Court Information
Ontario Court of Justice
Date: September 11, 2019
Durham Region
Parties
Between:
Her Majesty the Queen
— And —
Farhan Tariq Khan
Judicial Officer and Counsel
Before: Justice B. Green
Heard on: January 21st and August 2nd, 2019
Reasons for Judgment released on: September 11th, 2019
Counsel:
- Mr. R. Iaquinta and Mr. D. Morgan as counsel for the Crown
- Mr. B. Brody as counsel for the defendant Mr. Khan
Judgment
Green J.:
A. Introduction
[1] Mr. Khan stands charged that, on or about the 6th day of January 2018, that he, without reasonable excuse, failed to comply with a breath demand made to him by a peace officer to provide a breath sample into an approved screening device. In addition, the crown and counsel agreed that the associated provincial offences were to be tried at the same time which allege that Mr. Khan, without reasonable excuse, failed to comply with a provincial offence probation order that prohibited him from driving a motor vehicle with a blood alcohol concentration above 0 and that he, being a novice driver, failed to provide a breath sample upon the demand of a police officer.
[2] Counsel conceded all the non-contentious issues throughout the trial. The probation order and status of Mr. Khan's licence were admitted. There were no issues argued with respect to the officer's grounds for the traffic stop or the subsequent wording of the demand for a roadside breath sample. Counsel agreed that the officer was using a functioning approved roadside instrument while attempting to obtain the roadside breath samples. This type of informed and focussed advocacy by experienced counsel should be both acknowledged and commended because it facilitates trial time being used more effectively and efficiently.
[3] Counsel submitted that there are two distinct issues to consider:
(1) Charter application: Counsel submitted that the officer breached Mr. Khan's Charter protected rights to counsel by failing to read him his rights to counsel while awaiting the arrival of the approved screening device that had to be brought to the scene by another police officer; and
(2) Substantive issues: If the evidence of the failure to provide a sample is not excluded, that the Crown has failed to prove beyond a reasonable doubt that Mr. Khan failed to provide a breath sample without a reasonable excuse because the demand was not made forthwith, the opportunity to provide the sample was not forthwith and/or the Crown has not established the requisite mens rea for this offence.
[4] A brief review of the evidence is warranted to contextualize this Court's findings that Mr. Khan's Charter rights were not violated. Accordingly, none of the evidence will be excluded. However, considering some of the frailties in the evidence, the Crown has not proven beyond a reasonable doubt that Mr. Khan is guilty of failing to provide a breath sample without a reasonable excuse despite a valid demand.
B. Review of the Evidence and Summary Findings
[5] The Crown called two witnesses, the arresting officer, PC Paul Manning, and a second officer who brought the approved screening device to the scene, PC Collins. Counsel called one witness on the voir dire, PC Harding. The Defendant did not testify during the voir dire or the trial proper.
[6] The onus is on the Defendant to establish on a balance of probabilities that his rights to counsel were violated and, if so, that the evidence ought to be excluded. If the evidence of the failure to provide a sample is not excluded, the onus is on the Crown to establish Mr. Khan's guilt beyond a reasonable doubt.
i. Evidence with respect to the rights to counsel and the "forthwith" issue:
[7] PC Manning was engaged in traffic duties when he received a call from dispatch about a possible impaired driver. He saw the vehicle that was the subject of the call at 9:24 p.m. and stopped the vehicle at 9:25 p.m. He exited his cruiser and approached the driver. Upon engaging the lone occupant, Mr. Khan, the officer initially noted a smell of alcohol in the vehicle and then emanating from Mr. Khan's breath. As a result, he formed the requisite suspicion and made a demand for Mr. Khan to provide a roadside screening breath sample into an approved instrument at 9:27 p.m. I accept that PC Manning made the demand immediately after forming the requisite suspicion. As a result, I find that the demand was made forthwith.
