Court Information

Ontario Court of Justice

Date: 2018-05-04

Court File No.: York Region - Newmarket 15 04630

Parties

Between:

Her Majesty the Queen

— And —

Valentine Egbeobawaye

Judicial Officer and Counsel

Before: Justice Marcella Henschel

Heard on: April 25, 2018

Reasons for Judgment released on: May 4, 2018

Counsel:

• Vanessa Szirmak, counsel for the Crown
• Bruce Daley, counsel for the defendant Valentine Egbeobawaye

Judgment

HENSCHEL J.:

A. Overview

[1] Mr. Egbeobawaye is charged with failing or refusing to comply with a demand to provide a sample of breath into an approved screening device (ASD) contrary to s. 254(5) of the Criminal Code. To establish the offence the essential elements the Crown must prove include that:

1. a proper demand was made;
2. there was a failure or refusal to provide the required breath sample; and
3. the detainee intended to fail or refuse to provide the required sample.

[2] The Crown called a single witness, PC Hominsky. PC Hominsky's evidence revealed that after conducting a traffic stop of Mr. Egbeobawaye he formed a reasonable suspicion that he had alcohol in his body. He asked him to accompany him to his cruiser, produced an ASD, and read Mr. Egbeobawaye an approved instrument demand, not an approved screening device demand. He subsequently provided him with several opportunities to provide a sample of his breath into the ASD and Mr. Egbeobawaye failed or refused to provide a sample of his breath.

[3] No evidence was tendered by the defence. The parties agree that the only issue is whether the Crown has established beyond a reasonable doubt that a proper demand under s. 254(2)(b) of the Criminal Code was made. The defence concedes that the Crown has established all of the other essential elements of the offence.

[4] I have concluded that the Crown has not established that a proper demand was made, and as a result there must be a finding of not guilty. These are my reasons.

B. Factual Background

[5] On May 23, 2015 at approximately 11:40 p.m. PC Hominsky saw a vehicle weaving on Teston Road in the City of Vaughan. He stopped the vehicle and approached the driver, Mr. Egbeobawaye, and asked him for his driver's license, ownership and insurance. While he was asking for the documents he detected the odour of alcohol coming from Mr. Egbeobawaye's breath. He formed a reasonable suspicion that Mr. Egbeobawaye had alcohol in his body and asked him to come back to his police vehicle so he could get a sample of his breath.

[6] PC Hominsky got into the driver's seat of the police vehicle, and Mr. Egbeobawaye stood at the passenger window. PC Hominsky had an ASD with him, a Draeger Alcotest 6810. He confirmed that the device had been recently calibrated and at 11:43 p.m. conducted a self-test to confirm it was working properly. Prior to providing the self-test, PC Hominsky gave Mr. Egbeobawaye basic instructions on how to provide a sample, telling him to watch and he would show him how to provide a sample. PC Hominsky testified that it appeared that Mr. Egbeobawaye understood.

[7] After PC Hominsky completed a self-test at 11:44 p.m. he testified that he read Mr. Egbeobawaye the "standard breath demand" from the pre-printed card, asked him if he understood, and he replied "yes". When asked to relay the details of the demand made to Mr. Egbeobawaye, PC Hominsky read the following demand from his notebook: "I demand that you provide suitable samples of your breath into an approved instrument to enable an analysis to be made to determine the concentration if any of alcohol in your body and that you accompany me for this purpose". This demand is a s. 254(3) approved instrument demand, not a s. 254(2)(b) approved screening device demand. It is this evidence that is central to the only issue in the case.

[8] After PC Hominsky read the breath demand, PC Hominsky made the first attempt to obtain a sample of breath from Mr. Egbeobawaye into the ASD. Mr. Egbeobawaye began to cough and said he was asthmatic. It is clear that PC Hominsky believed he may be feigning. He noted that he had not coughed previously. PC Hominsky was in the driver's seat holding the ASD in his right hand. He was leaning with the device held towards Mr. Egbeobawaye, who was leaning in the passenger window of the cruiser. On the first attempt, Mr. Egbeobawaye did not put his mouth on the instrument. Because he was coughing, PC Hominsky gave Mr. Egbeobawaye a bottle of water and gave him a few minutes to stop coughing and to calm down. Once Mr. Egbeobawaye stopped coughing he continued to attempt to obtain breath samples from Mr. Egbeobawaye into the ASD for the next fifteen to twenty minutes.

[9] PC Hominsky gave Mr. Egbeobawaye numerous attempts to provide a sample. He testified that every time he sought a sample, Mr. Egbeobawaye would bend over and cough, turn around in a circle, and sometimes walk around. He would not put his mouth when requested on the screening device. PC Hominsky asked Mr. Egbeobawaye if he needed an inhaler and he responded that he did not have one with him. PC Hominsky testified that the ASD timed out five times and that Mr. Egbeobawaye only put his mouth to the ASD "a couple of times". At no point did PC Hominsky hear any air going into the device or any tone coming from the device. PC Hominsky testified that he continued to explain to Mr. Egbeobawaye how to provide a sample and he advised him of the consequences of not providing a sample.

[10] At 12:07 a.m. PC Hominsky asked Mr. Egbeobawaye if he was going to try to provide a sample of breath and he responded "No I'm done, I can't do it". As a result, PC Hominsky arrested and charged Mr. Egbeobawaye with failing or refusing to provide a breath sample into an approved screening device. The information reads that Valentine Egbeobawaye "without reasonable excuse, failed or refused to comply with a demand made to him by a peace officer under section 254(2) of the Criminal Code of Canada in the circumstances therein mentioned to provide forthwith a sample of his breath as in the opinion of a peace officer, is necessary to enable a proper analysis of his breath to be made by means of an approved screening device".

C. Positions of the Parties

[11] Mr. Daley submits that Mr. Egbeobawaye must be found not guilty because the Crown has failed to prove that there was a proper demand made, an essential element of the offence. He submits that the breath demand issued was a s. 254(3) demand to provide a sample of breath into an approved instrument, not a section 254(2) demand to provide a sample forthwith into an approved screening device. He submits that there was no demand to provide a sample of breath into an approved screening device.

[12] Ms. Szirmak, on behalf of the Crown, submits that although the officer mistakenly read the approved instrument demand, the words read must be considered in context and with consideration of the surrounding circumstances. A contextual assessment establishes beyond a reasonable doubt that Mr. Egbeobawaye was issued a proper demand to provide a sample of breath into an approved screening device and failed to provide a sample into the approved screening device.

D. Analysis and Conclusions

[13] The Crown must prove as an essential element of the offence that there was a "proper demand". The critical issue to be determined is whether, in context, the words and conduct of PC Hominsky constituted a "proper demand". In assessing whether a proper demand has been made a flexible and functional approach must be taken. What is important is not the formal wording used to make the demand, but whether the words and conduct of the officer clearly conveyed to the driver a demand that the driver provide a sample of breath into an approved screening device.

[14] In Ghebretatiyos, an officer stopped an accused for suspected impaired driving, and after smelling alcohol coming from his breath, testified that he read the appellant "a standardized breath sample demand" from the notice card issued to him. In court the officer was asked to provide the words of the demand, but was unable to because he did not have the pre-printed card with him. The officer testified that after demonstrating and explaining how the approved screening device worked he asked the accused if he understood and the accused indicated that he did. The accused did not provide a sample, and repeatedly interrupted the officer and asked him why he was stopped. The officer explained the consequences of not complying with the demand. The accused said he was not going to blow, and was arrested for refusing to provide a sample. The accused was convicted by the trial Judge.

[15] On appeal the defence submitted that the Crown failed to prove that there was a lawful demand for a breath sample using an approved screening device and stressed the lack of evidence of the wording or the section of the Code the demand was made under. The defence submitted that the officer's reference to a "standardized breath sample demand" failed to distinguish between an approved screening device test at the roadside and an Intoxilyzer or Breathalyzer test at the police station.

