result, the Crown has to prove beyond a reasonable doubt that the demand for Mr. Walker to provide a roadside breath sample was lawful otherwise there was no obligation for Mr. Walker to comply with the demand.

[84] In order to prove this essential element, the Crown must establish that the Officers had reasonable grounds to suspect that Mr. Walker had alcohol in his body and that he operated or was in care or control of a motor vehicle in the preceding three hours prior to make the demand for a roadside breath sample into the approved screening device. Reasonable suspicion is a low threshold of possibility as opposed to probability but it must still be grounded in objectively discernible facts. The suspicion must also be assessed in the totality of the circumstances. Please see; R. v. Chehil, 2013 SCC 49, [2013] S.C.J. No. 49 and R. v. MacKenzie, 2013 SCC 50, [2013] S.C.J. No. 50 (S.C.C.)

[85] In terms of the circumstances in this case, Mr. Walker has steadfastly maintained that PC Doyle lied about smelling alcohol on his breath. I note, however, that four different Officers credibly related to the Court, including Officer Barnett who actually formed the reasonable suspicion, that they smelled alcohol on his breath. Officers Barnett and Doyle separated Mr. Walker from his vehicle to ensure that the smell of alcohol was coming from Mr. Walker's breath as opposed to the passenger or the vehicle. Sgt. Haight testified that the smell lasted for hours. I accept that PC Barnett and PC Doyle smelled the odour of an alcoholic beverage on Mr. Walker's breath. The smell of alcohol on a person's breath is an important if not determinative factor in this case. In R. v. Goudreault, [2013] O.J. No. 953 (Ont.S.C.J.), the Court found that:

11 In my view reasonable suspicion requires only that the belief be one of a number of possible conclusions based on the supporting facts. The amount of alcohol, how it was consumed or the degree of smell on the individual's breath are not required in developing a reasonable suspicion. (Ree R. v. Chipchar 2009 ABQB 562, [2009] A.J. No. 1058)

12 In this case while it is true the alcohol was only detected when the respondent was in the cruiser, that was the first time the respondent was alone with the officer in a confined space. Prior to that he was in a vehicle with a number of other individuals with the window open. When the officer detected the odour in the cruiser that was sufficient both subjectively and objectively to establish reasonable suspicion. The matter was well put by the Ontario Court of Appeal in R. v. Lindsay, (1999), 134 C.C.C. (3d) 159 where at paragraph two the court stated:

The trial judge accepted the officer's evidence that she smelled alcohol on the respondent's breath. This observation led her to suspect that the respondent had alcohol in his body and she made the ALERT demand accordingly. An officer may make an ALERT demand where she reasonably suspects that a person who is operating a motor vehicle has alcohol in his or her body (s. 254(2) of the Criminal Code). There need only be a reasonable suspicion and that reasonable suspicion need only relate to the existence of alcohol in the body. The officer does not have to believe that the accused has committed any crime. We see no need to put a gloss on the words of s. 254(2). The fact that there may be an explanation for the smell of alcohol does not take away from the fact that there exists a reasonable suspicion within the meaning of the section

[86] The Officers had even more information in addition to the smell of alcohol. This fact must be considered in the context of the evidence as a whole that Mr. Walker was in the area of licenced establishments at 2:43 which is closing time. The Officers relied on the smell of alcohol, the area and the time of day, his bloodshot eyes and his conduct to form the suspicion that he had alcohol in his system while driving.

[87] Finally, there is the issue of Mr. Walker's claim that he only consumed one beer four hours earlier and whether his reported lack of alcohol consumption for a significant period of time should vitiate what would otherwise be a reasonable suspicion. Mr. Walker's denial of drinking either a substantial amount or for a significant period of time should not be considered in isolation of the other factors that contributed to the Officers' reasonable suspicion. Moreover, the Officers were entitled to disbelieve him. As the Ontario Court of Appeal explained in R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 paras. 66 to 68:

In making his or her determination, the officer is not required to accept every explanation or statement provided by the suspect: Shepherd at para. 23. That the officer turned out to be under a misapprehension is not determinative: Censoni at para. 35. The important fact is not whether the officer's belief was accurate. It is whether it was reasonable at the time of the arrest. That the conclusion was drawn from hearsay, incomplete sources, or contained assumptions will not result in its rejection based on facts that emerge later. What must be assessed are the facts as understood by the peace officer when the belief was formed: R. v. Musurichan, [1990] A.J. No. 418 (C.A.).

An officer is required to assess the situation and competently conduct the investigation he or she feels appropriate to determine if reasonable and probable grounds exist. In some cases, that might include interviewing witnesses and/or the suspect if necessary: Golub at para. 19. In others, the officer's observations and information known at the time may readily establish the requisite grounds.

