ONTARIO COURT OF JUSTICE

CITATION: R. v. Sabetti, 2021 ONCJ 593

DATE: 2021 11 17

COURT FILE No.: Brampton 19-00752

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CYNTHIA SABETTI

Before Justice P.T. O’Marra

Heard on October 6 and 7, 2021

Reasons for Judgment released on November 17, 2021

G. Gill..................................................................................................... counsel for the Crown

P. Mota.............................................................. counsel for the defendant Cynthia Sabetti

P.T. O’Marra, J.:

Introduction:

[1] Ms. Sabetti is charged that on January 25^th, 2019 in the City of Mississauga, did knowing that a demand had been made, failed or refused to comply with a demand made by a peace officer under sections 320.27 or 320.28 of the Criminal Code, contrary to section 320.15(1) of the Criminal Code.

[2] Ms. Sabetti has argued that she did not refuse, or fail to comply with the breath demand, despite repeated efforts. Alternatively, if the Crown has established that there was a failure, or a refusal to comply with the demand, Ms. Sabetti has a medical condition that rendered compliance of the demand extremely difficult. On the other hand, the Crown has argued that Ms. Sabetti willfully refused to provide a sample by faking or feigning her attempts to blow into the Intoxilyzer 8000C. Furthermore, she has not provided a reasonable excuse that raises a reasonable doubt in these circumstances.

[3] There were no issues raised regarding the reason for Ms. Sabetti’s traffic stop, or subsequent detention at the roadside, the grounds, the wording, and the timing of both the roadside, and formal breath demands. Nor were there any concerns raised regarding the lawfulness of Ms. Sabetti’s arrest. The defence conceded that the Intoxilyzer 8000C and the ASD were in proper working order. As well, both instruments were operated correctly.

[4] That being the case, I will not spend a lot of time on the events at the roadside but focus more on the events in the breath room.

Overview of the evidence:

[5] On January 25, 2019 at approximately 1:55 a.m., Constables Ellis and Nezirab were proceeding westbound on Lakeshore Road, when suddenly Ms. Sabetti made an abrupt right hand turn on to Lakeshore Road in front of their cruiser. Constable Ellis braked hard to avoid a collision.

[6] As a result, the officers stopped Ms. Sabetti, to investigate her for the traffic offence of careless driving. Constable Nezirab detected a slight odour of alcohol on Ms. Sabetti’s breath. When asked for her driver’s licence, she indicated that she could not find it, even though she had in in her hand.

[7] At 1:59 a.m. Constable Nezirab formed a reasonable suspicion that Ms. Sabetti had been driving with alcohol in her body. He made a demand for a breath sample.

[8] At 2:01 a.m. Ms. Sabetti provided a sample of her breath into the Alcohol Screening Device and registered a fail.

[9] At 2:01 a.m. Ms. Sabetti was arrested. She was both cautioned and provided her right to counsel.

[10] At 2:05 a.m. Constable Nezirab read the breath demand.

[11] At 2:08 a.m. Constables Nezirab and Ellis departed the scene with Ms. Sabetti, and arrived at the OPP Port Credit Detachment at 2:17 a.m.

[12] From 2:28 a.m. until 2:31 a.m. Ms. Sabetti spoke to duty counsel.

[13] At 2:35 a.m. Ms. Sabetti was turned over to Constable Nasr, a qualified Intoxilyzer technician.

The OPP breath room video on January 25, 2019:

[14] The breath room video was played and entered as an exhibit. The following can be observed on the video.

[15] Constable Nasr explained to Ms. Sabetti that everything was being audio and video recorded. He confirmed that Ms. Sabetti had spoken to counsel. He explained that he was going to take samples of her breath. He read the formal breath demand and standard police caution. Ms. Sabetti nodded that she understood.

[16] Constable Nasr asked Ms. Sabetti if there was any reason that she could not provide a breath sample. She responded “no,” but also stated that she had been sick with the flu and had taken Nyquil. Ms. Sabetti commented that before the police stopped her, she was driving to pick up her brother at local bar in Port Credit, and that everything happened just within a few minutes from her driveway. Then Ms. Sabetti began to cough a couple of times.

