ONTARIO COURT OF JUSTICE DATE: 2023 08 25

COURT FILE No. Central East – Newmarket INFORMATION No. 4911 998 22 91102512-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

PHILIP ZIVKOVIC

Before: Justice M. Townsend

Heard on: August 18, 2023 Reasons for Judgment released on: August 25, 2023

Counsel: Z. Sethna, counsel for the Crown P. Metzler, counsel for the defendant Philip Zivkovic

TOWNSEND J.:

Introduction

[1] I would first like to thank Mr. Metzler on behalf of Mr. Zivkovic, and Ms. Sethna on behalf of the Crown for their excellent, well reasoned and very helpful submissions.

[2] Mr. Philip Zivkovic stands charged on a single count Information as follows: “Philip Zivkovic stands charged that he on or about the 20th day of March in the year 2022, in the city of Richmond Hill and the Regional Municipality of York, did, knowing that a demand had been made, fail or refuse to comply with a demand made by a peace officer under section 320.27 or section 320.28 of the Criminal Code, contrary to s 320.15 (1) of the Criminal Code.”

[3] The Crown elected to proceed summarily, and Mr. Zivkovic plead not guilty.

Evidence at Trial

[4] On March 20, 2022, officers with the York Regional Police Service received a call from a concerned citizen that there was a possibly impaired driver asleep at the wheel of his motor vehicle in a live lane of traffic in the area of Highway 7 East and Commerce Valley Drive. This call came in around 6:48 am.

[5] The concerned citizen relayed to police that the vehicle involved was a black BMW motor vehicle bearing licence plate CECT 116. The caller reported that the driver appeared to be asleep at the wheel, in a live lane of traffic, and the vehicle was in drive. The caller knocked on the window, tried to wake the driver with little success. The driver eventually woke up and drove off. At 6:48 the driver was last seen in the area of Highway 7 East and Valleymede Drive.

[6] P.C. Eric Suh testified that he heard the call come in over the radio and began driving to the location of the call. While enroute he noticed a vehicle matching the description parked in a nearby Shell gas station. The vehicle matched the description provided by the caller, in that it was a black BMW and had a licence plate of CECT 116.

[7] P.C. Suh arrived at 6:51 am.

[8] As he arrived, P.C. Suh could see that the driver’s door to the motor vehicle was in the process of being closed, and that there was a puddle by the driver’s door with a “yellowish hue” to it. The vehicle was parked not in a designated spot but diagonally.

[9] There is no issue at trial that the accused operating the BMW motor vehicle was Mr. Zivkovic.

[10] P.C. Suh testified that he approached the vehicle and spoke to Mr. Zivkovic. Mr. Zivkovic immediately indicated to the officer that he was recently diagnosed with COVID but that he was past his period of quarantine. P.C. Suh noted that the vehicle was running at the time that he came upon Mr. Zivkovic and that he asked the accused to turn the vehicle off. Mr. Zivkovic was the sole occupant of the motor vehicle.

[11] P.C. Suh testified that he told Mr. Zivkovic why he was stopped, in that there was a report from a concerned citizen that he was asleep at the wheel in a live lane of traffic and that he was possibly an impaired driver.

[12] Given his recent COVID diagnosis Mr. Zivkovic asked to get a mask, and P.C. Suh watched as Mr. Zivkovic went to the trunk of the car to get his mask. P.C. Suh testified that he observed Mr. Zivkovic stumble as he walked back to the trunk.

[13] As other officers arrived on scene, there is further conversation between Mr. Zivkovic and P.C. Suh. The in-car camera (ICC) of P.C. Suh was played and was entered as an exhibit on the trial.

[14] When confronted on the ICC with the allegation that he was sleeping in his car, Mr. Zivkovic appears shocked, and states “I was not sleeping anywhere sir.” In cross-examination, Mr. Zivkovic later admitted to the Crown Attorney that it is possible he momentarily fell asleep at the wheel, but that it would have been because of him still getting over COVID. Mr. Zivkovic testified that to the best of his recollection he at no time fell asleep.

[15] Mr. Zivkovic told police that the reason he puked is, “I was bloated, I was puking because I’m sick from COVID so I was bloated. That is all. That is quite literally all. I’m coming from my house 20 Prince Edward Blvd.”.