Here, the officer could have asked the respondent if he had consumed alcohol. What weight the officer attached to the answer would have been for the officer to determine. If he said he had one beer or nothing to drink, the officer was not required to accept what he was told and terminate the investigation.

[88] Considering the constellation of objectively discernable facts and the Officers' subjective beliefs, I find that there was more than sufficient evidence for the Officers to form the requisite reasonable suspicion. As a result, the demand for the roadside breath sample was lawful.

iv. Has Mr. Walker established that he had a reasonable excuse for not complying with the Officers' demands to provide a roadside breath sample?

[89] Mr. Walker's counsel argued that, in the midst of the chaotic environment at the roadside, he was unable to understand or appreciate the nature or consequences of the demand that was made to him. I do not accept this submission at all. Mr. Walker conceded that PC Barnett was polite and respectful and she testified that she read the demand to Mr. Walker directly and she explained it to him at least three times. PC Doyle more forcefully explained the demand. During Mr. Walker's evidence, he expressed multiple times that he knew what he was being asked to do but he refused to cooperate for various reasons including the fact that he felt PC Barnett was being commanded by PC Doyle, he did not trust PC Doyle because he was lying about the reason for the demand and because he believed that his life was in jeopardy. I find that Mr. Walker fully understood the nature of the demand and the consequences for failing to comply and he refused to provide a sample.

[90] The Court must still consider whether Mr. Walker has established a reasonable excuse for his refusal to comply with a breath demand. The Ontario Superior Court recently stated in a summary conviction appeal in R. v. Bruno, [2017] O.J. No. 5885 that the onus is on the defence to prove a reasonable excuse on the balance of probabilities:

The flaw in the acquittal is how the judge treated the issue of "reasonable excuse" under s. 254(5) of the Criminal Code.

This test is well-established. Where "reasonable excuse" is raised in a case, the onus is on the accused to prove this defence on a balance of probabilities: See R. v. Goleski, [2015] S.C.J. No. 6 affirming 2014 BCCA 80, [2014] B.C.J. No. 347 (C.A.); R. v. Moser, [1992] O.J. No. 602 (C.A.) at para. 15, 18; R. v. Porter, 2012 ONSC 3504, [2012] O.J. No. 2841 (S.C.A.) at para. 38.

Looking at the reasons as a whole, the trial judge reversed the onus on the Crown to disprove "reasonable excuse" beyond a reasonable doubt. To explain, I will review the reasons in a summary way before getting to the critical passages.

The trial judge set out what the main issue was at the beginning of his decision. He framed it as it being whether the Crown had proven beyond a reasonable doubt Mr. Bruno's intent to commit the offence or whether reasonable doubt was raised by any physical incapacity on his part to provide a suitable sample. This is obviously an issue of mens rea. While there is some disagreement in the authorities as to what the actual intent is that needs to be proven, there is no question it remains an essential element of the offence and the onus is on the Crown to prove this beyond a reasonable doubt. The appellant submits that proof of intention was not a real issue here because at the hospital, the accused explicitly refused to provide a sample. She argues that this is not a case where the accused tried but was unable to provide a sample. I will leave this aside for the moment as it is not the source of the fundamental error made later.

The judge properly does articulate the test when it comes to proof of intent. He also refers to the principle in W.D., [1991] 1 S.C.R. 742 quite rightly. He gets the test right as he outlines the position of the parties. However, the language of "reasonable excuse" starts being used as he canvasses these submissions without the proper articulation of the onus and standard of proof.

The decision then gets to "Analysis". As the judge goes through the types of scenarios, refusals commonly arise in and as he goes through some principles of law, the trial judge gets the test correct when he states that a person can exonerate himself by raising on a balance of probabilities the defence of reasonable excuse. Immediately following, he gets it wrong when he states that "once raised by the evidence the Crown must prove the absence of "reasonable excuse." It is impossible to reconcile these two sentences in the decision. If this was all there was to the appellant's argument, I would be inclined to follow the respondent's submissions on this. However, there is more.

The judge then acknowledges that the actus reus was not in dispute. He points out that mens rea was the pivotal issue. However, in acknowledging that, he does not alert to the additional issue of reasonable excuse raised in the case.

It is in these passages, the judge makes the mistake that requires reversal of the verdict. He again correctly states the onus and standard of proof being on the defendant. But he then explains what he means by that. He states it is only an evidential burden. That once a factual foundation for it is raised, then the burden shifts back to the Crown to disprove reasonable excuse beyond a reasonable doubt. This is wrong. This is not just innocent misspoken phraseology. The judge refers to reasonable excuse as being like all other defences (i.e., self-defense). This falls into error.

