ONTARIO COURT OF JUSTICE

CITATION: R. v. Barot, 2019 ONCJ 321

DATE: 2019·02·28

COURT FILE No.: Newmarket 17-00104

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CHIRAG BAROT

JUDGMENT

Evidence heard: February 28, 2019

Delivered: February 28, 2019

Mr. Robert De Chellis............................................................................... counsel for the Crown

Mr. Deepak Paradkar......................................................................... counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Barot was stopped pursuant to a mobile RIDE program after he left a bar parking lot. The odour of alcohol on his breath and his admission of drinking led the officer to demand an Approved Screening Device (ASD) test. Mr. Barot was given numerous chances to comply with the test but after 10 minutes he was arrested. He’s charged with failure to comply with an ASD demand contrary to s.254(5) of the Criminal Code.

[2] Mr. Barot testified that he attended the Owl and Firkin parking lot that night to meet a business client and he did not go into the bar. He blew into the device twice but the officer said he wasn’t doing it right which confused him. He suffers from anxiety and became scared. The officer’s impatient comments frightened him. He suffered multiple anxiety attacks which interfered with his ability to choose whether to blow. He “didn’t know what he was doing at the time” due to his anxiety disorder.

[3] There are two issues in this case:

• What burden of proof applies to “reasonable excuse” after the Bill C-51 amendment?

• Whether the Crown has proved the offence alleged beyond a reasonable doubt considering all of the evidence as a whole.

Burden of Proof

[4] In R v Goleski 2015 SCC 6, the court confirmed that the accused has a burden to prove a factual foundation for a “reasonable excuse” on the balance of probabilities. The reasoning in was based on s.794(2) of the Criminal Code to the same effect. On December 13^th, 2018 Bill C-51 received Royal Assent – Statutes of Canada 2018, c 29. That legislation repealed and removed s.794(2) from the Criminal Code.

[5] Neither party addressed the impact of the legislative change as the issues here turn largely on questions of fact. However, the Crown did not object to the court applying a revised burden of proof in this case, reserving the right to fully argue the same point in subsequent proceedings. Accordingly, in this case it will be sufficient if, on the whole of the evidence, there is a reasonable doubt as to whether the accused had a reasonable excuse to refuse the demand. (See: R v Lewko 2002 SKCA 121 where s.794(2) received that interpretation which was not accepted in Goleski) As the issue was not fully argued in this case I must reserve the right to reconsider the same point in a subsequent case should future parties wish to make full submissions on the issue.

s.16 Criminal Responsibility

[6] Mr. Barot gave varying accounts regarding the timing and impact of his anxiety disorder leading eventually to his statement at the end of cross-examination that he “didn’t know what he was doing at that time” because of his anxiety. The context of the question and answer suggested the accused was asserting a complete lack of mental functioning. Mr. Paradkar confirmed in submissions that the defence s not asserting a lack of criminal responsibility. Other than that statement by the accused there was no evidence at trial that would support that defence.

Reasonable Excuse

[7] The defence submits that the accused’s evidence provides a reasonable excuse for the failure to comply with the ASD demand for two reasons:

• The accused testified that he did provide a sample but the officer interrupted him twice and that confused the accused who wanted to comply but was not told what he was doing wrong.

• The accused suffers from an anxiety disorder, had not taken medication that night and the officer’s impatience with him further compounded the problem by causing him to become fearful. The accused was confused, frightened and unable to comply and provide a sample but never outright refused to do so.

[8] The Crown submits that the in-car video of the transaction shows the accused was not suffering from any anxiety attack. The officer repeatedly demanded that the accused provide a sample and explained the reasons why it was in his interest to do so for 10 minutes. It was only after a final warning and subsequent failure to comply that the accused was charged.

[9] Although it would make sense for someone having an anxiety attack to mention that to the officer at the time, I agree with the defence that in assessing the evidence including the credibility of the accused, the failure to mention the reason for not complying cannot be considered as a circumstance that detracts from the credibility of the accused’s evidence – R v Rivera 2011 ONCA 225.

[10] Mr. Barot’s testimony that he “was blowing” into the ASD twice but the officer said he wasn’t doing it right thereby causing confusion is contradicted by the credible evidence of the officer and the in-car video. PC Rajpaulsingh was the investigating officer. He’s also a qualified breath technician. He explained that the ASD test isn’t difficult and does not require significant force of breath, just a continuous blow.