[16] Mr. Zivkovic makes it clear to the police a couple of times by this point that he has had nothing to drink.

[17] P.C. Suh then spoke to P.C. Jeffrey Wenzel who was also on scene. P.C. Suh indicated that his suspicion that Mr. Zivkovic was operating his motor vehicle with alcohol in his body was based on the call relating to him sleeping at the wheel in a live lane of traffic, leaving the scene after someone tried to wake him up, the puddle of vomit (although he acknowledged that it could be from either alcohol or COVID), the slight stumble when Mr. Zivkovic went back to get his mask, and slight stuttering in his first interaction.

[18] As P.C. Suh was discussing this with P.C. Wenzel, Mr. Zivkovic was speaking with another officer on scene, P.C. Samuel. While off to the side, P.C. Samuel mentioned the following to Mr. Zivkovic: “I don’t know if they have told you, you are not under arrest but you are being investigatively detained. Right. If you need to call a lawyer or anything you have the obligation to do that. You are free to do that. You don’t have to tell us anything. Like you said, trying to investigate and figure out why the report we got.”

[19] In his testimony P.C. Samuel stated that he meant this in relation to Mr. Zivkovic being investigatively detained, and not in relation to his ability to contact a lawyer prior to the ASD.

[20] When back speaking with P.C. Suh and P.C. Wenzel, Mr. Zivkovic challenged them a number of times on their grounds for stopping him. Mr. Zivkovic challenged the fact that the officers at no time saw him driving, and they at no time saw him allegedly sleeping behind the wheel.

[21] At 6:58am P.C. Wenzel read the ASD screening demand to Mr. Zivkovic directly from his notebook. In response to the demand Mr. Zivkovic continued to challenge the officers on their grounds for the demand.

[22] Eventually the following exchange took place:

P.C. Suh : So that’s the demand. We are not asking you; we are demanding you. So you either provide it or not we’re not arguing here okay.

Mr. Zivkovic : I’m willfully denying that because I have not …

P.C. Wenzel : So, if you deny, you will be charged criminally with failing to provide a sample which has more severe penalties than if you provided a fail.

Mr. Zivkovic : But I haven't done anything wrong sir. What have I done wrong? Please explain to me.

P.C. Wenzel : We are doing our due diligence to make sure you haven't consumed any alcohol.

Mr. Zivkovic : Sir, I haven’t … Sir, I live down the street. Can I please provide you guys my COVID test that’s all?

P.C. Suh : No so Philip. You asked us to explain so let me explain this to you okay. So we believe right now that you may have had something to drink. Okay. So like my partner said, we are doing our due diligence to make sure you haven't had which is the best way to do that is this, an approved screening device it tells us whether or not you have any alcohol in your blood.

Mr. Zivkovic : Okay

[23] Mr. Zivkovic then proceeds to inquire of the officers numerous times whether or not he is able to speak to his lawyer prior to providing the sample. Both Officers Suh and Wenzel indicate to him that there is no opportunity to speak to a lawyer prior to the sample. They explain to him that this is a screening test, and that caselaw as they understand it does not allow for an opportunity to speak to a lawyer at this point in their investigation.

[24] In his testimony before this Court, Mr. Zivkovic indicated that he was confused as to whether or not he would be able to speak to a lawyer, primarily because in any of his prior interactions with the police he had been permitted to speak to a lawyer, and perhaps more importantly, P.C. Samuel had just told him that he would be permitted to speak to counsel.

[25] Mr. Zivkovic then shifts his focus to the consequences of not providing a sample with the following exchange:

P.C. Suh : I understand Philip. I'm being honest with you as well. So we don't have to sit here and argue like this. So right now, it's whether or you're providing or not. It's a yes or no. Do you understand what my partner read to you?

Mr. Zivkovic : I don't understand. You just said there are severe consequences.

P.C. Suh : So do you want us to read that to you again?

Mr. Zivkovic : I would like to understand my consequences.

P.C. Wenzel : Do you understand the breath demand. The fact that we are making a demand that you provide a sample of your breath. Do you understand that?

