Court File and Parties
Court File No.: Halton 17-0173 and 17-1896
Date: May 4, 2018
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Scott Glenn Granlund
Before: Justice Lesley M. Baldwin
Trial Proceedings Heard on: January 31, 2018
Reasons for Judgment Released on: May 4, 2018
Counsel:
- A. Khoorshed, for the Crown
- K. Anders, for the Defendant
Judgment
BALDWIN J.:
Charges
[1] The Defendant pled not guilty to 2 counts on separate Informations as follows:
(1) That on or about the 6th day of June, 2017, at the Town of Oakville he did without reasonable excuse, fail to comply with a demand made to him by a police officer under s. 254(2) of the Criminal Code to provide forthwith a sample of his breath as in the opinion of the officer was necessary to enable a proper analysis of his breath to be made by means of an approved screening device, contrary to s. 254(5) of the Criminal Code;
(2) That on or about the 6th day of June, 2017 at the Town of Oakville, he did, while bound by a Probation Order made by the Ontario Court of Justice (Provincial Division) in Milton on December 20th, 2016, wilfully fail to comply with a condition of said order, to wit: you will not operate or be in the driver's seat of any motor vehicle if you have any alcohol in your body. When in a motor vehicle, upon request of a police officer, you will provide such samples of your breath as in the opinion of the police officer are necessary to allow a proper analysis of your breath by means of an approved screening device, contrary to section 75 of the Provincial Offences Act.
[2] The Crown proceeded summarily on the Criminal Code charge.
[3] The essence of the Defence position at the end of the trial was that there was no evidence of mens rea as there was no unequivocal refusal. Reasonable excuse was not the issue. Further, there was no final refusal and the Defendant should be acquitted on both counts. (Transcript p. 73)
[4] The Crown position was that the offence is complete once the Defendant refused to provide a sample at the roadside. It is not a defence that the accused had the mistaken idea that he could speak to counsel at the station and provide a breath sample there.
Evidence
Summary of the Testimony of Officer Eric Huer
[5] The Crown's evidence was provided by Halton Regional Police Officer Eric Huer.
[6] The Defence called Halton Regional Police Officer Rebecca Rowe and the Defendant Scott Granlund.
[7] He has been an Officer with the HRPS for 15 years.
[8] On June 6th, 2017, he was working in Oakville when he received a dispatch call at 6:58 p.m. to attend the Fortinos Plaza located on Dundas Street and Neyagawa Boulevard for a known suspended driver who was possibly impaired.
[9] He arrived at the Plaza at 7:01 p.m. and located the motor vehicle described in the call with the same plate number. The vehicle was unoccupied. Officer Rowe was also on scene in a separate cruiser.
[10] At 7:22 p.m., the Defendant entered the driver's seat and reversed out of the lot.
[11] At 7:24 p.m. Officer Huer stopped the Defendant's vehicle.
[12] The Defendant identified himself with a valid driver's licence and a CIPC check revealed that he was subject to a Probation Order with condition #4 as noted above.
[13] The Defendant was in possession of this Probation Order which he was required to have with him when operating a motor vehicle and to produce it to a police officer who speaks to him for any reason.
[14] This Order was filed as Exhibit #1. Condition #5 reads as follows:
Whenever you are operating a motor vehicle you will carry a copy of this order with you and if a police officer speaks to you for any reason you will inform the police officer that you are bound by the terms of a probation order and you will show the copy of the probation order to the police officer.
[15] The Defendant showed the probation order to Officer Huer.
[16] Officer Huer smelled a slight odour of alcohol on the Defendant's breath and concluded that he had been consuming alcohol.
[17] At 7:33 p.m., Officer Huer read the ASD Demand to the Defendant from the back of his police issued notebook. (Transcript p. 41)
[18] When asked if he understood the Demand, the Defendant said that he did understand the Demand, but he wanted to refuse to provide a sample.
[19] Officer Huer explained the consequences and jeopardy of failing to comply with an ASD Demand immediately at the roadside and that it would result in an automatic criminal charge.
[20] The Defendant stated that he had a beer at 6 p.m. after work and did not think he would blow a zero so he would blow at the station after he had spoken to his lawyer.
[21] At 7:43 p.m. Officer Huer explained again that refusing to blow would be breaching his probation order which required him to blow.
[22] The Defendant replied 'I know, do what you have to do'.
[23] At 7:44 p.m. Officer Huer arrested the Defendant for Refuse and the Breach of Probation. The Defendant was given RTC and Cautioned.
[24] In cross-examination, Officer Huer repeated a number of times that he arrested the Defendant at the roadside for the 2 offences and that he did warn the Defendant of the criminal consequences with respect to refusing to provide a roadside sample.
Summary of the Testimony of Officer Rebecca Rowe
[25] She has been a HRPS Officer for 11 years. She stood by while Officer Huer dealt with the Defendant at the roadside.
[26] She heard the Defendant refuse to provide a sample at the roadside but wanted to do it at the station after speaking to his lawyer.
[27] She heard Officer Huer request a breath sample given the terms of his probation order and a breath demand, but she has no specific recollection of the words he used.
[28] Officer Rowe noted that the Defendant was arrested for breach of probation at the roadside. She did not note that the Defendant was arrested then for the criminal offence of Refuse.
Summary of the Testimony of Scott Granlund
[29] He is 34, single and has no children. He is apprenticing to become an electrician.
[30] On June 6th he had been working. On his way home he stopped at the Boston Pizza at 5:30 p.m. and consumed a bottle of Coors Lite with some food. He finished both at 6 p.m.
[31] When he was stopped by Officer Huer and told there had been a complaint of him drinking he felt angry because he only had one beer and had waited for an hour before he started driving.
[32] Officer Huer told him that he knew about his probation order and said he would be arrested for breaching it if he did not blow then and there:
A. Huer. He, he informed me that, when I asked why I was pulled over that he got a — he received an anonymous phone call that I'd been drinking there, which was — it kind of angered me a bit to be honest and then....
THE COURT: It was what?
A. It kind of angered me a bit to be....
THE COURT: Angered you? Okay.
A. Yeah, just a little bit. I mean I thought it was a little — a unfair reason to pull me over. So he then said that he, he can smell a, a slight beer on my breath and I told him at six o'clock I, I did have one, but I waited there for about an hour to talk to my friend. He told me that — he said that he ran my licence and he knew about the — my breach, my breach order, my probation order. So I told him that yeah, and he said that I'd have to — well, he said that I'd be arrested if I did not blow. I told him that I would like to speak to Ken, because I don't know what the protocol is of a breach, breach of probation. I've never been through anything like that and he said that's fine, that if I went....
Q. And that was a, a probation arising from a careless driving?
A. Yes.
Q. And, and you, you, you were aware of the conditions of that probation?
A. Yes, I was.
(Transcript pp. 54, 55)
[33] He told the Officer he wanted to speak to his lawyer. The Officer said fine, he would be asked to provide a sample at the station. He was arrested for breaching his probation order and taken to the station where he spoke to his lawyer (Ken Anders):
Q. Within 10 minutes of getting, getting to the police station?
A. Yeah. They got, they got a hold of you pretty quick.
Q. All right. And did you, did you see P.C. Huer while you were speaking with me or just after you spoke....
A. Just after I walked out of the room I saw Officer Huer.
Q. And what — was he carrying anything?
A. Yeah, he had a, he had a — well, it looked like a, a breathalyzer machine in his hand and he said, "Scott, you'll be taken to your...."
Q. It looked like?
A. A breathalyzer machine. He said, "Scott, you'll be taken to your cell and I'll be in, in a few moments to administer a breathalyze [sic] test to you."
Q. And were you taken to your cell?
A. I was.
Q. And were you administered a breathalyzer test?
A. No, I was not.
(Transcript p. 56)
[34] At the station Officer Huer had an ASD in his hand and said he would do the test in a minute.
[35] Then he was told at 8:30 or 9:00 p.m. that they were going to wait for a toxicologist to administer it.
[36] The Defendant testified that if he had been told at the roadside that failing to provide a sample would result in a criminal charge he would have provided a sample. (Transcript p. 57).
Q. What was your — when, when you said — when you, when you spoke with the officer what was your — what, what, what was it your intention to do once at the station?
A. Well, like I said, I had never been through a, a breach of — like this before, so I wanted to speak with you. I, I, I didn't know, like, an hour after — I was scared of getting a, a Highway Traffic Act charge against me by blowing a .001 even after an hour I finished. I wanted to speak with you to just see what my options were. I chose to do this because I was told after speaking to, with you I would have an opportunity to blow right away.
Q. One more time and lastly, if you'd been told that there was a criminal investigation and if you didn't blow you would have a criminal charge, what would you have done?
A. If I was told there was going to be a criminal charge...
Q. Yeah.
A. ...against me I would've blown right there at the — and not gone through a 90-day suspension and criminal charges, and — no, no doubt.
(Transcript pp. 58, 59)
[37] In cross-examination, the Defendant repeated that there was a chance that if he blew at the roadside that he would blow over zero because of the beer that he drank.
[38] He recalled Officer Huer reading something to him at the roadside from his notes, but he does not recall what the words were but does not dispute that it was the ASD Demand. (Transcript pp. 62 through to 66)
MR. KHOORSHED: Q. Since he said that he made that — then he read those words and you don't remember, what I'm suggesting to you is that you can't dispute it since you don't remember? You can't say it didn't happen since you don't remember the words?
A. Correct. I don't remember...
Q. Okay.
A. ...the roadside, what words he exact used.
Q. Right. But you understood that you were required by law to blow into that device?
A. Yes.
Q. Okay. And you refused?
A. I, I, I was, I thought it was being delayed or I refused based on the fact that I would be administered one within minutes of getting to the police station.
Q. But you refused to do it at that time?
A. I wanted to speak with my lawyer first on a, a breach. I thought I had the right to do that. I, I was not on own where I was not [sic].
