ONTARIO COURT OF JUSTICE

CITATION: R. v. Castelblanco Velasco, 2019 ONCJ 84

DATE: February 14, 2019

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SANDRA CASTELBLANCO VELASCO

Before Justice John North

Heard on November 27 and 28, 2018

Reasons for Judgment released on February 14, 2019

Ms. E. Wincour.......................................................................................... counsel for the Crown

Mr. T. Tutunjian...................................................................................... counsel for the Defence

NORTH J.:

I. INTRODUCTION

[1] Ms. Castelblanco Velasco is charged with failing to comply with a demand for a breath sample contrary to section 254(5) of the Criminal Code and impaired driving contrary to s. 253(1)(a) of the Criminal Code. Both alleged offences occurred on January 21, 2017.

[2] The Crown called four witnesses during this trial. Ms. Castelblanco Velasco did not call any evidence.

[3] The defence made a number of admissions. One important admission that should be noted at the outset is that on January 21, 2017 Ms. Castelblanco Velasco was driving a Toyota Camry on College Street and was involved in a collision with a large street sweeping vehicle.

[4] There were no Charter issues in this case.

[5] The main issue on the charge of failing to comply with a demand for a breath sample was whether the Crown had established that Ms. Castelblanco Velasco had the requisite mens rea for this offence.

[6] The fundamental issue on the impaired driving charge was whether the Crown had established, beyond a reasonable doubt, that Ms. Castelblanco Velasco’s ability to drive the Camry was impaired as a result of the consumption of alcohol. The defence argued that there was insufficient evidence of impairment at the time Ms. Castelblanco Velasco was driving to support a conviction.

II. THE EVIDENCE

(i) The Evidence of Noemi Morales

[7] Noemi Morales is a heavy equipment operator employed by the City of Toronto. In the early hours of January 21, 2017 she was operating a large street sweeping vehicle in downtown Toronto. This vehicle is much larger than a car.

[8] At approximately 3:30 AM, Ms. Morales was driving the street sweeping vehicle eastbound in the curb lane on College Street. She testified that it was not snowing and believed there was no ice on the road. She could not remember if it was raining. She said that there was a lot of traffic on the road.

[9] Ms. Morales was using the broom located on the right side of the vehicle as she approached the intersection at Bathurst Street. She had turned on her right signal light to indicate that she would be turning south on Bathurst. She was driving in a straight line. She testified that she was driving approximately 8 kilometres per hour and was slowing down as she approached the Bathurst intersection.

[10] Ms. Morales testified that before she started to turn south on Bathurst a car moving eastbound in the left lane abruptly made a right turn in front of her vehicle. Ms. Morales tried to stop before the vehicles collided but was unable to do so as the car was moving too quickly. The car became “wedged” into the side of the street sweeping vehicle.

[11] Using the two-way radio located in her vehicle, Ms. Morales contacted her supervisor and let him know what had happened. She said that initially she didn’t want to get out of her vehicle as there were two women arguing on the sidewalk and she was concerned that it could turn into a fight. She asked her supervisor to attend the scene. She also called 911.

[12] A short time later she decided that it would be safe to step out of her vehicle.

[13] She testified that there were three people in the car. Ms. Morales said she saw the driver of the car at the time of the collision. She testified that the person who was behind the wheel when she approached the car was the same person who was driving at the time of the collision. As previously noted, the defence admits that Ms. Castelblanco Velasco was the driver of the Camry.

[14] Ms. Morales asked the occupants of the car if they were okay. One or more of the occupants responded that they were fine. Ms. Morales spoke to the occupants of the vehicle in Spanish.

[15] Ms. Morales said that the passengers could not get out of the car as it was wedged against her street sweeping vehicle.

[16] Ms. Morales testified that the driver of the car tried to drive the car away from the street sweeping vehicle but the movement was causing more damage to the car.

[17] Ms. Morales testified that it did not take the police long to arrive on the scene. She said she watched a police officer escort the driver of the car to a police vehicle.

[18] Ms. Morales testified that she spoke with the driver of the vehicle at the scene. She said that when she spoke to the driver, they were a “normal talking distance” apart from each other. She did not notice anything unusual about the way the driver looked or her manner of speech. She did not recall smelling any unusual odour when speaking with the driver.

(ii) The Evidence of Constable Nicole Bedard

[19] Constable Nicole Bedard has been with the Toronto Police for 21 years. She was working in a marked police cruiser when she was dispatched at 3:45 AM to respond to a report of a collision at Bathurst and College.

[20] She testified that the roads were wet as it had been drizzling earlier in her shift.

[21] When Constable Bedard arrived at College and Bathurst she saw a large street sweeping vehicle in the curb lane on College Street. She also saw a black Toyota that appeared to have driven into the front area of the driver’s side of the street sweeper. The street sweeper was right up against, and parallel to, the curb and the Toyota was “at an angle” to the curb and the street sweeper. It appeared to Constable Bedard that the car had turned into the street sweeper. Constable Bedard testified that the car was “clearly in a turning movement.”

[22] A man approached Constable Bedard and identified himself as a supervisor of the City of Toronto department responsible for street sweeping vehicles. The supervisor pointed out the drivers of the two vehicles.

[23] Constable Bedard testified that she asked Ms. Castelblanco Velasco, “I understand you are my driver?” and the accused responded, “yes I am.”

[24] Constable Bedard asked the three women who had been in the Toyota if they were okay and was told they were. The officer noticed that the three women were all “nicely dressed”. Constable Bedard asked them where they were coming from and Ms. Castelblanco Velasco said that she had been working at a banquet hall near Woodbine. The officer testified that she detected a “faint slur” to Ms. Castelblanco Velasco speech.

[25] The officer testified that she became concerned that there may be an impaired driving issue. She explained that Ms. Castelblanco Velasco’s slurring and the fact that the three women from the Toyota were nicely dressed were factors that contributed to this concern.