[17] At 2:42 a.m. Constable Nasr showed her the mouthpiece for the test and asked her to open the plastic. She blew air through the mouthpiece. She then placed the mouthpiece on the tube.

[18] On her first attempt to blow at 2:44 a.m. She was told to take a deep breath and blow. No air passed through, but there was a very brief tone. Ms. Sabetti began to cough and laugh.

[19] On her second attempt, there was a tone, but then Ms. Sabetti removed the mouthpiece from the tube. She began to cough and laugh again.

[20] On her third attempt, she was told to take a deep breath and not to stop blowing until she was told to stop. She took a deep breath but did not seem to be blowing or expelling her breath.

[21] On her fourth attempt, the officer commented that she was not blowing. At this point, Constable Nasr took the tube away from Ms. Sabetti, and cautioned her by saying by not supplying a breath sample carries the same consequences as a fail. He encouraged her to provide a sample of her breath by saying there is “no point in not supplying the sample.” Ms. Sabetti laughed. Constable Nasr advised her that the instrument was not detecting any air. Ms. Sabetti responded, “I am doing the best that I can.”

[22] At 2:47 a.m. prior to her fourth attempt, Constable Nasr changed the mouthpiece. Again, she tested the mouthpiece by blowing air through it. She began to cough. Constable Nasr told her to take a deep breath and blow long and steady. Ms. Sabetti commented that if she kept doing that, she will keep coughing because she has the flu. Constable Nasr demonstrated how to provide a proper sample by blowing through another mouthpiece. This time when Ms. Sabetti blew the tone went on and then off. Constable Nasr commented that she was not blowing. Ms. Sabetti coughed repeatedly into her arm.

[23] On her fifth attempt, Ms. Sabetti started to cough. There was an intermittent beep. Constable Nasr told her “blow, blow and you are stopping.” At this point, Ms. Sabetti went into a coughing fit. She stated that “I am blowing but I took Nyquil.”

[24] Constable Nasr removed the second mouthpiece and put another mouthpiece on the tube. After he conducted an air blank, he demonstrated how to provide a sample on the instrument by conducting a self test. Again, Ms. Sabetti commented that if she kept blowing that she would continue to cough. He blew into the instrument for approximately for 15 seconds. He said to Ms. Sabetti that he blew “ever so slightly,” and was not pushing as hard as he could. She commented that in the past that she has done this test, but at the time she did not have the flu. She said that she was not trying to be difficult.

[25] Constable Nasr gave her another mouthpiece. He showed her again how to provide a sample. At this point Ms. Sabetti told the constable that she has chronic bronchitis and that she worked in the bars.

[26] Constable Nasr expressed to Ms. Sabetti that if she did not provide a breath sample the consequences were “like a fail.” Ms. Sabetti told the officer that she was “not refusing.” Constable Nasr told her “okay you decide.”

[27] As the instrument was re-calibrating, another mouthpiece was handed to Ms. Sabetti. She blew air through it. She started coughing again.

[28] At 3:00 a.m. on her sixth attempt, Constable Nasr held the tube for Ms. Sabetti and asked her to take a deep breath, but there was no air passing through and no audible tone. At this point, Constable Nasr declared that “this is going to be a refusal at 3:00 am.” Ms. Sabetti stated, “I am not refusing that’s not fair… that’s not right.” At 3:01 a.m. Ms. Sabetti was taken out of the room to a cell.

Constable Nasr’s Testimony:

[29] Constable Nasr testified that throughout the video he demonstrated to Ms. Sabetti how she should provide a suitable sample and told her that it was “like the way she blew into the ASD.”

[30] Constable Nasr testified that it does not take that much air flow for the tone to be audible. In his opinion, there was no air and no tone when Ms. Sabetti made her first attempt to provide a sample. A few times he heard the tone, but he felt that Ms. Sabetti was not making any effort to provide a sample of her breath.

[31] Constable Nasr testified that an audible tone was important because it demonstrated that there was a steady flow of breath going into the instrument.

[32] Constable Nasr testified that he has never found a mouthpiece with an obstruction. Despite that he did provide three mouthpieces to Ms. Sabetti to rule out the presence of any obstructions.

