Court File and Parties

Ontario Court of Justice

Date: May 31, 2018

Court File No.: 16-3775

Between:

Her Majesty the Queen

— and —

Kulwinderdeep Toor

Before: Justice P.T. O'Marra

Heard on: May 29, 30, 31, June 1 and June 5, 2017

Oral reasons for Judgment released on: June 29, 2017

Written reasons for Judgment released on: May 31, 2018

Counsel:

• C. Nadler, for the Crown
• D. Locke, for the Accused

Judgment

P.T. O'Marra J.:

Charges

[1] Mr. Toor is charged with the following offences:

(a) That on March 21, 2016 in the City of Brampton, while his ability to operate a motor vehicle was impaired by alcohol, did unlawfully operate a motor vehicle, contrary to section 253(a) of the Criminal Code of Canada, and

(b) That on March 21, 2016 in the City of Brampton, did without reasonable excuse fail to comply with a demand made to him by a peace officer, to provide then or as soon as thereafter as was practicable samples of his breath as in the opinion of a qualified technician were necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood contrary to section 254(3) of the Criminal Code of Canada.

Admissions and Defences

[2] Mr. Toor did not deny that on March 21, 2016 he was operating his motor vehicle and he was impaired by alcohol.

[3] Mr. Toor admitted the Crown's case with respect to this charge, however, it was his position that he should not be found guilty of this offence as he has asserted that his conduct can be excused on the basis of the defence of necessity.

[4] With respect to the offence of willfully failing to provide a suitable sample of his breath to a qualified breath technician, Mr. Toor has argued that he was "too impaired to blow" due to his voluntary consumption of alcohol.

[5] The Crown's position was that Mr. Toor's has not met all three elements of the defence of necessity as set out in R. v. Latimer, [2001] S.C.R. No. 1.

[6] Furthermore, the Crown has argued that Mr. Toor was not so grossly intoxicated that he was neither rendered incapable of understanding the directions nor unable to physically blow properly into the instrument. The Crown specifically pointed to the following factors:

• The quality of the explanations in both the English and Punjabi languages on how to provide a suitable sample into the instrument.
• The fact that that the legal consequences of wilfully failing or refusing to provide a sample of his breath were clearly explained to Mr. Toor.
• The number of opportunities or chances that Mr. Toor was given.
• The length of time that Mr. Toor was allowed to provide a suitable sample of his breath.
• Before Mr. Toor made his first attempt to provide a sample of his breath, he told P.C. Darcy the Intoxilyzer breath technician that he had a few drinks and "he could write down whatever he wanted to".

Overview of the Evidence

[7] The following evidence does not seem disputed.

[8] On March 21, 2016 P.C. Fernandez responded to a call for a possible impaired driver at the intersection of Peter Robertson Blvd. and Dixie Road in the City of Brampton. He located the impaired driver, Mr. Toor stopped at the intersection. P.C. Fernandez observed Mr. Toor make a left turn and then proceeded through a stop sign without slowing down or stopping. At 1:10 am P.C. Fernandez stopped Mr. Toor's motor vehicle. Immediately, Mr. Toor exited his motor vehicle, stumbled and required to lean on his motor vehicle in order to support himself. P.C. Fernandez smelled the odor of alcohol on his breath and at 1:14 am placed Mr. Toor under arrest for impaired operation of his motor vehicle.

[9] P.C. Clayton arrived on scene and was more or less responsible for securing Mr. Toor's motor vehicle. Upon searching the motor vehicle P.C. Clayton observed large pools of blood on both the passenger seat and on the floor. P.C. Clayton testified that he had never "seen so much blood in his life". He advised P.C. Fernandez about the blood in the motor vehicle.

[10] The officers immediately examined Mr. Toor for injuries. He had none. However he did have dried blood on his pants and his arms.

[11] It was apparent to P.C. Fernandez that English was not Mr. Toor's first language as he began to read the right to counsel, caution and breath demand. He called for a Punjabi speaking police officer to assist. P.C. Fernandez observed that Mr. Toor did, however, respond in English to a few of his questions and felt that to a certain extent he understood the officer.