Q. You refused to do it at that time?
A. Yes.
(Transcript p. 68)
Position of the Parties
Defence Position
[39] Mr. Anders submitted that the Defendant had no mens rea to commit any criminal offence.
[40] Counsel submitted that the Defendant was not read an ASD Demand at the roadside.
[41] There was no unequivocal or absolute refusal.
[42] The Probation Order did not say that the sample must be provided before speaking with a lawyer.
[43] The Defence relies upon the case of R. v. Delarm, [2013] O.J. No. 763 (OSCJ).
[44] In this summary conviction appeal case, the Judge stated that the trial judge's reasons for acquittal on a refuse ASD charge did not set a precedent for permitting drivers to seek legal advice prior to providing a roadside breath sample.
[45] The trial judge found Delarm's refusal to be ambiguous based on a WD analysis.
[46] The SCJ Judge McMunagle stated at paragraph 12:
It is now the year 2013: it is trite law that once a valid demand has been made, a suspect in the circumstances described above is not entitled to consult with counsel prior to deciding whether or not to provide a roadside sample. See R. v. Thomsen, [1988] 1 S.C.R. 640.
[47] And at paragraph 15:
More specifically, Justice Brunet's (trial) decision is not one that requires a "condition precedent to complying with a valid breath demand equals an equivocal refusal and therefore a valid defence.
[48] And at paragraph 17, quoting the trial Judge:
…Therefore, it is in these narrow circumstances, and pursuant to R. v. W. (D.) that I find that the Crown has not proven beyond a reasonable doubt that the accused had the required mens rea on the refusal charge before the court. Mr. Delarm is therefore acquitted.
Position of the Crown
[49] The Crown submits that the Delarm (supra) case is incorrectly decided because it imports an element of mens rea that is not part of this offence.
[50] The Crown relied upon the following cases in support of their position: R. v. Nanji, [2006] O.J. No. 943 (OCA); R v. Danychuk, [2004] O.J. No. 615 (OCA); R. v. Lewko, 2002 SKCA 121, [2002] S.J. No 622 (Sask. CA); R. v. Halloran, [2010] O.J. No. 3346 (OSCJ).
[51] In Nanji, (supra) the Court held that predicated in ignorance about the right to consult with counsel before complying with an ASD Demand is not a reasonable excuse for failing or refusing to comply with a lawful demand. A request to speak with counsel before complying is an unequivocal refusal to provide a sample. (See paragraph 22)
[52] Further there is no requirement that an Officer is required to explain there is no right to counsel at the roadside. (See paragraph 26)
[53] In Danychuk (supra), the OCA held there is no requirement that the Demanding Officer explain the consequences of a fail to comply with an ASD Demand. That would be an unwarranted extension of the section where the accused has categorically refused to provide the breath sample. (See paragraph 19)
[54] In Lewko (supra), the Saskatchewan Court of Appeal dealt with the defence of reasonable excuse in failing to provide an ASD sample. Defence counsel in the case before me specifically stated that he is not submitting this defence, so there is no need to get into this case.
[55] In Halloran (supra), the Court dealt with the defence of officially induced error. That is not relevant to the case before me.
Analysis
[56] Applying the 3-pronged test in R. v. WD, I do not accept the testimony of the Defendant in this case as reliable and true.
[57] His memory of what Officer Huer said to him at the roadside was vague.
[58] Officer Huer's testimony was clear and precise. I accept his repeated testimony that he read the ASD demand to the Defendant at the roadside and also discussed the Defendant's legal requirement to provide a breath sample as a result of his Probation Order conditions. I also accept his evidence that he arrested the Defendant for both of these offences before the Defendant was taken back to the station.
[59] The Defendant's evidence about what happened at the station is further evidence of his confusion with respect to these events. He makes mention of waiting to blow into a breathalyzer, an ASD, and waiting for a toxicologist to administer it. None of that was going to happen.
[60] It is clear from Nanji and Danychuk (supra) that the Defendant cannot rely on his mistaken belief that he could consult with counsel before complying with the ASD Demand. His stated intention to do so resulted in an unequivocal refusal.
[61] Furthermore, the wording of his Probation Order attached to his Careless Driving conviction was crystal clear:
You will not operate or be in the drivers' seat of any motor vehicle if you have any alcohol in your body. When in a motor vehicle, upon the request of a police officer, you will provide such samples of your breath as in the opinion of the police officer are necessary to allow a proper analysis by means of an approved screening device.
Whenever you are operating a motor vehicle you will carry a copy of this probation order with you and if a police officer speaks to you for any reason you will inform the police officer that you are bound by the terms of a probation order and you will show a copy of the probation order to the police officer.
[62] This Probation Order does not have to say "without speaking to legal counsel first" as proposed by Mr. Anders. (See case law referenced above)
[63] For these reasons, the Defendant has proven to be guilty of both charges beyond a reasonable doubt and findings of guilt are registered.
Released: May 4, 2018
Signed: Justice Lesley M. Baldwin