Court File and Parties

Ontario Court of Justice

Date: 2019-09-24

Court File No.: Hamilton 18-8036

Between:

Her Majesty the Queen

— and —

Coppens Mfuamba Kabongo

Before: Justice J.P.P. Fiorucci

Heard on: July 26, 2019

Reasons for Judgment released on: September 24, 2019

Counsel

A. Burns — counsel for the Crown

D. Clarke — counsel for the defendant Coppens Mfuamba Kabongo

FIORUCCI J.:

INTRODUCTION

[1] A civilian witness called 911 to report a possible impaired driver. The witness provided the make and model of the vehicle and a description of the driver. P.C. Kevin Lei of the Hamilton Police Service heard the dispatch call. P.C. Lei then observed a vehicle matching the description of the suspect vehicle drive by the location where he was parked.

[2] P.C. Lei followed the vehicle and conducted a traffic stop. Mr. Mfuamba Kabongo was the driver of the suspect vehicle. P.C. Lei made a section 254(2) Criminal Code demand that Mr. Mfuamba Kabongo provide a sample of his breath into an Approved Screening Device (ASD). Mr. Mfuamba Kabongo was charged with failing or refusing to comply with the officer's demand.

[3] The Defence does not dispute the validity of the breath demand. P.C. Lei had the requisite grounds to make the demand, and he made the proper demand. P.C. Lei testified that he gave Mr. Mfuamba Kabongo five opportunities to provide a breath sample into the ASD, all of which were unsuccessful. He opined that Mr. Mfuamba Kabongo tried to avoid providing a suitable sample. P.C. Lei testified that after the fifth unsuccessful attempt to provide a sample, he cautioned Mr. Mfuamba Kabongo about the consequences of failing to provide a sample. At this point, according to P.C. Lei, Mr. Mfuamba Kabongo said that he would not be providing a sample.

[4] Therefore, the Crown contends that Mr. Mfuamba Kabongo failed or refused to comply with the demand both by feigning attempts to blow into the device and by an unequivocal verbal refusal.

[5] Mr. Mfuamba Kabongo entered a not guilty plea to the charge. He testified at the trial. Mr. Mfuamba Kabongo stated that he followed the instructions the police gave him on each occasion and did his best to provide a suitable sample. Furthermore, he denied P.C. Lei's claim that he verbally refused to provide a breath sample after the fifth attempt.

ANALYSIS

[6] The accused is presumed innocent and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus. A reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.

Has the Crown proven beyond a reasonable doubt that the Accused intentionally failed or refused to provide a suitable sample by feigned attempts to blow?

[7] In order to be found guilty of the offence under section 254(5) of the Criminal Code, the Crown must prove beyond a reasonable doubt that the accused refused or failed to provide a suitable sample "on purpose". Because the refusal or failure must be intentional, "a person who fails to provide an appropriate sample despite genuinely attempting to do so, will not have committed the mens rea of this offence".

[8] In R. v. Lazarska, Hill J. stated the following:

Proof of failure or refusal to provide an adequate sample, as opposed to mechanical malfunction, often depends as well on prosecution evidence as to the readiness and good repair of the device and the officer's impression of observed facts such as the driver's demeanour, statements by the driver, and efforts to comply with instructions.

[9] The mens rea requirement has been described as follows in R. v. Dolphin:

Whenever there has been an outright refusal, mens rea can be presumed. However, where a failure is alleged, more proof is required. Usually, that proof will flow from the inference that a person intends the natural consequences of his/her acts. The inference is often drawn from proof that an adequate sample was not provided after a clear explanation was given as to how to blow into the device and after the accused was given an adequate opportunity to blow into a device that was in good working order. Having said that, often is not always. Consequently, whenever the defence argues that the accused did not intentionally refuse to provide a sample, the court must analyze the evidence to determine if mens rea has been proved beyond a reasonable doubt.

[10] In this case, Mr. Mfuamba Kabongo testified. I am required to consider and apply the framework enunciated in R. v. W.(D.), which states that:

(1) If I believe the testimony of the accused, I must find him not guilty;

(2) If I do not believe the accused's evidence, but the evidence leaves me with a reasonable doubt, I must find him not guilty;

(3) Even if the accused's evidence does not leave me with a reasonable doubt, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.

[11] If I believe Mr. Mfuamba Kabongo's testimony that he tried his best to provide a suitable sample, or if his testimony leaves me with a reasonable doubt, I must find that the Crown has not proven that he failed or refused to provide a breath sample by feigned attempts to blow. Even if I reject his evidence in its entirety, I have to ask myself whether the Crown has proven his guilt beyond a reasonable doubt on the evidence I do believe.

[12] A criminal trial is not a "credibility contest". The overriding consideration is whether the evidence as a whole leaves the trier of fact with any reasonable doubt about the guilt of the accused. The evidence favourable to the accused must be assessed and considered with the conflicting evidence offered by the Crown as a whole, not in isolation.

