Court File and Appearances

DATE: November 2, 2022 Information Nos.: 0611-998-21-864-00 0611-999-21-230-00

ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING v. AMRINDER SINGH

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY on November 2, 2022, at ORANGEVILLE, Ontario

APPEARANCES: B. Bujnowski Counsel for the Provincial Crown V. Strugurescu Counsel for Amrinder Singh

Reasons for Judgment

Background

REASONS FOR JUDGMENT – PUGSLEY, J. (ORALLY):

Amrinder Singh is charged with a single Criminal Code count of failing or refusing to provide a breath sample.

On June 7, 2021, Constable Cordina of the Caledon OPP detachment was on patrol when the defendant pulled out from a mall and almost caused a collision with the unmarked police car. The officer followed and noted that the defendant drove onto the shoulder for some time before pulling back onto the paved roadway. He stopped Mr. Singh. Mr. Singh admitted to alcohol consumption. An approved screening device was demanded and the test result was a fail. Mr. Singh was arrested at 12:16 a.m. for the excess alcohol offence, given his right to counsel advice and caution, and the breath demand was read. He indicated he understood all of this information and was fully cooperative with the officer.

They went to the closest available OPP qualified technician at the OPP detachment in Orangeville. Once there, he was placed in touch with duty counsel and spoke to a lawyer with the help of a Punjabi interpreter.

While in the cell waiting for the breath test, Mr. Singh drank some water. The qualified technician, Constable Ledat, has a rule that test subjects cannot drink water before an intoxilyzer test. If they drink water, his rule requires that he has to wait 15 minutes before he conducts the test. Constable Cordina explained Constable Ledat’s rule, as PC Cordina called it, and told the defendant that he could not have any more water. When the officer then saw Mr. Singh again drinking water, they shut off the water to the cell.

Mr. Singh was taken into the breath room, according to Constable Ledat, or in the direction and near to the breath room, according to Constable Cordina, and then made a request to have a Punjabi speaking officer assist with his understanding of what was being said. Constable Ledat stated that he had read the caution and supplementary caution and was about to read the technician’s breath demand when the request was made to have a Punjabi officer contacted. Constable Cordina recalled not really ever getting into the actual breath room. Quite properly, Constable Cordina called for a Punjabi speaking OPP officer to help. Constable Bagri of the Mississauga detachment of the OPP was contacted and by way of speaker phone and translated Constable Cordina’s words to Mr. Singh and Mr. Singh’s replies.

Constable Cordina made the breath demand a second time. Mr. Singh understood the demand but asked to have a sip of water before he gave the breath sample. Officer Cordina explained that one of Constable Ledat’s rules was no water and explained what might happen if Mr. Singh did not give a breath sample. Mr. Singh asked for water and said if he didn’t have the water then he wasn’t going to do the test. Constable Cordina let Constable Bagri hang up and told Constable Ledat that Mr. Singh was not going to do the test and told Mr. Singh he would be charged with refuse sample.

Constable Ledat explained during his evidence that he waited 15 minutes after a drink of water before conducting a breath test to prevent the risk of damage to the instrument if a test subject was sick to their stomach.

Constable Cordina testified that although he is not a qualified technician, he had never experienced that rule in his 11 year career with the OPP. He cannot recall if he gave a last chance warning to the defendant and made no note of that. In his view, the defendant had had more than enough water.

The defendant testified and stated that if they had let him have a sip of water as he had asked, he would have given the sample readily. His mouth was dry and in the past he had had issues with his tonsils. He agreed that he had not identified any medical issues when booked in at the Orangeville detachment. He also agreed that he had experienced the breath test process before. He denied stalling for time or drinking water to try and dilute the alcohol. He told Constable Cordina at the roadside that he was going to blow under the legal limit. The defendant submitted that his failure to provide a sample was equivocal and that he was never given the last chance warning. All he wanted to do was have a drink of water and then he would provide the sample.

The Crown submits that the defendant well knew the jeopardy he was in and was using the water as a pretext to stall the breath test. He has a prior record and may have immigration consequences if convicted today. The Crown submits that this makes his evidence less credible. The Crown submitted in the end that the officers gave the defendant ample opportunities to provide a sample and that the charge was made out beyond a reasonable doubt.

The reason why Parliament passed legislation involving a refuse or failure to provide a breath test is obvious. If the breath test process could be avoided by non-cooperation on the part of the suspect without legal consequences, the drink drive process would be defeated. Instead, the charge was created and the minimum penalties are now higher than that of the minimums on a low 80 or over conviction.

Analysis

The issue, as always, is in two parts. Has the Crown proven the failure or refusal to provide the breath sample, and second, did the suspect have the necessary mens rea element for a fail or refuse? To be successfully convicted, the Crown must prove, beyond a reasonable doubt, that the failure or refusal was intentional on the part of the defendant. Each case turns on the facts of that case.

