Court File and Parties

Court File No.: Brampton 17-012580 Date: 2018-10-26 Ontario Court of Justice

Between: Her Majesty the Queen

- and -

Gurkit Virk

Before: Justice James Stribopoulos

Heard on: August 22, October 5, 11, 2018

Reasons for Judgment Released: October 26, 2018

Counsel:

• Ms. Robin Prihar, for the Crown
• Mr. Bally Hundal, for Mr. Virk

STRIBOPOULOS, J.:

Introduction

[1] Mr. Virk is charged that he did "fail or refuse" to provide a breath sample, in response to an approved screening device demand, contrary to section 254(5) of the Criminal Code of Canada.

[2] The charge resulted from a routine vehicle stop to check on the sobriety of a driver. There were just two witnesses at trial, the arresting officer (Constable Shabbir), and the defendant (Mr. Virk).

[3] Although the witnesses agree about some of the events that were the focus of this trial, there is a sharp conflict between their respective accounts on two key points. First, whether or not Mr. Virk made genuine efforts to furnish a breath sample. Second, whether or not he ultimately refused to provide a breath sample. In addition to these two issues, the court must also address a potential Charter violation that emerged during the course of the trial.

[4] The Charter issue relates to the use of handcuffs at the roadside while police were attempting to obtain a breath sample. Mr. Virk claims that police handcuffed him at the roadside before his arrest. In contrast, Constable Shabbir denies this took place, explaining that it would not be in keeping with the usual police procedure. That said, the officer acknowledges a less than perfect recollection regarding the circumstances involving Mr. Virk.

[5] Consequently, the court must also decide if police handcuffed Mr. Virk during the roadside breath testing process. If they did, then this raises for consideration the authority of police to handcuff a motorist subject to an approved screening device breath demand. And, finally, if that authority was exceeded in this case, the potential Charter implications.

[6] Given the conflicting evidence of Constable Shabbir and Mr. Virk on these various issues, a summary of their respective accounts is necessary.

Constable Shabbir's Evidence

[7] Constable Shabbir testified that shortly after 3:00 a.m. on the morning of October 11, 2017, in a residential neighbourhood in Brampton, his attention was drawn to the vehicle Mr. Virk was driving.

[8] The officer first noticed a vehicle travelling towards him, mainly in the wrong lane of traffic. The officer then decided to follow the car. He observed the driver make an abrupt turn onto another street without signalling. As a result, the officer decided to conduct a traffic stop. The officer did so by activating the lights on his fully marked police cruiser. Despite this, the driver did not immediately stop. Instead, the vehicle continued travelling a short distance further before pulling into the driveway of a residence. As it did so, the passenger side wheels of the car mounted the curb.

[9] Beyond Mr. Virk, there were also two passengers in the vehicle. In response to the officer approaching his car, Mr. Virk rolled down the driver's window only a few inches. Constable Shabbir testified that he requested that Mr. Virk roll his window down further and that he also surrender his driver's license. According to Constable Shabbir, Mr. Virk ignored both of these requests.

[10] The officer testified to telling Mr. Virk that he was conducting a sobriety check, due to the poor driving he had just observed. He asked if Mr. Virk had anything to drink that evening. Mr. Virk reportedly answered that he had had a drink about thirty minutes earlier. The officer then asked Mr. Virk where he was drinking, what he had consumed, and how much. The officer testified that Mr. Virk did not respond to any of these questions.

[11] With his face close up to the opening in the driver's window, Constable Shabbir testified he could smell the strong odour of an alcoholic beverage emanating from inside the car. He also observed that Mr. Virk's eyes were red-rimmed and watery.

[12] The officer testified that he then asked Mr. Virk to roll his window down further or to exit the vehicle. Mr. Virk did neither. Instead, he remained seated in the car, looking straight ahead.

[13] Given Mr. Virk's inaction, Constable Shabbir called for another police officer to attend the location to assist him. When the second officer arrived, he also spoke to Mr. Virk, who finally agreed to exit his vehicle.

