Court File and Parties

Ontario Court of Justice

Date: October 29, 2020

Court File No.: 18-33449 and 18-35252

Between:

Her Majesty the Queen

— and —

Mykal Ramcharitar

Before: Justice P.K. Burstein

Heard on: March 10 and 11, 2020

Reasons for Judgment released on: October 29, 2020

Counsel:

• B. Guertin, counsel for the Crown
• Y. Oubohov, counsel for the Defendant

Judgment

BURSTEIN J.:

Overview

[1] Just before midnight on January 12, 2018, a red Jeep drove straight through the stop sign at a "T" intersection in a suburban neighborhood, went across the lawn of the house facing that intersection and smashed into the home's front steps. The force of the impact was enough to deploy the vehicle's airbags. A passing motorist who witnessed the event pulled into the driveway of the home to assist the Jeep's occupants. The rear passenger door opened and out came Mr. Jesse Abroquah. As the motorist began speaking to Mr. Abroquah, the defendant came around from the driver's side of the Jeep.

[2] Soon after encountering the concerned motorist, the Defendant volunteered that it was Mr. Abroquah who was driving the Jeep. At trial, 24-year old Mr. Abroquah testified that he was physically incapable of driving a vehicle because of a stroke he had suffered years earlier. However, Mr. Abroquah also testified (in stark contrast to the statement he had provided to police on the night of January 12, 2018) that the Defendant was not driving the Jeep. The motorist saw no one else in the area of the Jeep until the police arrived on scene a few minutes later.

[3] When the police arrived on scene, Cst. Bint soon formed the belief that the Defendant was the driver of the vehicle and that his ability to drive was impaired by alcohol. The Defendant was arrested and taken to the police station to provide samples of his breath pursuant to Cst. Bint's s. 254(3) breath demand. At the station, the Defendant appeared to be extremely distraught about a cut to his head which was bleeding intermittently. The video recording of the Defendant's interactions with the police officers in the booking area shows him being extremely uncooperative – to the point where he seemed to have been deliberately trying to obstruct the police in the execution of their duties. The Defendant refused all offers of assistance and, ultimately, all demands to provide breath samples.

[4] Following his release on bail the next day, the Defendant was facing three charges relating to the events of the night before; namely, impaired driving, refusing to provide a breath sample and dangerous driving. Representing himself, the Defendant made several appearances in court over the following months. The Defendant did not, however, appear for court on May 28, 2018.

[5] At trial, the Crown called the following witnesses to testify: Dayna Morrison (the passing motorist), Jesse Abroquah (the other occupant of the Defendant's vehicle), Cst. Robinson (the officer who took the statement from Mr. Abroquah), Cst. Bint (the first officer on scene) and Cst. Campbell (the breath technician). The Crown also presented three video recordings of the police interactions with Mr. Ramcharitar while at the police station. Save for the Defendant's testimony relating specifically to his failure to attend court, the defence elected to call no evidence, either on the trial proper or in relation to the Defendant's Charter application.

[6] In advance of the trial, the Defendant filed an application seeking a remedy for a violation of his s. 7 Charter rights occasioned by the alleged failure of the police to provide him with a change of clothing after he had supposedly urinated in his pants while in their custody. At the conclusion of the trial, counsel for the Defendant did not seriously press this issue. Nevertheless, I have addressed this issue in my reasons below.

Summary of the Evidence at Trial

[7] Dayna Morrison was driving along Cochrane Street approaching Medland Avenue at around 11 pm on January 12, 2018 when she noticed a red "SUV" vehicle speeding along Medland towards Cochrane. Although Ms Morrison could not say for sure, she estimated that the red vehicle was travelling at about twice the rate of normal traffic.

[8] There is a stop sign for traffic on Medland approaching Cochrane, but no stop signs for traffic travelling on Cochrane. Nevertheless, Ms Morrison slowed her vehicle as she feared that the red vehicle would not stop as required of it. She watched as the red SUV went right past the stop sign without slowing down and without any apparent braking. The red SUV smashed through a tree and then into the front porch of the house across from the stop sign.

[9] Having passed by the house where the red SUV had come to a rest, Ms Morrison turned around on Cochrane and then returned to the driveway to offer assistance. While turning around, she glanced over at the SUV a few times through her side window because she was concerned about the occupants and whether they needed medical help. As she returned towards the house, she could clearly see the red SUV. No one was near the vehicle and no one was leaving the area. As she was pulling into the driveway near the passenger side of the red SUV, the back-passenger door opened and a person's head poked out from underneath the window-airbag. That young black male got out of the vehicle. He acknowledged that he was okay but was mumbling and stumbling out of the car. There is no dispute in the evidence that this male was Jesse Abroquah.

