Court File and Parties

Ontario Court of Justice

Date: 2020-12-15

Court File No.: Lindsay 180682

Between:

Her Majesty the Queen

— and —

Jerramy Bellak

Before: Justice S. W. Konyer

Heard on: November 24, 2020

Reasons for Judgment released on: December 15, 2020

Counsel:

• Mr. W. Barnes — counsel for the Crown
• Mr. C. Avery — counsel for the defendant Jerramy Bellak

Reasons for Judgment

KONYER J.:

[1] Jerramy Bellak was charged on June 2, 2018 with impaired driving and failing to provide a suitable sample of his breath for analysis by a qualified technician, contrary to sections 253(1)(a) and 254(5) of the Criminal Code. He was also charged with a number of provincial offences, including failing to surrender an insurance card, driving a motor vehicle with liquor readily available, and speeding at a rate of 128 km/hr in a posted 80 km/hr zone, contrary to s.3(1) of the Compulsory Automobile Insurance Act, s.32(1) of the Liquor Licence Act, and s.128 of the Highway Traffic Act. He was tried before me on all charges on November 24, 2020. At the outset of his trial he pled guilty to the liquor and speeding offences, and not guilty to all other charges. What follows are my reasons for judgment on the charges to which he pled not guilty.

[2] There is no dispute that Mr. Bellak was operating a motor vehicle when he was stopped by police. There is also no dispute that he displayed indicia of physical impairment from which I could infer that his ability to safely operate a motor vehicle was impaired to some degree. On the charge of impaired driving, the issue that I must resolve is whether the Crown has proven beyond reasonable doubt that the impairment was caused by alcohol consumption as opposed to fatigue or injury.

[3] Likewise, there is no dispute that a lawful demand was made of Mr. Bellak requiring him to provide suitable samples of his breath for analysis by a qualified technician. There is also no dispute that a suitable sample was never received from Mr. Bellak by the qualified technician. What I must decide on this charge is whether the Crown has proven beyond reasonable doubt that Mr. Bellak intentionally failed to comply with the demand.

[4] Finally, there is no dispute that the police made a lawful demand of Mr. Bellak that he provide an insurance card for the vehicle that he was operating. There is also no dispute that he provided the police with an expired insurance card. What I must decide to resolve this charge is whether that act alone is sufficient for a conviction or whether, as the defence argues, it is a defence that Mr. Bellak reasonably but mistakenly believed that he had complied with the demand to produce an insurance card.

[5] In order to resolve these issues, I will review the evidence that I heard at Mr. Bellak's trial and make the necessary findings of facts. I will then apply the law to those facts in order to determine whether the Crown has proven any of the charges against Mr. Bellak. I will of course bear in mind that he is presumed innocent, and that the Crown is required to prove each charge against him beyond reasonable doubt. If I am unsure of Mr. Bellak's guilt on any of the charges, then he is entitled to be found not guilty.

Summary of the Relevant Evidence

[6] Mr. Bellak was observed operating a motor vehicle at a speed of 129 km/hr in a posted 80 km/hr zone by Cst. Peacock of the Haliburton Highlands detachment of the Ontario Provincial Police on June 2, 2018 at 2:36 p.m. He was driving southbound on Highway 35 near the village of Minden. As a result of these observations, Cst. Peacock signalled his partner Cst. Adams, who conducted a traffic stop. Other than the speeding, no observations of poor driving were made.

[7] Once the vehicle was stopped, Cst. Adams approached the driver's side window and spoke to Mr. Bellak. He demanded that Mr. Bellak produce his driver's licence, as well as the vehicle registration and insurance. He said that Mr. Bellak fumbled while attempting to retrieve these documents from his wallet. He agreed in cross-examination that many people who are stopped by the police are unnerved by the experience, and accepted the suggestion that Mr. Bellak's difficulty in retrieving these documents from his wallet could have been the result of nervousness.

[8] Cst. Adams said that Mr. Bellak produced the documents requested of him. The insurance card that he produced had expired on December 1, 2017. Cst. Adams could not recall when he determined that the insurance card was expired, but agreed that he never brought this fact to Mr. Bellak's attention or gave him an opportunity to search for a valid insurance card.

[9] Cst. Adams detected an odour of an alcoholic beverage emanating from Mr. Bellak's breath during their roadside conversation. He asked Mr. Bellak if he had consumed any alcohol that day and was told that he had consumed a couple of drinks of alcohol about an hour before. He then observed a partially consumed bottle of vodka on the passenger seat. He estimated that the 375ml bottle was ¾ full. The parties agree that this means that the equivalent of about 2 standard sized drinks were missing from the bottle.

[10] Cst. Adams also noted that Mr. Bellak's eyes were slightly bloodshot, that his eye movement seemed slow, that his face was flushed and that he had some difficulty in answering questions. At this point he was placed under arrest for impaired driving, and a demand was made to Mr. Bellak by Cst. Adams that he provide suitable samples of his breath for analysis by a qualified technician. The defence concedes that the demand made by Cst. Adams was lawful.

[11] Cst. Adams then alerted his dispatcher that he would require the services of a qualified technician and transported Mr. Bellak to the Minden OPP detachment. Once at the detachment, he maintained custody of Mr. Bellak until he was turned over to the qualified technician. He said that the signs of impairment which he had observed were even more obvious at the detachment. Based on his 27 years of policing experience, he assessed Mr. Bellak's level of intoxication as being high.

[12] In cross-examination, Cst. Adams agreed that Mr. Bellak had an obvious head injury, which he described as a 3" gash with dried blood on the top of his head.

[13] Mr. Bellak was turned over to the custody of Cst. Johnson, a qualified technician, at 3:39 p.m., and remained in his custody for approximately 20 minutes. Cst. Johnson also made note of the gash and dried blood on Mr. Bellak's head. There is no dispute that Cst. Johnson is a qualified technician and that he was operating an approved instrument as those terms are defined in the Criminal Code. There is also no dispute that the instrument used by Cst. Johnson was in proper working order and was able to receive and analyze samples of Mr. Bellak's breath.

[14] The interactions between Cst. Johnson and Mr. Bellak in the breath room were captured on an audio-video recording that was filed as an exhibit at trial. The entire breath testing portion of the video lasted less than 7 minutes, during which time Mr. Bellak made 7 attempts to provide a sample to the officer. Since I must consider the entire context in determining whether the Crown has proven that Mr. Bellak intentionally failed to provide a suitable sample of his breath, I will review the video in some detail.

[15] After Mr. Bellak enters the breath room, several minutes elapse while Cst. Johnson completes his preparation of the instrument and reviews Mr. Bellak's right to counsel and caution. He then reads a breath demand in the standard wording from the OPP card, and tells Mr. Bellak "I'm the one who's going to determine if your sample is good enough, okay?" It is worth noting that the officer remarks upon Mr. Bellak's visible head wound, and also remarks upon Mr. Bellak's apparent fatigue. At one point prior to the testing sequence, Mr. Bellak closes his eyes, prompting the officer to tell him "stay awake for me here – you were dozing off."

[16] Cst. Johnson begins the breath testing sequence by providing Mr. Bellak with a mouthpiece that is sealed in plastic. Mr. Bellak follows instructions to unwrap and check the mouthpiece for obstructions. Cst. Johnson then takes the mouthpiece from him, inserts it into the end of a tube, and states: "I'm gonna hold it. I need a long steady breath." Mr. Bellak then appears to blow into the mouthpiece being held by the officer. Cst. Johnson quickly removes the mouthpiece and tells him "no, you're not giving me a breath", to which Mr. Bellak replies "what do you mean?"

[17] Cst. Johnson tells him "I need to hear a tone on the machine. Go." Mr. Bellak blows into the mouthpiece which produces a tone from the instrument. While he is blowing Cst. Johnson repeatedly tells him "go, go, go" until there is a break in the tone being produced by the instrument, which prompts the officer to say "no" and remove the mouthpiece. Mr. Bellak looks perplexed at this point, and Cst. Johnson says "I need a long steady breath until I tell you to stop."

[18] The third attempt then begins, with Mr. Bellak blowing and producing a tone, which stops. Cst. Johnson then tells him "if you don't cooperate you're going to be charged with refusal." Mr. Bellak responds "are you kidding me?" and reaches for the mouthpiece. This results in a loud rebuke from the officer who shouts "Don't. I told you not to grab the mouthpiece." Mr. Bellak responds "I'm not doing anything, I'm trying to breathe into it."

[19] The officer then holds out the mouthpiece to Mr. Bellak, again telling him "I need a long and steady breath, okay?" Mr. Bellak blows, producing a tone, and the officer again tells him "go, go, go." After several seconds the officer exclaims "no" and removes the mouthpiece from Mr. Bellak's mouth. He responds by asking "what do you want from me?" Cst. Johnson tells him "you're not sealing your mouth around the mouthpiece, I can tell that you're blowing past it." Once again, the officer's tone of voice is loud and impatient. It is worth noting that Mr. Bellak had not been given any instructions about sealing his mouth around the mouthpiece.

[20] At this point, Cst. Johnson tells him "one more chance and you're getting charged with refusal, okay?" Mr. Bellak can be seen taking a deep breath before blowing into the mouthpiece for the fifth time. Again a tone is produced and again Cst. Johnson tells him "go, go, go" while he blows. After several seconds, there is a brief, split second gap in the tone produced by the instrument. After the tone resumes, Cst. Johnson removes the mouthpiece and says "I'm done." He throws the mouthpiece into a garbage can and begins winding the tube back onto the instrument. Mr. Bellak says "what do you want from me? I'm not trying to fuck with you or the machine."

[21] Cst. Johnson then tells him "I'm going to give you one more chance" and provides a new mouthpiece. While unwrapping and testing it, Mr. Bellak tells the officer "I'm not trying to defy you. I'm breathing into the machine, honestly." After inserting the mouthpiece into the tube, Cst. Johnson tells him again "I need a long and steady breath." Mr. Bellak takes another deep breath and blows into the mouthpiece which produces a steady, uninterrupted tone. The officer again tells him "go, go, go" while he is blowing, but then again removes the mouthpiece after several seconds and says "no, you're blowing past, I can feel it blowing past." He again removes the mouthpiece and begins packing up the instrument. Mr. Bellak responds by saying "are you kidding me? What am I doing?" Cst. Johnson tells him "get up, you're going back in cells" and they leave the breath room. They can be heard arguing with one another outside the breath room about Mr. Bellak's level of cooperation.

[22] Less than one minute later, Cst. Johnson returns to the breath room with Mr. Bellak. He tells the officer "you seem upset", which the officer denies. He then tells Mr. Bellak "my job is to ensure that a proper suitable sample is done and I'm not satisfied with that now. I'm telling you, they're not suitable." Mr. Bellak responds "okay, they're not suitable but I'm not doing anything to obstruct you." Cst. Johnson provides him with another mouthpiece and again tells him "I need a long steady breath okay." Mr. Bellak again takes a deep breath and blows into the mouthpiece, causing the instrument to emit a steady tone while Cst. Johnson again tells him "go, go, go". After several seconds, the machine begins emitting an alternating high and low tone, which prompts Cst. Johnson to remove the mouthpiece from Mr. Bellak's mouth and state "yep, that's another deficient sample." Shortly after, Mr. Bellak is returned to the cells.

[23] In cross-examination, Cst. Johnson conceded that the alternating high / low tone produced by the instrument in Mr. Bellak's final attempt was caused by the instrument simply timing out, and not as the result of any issue with the sample that Mr. Bellak was in the process of providing. The instrument is designed to time out after a period of five minutes of inactivity. All of the unsuccessful attempts made by Cst. Johnson to obtain a sample from Mr. Bellak would have been considered inactivity by the instrument.

[24] Cst. Johnson also agreed that the instrument emits a steady tone when it is receiving a sufficient flow of air to allow it to perform an analysis. The officer conceded, therefore, that Mr. Bellak was in the midst of providing a sufficient breath sample when the instrument timed out. He also agreed that he could have fixed this issue by simply resetting the instrument and having Mr. Bellak start over.

[25] The officer also agreed that if the instrument continued to emit a steady tone, this meant that it was receiving a sufficient air flow to allow for a proper analysis. Even if not all of the subject's breath was blown into the tube, the instrument could still perform an analysis. The officer conceded, therefore, that Mr. Bellak was providing a suitable sample even if he did not form a proper seal around the mouthpiece and the officer could feel air escaping, so long as the instrument was emitting a steady tone.

