Court File and Parties

Date: August 31, 2018 File No.: CSA 9457 Ontario Court of Justice

Her Majesty the Queen v. Dieter King

Before: The Honourable Justice S.N. Latimer

Delivered: August 31, 2018 at Kitchener, Ontario

Appearances

S. McNaughton – Counsel for the Provincial Crown

R. Heighton – Counsel for Dieter King

Reasons for Decision (Charter Application)

LATIMER, J. (orally)

These are my Reasons for Decision with regard to the Charter Application brought on behalf of Mr. King during the trial as well as my ultimate Reasons for Judgment.

First, with regard to the Charter Application, counsel have focused the issue on whether reasonable and probable grounds have been established for Mr. King's arrest by Constable Burnham. The Crown bears the onus on this issue. See R. v. Haas, 200 CCC (3d) 81. At the close of the submissions, I advised that the Application was dismissed with Reasons to follow. These are those Reasons.

Relevant Legal Principles

The authorities filed on this Application properly document the analytical route to follow in regards to this common legal question. I would expressly note the following:

1. Nature of Grounds Assessment

An inquiry into grounds is an assessment into the reasonableness of a particular officer's belief. In this context, the belief is essentially an opinion. See R. v. Censoni, [2001] O.J. 5189, at para. 44, Justice Casey Hill, SCJ:

"While a particular aspect of a police officer's roadside information, for example, observations of the driver or facts relating to the operator's driving, may deservedly achieve greater prominence in the circumstances of a particular case, it must not be forgotten that reasonable grounds as to impairment to drive is essentially an opinion. As such, the belief based on perceived facts is frequently a compilation of a state of facts that are too subtle and complicated to be narrated separately and distinctly. It is accordingly somewhat antithetical to this understanding that in reviewing whether reasonable grounds objectively existed, we compel a police witness to unbundle the facts contributing to the impression of driving impairment. We do so, however, only to the extent necessary to secure the comfort that the grounds are objectively supported."

2. Standard of Proof

Drinking and driving prosecutions involve a range of findings, with reasonable and probable grounds lying somewhere between suspicion and proof beyond a reasonable doubt. See R. v. Bush, 2010 ONCA 554, 259 CCC (3d) 127 at para. 36 through 38, Justice Durno writing for the Court of Appeal.

3. Non-Onerous Test

The Court of Appeal has more than once stated that reasonable grounds is "not an onerous test". See R. v. Bush, para. 46, and R. v. Wang, 2010 ONCA 435, at para. 17.

4. Quick but Informed Decisions

My review function on this Application must acknowledge that officers involved in drinking and driving investigations are making "quick but informed decisions, whether there were reasonable and probable grounds". See R. v. Bush, para. 45.

5. Objective Test

The test is whether, objectively, there are reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol. R. v. Bush, para. 48.

6. Threshold Not Onerous

The decision I find particularly helpful is R. v. Censoni, referred to earlier. In paragraph 43, His Honour states:

"Reasonable grounds in the context of a Section 254(3) demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom. All too often, however, the defendant invites the trial court to engage in minute decisions of the officer's opinion, an opinion developed on the spot without the luxury of judicial reflection. This undoubtedly led McFadden, J.A. in R. v. McClelland, at 517 to observe, that it is neither necessary nor desirable to hold an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable."

Respectfully, in my view, Mr. Heighton's submissions trend towards the sort of piecemeal approach to the evidence disapproved of by the higher courts.

Analysis

Applying these principles to the present facts, I am satisfied that the officer subjectively believed the information in his possession met the RPG standard of credibly based probability, and that his belief was objectively reasonable. He had access to the following information:

1. Vehicle Circumstances

The Applicant was the only individual standing next to his vehicle that had left the roadway, seemingly over a curb onto a boulevard. He advised a third party over the phone – likely a tow truck driver – that he had been driving.

2. Independent Witness Report

An independent witness had called in to 911 stating that a male, who Constable Burnham reasonably believed was the Applicant, had been involved in a collision and the witness "suspected the driver to be possibly impaired because of slurred speech and slow responses."

3. Odour and Consumption

The officer detected an odour of alcohol on the Applicant's breath, and was advised that he had consumed two drinks two hours before.

4. Physical Observations

Constable Burnham also observed slurred speech and somewhat slow movements on the Applicant's behalf. These observations are corroborated by the 911 witness.

I am not bothered, on the facts of this case, by the officer's inability to articulate precisely how he was slurring. He described a "thick tongue". While the officer did not know how the Applicant normally spoke or moved, these are nevertheless reasonable pieces of circumstance that the officer properly considered, as he testified "in totality", along with other factors, such as the Applicant's glassy red-rimmed eyes and the odour of alcohol.

5. Vehicle Condition

The state of the vehicle itself was properly relevant to the officer's assessment of impairment. It had exited the road in circumstances where the roads were clear, level and lightly travelled. The weather in the area seemingly was not an issue. The officer considered the possibility of the axle breaking, as noted, but in his view that did not provide an exculpatory explanation, as impairment may have contributed to the circumstances that led to the car breaking down. In my view, that was a reasonable assessment, keeping in mind that I am not conducting a trial of decisions made by a trained officer at the roadside, essentially in the moment, in the field.

In any event, the fact that there may be another explanation for the accident does not take away from the existence of grounds in the circumstances. See the related reasoning in R. v. Censoni, para. 47.

Likewise, the absence of other common indicia of impairment does not mean that the present facts do not make out the non-onerous RPG standard.

6. Officer's Language and Experience

While the officer's choice of language was sometimes inelegant - for example, intoxicated, fall down drunk, etcetera - I am satisfied that what he meant to convey was that, while the Applicant was not grossly impaired or intoxicated, he was impaired at a level that satisfied the officer he could arrest for impaired driving. I do not accept the argument that the officer's experience in this area, and his perspective that many accidents or collisions that occur in the early morning are alcohol related, created a bias towards that outcome in this particular investigation. I am satisfied he applied his experience and training towards the actual factors and information before him. See R. v. Amare, 2014 ONSC 4119, [2014] O.J. 5225, para. 83 (6) through (12), aff'd 2015 ONCA 673.

7. Approved Screening Device

The presence of the approved screening device does not mean that the officer was obligated to conduct that test prior to arresting the Applicant. The Code provisions provide the police the discretion and authority to decide what investigative steps are required and appropriate. The decision to proceed down a particular route need not be right, it only must be reasonable. On the basis of the present facts, the officer subjectively believed he had a basis for an impaired arrest. I accept that belief was objectively reasonable. I note Justice Hill's comments at paragraph 50 of Censoni:

"A police officer investigating a suspected instance of impaired operation of a motor vehicle need not cascade through a sequence of 254(2) roadside screening device breath demand to 254(3) Intoxilyzer demand. There is no legal obligation to use the alert procedure. It is simply an investigative tool to assist, where necessary, in the formation of reasonable grounds. The investigator may use one or the other or both demands."

8. Fact-Specific Inquiry

At bottom, an inquiry into reasonable grounds is fact specific. It is difficult to catalogue the various ways in which impairment may affect driving. I am satisfied on the basis of the present facts that Constable Burnham's arrest decision rested on a lawful foundation.

I note the Court of Appeal's deployment of strong language in R. v. Squires, 166 CCC (3d) 65, at p. 72, on somewhat analogous facts, in concluding that an officer's grounds were objectively reasonable.

Disposition

Crown has satisfied me that a lawful basis existed for the Applicant's arrest. Charter Application is dismissed.

Reasons for Judgment

LATIMER J. (orally)

With regard to the trial itself, Mr. King is charged with three offences: impaired driving, possession of marijuana and failing to provide a breath sample. After the Charter Application, he acknowledged the possession count had been proven. There will be a finding of guilt on that count.

With regard to the impaired count, as discussed a moment ago, reasonable grounds sit some distance away from proof beyond a reasonable doubt on the fact finding continuum. In the present case, the Crown reasonably submits, at the close of the evidence, that the only way he can establish impairment beyond a reasonable doubt is if the fail to provide count is proven, and an adverse inference is drawn pursuant to Section 258(3) of the Code. I note that statutory inference is permissive and not mandatory.

In the circumstances, it makes sense for me to begin with the fail to provide breath sample analysis.

Applicable Legal Principles

At the outset, I instruct myself on several core principles. Mr. King is presumed innocent. The Crown bears the burden of displacing that presumption with proof beyond a reasonable doubt that he committed a criminal offence. In this prosecution, that burden never shifts. In the circumstances of this case, Mr. King can only be found guilty if I am satisfied to this exacting standard with regard to all of the essential elements of failing to provide a breath sample.

Proof beyond a reasonable doubt is inextricably linked with the presumption of innocence that applies in all criminal trials. The law does not lightly brand someone a criminal. A reasonable doubt is one based on reason and common sense and logically derived from the evidence or the absence of evidence.

R. v. Lifchus, [1997] 3 SCR 320, at para. 36 and R. v. Sanichar, 2012 ONCA 117, at para. 46.

As Mr. King made the decision to testify in this case, I instruct myself in a manner consistent with the principles that follow from the Supreme Court's decision in R. v. W(D), [1991] 1 SCR 742, 63 CCC (3d) 397, at 409.

Refuse Breath Sample

Certain elements are readily proven in this case. First, the compulsion to have Mr. King provide a sample was based on a lawful demand. Second, there is no doubt that, from an actus reus perspective, he failed to provide the breath technician with a suitable sample of breath. The key issue in this case is the mens rea component of the offence provision. In R. v. Colson, 2018 ONCJ 118, I reviewed my understanding of this area of the law, and do not see the need to repeat that understanding here. I adopt my prior analysis at paragraphs 33 through 40 of that Judgment. The Crown must prove beyond a reasonable doubt:

1. The existence of a lawful demand.

2. An act or series of acts that constitute a failure or refusal.

3. An intention, as explained in Justice Paciocco's Judgment in R. v. Soucy and Justice Nordheimer's Judgment in R. v. Slater, to commit the act.

In Soucy, 2014 ONCJ 497, 316 CCC (3d) 153 written before Justice Paciocco's elevation to the Court of Appeal, His Honour reviewed the extensive body of case law discussing the nature of the mens rea component for this offence, as well as some of the more traditional mens rea judgments from the Supreme Court. In paragraph 50 he wrote:

"If the principles of mens rea are properly applied in my view, the basic mens rea of intention that is to be read into section 254(5) requires, at its highest, no more than that the accused must refuse or fail 'on purpose.'"

In Slater, 2016 ONSC 2161, 94 MVR (6th) 224, Justice Nordheimer, at the time sitting on the Superior Court of Justice, wrote the following at paragraph 12 of a summary conviction appeal judgment:

"The decision in Sullivan is consistent with what I say is the proper reading of both Lewko and Porter and, that is, that, absent evidence to the contrary, or evidence that raises a reasonable doubt, proof of the requisite mens rea for the offence will be met by the application of the general principle that a person, who does something that has predictable consequences, usually intends or means to cause those consequences. Put more directly, evidence that a person who tries multiple times to provide a breath sample, and in each instance fails to provide a sample, gives rise to an inescapable inference that s/he is intending that result, absent some other evidence being present that would suggest an absence of such an intent, or at least raise a reasonable doubt about it."

Analysis

Constable Jason Darnell is a qualified breath technician. He conducted the test procedure with Mr. King. Earlier, the arresting officer had provided Mr. King with a breath demand, which I am satisfied he understood. Mr. King was aware that he had to provide a suitable sample, lest he have his license taken away by the police.

Constable Darnell's interactions with the defendant in the breath room are videotaped. I have watched that recording and have had the benefit of a transcript as well. I have considered the entirety of the officer/detainee interaction during my deliberations.

Constable Darnell testified that the instrument was in proper working order prior to Mr. King's test. He explained that the instrument provides a tone when air is blown into the device, and that there is a minimum flow rate to register a sample. A proper sample requires, at minimum, one second of sufficient air. Constable Darnell found Mr. King challenging and argumentative. Having watched the video, I would agree with that assessment. There is a pattern of conduct during Mr. King's successive attempts where at times he appears to be blowing into the device but no tone registers. At other times, there is no tone, then tone for a period of time – perhaps two to three seconds – and then it stops again.

The officer, at times, has to re-direct and re-explain the process to Mr. King. Mr. King presents aggressively and angrily during the test procedure, seemingly getting angrier the more times he, on his evidence, tries to provide a sample and fails. Perhaps angry and frustrated is a better description.

Near the end of the interaction, Constable Darnell advises Mr. King that he is going to be given another chance to blow, likely his last. However, before that can occur, the instrument timed out and Officer Darnell decided that he had sufficient evidence, and he arrested Mr. King for the 254(5) charge.

I found the officer to be a reasonable officer who struggled to deal with a difficult – at times difficult – test subject during an increasingly more animated interaction. At times, the officer's temper is raised during the interaction. I suspect that emotion informed - to a degree - his decision, ultimately, to end the test process.

Mr. King testified in his own defence. He finished work at 11:00 p.m. He works in metal finishing and has asthma. His work location contains, among other things, hydrochloric acid, zinc and other metal cleaners that can create a "fog" in the air that gets in the lungs. It can affect his breathing, at times. Mr. King also takes a puffer at least twice a day – when he goes to bed and when he wakes up. He will also take it intermittently, if required, during the day. He had taken it last after work that night at 11:00 p.m.

Mr. King testified he went to the Brantford Casino at 1:00 a.m., stayed until about 4:30 or thereabouts. He had one beer closer to 1:00. He thereafter had a Sprite. He was driving home and the axle broke on his classic car, causing the accident or collision that has been described and that led to his contact with the police. He described when he got the car back fixing it, and repairing axle seals that had cracked.

Simply put, he testified he tried his best to provide a sample. He was trying his hardest, but he simply was not able to. His lungs were sore that day from work, but he was blowing to the best of his ability. He asked at one point to blow into an OPP device, which he apparently had some experience with. He also asked, upon being removed from the breath room, if he could provide a blood sample. He testified he very much needed his license, and was trying his best to provide the sample required but failed in the attempt. He did not recall his asthma specifically causing him difficulty.

This case largely turns on the burden of proof and the W(D) analysis. Do I believe Mr. King that he was trying to provide a suitable sample? Not particularly. The intermittent tone on the device and Mr. King's manner of interacting with the officer strongly suggests to me that he was intentionally trying not to provide suitable air in order to evade the results of the test process. However, the analysis on this element requires proof beyond a reasonable doubt, and I am not satisfied to that level on the evidence as a whole.

There is evidence present in the record that creates sufficient doubt in my mind with regard to whether Mr. King was failing to provide a sample on purpose. I come to this conclusion, in part, for the following reasons:

1. Physical Indications of Exertion

There are at times physical indications of Mr. King's exertion in providing a sample, as Mr. Heighton noted in his submissions.

2. Credibility on Certain Points

There are certain aspects of Mr. King's evidence I do accept, such as his narrative of his attendance at the casino, the consumption of only one beer before 2:00 a.m., and the subsequent discovery of why the car broke down – that is the axle seals. While I can, of course, accept some, all of none of his evidence, his credibility on these certain points informs my assessment of his evidence on other points such as his evidence that he had breathed in fumes at work that evening and that his breathing was impaired to a degree.

3. Offers of Alternative Testing

If this was all the evidence, I would likely have been satisfied the Crown had met its burden in this case. However, there is more. Mr. King said multiple times that he was willing to take a different form of test, either via a different breath device or a blood sample. While it is not for the detainee to choose the form of test, these offers to participate in testing in a different form, or on a different device, are relevant to Mr. King's intention in this particular fail to provide scenario.

The Court of Appeal, in a decision called R. v. S.B., 36 O.R. (3d) 516, at 527, with Justices Rosenberg and Doherty writing for the court, stated:

"As a matter of logic and human experience, a trier of fact could conclude that the accused's conduct after his arrest was inconsistent with that of a person who had committed the crime alleged."

To be clear, I do not believe that the offer of a blood sample relieves an accused of the obligation to provide a breath sample. It is not for an accused to decide what type of sample to provide. The law places that discretion with the trained officer. I am aware of the authorities holding that an offer of a blood demand does not amount to a reasonable excuse. For example, R. v. Richardson, 80 CCC (3d) 287 from the Court of Appeal. This is not the approach that I am taking here.

In the unique circumstances of this case, however, a fail to provide case, where the key issue is whether the accused's failure to provide a sample was on purpose, or intentional, the fact that Mr. King was exhibiting frustration with the testing process - at times causing some tone on the instrument, at other times not - and requesting to provide a breath sample on another device and then a blood sample, corroborates, to a degree, his testimony that he was aware of the obligation to provide a sample and was trying to so provide. Mr. King's offer to provide a blood sample is inconsistent with someone who is intending to frustrate an investigator's attempts to ascertain his blood alcohol concentration.

I believe these actions are relevant and admissible on the issue of intent and, in the circumstances of this entire evidentiary record, leave me in a state of doubt following his testimony about whether he intended to fail to provide a suitable sample on purpose.

Disposition

Mr. King is found not guilty of failing to provide a breath sample. In the circumstances, I entirely agree with the Crown's concession that they otherwise have not established the impaired charge to the Stellato standard, beyond a reasonable doubt. Mr. King will be acquitted on that charge as well. He is found guilty of possessing marijuana.