[12] The officers on scene suspended the investigation into Mr. Toor as an impaired driver and focused on the blood in the motor vehicle. P.C. Fernandez stated that the obvious and pressing concern was that there may have been a "victim that needed to be located".

[13] At 1:45 am P.C. Saini, a Punjabi speaking police officer arrived on scene and acted as a translator for P.C. Fernandez in his investigation of Mr. Toor as to the origin of the blood.

[14] According to the officers, and understandably so at this point in their investigation, they were unclear whether Mr. Toor was a suspect or a witness.

[15] At 2:01am Mr. Toor was formally given his rights to counsel, caution and breath demand in the Punjabi language.

[16] Before the rights were read to Mr. Toor the police learned that there had been a domestic related incident at Mr. Toor's home address of 21 Sailwind Road in Brampton and the victim of the incident was being treated at the Brampton Civic Hospital.

[17] Police officers were dispatched to both locations.

[18] It was undisputed at this trial that Mr. Toor had driven his friend, Mr. Dhaliwal to the Brampton Civic Hospital and had dropped him off just before he had been stopped by the police. Apparently, Mr. Dhaliwal had been stabbed by Mr. Toor's brother-in-law, Mr. Brar during the domestic related incident at 21 Sailwind Road.

[19] Mr. Toor was taken to 21 division. He spoke to a Punjabi speaking lawyer.

[20] At 2:49am he was turned over to P.C. Darcy a qualified Intoxilyzer 8000C technician.

[21] P.C. Saini assisted as the translator during the Intoxilyzer process. P.C. Darcy confirmed that Mr. Toor had spoken to a Punjabi speaking lawyer. P.C. Darcy cautioned Mr. Toor and read the Intoxilyzer demand to him as well.

[22] During the set up procedure, Mr. Toor asked if he could call his sister but he did not say why. P.C. Darcy asked Mr. Toor what had happened to him in earlier in the evening. Mr. Toor said that "Brar wanted to stab me but stabbed Dhaliwal". He said that he put Mr. Dhaliwal in the car, drove him to the hospital and dropped him off "close" to the hospital. Mr. Toor said that the reason he drove away from his house was because Mr. Dhaliwal was bleeding so badly. He said that he did not have enough time to call an ambulance and that he was very "scared and frightened". P.C. Darcy asked Mr. Toor where he was going after he dropped him off at the hospital. Mr. Toor responded that he was returning home because he was "worried". Mr. Toor never explained to P.C. Darcy why he was worried.

[23] P.C. Darcy explained to Mr. Toor how to properly provide a sample of breath. He advised him to provide "one long continuous breath" and "keep going until I say stop". Immediately following the instructions Mr. Toor responded, "I have had a few drinks so just write what you want to write".

[24] Mr. Toor then made twelve attempts to provide a suitable sample of his breath into the Intoxilyzer 8000C.

[25] The defence conceded that the Intoxilyzer 8000C was in proper working order and was operated properly by P.C. Darcy. As well there were no defects to the mouthpiece.

[26] As I have said Mr. Toor tried twelve times to provide a breath sample.

[27] On the first attempt, Mr. Toor did not put his lips on the mouthpiece.

[28] On the second attempt, it seemed that Mr. Toor did not blow and no air was passing through the mouthpiece. At this point P.C. Saini translated the consequences for not providing two samples of his breath. Mr. Toor stated "I am trying to give a sample". P.C. Saini demonstrated how to blow into the mouth piece and after a brief exchange between the two, P.C. Saini said to P.C. Darcy that "yeah he gets it".

[29] On the third attempt, P.C. Darcy directed him to "blow harder and longer". There was only a one second beep.

[30] On the fourth attempt, no air was passing into the Intoxilyzer. There were only two beeps. P.C. Darcy placed his hand on the other side of the mouth piece as Mr. Toor was attempting to blow and stated that no air was coming through. And yet I observed on the video that Mr. Toor was puffing out his cheeks. When advised by P.C. Darcy that he felt that he was not blowing, Mr. Toor responded "I will do it".

[31] On the fifth attempt, there was only one beep.

[32] On the sixth attempt, there were two longer tones. P.C. Darcy asked P.C. Saini to translate to Mr. Toor that the test required "one long blow".