[91] Mr. Walker unequivocally refused to provide a breath sample throughout his interactions with both Officers. The onus is on Mr. Walker to establish on a balance of probabilities that he had a reasonable excuse for refusing to provide a breath sample. Although this argument was not made during submissions, I have considered whether Mr. Walker's seemingly genuine distrust of the police could be a reasonable excuse for refusing to comply with a roadside breath demand. There is case law that there can be a reasonable excuse of a fear of prejudice which is based on the decision of R. v. Miller (1972), 10 C.C.C. (2d) 467 (Ont. H.C.J.). In that case, the accused refused to provide a breath sample "because he did not trust [the breathalyzer technician] to be fair with him as the result of a previous matter between them". Justice Wright allowed the Crown's appeal from acquittal stating:

In the present case, the distrust which the accused had of the officer demanding the breath sample and the sincerity of his belief in the reason for such distrust alone could not discharge the onus upon him. The learned Provincial Judge finds that the reason was not a frivolous one, but that is not the same as finding that it was a reasonable excuse for not complying with the demand.

In the criminal process in Canada, those accused (except in the matter of choosing jurors) and suspects have not the right to choose their accusers, the police assigned to their cases, their jailers, their prosecutors or their Judges. If the selection of these is a matter of real injustice, then their rights to fair treatment will be protected. But their fancied apprehensions and preferences in these matters go for nothing.

In the case before me, if there were credible evidence that the police officer had shown malice to the person whose breath was to be tested or if he had threatened some unfairness or illegality that would clearly support a reasonable excuse for failing or refusing to comply with the demand. But it is the Court's judgment that passes on the reasonable quality of the excuse and not that of the person who fails or refuses. He does that at his peril unprotected by the sincerity of his belief. [Emphasis added].

[92] More recently in R. v. Vieira, [2016] O.J. No. 5247 at paras. 10 to 12 (Ont.S.C.J.), the Court noted:

…the Appellant submits that the conduct of the police and the Appellant's fear of prejudice, leading to a concern that he would not be treated fairly, constituted a reasonable excuse to refuse the breath demand. However, "it is the Court's judgment that passes on the reasonable quality of the excuse and not that of the person who fails or refuses. He does that at his peril unprotected by the sincerity of his beliefs": R. v. Miller, 10 C.C.C. (2d) 467, 21 C.R.N.S. 211, at para. 19.

Again, this is a factual determination of the trial judge that is entitled to deference. The trial judge was clear that he did not accept the Appellant's explanation for his refusal: R. v. Vieira (29 May 2015), Toronto, 15/AP 10000054 (Ont. Ct. J.), at pp. 15-16 ["Vieira"]:

I do not accept Mr. Vieira's testimony that the information provided to him by P.C. Long about the nature of his slurring or his stumbling affected his decision to refuse to provide a sample of his breath. It is clear to me, based upon the whole of the evidence, that the reason Mr. Vieira did not provide a sample is because he believed he did nothing wrong. The video taken in the breathalyzer room convinces me of this.

The trial judge also found that there was no unfairness or illegality in Officer Long's conduct, real or threatened, so that "even if this contributed to Mr. Vieira's distrust of the police, it was not a reasonable distrust": Vieira at p. 16. As such, the fact that Officer Long was in the room with the breath technician was of no import.

The trial judge made a factual finding that the Appellant's explanation and excuse for refusing to provide a sample was not reasonable on a subjective or objective basis. He did not err in finding that the Appellant did not have a reasonable excuse to refuse.

[93] There can be no doubt that Mr. Walker believes that he has been treated unjustly by the police in the past and he believes that the police are being influenced by his ex-spouse's family. The sincerity of his beliefs, however, are not the deciding factor. Mr. Walker's fear of prejudice must be objectively reasonable. There is absolutely no evidence from which this Court can infer that these two Officers were part of some broader conspiracy against Mr. Walker. Moreover, they had clearly and credibly articulated grounds for stopping his vehicle and the subsequent demand for a roadside breath sample. Mr. Walker's conduct and belief that he was being "set-up" by PC Doyle were objectively unreasonable and irrational. He made an informed choice to refuse to provide a breath sample because he disagreed with the grounds for the demand and he did so at his own peril. He has not established a reasonable excuse for his failure to provide a breath sample.

D. Conclusion

[94] Mr. Walker's fundamental distrust of the police and the criminal justice system appears to be based, at least in part, on previous negative experiences. In this case, the stopping of his vehicle and the demand for a roadside sample were not based on either the colour of his skin or some larger police conspiracy. Rather, it was Mr. Walker's own conduct at the roadside that lead to him being charged with this offence. It is unfortunate that he did not appreciate that the Officers were giving him every opportunity to avoid criminal charges by providing a roadside breath sample. Mr. Walker made an informed but ill-advised choice not to provide a breath sample and did so to his own detriment.

[95] The Crown has proven both the mental and physical elements of the offence beyond a reasonable doubt and Mr. Walker is convicted of failing to provide a roadside breath sample.

Released: January 9th, 2018

Signed: Justice Green