[13] Mr. Mfuamba Kabongo testified that he followed P.C. Lei's instructions as best he could and that he attempted to provide a sample to the best of his abilities. P.C. Lei requested that he blow into the ASD harder after his first failed attempt. Mr. Mfuamba Kabongo recalled the police telling him to blow harder a couple of times.

[14] According to Mr. Mfuamba Kabongo, every time that he attempted to blow, he followed the instructions the police gave him. He acknowledged that P.C. Lei asked him a few times to attempt to give a sample, and that he blew into the ASD four or five times. Mr. Mfuamba Kabongo was not sure "what was not working with the sample" when he was trying to provide it.

[15] When Crown counsel asked the accused if he recalled the officer telling him that he could be charged for failing to provide a suitable sample, Mr. Mfuamba Kabongo replied, "[t]hat's why I was trying to follow all the instructions every time they notified me to blow into it, which I did".

[16] Mr. Mfuamba Kabongo gave his evidence in a straightforward and balanced manner. There was nothing in the substance of his evidence or the manner in which he testified that led me to disbelieve his evidence. When I consider the trial evidence as a whole, I find that Mr. Mfuamba Kabongo's evidence leaves me in a state of reasonable doubt regarding his intention to fail or refuse to comply with the officer's demand by feigning attempts to provide a suitable sample.

[17] P.C. Lei's evidence regarding the feigned attempts lacks cogency. It is devoid of the details necessary to assess his opinion that Mr. Mfuamba Kabongo intended to avoid providing a sample. The concerns I have with P.C. Lei's evidence, coupled with Mr. Mfuamba Kabongo's denial of any intention to avoid providing a suitable sample, leaves me in a state of reasonable doubt.

[18] P.C. Lei testified that he believed Mr. Mfuamba Kabongo "was attempting to conceal his breath sample, as he likely would have blown a fail". The officer's opinion evidence is admissible. As the Court stated in R. v. Dolphin:

However, as with all opinion evidence, the weight to be afforded that opinion depends on the reliability of the foundation for that opinion. Generally, the officer's opportunity to make the observations upon which he relies is put at issue in a case where the accused attempts to blow into the device.

[19] P.C. Lei stated that the Drager Alcotest ASD he used was working properly. He had tested it at the beginning of his shift, at approximately 6:00 p.m. At that time, P.C. Lei blew into the ASD himself. According to P.C. Lei, this self-test resulted in a reading of "zero milligrams". This reading was expected since P.C. Lei had not been drinking alcohol. No one else used the ASD between P.C. Lei's self-test and the time at which he presented it to Mr. Mfuamba Kabongo for use, which was approximately six hours later at 12:15 a.m. on July 30, 2018.

[20] P.C. Lei read the ASD demand to Mr. Mfuamba Kabongo at approximately 12:15 a.m. Mr. Mfuamba Kabongo understood the demand. The five allegedly feigned attempts all occurred between approximately 12:15 a.m. and 12:17 a.m.

[21] When P.C. Lei took the ASD out of the protective box, he inserted a new mouthpiece into the device before presenting it to the accused. P.C. Lei testified that the mouthpiece he inserted into the ASD had no obstructions.

[22] Prior to Mr. Mfuamba Kabongo's first attempt, P.C. Lei instructed him to wrap his lips around the mouthpiece and provide a consistent blow. According to P.C. Lei, Mr. Mfuamba Kabongo was not blowing hard enough on this initial blow "so then after it shows 'error' on the screen". However, the officer did not note, and was not able to recall, the exact "error" message displayed on the screen. In fact, P.C. Lei did not note the messages that were displayed on the ASD for any of the accused's five attempts.

[23] In cross-examination, Defence counsel asked P.C. Lei about the "error" message he referred to in his direct examination. P.C. Lei did not know the exact wording of this "error" message. He said he believed that the ASD displayed "Insufficient Blow Volume". He then testified that it could have been a phrase like "Insufficient Volume". He also agreed with Defence counsel's suggestion that it may have said "Blow Interruption". P.C. Lei did not know the difference between "Insufficient Volume" and "Blow Interruption". He could not say which message appeared on the display of the ASD in this case and admitted that he had not read the manual for the ASD.

[24] After the first failed attempt, P.C. Lei re-explained the procedure to Mr. Mfuamba Kabongo because "often times it's people not understanding that they have to provide a consistent blow". According to the officer, prior to the second attempt, Mr. Mfuamba Kabongo advised that he understood. P.C. Lei did not use a new mouthpiece for the second attempt, although he had been trained to do so. P.C. Lei testified that Mr. Mfuamba Kabongo did not wrap his lips around the mouthpiece on the second attempt. Again, the officer did not record any message that may have been displayed on the ASD for this second attempt.

[25] P.C. Lei testified that he used a total of two mouthpieces for Mr. Mfuamba Kabongo's five attempts. The first mouthpiece was used for the first and second attempt. As stated above, P.C. Lei testified that the first mouthpiece did not have any obstructions.