[33] At this point the Intoxilyzer machine re-calibrated itself. Throughout this process Mr. Toor repeated "you can write whatever you want that I had been drinking".

[34] On the seventh attempt, Mr. Toor's cheeks were puffed out but the air was escaping out of his mouth. It was evident that there was no seal around the mouthpiece. There were three tones. P.C. Darcy demonstrated to Mr. Toor how to take one long breath.

[35] On the eighth attempt, P.C. Darcy felt that Mr. Toor was "blowing air out his nose and was stopping, and not taking in any air." Again Mr. Toor stated "you can write whatever you want".

[36] On the ninth attempt, Mr. Toor exhaled air into the machine but stopped after two tones. Based on my observations of Mr. Toor on video he seemed to not take in any air. When he was confronted with this fact by P.C. Darcy, he stated "no I am trying".

[37] On the tenth attempt, air passed through momentarily and then he stopped blowing. At this point P.C. Darcy stated to Mr. Toor, "I kinda think that you are too impaired to do the test" and advised him that he could be charged with failing to provide a suitable sample.

[38] On the eleventh attempt, Mr. Toor blew and the tone lasted longer, however he stopped and P.C. Darcy told him that he still was not blowing hard enough. Mr. Toor stated that he was not doing it intentionally. P.C. Darcy reiterated to not stop blowing.

[39] On the twelfth and last attempt, his breath attempts were varied and P.C. Darcy decided to end the test.

[40] At 3:18 am P.C. Darcy did a self Intoxilyzer test that demonstrated that the machine was capable of receiving a breath sample.

[41] As of March 31, 2016 P.C. Darcy had completed approximately 500 tests. He testified that in his opinion Mr. Toor was not genuinely trying to provide a sample of his breath. He observed that Mr. Toor did not have any difficulty speaking. He stated that Mr. Toor appeared to be blowing but there was "no rush" of air going into the instrument. Occasionally, Mr. Toor provided enough air to cause the intermittent tone but then for no apparent reason he would stop blowing.

[42] P.C. Darcy was asked why he said to Mr. Toor that he may be too impaired to blow into the instrument. He answered that he did not actually believe that Mr. Toor was too impaired to provide a sample but rather P.C. Darcy was issuing "a challenge to do it as directed". He described this method as a "last ditched effort" as he had exhausted other methods. P.C. Darcy also added that if he believed that Mr. Toor was too impaired to comply he would have hit the "R" button sooner, but he waited until his last chance.

[43] In cross-examination it was pointed out that in his notes P.C. Darcy had written "unable to follow direction". He agreed that that may have been a poor choice of words. However, he believed that Mr. Toor understood everything because P.C. Darcy's directions were not only being translated by P.C. Saini he further believed that Mr. Toor had a basic "working knowledge of the English language".

[44] P.C. Darcy confirmed that he was challenging Mr. Toor to get him to blow as it is his job to "collect evidence". He agreed that there was nothing in his notes about him challenging Mr. Toor was a police tactic. He agreed with the suggestion that Mr. Toor was impaired but "not too impaired to do the test". P.C. Darcy also believed that his impairment did not impact his ability to understand directions. He was simply being uncooperative.

[45] He noted on his Alcohol Influence report that Mr. Toor's level of impairment was "obvious" which ranked fourth out of five on his checklist.

The Defence

Evidence on the issue of necessity

[46] Mr. Toor was employed as a truck driver. He has no criminal record. On the night of his arrest he resided in a basement apartment located at 21 Sailwind Road in Brampton. It was a night filled with drinking and arguing over the strained relationship between Mr. Brar and Mr. Toor's sister. In the home drinking that night was Mr. Toor, Mr. Toor's friend Mr. Dhaliwal and Mr. Brar. Initially, Mr. Toor's sister was not present but at some point in the evening she arrived home from work.

[47] According to Mr. Toor, later in the evening the argument became so heated that Mr. Brar suddenly ran into the kitchen and returned with a knife. He attempted to stab Mr. Toor but unfortunately for Mr. Dhaliwal he was stabbed in his arm by Mr. Brar as he tried to intervene to stop the fight. Mr. Toor described that Mr. Brar was "in total anger". Mr. Toor felt that Mr. Dhaliwal's health and welfare were in danger "because he was bleeding so heavily I felt that something wrong was going to happen to him".

