Court Information

Court: Ontario Court of Justice

Date: 2018-12-12

Court File No.: Brampton 17-307

Parties

Between:

Her Majesty the Queen

— And —

Damilola Asabia

Before the Court

Justice: I. Jaffe

Heard: December 4, 2018

Reasons for Judgment Released: December 12, 2018

Counsel

For the Crown: K. Athanas

For the Accused Damilola Asabia: A. Bhangal

JAFFE J.:

Introduction

[1] In the early morning hours of December 30, 2017, Damilola Asabia was one of numerous drivers who had been stopped by police at a static RIDE checkpoint on a highway off-ramp in Brampton. Over the course of approximately seven minutes, Mr. Asabia was given multiple chances to comply with the officer's demand that he provide a sample of his breath into a roadside screening device. Mr. Asabia flatly refused each time. Immediately following his arrest, and while being carried back to the police cruiser, Mr. Asabia told the police that he would now provide a sample. He would repeat this request at least twice more until he was processed at 21 Division.

[2] That the police demand for a breath sample was lawful is not in dispute, nor is the fact that Mr. Asabia refused multiple times to provide a breath sample. The narrow focus of this trial is whether Mr. Asabia's apparent change of mind following his arrest raises a doubt about whether Mr. Asabia's refusal was unequivocal.

The Evidence

[3] Only two witnesses testified at this focussed trial, both of whom are officers with the Peel Regional Police Service (PRPS). P.C. Feasby testified that at approximately 4:00 a.m. on December 30, 2017 he stopped a black Honda sedan which was one of multiple cars lined up at a RIDE check point on the highway 410 off-ramp at Sandlewood Parkway.

[4] The officer's routine conversation with Mr. Asabia, the sole occupant of the car, led him to suspect that Mr. Asabia had been driving with alcohol in his system. At approximately 4:01 a.m., Mr. Asabia complied with P.C. Feasby's direction to pull his car to the side of the road in front of the police cruiser. Two minutes later at 4:03 a.m., the officer read the ASD demand from his notebook. No issue is taken with respect to either the wording of the demand or the basis upon which the demand was made.

[5] According to P.C. Feasby, Mr. Asabia responded to the demand by asking "why?" The officer explained that he had a suspicion that Mr. Asabia had been driving with alcohol in his system. The officer also provided Mr. Asabia with instructions on the use of the ASD. However, Mr. Asabia advised the officer that he was not going to do any test. P.C. Feasby cautioned Mr. Asabia about the consequences of refusing, namely that he would be criminally charged, his driver's licence would be suspended for 90 days and his car impounded for seven days.

[6] When asked by the officer if he understood the consequences, Mr. Asabia replied "I'm not blowing into that, I'm just trying to go and see my wife." The officer repeated the consequences of refusing to comply with the demand.

[7] Mr. Asabia assured P.C. Feasby that he had not been drinking and P.C. Feasby, in turn, assured Mr. Asabia that if this was true, he would pass the ASD screening, and he would be on his way in a matter of minutes.

[8] According to the officer, Mr. Asabia then became agitated and said "I know what you are trying to do here, it's because I am black and you hate black people." The officer attempted to assure Mr. Asabia that race had nothing to do with the breath demand and cautioned him again about the consequences of a refusal. Mr. Asabia repeated his accusations of racial motivations and again insisted that he had not been drinking. Again, the officer assured Mr. Asabia that he had nothing to fear if this was true because he would pass the ASD test.

[9] Mr. Asabia's voice raised to such a point that P.C. Feasby's partner P.C. Halfyard, who up to this point had been dealing with other motorists, came over to assist. P.C. Halfyard, a 10-year veteran of the PRPS testified that he also warned Mr. Asabia that if he did not comply with the demand he would be criminally charged. The officer also attempted to assuage Mr. Asabia's concerns by pointing out that every vehicle at the roadside was being checked and he was not being singled out.

[10] P.C. Feasby again warned Mr. Asabia that if he refused to provide a sample he would be arrested. Mr. Asabia replied that he did not trust the ASD and he asked the officers to call his wife.

[11] At this point, P.C. Feasby physically demonstrated the use of the ASD for Mr. Asabia and at 4:10 a.m., warned Mr. Asabia that he was being offered his final chance to provide a sample. Mr. Asabia replied once again, that he was not going to provide a sample. P.C. Feasby asked if there was anything he could do to persuade Mr. Asabia to provide a sample but Mr. Asabia remained resolute.