[33] He did not record the number of attempts. However, he described the number of attempts to provide a breath as occurring in three discrete sessions. The Intoxilyzer timed out twice as Ms. Sabetti’s attempts lasted longer than 5 minutes. After that the instrument needs to shut down to go through a series of air blank tests. After Ms. Sabetti refused, he aborted the third time after the instrument readied itself.

[34] When Ms. Sabetti attempted to provide samples of her breath, Constable Nasr observed that Ms. Sabetti puckered her cheeks, but she was not expelling any air. He concluded because she was coughing and talking that she had the capacity to provide a sample of her breath. In his experience, when subjects are blowing, he can hear the air pass in between their lips and the mouthpiece. He never heard that sound when Ms. Sabetti was trying.

[35] Constable Nasr testified that initially when he believed that Ms. Sabetti was not trying, he told her that the consequences of refusing was the same as failing the test. In between the second and third sessions, he told her by not complying she was “effectively failing.” He felt that she seemed indifferent about his explanation regarding the ramifications of not complying.

[36] Constable Nasr described that the amount of force required to provide a proper sample is less than blowing up a balloon or blowing on hot food. In other words, a minimal but a sustained and conscience effort was necessary.

[37] Constable Nasr testified that in her first session the tone was barely audible and indicative of very little air flow passing into the instrument. During the second and third sessions he felt that there was no air at all. In fact, in approximately 20 tests that he had conducted in the past he had never seen anyone use such little effort.

[38] Constable Nasr acknowledged that the Intoxilyzer does require a longer sample of breath than the ASD, which has an opening at the end of the device and therefore less resistance. Nonetheless, he felt that there was not a significant difference in the quality of blow that is required to provide a proper sample for both devices.

[39] Constable Nasr decided to charge Ms. Sabetti after the third session when she was not even trying to blow air into the instrument. In his opinion, there was no will on her part to comply.

[40] Constable Nasr testified that when she asked to try again, he felt that it would not have made a difference. In his mind, he had given Ms. Sabetti “ample opportunity” to provide a sample.

[41] In cross-examination, Constable Nasr testified that the most time he had given any one to provide a sample was Ms. Sabetti. In fact, no one has ever taken more than 5 minutes to provide a sample. This was his first refusal case.

[42] In cross-examination, he agreed that there was a “beep” on her first try, but she stopped blowing. He testified that he did not think she was a faker, but that she was not trying. He did tell Ms. Sabetti that “the instrument is pretty smart” as it knows when it is receiving a proper sample of someone’s breath.

[43] In cross-examination, he agreed that even though he secured the mouthpiece on the tube, on the second try that the mouthpiece fell off. He denied that she ever inserted the mouthpiece into the tube.

[44] He agreed that he told her to blow harder at certain times and then told her not to blow so hard.

[45] He testified that there were moments when there were beeps. He agreed that during her second last attempt there were intermittent tones.

[46] Constable Nasr testified that he felt that he was generous in the number of opportunities that he gave her. He testified that 5 minutes is the “rule of thumb,” and he gave her longer.

[47] In cross-examination, Constable Nasr testified that Ms. Sabetti “tried to blame her bronchitis cough and was trying to convince me that she was sick.”

[48] In cross-examination, Constable Nasr agreed that he never warned Ms. Sabetti that this was her “one last chance.” He agreed that he never explained that not providing air into the instrument was the same as refusing. Moreover, when she claimed that she was trying to blow air into the instrument, he told her that it was not enough for the instrument.

Constable Ellis’ Testimony:

[49] The Crown called Constable Ellis. I will not detail his evidence, as much of his involvement occurred at the roadside.

Ms. Sabetti’s Testimony:

[50] Ms. Sabetti testified that she developed chronic bronchitis due to the second-hand smoke from working in smoke filled bars 35 years ago. Her condition is worse in the summer and winter. When it is particularly acute, she coughs a lot and has to breath through her nose. She has been prescribed and uses several puffers or dilators.

[51] Ms. Sabetti testified that day she was not feeling well due to her chronic Bronchitis. She had been not feeling well for the last two weeks. Her bronchitis makes her cough and causes her to have shortness of breath. She confirmed that she had left her home and was driving to pick up her brother.