In the summary conviction case of R. v. Mary Irene Grant 2014 ONSC 1479, a case which continues to be cited today, Justice Durno explained at paragraph 82 the types of circumstances that assists a trial court’s analysis of the evidence in a refuse case. Rather than reading the exact words of His Honour, I paraphrase: First, the words or actions of a suspect from which the officer concluded that the suspect refused to provide the suitable sample. Second, the number of opportunities the police gave the suspect. Third, the instructions provided to the suspect including how to give a sample, the applicable law, and that they were being given one last chance to provide a sample. Fourth, the suspect’s state of intoxication and attitude. Fifth, the availability of the technician and intoxilyzer. And sixth, whether after telling the suspect that they will now be charged with a fail or refuse offence, whether the suspect offered a sample and how much time has passed, and whether other offers had been made by the suspect but not followed through on. If a sample was offered by the suspect after he was told that he was going to be charged, the Court will need to decide if the offer was bona fide and if the offer was still part of the same refusal transaction.

Interestingly in Grant at the trial, as part of the repeated opportunities given to Ms. Grant to provide a sample, the qualified technician gave the defendant a drink of water, as she requested, before one of the attempted samples.

While in over 20 years of conducting drink drive trials I have not experienced a rule such as that of Constable Ledat, no drink of water within 15 minutes, I recognize that there is some latitude offered to a qualified technician in determining what makes a sample suitable within his or her opinion. The trouble I find here is that this rule appears to be Constable Ledat’s own rule, at least in Constable Cordina’s experience, and that the rule seems to be sourced in a belief that sometimes a test subject might be sick, and if they were sick, maybe that would damage the instrument.

Here there was no sign that the defendant was going to be ill nor any link demonstrated to this rule in the officer’s training or experience. This issue was the immediate cause of the failure to collect a sample from Mr. Singh.

As Constable Cordina said, although he had never experienced a rule such as this, it was Constable Ledat’s rule and he was going to enforce it up to and including turning off the water in the cell to prevent the defendant from taking a drink of water. This decision helped turn a gentlemanly and cooperative Mr. Singh into a stubborn Mr. Singh and for no reason that is apparent to me.

As in Grant, I have observed drinks of water on breath room video many times as a sitting judge without this seeming to be an issue or even being commented on.

In any event, in the present case, it was a precipitating factor in the subsequent failure to take a sample from the defendant.

The actus reus of the offence is shown by the failure to provide a sample and/or by the fact that the defendant was not taken from the cell.

The mens rea issue is the problem. First, although the breath room was available and was audio and video recorded, the exchanges between the defendant and Constable Cordina, assisted by Officer Bagry, was conducted in the cell which is not recorded in any way. Second, there was no evidence that anyone told Mr. Singh, ‘Okay, we’re taking you to the breath room to continue this discussion on video and audio’. Three, what he would have done if that was demanded of him.

With respect, a detainee’s ability to refuse direction while in custody is limited.

Further, I agree that the defendant’s refusal was not unequivocal. While a test subject cannot dictate the terms under which he will comply with a breath demand, there has to be some context in the nature of the condition the detainee is seeking to have fulfilled before he blows. Here it was to have a drink of water. An outwardly innocuous request, with or without a 15 minute rule. Had the request been granted and then after 15 minutes been requested again, the officers would have been on stronger ground to argue a deliberate attempt to obstruct the taking of the breath sample. There was no hurry here. Instead, the sip of water, and I use the word “sip” because that is what Officer Bagry spoke of, became a tug of war between the officer in charge who believed that he had to force compliance with the qualified technician’s rule, and the defendant who said he wanted just a drink of water. Constable Cordina did not budge and neither did the defendant, but again, this was not a case of ‘I won’t give a sample’, it was ‘I’ll give a sample if you give me a sip of water’.

Considering the factors outlined by Justice Durno in Grant, in my view, the Crown has failed to prove the mens rea element here to the necessary criminal standard. Specifically, Constable Cordina rushed to conclude that Mr. Singh was refusing and escalated a simple test process into this criminal charge. He did not testify as to any offer of a last chance nor at any time was the intoxilyzer presented to the defendant on camera with a request to provide a sample and with Mr. Singh’s response then being recorded and available to the Court.

Mr. Singh testified that he would have done the test if he had had a drink of water. The police refused this and went as far as to turn off the water to the cell. From then, the officers concluded that he was being obstructive and they moved to conclude, very quickly, that there had been a refusal. They should have given him the drink and let Mr. Singh blow.

Conclusion

In the end, I have a doubt on proof of the mens rea here and the charge is dismissed.

Electronic Certificate of Transcript

FORM 3 Electronic Certificate of Transcript (Subsection 5(2)) Evidence Act

I, Susan Darch-Stevens, certify that this document is a true and accurate transcript of the recording of R. v. Amrinder Singh in the Ontario Court of Justice, held at 10 Louisa Street, Orangeville, Ontario, taken from Recording Number 0611_102_20221102_090744__6_PUGSLEB.dcr, which has been certified in Form 1.

April 17, 2023 (Date) (Electronic signature of authorized person)

3592683195 (Authorized Court Transcriptionist’s Identification Number)

Ontario (Province of Signing)

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate