Court File and Parties
ONTARIO COURT OF JUSTICE DATE: 2022 04 14 COURT FILE No.: Guelph #20-8930
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
KARINA ARUTUNIAN
Before: Justice M.K. WENDL
Heard on: March 03, 2020, and February 4th, 2022 Reasons for Judgement Released on: April 14th, 2022
Counsel: S. Turner.......................................................................... Counsel for the Provincial Crown M. Thakore.............................................................................. Counsel for Karina Arutunian
Endorsement
WENDL J.:
[1] Karina Arutunian is charged with refusing to provide a breath sample into an ASD device. In the early morning hours March 27th, 2019, Ms. Arutunian was stopped at a RIDE program. She feigned blowing six times and then outright refused on the seventh. Immediately after being charged with the refuse at the roadside, Officer Bigger, to his credit, allowed her to contact counsel of choice in privacy at roadside. After speaking to counsel, Ms. Arutunian requested another chance to blow. Officer Bigger refused. Counsel for the defendant argues that she should have been allowed this further opportunity since the refusal before speaking with counsel should be considered provisional or that she was entitled to a last chance. On the other hand, the Crown argues that the offence was complete and she should be convicted.
Facts
[2] At 2:31 am, Ms. Arutunian was stopped at a RIDE program. Officer Bigger made his first ASD demand at 2:37 am. Upon the initial demand, Ms. Arutunian indicated that she wanted to speak with counsel. Officer Bigger correctly advised her that she was not entitled to speak with counsel at this point and proceeded to demonstrate how the ASD worked and instructed her to provide a sample. Ms. Arutunian was offered several opportunities to provide a sample but failed to do so. The first time Ms. Arutunian attempted to blow the ASD indicated “insufficient volume”, the second time “blow interruption”, which meant Ms. Arutunian stopped blowing. After two unsuitable sample, Officer Bigger cautioned her about the consequences of not blowing into the ASD, namely a criminal charge, and, again, she blew and, again, the message “blow interruption” appeared on the ASD machine. Shortly thereafter Ms. Arutunian, again, provided an insufficient sample. This was the fourth time. Officer Bigger then provided a second demonstration as to how the device worked and, again, she did not provide a sufficient sample. A sixth attempt was made and, again, there was a blow interruption. Finally, on the seventh attempt she outright refused. The first attempt occurred at 2:37 am and the final refusal at 2:42 am.
[3] At 2:42 am, Officer Bigger placed her under arrest and read rights to counsel. She asked to speak to Dennis Morris. After a period of muteness, in response to a question as to whether she wanted to speak to him now, she indicated “yes.” At 2:47 am, her cell phone was retrieved to call Mr. Morris. At 2:55 am, she was allowed privacy to call Mr. Morris and, at 2:58 am, after speaking to her counsel, she indicated that she wanted to blow. Officer Bigger did not acquiesce to her request, he was of the view that she did not provide a sample forthwith and that she was on the point of release.
[4] After being denied the opportunity to blow Ms. Arutunian stated that she was not like other people and called 911 on Officer Bigger. She was released at 3:11 am to an UBER.
Law and Analysis
[5] As stated above, the defence counsel contends that the refusal of Ms. Arutunian was provisional until she spoke to counsel. To support this proposition counsel relies on the summary conviction appeal case of Mandryk [1]. In Mandryk, two police officers stopped the accused's vehicle, they smelled alcohol and noted that the accused had glossy eyes, a red nose and red cheeks. The accused admitted that he had consumed three glasses of wine. The officers made an ASD demand and administered a roadside screening test, which the accused failed. The police then arrested the accused for driving while having a blood alcohol level in excess of .08 and made a breathalyzer demand. Following the breathalyzer demand, a discussion ensued between the arresting officer and the accused. During the conversation the accused, Mandryk, expressed a desire to speak to counsel, then expressed initial uncertainty as to whether he should comply with the demand, and eventually refused to comply. This all took place within a five-minute period, between 4:55 p.m. and 5:00 p.m. As a result, the officers charged the accused with refusing to comply with a demand. He did not attend to the station as they believed they had no authority to take the accused to the station in the circumstances. They released him at the scene of his arrest on a promise to appear. He never spoke with counsel and the police made no attempt to obtain breath samples.
[6] Based on the foregoing Justice Code, the summary conviction appeal judge, found that the refusal was not definitive, but simply an initial indication of his intention along with a request to speak to counsel.
[7] Underpinning this finding are following facts 1) the demand for a breath sample is ongoing and usually repeated at the station 2) there is no forthwith requirement and no good reason to insist on an immediate compliance at the roadside when the accused is under arrest and requested speaking to counsel 3) Mr. Mandryk had a right to counsel and requested to speak to counsel and never waived it 4) It is only at the police station that s. 8 of the Charter is fully engaged because the demand can be executed there 5) the essential elements of the offence charged emerged out of a four minute long "conversation" or "discussion" between the police and the accused. The subject of this discussion was the advisability of attending at the police station for the purpose of providing Intoxilyzer breath samples. According to Justice Code it was the kind of discussion that an arrestee would normally have with counsel. [2]
[8] Unfortunately, counsel’s reliance on Mandryk is misplaced. [3] First, unlike an ASD demand as in our case, there was no forthwith requirement in Mandryk. Second, unlike an ASD demand, where the right to counsel is suspended, the right to counsel is engaged when a breath demand is made. Third, the search, i.e. the breath sample, is taken at the station and not at the roadside and, therefore, there is no valid reason to insist on an answer at the roadside. As Justice Code notes, the breath demand at the roadside is merely informational, which is not the case with ASD.
[9] However, after the end of submissions while deliberating this decision, given that Ms. Arutunian requested a chance to blow into the ASD after she had spoken to counsel, I invited counsel to provide me with further submissions on the issue of “last chance.”
[10] At bar, the initial demand occurred at 2:37 am, the arrest for the refuse occurred at 2:42 am, Ms. Arutunian received her cell phone to speak to counsel at 2:47 am, she spoke to counsel at 2:55 am and then requested to blow again at 2:58 am, 21 minutes after the initial demand.
[11] In Hines [4], a summary conviction appeal case, Justice McCombs found that a conviction, under similar circumstances, was unsafe. The appellant, in that case, was stopped at a ride program at 10:24 p.m. At 10:26 pm a demand was made and at 10:37 pm he was arrested for refusing a roadside breath test. At 10:45 pm, the appellant requested the opportunity to blow again. A total of 19 minutes elapsed from initial demand by the officer and the last chance request by the applicant to blow. In addition to that, the roadside screening device was readily available for testing and the Justice found that it would have been a simple matter for the officer to allow the appellant to take the test.
[12] In Tynkaluk [5], also a roadside breath refusal and a summary conviction appeal, Justice Conant found that despite there being 8 unsuccessful attempts and the accused had been arrested, he should have been given another chance to blow upon request.
[13] Furthermore, the words of Judge Grange are apposite:
what I gather from the cases is that the circumstances of the refusal and assent, the time between them, and perhaps the availability of technician and machine are relevant considerations. S. 235 is drastic legislation interfering with the usual rule against self-incrimination. I do not think it unreasonable for a lay person or indeed anyone unskilled in criminal law at first to react negatively to an invitation to give the police incriminating evidence. I cannot imagine that Parliament intended to make such a refusal followed almost immediately by an assent, criminal. [6]
[14] I also adopt His Honour Judge M.A. Cadsby’s comments in Prentice as they relate to the purpose of the roadside device with an accused's last moment realization that he should provide an appropriate sample:
"The purpose of the roadside screening device is to assist in investigation of drivers who are driving with more alcohol in their blood than the law allows, people who are impaired. That being so, it seems to me that the officer should have accepted the offer of the accused, however motivated it was. I say that not without sympathy for the frustration that he was enduring in connection with this investigation." [7]
[15] Therefore, given the factual similarity to Hines and Tynkaluk, both summary conviction appeal cases, that Officer Bigger was obviously still on scene with the accused and the ASD, I find that the request to blow was sufficiently proximate in time, although at the utmost outer limit, with the refuse to constitute one continuous transaction. [8] Furthermore, I conclude that Ms. Arutunian’s last chance request was genuine. She had spoken with her counsel of choice and promptly thereafter requested a last opportunity to provide a sample into the ASD. Officer Bigger should have accepted the offer of the accused and I say that, echoing Justice Cadsby, not without sympathy for the frustration he was enduring in the investigation. Officer Bigger conducted himself in an exemplary fashion during his interactions with accused and I commend him for putting Ms. Arutunian in contact with counsel as quickly as he did. I acquit Ms. Arutunian.
Signed: Justice M.K. Wendl
Cited Cases: