ONTARIO COURT OF JUSTICE DATE: 2023 06 19 COURT FILE No.: 998 22 40001158 Metro North – Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Luc-Alexandre DOYON-VACHON
Before Justice Cidalia C. G. Faria Heard on May 19, 2023 Reasons for Judgment released on June 19, 2023
Andrew Weafer................................................................................... counsel for the Crown Bruce Daley……………counsel for the defendant Luc-Alexandre DOYON-VACHON
Faria J.:
I. Overview
[1] Mr. Luc-Alexandre Doyon-Vachon was charged with failing to provide a suitable sample of his breath into an Approved Screening Device (ASD) on December 24, 2021, contrary to s. 320.15 (1) of the Criminal Code.
[2] The Defendant conceded jurisdiction, date, and identity. There is no dispute that a proper demand was made and there was a failure to provide a breath sample. No reasonable excuse was raised.
[3] The Crown called the arresting officer and filed the video of his Body Worn Camera (BWC) recording of their interaction.
[4] Mr. Doyon-Vachon testified in his own defence.
II. Issue
[5] There are only two issues to be decided:
i. Has the Crown proven the ASD was in proper working order? ii. Has the Crown proven beyond a reasonable doubt Mr. Doyon-Vachon had the intention to fail to provide a breath sample thereby refusing to do so?
[6] The Crown submitted it has met its onus, specifically, that the ASD was in proper working order as it provided proper results when the arresting officer tested the device, and that after numerous attempts, the only reasonable conclusion is that Mr. Doyon-Vachon was feigning his efforts and intentionally refusing to comply with the demand.
[7] The Defence submitted the ASD may not have been in working order, and that in any event, the court should accept Mr. Doyon-Vachon’s evidence that he made numerous attempts to provide a breath sample and had no intention of failing to provide such sample.
III. Evidence
[8] Officer Wald Trias testified that on December 24, 2021, at about 6:00 p.m. he was conducting a RIDE program for the Toronto Police Service (TPS), making Mandatory Alcohol Screening (MAS) demands of drivers in the area of Wilson and Bathurst streets in Toronto. He stopped Mr. Doyon-Vachon for such a demand and was wearing a Body Worn Camera (BWC) which recorded their interaction.
[9] The BWC video was played and filed as an Exhibit. Over a period of 20 minutes the video showed:
- Mr. Doyon-Vachon followed the directions of Officer Trias to stop and exit his vehicle.
- Officer Trias made the ASD demand and cautioned Mr. Doyon-Vachon that if he did not provide a suitable sample he could be arrested.
- Officer Trias demonstrated the procedure. He opened an ASD straw from a package, inserted it into the ASD, said “you have to wrap your lips around the straw”, he took a deep breath, and blew into the device. The ASD registered a “zero” for 0 Blood Alcohol Concentration.
- Mr. Doyon-Vachon is then seen on camera making at least 28 attempts to blow into the ASD device, but never provided a suitable sample.
- Mr. Doyon-Vachon was told: i. At least 4 times that he must wrap his lips around the straw. ii. At least 9 times that he was not blowing into the device. iii. At least 3 times that the officer could hear no air going into the device. iv. At least 3 times that if he did not provide a suitable sample he would be arrested. On the 4 th caution he was told he would be provided 3 more chances. v. Twice Mr. Doyon-Vachon blew into the ASD, and a tone was heard, but he stopped too soon. The officer both told and demonstrated what Mr. Doyon-Vachon had done incorrectly.
- Officer Trias also: i. Demonstrated the procedure with the ASD to Mr. Doyon-Vachon 2 more times. Each time he provided a suitable sample, and the ASD registered a zero. ii. Demonstrated how to blow into the straw when it was not inserted into the ASD. iii. Provided Mr. Doyon-Vachon with a new straw at least 4 times. iv. Permitted Mr. Doyon-Vachon to hold the device himself.
- A second officer on scene unwrapped a new straw, blew into it unattached to the ASD, and asked Mr. Doyon-Vachon if he could hear the air blowing through the straw. Mr. Doyon-Vachon said he did. Another straw was provided to Mr. Doyon-Vachon, he blew through the straw and air was heard blowing through the straw. The officer said he could feel the air go through. The officer instructed Mr. Doyon-Vachon to put that same straw into the ASD and blow the same way. Mr. Doyon-Vachon attempted again. There was no tone.