[26] Constable Bedard asked Ms. Castelblanco Velasco if she had anything to drink and the accused responded that she had, “one beer maybe 4 hours ago, but I’m fine.”

[27] Constable Bedard testified that, at that point, the signs of impairment were “very low” and the only sign of impairment that she noticed was the faint slur to Ms. Castelblanco Velasco’s speech.

[28] The officer testified that she decided to administer a roadside screening test to Ms. Castelblanco Velasco, based on the following:

• Ms. Castelblanco Velasco’s slurred speech;

• Ms. Castelblanco Velasco admitted to having consumed alcohol;

• Ms. Castelblanco Velasco was the driver of the Camry involved in the collision;

• There was “extremely low vehicle traffic” on College Street when the officer arrived at the scene; and

• Ms. Castelblanco Velasco said that she was coming from a banquet.

[29] Once she made the decision to administer a roadside screening test, Constable Bedard brought the accused to the front of her police cruiser to ensure that this part of their encounter was captured on video. However, there appears to have been a technical problem with the camera and no recording of this encounter was introduced into evidence.

[30] Constable Bedard testified that she retrieved the alco-test from her car. The officer testified that she tested the alco-test at the beginning of her shift. She believed it to be in proper working order.

[31] Constable Bedard asked Ms. Castelblanco Velasco if she had ever been given a roadside demand and the accused said that she had not. The officer read a formal demand to the accused and asked her if she understood. Ms. Castelblanco Velasco answered “um hum” and nodded her head. The officer understood Ms. Castelblanco Velasco to be saying that she understood and that she would comply with the demand.

[32] Constable Bedard told the accused that it was very easy to provide a breath sample and that it was “easier than blowing up a balloon”. Constable Bedard told Ms. Castelblanco Velasco to keep blowing into the breath tube until she was told to stop.

[33] According to Constable Bedard, Ms. Castelblanco Velasco put her lips on the breath tube but initially she did not blow at all. The accused then puffed into the breath tube, but Constable Bedard testified it was not even close to being enough to register.

[34] The officer told the accused, again, to keep blowing until she was told to stop. The accused was told that she must provide a “long breath”. Ms. Castelblanco Velasco was told that she could not stop blowing and that she must provide one long continuous breath. The accused then placed her lips on the breath tube but did not blow. On the next attempt, the accused blew into the tube but she did not blow long enough to register a reading.

[35] According to Constable Bedard, she tried on five occasions to obtain a sample from Ms. Castelblanco Velasco, but each time the accused did essentially the same thing. She would put her lips on the tube but would not blow. After the fifth attempt the officer cautioned Ms. Castelblanco Velasco that she was required to provide a sample and warned her if she did not provide a sample the possible penalties would be the same as for blowing over 80. Ms. Castelblanco Velasco told the officer she would blow.

[36] The officer once again attempted to obtain a sample. This time Ms. Castelblanco Velasco blew into the breath tube, but not long enough to provide a sample.

[37] Constable Bedard made another demand that the accused provide a breath sample.

[38] On the seventh attempt to obtain a sample, Ms. Castelblanco Velasco provided a short breath-sample but it was long enough to register as a “fail”. The officer advised the accused that she had registered as a fail.

[39] At that point, Constable Bedard placed Ms. Castelblanco Velasco under arrest for over 80. The accused was handcuffed. Constable Bedard conducted a quick pat-down search and placed the accused in the rear seat of the officer’s police car. The officer advised Ms. Castelblanco Velasco of her rights to counsel. When Ms. Castelblanco Velasco was asked whether she understood she nodded and said yes.

[40] The officer asked Ms. Castelblanco Velasco if she wished to call a lawyer. The accused told the officer that she didn’t have one. The officer told the accused that she could put the accused in contact with duty counsel when they arrived at the station. Ms. Castelblanco Velasco shrugged her shoulders and the Constable Bedard told her to think about it. Ms. Castelblanco Velasco responded, “okay, okay I will talk to them.”

[41] Constable Bedard read the approved instrument demand to the accused. The officer told Ms. Castelblanco Velasco that once she arrived at the station she would have to provide two breath samples into an approved instrument. Constable Bedard thought that Ms. Castelblanco Velasco seemed confused so the officer explained the process once again. According to Constable Bedard, Ms. Castelblanco Velasco shrugged and said okay.

[42] The officer testified that during her conversations with the accused, it was clear that Ms. Castelblanco Velasco had an accent. It should be noted that the accused’s first language is Spanish and she had the assistance of an interpreter during the trial.

[43] Constable Bedard was absolutely certain that she did not confuse Ms. Castelblanco Velasco’s accent for a slurred speech.

[44] Constable Bedard left the scene of the accident with the accused at approximately 4:16 AM. She drove Ms. Castelblanco Velasco to Traffic Services, which is located in the King and Dufferin area. They arrived at Traffic Services at 4:23 AM.

[45] Ms. Castelblanco Velasco was paraded in the booking hall at 4:29 AM. A video recording of her booking was made an exhibit. In the presence of Ms. Castelblanco Velasco, Constable Bedard provided the booking sergeant with an overview of why Ms. Castelblanco Velasco had been arrested.

[46] The booking sergeant asked Ms. Castelblanco Velasco if she understood everything that was just said and Ms. Castelblanco Velasco confirmed that she did. In the video recording, she was asked a number of questions in English and she provided answers in English that were responsive to the questions. At times while in the booking hall Ms. Castelblanco Velasco was crying. At 4:37 AM, she was advised that she could speak with a lawyer in private. She was taken away from the booking desk at 4:38 AM.

[47] Constable Bedard testified that while Ms. Castelblanco Velasco’s voice was somewhat muffled on the booking hall recording, she recalls that the accused’s slurred speech was getting progressively more noticeable. She described Ms. Castelblanco Velasco speech as “very slurred in the booking hall.”