[14] Once he was outside of his car, Constable Shabbir testified that he formed a reasonable suspicion that Mr. Virk had alcohol in his body. The officer identified a collection of factors that caused him to come to this conclusion. He cited the bad driving, the strong odour of alcohol coming from inside the car, Mr. Virk's failure to roll his window down and the fact that he was generally non-responsive to questions. (The officer did not mention Mr. Virk's admission of consuming alcohol in forming his grounds, or his red-rimmed and watery eyes.)

[15] The officer testified that he walked Mr. Virk to his cruiser, and had him sit in the back seat, with the door open and Mr. Virk's feet extending out of the vehicle.

[16] At some point, either before or soon after Mr. Virk was seated in the police cruiser, the officer read him a formal approved screening device breath demand. When asked if he understood the demand, Mr. Virk reportedly answered: "yes sir."

[17] The officer then readied the approved screening device, a Drager Alco-Test 6810. The device had undergone an accuracy check on October 1, 2017, and was last calibrated on June 11, 2017.

[18] The officer demonstrated to Mr. Virk how to provide a sample into the device, readying the device and placing a mouthpiece on it, before blowing into the device himself. The device showed the officer had a "0" blood alcohol concentration. Given that Constable Shabbir did not have any alcohol to drink, he was satisfied that the device was in proper working order.

[19] The officer then replaced the mouthpiece that he had just used with a fresh one and presented the device to Mr. Virk so that he could provide a breath sample. The officer testified that Mr. Virk was seated in the rear of the cruiser, with his feet protruding out of the car when the officer extended the device with the attached mouthpiece and brought it close enough for Mr. Virk to place his lips on the mouthpiece. He instructed Mr. Virk to blow.

[20] According to the officer, although the end of the mouthpiece was in Mr. Virk's mouth, Mr. Virk did not blow any air into the device. In coming to this conclusion, the officer noted that Mr. Virk did not appear to be making any effort to blow. The officer could not hear any air passing into the mouthpiece nor could he see any expansion in Mr. Virk's cheeks consistent with him blowing. Nor did the device register any message on its display. The officer testified that if Mr. Virk had blown into the device but provided a sample of his breath that was insufficient for analysis, a message to this effect would appear on the LED display. No message appeared.

[21] As a result, the officer was of the opinion that Mr. Virk was not blowing into the device. He pulled the device away from Mr. Virk, and gave him further instruction, telling him that he must exhale and blow into the device. Mr. Virk responded by saying that he "did blow." The officer told him he must blow harder, and Mr. Virk answered, "okay."

[22] The officer then presented the device again, using the same mouthpiece as the first attempt, extending it to Mr. Virk. Mr. Virk again placed his lips on the mouthpiece. The officer testified that once again Mr. Virk did not appear to be blowing. The officer did not hear any air passing into and through the mouthpiece and saw no expansion in Mr. Virk's cheeks. This again suggested to him that Mr. Virk was not making any effort to blow. Once more, there was no message on the device to indicate any sample had been furnished, including an insufficient sample.

[23] Another attempt followed, the third by Mr. Virk, with the very same results.

[24] The officer testified that, in response, he once again demonstrated to Mr. Virk how to provide a suitable sample. He did so by using a different mouthpiece, while unattached to the device, holding the mouthpiece up and blowing through it himself. According to the officer, Mr. Virk observed this demonstration and appeared to understand; but did not respond.

[25] The fourth attempt by Mr. Virk followed. Again, using the approved screening device, with the same mouthpiece affixed to it during the first three "attempts" by Mr. Virk. The officer extended the device to Mr. Virk, who once again placed his lips on the mouthpiece. According to the officer, Mr. Virk did not appear to be blowing any air into the device. Just like before, there was no sound of air passing through the mouthpiece and into the device and no expansion of Mr. Virk's cheeks. Similarly, the LED display did not register the receipt of any breath sample.

[26] Given this, Constable Shabbir testified to telling Mr. Virk that he must try again and that he must furnish a breath sample. With this, the officer testified that Mr. Virk appeared to become frustrated and said that he believed he was blowing correctly. The officer told him to "blow into it again, so I can hear the sound of air." Mr. Virk reportedly responded to this by saying: "I already did, you guys are playing games with me."

[27] According to Constable Shabbir he responded by asking Mr. Virk to blow again, to which Mr. Virk reportedly replied "no."

[28] Constable Shabbir testified that he then cautioned Mr. Virk that failing to provide a breath sample is a crime and that the consequences of that offence are the same as those for driving "under the influence." According to Constable Shabir, Mr. Virk responded to this caution by saying: "Do what you have to do, arrest me for it if you have to."

[29] Given Mr. Virk's response, Constable Shabbir testified that he proceeded to arrest Mr. Virk for refusing to provide a breath sample.

[30] According to Constable Shabbir, the initial effort to obtain a breath sample from Mr. Virk began at 3:34 a.m. After four failed opportunities, an outright refusal by Mr. Virk to comply, a clear warning, and a further refusal, the arrest was carried out at 3:45 a.m. Upon being informed of his arrest, Mr. Virk responded: "okay, but I did not refuse."

[31] Constable Shabbir also testified that once Mr. Virk exited his car, he noted an odour of alcohol emanating from his breath. He maintained that he continued to detect that odour as he dealt with Mr. Virk during his efforts to obtain a breath sample from him.

[32] Concerning his demeanour and attitude, Constable Shabbir testified that Mr. Virk seemed to grow more argumentative as events unfolded. Especially after the officer arrested him, with Mr. Virk questioning the legal basis for his stop, the details of the law that required him to furnish a breath sample, and taking exception to the towing of his vehicle. During this exchange, Mr. Virk reportedly kept complaining to the officer that the officer was "playing games" with him. The officer's overall impression was that Mr. Virk was "slightly" intoxicated on the morning in question.

[33] After being given his rights to counsel, when asked if there was a particular lawyer he wanted to call, Mr. Virk responded: "Yeah, but I'm not telling you who, I know I don't have to tell you that."

[34] Constable Shabbir testified that only after he placed Mr. Virk under arrest did he put handcuffs on him. Constable Shabbir denied the suggestion, put to him during cross-examination, that Mr. Virk was handcuffed soon after he exited his vehicle and remained so throughout the officer's efforts to obtain a breath sample. In that regard, Constable Shabbir testified that it was not "procedure" to handcuff someone before arresting them, and maintained that someone undergoing roadside breath testing is not under arrest and therefore handcuffs would not be used at that stage of an investigation. That said, when it came to his interaction with Mr. Virk, Constable Shabbir candidly acknowledged that he could not say for sure.

[35] Constable Shabbir explained the decision to have Mr. Virk sit in the rear of the police cruiser during the breath testing procedure as motivated by safety concerns. The officer acknowledged, however, that there was virtually no traffic that morning on what was a quiet residential street.

[36] Finally, Constable Shabbir conceded that he might have used the same mouthpiece throughout his efforts to obtain a breath sample from Mr. Virk. The officer did not remember ever replacing the mouthpiece, nor did he make a notation that he had. The officer acknowledged that he never checked the mouthpiece for any obstructions or defects that would have interfered with its operation. Finally, the officer testified that he did not retain the mouthpiece used during his efforts to obtain a breath sample from Mr. Virk.

Mr. Virk's Evidence

[37] Mr. Virk testified. In many respects, his evidence corresponds with that given by Constable Shabbir. There were, however, some critical points on which Mr. Virk disagreed with the officer's account.

[38] To begin, Mr. Virk denied that he had engaged in the sort of bad driving that Constable Shabbir described in his evidence. He conceded that he might have briefly travelled in the wrong lane of traffic, but maintained that if he had done so, it would only have been to pass a car parked at the curb on his side of the roadway.

[39] Mr. Virk maintained that he was handcuffed by the officer almost immediately after he exited his vehicle. He cited being handcuffed to the rear, while seated in the police cruiser during his attempts to provide a breath sample and the resulting pain and discomfort that this occasioned, as the reason why he was never able to provide an adequate breath sample. Mr. Virk was insistent in his evidence that he was not feigning efforts to provide a breath sample. Instead, he testified that he could not do so, given his positioning, with his hands cuffed behind him, leaning out of the rear seat of the cruiser, his feet dangling out of the car, and bent over so that his lips could make contact with the mouthpiece of the approved screening device. Mr. Virk essentially testified that he made his best efforts to provide a breath sample but was incapable of complying because of his awkward positioning and the resulting pain this caused him.