- Officer Trias then arrested Mr. Doyon-Vachon for refusing to provide a suitable sample of his breath into the ASD.
[10] Officer Trias testified the ASD was calibrated two days before. He tested the ASD that day at the station that day, and it was in proper working order. He also tested it during the first demonstration of the process to Mr. Doyon-Vachon at the time of the demand. It was in proper working order. It was also in proper working order during the subsequent demonstrations.
[11] Officer Trias also testified Mr. Doyon-Vachon was co-operative and polite throughout, he observed no signs of impairment and though he noticed a smell of alcohol, it was “slight to less than slight”.
[12] When asked by the Crown what he thought Mr. Doyon-Vachon was doing incorrectly, Officer Trias testified “air was escaping around the plastic tube” of the device when Mr. Doyon-Vachon put his lips to the tube and blew into the ASD.
[13] In cross-examination Officer Trias agreed:
- He could not recall if he told Mr. Doyon-Vachon that air was escaping out of the sides of his lips when he was blowing into the device.
- Mr. Doyon-Vachon seemed perplexed as to what was happening.
- It was possible Mr. Doyon-Vachon was doing his best and air was still escaping.
[14] Mr. Doyon-Vachon testified that at the time of the event, he was a working during the pandemic for Door Dash, a food delivery service, 12 hours a day, 7 days a week. He was using hand sanitizer and wipes extra diligently as he was going into different high rise residential buildings, was in the process of fertility treatments and needed to avoid COVID. In addition, he testified he lives with three medical issues that require he not drink alcohol. Which was all to say he was not drinking that day, and any slight smell of alcohol would be from the hand sanitizer he was using.
[15] In addition, Mr. Doyon-Vachon testified the officer was courteous, patient, and polite with him.
[16] Mr. Doyon-Vachon testified he did not know why he was unable to provide a suitable sample into the ASD as he tried his best to do so. He said he was nervous, and believed he was following the instructions to take a deep breath, put his lips around the tube and blow into the device. He agreed the officer explained it many times, both the arresting officer and the supervisor present showed him how to provide the sample.
[17] He disagreed that he was intentionally pretending to blow air and was not.
IV. Legal Principles
[18] In this case, as in every criminal case, Mr. Doyon-Vachon is presumed innocent unless and until the Crown has proven every element of the offence beyond a reasonable doubt. The burden of proof rests with the prosecution throughout the trial. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It lies far closer to absolute certainty than to a balance of probabilities. However, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty [1].
[19] The mandatory alcohol screening section of the Criminal Code, s. 320.15(1) does not require the suspicion of alcohol consumption, indicia of alcohol consumption, or grounds to believe there has been alcohol consumption.
[20] Regarding the mens rea of the offence, one of the disputed issues, some courts have held that the refusal must be proven to be intentional such as in Lewko [2] and others that the knowledge of the prohibited act, failure to provide a sample is sufficient such as in Porter [3].
[21] Slater [4], a more recent case, states at paragraphs 12 to 14:
The decision in Sullivan is consistent with what I say is the proper reading of both Lewko and Porter and, that is, that, 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.
Cases in the Ontario Court of Justice, subsequent to Porter, that find a conflict between Porter and Lewko, or a “deep disagreement”, do not, in my view, give a fair and harmonious reading to both decisions. The decision in Lewko does not go so far as to hold that the Crown must lead evidence of an accused’s actual intention to refuse to give a sample – a task that would be impossible since no one can crawl inside another person’s mind to find actual intent. As I have already pointed out, in Lewko, the court relied on an inference arising from the circumstances of the case to conclude that the requisite intention had been proven.
In the same vein, the decision in Porter does not say that mere proof of a failure satisfies the mens rea requirement of the offence for all purposes. Rather, it finds that the failure to provide a sample, after multiple attempts, will satisfy the mens rea requirement, because of the natural inference that arises from those facts, absent any other explanation arising in the context of the evidence as a whole. Indeed, in Porter, Code J. upheld the trial judge’s conclusion that the extraneous circumstances relied upon by the accused did not rebut that natural inference or raise a reasonable doubt respecting it. (Emphasis added)
[22] In the context of this two-witness case, the principles articulated by the Supreme Court of Canada in W.D. [5] apply:
- If I accept the evidence of the defendant which is inconsistent with guilt, I must acquit.
- Even if I do not accept the evidence of the defendant, but it leaves me with a reasonable doubt, I must acquit.
- Even if I do not accept the evidence of the defendant, and it does not raise a reasonable doubt, on the totality of the evidence I accept, if I have a reasonable doubt, I must acquit.
[23] To assess each witness’ testimony, I must consider the credibility and reliability of the account provided. Credibility and reliability are distinguished from each other. Credibility relates to a witness’ sincerity, whether she/he/they is speaking the truth as she/he/they believe it to be. Reliability relates to the accuracy of the testimony. To determine accuracy, the witness’ ability to observe, recall and recount is assessed. A credible witness may give unreliable evidence [6]. As a result, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.
V. Analysis
Proper working order of the ASD
[24] Regarding the first disputed issue, the officer’s evidence is clear: he tested the device at the station before the start of his shift, he tested it before he provided it to Mr. Doyon-Vachon to use, and when he demonstrated its use during his interaction with Mr. Doyon-Vachon on two more occasions, in all four instances the ASD was in proper working order and produced the zero blood alcohol reading result as expected. Three of these demonstrations are seen on video. The tubes inserted into the ASD were demonstrated to have no obstructions on video.
[25] I find the ASD was in proper working order.
Mens Rea
[26] Mr. Doyon-Vachon made 8 attempts with the first straw he was given, and with a 2 nd fresh straw, made 3 more attempts. On his next attempt (or 12 th overall attempt) he blew into the device and created a tone. But after being told to repeat that effort and blow continuously, he did not. Mr. Doyon-Vachon made 8 more attempts and blew no air into the ASD. He was then given a 3 rd straw. He made 6 more attempts with no air going into the ASD, no tone was emitted, and no suitable sample obtained.
[27] Mr. Doyon-Vachon knew how to blow air into the ASD, he did it twice. But not for long enough.
[28] When the second officer demonstrated how to blow into the straw so that air could be heard go through the straw that was not attached to the ASD, Mr. Doyon-Vachon agreed he heard the air go through the straw. When he was given the 4 th straw, unattached to the ASD and asked to blow through it, he did so properly. Both he and the officer could “hear and feel” the air go through the straw.
[29] Mr. Doyon-Vachon knew how to blow air through the straw.
[30] Mr. Doyon-Vachon was then instructed to put this same straw into the ASD. He did so. He was instructed to blow into the straw now inserted into the device in the same manner he had done when the straw was not inserted in the ASD. He put the straw to his mouth. The device was silent.
[31] Mr. Doyon-Vachon knew how to blow into the straw that was inserted into the ASD. He just did not do so.
[32] Mr. Doyon-Vachon can be seen with his lips not wrapped around the straw inserted in the ASD. He took deep breaths and did not release air into the ASD. His diaphragm did not move, his shoulders did not move, his cheeks remained full of the air he made a demonstration of inhaling.
[33] Although Mr. Doyon-Vachon was indeed polite and co-operative throughout, although he repeatedly said he wanted to provide a sample, his actions demonstrated otherwise.
[34] Both Mr. Doyon-Vachon’s two interrupted attempts, and his final two attempts after having blown correctly through the straw demonstrate Mr. Doyon-Vachon could and did know how to blow properly into the ASD and did know how to provide a suitable sample. But he purposely did not do so.
[35] I accept Officer Trias’ evidence that Mr. Doyon-Vachon was not blowing into the device, even after having been told to, shown how to, and told what he was doing incorrectly.
[36] I do not accept Mr. Doyon-Vachon’s evidence that he did not know why he was unable to provide a suitable sample.
[37] His evidence also did not raise a reasonable doubt as to his ability and intention to provide a suitable sample.
[38] I find that Mr. Doyon-Vachon who tried at least 28 times to provide a breath sample, and in each instance failed to do so, intended that result. He repeatedly did not blow into the ASD and the predictable consequences were repeated – a failure to provide a suitable sample. The numerous efforts to address his questions, provide him with demonstrations and numerous cautions all led to his same failed efforts.
[39] On the totality of the evidence, the inescapable inference is that Mr. Doyon-Vachon intended not to provide a suitable sample of his breath.
VI. Conclusion
[40] Mr. Doyon-Vachon, I find you guilty of refusing to provide a suitable sample of your breath into an Approved Screening Device on December 24, 2021.
Released: June 19, 2023 Signed: Justice Cidalia C. G. Faria