[48] When asked if she noticed anything unusual physically about Ms. Castelblanco Velasco, the officer testified that on a couple of occasions the accused was a little unsteady and that she stumbled when in the booking hall. She testified that when walking from the booking hall Ms. Castelblanco Velasco bumped into her and was kind of leaning on her when they were walking. She took this as signs of impairment. She also mentioned that Ms. Castelblanco Velasco’s eyes were red but acknowledged that the accused had been crying.

[49] At 4:38 AM, Ms. Castelblanco Velasco was escorted from the booking hall to a locked interview room.

[50] At 4:45 AM, Constable Bedard left a voice-mail message with duty counsel. At 5:12 AM, duty counsel returned the call. Ms. Castelblanco Velasco was placed into a privacy booth room, where she spoke to duty counsel by phone. Her conversation with duty counsel ended at 5:19 AM.

[51] Immediately following her call with duty counsel, Ms. Castelblanco Velasco was taken by Constable Bedard into the breath room. Constable Sineer Patil, the qualified breath tech, was already in this room.

[52] Throughout the evening, Constable Bedard did not notice any reason to believe that Ms. Castelblanco Velasco had a medical and/or breathing problem.

[53] Constable Bedard confirmed that she had not made any notes about detecting an odour of alcohol on Ms. Castelblanco Velasco. However, the officer also advised the court that she lost her sense of smell when she was 16 years old.

(iii) The Evidence of Stephen Birtles

[54] Constable Stephen Birtles was working on January 21, 2017. He arrived at College and Bathurst at approximately 3:30 AM.

[55] Constable Birtles testified that there was some front-end passenger side panel damage to the Camry and there were a couple of marks on the street sweeper. No photographs of the scene were introduced as exhibits. It appeared to him that the Camry made a right turn in an attempt to go southbound on Bathurst and collided with the street sweeper.

[56] He testified that the traffic flow in the area was quite light at 3:30 AM and described the road as wet, but not frozen. He said there was no nearby road construction and no snow on the roads. He acknowledged that the road might have been slippery.

(iv) The Evidence of Sineer Patil

[57] Constable Sineer Patil has been a police officer with the Toronto Police Service for 12 years. He is a qualified breath technician. The defence took no issue with his qualifications.

[58] He was working at Traffic Services on January 21, 2017. His entire encounter with the accused was in the breath room. Prior to making a demand for a breath sample, he conducted a number of quality assurance checks to ensure that the Inxtoxilyzer was in proper working order. As a result of these tests he came to the conclusion that the machine was in proper working order.

[59] There was a video and audio recording of his entire encounter with the accused in the breath room that day. That recording was made an exhibit. Some of what was said by the accused and Constable Patil in the breath room is not audible. I have not included in these reasons every audible exchange made in the breath room.

[60] The recording from the breath room commenced at 5:19.20 AM.

[61] Prior to attempting to obtain a breath sample, Constable Patil asked Ms. Castelblanco Velasco a number of questions in English. Ms. Castelblanco Velasco provided responsive answers to these questions in English.

[62] Shortly after Ms. Castelblanco Velasco was brought into the breath room, Constable Patil was advised by Constable Bedard that Ms. Castelblanco Velasco was arrested for “over 80” and that she had been in a car accident.

[63] Constable Patil asked Ms. Bedard if she understood why she was there and she replied, “Yah, it was an accident.” Constable Patil responded, “So you were in an accident and you are here to provide two samples of your breath…”. Ms. Castelblanco Velasco interrupted the officer and said, “It wasn’t an accident.” She did not clarify what she meant by that.

[64] Constable Patil explained to Ms. Castelblanco Velasco why she was there and what she would be required to do.

[65] Constable Patil testified that in his initial observations of Ms. Castelblanco Velasco he noticed that her eyes were bloodshot. He did not initially notice that she was slurring. But he noted that prior to administering the test he did not have much of an opportunity to engage in a conversation with Ms. Castelblanco Velasco.

[66] The officer said the accused’s face was red and that she was quiet. He said that he smelled alcohol coming from Ms. Castelblanco Velasco throughout the time they were together, although he couldn’t pin-point the specific moment when he first noticed it. Constable Patil testified that the affects of alcohol on the accused were “obvious”.

[67] The officer testified that “this is a fairly easy test to provide a sample and she was either incapable or intentionally not providing a sample.” He later clarified that answer by stating that he observed nothing that would make him believe that she was not able to provide a sample. He saw nothing unusual about her breathing or her physical state. When asked by Crown counsel whether he believes that Ms. Castelblanco Velasco intentionally failed to provide a sample he testified, “I feel that it was deliberate, in my opinion. There was plenty of opportunity given, there was ample instructions, I was very patient and reasonable with her. The test is very simple. I explained it several times and she was not providing or listening to the instructions or not providing a sample.”

[68] Immediately prior to the first attempt to obtain a breath sample from the accused Constable Patil handed her a mouth piece which, once the procedure began, would be connected to an Inxtoxilyzer. He told her to place it in her mouth and make a tight seal around one end. He asked her to blow out. He did that to ensure that air could pass through it. Ms. Castelblanco Velasco followed his instructions and he felt the air coming through the device. Constable Patil told her to do the “exact same thing” once the mouth piece was attached to the hose, which was connected to the Inxtoxilyzer.

[69] Constable Patil testified that the Inxtoxilyzer emits a tone when a breath sample is being received. That sound could occasionally be heard on the recording from the breath room.

[70] Based on my review of the recording from the breath room and Constable Patil’s evidence, from 5:27 AM until 5:35 AM the officer made nineteen unsuccessful attempts to obtain a breath sample from Ms. Castelblanco Velasco. A number of these attempts were made it in close succession to each other and it is not always easy to draw a clean line between the end of one attempt and the beginning of another attempt.

[71] Constable Patil explained that the accused was not out of breath during this process, even though some of the attempts to obtain a sample were in close succession to each other, because she was not actually attempting to follow his instruction to breathe into the mouthpiece.

[72] I will review the evidence for each of the nineteen attempts. This review is based on Constable Patil’s testimony and the recording from the breath room.

[73] Constable Patil’s first attempt to obtain a breath sample commenced at 5:27.28 AM. The mouthpiece was placed in the accused’s mouth. The officer told Ms. Castelblanco Velasco to “take a deep breath and go”. He encouraged her to “keep going”. Seconds later, Constable Patil said, “okay, you stopped, you were going for a bit, then you stopped. It’s the same thing.”

[74] Constable Patil’s second attempt commenced at 5:27.40 AM. The mouthpiece was placed in the accused’s mouth. The officer told the accused to take a deep breath, but almost immediately he removed the mouthpiece from her mouth and asked her if she had gum in her mouth. She told him that she didn’t. Constable Patil placed the mouthpiece back in the accused’s mouth at 5:27.48 AM and told her to take a deep breath and blow. Almost immediately, he removed the mouthpiece and said, “nothing is coming out.”. He told her that when “that tone is going, that means you were blowing, okay?” She responded, “okay.” Constable Patil then told her “don’t suck, blow out.”

[75] Constable Patil’s third attempt commenced at 5:27.56 AM when he placed the mouthpiece in the accused’s mouth. Almost immediately, he pulled the mouthpiece away and said, “you’re sucking, you’re sucking on it.” Ms. Castelblanco Velasco responded, “okay”. Constable Patil replied, “blow out, okay?

[76] Constable Patil’s fourth attempt commenced at 5:28.06 AM, when he placed the mouthpiece in the accused’s mouth. A couple of second later, he pulled the mouthpiece out of her mouth and said, “you’re sucking again – blow out.” Ms. Castelblanco Velasco responded “okay”.

[77] Constable Patil’s fifth attempt commenced at 5:28.16 AM, when he placed the mouthpiece in her mouth and told her to blow out. He asked her, “are you blowing out”? Ms. Castelblanco Velasco pulled away from the mouthpiece and said “oh you want me to (inaudible).” She made a motion consistent with inhaling. Constable Patil said, “like you are blowing a balloon.” Ms. Castelblanco Velasco responded “okay”.

[78] Constable Patil testified that he knew she wasn’t blowing into the tube as no tone was being emitted from the Inxtoxilyzer and because he could tell by her mouth gestures that she was sucking in and not blowing out. He testified that because Ms. Castelblanco Velasco continued to suck instead of blow, he took the mouthpiece out and re-instructed her on what to do.

[79] Constable Patil’s sixth attempt commenced at 5:28.25 AM, when he placed the mouthpiece in her mouth. A couple of seconds later he said, “no, that’s the opposite way.” A second later, while the mouthpiece was still in her mouth, he said “there we go, exactly.” Constable Patil testified that when he said that she had blown out into the mouthpiece. Having confirmed that she understood, Constable Patil moved on to the next attempt.

[80] Constable Patil’s seventh attempt commenced at 5:28.31 AM, when the mouthpiece was placed in the accused’s mouth and Constable Patil told her “take a deep breath.” The mouthpiece was removed for a couple of seconds and then placed back in her mouth at 5:28.31 AM. From about 5:28.34 AM until 5:28.38 AM a tone could be heard coming from the Inxtoxilyzer. At the same time, Constable Patil told her. “keep going, keep going.” At 5:28.40 AM, he told the accused “don’t stop.” He removed the mouthpiece and said, “I don’t know what you were doing there. You were doing all right in the beginning.” Ms. Castelblanco Velasco responded, “okay”. Constable Patil told her “try that again.”

[81] Constable Patil’s eighth attempt commenced at 5:28.55 AM. The mouthpiece was placed in her mouth. The tone from the Inxtoxilyzer could be heard for a couple of seconds. At the same time, Constable Patil encouraging Ms. Castelblanco Velasco to “keep going, keep going.” At 5:28.58 AM the tone stopped and at 5:29.00 AM Ms. Castelblanco Velasco pulled away from the mouthpiece.

[82] Constable Patil’s ninth attempt commenced at 5:29.02 AM, when he put the mouthpiece up to Ms. Castelblanco Velasco’s mouth. For three seconds the tone from the Inxtoxilyzer could he heard and Constable Patil encouraged her to “keep going”. The tone stopped for a couple of seconds. Constable Patil said “don’t stop.” At 5:29.07 AM the tone could be heard once again for a couple of seconds. Constable Patil encouraged her to “keep going”. At 5:29.11 AM it appears that Ms. Castelblanco Velasco pulled away from the Inxtoxilyzer. Constable Patil told her “your tongue is … (inaudible)”. Ms. Castelblanco Velasco’s response was inaudible.

[83] Constable Patil’s tenth attempt commenced at 5:29.20 AM. The mouthpiece was placed up to Ms. Castelblanco Velasco’s mouth. After a couple of seconds, Constable Patil said “okay, Your tongue is on it, that’s why it’s not … (inaudible)”. Ms. Castelblanco Velasco responded, “okay”. Constable Patil testified that it appeared Ms. Castelblanco Velasco was intentionally using her tongue to block air from going into the mouthpiece.

[84] Constable Patil’s eleventh attempt commenced at 5:29.27 AM, when he placed the mouthpiece up to the accused’s mouth. A couple of seconds later, he said, “you’re not blowing.” The officer removed the mouthpiece from her mouth and said, “you heard it when its blowing. So you know what to do when it … (inaudible). The tone goes when you are blowing.”

[85] Constable Patil’s twelfth attempt commenced at 5:29.37 AM, when he placed the mouthpiece up to her mouth. A tone from the Inxtoxilyzer could be heard for a couple of seconds. Constable Patil repeatedly told the accused to “keep going, keep going.” The tone stopped for a second and then started again for about 3 seconds. Ms. Castelblanco Velasco pulled away from the mouthpiece and said, “I’m doing, if I start … (inaudible)”. Constable Patil responded, “you’re doing it all right in the beginning and then you’re just … (inaudible)”. He explained, “it’s slow and continuous, okay, you don’t need to be that hard.”

[86] Constable Patil’s thirteenth attempt commenced at 5:30.05 AM, when he placed the mouthpiece up to Ms. Castelblanco Velasco’s mouth and said “whenever you’re ready.” A second later he said, “Okay, nothing is coming out.” At 5:30.18 AM, a tone from the Inxtoxilyzer could be heard and Constable Patil said “keep going, keep going.” The tone stopped about two seconds later. Ms. Castelblanco Velasco pulled her mouth away from the mouthpiece. A few seconds later she put her mouth back on the mouthpiece. Constable Patil said, “nothing is coming out.” A tone was heard for a couple of seconds and Constable Patil encouraged Ms. Castelblanco Velasco to “keep going.” Ms. Castelblanco Velasco pulled away from the machine and said “I can’t … (inaudible).”

[87] At 5:30.52 AM, Constable Patil stated, “I’m just going to read you something before we continue.” At 5:32.12 AM he said that he was going to read her the “subject refusal”. He began to read from a document but after a few seconds the accused asked him to slow down. He agreed to do so. He told her that he was making a demand that she provide a suitable sample into an approved instrument so that an analysis could be done to determine the amount of alcohol in her blood. He asked her if she understood. Some of the accused’s response was inaudible, but at one point she states, “I’m giving you the sample”.

[88] Constable Patil asked the accused if she understood that she was required to provide samples of her breath and she acknowledged that she did. He advised her if she did not provide a breath sample that she could be charged with a criminal offence for refusing or failing to provide that. He asked her if she understood if she is convicted of refusing or failing to provide a breath sample that she would face the same penalty as she would if it was determined that her blood alcohol was above the legal limit. She replied, “I’m not refusing.”

[89] At 5:33.14 AM, Constable Patil advised Ms. Castelblanco Velasco that this would be her last opportunity to provide a breath sample. He asked if she wanted to provide a sample that was required by law. She nodded in the affirmative.

[90] Constable Patil’s fourteenth attempt commenced at 5:33.27 AM. Constable Patil placed the mouthpiece on Ms. Castelblanco Velasco’s mouth. A tone from the Inxtoxilyzer could be heard. Constable Patil encouraged the accused to “keep going”. The tone stopped about a second later. About a second later the tone could be heard again for about two seconds. Once again, Constable Patil told her to “keep going”. After the tone stopped at 5:33.36 AM, the officer took the mouthpiece and told the accused “okay, don’t stop, you were going all right and then you stopped again.” Ms. Castelblanco Velasco replied “I’m not stopping.” Constable Patil then said, “okay you heard when the tone is going?” She responded “yes”.

[91] Constable Patil’s fifteenth attempt commenced at 5:33.45 AM, when he placed the mouthpiece in Ms. Castelblanco Velasco’s mouth. The tone from the Inxtoxilyzer could be heard for two seconds. Constable Patil told her to keep going. The mouthpiece was removed and Constable Patil told her that she was pulling away. The accused repositioned her body in the chair.

[92] Constable Patil’s sixteenth attempt commenced at 5:33.56 AM. The mouthpiece was placed in Ms. Castelblanco Velasco’s mouth. The tone could be heard for two seconds. Constable Patil encouraged her to keep going. The tone stopped for about a second and could be heard again for another two seconds. Ms. Castelblanco Velasco pulled away and said something that was inaudible. Constable Patil replied, “so, we still don’t have a sample, so”.

[93] Constable Patil’s seventeenth attempt commenced at 5:34.15 AM. The tone could be heard for about a second. Constable Patil told her to keep going. The tone stopped for a second and then could be heard again for two seconds and then stopped. Once again, Constable Patil encouraged the accused to keep going. The mouthpiece was removed and Constable Patil said, “nothing is coming out.” Ms. Castelblanco Velasco said something that was inaudible and Constable Patil replied, “we’ll give it two more chances and if you can’t provide it then it’s the same charge, same penalties, your licence is suspended for 90 days”. Ms. Castelblanco Velasco responds, “okay, I’m doing it.” Constable Patil responds “I’m just letting you know.”

[94] Constable Patil’s eighteenth attempt commenced at 5:34.49 AM. The tone could be heard for two seconds. Constable Patil encouraged her to keep going. The tone stopped for a second and then could be heard once again for about two seconds. The mouthpiece was removed from the accused’s mouth. Constable Patil asked the accused if she wanted to try one more time and said, “this is the absolutely last time, okay?”

[95] Constable Patil’s nineteenth attempt commenced at 5:35.01 AM. The tone could be heard for three seconds. The tone stopped for a second and could be heard again for one second. The mouthpiece was pulled away from Ms. Castelblanco Velasco’s mouth. Constable Patil advised the accused that “it’s just going to be failure to provide, okay, unfortunately.”

[96] At 5:35.21 AM, Ms. Castelblanco Velasco got up from her chair and was escorted out of the room by Constable Bedard.

III. LAW

(i) Presumption of Innocence and Proof Beyond a Reasonable Doubt

[97] In a criminal trial, an accused person is presumed to be innocent, unless and until the Crown establishes their guilt beyond a reasonable doubt. The Crown must prove each essential element of an offence charged beyond a reasonable doubt. The burden of establishing beyond a reasonable doubt that an accused committed the offence charged “rests with the prosecution throughout the trial and never shifts to the accused”: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 27.

[98] A reasonable doubt may be based on the evidence, or absence of evidence. Proof of probable or likely guilt does not satisfy the standard of proof beyond a reasonable doubt.

[99] In R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 758, Cory J. provided the following model jury instruction on the relationship between proof beyond a reasonable doubt and credibility:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[100] The applicability of W.(D.) is not limited to cases where an accused person testifies. A W.(D.) analysis is required whenever credibility is in issue and there is evidence capable of raising a reasonable doubt, regardless of who put the evidence into trial: R. v. D.(B.) (2011), 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114; R. v. Bucik (2011), 2011 ONCA 546, 274 C.C.C. (3d) 421, at paras. 32-33. In this case, credibility is a live issue. I have applied the W.D. framework to all of the evidence, including Ms. Castelblanco Velasco’s statements and conduct after her arrest.

(ii) Circumstantial Evidence

[101] This case involves circumstantial evidence. In R. v. Bisram, 2011 ONSC 3913, at paras. 270-271, Hill J. provided the following guidance in relation to circumstantial evidence and the process of inference drawing:

“In order to find guilt in a circumstantial evidence case, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v, Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paras. 33-4. Inference must be carefully distinguished from conjecture or speculation. At all times, in assessing circumstantial evidence, a trier must be alert to explanation or contradiction or inference pointing toward innocence. The trier of fact must assess the reliability and credibility of any underlying direct evidence as well as whether that evidence reasonably supports the circumstantial inference to be drawn from that evidence.”

[102] When assessing circumstantial evidence a court must consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para 37; R. v. Khan, 2019 ONCA 81, at para. 5.

[103] Inferences consistent with innocence do not have to arise from proven facts. However, “a mere possibility that alternative explanations are true does not raise a reasonable doubt. Reasonable doubt depends upon reasonable possibility, not conjecture: Villaroman, at paras. 36-43.”: R. v. R.A., 2017 ONCA 714, appeal dismissed, 2018 SCC 13, [2018] 1 S.C.R. 307. The Crown is not required to negative irrational conjecture.

[104] The “basic question” is whether “the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than the accused is guilty.”: Villaroman, at para. 37.

[105] A court must evaluate circumstantial evidence cumulatively, and not on a piece by piece basis.

(iii) Fail or Refuse to Comply with a Demand

[106] Section 254(5) of the Criminal Code provides that it is a criminal offence to, without reasonable excuse, fail or refuse to comply with a demand made under s. 254.

[107] The actus reus of this offence is a failure or refusal to produce the required sample.

[108] Prior to Bill C-46, there were three lines of authority in Ontario describing the mens rea for refusing to comply with a demand: Jokinen, K. and Keen, P., Impaired Driving and Other Criminal Code Driving Offences: A Practitioner’s Handbook, (Toronto, Ontario; Emond Montgomery Publications, 2019), at pp. 73-74.

[109] In this case, counsel made submissions regarding the first two lines of authority. As the alleged offences in this case occurred prior to the new legislation, I will deal with the mens rea issue based on the law as it existed at the time of the alleged offences.

[110] The first line of authority described the mens rea as an intention to produce the refusal or failure: R. v. Soucy, 2014 ONCJ 497; R. v. Stanley (2003), 42 M.V.R. (4th.) 95 (Ont. S.C.); R. v. Decair, 2018 ONCJ 635. Under this approach, if an accused is able to raise an air of reality that he or she was unable to provide a breath sample due to a physical or medical condition, in order to convict, a court must be satisfied beyond a reasonable doubt that the accused’s failure to provide a sample was voluntary and intentional.

[111] In Stanley, at para. 16, Heeney J. concluded that, “it is only after a court is satisfied beyond a reasonable doubt that the accused intentionally failed or refused to provide a sample that the ‘reasonable excuse’ defence comes into play.” In the case at bar, counsel for Ms. Castelblanco Velasco argued that this court should follow that approach.

[112] The second line of authority described the mens rea as knowledge or awareness of the prohibited act – in other words, knowledge of the demand: R. v. Porter, 2012 ONSC 3504; R. v. Plestas, 2014 ONSC 1568. Under this approach, the onus is on the accused, on a balance of probabilities, to establish that a physical or medical condition constituted a “reasonable excuse”.[^1] In the case at bar, counsel for the Crown argued that the court should adopt this approach.

[113] The third line of authority described the mens rea as “an intent to produce the failure”: R. v. Slater, 2016 ONSC 2161. Under the third approach the Crown is not required to positively prove intent. Instead, proof of mens rea will be met by the application of the general principle that a person usually intends to cause consequences which are predictable: Slater, at para. 12. The Slater approach, “recognized a rebuttable presumption of intention, with the presumption being established through evidence that the accused has repeatedly failed to supply a breath sample.”: Jokinen, K. and Keen, P., Impaired Driving and Other Criminal Code Driving Offences: A Practitioner’s Handbook, (Toronto, Ontario; Emond Montgomery Publications, 2019), at p. 74.

(iv) Impaired Driving

[114] Anyone who operates a motor vehicle while his or her ability to operate the vehicle is impaired by alcohol or a drug is guilty of an offence under s. 253(1)(a) of the Criminal Code.

[115] The actus reus for impaired operation of a motor vehicle is the act of operating a motor vehicle when the voluntary consumption of alcohol or drug has impaired the driver’s ability to operate the motor vehicle: R. v. Toews 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119, at para. 7. The mens rea is the intent to operate a motor vehicle after voluntarily consuming alcohol or a drug.

[116] The Criminal Code does not contain a definition for impairment. Whether or not a person was impaired while operating a motor vehicle is “essentially a question of fact” which a trial judge must determine based on the evidence: R. v. Michitsch, 2004 CanLII 10997 (ONSC) at para. 15.

[117] The impairment of a driver’s ability to operate a vehicle is, “generally understood as meaning the alteration of one’s judgment and the decrease in one’s physical abilities.”: Kenkel, Impaired Driving in Canada, 2012/2013 Edition (Markham, Ontario; LexisNexis Canada), at p. 76.

[118] Appellate courts have accepted the standard as “any degree of impairment” to operate a motor vehicle: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 (Ont. C.A.) aff. 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478. Before a trial judge can make a finding of guilt he or she must be satisfied beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired to some degree by alcohol or a drug. If there is evidence to establish beyond a reasonable doubt that an accused person’s ability to drive was “even slightly impaired by alcohol” a court must find the accused guilty: R. v. Moreno-Baches, 2007 ONCA 258, at para. 2.