[40] Importantly, Mr. Virk testified that he never told the officer that he would not provide a breath sample. He maintained that he was aware of his legal obligation to provide a breath sample and tried his very best to comply. He testified that if he intended to refuse the request, he would have done so at the outset.

[41] Finally, Mr. Virk denied drinking any alcohol on the morning in question. As a result, he essentially denies having any motive to fail or refuse to provide a breath sample.

Findings, Law and Analysis

[42] Given the conflicting evidence, I will begin by explaining my findings. After that, I will address the various issues that must be resolved in deciding this case.

a. Credibility findings

[43] Given Mr. Virk's testimony, if I accept his evidence, I am required to find him not guilty of the charge. On his account, he made his best efforts to provide a breath sample and never refused to do so.

[44] Alternatively, even if I do not believe Mr. Virk's evidence, I must still go on to consider whether, when considered along with all of the other evidence, his evidence leaves me in a state of reasonable doubt relating to any of the essential elements of the charge.

[45] Finally, even if I entirely reject Mr. Virk's testimony and conclude that it does not leave me with reasonable doubt, the analysis is not complete. I must still go on to consider whether based on the remaining evidence that I do accept the Crown has proven the charge beyond a reasonable doubt.

[46] I watched and listened carefully to Mr. Virk as he testified. More importantly, I have carefully considered the substance of his evidence. In the end, I do not believe the critical exculpatory aspects of his account. Nor does his evidence leave me in a state of reasonable doubt. I will briefly explain why I have come to these conclusions.

[47] In short, I found aspects of Mr. Virk's testimony rather implausible. For example, he explained his failure to respond to the officer, when he first approached his car window, as the result of complete and utter shock. He denied noticing the officer before that. According to Mr. Virk, although he knew the officer was standing next to his car and speaking to him, he was unable to process what the officer was saying. Instead, he was entirely frozen and unable to communicate. He acknowledged that he did not suffer from any medical condition that would have caused him to respond to the presence of a police officer in this way. I found this aspect of Mr. Virk's testimony incredible.

[48] The idea that shock so overcame Mr. Virk, a licensed driver, at the presence of a police officer at his car window that he was incapable of following basic instructions, like a direction to roll down his window, surrender his license and step out of the vehicle, defies common sense. In my view, the far more likely explanation for his behaviour was that Mr. Virk had been drinking and panicked when confronted by a police officer. The odour of alcohol that the officer detected on him, his red-rimmed and watery eyes, and his bizarre behaviour, all suggest a young man who, due to the effects of alcohol, and possibly, a lack of maturity, did not want to deal with the situation he was facing. Instead, he chose to do nothing.

[49] I also found aspects of Mr. Virk's testimony, relating to the sequencing of events, confusing and, at points, internally inconsistent. In the end, I reject Mr. Virk's testimony on virtually every point where it differed from the evidence of Constable Shabbir.

[50] In contrast, I accept Constable Shabbir's evidence. The officer's evidence held together as a matter of logic and common sense. Moreover, unlike Mr. Virk's testimony, Constable Shabbir's evidence was not marred by internal inconsistencies. The officer also impressed me as a careful witness. His responses were measured. He readily conceded points that were detrimental to the Crown's case and acknowledged when there were shortcomings in his memory. As a result, I accept Constable Shabbir's evidence on virtually every point where it differed from that of Mr. Virk.

[51] As a result, I do not believe Mr. Virk's evidence that he made genuine efforts to provide a breath sample and was physically incapable of doing so. I also reject his evidence that at no point did he expressly refuse to furnish a breath sample. For substantially the same reasons, his evidence does not serve to raise a reasonable doubt concerning either of these critical issues.

[52] All of that said, I do prefer Mr. Virk's testimony on one discrete point when compared to that of Constable Shabbir. I think it more likely than not that Mr. Virk was handcuffed during efforts to obtain a breath sample from him at the roadside, as he claims. I note that during his testimony this is something about which Mr. Virk was both confident and consistent. In contrast, Constable Shabbir did not appear to have a clear recollection either way. He relied on police procedure and his training to testify that handcuffing would have been unjustified in the circumstances. Nevertheless, he acknowledged that he did not have any notes on this issue, and therefore was unable to say for certain that handcuffs were not used.

b. Handcuffing during roadside breath testing

[53] Although a motorist subject to an approved screening device breath demand validly made (i.e. a demand prefaced on the required grounds) is subject to lawful detention, such a motorist is not under arrest. Therefore, unless a motorist's conduct gives rise to objectively grounded safety concerns, for example, where the person's behaviour causes a police officer to reasonably believe they pose a threat to the police, the public, or themselves, it is not reasonably necessary to use handcuffs. Without reasonable justification, restraining a motorist in handcuffs during roadside breath testing is unlawful.

[54] In this case, I suspect that the decision by police to handcuff Mr. Virk resulted from his strange behaviour during the early stages of the investigation, when he failed to comply with basic instructions. Importantly, after the second police officer arrived at the scene, Mr. Virk became compliant. Mr. Virk's peculiar conduct at the outset of the encounter did not, without something more, make it reasonably necessary to handcuff him during police efforts to obtain a breath sample. Consequently, restraining Mr. Virk in handcuffs was unlawful.

[55] Even though a motorist subject to a valid approved screening device breath demand is lawfully detained, the use of handcuffs escalates the incursion on that person's liberty. Handcuffs represent a far more coercive form of state compulsion. If handcuffs are applied, they transform a detention that its inception takes the form of psychological restraint (with legal compulsion) into an encounter marked by physical restraint. If the police unjustifiably handcuff a motorist subject to an approved screening device demand, the result is an unlawful interference with that person's liberty. In such circumstances, a detention that begins lawfully becomes unlawful.

[56] The Supreme Court of Canada has made clear that a detention not authorized by law is arbitrary and violates section 9 of the Charter. Given this, courts in other cases have found that the unjustified handcuffing by police during efforts to obtain an approved screening device breath sample violates a motorist's section 9 Charter not to be arbitrarily detained. If police also secure a breath sample while a motorist is unjustifiably handcuffed, these same cases also hold that the manner of the resulting seizure (or search), due to the unlawful use of handcuffs, is unreasonable and violates section 8 of the Charter.

[57] Given my finding regarding the use of handcuffs, in light of the governing legal principles, I conclude that Mr. Virk's right not to be arbitrarily detained, as guaranteed by section 9 of the Charter, was violated.

[58] The defence, however, did not bring a Charter application. Given the evidence regarding the use of handcuffs, and its potential constitutional implications, I wrote the parties to alert them to this issue and to invite further submissions. The Crown responded by seeking leave to reopen, for the limited purpose of eliciting evidence from Constable Shabbir regarding his understanding of his lawful authority to use handcuffs and his training in that regard. The defence did not oppose the Crown's application. Given how this issue arose, I granted leave to reopen so that the court could hear further evidence from Constable Shabbir relating to this issue.

[59] Constable Shabbir's evidence regarding his knowledge and training concerning his authority to use handcuffs is relevant to the question of potential remedy. That issue is taken up in the next part.

c. Should the evidence be excluded under section 24(2) of the Charter?

[60] The evidence to be considered for exclusion is Constable Shabbir's testimony regarding Mr. Virk's failure or refusal to furnish a breath sample. The evidence has a strong temporal and contextual connection to the violation of Mr. Virk's right not to be arbitrarily detained guaranteed by section 9 of the Charter. This is because the evidence and the breach form part of a single, continuous and closely interconnected investigative transaction. It follows that the evidence was "obtained in a manner" that violated Mr. Virk's section 9 Charter right. As a result, the evidence is eligible for exclusion under section 24(2) of the Charter.

[61] The decision whether or not to exclude unconstitutionally obtained evidence under section 24(2) of the Charter requires consideration of all the circumstances of this case. In accordance with the Supreme Court of Canada's decision in Grant, it is necessary to assess and balance the effect of admitting or excluding the evidence on society's confidence in the justice system, having regard to 1) the seriousness of the Charter-infringing state conduct, 2) the impact of the breach on Mr. Virk's Charter protected interests, and 3) society's interest in an adjudication of the case on its merits.

