Ontario Court of Justice

Date: 2024 03 11 Region of Durham

Between: Her Majesty the Queen — And — Asmond Hazzard

Before: Justice N. N. Baker

Heard on: 2024/03/11 Reasons for Judgment released on: 2024/03/11

Counsel: C. Enright, counsel for the Crown S. Kassirer, counsel for the accused

Baker J.:

Issues

[1] This case resolves on two separate but related issues. 1) did the accused grasp the demand and 2) did he, in fact, fail or refuse to comply with the demand?

Facts

[2] The facts of this case are agreed. The accused was found in care and control of a motor vehicle. Grounds existed for his arrest and a demand for a drug recognition evaluation was made. He was taken to the station and custody was given to a Drug Recognition Evaluation (DRE) officer. Throughout interaction with the police, the accused was confused, disoriented, and could not answer simple questions instead staring unfocused for long lengths of time. Officer Leal indicated that he could not remember if the accused could answer questions during the booking.

[3] The interaction with the DRE officer, PC Steward, was captured on body-worn camera and is found at Exhibit 1. Throughout their interaction PC Steward asks the accused questions and the accused takes significant time to respond, often responding incoherently or not at all. The accused “lacked the ability to coordinate thought with action” in the words of PC Steward and I believe this description is apt.

[4] It is of note that the refusal in this case is not that of a demand to provide breath, urine, or blood but rather the DRE testing matrix. The requirements of DRE testing are more involved than the provision of a bodily substance and requires cooperation in a variety of physical tests including divided attention tests like the Horizontal Gaze Nystagmus, One Leg Stand and Walk & Turn tests along with physical tests such as pulse, blood pressure, and pupil measurements.

[5] In this case, the accused cooperated with some tests including pulse, pupil measurements and even questions which he did not have to participate in. He cooperated in the initial check of eyes for equal tracking, but things began to fall apart when the testing reached the HGN tests.

[6] Officer Steward was patient. He took his time. However, after a period he decided that they had “spent enough time.”

[7] This case does not involve an outright refusal, but rather a failure to comply or a constructive refusal. The accused was completely out of it. He would rarely give coherent answers to questions. He seemed to try to comply with the tests though his focus wandered significantly. At times, the accused just walked away in a daze. When asked where he was going, he would say things like “I’d like to go to my house” and “can I have some rest first.” At other times he says he will watch the top of the pen if possible and “we can finish the tests we need to finish.”

1) Did the accused grasp the demand?

[8] “The case law is clear that the onus is on the Crown to show that the demand was made to an accused at a time when he was conscious and capable of understanding what was being asked of him.” R. v. Oliynyk, [2003] O.J. No. 392 at para 27.

[9] “The first essential is to prove that the accused was alive and conscious and that he appeared to understand the demand. Such understanding would usually be apparent if, as in this case, the accused used English words to refuse the demand. The Crown would, however, fail at the threshold of its case if its evidence revealed, for example, that the accused at the time of the demand was unconscious for any reason, including intoxication, or that he obviously did not understand English or that he obviously was an imbecile mentally incapable of understanding the demand.” R. v. Warnica (1980), 1980 2897 (NS CA), 56 C.C.C. (2d) 100 (N.S. C.A.) at para. 15.

[10] I am not convinced beyond a reasonable doubt that the accused was alive and conscious to the demand he was facing. I am not convinced he understood, nor that he could understand given the state he was in.

2) Did he, in fact, fail or refuse to comply with the demand?

[11] Further, I find that the accused did not refuse or fail to comply with the demand. The officer terminated the tests because he felt the accused was not cooperating. Given what is on the video, I am confident that the accused was trying his best to comply. His inability to comply is evidence of his gross impairment. An inability is different from an unwillingness. See R. v. Smith 2015 ABPC 214. The Smith case is very similar to this case. In that case, the DRE officer testified that the accused was unwilling rather than unable. However, the lack of objective confirmation of the officer’s subjective belief led to an acquittal. In the case at bar, the objective body worn camera supports the defence assertion that the accused was unable rather than unwilling.

Conclusion

[12] As a result, an acquittal must follow.

Released: March 11, 2024 Signed: Justice N. N. Baker