Mr. Zivkovic : But I don't understand in what context. That's my only issue here. Is that I'm here talking to you like a coherent individual as someone who lives right down the street. As someone who is genuinely been in his bed sick from COVID. This puke right over there is sick from COVID. My only issue is, so this is my only issue. Is that I've had one vaccine and I feel like I've been backed into the corner to get my second vaccine based on my health.

P.C. Suh : Okay. That has nothing to do with it right now. So will you provide or not?

Mr. Zivkovic : No no no but it does though.

P.C. Suh : Philip, so what you're doing right now shows me that you may have had something to drink cause you're not comprehending the simple questions. I'm saying it's a yes or no. Are you going to provide yes or no?

Mr. Zivkovic : I know my answer. Your questions was I don't understand the consequences. That was my question.

[26] In the conversation with the officers there is then further back and forth from Mr. Zivkovic about speaking to a lawyer, and what the consequences of non-compliance are. That prompts P.C. Suh to indicate that “Refusing to provide a breath sample has the same consequences as you being charged with impaired driving.” And P.C. Wenzel chimes in that “It actually has higher potential fines. Higher potential fines.”

[27] P.C. Suh testified that throughout the conversation with Mr. Zivkovic, it seemed as though Mr. Zivkovic was “stuck in a loop” regarding speaking to his lawyer and needing to know the consequences of non-compliance. The following exchange then takes place:

P.C. Suh : So again, Philip, I'm going to ask you ... l'm going to be a good guy. I'm going to ask you three more times. Okay. If you can't give me a straight answer and you've already told me you're willfully denying to provide one. Okay we'll go with what you're saying. Are you going to provide a sample of your breath?

Mr. Zivkovic : I'm just asking can I speak to my lawyer?

P.C. Suh: So that's one chance. We told you no. So, my answer to you is no. Are you going to provide a sample of your breath?

Mr. Zivkovic : Sir I'm not trying to be confrontational with you. I have no problems providing a breath I'm just asking you please.

P.C. Suh : It's a yes or no.

Mr. Zivkovic : Sir why am I being forced to do something I don't want to do.

P.C. Suh : So we've explained it ...

Mr. Zivkovic : I've been forced all my life to do things I don't want to do.

P.C. Suh : We're not going to go into ...

Mr. Zivkovic : Why am I being forced …

[28] Mr. Zivkovic asks again about the consequences, indicating that the officers have yet to tell him, which prompts P.C. Wenzel to state the following:

“I'm going to explain to you the consequences okay. If you provide a sample of your breath and it provides a fail, you will be arrested, brought back to the station and provided the opportunity to provide another breath sample, if you fail that one you'll be charged with impaired operation 80 plus. It's a criminal offence. If you pass you get back in your car and go home. If you refuse, you'll be charged with refusal to provide a breath sample which is a criminal code offence that carries similar consequences to failing and being charged with 80 plus but it has even higher fines attached to it. … Yeah, and your licence gets suspended and your vehicle gets impounded.”

[29] P.C. Suh and P.C. Wenzel testified that the “loop” continued for Mr. Zivkovic specifically with respect to his request to speak to a lawyer, and his request for explanation of the consequences.

[30] On the ICC Mr. Zivkovic is clearly upset. He testified that he suffers from anxiety, and he was at the beginning of what appeared to be a potential panic attack. Mr. Zivkovic at times appeared to be crying, he was clearly agitated, and at one point appeared to almost stumble over a curb because of his state. Mr. Zivkovic attributed this to the anxiety of being surrounded by three police officers.

[31] P.C. Suh demonstrates to Mr. Zivkovic how to provide a sample.

[32] This again, at about the 20-minute mark into the stop, prompts Mr. Zivkovic to ask about the repercussions:

Mr. Zivkovic : I want to know what the actual repercussions of me denying?

P.C. Suh : So we've explained it to you, I think you understand. You're going to form a complete seal and breath until the beep stops okay.

Mr. Zivkovic : Can you tell me what the repercussions are?

P.C. Wenzel : Repercussions are you will be charged with a criminal offence.

Mr. Zivkovic : That's it.

P.C. Wenzel : You will be charged with a criminal offence.

Mr. Zivkovic : Okay what does that entail?

P.C. Wenzel : That entails you going to Court and talking to a judge.