1) The Seriousness of Charter-infringing state conduct

[62] An evaluation of the seriousness of the Charter-infringing state conduct requires the court to assess the level of culpability involved in the constitutional violation. As the majority in Grant explained:

At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

The Charter-infringing state conduct, in this case, must be evaluated to determine where it falls along this broad spectrum.

[63] The seriousness of a Charter breach will vary where it results from a police officer making a mistake regarding the scope and the limits on his or her powers. The Supreme Court has instructed that ignorance of Charter standards must not be rewarded or encouraged. Therefore, violations are viewed as moderately serious if they result from police negligence. This is because the police "are rightly expected to know what the law is." If the mistake is the result of inadequate police training, this may also evidence a systemic problem that "can properly aggravate the seriousness of the breach and weigh in favour of exclusion". At the same time, even "where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct." In contrast, if a police officer errs in navigating a still-evolving area of the law, this will serve to attenuate the seriousness of any resulting Charter breach. With these principles in mind, I turn to the proper characterization of the Charter-infringing state conduct in this case.

[64] During his testimony, in October 2018, Constable Shabbir accurately described the law, as it stands currently, regarding his authority to use handcuffs during roadside breath testing. As noted, although he lacked any present recollection of whether or not he handcuffed Mr. Virk, the officer doubted doing so mainly because he conceded the situation did not justify the use of handcuffs. The officer testified that he acquired his knowledge regarding the lawful use of handcuffs through training and experience after he became a police officer. The evidence did not identify the precise point in time when Constable Shabbir learned about the parameters of his authority to handcuff. Importantly, Constable Shabbir had only been a police officer for eight months at the time of the investigation involving Mr. Virk.

[65] Constable Shabbir impressed me as a conscientious police officer, fair, even-handed, and professional. Given this, I do not think it probable that he handcuffed Mr. Virk knowing that he was not entitled to do so. Rather, I think it far more likely that at the time Constable Shabbir was not yet fully aware of the scope and limits on his authority to use handcuffs during roadside breath testing.

[66] Given these findings, this case does not involve a deliberate breach of Mr. Virk's Charter rights. At the time of the investigation involving Mr. Virk, I think it more likely than not that Constable Shabbir's knowledge of his authority to handcuff was still imperfect.

[67] I am also reluctant to find an institutional shortcoming in the timing of Constable Shabbir's training regarding the use of handcuffs. Given the vast amount of legal knowledge that police officers must acquire regarding their investigative powers, it is understandable that it may take some time for new police officers to learn everything they need to know about the scope and limits on their powers.

[68] Further, police authority to use handcuffs during investigative encounters that fall short of a formal arrest is still evolving. It is noteworthy that an appellate court has not yet addressed the propriety of handcuffing a motorist who is subject to a lawful approved screening device demand.

[69] For all of these reasons, I am inclined to characterize the Charter-infringing state conduct in this case as falling on the less serious end of the spectrum. In all of the circumstances, I think it probable that the improper use of handcuffs resulted from a relatively junior police officer, with imperfect legal knowledge, reacting in an overly precautionary manner to Mr. Virk's peculiar behaviour in failing to follow basic instructions, like surrendering his license, rolling down his window, or exiting his vehicle. Mr. Virk's failure to comply with these routine directions was undoubtedly concerning to Constable Shabbir, who felt the need to call for back-up. Constable Shabbir erred on the side of caution. By doing so, he unwittingly exceeded the scope of his legal authority and violated Mr. Virk's Charter right to be free from arbitrary detention.

[70] I recognize that in other cases, where breaches of this nature have been made out, courts have tended to characterize the Charter-infringing state conduct as serious. Nevertheless, an assessment of the seriousness of a constitutional violation invariably depends on the specific circumstances of each particular case. For example, the seriousness of the Charter-infringing state conduct would undoubtedly be characterized as far more serious if a police officer used handcuffs knowing it was improper to do so, or as a matter of routine, or for punitive reasons. In my view, even the involvement of a more experienced police officer may have resulted in a different conclusion under this prong of the Grant analysis.