[52] Ms. Sabetti maintained that she genuinely tried to provide a sample. She testified that she did not fill up her cheeks with air and fake that she was blowing. Ms. Sabetti claimed that she wanted to keep going but was denied the opportunity by Constable Nasr.

[53] Through Ms. Sabetti, counsel filed a DVD of Ms. Sabetti’s previous encounter with an Intoxilyzer 8000C. On April 13, 2018 she was stopped at a Peel Regional Police RIDE program. After she failed the ASD she was taken before a breath technician to provide the formal samples of her breath.

[54] The experience was very similar to what was observed on the OPP breath room video in this matter. For example, Ms. Sabetti understood the breath demand. The consequences of not providing a breath sample were explained to her by the breath technician. In my view, the criminal consequences were explained to Ms. Sabetti more comprehensively by the Peel Police breath technician than Constable Nasr. She took out the mouthpiece from the plastic wrapper and blew through to ensure there were no obstructions. The breathalyzer procedure was explained, including the relevance and the importance of the tone when blowing into the instrument.

[55] On this occasion Ms. Sabetti attempted to provide a sample approximately 10 times. On the tenth or final attempt, the instrument accepted a sample of her breath.

[56] Ms. Sabetti’s attempts in 2018 were similar to how she attempted to provide samples for Constable Nasr in this matter. Occasionally, it seemed to look like she was blowing, but there was no tone. Sometimes there was a brief tone, but then it would stop. The breath technician accused her of puffing up her cheeks and not providing any breath. She said, “I am blowing hard” or “I am lightheaded” or “I ran out of air” or “I did better that time” or “my lungs are only this big.” She provided a longer blow, but then the tone stopped because she stopped blowing. On her eighth occasion she provided a very good blow, but she ran out of air and asked to try again. During the ninth try she provided a long blow, but she stopped, and the instrument timed out. Eventually, as I said earlier, the tenth attempt yielded a proper sample.

[57] Ms. Sabetti provided her second sample of her breath successfully on her first attempt.

[58] After the first sample was provided the breath technician asked her if she was ill. Ms. Sabetti responded “no.”

[59] Ms. Sabetti testified about the state of her health on that occasion. She said that she did not have any bronchitis symptoms that day. During her involvement in the breath room on April 13, 2018, I did not observe Ms. Sabetti coughing while she made her attempts.

[60] In cross-examination, Ms. Sabetti maintained that she told Constable Nasr that she had been sick with bronchitis for a “week and a half.” However, the breath room video was played, and she told the officer that she had the “flu for a week and a half.” Then Ms. Sabetti testified that her illness started with the flu and “then it goes to chronic bronchitis.” She testified that later in the procedure that she told Constable Nasr that she worked in the bars and developed bronchitis.

[61] In cross-examination, Ms. Sabetti testified that she found providing a sample was strenuous activity. She felt that the breath technician in 2018 was more helpful and nicer. He did not tell her to blow harder unlike Constable Nasr. Ms. Sabetti felt that in this case it was much harder and took more strength to provide a sample of her breath than it did in 2018.

[62] In cross-examination, Ms. Sabetti confirmed that she had been through the breathalyser procedure before, but despite that when she was in the room with Constable Nasr, she could not recall how to provide a breath sample.

[63] In cross-examination, she admitted that she did not ask for her puffer in the breath room but was “pretty sure” that she asked for it afterwards. She said that she did not need her puffer because it was easier to provide a sample in 2018 and she was not sick at that time. In 2018, she said her lungs were fine.

[64] The Crown suggested that on the video in 2019 that she did not seem to be out of breath or struggling to talk. Ms. Sabetti disagreed and said that her struggles were “internal.” She claimed that she was out of breath even though the Crown pointed out that was not evident on the video. Ms. Sabetti responded that when she is sick that she breathes through her nose.

[65] Ms. Sabetti testified that she could not provide a sample of her breath as her lungs were hurting and she was coughing.

[66] Initially, Ms. Sabetti testified that she did not know that she could face a criminal charge if she did not provide a breath sample. However, near the end of her cross- examination, Ms. Sabetti testified that she was aware that failing to provide a breath sample carried criminal consequences.

The Law and Analysis:

Failure to provide a suitable sample:

[67] The essential elements of the offence that the Crown must prove are

(i) a proper demand.

(ii) a failure or refusal to provide the required breath sample;

(iii) an intention to fail or refuse to provide the required sample; and

(iv) once raised by the evidence, the absence of a reasonable excuse. See R. v. Goleski, 2014 BCCA 80, [2014] B.C.J. No. 347, at para. 71, and R. v. Lewko, 2002 SKCA 121, [2002] S.J. No. 622 (C.A.)

A proper demand:

[68] No issue was raised that there was no right to make a demand pursuant to section 320.27 or 320.28 or that the demand was improper. That only leaves three elements to consider.

A failure of refusal to provide the required breath sample:

[69] It is clear from my observations of Ms. Sabetti on the video that she understood the directions that were provided to her by P.C. Nasr on how to provide a sample of her breath.

[70] P.C. Nasr confirmed that the instrument was in proper working order. It had been calibrated and tested. There was no defence challenge that it was not working properly. P.C. Nasr self-tested the instrument before and after Ms. Sabetti’s failed attempts. There were no defects in the mouthpieces.

[71] I am satisfied that the Crown has proven beyond a reasonable doubt that Ms. Sabetti failed or refused to provide the required sample.

An intention to fail or refuse to provide the required sample:

[72] There is an overlap in the proof that is required to prove both the actus reus and the mens rea in "failure" cases. Whenever there is an outright refusal to blow, mens rea can be presumed. However, where there is a failure alleged, more proof is required. Therefore, whenever the defence argues that the accused did not intentionally refuse to provide a sample, the court must analyze the evidence to determine if mens rea has been proved beyond a reasonable doubt.

[73] The Crown was obligated to prove that the failure to provide suitable samples was the result of volitional behaviour on the part of Ms. Sabetti. Ms. Sabetti must be acquitted if she raised a reasonable doubt as to the voluntary nature of her refusal, even if her evidence did not establish a reasonable excuse on a balance of probabilities. See R. v. Manak, [2008] O.J. No. 1718.

[74] The jurisprudence in this area of law established two main principles that must be applied to this case.

[75] First, in considering whether or not the Crown has proved beyond a reasonable doubt that Ms. Sabetti has refused or wilfully failed to comply with a breath demand, the court must look at all of the circumstances of the entire transaction between P.C. Nasr and Ms. Sabetti.

[76] In R. v. Soucy, 2014 ONCJ 497, at para. 57, Paciocco J. considered the mens rea requirement and concluded the Crown must establish the defendant failed to provide a breath sample "on purpose." The Court went on to consider R. v. Dolphin, 2004 MBQB 252, adding "as a matter of common sense, if the device was shown to be in good working order, the accused was given a clear explanation of its operation, and a sufficient opportunity to provide a sample was furnished, it can generally be inferred in the absence of evidence raising some question about the ability of the accused to comply, that the accused intended to avoid furnishing a suitable sample."

[77] Second, as set out in R. v. Tavangari, [2002] O.J. No. 3173 (OCJ), there are a constellation of factors that a court must assess in deciding whether or not there has been a refusal or wilful failure to provide a screening sample. I am not dealing with a refusal to provide a screening sample at the roadside. Nevertheless, this case is helpful in examining a non-exhaustive list of factors. In Tavangari, at para. 16, the court indicated some of those factors were as follows:

• The explanation given to the accused about testing procedure, R. v. Chance [1997] O.J. No. 4939 (Ont. C.J.);

• Evidence of language difficulties or other problems that might interfere with the accused's understanding of instructions or warnings by the officer, R. v. Kuczak 24 M.V.R. (3d) 89;

• Evidence or lack of evidence of the accused's efforts to provide a sample, R. v. Frianchi (1999), 49 M.V.R. (3d) 48 (Ont. S.C.J.);

• The amount of time during which testing was conducted, R. v. Tynkaluk, [1989] O.J. No. 957 (Ont. Dist. Ct.) 10 minutes, R. v. Brown, [2002] O.J. No. 2821 (Ont. C.J.) 7 minutes;

• The number of tests attempted, Tynkaluk, 8 attempts: Chance, 4 attempts;

• Whether the accused was warned it was a criminal offence to refuse, Tynkaluk;

• Whether the accused was told of the consequences of refusal, R. v. Fontaine (1990), 25 M.V.R. (2d) 308 (Alb. Q.B.), Chance;

• Whether the accused had been warned that he was being given a final chance to provide a suitable sample, Tynkaluk; R. v. Cameron, [1997] O.J. No. 587 (O.C.J.);

• Where there is a direct refusal, the words spoken and whether they were equivocal, R. v. Taylor, [1998] O.J. No. 2167 (Ont. S.C.);

• Where the Crown alleges a failure to provide a sample, the reasons given by the police constable for terminating the testing, Taylor;

• Where there is a request to take a further test post arrest, whether the equipment and operator were still available, Tynkaluk, and, the ease of setup and operation of a screening device (to take a further test), Chance;

• The time delay, if any, between the arrest for failure or refuse and the request for another chance to provide a sample, R. v. Hines, [1998] O.J. No. 5831 (Ont. Gen. Div.) 8 minutes, Frianchi, immediate;

• The reasons given by the police constable for not providing a further opportunity post-arrest if requested Taylor.

[78] R. v Slater, 2016 ONSC 2161, Nordheimer J., as he then was, said of the following when considering the mens rea element:

... absent evidence to the contrary, or evidence that raises a reasonable doubt, proof of the requisite mens rea for the offence will be met by the application of the general principle that a person, who does something that has predictable consequences, usually intends or means to cause those consequences. Put more directly, evidence that a person who tries multiple times to provide a breath sample, and in each instance fails to provide a sample, gives rise to an inescapable inference that s/he is intending that result, absent some other evidence being present that would suggest an absence of such an intent, or at least raise a reasonable doubt about it.

[79] There was no warning that this was her last chance given to Ms. Sabetti by Constable Nasr. But it is not imperative to do so and an officer is not obliged to persuade or give legal advice in other to obtain compliance with a breath demand. An officer’s failure to thoroughly review the consequences of non-compliance with the demand does not give rise to a reasonable for a refusal to provide samples. See: R. v. Grant, 2014 ONSC 1479, [2014] OJ No 1143, at para. 80 (SCJ) and R. v. Sures, [2010] OJ No 1615, at para. 39 (SCJ) Nevertheless, I am satisfied that Ms. Sabetti was aware of obligation to provide a breath sample and the consequences of not complying. She confirmed her awareness of criminal consequences in her testimony.

[80] Ms. Sabetti was given 6 opportunities to provide samples of her breath over a 16-minute period from 2:44 a.m. until 3:00 a.m. at which time she was deemed not to be complying with the demand.

[81] P.C. Nasr could not have been clearer in providing guidance and direction on how to provide a sample. P.C. Nasr demonstrated patience. It was obvious to him that Ms. Sabetti was not respiring any air into the mouthpiece. It seemed from the video that anytime Ms. Sabetti’s exhalation of air activated the tone she stopped blowing. I accept P.C. Nasr’s evidence that at certain times Ms. Sabetti was not emitting any air into the mouthpiece as he did not feel the "rush of air" on the palm of his hand.

[82] I found Mr. Sabetti’s evidence at times to be evasive, materially inconsistent with events captured on the breath room video, self-serving and contrary to common sense.

[83] I find that Ms. Sabetti was provided a reasonable and fair opportunity to provide a suitable sample of her breath. She was told to give one long continuous blow and not to stop until told to do so by P.C. Nasr. She was encouraged to blow harder and longer. She was told of the legal consequences of not providing a sample of her breath. Simply put, I did not believe Ms. Sabetti’s testimony concerning her intention to comply. I find that she understood what was expected of her and intentionally failed to do so by engaging in avoiding tactics. She was cautioned in the clearest of terms and afforded an abundance of opportunities over a considerable period of time. I am satisfied beyond a reasonable doubt that Ms. Sabetti wilfully failed to provide a sample by pretending to blow into the instrument.

Once raised by the evidence, absence of a reasonable excuse:

[84] As I have found that the Crown has proven the basic elements of the offence. I must ask myself whether I am satisfied on a balance of probabilities that Ms. Sabetti’s bronchitis provided her with a reasonable excuse for failing to provide suitable breath samples. Given how tightly the mens rea and the bronchitis claim are interwoven in this case, this exercise is largely academic. See R. v. Amjad, [2015] O.J. No. 3268.

[85] Ms. Sabetti need only raise the question of a possibility of a reasonable excuse by producing sufficient evidence of "something" that is capable of being a reasonable excuse, or as has been said of satisfying the court that there is an "air of reality" to the defence. However, it is a question of law as to whether something put forward is capable of being a reasonable excuse. If it is capable of being a reasonable excuse, once the evidentiary burden is satisfied by the defence, the persuasive burden remains on the Crown. See Manak.

[86] The evidence raised by the defence in relation to a reasonable excuse involved Ms. Sabetti’s inability to provide suitable samples of her breath due to her chronic bronchitis. Despite the absence of any independent medical evidence, I accept that Ms. Sabetti suffers from bronchitis of some nature. The question before me is whether that disorder played any part in her failure to provide two suitable samples of her breath.

[87] I have difficulties with her explanation. I did not doubt that she has chronic bronchitis. However, before her first attempt, Ms. Sabetti initially claimed that she had the flu and taken Nyquil earlier in the evening. She advised Constable Nasr that there was no medical reason preventing her from providing a sample.

[88] In my view, Ms. Sabetti exaggerated her coughing to suit her purposes. Often, she was observed to not even respire air into the mouthpiece.

[89] Ms. Sabetti did not cough at all when she provided two suitable samples on April 13, 2018. In fact, often her blows her long and sustained. According to the Peel Police breath technician, however, occasionally Ms. Sabetti was not even blowing into the instrument. This was similar conduct in the OPP test as well.

[90] It is not dispositive of the issue in this case, but there was no evidence that Ms. Sabetti was unable to provide a sample of her breath in the ASD. While I appreciate that the ASD may require less air or force to provide a suitable sample, there was no evidence that Ms. Sabetti coughed her way through providing her sample that registered a fail on the ASD. However, it would be unfair to make any use at trial of the fact that Ms. Sabetti was able to provide a suitable sample into the ASD. Courts in Ontario have held that the admissibility of evidence acquired through an accused person's "compelled direct participation" in roadside testing is limited as a matter of trial fairness: see R. v. Quenneville, 2009 ONCA 325, [2009] O.J. No. 1549 (C.A.), R. v. Brown, [2011] O.J. No. 5355 (S.C.J.) & R. v. Bijelic, 2008 CanLII 17564 (ON SC), [2008] O.J. No. 1911 (S.C.J.). I have instructed myself accordingly. See Amjad.

[91] I am not satisfied that Ms. Sabetti was genuine in her efforts to provide a sample of her breath. Her coughing was inflated to make it seem that she was unable to provide a sample. I accept the officer’s impression that Ms. Sabetti was not even trying push any air into the mouthpiece. I observed her laughing and talking to the officer. Constable Nasr did not testify that, nor did I detect that Ms. Sabetti’s breathing was laboured. Her voice never weakened, in fact, she could even laugh at times throughout the process.

[92] At no time did she explain why no air was going through the mouthpiece. I prefer Constable Nasr’s observations that at times there was no air going into the instrument.

[93] Ms. Sabetti maintained that she told the officer that she had the chronic bronchitis when she first entered the breath room, however, on the video recording she clearly wanted Constable Nasr to know that she had the flu and had taken Nyquil. I am not sure what the relevance of telling a police officer that one has ingested NyQuil when providing a sample of one’s breath. She did tell the officer later that she suffered from chronic bronchitis, but never asked for her puffer. I would think that if someone was having difficulty breathing, coughing and sore lungs that she would have inquired about accessing her puffer while in the breath room. Furthermore, I found her answer that she was labouring “internally,” and that she was breathing through her nose a rather bizarre statement. In my view, she made that up as she went along as it was obvious that Ms. Sabetti was not struggling to breath while in the breath room, and I needed an explanation why that was the case.

[94] I am not satisfied beyond a reasonable doubt that Ms. Sabetti s condition rendered compliance with the demand either extremely difficult or involved substantial risk to her health. Therefore, there will be a finding of guilt.

Released: November 17, 2021 (Orally)

Signed: Justice P.T. O’Marra