Mr. Zivkovic : I have no problem with that so I refuse.

P.C. Wenzel : You refuse?

P.C. Suh : Awesome

Mr. Zivkovic : It is entails talking to a judge …

P.C. Wenzel : You’re Under arrest for Refuse.

Mr. Zivkovic : Wait, buy you didn't tell me I was under arrest. You guys didn't tell me ... Okay, so I'll do the breathalyzer then.

P.C. Wenzel : No

Mr. Zivkovic : You didn't tell me I was under arrest for refusing. You guys didn't tell me I was under arrest for refusing guys. I will do the breathalyzer. I will do the breathalyser. Why are you guys doing this? I will do the breathalyzer guys. I will do the breathalyzer.

[33] It is clear that the demeanour of Mr. Zivkovic changes as soon as he is placed under arrest for the offence before the Court.

[34] Mr. Zivkovic yelled a number of times to the officers present his willingness and desire at this time to provide a sample. In his examination-in-chief Mr. Zivkovic indicated that the request was a genuine request to provide a sample at that time.

[35] In cross-examination, Mr. Zivkovic admitted to the Crown that he heard the demands made of him by the officers to provide a breath sample, and that he understood that they were demanding that he provide the sample. Mr. Zivkovic maintained however that it was the context surrounding the demand that was more important to him.

[36] Officers Suh, Wenzel and Samuels all testified that at the point when Mr. Zivkovic was arrested, the ASD was still on scene and could have been used had the officers given another opportunity.

Position of the Parties

[37] Ms. Sethna on behalf of the Crown takes the position that Mr. Zivkovic at all times was aware of the demand, he understood the demand, and knowing the demand had been made wilfully refused to provide a sample. Ms. Sethna states that Mr. Zivkovic was intentionally thwarting the officers’ demand by continually asking questions relating to speaking to his lawyer, the consequences, and delaying the process.

[38] Mr. Metzler on behalf of Mr. Zivkovic states that in determining whether or not Mr. Zivkovic understood that a demand was being made of him, context is important. Mr. Zivkovic had just been told by one officer that he could speak to a lawyer and was then told by the officers that he couldn’t. As well, being told that he could “go speak to a judge” led Mr. Zivkovic to believe that in his mind the consequences were akin to a speeding ticket, and he was unaware of the true consequences. The fact of the drastic demeanour change in Mr. Zivkovic, says Mr. Metzler, is evidence of his lack of understanding.

[39] Finally, Mr. Metzler takes the position that the entire interaction between Mr. Zivkovic and the police is all one transaction, and Mr. Zivkovic’s subsequent willingness to provide a sample should have been granted, and therefore his final refusal should be disregarded based on its equivocal nature.

Relevant Legal Principles

[40] The burden of proof in a criminal trial always rests with the Crown. The burden is proof beyond a reasonable doubt in relation to each of the offence's essential elements, and this burden is a heavy one. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for either party in this trial, nor is it based on prejudice for or against any party in this trial. A reasonable doubt must be a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence. See: R. v. Lifchus, [1997] 3 S.C.R. 320.

[41] To be clear, it is not sufficient that, on the whole of the evidence that I am satisfied that Mr. Zivkovic is probably guilty.

[42] Section 320.15(1) of the Criminal Code of Canada reads as follows:

320.15(1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under 320.27 or 320.28.

[43] The essential elements that must be met, in proving the offence of Refusing to Provide a Breath Sample, are:

1. A valid demand;
2. A refusal to comply with a demand;
3. The intention to refuse that demand. See: R. v. Lewko, [2007] S.J. No. 257 (Prov. Ct.); R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205.

[44] In the case before this Court, there is agreement – rightfully so – that the ASD demand made of Mr. Zivkovic was a valid demand.

[45] The next stage of the analysis can be stated simply that in order to prove the offence of Refusing to Provide a Sample, the Crown must prove that the accused knew that a demand was being made of them, that the accused appeared to understand the demand, and that the accused unequivocally refused to comply with that demand.

[46] There is no set formula to what constitutes an intentional refusal. It can be established through words, or actions, or a combination of both. The evidence must be considered as a whole. See: R. v. Gomes, [2018] O.J. No. 5900 (C.J.).