[8] PC Manning did not have an ASD with him, so he made a radio call requesting that one be brought to his location. PC Manning did not recall making any inquiries or receiving any information about how long it would take for the ASD to arrive. PC Collins received a call to attend the scene at 9:28 p.m. and he arrived with an approved screening device at 9:32 p.m. which was 7 minutes after the initial stop. The device arrived 5 minutes after the suspicion was formed and the demand was made to Mr. Khan. PC Collins only took 4 minutes after he was dispatched to attend the scene. Once again, despite this minor delay, I find that Mr. Khan was given an opportunity to provide a sample forthwith.
[9] During the 5 minutes while PC Manning waited for the ASD to arrive, he did not read Mr. Khan his rights to counsel even though he had no idea when it was anticipated to be available. A significant amount of the cross-examination focussed on PC Manning's knowledge of the law and when he expected the ASD to arrive on scene. He was asked extensively about police practices with respect to the rights to counsel when there is an expected delay because an ASD is not readily available. He was asked a series of hypotheticals about what he would have done, when the clock started for an assessment of delay before providing rights to counsel and what happened in this case.
[10] PC Manning was a credible witness but, he did not have a reliable independent recollection of many significant facts and he had sparse notes that were not helpful with refreshing his memory.
[11] PC Manning agreed with counsel that when he called for the ASD, he did not know how far away the unit was that was bringing the device or how long it would take to arrive on scene. He was aware of the importance of providing Mr. Khan with his rights to counsel without delay but he explained that it was his training and it is his practice that he waits for 7 minutes following the time when he makes the demand before he provides the rights to counsel. If the ASD does not arrive within that time, he reads the person their rights to counsel. He related that he learned about waiting for 7 minutes from the crown's office and a qualified breath technician, PC Harding.
[12] PC Manning did not know whether Mr. Khan had a cell phone on him while they were waiting. He had not formed any opinions with respect to whether he would be arresting Mr. Khan until after the ASD arrived on scene. He noted that a person is legally entitled to operate a vehicle with alcohol in their system if it does not exceed a specific amount, so he did not assume anything prior to the testing other than a suspicion of alcohol in Mr. Khan's system while operating a motor vehicle. When he formed grounds to believe that Mr. Khan had committed an offence, that is when Mr. Khan's jeopardy changed and triggered the obligation to read him his rights to counsel.
[13] PC Manning confirmed that after Mr. Khan was arrested and read his rights to counsel, he asked to speak with his lawyer Mr. Brody. Once they were at the station and Mr. Khan called counsel, Mr. Brody answered the phone immediately and he was able to consult with him in private for about 4 minutes.
[14] PC Collins was also called as a witness. He confirmed that he received a call at 9:28 p.m. to bring a device to PC Manning's location and he arrived on scene at 9:32 p.m. PC Collins advised that he was trained by superior officers that, if it appears that it will take longer than 5 minutes for an ASD to arrive on scene after a demand, then he should read the detainee their rights to counsel.
[15] PC Harding was called as a witness by the defence. He confirmed that he has received training from the local Crown's office and he trained the officers on his platoon, including PC Manning, about when to provide the rights to counsel in this type of situation. He explained that officers who do not have a readily available ASD should inquire about how long it will take for the device to be delivered. If it is anticipated that it will be longer than five minutes, he instructs officers to provide the rights to counsel to a detainee and assist with the implementation of those rights. If the officer believes that the ASD will be delivered within five minutes, police don't have to inform a person of the rights to counsel. If the delivery is delayed beyond that point, then officers are instructed to read them.
ii. Summary ruling on the Charter application:
[16] Undoubtedly, Officer Manning could use some additional training that, upon requesting that an ASD be brought to a scene, he ought to inquire how long it will be before it arrives so that he can make an informed decision about whether to read a detainee his/her rights to counsel.
[17] Whether an officer decides to wait 5 minutes or 7 minutes before reading rights to counsel, there is no "magic number" of minutes within which the rights to counsel must be read to a detainee while awaiting the arrival of an ASD. What is relevant is a consideration of all the individual facts in each case and whether the police could have fulfilled their obligations to properly inform a person and implement the rights to counsel in a private setting before the availability of the roadside screening device. Please see R. v. Quansah, 2012 ONCA 123.
[18] The determinative facts in this Charter application are not what could have happened because of an officer's erroneous belief about when to read the rights to counsel. Rather, I must consider what did happen with respect to this Defendant. This officer's choice not to obtain important information about when the ASD was going to be brought to the scene could have resulted in a breach of this defendant's rights to counsel. However, there was only a 5-minute delay from the time that the demand was made to the time that the ASD arrived on the scene. In that 5 minutes, it is unlikely that there would have been enough time for PC Manning to read Mr. Khan his rights to counsel, ensure that he understood, obtain the information to contact his counsel of choice and afford Mr. Khan an opportunity to meaningfully consult with counsel in private somewhere at the roadside.
[19] There was no realistic opportunity for Mr. Khan to exercise his rights to counsel within the five minutes that it took for the ASD to arrive on scene. As the Court of Appeal observed in R. v. Torsney, 2007 ONCA 67:
In coming to this conclusion, we consider it important to draw a distinction between a detainee having "a chance to call counsel" and a detainee being able to "consult with" counsel. The trial judge was under the impression that in deciding whether, in the circumstances, there was a realistic opportunity for the appellant to consult counsel, all that was required was that he be able to "call" counsel in the few minutes it took for the ASD to arrive and be readied for use. With respect, we think that the trial judge erred in that regard. The question he should have asked is whether, in all the circumstances, there was a realistic opportunity for the appellant, in the space of six or seven minutes, to contact, seek and receive advice from counsel. Had the trial judge framed the issue that way, he would, in our view, have decided the s. 10(b) issue differently.
[20] Mr. Khan has not established on a balance of probabilities that his rights to counsel were violated. The application to exclude the evidence is denied.
iii. Evidence of the failure to provide a roadside breath sample:
[21] As noted above, I find the demand was made forthwith and Mr. Khan was provided with an opportunity to provide a roadside breath sample in a manner that complied with the immediacy requirement. The more vexing issue in this matter is whether the crown has established the mental element of this offence beyond a reasonable doubt.
[22] There is no issue that an approved, functioning and recently calibrated roadside screening device was brought to the scene at 9:32 p.m. It took about a minute to turn on the device and get it ready to receive Mr. Khan's sample. PC Manning tested the device himself to confirm that it was working properly. The device registered PC Manning's sample without any difficulties. Mr. Khan was provided with instructions about how to provide a breath sample. Prior to Mr. Khan providing a sample, PC Manning ensured that there were no obstructions in the mouth piece that would prevent Mr. Khan from providing a suitable sample. All these preparations must have taken at least a minute or two.
[23] PC Manning was satisfied that Mr. Khan understood the demand to provide a roadside breath sample and the instructions about how to provide the sample. There were no language barriers. Mr. Khan was coherent and there were no signs of impairment. He did not appear to be suffering from any physical ailments that would have prevented him from providing a breath sample. PC Manning explained that it is not physically taxing to provide a suitable sample. In his experience, people with one lung and asthma have been able to successfully provide samples into roadside screening devices.
[24] Mr. Khan engaged in a series of attempts to provide a breath sample. The first four times that he blew into the device, there were blow interruption messages which meant that Mr. Khan was not providing a long enough continuous breath to register a reading. After each failed attempt, PC Manning provided clear instructions to Mr. Khan about how to provide a continuous breath sample. After the fourth time, PC Manning testified at page 14 that "I cautioned him on failing to provide a sample of his breath into the approved screening device." I asked Officer Manning to provide more details about this caution and he indicated at page 41 that:
A. I cautioned that he would be charged if he didn't provide a suitable sample into the – in the machine, he could be arrested.
THE COURT: What was the wording of the caution?
A. It would have been just a verbal caution. I wouldn't have read it from my book.
[25] PC Manning gave Mr. Khan two more opportunities to provide a sample for a total of 6 attempts. Each time, Mr. Khan would put his mouth properly around the mouth piece and blow but he did not provide enough continuous exhaling of breath to register a reading. Instead, each time he blew, the device registered a sample interruption. PC Manning explained that it takes about 15 to 20 seconds of blowing into the device to register a reading. The device emits a sound as a person is blowing into it to signal that the person is providing a suitable sample. The officer and Mr. Khan could hear when he was providing a suitable sample but then he would stop blowing.
[26] PC Manning could not say how long Mr. Khan was blowing or if he was stopping a second before registering a reading. He indicated at page 38 that "it's possible he could have been a millisecond away, I don't know, but the machine has a specific time. I don't calculate the machine." He agreed that there were absolutely no overt signs that Mr. Khan was trying to thwart the process like puffing up his cheeks or not making a complete seal with his mouth. Mr. Khan simply wasn't blowing long enough. PC Manning pointedly remarked that:
you know what? He did six blows. What he was – how he was performing, there was no physicals I could see that would make me suggest why, whether it was intentional or whatever. But the fact is, he didn't provide samples. He was charged. He was arrested.
And later in his evidence:
Sir, in my opinion, and if you are asking my opinion, my opinion is he intentionally didn't blow enough. That is my opinion, based on 27 years of experience. I've seen people blow with one lung, with – with asthma and everything, and they have all been able to blow fine. I don't know – he never mentioned anything about medical conditions, but I'm saying, in my opinion, from what I – from there, he just wasn't trying to provide a sample.
[27] PC Manning had to reset the device each time Mr. Khan failed to provide a sample. Finally, at 9:39, a total of seven minutes after the device was brought to the scene, PC Manning advised Mr. Khan that he was being arrested for failing to provide a breath sample. Approximately one or two minutes were devoted to the initial preparations and the next 5 minutes were a series of failed attempts to provide a breath sample. Mr. Khan was arrested, read his rights to counsel and cautioned. Mr. Khan indicated that he wished to speak to a lawyer.
[28] Counsel challenged PC Manning about the paucity of his notes with respect to his interactions with Mr. Khan. PC Manning was at the roadside with Mr. Khan from 9:25 p.m. to 9:39 p.m., a total of 14 minutes, before he was arrested for failure to provide a breath sample. The officer had no recorded notes of any conversation with Mr. Khan whatsoever other than the responses to the standard questions. It seems odd that an officer would not note anything of significance about an offence that is dependent on evidence of the nature of the interaction between the accused and the officer.
[29] PC Manning initially had no independent recollection of any conversation during the approximately 5 minutes or so that he was attempting to obtain a breath sample other than explaining to Mr. Khan about how to blow and why his attempts were insufficient. Presumably, Mr. Khan was not standing mute during these exchanges. Later, during cross-examination, PC Manning contradicted himself and recalled that Mr. Khan was telling him that he was trying to provide a sample.
[30] Counsel also challenged Officer Manning about his recollections of what happened after the sixth failed attempt to provide a breath sample which resulted in the following exchanges at page 37 of the transcript:
Q. Okay. And I'm going to suggest that after his sixth time, you told him he was under arrest, that he asked you for another chance.
A. Yeah, I guess he could have. I don't recall. But after six, I'm – he is under arrest. There's no more chances.
Q. Okay. So he did - is it fair to say he asked for another chance at the end? Do you remember him asking...
A. I don't recall.
Q. Okay. And if he did, it wouldn't have made a difference anyways?
A. Well, he had six chances. I'm...
Q. That's it? Too bad?
A. After six, usually people take two or three.
Q. Okay. Is six chances your limit?
A. Six – five, six.
Q. Five or six is your – is your cut-off point?
A. Yes, sir.
Q. It doesn't matter how long it has been out there, if it's cold? It doesn't matter if you can't see anything that would indicate he is cheating, or not trying? Five or six, you're done?
A. Yeah.
Q. No last chance?
A. The – the fourth and the – or the fifth and the sixth were the last chance, sir. I gave him the first four, and then I cautioned him and gave him two more.
And later at pages 40 and 41:
Q. He asked for a last chance?
A. He asked for – he asked for another chance and no. You asked me to give him a last chance on the phone.
Q. Okay. But he asked for a last chance at the side of the road?
A. Yes, sir.
[31] This very experienced officer advised that it "normally" takes people 2 or 3 times to provide a suitable sample. That would mean that the first few times Mr. Khan experienced challenges with providing a sufficient sample was not unusual. Nevertheless, Officer Manning takes the position that 5 or 6 chances to provide a suitable sample is enough and thereafter a detainee will be arrested regardless of how much time has passed, the nature of the failed attempts, whether the person has been warned about the consequences or warned that this is their last opportunity or whether that person asked for a last chance.