[10] After Mr. Abroquah had emerged from the vehicle, another male approached Ms Morrison from the driver's side of the red SUV. She did not see if he had gotten out of the front or rear door on that side. There is also no dispute in the evidence that this second man was Mr. Ramcharitar. There was no one else in the vehicle.

[11] According to Ms Morrison, Mr. Ramcharitar had a cut over his eye that was bleeding. He was "very stumbly" and "could barely walk" and "could barely stand". She believed that he was intoxicated by something.

[12] Ms Morrison asked Mr. Ramcharitar if he was the driver. Mr. Ramcharitar said, "no, he's the driver".

[13] Police and paramedics arrived on scene minutes later.

[14] Mr. Abroquah testified at trial that he was with his "best friend", Mr. Ramcharitar, when the red SUV crashed into the house. Several years prior, Mr. Abroquah had suffered a stroke and so was not allowed to drive. At trial, Mr. Abroquah claimed that the stroke had also negatively affected his memory. When offered an opportunity to refresh his memory using a statement he had provided to the police on the night of the incident, Mr. Abroquah testified that his statement was false and that he had felt pressured when giving it.

[15] According to Mr. Abroquah's testimony at trial, he and Mr. Ramcharitar had been at a friend's house on Medland Avenue prior to the collision. Mr. Abroquah testified that no one had been consuming alcohol. By contrast, in his police statement, Mr. Abroquah had said that the Defendant was "drinking" what Mr. Abroquah believed to be vodka. Mr. Abroquah's explanation at trial for this apparent inconsistency was patently false and eventually devolved into Mr. Abroquah repeatedly asking to "go home" and repeatedly saying that he was only testifying so that he did not "get fined".

[16] Near the end of his examination-in-chief, after being confronted with the inconsistencies in his police statement, Mr. Abroquah was shown images of the accident scene. Mr. Abroquah identified the Jeep as the one that the Defendant had crashed into the house. Mr. Abroquah also confirmed that only he and the Defendant had been in the Jeep when it crashed.

[17] In cross-examination by the defence, Mr. Abroquah claimed that what he had said in-chief about the Defendant driving the car had been a lie and that he had only said it so that he could go home. Mr. Abroquah also reiterated his earlier testimony that no one had been drinking that night.

[18] After receiving a dispatch call at 11:04 pm, Cst. Bint arrived on scene at approximately 11:07 pm. He saw the Jeep resting up against the front stairs of 3369 Cochrane Street. Both Mr. Abroquah and the Defendant were standing near the Jeep. The Defendant had a cut to the right corner of his eye. After detecting an odour of alcohol on the Defendant's breath, Bint confirmed with the Defendant that he had been drinking. The Defendant's eyes were bloodshot and glassy. According to Bint, the Defendant also appeared to be unsteady on feet as the Defendant was swaying while standing and was holding on to the Jeep for balance. Having formed the opinion that the Defendant's ability to drive was impaired by alcohol, Cst. Bint arrested the Defendant at 11:07 pm.

[19] Cst Bint followed the standard procedure of informing the Defendant of the charge, the right to counsel, the breath demand and the caution. After each one, when asked if he understood, the Defendant remained silent while staring at Cst. Bint. When the paramedics approached to examine the Defendant, they were met with the same non-response from him when they asked if he needed assistance. Eventually, the Defendant verbalized to the paramedics that he did not want their assistance. It was at that point that Cst. Bint handcuffed the Defendant, placed him in the rear of the cruiser and transported him to the nearest police station.

[20] At 11:21 pm, Cst. Bint arrived with the Defendant at the station. Once at the station, Bint again read the breath demand and right to counsel to the Defendant. Again, the Defendant said nothing in response. The Defendant was paraded before Staff Sergeant Carrol. The Defendant was repeatedly uncooperative during the booking process, refusing to answer questions and refusing to follow directions. At no point did the Defendant ever indicate that he wished to take up any of the repeated offers for medical attention to the cut on his forehead. Instead, the Defendant would accuse the officers of being racist and of not caring about him. At one point the Defendant fell to the ground and began screaming that the officers were hurting him, even though none of them were doing anything that could possibly have caused him harm. For several minutes after the officers had stood back up, the Defendant remained on the ground screaming "why are you doing this to me" and "don't do this to me". Eventually the officers moved the Defendant into the holding cell in the booking area as they felt it was necessary for his own safety and so that he could calm down. After about five minutes, Staff Sergeant Carrol returned to the cell to speak with the Defendant. Despite Carrol's calm demeanour, the Defendant continued to shout and ramble, often speaking over Carrol. Carrol repeatedly asked the Defendant if he needed help or if he wanted to go to the hospital While shrieking about the blood coming from the cut to his forehead, the Defendant never took Carrol up on any of those offers. Instead, the Defendant began to rub his cut on the ground and claimed that he "can't do shit" because of the blood. The Defendant's behaviour continued until another officer, Cst. Gupta, arrived to try and help with the situation.

[21] By about 12:09 am, after having spoken with Gupta for a few minutes, the Defendant had quieted down. Carrol again asked him if he wanted to speak with a lawyer. The Defendant remained silent each of the three times that Carrol asked. Carrol again asked the Defendant if he wanted to go to the hospital. The Defendant again remained silent. After offering the Defendant an opportunity to go clean up the cut on his forehead, Carrol reminded the Defendant of his legal obligation to provide two breath samples pursuant to the demand that had been made of him by Cst. Bint. The Defendant responded that the police could not prove that he was the one who had been driving and that he was only a passenger in the vehicle.

[22] At 12:18 am, Cst Campbell re-read the breath demand to the Defendant. When asked if he understood, the Defendant responded that he did not understand because he was bleeding from his head. Campbell replied that the cut to the Defendant's head had "nothing to do with it". The Defendant then challenged Campbell by asking him whether he was a doctor. In the face of the Defendant's continued silence in response to Campbell repeatedly asking if he was going to comply with the breath demand, Campbell determined that the Defendant was refusing to comply with the demand and so charged him accordingly.

[23] Cst Bint testified that at some point he noticed that the groin area of the Defendant's sweat pants seemed wet. Bint noted that it looked like the Defendant had urinated himself. At trial, Bint could not recall when he first made that observation nor how big the wet spot may have been. According to Bint, the Defendant never complained about having urinated himself nor did he ask for a change of clothes. In cross-examination, Cst. Bint said that he would have made arrangements for a change of clothing if the Defendant had complained about being uncomfortable from having urinated himself.

[24] As noted above, the officers' interactions with the Defendant in the booking area of the police station were recorded from the time he arrived at 11:21 pm until well past 1:20 am. The relevant portions of that recording were played at trial. At no point during any of those recorded exchanges with the officers, did the Defendant ever ask to use the washroom nor did he complain about having urinated himself.

[25] On agreement, the Defendant testified exclusively in relation to his admitted failure to have attended court as required on May 28, 2018. At trial, the Defendant testified that he had inadvertently missed that court appearance. The Defendant explained that he had come to court as required on a date prior to May 28, 2018 to deal with his case. He did not have a lawyer at that time. To keep track of his future court date, he wrote down the date on one of the pieces of paper provided at the podium where individuals are asked to stand when their matter is called. He then put the piece of paper with the future court date in his wallet together with the other pieces of paper on which he had recorded the court dates. In cross-examination, the Defendant recognized that it would have been easy to forget about the court date and the piece of paper as he did not use his wallet that frequently. Even though the Defendant may have had a cell phone at the time (an admission he resiled from later in cross-examination), he would not have used the reminder application nor the calendar application to keep track of the future court date.

[26] The Defendant's testimony in chief was vague on several topics. In cross-examination, he was unnecessarily argumentative and evasive. For example, there were a number of times he responded to simple straight forward questions from the Crown by posing a question. At other times, when confronted with the illogic of a previous answer, the Defendant would try to qualify that previous answer with a tortuous or inconsistent new explanation. Moreover, at times, the Defendant sought to inject testimony about the events of January 12, 2018 even though the question had obviously not called for such a response given that he had specifically elected to testify only in relation to the fail to appear charge.

The Relevant Legal Principles

[27] The Defendant is presumed innocent. The Crown bears the burden of proving beyond a reasonable doubt that the Defendant is guilty of each of the four charges he is facing. On the other hand, when a person accused of a crime seeks a remedy at trial because their Charter rights were allegedly violated by the police, the accused person must establish that violation on a balance of probabilities.

[28] In this case, the Defendant had alleged that his Charter rights were violated by virtue of the police having failed to provide him a change of clothes when he urinated himself while in their custody at the station. In relation to that alleged Charter violation, the burden rests with the Defendant to prove on a balance of probabilities that his rights were violated and that the appropriate remedy is either exclusion of evidence or a stay of the proceedings.

[29] By contrast, the Crown bears the burden of proving the elements of each of the four charges beyond a reasonable doubt. The Defendant need prove nothing. Indeed, the fact that he chose to not testify in relation to those charges is irrelevant to whether the Crown has discharged its burden. To the extent that some of the evidence presented at trial may fairly be said to have exculpated the Defendant – such as Mr. Abroquah's testimony or the evidence of the Defendant's roadside utterance to Ms Morrison – that evidence also does not need to prove anything. In other words, it does not matter whether I ultimately accept that exculpatory evidence as being true. Rather, it is enough if that exculpatory evidence leaves me with a reasonable doubt about the Defendant's guilt.

[30] In view of the concessions made by counsel for the Defendant, the evidence at trial raised the following issues with respect to whether the Crown had proven its case against the Defendant:

(1) Has the Crown proven beyond a reasonable doubt that he was the one driving the Jeep at the time of the collision? If not, he must be acquitted of the three driving charges.

(2) Does the evidence prove that the driving amounted to "dangerous operation" of a vehicle given that it was reasonably possible the collision was a product of poor road conditions?

(3) Does the evidence prove that the Defendant intentionally refused to comply with the breath sample demand, as opposed to failed to do so because he was either confused about his obligation or was too focussed on his medical distress?

(4) Does the evidence prove beyond a reasonable doubt that, at the time of the collision, the Defendant's ability to drive was impaired by alcohol?

(5) Does the evidence prove beyond a reasonable doubt that the Defendant's failure to appear in court was anything more than negligent forgetfulness?

[31] Counsel for the Defendant conceded that all of the other elements of the four offences which the Crown must otherwise prove have been made out by the evidence at trial. For example, there was no issue as to whether the Defendant's ability to drive was impaired by alcohol or whether the Defendant was the subject of a lawful breath demand. Accordingly, I have not addressed any of those additional elements in these reasons. For sake of completeness, though, based on the evidence which I have accepted (as indicated below), I would have been readily satisfied that the Crown has proven all of those other essential elements of the four charges beyond a reasonable doubt.

Analysis and Findings

(1) Has the Crown Proven Beyond a Reasonable Doubt That the Defendant Was the Driver of the Jeep?

[32] On the issue of "identity", the defence rightly submits that the Crown's case was entirely circumstantial. Consequently, I must bear in mind the Supreme Court of Canada's decision in R. v. Villaroman, 2016 SCC 33 regarding how triers of fact should approach circumstantial evidence (at para. 37):

When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: [citations omitted]. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": [citation omitted]. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[33] In this case, the defence contends that the evidence does not foreclose the reasonable possibility that someone other than the Defendant was driving the Jeep at the time of the collision. With respect, I disagree. The evidence of Ms Morrison made clear that she only turned her gaze away from the Jeep for a few seconds as she made a U-turn on Cochrane after passing by the scene of the collision. When she had already turned around and was pulling back up to the scene, the Defendant and Mr. Abroquah had not even exited the vehicle. The airbags had been deployed and that seemed to present a challenge for the occupants when they wanted to exit from the vehicle. I am satisfied that there was not enough time for someone to have extricated themselves from the airbags deployed on the driver seat and then flee from the area without having been seen by Ms Morrison as she was returning to the scene. The suggestion that there was an unknown third person driving the Jeep is fanciful conjecture.

[34] I also find that the Defendant's utterance to Ms Morrison that he was not the driver to be nothing more than a self-serving contrivance deliberately intended to evade responsibility. In response to Ms Morrison's question about the identity of the driver, the Defendant did not simply deny being the driver. Rather, the Defendant told Ms Morrison that Mr. Abroquah was the driver. Based on Mr. Abroquah's testimony at trial, it is clear that he was physically incapable of driving a vehicle because of the stroke he had suffered years before. In addition, the evidence is clear that Ms Morrison saw Mr. Abroquah struggling to get out from under the deployed airbag on the passenger side. Considering the deployed airbags and Mr. Abroquah's height, his limited physical mobility would have made it impossible for him to have changed from the driver's seat to the passenger seat in the seconds between the collision and when Ms Morrison arrived on scene. Simply put, I find that the Defendant deliberately lied to Ms Morrison about Mr. Abroquah having been the driver. I note that the Defendant's effort to deliberately evade criminal responsibility for the collision was again evident at the police station. In short, I have no hesitation in rejecting the Defendant's self-serving roadside utterances (including his denial of driving to Cst. Bint).

[35] Equally, I completely reject any of the portions of Mr. Abroquah's testimony in which he said that the Defendant was not the driver. Apart from Mr. Abroquah's evidence concerning the effects of his stroke and the portion of his examination-in-chief referred to above, I wholly reject his evidence. In addition to his obvious bias in favour of the Defendant, Mr. Abroquah's testimony was materially inconsistent with his statement to Cst. Robinson on the night of the collision. I do not believe what Mr. Abroquah says about being pressured by the police into giving a false statement. Indeed, not only was there no evidence to support his claim of being, or feeling, pressured, Cst. Robinson's evidence satisfies me that Mr. Abroquah was cooperative and spoke freely when answering her questions. That said, in the absence of an application by the Crown at trial to have Mr. Abroquah's prior out-of-court statement admitted as proof of the truth of its contents, I have cautioned myself against placing any such reliance upon it. However, reference to some of its content was still necessary in assessing Mr. Abroquah's credibility at trial. Simply put, the fact that Mr. Abroquah was willing to deny the truth of key portions of his own prior statement when cross-examined on it by the Crown at trial firmly establishes Mr. Abroquah's utter lack of testimonial credibility. Other evidence adduced at trial independently proved that those portions of Mr. Abroquah's statement were in fact true, despite his sworn denials. To be clear, I have completely rejected any of Mr. Abroquah's testimony which purports to exculpate Mr. Ramcharitar.

[36] I am satisfied from Ms Morrison's evidence that the Defendant was the driver of the Jeep as it was speeding along Medland Avenue, went through the stop sign and then across the front lawn of 3369 Cochrane Street. Her evidence was both credible and reliable. She became involved in the incident because she was concerned with the welfare of the vehicle's occupants. There were no inconsistencies in her trial testimony, either internal or external. She fairly conceded the things that she could not recall, but I find those points to be of no moment to the reliability of the balance of her testimony. She had the vehicle in her sight for all but seconds. However many seconds she may have turned away from the vehicle as she turned her vehicle around, I am satisfied that what she saw as she pulled up to the scene of the collision eliminates any realistic possibility that there was a third person who was driving the Jeep who had managed to extract himself from the deployed airbags and flee the scene without her having seen.

[37] Near the end of his testimony in chief, Mr. Abroquah let slip that he and the Defendant were the only ones in the vehicle at the time of the collision. Given his obvious willingness to testify falsely in an effort to try and help the Defendant, I am satisfied that this portion of Mr. Abroquah's testimony is the functional equivalent to an "admission against interest"; in other words, the incriminatory nature of it vests it with inherent credibility because it is contrary to the interest with which Mr. Abroquah had clearly aligned himself at trial. This portion of Mr. Abroquah's testimony, while not enough on its own, fortifies my conclusion that Ms Morrison's evidence eliminates any possibility that someone other than the Defendant was driving the Jeep.

[38] While not strictly necessary for my conclusion on this issue, I would also have been satisfied that the Defendant attempted to deliberately mislead Ms Morrison about the fact that he was driving to avoid criminal responsibility. This could fairly be described as "post offence conduct" evidencing a concern that the Defendant may otherwise have been perceived by Ms Morrison to be the driver. Regardless of whether this inference alone would have persuaded me beyond a reasonable doubt that the Defendant was the driver, it is an additional reason for why I would have been satisfied that Ms Morrison's evidence proved beyond a reasonable doubt that the Defendant was the driver.

(2) Has the Crown Proven That the Defendant's Driving Amounted to "Dangerous Operation"?

[39] The offence of dangerous operation of a vehicle requires the Crown to prove that, viewed objectively, the accused was driving in a manner that was dangerous to the public, having regard to all of the circumstances, including the nature, condition and use of the place at which the vehicle was being operated. It is the manner by which the vehicle was being operated, not the consequence of the driving.

[40] I am satisfied that the weather and road conditions were not the cause of the Jeep leaving the road and crashing into the house on Cochrane. While it was a cold wintery night, the evidence of the attending officers was that they were able to safely navigate their way to the same location. Moreover, Ms Morrison drove through the same intersection at almost the exact same time as the Defendant and she did not experience any unreasonable or unforeseen road conditions. The only relevant effect of the wintery conditions was that the snow on the ground may have exacerbated the consequences of the Jeep having left the roadway after it failed to slow down as it approached the stop sign. However, the elements of the dangerous operation charge were made out by the driving which preceded the vehicle leaving the road; namely, the Defendant's decision to drive at such an excessive speed in a residential neighborhood on a cold wintery night while his ability to drive was impaired by alcohol (as I have concluded for the reasons set out below). The Defendant was driving in a manner which clearly presented a danger to members of the public who would reasonably have been expected to be present in that residential neighborhood. The Defendant's driving was a marked departure from what is normally expected of a reasonable driver in those circumstances.

(3) Has the Crown Proven That the Defendant Knowingly or Intentionally Refused to Comply With the s. 254(3) Breath Demand?

[41] Counsel for the Defendant did not contend that the breath demands issued to the Defendant were somehow unlawful. Rather, counsel submitted that the Defendant's refusal was motivated by his overarching concern for his medical condition and his belief that the police were not adequately addressing that before requiring him to comply. In other words, says the defence, there should be a reasonable doubt as to whether the Defendant intentionally refused the breath demand.

[42] For the purposes of this case, I need not concern myself with the putative debate about the mens rea for the offence of refusing a breath sample. Simply put, the evidence, taken at its highest, would not have raised a reasonable doubt about whether the Defendant had the requisite mens rea given any of its recent formulations. The fact that the Defendant's refusal may have been motivated by his allegation of police mistreatment or by concern for the cut to his forehead does not alter the fact that the video recording of him at the police proves beyond a reasonable doubt that he was aware of his legal obligation to comply with the breath demand and intentionally refused to do so.

[43] In any event, there is no longer any room to debate the mens rea element of the refuse breath sample offence. In the aftermath of the summary conviction appeal decisions in R. v. Slater, 2016 ONSC 2161 and R. v. DeCaire, 2020 ONSC 2033 (which considered and resolved that debate), it is now clear that the Crown must prove that an accused's failure to comply with a breath demand was intentional. Those decisions also held that, absent any evidence from which it could be inferred that the failure to comply was motivated by some other innocent intent, evidence that an accused was aware of his legal obligations but then failed to comply with a breath demand will give rise to a compelling common-sense inference that the accused's failure was criminally culpable.

[44] In this case, not only is there an absence of any credible evidence giving rise to a reasonable possibility that the Defendant was somehow confused about his legal obligations in relation to the breath demand, I find as a fact that the Defendant was intentionally non-compliant with that, and every other, police demand. For more than an hour leading up to his ultimate refusal to comply with the breath demand, the Defendant deliberately, and unreasonably, resisted almost every direction given to him by the police. I have no doubt from the evidence of the video and of the officers that on every such occasion, despite fully understanding what was being asked of him, the Defendant simply chose to ignore the officers' directions.

[45] The evidence further satisfies me that the Defendant was deliberately trying to thwart the investigative process from almost the first moment he entered the booking area. Anyone who watches the lengthy video of the Defendant at the station could only conclude that the Defendant was grossly exaggerating the extent of the injury to his head with the intention of trying to stall the investigation. When his exaggerated claims of being injured did not deter the police from proceeding with their investigation, the Defendant then began falsely accusing the officers of mistreating him – a claim which the video plainly shows to be false. I am satisfied that, like his concocted roadside claim of Mr. Abroquah driving, the Defendant's false claims of police abuse at the station were levied because he believed he needed to concoct a reason for refusing to comply with the ongoing police investigation into his alleged driving. Once again, while not necessary to my conclusion on either issue, this "post offence conduct" lends additional support to both the common-sense inference that the Defendant's refusal of the breath demand was intentional and to my earlier finding that the Defendant was the driver of the Jeep.

[46] To the extent that one might instead attempt to characterize the Defendant's putative reasons for refusing the lawful s. 254(3) breath demand as a "reasonable excuse", for the same reasons as set out above, I am not satisfied that there is any evidence to support that contention. It goes without saying that if the evidence was incapable of raising a reasonable doubt, then it fell well short of discharging the Defendant's burden of establishing on a balance of probabilities that his refusal was based on a "reasonable excuse". Indeed, I find as a fact that the only reason the Defendant refused to provide a breath sample was because he believed the breath tests would produce incriminating evidence against him.

(4) Does the Evidence Prove Beyond a Reasonable Doubt That the Defendant's Ability to Drive at the Time of the Collision Was Impaired by Alcohol?

[47] As noted above, counsel for the Defendant did not contend that the evidence failed to prove this element of the impaired driving offence beyond a reasonable doubt. In view of the evidence that was a fair concession. The opinions of both Csts. Bint and Campbell were that the Defendant was extremely impaired by alcohol. Bint arrived on scene within minutes of collision. He observed the Defendant to be unsteady on his feet and emitting a strong odour of alcohol from his breath. Following the arrest at the roadside, the Defendant was brought to the station within only about 20 minutes of Bint's observations. While at the station, the Defendant exhibited what can only be described as very poor judgment. The Defendant's obviously impaired judgment continued unabated for over an hour.

[48] Admittedly, there was some evidence that the Defendant suffered a cut to his head as a result of the collision. However, there was a complete absence of any evidence to suggest that the trauma to the Defendant's head was linked to the observed symptoms of the Defendant's apparent impairment. In any event, for the reasons set out above, I am also satisfied that his "post offence conduct" at the station helps to confirm the opinion evidence of Csts. Bint and Campbell that the Defendant's ability to drive was impaired by alcohol and eliminate any realistic possibility that the Defendant's behaviour was symptomatic of his injury.

(5) Has the Crown Proven Beyond a Reasonable Doubt That the Defendant's Failure to Appear in Court on May 28, 2018 Was More Than Inadvertent Negligence?

[49] To be found guilty of a charge of failing to appear in court, the Crown must prove "subjective fault". In other words, it is not enough for the Crown to prove that an accused ought to have known the missed court date. The subjective fault element of failing to appear in court was explained by Trotter J. (as he then was), sitting as a summary conviction appeal court in R. v. Withworth, 2013 ONSC 7413:

12 The law is clear that s. 145(3) of the Criminal Code creates a full mens rea offence. As Laskin J.A. held in R. v. Legere (1995), 95 C.C.C. (3d) 555 (Ont. C.A.), at p. 565:

... the offence of failing to comply with a condition of a recognizance is a true criminal offence requiring proof of mens rea and that carelessness or failure to take the precautions that a reasonable person would take will not support a conviction ...

This fault requirement is not restricted to the proof of an intention to fail to comply with a recognizance; wilful blindness and recklessness will also suffice: see R. v. Custance (2005), 2005 MBCA 23, 194 C.C.C. (3d) 225 (Man. C.A.), at p. 229, R. v. Legere, supra, at p. 566 and R. v. Smith, supra, at para. 4.

13 Due to the fact that s. 145(3) requires proof of subjective fault, an accused person who raises a reasonable doubt about an honest but mistaken belief of fact cannot be found liable. This sometimes gives rise to claims of forgotten court dates and misunderstood bail conditions. Depending on the circumstances, even a careless mistake may be tenable, as long as it falls short of the "deliberate" ignorance required to establish liability based on wilful blindness: see R. v. Weishar (2003), 13 C.R. (6th) 59 (Ont. S.C.J.), at pp. 67-70.

14 This state of affairs (i.e., that claims of mere forgetfulness, perhaps based on carelessness, might result in an acquittal) stirs anxiety in some people. This leads to in terrorem arguments, complete with warnings that our bail system, as we know it, will collapse if courts were to indulge such doubtful claims. The Crown at trial made this submission. However, as Germain J. held in R. v. Loutitt (2011), 2011 ABQB 545, 284 C.C.C. (3d) 518 (Alta. Q.B.), at p. 525: "The sky will not fall if the Crown has to prove a mental element ... [F]ailing to appear in court has serious legal consequences." Judges will no doubt act sensibly in assessing the authenticity of claims of forgotten court dates and overlooked bail conditions. Effect need not be given to forgetfulness merely because it has been asserted. As the court in Loutitt, supra, held, except in rare cases, the requisite intent under s. 145(3) will be easily inferred from the surrounding circumstances. [Emphasis added.]

[50] In this case, the Defendant testified that he forgot that May 28, 2018 was his next appearance. At the time he was required to appear in court on May 28, 2018, the Defendant was still self-represented. He testified that he had been keeping track of his future court dates by writing them down on one of the pieces of paper provided to accused at the podium in the courtroom where persons first appear when their criminal case is still in the intake phase. The Defendant claimed that he would place the pieces of paper into his wallet so that he would have a reminder as to when to next come to court. Somehow, though, his system broke down and he lost track of the May 28, 2018 court date. The Defendant did not claim that he had honestly, but mistakenly, believed that his next court appearance was on a date after May 28, 2018. Instead, his position was simply that he forgot that he had to appear on May 28, 2018 and only realized his mistake when the police came to his grandmother's house.

[51] I reject the Defendant's claim that he honestly forgot about his obligation to appear in court on May 28, 2018. The Defendant's testimony was entirely incredible. In arriving at that conclusion, I have considered only his examination-in-chief and cross-examination. I have instructed myself to ignore my findings in relation to his post-offence conduct during the investigation of the collision on January 12, 2018. His trial testimony is replete with inconsistencies and non-sensical claims. For example, in addition to his "system" of writing the future court dates down on pieces of paper, the Defendant volunteered that he had been relying upon on his grandmother to help him know when he had to come to court. Yet, he never suggested that his grandmother was ever shown the pieces of paper that he claimed to have been keeping in his wallet as a way of remembering his future court dates. Nor was the Defendant able to adequately explain what happened to the piece of paper where, according to him, he would have written "May 28, 2018". In cross-examination, the Defendant went from volunteering that he had also been keeping electronic notes of his future court dates in his cell phone, to saying that he may not have even had a smart phone or that he may have lost it (when confronted with the illogic of not having entered the future court dates in the smart phone's calendar function). Furthermore, at several points in cross-examination, the Defendant attempted to deflect the Crown's question by asserting that he had a "bad memory". If that were true, the Defendant would have known that simply keeping the future date on a piece of paper stuffed in his seldom-used wallet (according to him) was not an adequate method for making sure he would appear in court when required. In other words, taken at its highest, the Defendant's own testimony established that he was wilfully blind to his obligation to appear in court on May 28, 2018.

[52] In any event, I am satisfied beyond a reasonable doubt that the Defendant's failure to appear in court on May 28, 2018 was not the product of innocent forgetfulness or any other form of inadvertent negligence. Considering my rejection of it, the Defendant's testimony does not leave me with any doubt about that issue. I am satisfied that it is appropriate in this case to draw the common-sense inference that the Defendant knowingly failed to appear in court on May 28, 2018. If anything, the Defendant's own evidence satisfies me beyond a reasonable doubt that the Defendant did not care whether or not he appeared in court as required. Further, and in the alternative, the Defendant's indifference to ensuring that he would remember his future court date also establishes that he had the requisite mens rea for failing to appear in court on May 28, 2018.

(6) Has the Defendant Proven on a Balance of Probabilities That His s. 7 Charter Rights Were Violated?

[53] Despite bearing the burden of proof on this issue, the Defendant elected to not testify in relation to his allegation that the police failed to help him after he had supposedly urinated in his pants while in their custody. The only evidence capable of establishing that the Defendant had urinated in his pants after being taken into custody was a notation in Cst. Bint's memo book that at some point in the booking area he had noticed a wet stain on the front of the Defendant's pants which Bint believed may have been urine. At trial, Cst. Bint had no other memory of the details of his observation, including the time that he had made that observation. From this notation alone, I am not satisfied that the Defendant had actually urinated himself at any point while in police custody (let alone urinated himself to the extent that it rose to a constitutional obligation on the part of the police to help him). When considered in the context of the other evidence at trial, especially the lengthy video recording of the Defendant in the booking area, Cst. Bint's belief that the Defendant may have, at some point, urinated in his pants is not reliable enough to discharge the Defendant's burden of proof on this issue.

[54] In the video recording of the Defendant at the police station, the front of the Defendant's pants is shown many times. There is nothing in those many images to suggest that there was any noticeable wet stain in the crotch area nor that the Defendant was experiencing discomfort because of urine soaked pants. Moreover, for approximately one hour, the Defendant was complaining about what he alleged the police were doing and not doing which was causing him harm. Were he really in discomfort as a result of having urinated in his pants, in the circumstances of this case, I am satisfied he would have verbalized a complaint. Indeed, during the two hours he was in the booking area, the Defendant had several opportunities to use a bathroom located right in the booking area and did so at 12:58 am and 1:17 am. In neither instance is there any circumstantial evidence suggesting that there was a wet stain on the crotch of his pants or that he was experiencing discomfort because of one.

[55] Even if the Defendant had established on a balance of probabilities that he had urinated himself while in police custody, he would not have persuaded me that the police did anything, or omitted to do anything, that amounted to a violation of his s. 7 Charter rights. Again, despite repeated offers of assistance from the police at the station, the Defendant never once told them that he was uncomfortable because he had urinated himself. In the context of this case – a case where the Defendant had shown himself willing to repeatedly vocalize his complaints – his failure to raise the issue with the police at the time prevents him from now claiming that they somehow violated his Charter rights for having failed to help.

Conclusion

[56] The Defendant has not established that his s. 7 Charter rights were violated. His application in that regard is dismissed.

[57] For the reasons set out above, I am satisfied that the Crown has proven all the essential elements of each of the four charges beyond a reasonable doubt. I find the Defendant guilty of all four charges.

Released: October 29, 2020

Signed: Justice P.K. Burstein