[119] In Stellato, the Court of Appeal concluded at para. 14, that, “if the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt, the accused must be acquitted. If the evidence establishes any degree of impairment ranging from slight to great, the offence has been made out.”: See also R. v. Siemens, 2018 ONSC 5378.

[120] In R. v. Andrews, 1996 ABCA 23, at para. 23, the Court concluded:

“Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.”

[121] Proof of impairment can take many forms. Evidence of impairment can come, “from observations of driving, but also may include physical symptomology, physical test results, or other observations.”: Kenkel, Impaired Driving in Canada, 2012/2013 Edition (Markham, Ontario; LexisNexis Canada), at p. 76.

[122] Courts have considered a number of factors in determining whether an accused person’s ability to drive was impaired as a result of alcohol or drugs. Some of these factors include lay opinions of witnesses, bad driving evidence, accidents, speech, appearance of eyes and face, gross and fine motor skills, mental ability and emotional state, odour of alcohol, alternative explanations for indicia of impairment, adverse inferences from a failure or refusal to provide sample and admissions of alcohol consumption by the accused: Jokinen, K. and Keen, P., Impaired Driving and Other Criminal Code Driving Offences: A Practitioner’s Handbook, (Toronto, Ontario; Emond Montgomery Publications, 2019), at p. 54.

[123] No single piece of evidence or test is conclusive. A court must consider the totality of the evidence and determine, “whether the totality of the accused’s conduct and condition can lead to a conclusion other than his or her ability to drive is impaired to some degree. Obviously, if the totality of the evidence is ambiguous in that regard, the onus will not be met. Common sense dictates that the greater the departure from the norm, the greater the indication that the person’s ability to drive it impaired.”: Andrews, at para. 28.

[124] Evidence of a driving accident may also support an inference that an accused’s ability to drive was impaired by alcohol or a drug. That inference may be more powerful where there is no explanation for the accident. Having said that, accidents occur for a variety of reasons and a court must not shift the burden of proof to an accused person. In assessing the weight that should be given to evidence of an accident, it may be important to know “the weather conditions, the traffic conditions, the visibility, and other driving factors to assess if the accident was one that any driver, sober or not, would have gotten into”: Jokinen, K. and Keen, P., Impaired Driving and Other Criminal Code Driving Offences: A Practitioner’s Handbook, (Toronto, Ontario; Emond Montgomery Publications, 2019), at p. 55. See also: R. v. Chung, 2004 ONCJ 347, at paras. 46-47; R. v. Watts, 2007 ONCA 271, at para. 2.

Adverse Inference – Section 258(3)

[125] Section 258(3) of the Criminal Code provides that a court may, in an impaired driving prosecution, draw an adverse inference about impairment where there is evidence that the accused, without reasonable excuse, failed or refused to comply with a demand for a breath sample made under s. 254.[^2]

[126] The permissible adverse inference is “that the accused refused because he knew he was impaired or was afraid that he might be impaired, and the test would reveal that: R. v. Garneau (1982), 1982 CanLII 1306 (AB KB), 66 C.C.C. (2d) 90 (Alta. Q.B.)”: Padda, at para 34.

[127] The adverse inference is permissive and not mandatory: R. v. Kresko, [2013] O.J. 1523 (Ont. S.C.), at para. 137; Padda, at para. 35.

[128] In Padda, at para 35, Duncan J. concluded that “the case law that there is suggests that the inference is an important part of the over-all scheme set up by Parliament and that a Court should not be shy about applying it.” Duncan J. also concluded, at paras. 35-37, that while drawing an adverse inference that the individual was impaired is not mandatory, it will generally be drawn unless there is something in the evidence suggesting that it would be inappropriate to do so.

[129] Finally, even where a court is prepared to draw an adverse inference as a result of an accused failing to provide a breath sample, this evidence is not necessarily conclusive of guilt. It is one piece of evidence to be considered together with all of the other evidence. The weight to be attached to the inference will vary based on the circumstances: Padda, at para. 37. However, in some cases “this inference can be the determining factor”: Padda, at para. 37.

IV. CONCLUSIONS REGARDING CREDIBILITY AND RELIABILITY

[130] My assessment of the credibility of Constables Bedard and Patil, and the reliability of their evidence, is important in this case. It will have an impact on the key findings that I am to make. Therefore, I will deal with my assessment of their credibility, and the reliability of their evidence, before turning to the other issues.

[131] In accordance with the guidance provided by the Supreme Court of Canada in W.D., I am required to assess the accused’s credibility given some of her actions and statements that she made on the day of the alleged offences. I will make those credibility findings later in these reasons.

[132] I found Constable Bedard to be a credible witness who gave reliable evidence. Her account made sense and was not undermined in cross-examination. Her evidence as it relates to what occurred in the booking room was supported by the video-recording. She did not attempt to embellish her evidence. Indeed, she was very careful in giving her evidence. One example of this was when she originally testified that Ms. Castelblanco Velasco had answered “yes” to a question but, unprompted, corrected herself and told the court that Ms. Castelblanco Velasco had actually answered “uh hum” and nodded her head. Constable Bedard also fairly volunteered that Ms. Castelblanco Velasco’s red eyes were likely the result of her crying. I accept her testimony regarding her observations of the accused at the scene of the accident and the police station. I also conclude that the roadside screening device was in working order.

[133] I found Constable Patil to be a credible witness who gave reliable evidence. His entire encounter with the accused was recorded. His testimony was supported by the video-recording. His account of what happened that evening was not damaged in cross-examination. His testimony about the steps taken by the accused to avoid providing a breath sample made sense and was supported by the recording. I accept his evidence that Ms. Castelblanco Velasco was slurring her words and that he smelled alcohol on the accused. I also accept his testimony regarding the actions of the accused while he attempted to obtain a sample of her breath.