[48] He then drove Mr. Dhaliwal to the Brampton Civic Hospital which was approximately 3 kilometers away from 21 Sailwind Road as he felt that Mr. Dhaliwal could have died from his injuries. He claimed that there was not enough time to call an ambulance as he was bleeding so heavily.

[49] He did not have a cell phone with him when he left his home.

[50] Mr. Toor testified that after he dropped off Mr. Dhaliwal at the "door" of the hospital he immediately left and was intending to return home. Because Mr. Toor had never seen Mr. Brar so angry he was concerned for his sister's safety. He was afraid that "she might have been attacked", presumably during the period of time that he was driving his friend to the hospital.

[51] According to Mr. Toor, after his friend had been stabbed Mr. Brar grabbed his sister's arm and "dragged" her out of the house.

[52] In cross-examination, Mr. Toor indicated that his sister was not involved in the argument that evening.

[53] When it was suggested to him that first responders with medical training could have been called, he stated that "anything could have happened. He was in so much pain. There was no such time". Also he felt that that no one would have woken up in the upstairs apartment if he asked a neighbor to drive Mr. Brar to the hospital.

[54] Mr. Toor testified that when his sister was dragged out of the house he was uncertain if Mr. Brar had a knife.

[55] Mr. Toor agreed that once he delivered Mr. Brar to the hospital Mr. Brar was no longer in danger. However, he felt that it was necessary to drive to his home to save his sister as he was afraid that Mr. Brar "might hit her, kill her, or beat her."

[56] Mr. Toor testified that he did not tell anyone at the hospital to call the police about his fears as he claimed that had not entered his mind. He stated that he only thought of his sister's well-being as he dropped Mr. Dhaliwal off at the hospital and wanted to get home.

[57] After being stopped by P.C. Fernandez he claimed that he provided just enough information that would enable the police to attend 21 Sailwind Road and rescue his sister. Mr. Toor explained that he did not say anything to P.C. Fernandez about his sister being in danger as "had a problem with English".

[58] When pressed by the Crown that he had failed to say anything to the police about his concerns for his sister's safety, Mr. Toor testified that "I gave them all the details and they will reach my sister". He also testified that he "told them everything".

[59] Furthermore, when asked by the Crown due to his fractured English why he did not just say "help help" to P.C. Fernandez, Mr. Toor stated that "they {the police} would figure that out once they saw the blood and go to the address".

[60] Mr. Toor stated that evening he did not pose a risk to anyone since there was "no traffic, no one on the road, and I was not far from home".

[61] In cross-examination, Mr. Toor acknowledged that he did not tell P.C. Darcy anything about how fearful he was over his sister's safety when he was asked about the knife. All he said was that he was going "back to the residence where everything happened".

Evidence of the explanation of the refusal to provide a suitable breath sample

[62] In his examination-in-chief, Mr. Toor testified that he "was trying" to provide a suitable of his breath to P.C. Darcy.

[63] In cross-examination, Mr. Toor stated that he did not have asthma but smoked a little bit.

[64] Mr. Toor's explanation for not being able to blow into the machine was that he was blowing but because he had consumed so much alcohol he could not blow properly.

[65] In cross-examination, Mr. Toor acknowledged that the directions on how to properly provide a sample were explained to him in both English and Punjabi. He confirmed in his evidence that he understood words "longer, harder and go".

Analysis

The Law on the defence of necessity

[66] The proper test to be applied regarding any defence of necessity was set out by the Supreme Court of Canada in leading cases of R. v. Perka (2004), 14 C.C.C. (3d) 385, and R. v. Latimer, supra. It is a defence that is very strictly applied and rarely successful.

[67] In the Latimer decision the Court recognized Perka as the leading case on the defence of necessity. There are three discreet elements that are required to be present for the defence to be successful:

i. There must be imminent peril and danger.

ii. There was no reasonable legal alternative to the course of action taken.

iii. The harm inflicted by the defendant should not be out of proportion to the harm avoided.

[68] The Court concluded that if there is an air of reality to the three elements, the necessity arises and the burden shifts to the Crown to prove beyond a reasonable doubt that the defence is not made out.