[26] Further, Cst. Johnson also conceded that a short gap in the steady tone emitted by the instrument did not mean that the sample being provided was no longer suitable. This could be the result of the air flow dipping below the level considered sufficient by the machine. The officer agreed, however, that if the instrument resumed emitting a tone this meant that adequate airflow had been restored and the instrument could complete its analysis of the sample. In other words, a brief interruption in the steady tone emitted by the machine, as seen repeatedly in Mr. Bellak's case, does not mean that the sample he was providing was unsuitable.

[27] Finally, Cst. Johnson agreed that one of the recommendations from his training on the approved instrument was to provide a self-demonstration of how to provide a proper breath sample to subjects in the event that a subject was having difficulty in performing this task. He conceded that he failed to conduct a demonstration with Mr. Bellak despite his repeated request to the officer to tell him what it was that he was doing wrong.

[28] It is also noteworthy that Mr. Bellak did not demonstrate any difficulties with balance, gait or fine motor skills during the time that he was recorded on the breath room video. He was able to unwrap and manipulate the three mouthpieces provided to him without any obvious difficulty. His speech on the breath room recording did appear to be slurred in comparison to his manner of speech while testifying in court.

[29] Mr. Bellak testified at trial. His testimony was largely unchallenged, and largely corroborated by other evidence. He said that the night before his arrest he had been beaten up in a fight. Photographs showing him beaten and bloodied were filed as exhibits. He said that he did not sleep following the beating because he was concerned that he was concussed, and believed that he should avoid falling asleep. Shortly before his arrest, he had his head wound tended to by a relative, who apparently discovered and removed pieces of gravel that were embedded in his head wound. He said this process was quite painful. To numb the pain, he consumed the ¼ mickey of vodka that was later recovered by Cst. Adams from his vehicle.

[30] Mr. Bellak demonstrated how his licence and other documents were contained in a small compartment within his wallet, and agreed that he may have exhibited some difficulty retrieving the documents due to his fatigue and apprehension at being stopped by the police. Mr. Bellak does not dispute the observations made by the officers about his speech or the condition of his eyes, but attributes these symptoms to fatigue rather than impairment by alcohol. As I have noted previously, the officers who dealt with him observed a significant head wound with dried blood. Both officers also agreed that Mr. Bellak appeared to be fatigued.

[31] Mr. Bellak also said that his vehicle was properly insured, and that he had a valid insurance card in his wallet. Since he was never told by Cst. Adams that the card he provided to the officer was expired, he never made any efforts to search for the valid card.

[32] This completes my review of the evidence that relates to the issues that I must decide in Mr. Bellak's case. I will now consider each issue in turn by briefly reviewing the applicable law, and then applying that law to the facts of this case.

Issue 1: Has the Crown Proven That Mr. Bellak's Ability to Drive Was Impaired by Alcohol?

[33] The Criminal Code makes it an offence to operate a motor vehicle while impaired by alcohol or a drug. It does not criminalize impaired driving where the source of the impairment is something else, like fatigue or injury. Where there is evidence of impairment, plus evidence of both alcohol consumption and fatigue, the court must determine whether alcohol was a "contributing factor" to the impairment: see R. v. Bartello, [1997] O.J. No. 2226 (C.A.).

[34] In Mr. Bellak's case, there is clear and convincing evidence that he was suffering from both fatigue and a head injury at the time he was investigated by the police. I believe his testimony that he suffered the head injury in a fight the previous night, which is supported by photographs of his bloody body after the fight that were made exhibits at trial. His head wound was also fresh and obvious to the police. I also believe his testimony that he did not sleep following the head injury out of fear that he may have suffered a concussion. His obvious fatigue was corroborated by both police witnesses, and is readily apparent from the breath room video.