V. ANALYSIS – FAIL OR REFUSE TO PROVIDE A BREATH SAMPLE

[134] There is no issue that a valid demand for a breath sample was made in this case.

[135] I conclude that the Crown has established what it needs to prove in terms of actus reus. I am satisfied that the Inxtoxilyzer used by Constable Patil was functioning properly that evening and that the accused did not provide a breath sample. As I will address when dealing with the mens rea issue, I am satisfied beyond a reasonable doubt that the accused intentionally and unequivocally refused to provide a sample. A feigned attempt to provide a sample amounts to a refusal: R. v. Young, 2007 ONCA 342.

[136] Turning to the mens rea issue.

[137] Unlike the situation faced by Justice Stribopoulos in R. v. Decaire, 2018 ONCJ 635, given my factual findings, there is no need to decide which approach to the mens rea issue I find more persuasive. Even based on the higher standard adopted in Stanley and Decaire, in this case the Crown has established what it is required to prove.

[138] I am satisfied beyond a reasonable doubt that the accused’s refusal or failure to provide a sample was intentional and unequivocal. I arrive at that conclusion after considering all of the evidence and applying the statements and actions of the accused to the framework in W.D.

[139] I find that the accused’s attempts to provide a breath sample to Constable Patil were not sincere. Once again, a feigned attempt to provide a sample is equivalent to a refusal.

[140] The accused was given many chances to provide a breath sample. She was warned of the consequences of a refusal. She was repeatedly given clear instructions on how to provide a breath sample. Based on all of the evidence, including her responsive answers in English to questions that she was asked by police officers that evening, I find that she understood that she had to provide a sample. She also understood how to provide a sample.

[141] The pattern of her attempts is telling. Before the mouthpiece was connected to the Inxtoxilyzer, the accused demonstrated that she understood that she was to blow into the mouthpiece. Thereafter, she blocked the mouth piece with her tongue on a number of occasions. In the face of clear instructions to blow into the mouthpiece, she sucked air into it. On other occasions, the officer clearly instructed her to continue blowing into the tube but she wouldn’t do so. On more than one occasion she blew into the mouthpiece and quickly stopped. The video recording from the breath room supports the conclusion that the accused made no effort to follow the clear advice provided by the officer throughout the process.

[142] There is no basis to conclude that she may have been suffering from a medical condition that could have prevented her from giving a breath sample. While it is true that some of the attempts to obtain a breath sample were made in quick succession, based on my review of the video and the evidence of Constable Patil, there was no reasonable basis in the evidence to conclude that Ms. Castelblanco Velasco was having any trouble breathing or that she was winded as a result of her efforts to provide a breath sample.

[143] Given all of the circumstances, I found the statements made by the accused while in the breath room that she was trying to provide a sample completely unconvincing. I disbelieve the accused’s claim that she was trying to provide a breath sample.

[144] Her statements and actions as captured by the video, together with all of the other evidence, do not leave me with a reasonable doubt.

[145] Based on all of the evidence that I do accept, I am satisfied beyond a reasonable doubt that Ms. Castelblanco Velasco’s failure to provide a breath sample was a deliberate decision.

[146] I am satisfied that all of the essential elements of this offence have been established beyond a reasonable doubt.

VI. ANALYSIS – IMPAIRED DRIVING

[147] Based on all of the evidence, including the cumulative impact of the following circumstantial evidence, I am satisfied beyond a reasonable doubt that the accused was driving while her ability to do so was impaired as a result of alcohol:

• The accident itself. The accused drove her car into a very large and slow-moving street sweeper after abruptly cutting across the front of the street sweeper while attempting to make a right turn from the left lane. While there was evidence that the road was somewhat slippery and there were other vehicles on the road, there is no apparent explanation for the accident. While the accident, by itself, does not establish an impaired ability to drive, it is relevant evidence that, together with all of the other evidence, establishes Ms. Castelblanco Velasco’s guilt beyond a reasonable doubt.

• Ms. Castelblanco Velasco admitted to consuming at some alcohol earlier in the evening.

• Constable Patil smelled alcohol on the accused.

• The accused was slurring her words. While the slurring was more noticeable later in the evening, the accused was also slightly slurring her words at the scene of the accident. Ms. Morales did not notice that the accused had any signs of impairment. However, while Ms. Morales had a conversation with the accused, they did not spend a lot of time together and there was no reason for Ms. Morales to be looking for signs of impairment. Constables Bedard and Patil spent much more time with the accused and were looking for signs of impairment.

• While at the police station the accused was, at least at one point, unsteady on her feet, stumbled into Constable Bedard and was leaning on the officer.

• The accused’s refusal to provide a breath sample to Constable Patil. It is my conclusion that the accused deliberately refused to provide a breath sample because she knew or feared that she might be impaired and believed that the test would provide evidence in relation to charges of impaired driving and over 80. While I am prepared to draw an adverse inference against her, this evidence standing on its own is not necessarily conclusive of guilt. It is one piece of evidence.

[148] I have considered the accused’s statement to Constable Bedard that she only had one beer several hours before the accident. Given all of the evidence, I do not believe her. Her statement does not leave me with a reasonable doubt.

[149] Based on all of the evidence I am satisfied beyond a reasonable doubt that the only rational inference is that the accused’s ability to operate the Camry was impaired, at least to some degree, by alcohol.

VII. CONCLUSION

[150] I find the accused guilty of refusing to provide a breath sample and impaired driving.

NORTH J.

[^1]: To be clear, an accused person may be able to establish a “reasonable excuse” in circumstances not involving a physical or medical condition: Jokinen, K. and Keen, P., Impaired Driving and Other Criminal Code Driving Offences: A Practitioner’s Handbook, (Toronto, Ontario; Emond Montgomery Publications, 2019), at pp. 76-79.

[^2]: Section 258(3) was the provision in place at the time of the alleged offence. It was been replaced by s. 320.27 and s. 320.28.