[32] The officer transported Mr. Khan to the station without delay. Mr. Khan was paraded, and his counsel of choice was contacted. Mr. Khan consulted with his counsel from 10:20 to 10:24 p.m. Following his conversation with counsel, counsel asked the officer to provide Mr. Khan with one last chance to provide a sample. Mr. Khan was not given any further opportunities to provide a sample at the station. He was processed and then released from the station on a promise to appear.
iv. Failure or refusal to provide a breath sample:
[33] Subsection 254(5) makes it an offence for anyone who "without reasonable excuse, fails or refuses to comply with a demand" to provide a roadside breath sample. The Crown must establish the essential elements of the offence beyond a reasonable doubt that:
(1) A proper demand was made forthwith to a person who was driving within the preceding three hours and who is suspected of having alcohol in his or her system directing the detainee to provide a sample;
(2) There was a failure or refusal to provide a breath sample; and
(3) There was an intention to fail or refuse to provide the required breath sample.
[34] There is no issue in this case that there was a proper demand or that Mr. Khan failed to provide a breath sample despite 6 attempts in approximately 5 minutes. The issue is whether the Crown has established that Mr. Khan intentionally failed to do so. When a detainee outright refuses to provide a sample, that person's intent is evident. It is more challenging to discern a person's intent when they have attempted to provide a sample but were unsuccessful.
[35] There was a significant legal debate over the years about the prerequisite mens rea of failing to provide a breath sample. This legal debate was summarized in the decisions of R. v. Soucy (2014), 2014 ONCJ 497, and R. v. Greenshields, [2014] O.J. No. 475. That legal debate was resolved in the decisions of R. v. Slater, [2016] O.J. No. 1592, and most recently in R. v. King, [2019] O.J. No. 2468. I adopt the legal analysis in each of these decisions that the Crown must establish that the Defendant intended to produce a failure. This is not an undue burden on the crown. A person's intention to produce a failure can be inferred from the facts in a case. As Justice Nordheimer observed in Slater, supra:
…if the evidence led by the Crown establishes that the accused did not provide a proper breath sample, and the accused knows that s/he has not provided a proper breath sample, then, absent other circumstances being present that might explain that failure, the inescapable inference is that the accused intended to cause that result (para. 9).
And further:
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. (para. 13)
[36] While there is an inference available from these facts that Mr. Khan intended to fail to provide a sample, I am not convinced that it is an "inescapable" inference albeit it is very close to the line. As Justice Durno explained in R. v. Grant, 2014 ONSC 1479, there are various factors to consider when assessing a person's intentions including whether the person offered to try one last time or whether an officer warned the person that s/he would be given one last chance:
I am not persuaded that there is an obligation on the demanding officer in every case to tell the driver that it is his or her last chance to provide a suitable sample. Nor am I persuaded that whenever a driver is told he or she is going to be charged with refusing to provide an Intoxilyzer sample, that simply asking for another chance means the offence has not been completed. Were it as the appellant appears to contend, the procedure could never end.
What is required in each case is a fact-specific analysis to determine whether the elements of the offence have been established beyond a reasonable doubt by the Crown. Those elements are: i) a valid demand, ii) the failure or refusal of the detainee to provide a suitable breath sample, and iii) that the detainee intended to refuse to provide a suitable breath sample.
The determination of whether the last element above, the mens rea component, is satisfied beyond a reasonable doubt will require a case-specific analysis of all the circumstances, including the following:
i) the words and actions of the detainee from which the officer concluded he or she intended to refuse to provide a suitable sample;
ii) the number of opportunities the officer provided to the detainee;
iii) the instructions provided to the detainee by the officer including any reference to the applicable law, how to provide the sample, and whether the detainee was told they were being given one last chance to provide the breath sample;
iv) the detainee's state of intoxication and attitude;
v) the availability of the technician and Intoxilyzer; and
v) where the detainee has been told that he or she has refused to provide a suitable sample and will be charged and indicates they want another opportunity, the time between being told of the charge and the offer, the number of opportunities to provide a breath sample and previous "last chance" offers, and the manner in which the offer is made. These criteria will assist in determining whether the request was bona fide.
