ONTARIO COURT OF JUSTICE
DATE: 2025-01-17
COURT FILE No.: Newmarket 4911-998-24-91100286-00; 4911-999-24-91100103-00
BETWEEN:
His Majesty the King
— AND —
Franco Tomasone
Before Justice Marcella Henschel
Heard on November 13, 2024
Reasons for Judgment released on January 17, 2025
Mr. Rob De Chellis — counsel for the Crown
Mr. Ravi Sahota — counsel for the defendant Franco Tomasone
A. Overview
[1] Franco Tomasone was charged with drive disqualified, contrary to s. 320.18 of the Criminal Code, and fail or refuse to provide a breath sample, contrary to s. 350.15(1) of the Criminal Code. At the outset of the trial Mr. Tomasone plead guilty to driving while disqualified. He entered a not guilty plea to the refuse breath sample count and a brief and focused trial was conducted.
[2] The Crown called a single witness, the investigating police officer PC Berezniy.
[3] The primary issues at trial were whether PC Berezniy made a lawful approved screening device demand, specifically whether he had reasonable grounds to suspect that Mr. Tomasone had alcohol in his body, as required by s. 320.27(1)(b) of the Criminal Code; and whether Mr. Tomasone “refused” to provide a breath sample.
[4] At the conclusion of the trial, I found Mr. Tomasone not guilty because I was not satisfied that the actus reus, that Mr. Tomasone “refused” to provide a breath sample, was proven beyond a reasonable doubt. I was also not satisfied beyond a reasonable doubt that there was a lawful demand. I made my findings with reasons to follow. These are my reasons.
B. Summary of the Facts
[5] The facts are largely uncontested. The interactions between PC Berezniy and Mr. Tomasone were captured on PC Berezniy’s in-car camera recording system (ICC).
[6] On January 3, 2024, at approximately 7:40 p.m., PC Berezniy was conducting general patrol on Steeles Avenue in Vaughan, Ontario. He saw a white van travelling southbound on Islington Avenue at Steeles Avenue West and queried the Ontario Licence plate. It was registered to Mr. Tomasone who was subject to a Canada-wide driving prohibition. PC Berezniy decided to conduct a traffic stop to ensure the driver was licenced.
[7] At 7:40 p.m., PC Berezniy saw the driver (later determined to be Mr. Tomasone), turn left on a red light. He activated his cruiser lights and conducted the traffic stop. After PC Berezniy activated his lights, Mr. Tomasone made a right-hand turn and pulled over.
[8] In respect of the left hand turn on the red light, the ICC recording shows that as Mr. Tomasone approached the intersection travelling southbound, he moved into the left turn lane. Prior to making the left turn, a car travelling northbound passed through the intersection. Mr. Tomasone partially entered the intersection and another car travelling northbound passed through the intersection. The light turned from yellow to red. Moments after the light turned red Mr. Tomasone turned left, clearing the intersection.
[9] At 7:41 p.m., after Mr. Tomasone stopped his vehicle, PC Berezniy approached the driver’s side of his van. Mr. Tomasone verbally identified himself. At 7:42 p.m. PC Berezniy confirmed Mr. Tomasone’s identity by accessing the Ministry of Transportation database from his cruiser.
[10] At 7:44 p.m. PC Berezniy arrested Mr. Tomasone for driving while prohibited and he was searched incident to arrest.
[11] At 7:45 p.m., as PC Berezniy was placing Mr. Tomasone in the rear of the police cruiser, he asked him if he had been drinking alcohol that evening. He responded “no”. PC Berezniy told him he would do a test to make sure he had not been drinking.
[12] At 7:46 p.m. PC Berezniy informed Mr. Tomasone he was arrested for driving while prohibited and read him the rights to counsel and caution. In response, when asked if he wished to call a lawyer “right now”, Mr. Tomasone said he did not have a phone, and asked how he could call a lawyer.
[13] PC Berezniy told Mr. Tomasone he could not give him privacy to call a lawyer from the cruiser because everything was audio and video recorded. He said after the paperwork was completed, he would be released from the scene and could call the lawyer after he was released.
[14] At 7:48 p.m., following the exchange about counsel, PC Berezniy read Mr. Tomasone a roadside approved screening device (ASD) demand. PC Berezniy had an approved screening device with him in his cruiser.
[15] In response, Mr. Tomasone immediately asked if he could make a phone-call first. PC Berezniy responded that he could not provide him a private phone call “right now” and explained he had to read him his rights. He told him he was going to do a test for sobriety which was why he asked if he had consumed alcohol.
[16] PC Berezniy testified that the demand he made was not a mandatory screening device demand. He made the ASD demand because he suspected Mr. Tomasone may be impaired by alcohol based on his left turn on the red light. PC Berezniy testified he did not smell alcohol coming from Mr. Tomasone when he made the demand. He noticed the smell of alcohol later while Mr. Tomasone was seated in the rear of the police car.
[17] PC Berezniy explained that the basis for his ASD demand was his observations regarding the left turn on the red light and because of Mr. Tomasone’s history. He knew he had previously been convicted of impaired driving and suspected he may be impaired.
[18] PC Berezniy testified that Mr. Tomasone became argumentative with him after he made the ASD demand. Their interactions between 7:48 p.m. and 8:52 p.m. about the ASD demand as recorded on the ICC system included:
- Mr. Tomasone asked: “Why do I have to do the test? – I am not understanding.”
- PC Berezniy explained he was previously arrested for impaired operation and when he was travelling behind him, he turned left on a red light. He told Mr. Tomasone he was going to make sure he was not impaired. He said based on his driving and his history he was making the demand.
- Mr. Tomasone responded he was right behind the other car.
- PC Berezniy told Mr. Tomasone he was not going to argue, it was completely his choice if he did the test or not. Mr. Tomasone said he wanted to talk to a lawyer, he wanted legal advice.
- PC Berezniy informed him that he could not force him to take the test, but if he did not do so he would be charged with refusing to comply with the demand which was an additional charge to driving while prohibited. He told him his vehicle would be impounded and his license would be suspended.
- PC Berezniy said it was his choice. He explained he had to read him the demand and tell him the consequences. The choice was his. He asked what he wanted to do. Mr. Tomasone responded that he would just like counsel. He said he wanted to go to the station and get legal counsel.
- PC Berezniy informed him that he would not drive him to the station. He explained he would be released from the scene after paperwork was completed. He said everything in the police car is audio and video recorded.
- Mr Tomasone said he was not hiding anything. He did not know why he was pulled over or why PC Berezniy was requesting the test.
- PC Berezniy explained that he made a left turn on a red light. Mr. Tomasone responded that the light was yellow. PC Berezniy told him he was making a demand and asked him again whether he wanted to do the test. He said it was up to him.
- Mr. Tomasone asked how bad the charge was if he did not do the test. PC Berezniy said there would be an additional charge of refuse to comply with a demand in addition to driving while prohibited and he would have another court date to attend. He asked him what he wanted to do.
- Mr. Tomasone said he just wanted to be released. PC Berezniy said he read him a demand. Mr. Tomasone said he was already being charged so he might as well. PC Berezniy asked him if he would comply. He said he wanted his lawyer before he did the test.
- PC Berezniy explained that if he stopped a car to conduct a sobriety check the driver has no option of calling a lawyer. Mr. Tomasone responded he was not doing any test right now.
[19] At 7:52 p.m., PC Berezniy told Mr. Tomasone he would be charged. Mr. Tomasone asked about his car being impounded. PC Berezniy explained that his van was already being impounded for driving while prohibited for 45 days. He explained that a vehicle is impounded for 7 days for a refusal. He informed Mr. Tomasone he would be charged with drive prohibited and with refusing to provide a breath sample.