[35] I also believe Mr. Bellak that he consumed roughly 3 ounces of vodka shortly before being stopped by the police. What I do not know is what effect the consumption of this alcohol had on his ability to drive. Aside from speeding, the police did not observe any poor driving. The odour of an alcoholic beverage on his breath confirms his consumption, but tells me nothing about whether he was impaired. The condition of his eyes is consistent with both impairment by alcohol and fatigue. I am unable to determine whether his slurred speech was caused by fatigue, his head injury, his consumption of alcohol or a combination of those factors. Although I accept that he likely had some difficulty in extracting the documents requested of him from his wallet, I cannot safely conclude that this was due to impairment by alcohol as opposed to nervousness at being stopped by the police. When I consider all of the evidence, including the fact that Mr. Bellak did not display any other signs of impairment of his physical abilities, and the breath room video which shows that he was able to open and manipulate the mouthpiece without difficulty, I cannot be sure that any momentary fumbling was the result of impairment rather than nervousness.

[36] In short, I cannot be sure whether the alcohol that Mr. Bellak consumed was a contributing cause to his impairment. Since I am unsure, I must acquit him on the charge of impaired driving.

Issue 2: Has the Crown Proven That Mr. Bellak Intentionally Failed to Comply With a Demand to Provide Breath Samples?

[37] There is no dispute that the police made a lawful demand of Mr. Bellak, and there is no dispute that a sufficient sample was never received in the approved instrument. What I must decide is whether the Crown has proven that Mr. Bellak intentionally failed to comply with the demand. To do so, I must look at all of the circumstances.

[38] The relevant circumstances in this case include the fact that Mr. Bellak was never provided any clear instructions by Cst. Johnson about how to provide a proper sample, nor was he provided a demonstration when he clearly articulated to the officer that he was having trouble understanding the expectations. Cst. Johnson was trained to conduct a demonstration where a subject was having difficulty in providing a proper sample, yet he inexplicably failed to do so here.

[39] Even more troubling, Cst. Johnson repeatedly stopped the testing procedure where the instrument indicated that a sample suitable for testing was being provided by Mr. Bellak. The officer admitted that he knew that the split second interruptions in the tone produced by the instrument were not fatal to the suitability of the sample. He also knew that the lack of a proper seal by Mr. Bellak around the mouthpiece was not fatal to the procedure. Despite this knowledge, he repeatedly put a stop to attempts being made by Mr. Bellak for these reasons.

[40] Finally, Cst. Johnson knew that the last attempt timed out not due to any failure by Mr. Bellak to provide a suitable sample, but because of a feature of the instrument itself. In all of the circumstances, I cannot be sure that Mr. Bellak was intending to fail to comply with the demand for breath samples. Indeed, it appears to me that Mr. Bellak was making genuine efforts to provide a proper sample, and was frustrated by the conduct of Cst. Johnson. The officer's behaviour towards Mr. Bellak throughout was rude, condescending and dismissive, which casts some doubt on the objectivity of his assertions that Mr. Bellak was intentionally trying to subvert the testing procedure.

[41] The Crown argues that it does not matter if the approved instrument signalled to Cst. Johnson by way of a steady tone that the sample being provided was sufficient for analysis if the officer, who is a qualified technician, was of the opinion that the sample being provided was nevertheless insufficient. The section required Mr. Bellak to provide "samples of his breath as in the opinion of a qualified technician were necessary to enable a proper analysis to be made". The Crown relies on the case of R. v. D'Andrade, 2005 ONSC 1077 to support the proposition that samples which are adequate for the instrument's purpose may nevertheless be insufficient in the opinion of the qualified technician.

[42] In this case, however, Cst. Johnson agreed after reviewing the recording of the testing procedure that virtually all of the attempts made by Mr. Bellak produced samples that were initially suitable. This is evidenced by the fact the instrument produced a tone which Cst. Johnson was trained to rely upon to tell him that a sufficient sample was being received. Cst. Johnson prematurely put a stop to the process, and did so repeatedly. When confronted by the differences in how he was trained to operate the instrument and how he actually operated the instrument in Mr. Bellak's case, he effectively conceded that he did not follow his training. He erred more than once in stopping the breath testing process. At the end of the day, my understanding of his evidence is that it was no longer his opinion that the samples Mr. Bellak provided were unsuitable for analysis. This distinguishes this case from D'Andrade, supra, in my view.