[47] It was thought prior to the enactment of Bill C-46 that the debate surrounding the mens rea for the offence of Refuse (formerly s.245(5), and now s.320.15(1)) was in a constant state of flow. With the enactment of Bill C-46, many thought that the mens rea debate was settled simply by virtue of the wording of the new section: “knowing that a demand has been made”.

[48] Unfortunately, that is not necessarily the case. A number of decisions have been released which indicate that the mens rea is expressed clearly in the section – i.e. that the Crown simply has to establish that the accused is aware the demand has been made. See: R. v. Daytec, [2021] A.J. No. 153 (Prov. Ct.); R. v. McKinnon, [2020] A.J. No. 558 (Prov. Ct.), R. v. Cummins, [2021] O.J. No. 2722 (C.J.), and R. v. Burgess, [2021] N.S.J. No. 310 (Prov. Ct). In other decisions courts have held that the Crown must prove that the failure or refusal was produced intentionally. See: R. v. Gardner, [2021] N.J. No. 238 (Prov. Ct.), R. v. Sweet, [2021] S.J. No. 26 (Prov. Ct.) at para 38, R. v. Frederickson, [2021] O.J. No. 3945 (C.J.), and R. v. Khandakar, [2023] O.J. No. 1392 (S.C.J.).

[49] In addressing the mens rea requirement, R. v. Porter, 2012 ONSC 3504, [2012] O.J. No. 2841 (S.C.J.) and R. v. Pletsas, 2014 ONSC 1568, [2014] O.J. No. 1136 (S.C.J.) have reasoned that s. 320.15 speaks of “fails or refuses” and not of “willfully fails or refuses”. Conduct that results in “refusals” is always “willful” in the volitional sense; reasons for refusing may fall to be assessed as a “reasonable excuse”. The offence in s. 320.15 is a general intent offence, therefore the mens rea for the offence in s. 320.15 is knowledge or awareness of the prohibited act. The “prohibited act” is not complying with the demand. Any reason for non-compliance falls to be assessed as a “reasonable excuse”.

[50] While there may remain a debate about the mens rea on a Refuse charge, what the caselaw is instructive on is the need for the trier of fact to take all of the circumstances into account when assessing the unequivocal nature of a refusal.

[51] In the case before this Court, two main areas of analysis are needed specifically with respect to assessing the unequivocal nature of Mr. Zivkovic’s refusal; 1) the information that he received from P.C. Samuel about the availability of a lawyer, and 2) whether Mr. Zivkovic’s subsequent offer to provide a sample was part of the same transaction as his original refusal.

[52] A violation of an accused’s right to counsel, or a perceived violation does not amount to a reasonable excuse. Neither does an error of law, such as a mistaken belief in a right to counsel. See: R. v. Williams, [1992] O.J. No. 2510 (C.A.), R. v. Sures, [2010] O.J. No. 1615 (S.C.J.).

[53] Insofar as misinformation constituting a reasonable excuse to refuse to comply with a breath demand, Justice Boucher sitting as a Summary Conviction Appeal Court had the following to say in R. v. Sellathurai, [2021] O.J. No. 3814 (S.C.J.) at para. 21:

Reasonable excuses for failing to provide a breath sample frequently relate to health-based or other practical factual reasons for non-compliance. No such reasons were advanced for non-compliance at trial. Rather, the appellant says that the fact that he was misinformed about the consequences of the other potential charge should have constituted a reasonable excuse to comply.

[54] In order to ensure an unequivocal decision is being made on the part of an accused to refuse, often times officers at the roadside are called upon to outline the consequences of non-compliance with an accused. Justice P. T. O’Marra stated the following in R. v. Sabetti, [2021] O.J. No. 6726 (O.C.J) at para. 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] O.J. No 1143 (S.C.J.), at para. 80 and R. v. Sures, [2010] O.J. No 1615 (S.C.J.) at para. 39. Nevertheless, I am satisfied that Ms. Sabetti was aware of obligation to provide a breath sample and the consequences of not complying.

[55] The police are not obliged to explain the consequences of non-compliance with a demand, nor are they required to explain why the test is being done, or how a “pass” or “fail” will factor into their investigation. Similarly, officers are not required to explain the law to someone they are requiring a demand of, and they are not required to give the accused legal advice. See: R. v. Danychuck, 2004 70 O.R. 3d 215 (C.A.).