[16] Justice Hill, sitting as a summary conviction appeal court, concluded that a "flexible and functional" approach should be taken that focuses on whether the vehicle driver understood he or she was required to give a sample of breath and cited the following passage from R. v. Ackerman:

In my opinion no particular words are necessary to make a demand under this section. The demand, if made in popular language or in the words of the section, or in any other words that are such that convey to the person that the demand is made pursuant to the section, is a lawful demand. In determining whether or not the words used were such as to convey to the person the nature of the demand, consideration can properly be given to the surrounding circumstances. (emphasis added)

[17] Notably, the passage cited from Ackerman indicates that whatever words used, formal or informal, and however expressed, the words must convey a demand made "pursuant to the section". Significantly, Ghebretatiyos is not a case where the demand read was pursuant to a different section of the Criminal Code.

[18] In Torsney, the accused argued that a demand for a breath sample into an approved screening device was not a lawful demand because the officer had omitted the word "forthwith", and as a result the demand lacked the element of immediacy required by the Criminal Code. The Court of Appeal upheld the finding of the summary conviction appeal court that omission of the word "forthwith" did not render the demand invalid. The Court held that the demand did not have to be in any particular form, provided it made clear to the driver that he or she was required to give a sample of his or her breath "forthwith" and that this could be accomplished through words or conduct, including the tenor of the officer's discussion with the accused. The Court was satisfied that the conduct of the officer in conjunction with the words used conveyed the immediacy of the demand.

[19] What distinguishes this case from Ghebretatiyos and Torsney is that the officer made an approved instrument demand, not an approved screening device demand. Although the distinction between the words used may not have been significant to Mr. Egbeobawaye at the time of the demand, the words have a very different meaning in law. The statutory prerequisites for the police to make the two different demands are different and different legal obligations flow from the demands for both the detainee and the police.

[20] A similar situation was considered in Waisanen by Justice Campbell sitting as a summary conviction appeal court. In that case the investigating officer had reasonable grounds to believe that Mr. Waisanen was impaired, and, following his arrest intended to read him an approved instrument demand. The officer, by mistake, read Waisanen the approved screening device demand outlined in s. 254(2)(b). The accused was then taken to the police station, and turned over to a qualified Intoxilyzer technician. The Intoxilyzer technician did not make a formal breath demand but explained to Mr. Waisanen that he had to provide two samples of his breath into the Intoxilyzer 8000C. Mr. Waisanen provided two samples and the readings revealed that his blood alcohol content exceeded the legal limit. The trial Judge accepted the accused's submission that the Crown could not rely on the presumption of identity in 258(1)(c) because the Crown had not established that a lawful demand had been made and acquitted him on the over 80 count.

[21] On summary conviction appeal, Justice Campbell upheld the trial judge's conclusion that there was not a lawful demand, and, that as a result the Crown could not rely on the presumption of identity. In reaching this conclusion Justice Campbell concluded that the approved screening device demand could not be treated as an approved instrument demand to establish that a lawful demand had been made. He explained as follows:

In determining whether or not a police officer has made a lawful demand to require an individual to provide a sample of his or her breath, courts should adopt a flexible and functional approach, focusing on whether or not the individual understood that he or she was required to provide a breath sample, and considering the entirety of the surrounding circumstances. (citations omitted)

At the same time, the courts have consistently held that one of the important legal preconditions for the effective operation of the statutory presumption created by s. 258(1)(c) of the Criminal Code is that the "samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3) of the Criminal Code, namely by means of an approved instrument demand. Approved screening device demands made pursuant to s. 254(2)(b) of the Criminal Code have been consistently held to be legally inadequate for this purpose. (citations omitted) The decisions in this line of authority persuasively explain that these two demands are significantly different in their content and in their practical consequences for the accused, and that strict technical compliance with s. 258(1)(c) of the Criminal Code is required given the considerable evidentiary assistance provided to the Crown by the provision. (emphasis added)

[22] Subsequent to Waisanen, in Omelan, an investigating officer accidentally read an approved screening device demand, instead of an approved instrument demand. The Crown, in seeking to establish that the breath samples were provided pursuant to a lawful demand and in compliance with s. 8 of the Charter, argued that the law had adopted a flexible and functional approach to assessing whether a specific approved instrument demand is lawful which focuses on whether or not the individual understood that they were required to provide a breath sample and the entirety of the surrounding circumstances. In Omelan, the accused admitted that he knew he had to go to the police station to provide samples of his breath.

[23] Despite the accused's admission, Justice Nakatsuru concluded that he was bound by Waisanen and, as a result, held that the demand was not a lawful demand. Justice Nakatsuru concluded that an accused's subjective interpretation of a demand given by an officer cannot "turn an approved screening device demand into a legal demand made pursuant to s. 254(3)(a)(i)." Justice Nakatsuru held that because the demand was not a lawful demand the Intoxilyzer breath samples were obtained in violation of s. 8 of the Charter, but were admissible under s. 24(2) of the Charter.

[24] The role of a breath demand is greater where it is an essential element of the offence, rather than a prerequisite for reliance upon a statutory presumption, or the foundation for breath samples to be authorized by law under s. 254(3). This point was recently made in R. v. Alex.

[25] The Supreme Court's decision in Alex post-dates Waisanen, and may give reason to revisit some of the conclusions in Waisanen, including the finding that the Crown could not rely on the presumptions because of the absence of a lawful demand. In Alex the Court held that a lawful breath demand was not a prerequisite to reliance upon the statutory presumptions. However, the reasoning in Alex does not impact Justice Campbell's conclusion that an approved screening device demand, even in the context of a "flexible and functional approach", cannot be equated with an approved instrument demand.

[26] Moreover, the Supreme Court's reasoning in Alex supports the view that in the context of a fail or refuse breath sample charge the role of a lawful demand is of greater significance than in an "over 80" prosecution. In Alex, the Supreme Court rejected the defence submission that it would be unfair and anomalous if the Crown only had to establish the lawfulness of a demand when an accused refused, but not when an accused complied with a breath demand. In so doing, the Supreme Court emphasized the different role played by the demand in a fail or refuse case than in an "over 80" case, stating as follows:

I have difficulty with this comparison for a number of reasons. First the textual argument assumes that the language of s. 254(5) requires the lawfulness of the demand to be an element of the offence. In my view, however, this element is better thought of as arising from the general nature of the refusal offence— an offence which criminalizes disobedience in response to lawful compulsion. Notwithstanding the words "made under", disobedience with unlawful compulsion is simply not criminal. For example, the unlawfulness of an arrest can provide a complete defence to the charge of resisting arrest under s. 270 of the Code. (citations omitted)

This exposes a logical flaw in the analogy. While the refusal offence is part of the same statutory regime, it is different from other drinking and driving offences in substance. Culpability for the refusal offence is based on disobedience with lawful compulsion, whereas culpability for an "over 80" offence is based on driving with a blood-alcohol concentration over the legal limit. The lawfulness of the breath demand has no logical bearing on culpability for an "over 80" offence. As this Court observed in R. v. Taraschuk, [1977] 1 S.C.R. 385, conflating the elements of the two offences "invites a self-defeating construction of [s. 254(5)] and would wipe out the difference clearly made in [ss. 253 and 254(5)], between culpability under the one and under the other" as a result, I do not find this textual comparison to be persuasive.

[27] In this case, the fact that the officer read the accused the wrong demand is significant because only a lawful demand can criminalize disobedience with the demand. The compulsion to comply is created by the issuance of the demand and nature of the demand. In this case, the officer did not forget the exact words used, or omit a word from the formal demand that was conveyed implicitly, rather he made a demand under s. 254(3) of the Criminal Code. As between an ASD demand and an approved instrument demand, there are important differences in the circumstances in which the demands can be lawfully made, in the wording of the demands, and in the consequences that flow from the demands.

[28] At the time of the demand, the officer did not, as required, have reasonable grounds to believe that an offence had been committed under s. 253 and as a result the s. 254(3) demand was an unlawful demand. Because it was an unlawful demand the accused had no obligation to comply with the demand. The fact that the accused subjectively knew that the officer wanted him to provide a sample of breath into the approved screening device he was holding cannot change the fact that a "proper" demand was not made.

[29] The demand issued to the accused was different than that referenced in the charge, and particularized in the information, and created a different legal obligation. Given the legal importance of the demand in a refuse case, and in accordance with the reasons of Justice Campbell in Waisanen, I cannot treat the approved instrument demand as if it were an approved screening device demand.

[30] In my view, the Crown has not established an essential element of the offence, that a proper demand was made, and as a result there will be a finding of not guilty.

Released: May 4, 2018

Signed: Justice Marcella Henschel