[12] Both officers recalled that as P.C. Feasby then held up another ASD mouthpiece, Mr. Asabia turned his back to the officer and with his arm, knocked the mouthpiece out of P.C. Feasby's hand. P.C. Feasby made the decision at that point to place Mr. Asabia under arrest.

[13] Concerned that Mr. Asabia was reaching into his car for something, the officer grabbed him, pulled him out of the car and onto the ground. Mr. Asabia was initially uncooperative with the officers' efforts to handcuff him and P.C. Feasby estimated they struggled with Mr. Asabia for approximately 30 seconds. Eventually, Mr. Asabia complied, giving the officers his arms to enable the handcuffing. Mr. Asabia was then placed under arrest for refuse and assault with intent to resist arrest.

[14] P.C. Feasby testified that he and P.C. Halfyard carried Mr. Asabia to the cruiser as he was resisting their efforts to walk him. P.C. Halfyard testified that Mr. Asabia initially refused to get into the car, was argumentative and shouting profanities at the officers. At this point, other motorists who were waiting at the RIDE check had exited their cars and were videotaping the officers' interaction with Mr. Asabia. The officers were able to get Mr. Asabia into the police cruiser despite his resistance. At 4:13 a.m., once Mr. Asabia was in the cruiser, P.C. Feasby informed him of the reasons for his arrest.

[15] From 4:14 to 4:20 a.m., P.C. Feasby provided Mr. Asabia with his rights to counsel. The two officers and Mr. Asabia waited at the roadside approximately 10 to 15 minutes until another officer arrived to block the roadway for safety reasons. Other cars were parked on the side of the road waiting to be towed after their drivers had been temporarily suspended following their ASD tests.

[16] At the station, P.C. Feasby made attempts to contact a lawyer for Mr. Asabia by calling a friend of Mr. Asabia however his attempts were unsuccessful. Mr. Asabia did however, consult with duty counsel at 4:52 a.m., and he was released from the station on a promise to appear at 5:30 a.m. charged with refusing the breath demand and cautioned in relation to the assault with intent to resist.

[17] From the point in time that P.C. Halfyard began to assist P.C. Feasby, he remained with Mr. Asabia until their arrival at 21 Division. For the most part, P.C. Halfyard's evidence concerning what occurred at the roadside is consistent with P.C. Feasby's testimony, with one notable exception.

[18] P.C. Feasby was asked in cross-examination whether Mr. Asabia ever requested another opportunity to provide a breath sample following his arrest. P.C. Feasby had made no notation of any such request and did not recall any such request having been made. Asked if he would have acceded to such a request, P.C. Feasby replied "once I had him in custody I would not give him another chance." P.C. Feasby qualified his answer by adding that since no such request was ever made, he cannot say for sure how he would have responded.

[19] P.C. Halfyard has a different recollection. P.C. Halfyard noted in his book, and recalled that on at least three occasions, Mr. Asabia asked if he could provide a sample. P.C. Halfyard heard the first request as they were carrying the handcuffed Mr. Asabia to police cruiser. The second time Mr. Asabia asked to provide a sample just after he was placed into the cruiser, and the third time while he was being read his rights to counsel.

[20] I find that Mr. Asabia did make three requests to provide a sample of his breath following his arrest. The fact that P.C. Feasby did not recollect these utterances does not cause me to reject his evidence concerning what transpired at the roadside. To this particular officer, Mr. Asabia's post-arrest requests to comply were apparently not relevant. This was clear from P.C. Feasby's response when asked what he would have done had he heard Mr. Asabia make such a request. Whether the officer's understanding of the significance of such requests is correct in law is subject to legitimate debate. However, it does explain why the officer made no notations of them, nor recalled them, assuming he overheard them in the first place.

[21] In my view, both officers were credible witnesses. In fact, aside from their differing recollections of what Mr. Asabia asked of the officers, much of their evidence was not challenged in cross-examination. The officers were however, cross-examined on their evidence concerning Mr. Asabia knocking the ASD device out of P.C. Feasby's hand.

[22] Neither officer made notes of the fact that the device fell to the ground when Mr. Asabia knocked P.C. Feasby's hand, though both testified that is exactly what happened. The purpose of police notes is to refresh an officer's memory and not to chronicle every moment in time. Both officers made notes of the fact that Mr. Asabia knocked the ASD device while it was in P.C. Feasby's hand. It is reasonable to assume that a reference to knocking the ASD while P.C. Feasby was holding it in his hand, would enable both officers to recall it hitting the ground. The fact that neither officer specifically mentioned in their notes where the ASD landed, does not cause me to disbelieve their evidence.