[43] It is also significant, in my view, that Cst. Johnson also failed to follow his training with respect to providing instructions to Mr. Bellak. Indeed, it would be a perverse result if an accused person could be found criminally liable for failing to provide a suitable sample in circumstances like this, where Mr. Bellak was not provided any meaningful instruction on how to provide a suitable sample.

[44] In any event, Cst. Johnson's evidence about the last attempt made by Mr. Bellak is fatal to the Crown's case in my view. He agreed that this attempt was aborted because the instrument simply timed out, not due to any failure by Mr. Bellak. He never gave Mr. Bellak another opportunity to provide a sample by simply resetting the timer on the instrument. In all of the circumstances here, the Crown has not proven an intentional failure to comply by Mr. Bellak, and he is also acquitted on this charge.

Issue 3: Has the Crown Proven That Mr. Bellak Failed to Produce an Insurance Card?

[45] There is no dispute that Mr. Bellak provided Cst. Adams with an expired insurance card when the officer made a demand for proof of insurance. The Crown argues that the offence with which Mr. Bellak is charged is an absolute liability offence, which would mean that it is not a defence that he actually possessed a valid insurance card and mistakenly handed Cst. Adams an expired card. For an absolute liability offence, proof of the prohibited act is sufficient.

[46] In my view, however, the offence contrary to s.3(1)(a) of the Compulsory Automobile Insurance Act that Mr. Bellak was charged with is an offence of strict liability rather than absolute liability. Therefore, a defence of due diligence is available to him, and I must consider the application of that defence in the circumstances of Mr. Bellak's case.

[47] Section 3(1)(a) of the Compulsory Automobile Insurance Act provides that:

An operator of a motor vehicle on a highway shall have in the motor vehicle at all times,

(a) an insurance card for the motor vehicle; or,

(b) an insurance card evidencing that the operator is insured under a contract of automobile insurance,

and the operator shall surrender the insurance card for reasonable inspection upon the demand of a police officer.

[48] Both strict liability and absolute liability offences only require proof of the prohibited act, not that the accused intended to commit the act. The difference, however, is that for a strict liability offence, an accused may advance a defence of due diligence if he or she can establish that they took all reasonable care. The Supreme Court of Canada has held that the defence of due diligence to a strict liability offence involves consideration of what a reasonable person would have done in the circumstances. "The defence will be available if the accused reasonably believed in a mistaken set of facts, which, if true, would render the act or omission innocent": R. v. Sault Sainte Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.).

[49] The question of whether an offence is one of strict or absolute liability is a matter of statutory interpretation. There is a strong presumption that public welfare regulatory offences are strict liability offences, in the absence of clear legislative language demonstrating an intent that liability be absolute: R. v. Kanda, 2008 ONCA 22.

[50] In R. v. Bedard, [2009] O.J. No. 4720 (C.J.) it was held that the offence of operating a motor vehicle without insurance, contrary to s.2(1)(a) of the Compulsory Automobile Insurance Act is a strict liability offence. This result was reached in part because the court found that automobile insurance regulation was a public welfare offence. In the absence of a clearly stated legislative intent that liability for offences under the statute be absolute, the normal presumption of strict liability was found to apply. The same result, in my view, must also apply to the offence of failing to produce an insurance card under s.3(1)(a).

[51] Therefore, it is open to Mr. Bellak to establish that he reasonably believed in a mistaken set of facts that, if true, would provide him with a defence. Here, it is Mr. Bellak's unchallenged evidence that his vehicle was properly insured, that he had in the vehicle a valid insurance card, and that he mistakenly provided Cst. Adams with an expired card. Cst. Adams did not inspect the card at the time and bring to Mr. Bellak's attention that the card he had produced was out of date. Mr. Bellak believed in a mistaken set of facts that could easily have been rectified at the time if the simple mistake had been brought to his attention. There is no suggestion that the vehicle in question was not insured, and there is no compelling reason to hold Mr. Bellak liable for an innocent error. He is acquitted of this charge also.

[52] This leaves the charges to which Mr. Bellak pled guilty at the start of the trial – speeding and having liquor accessible to a driver. I will hear now from counsel on what penalties should be imposed for these offences.

Released: December 15, 2020

Signed: "Justice S. W. Konyer"