[69] In Latimer the Court expanded on the requirements of the defence of necessity at paras. 28-31:

28 Perka outlined three elements that must be present for the defence of necessity. First, there is the requirement of imminent peril or danger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook. Third, there must be proportionality between the harm inflicted and the harm avoided.

29 To begin, there must be an urgent situation of "clear and imminent peril": Morgentaler v. The Queen, [1976] 1 S.C.R. 616, at p. 678. In short, disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur. In Perka, Dickson J. expressed the requirement of imminent peril at p. 251: "At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable". The Perka case, at p. 251, also offers the rationale for this requirement of immediate peril: "The requirement ... tests whether it was indeed unavoidable for the actor to act at all". Where the situation of peril clearly should have been foreseen and avoided, an accused person cannot reasonably claim any immediate peril.

30 The second requirement for necessity is that there must be no reasonable legal alternative to disobeying the law. Perka proposed these questions, at pp. 251-52: "Given that the accused had to act, could he nevertheless realistically have acted to avoid the peril or prevent the harm, without breaking the law? Was there a legal way out?" (emphasis in original). If there was a reasonable legal alternative to breaking the law, there is no necessity. It may be noted that the requirement involves a realistic appreciation of the alternatives open to a person; the accused need not be placed in the last resort imaginable, but he must have no reasonable legal alternative. If an alternative to breaking the law exists, the defence of necessity on this aspect fails.

31 The third requirement is that there be proportionality between the harm inflicted and the harm avoided. The harm inflicted must not be disproportionate to the harm the accused sought to avoid. See Perka, per Dickson J., at p. 252:

No rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a greater harm to allow the actor to avert a lesser evil. In such circumstances we expect the individual to bear the harm and refrain from acting illegally. If he cannot control himself we will not excuse him.

[70] This Court has been provided with the following cases that are in the context of drinking and driving circumstances: R. v. Hunt, [2016] O.J. No. 1407, R. v. Turchanikov, [2016] O.J. No. 1291, R. v. Valauskas, [2012] O.J. No. 6233, R. v. Sheahan, [2007] O.J. No. 5465, R. v. Desrosiers, [2007] O.J. No. 1985, R. v. Gyetvan, [2005] O.J. No. 5813 and R. v. Bellerive, [1990] O.J. No. 3161. These cases illustrated examples of when and how the defence of necessity succeeded. These cases all can be distinguished by their facts and are considerably different than the facts of this case.

[71] The Crown provided the court with the Alberta Queen's Bench decision in R. v. Sekhon, [2007] A.J. No. 517, and the upheld decision by the Alberta Court of Appeal [2008] A.J. No. 490. Leave to appeal to appeal to the Supreme Court of Canada was dismissed [2008] S.C.C.A. No. 297. The Summary Conviction Appeal court found that after Mr. Sekhon had driven away from the scene of the wedding where he had been attacked, it was found that his peril had lessened and he was no longer in imminent danger. He failed to consider other legal options other than driving further and further from the location of the assault while his ability to operate his motor vehicle was grossly impaired.

Was this a scenario where there was clear and imminent peril?

[72] It is clear from the evidence that Mr. Toor was not facing imminent danger or peril.

[73] The defence has argued that if I do not bifurcate the events of the evening and treat the matter as one transaction the defence of necessity should succeed. In other words, the Court is being asked to treat as one event the flight to the hospital and Mr. Toor's attempt to drive to his home to save his sister from imminent peril.

[74] I simply cannot do so. Perhaps, I could if Mr. Toor was stopped by P.C. Fernandez on his way to the hospital with Mr. Dhaliwal bleeding inside his motor vehicle. An argument could be advanced that Mr. Dhaliwal was in imminent peril or danger if he did not receive immediate medical attention.

[75] But the defence has asked me to consider that Mr. Toor's return to the family home was in order to save his sister from a perceived imminent danger.

[76] I do not believe that Mr. Toor was returning home for that purpose. When applying the modified objective test I do not believe that he honestly and reasonably believed that his sister was in imminent peril or danger. Mr. Toor simply was not credible on this point for the following reasons:

• Immediately after Mr. Toor was stopped by P.C. Fernandez he never told the officer that he had a bone fide belief that his sister was in danger.
• When questioned about the blood in his motor vehicle while Mr. Toor never told P.C. Fernandez or P.C. Clayton that the police must attend his home to save his sister from imminent harm.
• Mr. Toor had a limited but basic understanding of the English language and could have expressed his concerns in the most rudimentary way.
• When questioned by P.C. Darcy about the use of a knife in his home he never mentioned any concern for his sister's well-being beyond the request to make a call to his sister.

[77] I recognize that when a defendant has been arrested, that person naturally has the right to remain silent and there is no obligation upon the defendant to explain anything. This was, in fact the case in Valauskas, supra. It was argued and rejected by Justice Pringle that because the defendant did not mention the threatened use of a knife by his attackers to the police when he approached the police to tell them that he had been assaulted that failure to further explain the attack could not be used to diminish his credibility. See Valauskas, supra para. 21. When he told an officer about the assault and being beaten up, the next thing he knew was that he was the one being arrested. He was angry and wanted to speak to a lawyer and was told not to say anything, so he didn't say anything further about the knife.

[78] In the case at bar, Mr. Toor received legal advice but regardless continued to talk to the police in both broken English and through P.C. Saini and yet never mentioned the knife and never explained anything about his sister.

[79] This was not clearly a situation of imminent peril.

[80] Based on my finding that the circumstances never presented as a clear and imminent peril or danger to Mr. Toor's sister that should end the matter. However, if I am wrong in my assessment of Mr. Toor's honestly and reasonably held belief that his sister was in peril and that I cannot or should not bifurcate Mr. Toor's drive to and from the hospital, I will address the remaining requirements.

Was there a reasonable legal alternative to the course of action taken?

[81] Notwithstanding the fact that Mr. Toor lived only three kilometers from the Brampton Civic Hospital, and his friend was potentially in mortal danger from the inflicted stab wound, he did have the following alternatives rather than driving Mr. Dhaliwal to the hospital while impaired:

• He could have called 911 from his home for an ambulance or other first responders who have medical training like the police to attend his home.
• He could have called a neighbor to drive Mr. Dhaliwal to the hospital.
• Even if I accept for a moment that the only reasonable action taken was to drive his friend to the hospital, there was a reasonable alternative he could have undertaken rather than to drive back to his house to aid his sister. He could have entered the hospital and asked hospital staff to call the police and directed them to his house.

Was Mr. Toor's actions by driving while intoxicated proportional to the harm avoided?

[82] Mr. Toor was stopped by police and arrested before anyone was injured or killed by his driving notwithstanding that he was only a short distance from his home, however the reality was that he was operating a motor vehicle while impaired by alcohol and posed a serious risk to himself, other drivers and pedestrians that evening. Once he had dropped off Mr. Dhaliwal at the hospital the degree of peril had lessened and Mr. Toor's continued driving became disproportionate to the hazard that he was posing because of his impairment.

[83] In the result, and based on the facts and finding of credibility the defence of necessity cannot be established. Mr. Toor is guilty of count 1.

Failure to provide a suitable sample

[84] The essential elements of the offence that the Crown must prove are:

i. a proper demand;

ii. a failure or refusal to provide the required breath sample;

iii. an intention to fail or refuse to provide the required sample; and

iv. once raised by the evidence, the absence of a reasonable excuse. See R. v. Goleski, 2014 BCCA 80, [2014] B.C.J. No. 347 at para. 71 and R. v. Lewko, 2002 SKCA 121, [2002] S.J. No. 622 (C.A.)

A proper demand

[85] No issue was raised that there was no right to make a demand pursuant to section 254(3) or that the demand was improper. That only leaves three elements to consider.

A failure of refusal to provide the required breath sample

[86] It is clear from my observations of Mr. Toor on the video that he understood the directions that were provided to him by P.C. Darcy and translated by P.C. Saini. I do not accept the assertion that Mr. Toor's was too intoxicated nor was incapable nor had difficulty understanding P.C. Darcy's directions on how to provide a sample of his breath.