Where the detainee offers to provide a "last chance" sample, it will be for the officer initially, and at trial for the trial judge to determine whether the post-charge offer was bona fide and whether the refusal and the subsequent offer were part of "one transaction."
[37] Justice Durno was addressing the issue of failing to provide a breath sample at the station as opposed to a roadside screening device. There are different time demands at the roadside to obtain a sample forthwith nevertheless, this decision is still instructive.
[38] I also found Justice Tetley's decision in R. v. Ratsingham, [2015] O.J. No. 5857, to be very helpful since the facts were quite similar to this case. Justice Tetley noted that:
52 Applying these considerations to the circumstances of this prosecution, I note the following:
Any verbal exchanges between the defendant and the investigating officer in relation to the various attempts to secure a suitable sample were not recalled, recorded or otherwise memorialized by the investigating officer;
The officer did not record or note the various error messages as they occurred apart from noting that they either collectively referenced circumstances where the volume of air was insufficient or the defendant did not blow long enough;
The number of opportunities to comply provided by the officer to the defendant is disputed. As previously noted, the investigating officer testified that he accorded the defendant 12 separate opportunities to comply with the defendant stating that he was only provided five opportunities to respond to the officer's demand;
The investigating officer advised that he informed the detainee as to how he was to provide the sample, instructed the defendant of the consequences of non-compliance after the fourth failed attempt and, as noted, did not advise the defendant that there would be one last chance to provide the requested breath sample;
The defendant's state of intoxication, general health or attitude was not such that any of those considerations might account for the failure to comply;
The roadside screening device was readily available;
There is a factual debate as to whether the defendant requested a "last chance" opportunity to provide the requested breath sample. The investigating officer had no recollection of such a request being made and made no note of being asked by the defendant for one final opportunity to comply, the officer was, however, unable to discount that possibility.
53 While the officer's notes of the details of the attempts to secure a sample of the defendant's breath for screening purposes could have been more detailed, I accept that the defendant was cautioned as to the consequences of refusing to provide a suitable sample and given eight further opportunities to comply with the officer's demand. I accept the investigating officer's representations that between 2:20 a.m. through to 2:26 a.m., a total of 12 opportunities were provided to the defendant to comply with the officer's request for a sample of the defendant's breath for screening purposes for the reasons previously stated.
54 I am similarly satisfied that the investigating officer advised the defendant why he was encountering difficulties as the defendant "attempted" to comply with the officer's demand. I accept that the defendant was informed that he was either not blowing hard enough, or alternatively, was not blowing long enough.
55 In these circumstances, the officer's decision to terminate the breath sampling process can hardly be viewed as precipitous. That said, the lack of detail in the officer's notes during the course of the breath sampling process and the fact that the officer was unable to definitively state that the defendant did not make a request for one final opportunity to comply, creates the possibility that the defendant may have made a "post-charge offer" that was bona fide, immediately upon being informed that he was being arrested for failing to comply with the officer's demand.
56 The circumstances in issue here are strikingly similar to those in R. v. Tynkaluk, (Ontario District Court), [1989] O.J. No. 957. In page 5 of that decision, Conant D.C.J. noted as follows:
In the case at bar, the accused was given eight opportunities to provide a proper sample of his breath, and he failed to do so on each of these occasions. The time that elapsed between the first attempt and the request by him for another chance was approximately ten minutes. As well, the officer and the testing apparatus were clearly still available. Further, the evidence indicates that the accused's offer to try again followed immediately on the heels of the arrest. I agree with Judge MacKinnon in Stowe (R. v. Stowe, (1983), 22 M.V.R. 273) (B.C. County Court) that there must come a time when a person can reasonably conclude that there has been a failure to comply, and this case comes very close to that point as the accused was given a number of opportunities to comply. However, the entire incident took place over a period of just over ten minutes, and there was no problem with the availability of the required equipment. As well, there was no warning given to the accused at any point that his next attempt would be his last opportunity to provide a suitable sample. In response to the accused's "pleading" for another chance, which appears to have followed immediately upon the arrest, the officer should have given him one final opportunity to give an adequate sample.