[20] Mr. Tomasone said he did not want to be charged with “the other one”, and asked why he was being charged. PC Berezniy explained he was being charged because he said he did not want to do the test. Mr. Tomasone said he just wanted to talk to a lawyer. PC Berezniy testified that he believed Mr. Tomasone had consumed alcohol and did not want to do the test.
[21] A second officer located two empty beer cans in Mr. Tomasone’s vehicle and at 7:59 PC Berezniy informed Mr. Tomasone that he would also be charged with having readily available alcohol in the vehicle. Mr. Tomasone said he did not know where the cans came from.
[22] After he was informed that he would be charged with refusing to provide a breath sample, between 8:00 p.m. and the time of his release Mr. Tomasone asked to do the ASD test several times and said he was not refusing.
[23] At 8:00 p.m. Mr. Tomasone asked PC Berezniy: “Sir can I just speak to a lawyer and then do the test. I am not refusing I just want to speak to lawyer and see what is going on and then I will do the test.” PC Berezniy responded that he was going to do the paperwork to get him released and then he could call whoever he liked. Mr. Tomasone said that then he would still be charged with the other charges, and the alcohol in the car was not his. He said he had to move the van and take it to a mechanic because it was leaking oil on his driveway.
[24] At 8:02 p.m. PC Berezniy provided Mr. Tomasone with his court date and fingerprint appearance date.
[25] At 8:04 p.m., approximately 16 minutes after the ASD demand was first made, and 12 minutes after Mr. Tomasone was informed he was being charged with refusing to provide a sample, Mr. Tomasone asked if he could “just do the sobriety test then?” PC Berezniy informed him that they were “already past that”. Mr. Tomasone said he would just do the test, he did not mind, he did not care, he had just wanted to talk to someone before he did it. He said he had just wanted information, legal advice. He said he did not know the legal system and wanted advice. He said, “You asked me do I want to talk to a lawyer, …and I said yes. This is unbelievable.”
[26] Mr. Tomasone asked, “Am I going to jail for this?” PC Berezniy responded, “I have told you a few times already.” Mr. Tomasone said he was in shock and did not know what was going on. PC Berezniy told Mr. Tomasone that he knew he could not be driving. Mr. Tomasone replied that his worker and mechanic lived nearby.
[27] At 8:07 p.m. Mr. Tomasone repeated that if PC Berezniy wanted him to do the sobriety test, he would do it, he said he did not want another charge. PC Berezniy responded that he had already offered it to him, and they went over it a few times. Mr. Tomasone said he had just wanted to talk to someone before, call a lawyer. When PC Berezniy said he had already explained to him, he said he would take the sobriety test.
[28] He said he had just wanted legal advice, that is all he wanted. He said PC Berezniy did not explain it to him in detail. PC Berezniy said it is straight forward and that he knew he had previously done a test because he had a three-day warning and a prior impaired driving conviction. Mr. Tomasone repeated “I will do it. I will do it. I just wanted to talk to a lawyer.” He said, “You asked me if I wanted to talk to lawyer before I do it and I said I did...You said the number of a lawyer and asked if I wanted to talk to a lawyer, then you said I could not call a lawyer.” Mr. Tomasone said he did not understand why PC Berezniy gave him the number for a lawyer, and then said he could not call a lawyer.
[29] PC Berezniy responded he had explained previously that he could not give him privacy because the cruiser has audio and video recording and a conversation with a lawyer is privileged and cannot be recorded. He explained he could not shut off the recording. PC Berezniy told Mr. Tomasone that he would be released shortly and could speak to whoever he wanted after he was released.
[30] At 8:10 p.m. Mr. Tomasone stated, “I don’t want this other charge, l will take the test, I don’t care.” PC Berezniy told Mr. Tomasone that he smelled like alcohol.
[31] At 8:19 p.m. Mr. Tomasone said he wanted to speak to a lawyer and again stated that he would do the test. He asked to be tested. At 8:20 p.m. Mr. Tomasone said, “Can I take the test at least?” and said, “Can I take the test or not?”
[32] When PC Berezniy began to provide Mr. Tomasone with the release documents, he told him he was being charged with driving while prohibited and refusing to provide a breath sample. Mr. Tomasone repeated that he was not refusing.
[33] In his evidence, PC Berezniy explained that when Mr. Tomasone asked to do the ASD test, he did not allow him to take the test because he believed that Mr. Tomasone was avoiding it because he had been drinking. He thought he was delaying so that his blood alcohol concentration would be lower. He said in his experience people who have not consumed alcohol were happy to take the test. PC Berezniy said he gave Mr. Tomasone the demand and gave him the opportunity to provide the sample, and he refused and so he decided to “go by that”.
[34] In re-examination PC Berezniy testified that had Mr. Tomasone asked to provide the test immediately after he told him he was being charged with refusal, at 7:52 p.m., he probably would have given him an opportunity to do so.
[35] PC Berezniy released Mr. Tomasone at 8:23 p.m. on an undertaking with an appearance notice.
[36] During cross-examination Mr. Sahota asked PC Berezniy if he had considered muting the back microphone so Mr. Tomasone could speak to counsel. PC Berezniy responded that he did not know if the front microphone would still pick up the conversation. PC Berezniy agreed that he would have allowed him to speak to a lawyer if he had a private place to facilitate the conversation.
C. Position of the Parties
[37] Although Mr. Tomasone filed applications alleging that his rights under ss. 8, 9, and 10(b) of the Charter were violated, during the trial the focus was on whether the essential elements of the offence were proven by the Crown beyond a reasonable doubt.
[38] The three primary issues were:
i.) Whether there was a lawful demand under s. 320.27(1) of the Criminal Code. Did PC Berezniy have the requisite reasonable suspicion to make the demand?
ii.) Whether the actus reus was established. Was there an unequivocal refusal?
iii.) Mens Rea. Did the Crown prove that Mr. Tomasone intended to refuse to provide a sample.
[39] Mr. Sahota for Mr. Tomasone submitted that the Crown failed to prove there was a lawful demand, and as a result Mr. Tomasone should be found not guilty. PC Berezniy testified he made the demand because he had a reasonable suspicion that the accused had alcohol in his system. Mr. Sahota submitted that PC Berezniy’s grounds, Mr. Tomasone’s late turn on a red light, and the fact that he was a prohibited driver due to a prior impaired driving conviction, were insufficient to establish reasonable suspicion. He submitted that the grounds amounted to a hunch, not reasonable suspicion, and as a result the demand was not a lawful demand.
[40] Mr. Sahota further submitted that there was not an unequivocal refusal. The circumstances were confusing because PC Berezniy arrested Mr. Tomasone for driving while prohibited and read him the rights to counsel and asked him if he wanted to call a lawyer “now”. However, when Mr. Tomasone asked to call a lawyer, PC Berezniy told him he could not speak to a lawyer, and then demanded he provide a breath sample into an approved screening device. Mr. Tomasone made several requests to speak to a lawyer, but within 10 or 11 minutes, Mr. Tomasone asked to provide a sample, but the officer would not allow him to do so. The defence submits that under the circumstances there was not an unequivocal refusal.
[41] In response, Mr. De Chellis for the Crown submitted that the reasonable suspicion threshold is a low threshold, and PC Berezniy had the required reasonable suspicion based on the driving evidence and Mr. Tomasone’s history.
[42] Mr. De Chellis further submitted that Mr. Tomasone unequivocally refused to provide a sample into the ASD at approximately 7:52 p.m. He submitted that the first genuine offer by Mr. Tomasone to provide a sample was at 8:10:55 p.m. and that any previous offers to provide a sample were conditional on him being given an opportunity to speak to a lawyer first. Mr. De Chellis submits that the first genuine offer was 18 minutes and 28 seconds after the demand, and that the offer to provide the sample was no longer part of the same transaction. He submitted that the initial refusals between 7:48 p.m. and 7:52 p.m. were unequivocal and intentional and as a result the Crown had proven the allegations beyond a reasonable doubt.
D. Summary of the Law, Analysis and Conclusions
The Crown Failed to Establish the Actus Reus of a Criminal Refusal
[43] Section 320.15(1) of the Criminal Code states:
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 section 320.27 or 320.28.
[44] To prove that an accused has “refused” to comply with an approved screening device demand contrary to s. 320.15(1), the essential elements the Crown must prove beyond a reasonable doubt are:
i.) The police made a lawful demand under s. 320.27(1) or (2) of the Criminal Code;
ii.) The accused “unequivocally refused” to comply with the lawful demand;
iii.) The accused possessed the necessary mens rea. [1]
[45] As in Khandakar [2], this case raises the issue of how long a person subjected to a roadside screening demand has to change their mind about refusing to provide a breath sample before they commit a criminal offence.
[46] An initial refusal will not establish the actus reus of the offence if the accused later agrees to provide a breath sample as part of the “same transaction”. [3]
[47] In this case, the Crown has failed to establish that there was a criminal refusal beyond a reasonable doubt because Mr. Tomasone’s offers to provide a breath sample, after his initial refusal, were part of the same transaction.
[48] Section 320.27(1)(b) states:
320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:
(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;
[49] In respect of the immediacy requirement, subsequent to the Supreme Court of Canada’s decision in R. v. Breault, 2023 SCC 9, in Khandakar, the Ontario Court of Appeal explained as follows at paras. 37 and 38:
Section 320.27(1)(b) expressly requires persons subjected to ASD demands “to immediately provide…samples of [their] breath”. This requires them to “comply immediately”, rather than when they see fit. R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at para. 45; Breault, at para. 31. This explicit statutory immediacy requirement also obliges the police to conduct themselves in a way that makes immediate compliance by the subject possible. Among other things, they must have an ASD immediately available when they make the demand, and they must give the subject an immediate opportunity to blow into the device, subject to the inherent “operational time” requirements of the ASD test and any delays caused by “unusual circumstances”: Breault, at paras. 32, 61-68.
Section 320.27 and its forerunners have also been interpreted as having a second implicit immediacy requirement, under which officers must make an ASD demand as soon as they form “the reasonable suspicion that the driver has alcohol in his or her body”: R. v. Peirman; R. v. Dewald (1994), 19 O.R. (3d) 704 (C.A.), at para. 5. The existence of this second implied immediacy requirement is linked to the implied limit on s. 10(b) Charter rights that has been read into the ASD demand power and found to be a reasonable limit under s. 1: see e.g., Thomsen … [4] [Emphasis added].
[50] However, “immediately does not mean instantaneously”. There is some flexibility inherent in the word immediately. Section 320.27(1)(b) allows some time for police to explain the ASD test process and the consequences of refusing, and police officers can give subjects some limited opportunity to change their minds. The ASD test process is a “series of connected acts extending over a period of time”. [5]
[51] In approved screening device cases the “same transaction” window is co-extensive with the maximum time the police have in the circumstances to obtain a breath sample “immediately”. When someone initially refuses to provide an ASD breath sample, “the maximum time within which they can change their mind cannot exceed the time within which a compelled breath sample can lawfully be obtained by the police. This latter time is determined by the operational requirements of the ASD test process and by any “unusual circumstances” that extend the statutory “immediacy” window”. The operational time requirements include the time to explain to the accused how to provide a sample and to operate the device to collect the sample. [6]
[52] Consequently, in determining whether there was a criminal refusal, a trial judge must consider whether an accused’s change of mind occurred at a time when the police could have lawfully obtained a sample having regard to both the operational time requirement to collect the sample “immediately” and the presence of any unusual circumstances.
[53] In this case there were unusual circumstances. Because Mr. Tomasone was arrested for driving while prohibited, PC Berezniy informed him of his right to counsel and asked him if he wanted to speak to a lawyer “now”. He said he did. However, immediately thereafter, PC Berezniy initiated steps to investigate Mr. Tomasone’s sobriety and issued an ASD breath demand. The need to implement the screening device demand immediately and the corresponding suspension of the right to counsel during the sobriety investigation, after Mr. Tomasone was read his rights to counsel and asked to speak to a lawyer, created circumstances that were undoubtedly confusing to Mr. Tomasone and that extended the statutory immediacy window. To find otherwise, in my view would lead to unfairness.
[54] Following his arrest at 7:45 p.m., PC Berezniy told Mr. Tomasone he would conduct a test to ensure he had not been drinking. Immediately following that, at 7:46 p.m. he was placed into the cruiser and PC Berezniy read him the rights to counsel and asked him if he wanted to speak to a lawyer “now”. Mr. Tomasone indicated that he did. Despite having just asked Mr. Tomasone if he wanted to speak to a lawyer “now”, PC Berezniy told Mr. Tomasone he could not speak to a lawyer right away because he could not afford the necessary privacy at the scene, and he would have to wait to speak to a lawyer until he was released.
[55] Normally, after the provision of the rights to counsel, if there is a necessary delay in the implementation of the rights to counsel the police have a corresponding duty to hold off from gathering evidence from the accused. Not so, where the police are investigating a drinking and driving offence, and the right to counsel is suspended. [7]
[56] As a result, immediately after reading the right to counsel, PC Berezniy, at 7:48 p.m. issued the approved screening device demand. It is not surprising that in this circumstance, Mr. Tomasone asked to speak to a lawyer before providing the sample. Between 7:48 p.m. and 7:52 p.m., a period of four minutes, Mr. Tomasone continued to ask to speak to a lawyer before providing the sample. PC Berezniy did his best to explain to Mr. Tomasone that he could not speak to counsel prior to providing the sample, he must provide the sample immediately, and there were consequences should he refuse to provide the sample. After four minutes of back and forth, PC Berezniy informed Mr. Tomasone he was being charged for refusing and began to prepare the paperwork to release Mr. Tomasone.
[57] Eight minutes later, at 8:00 p.m., Mr. Tomasone told PC Berezniy he was not refusing he just wanted to speak to a lawyer before providing the sample. PC Berezniy responded that it was too late, he had already decided to charge him, and he would not be able to speak to a lawyer until after he was released.
[58] Four minutes later, at 8:04 p.m., Mr. Tomasone began asking to take the test and he continued to ask for an opportunity to take the ASD test until he was released. He was not given an opportunity to do so and was charged. I find as a fact that between 8:04 and 8:10 p.m. Mr. Tomasone was communicating that he did not want to refuse, and would take the test, even though he wanted to speak to a lawyer first.
[59] Mr. Tomasone was a layperson, not a lawyer. Not surprisingly, it was difficult for him to understand why he was told that he could speak to a lawyer, but then denied the opportunity to do so immediately, and asked to provide self-incriminatory evidence. In these circumstances, his change of mind within 12 to 18 minutes of being told he would be charged, remained a part of the same transaction and fell within the immediacy requirement.
[60] In these circumstances, had the police obtained a breath sample at 8:04 p.m. or 8:10 p.m., 12 to 18 minutes after the initial demand, when Mr. Tomasone unconditionally offered to provide a sample, I am satisfied the demand, if complied with, would have met the immediacy requirement.
[61] Impaired driving is a serious offence that far too often leads to loss of life and serious injury. The police must be given the necessary tools to investigate impaired driving and 80 plus offences effectively and efficiently, and to prevent serious bodily harm and loss of life. For that reason, when the police make approved screening device demands, the right to counsel is suspended, and an accused must immediately provide a sample.
[62] However, serious consequences can flow from an ASD demand. A refusal is a criminal offence. If an accused person has a prior conviction for impaired driving, as in this case, the accused faces the potential of a mandatory minimum jail sentence. As a result, and as accepted in Khandakar, and much earlier in Domik, there must be some flexibility to allow an accused to change his or her mind after an initial refusal. [8]
[63] In this case, where the arrest for another offence and provision of the rights to counsel lead to confusion about Mr. Tomasone’s rights and obligations, the application of the immediacy component must be interpreted in a way to prevent an unfair outcome. It is not surprising that in this factual matrix Mr. Tomasone did not “instantaneously” agree to comply. In these circumstances, it would not be “unreasonable for a lay person or indeed anyone unskilled at criminal law at first to react negatively to an invitation to give the police incriminating evidence.” [9]
[64] I find as a fact that after Mr. Tomasone’s initial refusal, which was born in part from confusion, that after he had an opportunity to think about the circumstances, he agreed to provide a breath sample into the ASD, and this agreement was part of the same transaction as the initial refusal.
[65] Notably, in Khandakar the accused was pulled over at 1:20 a.m. At 1:27 a.m. he was issued an ASD demand under s. 320.27(1)(b) of the Criminal Code. Over a period of 13 minutes, between 1:27 a.m. and 1:40 a.m., the officer gave the accused multiple chances to blow into the ASD, but he repeatedly refused. He questioned whether the ASD was properly calibrated and, like in this case, asked to be arrested and taken to the police station. The trial judge accepted the accused’s evidence that he believed if he refused to provide an ASD sample, he would be taken to the police station where his breath could be analysed by a “real machine”, which he believed would be more reliable. At 1:40 a.m. the officer asked him a final time whether he would blow into the ASD. When he refused, she arrested him. Approximately 10 minutes later, when he learned that he would be released from the scene and would not have a chance to provide a sample at the police station, he asked to blow, and the investigating officer told him it was too late. Following his release, the accused went to a police station and asked to provide a breath sample, and when this request was refused, he went to a hospital and unsuccessfully tried to have a blood sample taken.
[66] The trial judge in Khandakar acquitted the accused on the basis that there was not an unequivocal refusal. The Ontario Court of Appeal found that the trial judge erred by not properly considering whether the respondent’s offer to provide an initial sample after an initial refusal fell within the time frame established by his statutory obligation to provide a breath sample “immediately” and the summary conviction appeal judge erred in law by treating the trial judge’s decision as a factual determination. However, against this factual backdrop, even though 23 minutes passed between the ASD demand and the offer by the accused to provide a sample (a period at least 5 minutes longer than in this case), the Ontario Court of Appeal sent the matter back for a new trial for the Court to determine whether the immediacy requirement was met. The Court of Appeal did not foreclose that a period of 23 minutes could fall within the immediacy requirement.
[67] While falling towards the outer boundaries of immediacy, I find that in the circumstances of this case Mr. Tomasone’s offer to provide a sample remained a part of the same transaction and met the immediacy requirement. As such, the Crown has failed to establish the actus reus of the offence.
Failure to Establish a Lawful Demand under Section 320.27(1)(b)
[68] The defence also submitted that the Crown failed to prove beyond a reasonable doubt that there was a lawful demand because PC Berezniy did not have the required reasonable suspicion that Mr. Tomasone had alcohol in his body pursuant to s. 320.27(1)(b) and as a result the demand was not a lawful demand.
[69] Before making a demand under s. 320.27(1) an officer must reasonably suspect that a person who is operating a motor vehicle (or has been in the previous three hours) has alcohol in his or her body, and the belief must be objectively reasonable.
[70] Reasonable suspicion is a lower standard than reasonable grounds to believe. It engages the reasonable possibility, rather than probability of crime. [10] Reasonable suspicion under s. 320.27(1) of the Criminal Code is based on the reasonable possibility of alcohol in the body at the time of driving. Alternate explanations for indicia do not necessarily detract from that possibility.