[23] Having found that Mr. Asabia did in fact make three requests to provide a sample following his arrest, the question is whether the Crown has proven the offence of refusal.

The Law

[24] Section 254(5) of the Criminal Code creates an offence in a situation where, without reasonable excuse, the person to whom the demand is made fails or refuses to comply with the demand.

[25] The actus reus of this offence is established with proof beyond a reasonable doubt that a peace officer made a proper demand under s. 254 of the Criminal Code, and in this particular case that the accused refused to comply with the demand. The mens rea requires proof beyond a reasonable doubt that the refusal was intentional: R. v. Lewko (2002), 2002 SKCA 121, 169 C.C.C. (3d) 359 (Sask. C.A.); R. v. Slater, 2016 ONSC 2161; R. v. Greenshields, 2014 ONCJ 35; R. v. Soucy, 2014 ONCJ 497.

[26] In argument, counsel for Mr. Asabia made reference to four cases which dealt with the legal impact of the accused's post-arrests pleas to "try again." I will briefly review each of those cases.

[27] In R. v. Domik (1979), 2 MVR 301 (Ont. S.C), Grange J. sitting as summary conviction appeal court entered an acquittal finding the trial judge had erred in failing to consider the relationship between the appellant's refusal to provide a sample and his subsequent assent. At p. 307 of his decision, Grange J. characterized the Breathalyzer demand section of the Criminal Code as "drastic legislation" inconsistent with the "usual rule against self-incrimination." In Grange J.'s view, it was not surprising that a driver might have a negative reaction to being investigated at the roadside for drinking and driving:

"I do not think it unreasonable for a lay person or indeed anyone unskilled in criminal law at first to react negatively to an invitation to give the police incriminating evidence."

[28] In R. v. Tynkaluk, [1989] O.J. No. 957 (Ont. Dist. Ct), the appellant had been pulled over for speeding and upon noticing indicia of drinking, the officer made a roadside screening demand. Over the course of 10 minutes, the appellant made eight unsuccessful attempts to provide a breath sample. The summary conviction appeal judge concluded that whether an accused's assent was proceeded by an outright refusal or feigned attempts, the approach to these "change of mind" cases should be the same. Specifically, all of the circumstances leading to an accused's change of heart should be considered.

[29] In Tynkaluk, the Court took into consideration the fact that the eight failed attempts took place over the course of 10 minutes and the screening device was readily available. Significantly however, the accused was never given a "last chance" warning by the officer, and in those circumstances, the trial judge was found to have erred in concluding that the appellant's failure to provide a breath sample was "final and unequivocal."

[30] In R. v. Chance, [1997] O.J. No 4939 (C.J.), the accused was pulled over by a police officer after making a u-turn without signaling. Upon noting the odour of alcohol on the driver's breath, the officer made an ASD demand. After four failed attempts to provide a sample, the accused was charged. The trial judge found that that the accused's four attempts were feigned, but that his post-arrest request to try again was sincere.

[31] After reviewing numerous cases in which the impact of a detainee's change of mind was considered, the trial judge acquitted Mr. Chance primarily on the basis that his genuine acquiescence to the roadside demand came quickly on the heels of his last failed attempt, and the breath test device was still readily available.

[32] Finally, in R. v. Franchi, [1999] O.J. No. 4895 (S.C.J.), the appellant had made up to eight failed attempts to provide a breath sample into a roadside screening device over the course of approximately 10 minutes. There was no evidence the appellant was feigning his attempts, rather it appeared the duration of his blows were slightly shorter than what was required. The appellant testified that he was still attempting to provide a sample when he was placed under arrest, following which he begged to be given another chance.

[33] In allowing the appeal against conviction and ordering a new trial, Hill J. noted that depending on the circumstances of the case, a driver's agreement to provide a sample could be considered as part of the same transaction as his prior failures to do so. Especially in light of the fact that the appellant's attempts to blow into the machine fell short by a mere second, and there was no break in the sequence of events, Hill J. concluded that the trial judge ought to have addressed this important aspect of the case in his reasons for conviction.

[34] The clear message conveyed in these four cases, and all the cases cited within them, is that in determining whether the Crown has proven a refusal or failure charge, the court must consider the entire interaction between the police and the driver. The number of opportunities given, the time periods between demand, arrest and the accused's request to try again, the availability of the breath test device, and whether a last chance warning was given are all factors that courts have considered in determining whether the accused's failure or refusal was unequivocal or whether the accused's assent formed part of the same transaction.