[56] In R. v. Tavangari, [2002] O.J. No. 3173 (O.C.J.) at para. 16, Justice Kenkel reiterates that when assessing whether there has been a refusal to provide a sample, all circumstances surrounding the offence must be considered:

Some of the factors that courts have considered in assessing whether there has been a refusal or wilful failure to provide a screening sample include:

• 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 (1997), 24 M.V.R. (3d) 89 (Ont. Gen. Div.),
• 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.) - seven minutes,
• the number of tests attempted, R. v. Tynkaluk supra. 8 attempts, R. v. Chance supra. 4 attempts,
• whether the accused was warned it was a criminal offence to refuse, R. v. Tynkaluk supra.,
• whether the accused was told of the consequences of refusal, R. v. Fontaine (1990), 25 M.V.R. (2d) 308 (Alta. Q.B.), R. v. Chance supra.,
• whether the accused had been warned that he was being given a final chance to provide a suitable sample R. v. Tynkaluk supra., 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, R. v. Taylor supra.,
• where there is a request to take a further test post arrest, whether the equipment and operator were still available, R. v. Tynkaluk supra., and, the ease of setup and operation of a screening device (to take a further test), R. v. Chance supra.,
• 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, R. v. Frianchi supra. immediate,
• the reasons given by the police constable for not providing a further opportunity post-arrest if requested, R. v. Taylor supra.,
• other circumstances which tend to show whether or not there was a wilful failure or refusal by the accused to provide a suitable sample.

[57] Once an unequivocal refusal is made, the offence is complete, even if the accused subsequently changes their mind and offers to provide a sample. However, where there is a subsequent offer to provide a sample, this can provide insight into whether or not the refusal acted upon by the officers was in fact unequivocal. See: R. v. Mtonga, 2021 ONSC 1482, [2021] O.J. No. 999 (S.C.J.), R. v. Khandakar, [2023] O.J. No. 1392 (S.C.J), and R. v. Domik, [1979] O.J. No. 1050 (Ont. H.C.J.).

[58] This can colloquially be referred to in cases like the one before this Court as the “single transaction test”.

Application of the Relevant Legal Principles and Analysis

[59] Mr. Zivkovic testified on this trial, and I have considered his evidence in its entirety. He testified in a very forthright manner and answered questions from Crown counsel and from the bench appropriately.

[60] In cross-examination the Crown asked Mr. Zivkovic a number of times whether or not he understood that the officer was making a demand of him to provide a sample. Mr. Zivkovic answered, very fairly, that he did understand that the officer was demanding that he provide a sample of his breath.

[61] Officers Suh and Wenzel testified, and it played out in the in-car camera, that Mr. Zivkovic was told of the demand over 10 times between the two officers.

[62] As well, at one point Mr. Zivkovic is heard to ask the officers “Why am I being forced to do something I don’t want to do?” The word “forced” is consistent with Mr. Zivkovic’s testimony before the court that he was aware that it was a demand that the officers were making of him.

[63] I am satisfied that Mr. Zivkovic knew that the ASD demand was made by the officers.

[64] Unfortunately, P.C. Samuel told Mr. Zivkovic that he would at some point have the opportunity to speak to a lawyer. I accept P.C. Samuel’s testimony that he said that in reference to the aspect of investigative detention as opposed to his ability to speak to a lawyer prior to providing the ASD sample.

[65] Mr. Zivkovic testified that he was confused by this, however both P.C. Suh and P.C. Wenzel explained to Mr. Zivkovic numerous times that he did not have the right or opportunity to speak to a lawyer prior to providing his sample. They used words like “caselaw” and “courts” to bring this point home to Mr. Zivkovic.

[66] Both P.C.s Suh and Wenzel also explained to Mr. Zivkovic on numerous occasions the consequences of non-compliance with the demand. They used plain language to outline the ramifications and did so at least 2 or 3 times.

[67] This is where Mr. Zivkovic got stuck in his “loop” – as was referenced both in his testimony and the testimony of the officers. In response to the demand, Mr. Zivkovic kept saying to the officers that he wanted to know more information about his right to counsel and about the consequences of non-compliance. Despite their frustrations, the officers continued to explain this to Mr. Zivkovic.

[68] As outlined above, police officers are under no obligation to explain in great detail to an accused person their legal rights when faced with the ASD demand, nor are they required to give an accused person legal advice, nor are they required to explain in great detail the consequences of non-compliance.

[69] I am satisfied that Mr. Zivkovic’s “loop” with respect to asking about speaking to his lawyer and asking about the consequences do not amount to any kind of reasonable excuse with respect to refusing to provide a sample. This was all explained to him clearly and concisely by the officers.

[70] This Court must then look to the “single transaction issue” and whether or not Mr. Zivkovic’s refusal was unequivocal.

[71] Throughout the 20-minute interaction between Mr. Zivkovic and the officers Mr. Zivkovic tells the officers that he is not going to comply with the demand once. I am not suggesting it is required that he tell the officers more than once, but this is a scenario where the entirety of the circumstances need to be looked at.

[72] Mr. Zivkovic’s “loop” in conversation with the officers could be seen as simply delaying the inevitable. He is told numerous times by the officers that he does not have the right to speak to a lawyer, and he is told numerous times the consequences of non-compliance. This could possibly be seen, absent anything else, as a constructive refusal by Mr. Zivkovic.

[73] There are, however, other things to consider. Midway through his interaction with the police, in the throws of his “loop”, Mr. Zivkovic states “I have no problem providing a breath”. He also on two occasions explains to the officers that he is ok in delaying his providing of a sample to the officers.

[74] Again, to reiterate, there is no obligation on the officers to wait until Mr. Zivkovic is ready to provide a sample, these comments just speak to the potential equivocal nature of the refusal.

[75] The ultimate refusal by Mr. Zivkovic takes place as follows:

Mr. Zivkovic : Can you tell me what the repercussions are?

P.C. Wenzel : Repercussions are you will be charged with a criminal offence.

Mr. Zivkovic : That's it.

P.C. Wenzel : You will be charged with a criminal offence.

Mr. Zivkovic : Okay what does that entail?

P.C. Wenzel : That entails you going to Court and talking to a judge.

Mr. Zivkovic : I have no problem with that so I refuse.

P.C. Wenzel : You refuse?

P.C. Suh : Awesome

Mr. Zivkovic : It is entails talking to a judge …

P.C. Wenzel : You’re Under arrest for Refuse.

[76] On the in-car camera, upon being placed under arrest, Mr. Zivkovic’s demeanour changes dramatically. He is crying, yelling and pleading with the officers to allow him to provide a sample. The officers have understandably become frustrated with Mr. Zivkovic and don’t provide him with that opportunity.

[77] Mr. Zivkovic testified that his request to provide a sample after his arrest was a genuine request.

[78] It is a very short period of time that has elapsed from the time of Mr. Zivkovic’s formal refusal to the time that he pleads with the officers for an opportunity to provide a sample. P.C.s Suh, Wenzel and Samuel all testified that the ASD was still on scene, and it could have been used should the officers give that opportunity to Mr. Zivkovic.

[79] I find both R. v. Domik and R. v. Khandakar instructive. I agree with Justice Dawson’s comments at paragraph 43 of Khandakar that Domik has not been overruled or modified by the Supreme Court of Canada and remains a binding case of the Ontario Court of Appeal.

[80] The stark change in Mr. Zivkovic’s demeanour upon being arrested, and his comment “if it entails talking to a judge”, are instructive on the issue of whether or not the refusal of the demand was unequivocal.

Conclusion

[81] This is a very fact specific case. The police fulfilled their duties as required, and calmly dealt with what I am sure was a very frustrating scenario.

[82] Based on the words and actions of Mr. Zivkovic at the roadside, his stark change in demeanour upon being arrested, his frequent emotional requests to provide a sample immediately after his ultimate refusal, and the availability of the ASD at the roadside, I am not satisfied beyond a reasonable doubt that the refusal by Mr. Zivkovic was an unequivocal one.

[83] As such, Mr. Zivkovic I find you not guilty.

Released: August 25, 2023 Signed: Justice M. Townsend