[71] While in many instances an odour of alcohol will be part of the constellation of circumstances leading to an officer forming a reasonable suspicion that a person has alcohol in their body, odour of alcohol is not a necessary precondition to making an approved screening device demand. [11]
[72] While unnecessary to my finding that Mr. Tomasone is not guilty given my above conclusions about the refusal, I am also not satisfied that PC Berezniy had the requisite reasonable suspicion under s. 320.27(1)(b) of the Criminal Code. He testified that his reasonable suspicion to make the demand was based on Mr. Tomasone’s history, he was a prohibited driver due to a prior impaired driving conviction, and because of his left turn on the red light, which he believed may be due to impairment. He did not smell alcohol until after he had decided to charge Mr. Tomasone with a refusal. While reasonable suspicion is a low threshold in this case the ICC recording showed that Mr. Tomasone was already partially in the intersection to make the left turn when the light turned red, and he cleared the intersection very shortly thereafter. When the officer turned on his emergency lights he immediately responded, turned right, and pulled over. I am not satisfied that the nature of the driving supported an inference of possible impairment or the presence of alcohol in Mr. Tomasone’s body even having regard to Mr. Tomasone’s history. PC Berezniy’s subjective determination that he had reasonable grounds to suspect that Mr. Tomasone had alcohol in his body was not objectively reasonable. As a result, the Crown also failed to establish that there was a lawful demand.
E. Conclusion
[73] I am not satisfied beyond a reasonable doubt that there was a criminal refusal, or a lawful demand. As a result, there is a finding of not guilty.
Released: January 17, 2025
Signed: Justice Marcella Henschel
Footnotes
[1] As set out in R. v. Khandakar, 2024 ONCA 620, at para. 19, there is disagreement in the case law about the mental element of the refusal offence: specifically, over whether the Crown must prove that the accused intentionally failed or refused to provide a breath sample, or whether it is enough for the Crown to prove that the accused knew that their conduct would have this result.
[2] R. v. Khandakar, 2024 ONCA 620.
[3] Khandakar, at para. 1.
[4] Khandakar, at paras. 37 and 38.
[5] Khandakar, at para. 33.
[6] Khandakar, at para. 2.
[7] In R. v. Thomsen, [1988] 1 S.C.R. 640, the Supreme Court of Canada held the ASD demand power implicitly suspends a detainee’s s. 10(b) Charter rights in a manner that is justified under s. 1 of the Charter.
[8] Khandakar, at para. 45 citing Domik, at para. 5. The potential for some degree of flexibility due to the potential for unfairness has long been recognized. In R. v. Domik, (1979), 2 M.V.R. 301, 1979 CarswellOnt 12 (Ont. H.C.), appeal dismissed 1980 CarswellOnt 3879, on summary conviction appeal, Justice Grange, at para. 5 of his reasons stated:
Section 235 is drastic legislation interfering with the usual rule against self-incrimination. I do not think it unreasonable for a lay person or indeed anyone unskilled in criminal law at first to react negatively to an invitation to give the police incriminating evidence. I cannot imagine that Parliament intended to make such a refusal followed almost immediately by an assent, criminal.
Domik was understood by lower courts as establishing the principle that the refusal offence is not committed when a person who initially refuses to provide a breath sample later agrees to do so, provided that their later agreement and the initial refusal forms part of a single transaction. In Khandakar, the Ontario Court of Appeal found that the reasoning in Domik applied to ASD demands even after the Supreme Court of Canada’s decision in Breault, supra.
[9] Khandakar, at para. 45, citing Domik at para. 5.
[10] R. v. Chehil, 2013 SCC 49, at paras. 29 to 24.
[11] R. v. Singh, [2006] O.J. No. 5133 (S.C.J.), at para. 12.