ONTARIO COURT OF JUSTICE DATE: 2022·10·14 NEWMARKET

BETWEEN:

HIS MAJESTY THE KING

— AND —

HOPETON CHISHOLM

JUDGMENT

Evidence and Submissions Heard: October 5, 2022. Delivered: October 14, 2022.

Mr. Jeremy Mutton ................................................................................. counsel for the Crown Mr. Douglas Lent .............................................................................. counsel for the defendant

KENKEL J.:

[1] Mr. Chisholm was found asleep in the driver’s seat of his vehicle which was stopped in a right turn lane. He woke when police tapped on the window. The officer noted that Mr. Chisholm had red, watery eyes and his speech appeared to be slow or slurred. Both the officer and Mr. Chisholm were wearing COVID masks so the officer couldn’t determine whether there was any odour of alcohol. There were no other indicia of intoxication. After asking questions about drug consumption or other explanation for sleeping in a live lane of traffic, the officer decided to make an Approved Screening Device (ASD) demand to “eliminate the alcohol suspicion”.

[2] The Crown and defence disagree as to whether the officer had the required reasonable suspicion for the ASD demand and whether it was objectively reasonable. However, since the officer had an ASD in his possession, the Crown notes that a reasonable suspicion was not required – s 320.27(2) of the Criminal Code. I disagree with the defence submission that a mandatory alcohol screening demand must be made immediately upon stop or arrival. In this case the officer was entitled to investigate briefly to determine the reason the driver was in the lane. That’s to the driver’s benefit as there may be explanations other than impairment that render an ASD test unnecessary. This demand was within the “forthwith window”.

[3] The officer administering the test testified that Mr. Chisholm failed to provide a suitable sample 5 times. He was given one last opportunity. He failed to provide a suitable sample and was arrested. Mr. Chisholm testified that he did his best to provide the samples as directed.

[4] The Crown and defence disagree about the mens rea standard to be applied to the s 320.15 refuse/failure offence of the Criminal Code, but this case does not turn on that issue. For the purpose of this analysis, I will follow the approach submitted by the Crown as explained in R v Arudselvam, 2022 ONCJ 445.

[5] The central issue for decision is whether the Crown has proved the alleged failure to provide a suitable sample beyond a reasonable doubt. Considering the evidence as a whole, I find that a reasonable doubt remains.

[6] The officer administering the ASD tests fully explained the procedure and provided two self-test examples. His description of the test results was very brief. He testified that the accused blew into the device on the first attempt, but the blow registered a red light showing insufficient volume. He then said that the accused blew into the device 5 times with a similar result. On the 6th attempt the accused “failed again” and was charged. The accused was arrested and then released at the scene as it was a “straight refuse”.

[7] The ICC video was played which showed that an approved screening device was used and showed the wording of the ASD demand which had not been mentioned to that point. Otherwise, the Crown did not ask the officer many questions about the operation of the ASD, the significance if any of the tones that can be heard during the testing sequences and the specific results of each test.

[8] In cross-examination it was established that the device makes a “beeping” noise when air enters the device. The officer described the error message for the first test would have been “blow interruption”. His notes say “insufficient sample” which he agreed was a different ASD result. He said that he’d made a mistake writing that in his notes. His note that recorded all of the tests as “insufficient sample” was also mistaken. Cross-examination of another officer who arrested Mr. Chisholm showed that he did not see the result of the final ASD test before he placed Mr. Chisholm under arrest.

[9] The Crown did not elicit the details of each failed test and the reason for each failure. Part of the answer may lie in the video evidence including the tones heard during the test sequences, but the Crown did not ask the officer to explain the tones and timing of “beeps” or tones. It’s not for the court to engage in an analysis of individual tests without the benefit of witness testimony that has been tested in cross-examination. There is a particular concern with the last test which seemed to be longer than the prior attempts but was followed very quickly by arrest.

[10] The officer who administered the test was right to provide multiple opportunities to Mr. Chisholm with patient instructions throughout. Unfortunately, the details of each test result were not accurately recorded nor were they sufficiently explained at trial. In that context, while I find I cannot accept Mr. Chisholm’s evidence that he was trying to provide a sample on each attempt, I find his evidence in combination with the other evidence leaves a reasonable doubt.

[11] I find the Crown has failed to prove the charge alleged beyond a reasonable doubt. The charge is dismissed.

Delivered: October 14, 2022. Justice Joseph F. Kenkel