[71] For all of these reasons, I have concluded that the Charter-infringing state conduct falls closer to the less serious end of the spectrum.

2) Impact on Mr. Virk's Charter protected interests

[72] In the circumstances, the constitutional violation had a significant impact on Mr. Virk's constitutionally protected interests. In so concluding, I recognize that Mr. Virk was legally required to remain in the officer's presence until the completion of breath testing. Therefore, the improper use of handcuffs did not serve to prolong the detention beyond what would otherwise be justified.

[73] Nevertheless, there was a qualitative difference between being required to remain in the company of the police during the roadside breath testing process and being handcuffed while seated in the rear of a police cruiser. Mr. Virk was handcuffed soon after he finally exited his car. Fifteen minutes then passed before his formal arrest. During much of this time, Mr. Virk was required to sit in the rear of a police cruiser. The practical effect, in all of the circumstances, was a de facto arrest. An arrest is a more significant interference with an individual's liberty than an investigative detention.

[74] As a result, I am of the view that the violation had a significant impact on Mr. Virk's Charter protected interests.

3) Society's interest in an adjudication on the merits

[75] Finally, I must next consider society's interest in having this case adjudicated on its merits. In that regard, I am required to determine whether truth-seeking is served better by the admission or the exclusion of the evidence.

[76] The evidence to be excluded is essential to the Crown proving its case against Mr. Virk. Without it, this prosecution will fail. At the same time, this is not a situation in which there is any causal relationship between the breach and the unconstitutionally obtained evidence. In other words, the constitutional violation in no way contributed to the creation of the evidence being considered for admission or exclusion.

[77] Therefore, this factor favours the admission of the evidence in this case.

Conclusion on admission or exclusion under section 24(2)

[78] In my view, in all of the circumstances of this case, although a close call given the significant impact of the breach on Mr. Virk's constitutionally protected interests, a balancing of all of the competing interests favours the admission of the evidence.

[79] In the end, I am not satisfied that admitting the evidence would serve to bring the administration of justice into disrepute.

[80] Constable Shabbir's evidence in support of the charge of failing or refusing to provide a breath sample is therefore admissible.

d. The offence of "failure or refusal" to comply with a demand

[81] The elements of the offence of failing or refusing to comply with a demand for a breath sample are well known. However, they have been described somewhat differently by different courts depending on whether the basis for the charge is a failure to provide a breath sample due to feigned efforts or an outright refusal to comply with a breath demand.

[82] The Court of Appeal for Ontario has clarified, however, that in both circumstances the elements of the offence remain the same. In Weare, the Court cited with approval the explanation provided by Justice Sachs in MacNeil, where she observed:

The essential ingredients of an offence do not change. What may change are the facts necessary to establish an essential ingredient. So, for example, where the evidence of the refusal is dependant on the readings of the machine, it may be necessary, in order to establish that there was a refusal, to lead evidence that the machine was an approved machine and that it was in working order. In other cases, such as in those cases where there has been an outright refusal, (i.e. where the evidence of the refusal is not based on the readings of the machine), there would be no need to lead evidence about the nature or functioning of the machine to establish that the necessary elements of the offence have been made out.

e. Has the Crown proven the charge?

[83] With Mr. Virk's evidence removed from the evidentiary scales, the remaining issue is whether the Crown has discharged its burden to prove each element of the charge based on the balance of the evidence that I accept. Having considered the evidence carefully, I am ultimately satisfied that the Crown has discharged its burden.

[84] To begin, I am satisfied beyond a reasonable doubt that Constable Shabbir had reasonable grounds to suspect that Mr. Virk had alcohol in his body on the morning in question. I accept the officer's evidence regarding the basis for his demand and the factors he enumerates easily overcome the legal threshold for making an approved screening device demand. Therefore, the breath demand was lawful.

[85] Second, I am also satisfied beyond a reasonable doubt that the breath demand was sufficient in form. In all of the circumstances, the formal breath demand read by Constable Shabbir would have brought home to Mr. Virk that he was under an obligation to furnish a breath sample without delay.