[35] I add to that list the circumstances under which the demand was made. In many drinking and driving cases, such as for instance Chance and Tynkaluk, the drivers were initially pulled over for traffic infractions and were faced with a breath demand only once officers observed indicia of alcohol consumption. Under those circumstances, where the driver is pulled over without warning, it would not be surprising if the police demand is met with some surprise and hesitation which, in turn, could impede the driver's initial cooperation.

[36] Mr. Asabia was not pulled over for an unrelated matter or for a random "sobriety check." Mr. Asabia was one of numerous vehicles stopped at a static RIDE checkpoint during the holiday season. The RIDE program was long ago recognized by the Supreme Court as a legitimate police tool in the detection and prevention of drinking and driving offences. In R. v. Dedman, [1985] 2 S.C.R. 2, the majority's conclusion that there was common law authority for random vehicle stops in the context of the RIDE program, depended in part on the widely publicized nature of program which Le Dain J. found helped to offset the unpleasant psychological effects experienced by the innocent driver who is otherwise randomly stopped by police: Dedman at p. 36.

[37] In R. v. Brown, [2004] O.J. No. 4423 (S.C.J.), at para.12, McIsaac J. acknowledged that times and public perception have changed since the Domik case in which Grange J. characterized the demand provisions in the Code as "drastic legislation" that would "understandably attract a negative reaction from a citizen." McIsaac J. noted that there was now a general acceptance of these measures to support public safety.

[38] Fourteen years after McIsaac J.'s comments in Brown, the profile of the RIDE program has only grown. It would come as little surprise to any motorist who encounters a RIDE checkpoint, that an officer will speak with them, and may, depending on the circumstances, demand a breath sample. While a motorist may nonetheless experience anxiety at a RIDE checkpoint, especially one who has been drinking, the expectations on all drivers are clear.

[39] In summary, I have considered the following factors in determining whether the Crown has proven beyond a reasonable doubt that Mr. Asabia's refused to provide a breath sample:

I. Mr. Asabia was stopped together with multiple other vehicles, at a static RIDE checkpoint on a highway off-ramp;

II. P.C. Feasby and P.C. Halfyard were the only two officers at the checkpoint and each were separately dealing with motorists;

III. In response to P.C. Feasby's lawful demand, and after receiving instructions, Mr. Asabia refused to provide a sample;

IV. Mr. Asabia was then warned about the criminal consequences of refusing to comply and reiterated his refusal;

V. After he accused the police of being racially motivated, he was again cautioned about the criminal consequences of refusing;

VI. P.C. Feasby then physically demonstrated the use of the ASD;

VII. At this point, P.C. Halfyard attended to assist and explained the criminal consequences of refusing;

VIII. P.C. Halfyard assured Mr. Asabia that all cars were being stopped and he was not being singled out;

IX. Mr. Asabia was then given a "last chance" warning;

X. P.C. Feasby asked Mr. Asabia if there was anything he could do to convince Mr. Asabia to provide a sample, and Mr. Asabia reiterated his refusal;

XI. When P.C. Feasby held up the ASD mouthpiece, Mr. Asabia knocked it out of his hand and reached into his car;

XII. Immediately following his arrest and after being placed into handcuffs, Mr. Asabia insisted he had not refused to provide a sample and said he would now blow. He made this request three times up until he and the officers left the scene; and,

XIII. The ASD was readily available to the officers following Mr. Asabia's arrest and could easily have been used to facilitate his request for another chance.

[40] Over the course of seven minutes, Mr. Asabia was given multiple opportunities to provide a sample and he refused each one. The officer demonstrated the use of the ASD, provided multiple warnings about the criminal consequences of refusing, and provided Mr. Asabia with a "last chance" warning. And all of this was done in the context of a RIDE spot check.

[41] It is possible another officer might have responded to Mr. Asabia's post-arrest requests differently. However, the question is not whether another officer might have given Mr. Asabia another opportunity, but whether Mr. Asabia's refusals were unequivocal and whether the Crown has proven the charge.

[42] It was argued that Mr. Asabia's post-arrest requests for another chance formed part of the same transaction as his refusals thereby raising a reasonable doubt about the finality of his refusals. I find however, that Mr. Asabia brought the transaction to an end when he turned his back on the officers and knocked the ASD in P.C. Feasby's hand. It could be said that his gesture constituted a "break in the sequence of events preceding his plea to blow:" Franchi, at para. 16. Though Mr. Asabia's requests for another chance came close in time to his refusals, I find they were made once the offence was complete. Under these circumstances, I find the offence has been proven beyond a reasonable doubt.

Released: December 12, 2018

Signed: Justice Jaffe