[87] P.C. Darcy confirmed that the instrument was in proper working order. It had been calibrated and tested. There was no defence challenge that it was not working properly. P.C. Darcy self-tested the instrument before and after Toor's failed attempts. There were no defects in the mouth piece.

[88] I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Toor failed or refused to provide the required sample.

An intention to fail or refuse to provide the required sample

[89] There is an overlap in the proof that is required to prove both the actus reus and the mens rea in "failure" cases. Whenever there is an outright refusal to blow, mens rea can be presumed. However, where there is a failure alleged, more proof is required. Therefore, whenever the defence argues that the accused did not intentionally refuse to provide a sample, the court must analyze the evidence to determine if mens rea has been proved beyond a reasonable doubt.

[90] The Crown was obligated to prove that the failure to provide suitable samples was the result of volitional behavior on the part of the Mr. Toor. Mr. Toor must be acquitted if he raised a reasonable doubt as to the voluntary nature of his refusal, even if his evidence did not establish a reasonable excuse on a balance of probabilities. See R. v. Manak, [2008] O.J. No. 1718.

[91] The jurisprudence in this area of law established two main principles that must be applied to this case.

[92] First, in considering whether or not the Crown has proved beyond a reasonable doubt that Mr. Toor has refused or wilfully failed to comply with a breath demand, the court must look at all of the circumstances of the entire transaction between P.C. Darcy and Mr. Toor.

[93] Second, as set out in R. v. Tavangari, [2002] O.J. No. 3173 (O.C.J.), there was a constellation of factors that a court must assess in deciding whether or not there has been a refusal or wilful failure to provide a screening sample. I am not dealing with a refusal to provide a screening sample at the roadside. Nevertheless, this case was very helpful in examining a non-exhaustive list of factors. In the Tavangari decision, the court indicated, at paragraph 16, that some of those factors were as follows:

• the explanation given to the accused about testing procedure, R. v. Chance [1997] O.J. No. 4939 (Ont. C.J.),
• evidence of language difficulties or other problems that might interfere with the accused's understanding of instructions or warnings by the officer, R. v. Kuczak 24 M.V.R. (3d) 89
• evidence or lack of evidence of the accused's efforts to provide a sample, R. v. Frianchi (1999), 49 M.V.R. (3d) 48 (Ont. S.C.J.),
• the amount of time during which testing was conducted, R. v. Tynkaluk, [1989] O.J. No. 957 (Ont. Dist. Ct.) 10 minutes, R. v. Brown, [2002] O.J. No. 2821 (Ont. C.J.) 7 minutes,
• the number of tests attempted, R. v. Tynkaluk, supra, 8 attempts; R. v. Chance, supra, 4 attempts,
• whether the accused was warned it was a criminal offence to refuse, R. v. Tynkaluk, supra,
• whether the accused was told of the consequences of refusal, R. v. Fontaine (1990), 25 M.V.R. (2d) 308 (Alb. Q.B.), R. v. Chance, supra,
• whether the accused had been warned that he was being given a final chance to provide a suitable sample, R. v. Tynkaluk, supra; R. v. Cameron, [1997] O.J. No. 587 (O.C.J.),
• where there is a direct refusal, the words spoken and whether they were equivocal, R. v. Taylor, [1998] O.J. No. 2167 (Ont. S.C.),
• where the Crown alleges a failure to provide a sample, the reasons given by the police constable for terminating the testing, R. v. Taylor, supra,
• where there is a request to take a further test post arrest, whether the equipment and operator were still available, R. v. Tynkaluk, supra, and, the ease of setup and operation of a screening device (to take a further test), R. v. Chance, supra,
• the time delay, if any, between the arrest for failure or refuse and the request for another chance to provide a sample, R. v. Hines, [1998] O.J. No. 5831 (Ont. Gen. Div.) 8 minutes, R. v. Frianchi, supra, immediate,
• the reasons given by the police constable for not providing a further opportunity post-arrest if requested R. v. Taylor, supra.

[94] Mr. Toor was given twelve opportunities to provide samples of his breath. P.C. Darcy could not have been clearer in providing guidance and direction on how to provide a sample. P.C. Darcy demonstrated patience. It was obvious to him that Mr. Toor was not respiring any air into the mouth piece. It seemed from the video that anytime Mr. Toor's exhalation of air activated the tone he would stop blowing. I accept P.C. Darcy's evidence that at certain times Mr. Toor was not emitting any air into the mouth piece as he did not feel the "rush of air" on the palm of his hand. There were no obvious health related issues that deprived Mr. Toor of the ability to provide an adequate sample. I find that Mr. Toor did not want to provide a sample. In fact, I believe that very early on during the process that he had decided that he was not going to cooperate in the breath room.

[95] As soon as he was presented with the mouthpiece Mr. Toor said to both P.C. Darcy and P.C. Saini that he had a few drinks that evening and they could write whatever they wanted to write. Mr. Toor repeated that statement in after his sixth and eighth attempts. P.C. Darcy and P.C. Saini explained the legal consequences to Mr. Toor if he did not fulfil his legal obligation to provide a sample.

[96] I find that Mr. Toor was provided a reasonable and fair opportunity to provide a suitable sample of his breath. He was told to give one long continuous blow and not to stop until to do so by P.C. Darcy. He was encouraged to blow harder and longer. He had a Punjabi translating police officer to assist him. He was told of the legal consequences of not providing a sample of his breath. I am satisfied beyond a reasonable doubt that Mr. Toor wilfully failed to provide a sample by pretending to blow into the instrument.

Once raised by the evidence, absence of a reasonable excuse

[97] As I have found that the Crown has proven the basic elements of the offence, I must consider whether or not the defence has raised a reasonable excuse. Mr. Toor need only raise the question of a possibility of a reasonable excuse by producing sufficient evidence of "something" that is capable of being a reasonable excuse or as has been said of satisfying the court that there is an "air of reality" to the defence. However, it is a question of law as to whether or not something put forward is capable of being a reasonable excuse. If it is capable of being a reasonable excuse, once the evidentiary burden is satisfied by the defence, the persuasive burden remains on the Crown. See Manak, supra.

[98] The evidence raised by the defence in relation to a reasonable excuse involved Mr. Toor being too intoxicated to follow P.C. Darcy's instructions and/or to properly blow into the instrument. The defence did not point to specific examples of gross signs of intoxication. The defence highlighted the fact that P.C. Darcy had stated to Mr. Toor that he thought that he was too impaired to do the test properly. I accept P.C. Darcy's explanation that he was challenging him to do the test. But even if I am wrong in that regard it is up to the court to assess all of the evidence to determine whether or not Mr. Toor was so grossly intoxicated he did neither understand the nature of the test and nor performed it properly. However, I do not accept that Mr. Toor's intoxication by alcohol was the reason why he could not provide an adequate sample. Mr. Toor displayed the classic signs of impairment: unsteadiness, stumbling, needed to support himself when he initially got out of his motor vehicle, the odor of alcohol on his breath, red, bloodshot and watery eyes, slurred speech. Even P.C. Saini volunteered that Mr. Toor was "very intoxicated". Moreover P.C. Darcy categorized Mr. Toor's level of impairment as "noticeable". However, I am not satisfied that Mr. Toor was so grossly intoxicated that he was neither incapable of following P.C. Darcy's direction nor unable to perform the breath test adequately. See R. v. Abdool, [2003] O.J. No. 4107 at para. 27, affd [2006] O.J. No. 2998 (S.C.J.). Mr. Toor did not display "gross signs" of intoxication such as falling asleep, being overly aggressive towards the officers, yelling and screaming, or complete loss of motor functions.

[99] Based on the visual evidence contained on the breath room video, Mr. Toor's demeanor and comportment, and the totality of the evidence, I have concluded that Mr. Toor's inability or unwillingness to provide a sample of his breath had more to do with malingering or pretending and less to do with his impairment by alcohol.

[100] On the facts of this case, and in law, voluntary intoxication to the extent that Mr. Toor could not follow Darcy's instruction and could not perform the test is not capable of constituting a "reasonable excuse". Therefore, I do not need to deal with whether or not the defence has met its evidentiary burden.

[101] As already stated in my reasons, I am satisfied that the Crown has met its burden in proving all the elements of the offence, and therefore I do find Mr. Toor guilty of that charge, count #2.

Released: May 31, 2018

Signed: Justice P.T. O'Marra