[86] The next element of the actus reus for this offence is that Mr. Virk "failed or refused" to furnish a breath sample. The Crown must prove either a failure or refusal, beyond a reasonable doubt. Here, the Crown has particularized the charge to incorporate, in the alternative, both means by which this offence can be committed.

[87] Had Mr. Virk not expressly refused to provide a breath sample, I may have had a reasonable doubt as it relates to this element. I say this not because of any concern regarding the device itself. The device used, a Drager Alcotest 6810, is an "approved screening device." Nor was there any basis to doubt the device itself was in proper working order. It was subject to a recent accuracy check, calibrated four months earlier, and registered a "0" when Constable Shabbir, who had not been drinking, conducted his self-test.

[88] The concern would not be with the device but with its mouthpiece. As noted, the officer used the same mouthpiece throughout his efforts to obtain a breath sample from Mr. Virk. Where a failure alone grounds a charge under section 254(5), the absence of evidence regarding the checking of the mouthpiece for obstructions or defects could prove problematic for the Crown. This could serve to raise a doubt as to whether an individual's failure to provide a breath sample was due to feigned efforts or potentially due to some undetected defect or obstruction in the disposable plastic mouthpiece.

[89] However, I accept Constable Shabbir's evidence that Mr. Virk expressly refused to furnish a breath sample. Also, that, when cautioned about the consequences of doing so, rather than offering to provide a breath sample he told Constable Shabbir: "Do what you have to do, arrest me for it if you have to." Given that the demand was lawful, the refusal alone makes out the actus reus of the offence. Where the actus reus consists of an outright refusal, a conclusion that the mens rea is also proven becomes somewhat inescapable. It is difficult to fathom an outright refusal that is not deliberate.

[90] Beyond that, however, in all of the circumstances, especially Mr. Virk's outright refusal, I am also satisfied beyond a reasonable doubt that his failure to furnish a breath sample, preceding the outright refusal, was not the result of some defect in the functioning of the device or its mouthpiece. Instead, it was the product of Mr. Virk not blowing long enough or hard enough to provide a suitable breath sample. In other words, I am sure that Mr. Virk's "efforts" to furnish a breath sample were feigned.

[91] Further, I am also satisfied that the mens rea for this offence, prefaced upon a failure to furnish a breath sample, has been established beyond a reasonable doubt. I base this conclusion on all of the evidence. This includes, Constable Shabbir's testimony about not hearing any air passing into the device during any of the "attempts", Mr. Virk's strange behaviour, the comments he made about the police playing games, his increasingly aggressive attitude, the express refusal, and his telling the police to arrest him if they had to. Given all of this, I am sure that Mr. Virk never did make a genuine effort to furnish a breath sample. As a result, I am also satisfied that Mr. Virk's failure to furnish a breath sample was deliberate.

[92] In short, based on both means by which this offence can be committed, either a failure or a refusal, I am satisfied that the actus reus and mens rea have been established beyond a reasonable doubt.

Conclusion

[93] After carefully considering all of the evidence in this case, I am satisfied beyond a reasonable doubt of the following:

[94] That on the morning question, Mr. Virk had been drinking. His driving suffered because of this, and this is why Constable Shabbir stopped him.

[95] Mr. Virk's peculiar behaviour in the immediate aftermath of the vehicle stop stemmed from him knowing that he had been drinking and being surprised by being caught.

[96] His actions after that were part of a calculated effort on his part to appear as though he was complying with the demand while deliberately avoiding providing a breath sample.

[97] Mr. Virk did not want to provide a breath sample because he knew he had been drinking and he feared the results would incriminate him.

[98] Ultimately, after making feigned efforts, Mr. Virk decided to insist the police were being unfair to him and to use that as his excuse not to make any further attempts. At that point, he expressly refused to provide a breath sample.

[99] Accordingly, I am satisfied beyond a reasonable doubt that Mr. Virk deliberately failed, and then also expressly refused, to provide a sample of his breath in response to a lawful approved screening device breath demand.

[100] Therefore Mr. Virk is found guilty of the offence charged.

Released: October 26, 2018

Signed: Justice James Stribopoulos