57 On review of the entirety of the trial record, I am unable to discount the possibility that the defendant offered to provide a "last chance" blow into the roadside testing device. The uncertainty in this regard could have been overcome by more detailed note-taking by the officer and/or a last chance final warning as to the consequences of non-compliance before the arrest was made. As the officer is unable to refute the possibility that the defendant may have made a final offer to comply that may not have been facilitated, I conclude that opportunity ought to have been afforded to the defendant. The request, according to the defendant's recollection of events, was made in a timely fashion upon being told that he would be arrested for non-compliance. The roadside testing device was available as was the officer who could have easily facilitated the accused's request by offering him one final opportunity to comply.
[39] I have considered that Officer Manning both demonstrated and explained to Mr. Khan how to provide a breath sample. Mr. Khan did not appear impaired in any manner that would have interfered with his ability to understand the instructions about how to provide a breath sample. He was otherwise polite and cooperative. He was able to understand English. He was not in any medical distress. He did not present with any breathing problems. The officer explained that it takes little effort to provide a suitable sample into an approved instrument although people normally take two or three tries before successfully providing a sample. There were no apparent obstructions in the mouth piece. The officer tested the approved instrument and obtained a reading without any challenges.
[40] Mr. Khan was given approximately 5 minutes to provide a sample which is a significant period of time at the roadside. He tried four times and the officer conceded that he may have just fallen short by "microseconds" of the required effort to register a reading each time. There is no evidence of deliberately obstructionist conduct other than just falling short of not providing a full breath sample. Although Officer Manning related that he cautioned Mr. Khan about the consequences of failing to provide a sample, he could not recall the words he used when he cautioned him or the content of the caution. Mr. Khan was given two more chances and then he was arrested without any warning that his last attempt would be his last opportunity. Throughout this process, Officer Manning had no recollection or notation of the nature of the conversation or exchanges between he and Mr. Khan. At first, he could not recall Mr. Khan saying anything at all but when confronted with the absurdity of the suggestion that he was standing mute, he stated that he believed that Mr. Khan said that he was trying to provide a sample.
[41] Officer Manning did not initially recall Mr. Khan offering to provide one last sample but, by the end of his evidence, he recalled that Mr. Khan had offered to try one last time right after he was told that he would be arrested. There is no evidence of any temporal gap between the last attempt and Mr. Khan's offer to try one last time. Officer Manning has a hard cut off of 5 or 6 tries and then a person is arrested regardless of the circumstances.
[42] If a person repetitively falls short of providing a full breath sample despite a fulsome warning of the incumbent consequences and/or a warning that they have one last chance to provide a sample or they will be arrested for an offence that carries with it the same penalties as blowing over the legal limit, the wilful nature of that person's conduct can be easily inferred from the totality of the circumstances. Courts do not expect police officers to stand at a roadside indefinitely giving a person chances to blow. On the other hand, police officers are expected to make an informed decision about when there are reasonable grounds to arrest a person for this offence based on a consideration of the unique facts in each case as opposed to having a predetermined maximum number of opportunities without regard to the individual circumstances.
[43] This Officer's ill-advised practice, sparse notes and hazy recollections make it challenging to discern that the only available reasonable inference from these facts is that Mr. Khan intended to fail to provide a sample. It is certainly a compelling inference and it is most likely what happened, but I am left with a lingering reasonable doubt about this issue.
C. Conclusion
[44] Mr. Khan is acquitted of the criminal charge of failing to provide a breath sample and acquitted of the breach of probation since there is no evidence about the amount of alcohol in his system. The Crown conceded that, if Mr. Khan is acquitted of the Criminal Code failure to provide a breath sample, the HTA charge should also be dismissed. As a result, that charge is dismissed as well.
Released September 11, 2019