[11] He was right beside the accused and saw Mr. Barot make a proper seal on the ASD mouthpiece so no air would escape. The officer’s evidence on this point is consistent with the video. He also explained that if air is blown into the device it produces a continuous tone. During the test he was beside the accused and could see the accused was not blowing into the device. The in-car video shows that on the first test no air was provided as there was no tone. On the second test no air was provided as there was no tone beyond a momentary beep or two when the accused sealed his mouth around the device. The officer’s evidence that Mr. Borot was not providing any air into the device is confirmed by the video evidence. Mr. Barot’s testimony that he was providing air into the device as requested, the officer interrupted leading to confusion isn’t credible on the whole of the evidence. That finding on this central point detracts significantly from the credibility of all of his evidence.

[12] After the second test at 2043h the officer continued trying to convince the accused to provide a sample pursuant to the demand. The conversation to that point showed the accused was concerned about the consequences of failing the test. After the second test the accused repeated to the officer over and over that he was “really scared”. He didn’t say what he was scared about but the context shows he continued to be concerned about what would happen if he failed the test.

[13] PC Rajpaulsingh was polite and for almost 10 minutes tried to convince Mr. Barot to provide a sample. He explained that if the accused had only the one drink he described he would not fail the test. When the accused revised his estimate to two drinks over a few hours the officer explained that he again had no reason to fear failing the test. The officer explained that there were several possible results including release if under 50mgs or a provincial consequence if 50mgs or over but not more than 80mgs. It was in the accused’s interest to provide a sample in any event because a refuse charge carries the same consequences as failure of the test at the highest level (above 80).

[14] Mr. Barot responded to the repeated demands and explanations by repeatedly saying he was scared. Over time the officer became impatient and I agree with the defence that statements such as, “stop dicking around I’m starting to get pissed off” were not helpful. That and other comments have to be considered though in the context of the whole of the conversation. The officer expressed impatience at times but showed great patience in trying for 10 minutes to get the accused to comply. Despite expressions of impatience the overall conversation was measured and for the most part consisted of the officer explaining all of the reasons it would be in the accused’s interest to provide a sample.

[15] Mr. Barot didn’t explain that night why he kept saying he was scared to do the test. At trial he referred to an anxiety disorder that interfered with his ability to use proper words to describe his condition at the time and interfered with his ability whether to choose to do the test. There is nothing in the officer’s evidence or the in-car video evidence that supports the accused’s assertion that he was suffering from significant anxiety or an anxiety attack to the degree he described, beyond the level anyone might have when stopped by the police. Mr. Barot’s evidence as to the timing of his anxiety “attacks” was internally inconsistent both to number and to timing. His evidence about his anxiety was vague and unsupported by any medical evidence. The accused’s assertion that an anxiety attack or attacks prevented him from understanding the demand or being able to comply is inconsistent with the officer’s evidence and the video record that shows he was reluctant to comply with the demand from the outset. He asked whether he had a choice as to provide a sample and was told no. During the interaction with the officer he asked about the consequences of failing the ASD test as well as refuse. He asked the officer what would happen if the amount he had to drink was double what he’d said. He was worried about the impact of being charged on his family. There’s no credible evidence of any anxiety attack of interference with thinking as described by the accused. There is evidence that the accused was actively thinking about the consequences of complying with the breath test demand. It’s plain on the whole of the evidence that the accused’s responses that he was “scared” referred to an ongoing concern about what would happen if he failed the test and cannot reasonably be attributed to any external factor. The conversation throughout shows the accused had the physical ability to speak and to provide a breath sample if he chose to do so.

[16] Mr. Barot was not a credible witness. His evidence on the central point about twice providing a breath sample into the ASD wasn’t true and there was no support for any version of his evidence as to anxiety attacks interfering with his understanding of the test requirement or his ability to complete it. While the officer did express impatience at times, overall he exercised great patience and tried every possible way to show the accused it was in his interest to comply with the demand and that he was legally required to do so. The consequences of refusal were explained numerous times. The Crown has proved Mr. Barot knew he was legally required to provide a breath sample, was able to do so and he knew he would be arrested and charged with an offence for his failure to comply with the demand.

Conclusion

[17] I’m unable to accept Mr. Barot’s evidence as credible. Considering the evidence as a whole I can find no credible evidence that reasonably could leave a doubt. There will be a finding of guilt.

Delivered: 28 February, 2019.

Justice Joseph F. Kenkel