[26] P.C. Lei could not recall whether he switched to the second mouthpiece after the second, third or fourth attempt. P.C. Lei was not asked whether he had checked the second mouthpiece for any obstructions. There is no evidence before me that P.C. Lei ensured that this second mouthpiece had no obstructions.

[27] More significantly, P.C. Lei gave no details regarding what happened during Mr. Mfuamba Kabongo's final three attempts to provide a sample. He merely stated that the accused failed to blow into the ASD properly:

P.C. Lei: ….And then I give him three more opportunities to do so and each opportunity he failed to blow into the device properly.

Crown Counsel: And do you recall what the other three issues were?

P.C. Lei: No, I do not.

[28] P.C. Lei testified that he did not remember why the last three attempts were unsuccessful. He stated, "[n]o, I didn't make note of what the circumstances were around those specific blows". Accordingly, with respect to the final three attempts, there is no evidence regarding the accused's conduct and no evidence about the readings that were displayed on the ASD following each attempt. In my view, given this absence of evidence, there is an insufficient foundation for P.C. Lei's opinion that Mr. Mfuamba Kabongo failed to blow into the ASD properly for his final three attempts.

[29] On the totality of the evidence, I am unable to find that the Crown has proven beyond a reasonable doubt that Mr. Mfuamba Kabongo intentionally failed or refused to provide a suitable sample by feigned attempts to blow.

Has the Crown proven beyond a reasonable doubt that the Accused unequivocally expressed an intention to refuse to comply with the demand?

[30] I am also left in a reasonable doubt that Mr. Mfuamba Kabongo unequivocally expressed an intention to refuse to comply with P.C. Lei's demand after the fifth unsuccessful attempt. Mr. Mfuamba Kabongo denied that he said anything of the sort to P.C. Lei. Again, the accused gave his evidence on this point in a straightforward and balanced manner and there was nothing in the substance of his evidence, or the manner in which he testified, that led me to disbelieve his evidence on this point.

[31] Furthermore, I find P.C. Lei's evidence on this issue problematic. P.C. Lei claimed that after the fifth unsuccessful attempt, he explained to Mr. Mfuamba Kabongo the consequences of failing to provide a sample into the ASD, at which point the accused "advised that he would no longer be blowing into it….do any further attempts".

[32] P.C. Lei did not record in his notes the words spoken by the accused which the officer interpreted as a refusal. He did not record the accused's words in the notes he made on July 30, 2018, nor in the notes he made on August 1, 2018. The following exchange occurred between Defence counsel and P.C. Lei:

Defence counsel: I suggest to you, sir, that my client never used words to the effect, 'I'm refusing to blow'. Would you agree with that?

P.C. Lei: That's what my memory recalls.

Defence counsel: Okay. But your memory doesn't recall what exactly he said, right?

P.C. Lei: It was something to that effect…..

Defence counsel: Okay.

P.C. Lei: …after the five blows.

[33] An officer's failure to record the actual words of the alleged refusal can deprive the Court of the evidence necessary to objectively assess whether the accused unequivocally refused to comply with the breath demand. As Paciocco J. (as he then was) stated in R. v. Ross, "[a]lthough it is always important for officers to make complete notes, this is particularly so where the actus reus of the offence is predicated on what an accused person is communicating".

[34] Paciocco J. went on to say:

I agree with the sentiment expressed in R. v. Jurado by Justice Brown. In that case the officer failed to record the comments said to amount to an unequivocal refusal, but instead wrote his impression or opinion about what the accused was communicating. At para 35 Justice Brown rejected the Crown's invitation to accept the officer's opinion that the words spoken, whatever they may have been, amounted to an outright refusal. He commented, "I would think that a police officer would take the short period of time required in a case such as this to make verbatim note of the words of the refusals or the conduct constituting the refusal when those words or conduct constitute the actus reus of the offence." He then cited R. v. Foster with agreement where Justice Misener said at para 20, "[to infer an unequivocal refusal] simply because that was apparently the opinion of the police officer is an abdication of the judicial function. I would not deny the judge's right to take that opinion into account, but to accept it as proof beyond a reasonable doubt without so much as a tittle of evidence capable of providing the basis for the opinion is wrong.

[35] On the totality of the evidence, I am unable to find beyond a reasonable doubt that the accused communicated an unequivocal intention to refuse to blow into the ASD after the fifth unsuccessful attempt. P.C. Lei's testimony that his memory recalls the accused saying something to the effect that he was refusing to blow is not clear and cogent evidence that can satisfy the heavy onus on the Crown. I am left in a state of reasonable doubt by the accused's denial and the concerns I have with P.C. Lei's evidence.

CONCLUSION

[36] Mr. Mfuamba Kabongo is found not guilty of the charge of Failing or Refusing to Comply with a breath demand made to him by a peace officer pursuant to section 254(2) of the Criminal Code.

Released: September 24, 2019

Signed: Justice J.P.P. Fiorucci