Case Information
DATE: January 13, 2025
ONTARIO COURT OF JUSTICE
Central West Region
Brampton, Ontario
B E T W E E N:
HIS MAJESTY THE KING
-and-
CHARAN SINGH
REASONS FOR JUDGMENT
Duncan J.
Facts
The defendant is charged with fail/refuse to comply with a demand to provide a breath sample for Intoxilizer testing, contrary to s. 320.15 CC.
At about 3:33 am on April 12, 2023, an OPP officer travelling northbound on highway 410 in Brampton noticed a vehicle ahead of her with no lights on. It exited onto Sandalwood and then made an abrupt turn at an intersecting street. She stopped it. The defendant was the driver.
She told the defendant that she had stopped him for having no lights. She requested the usual documentation which he provided. She had an ASD with her and made a demand for a mandatory sample at 3:38 am. After several attempts (she didn’t count them) she warned him of the consequences of refusal. He then, at 3:43, provided a suitable sample, registering a Fail. He was arrested for impaired operation, read RTC’s and cautions and, at 3:50 am, was given a demand under s. 320.28 to provide samples for Intoxilizer analysis.
On the way to the police station, the defendant was angry and argumentative. On arrival at 4:31 am the defendant spoke to duty counsel and when taken to the breath room at 5:19 acknowledged that he was satisfied with the consultation.
The arresting officer was also the Qualified Technician (QT). She enlisted the assistance of a Punjabi speaking officer though she had been able to communicate in English with the defendant.[1]
The breath room activity, as usual, was audio and video recorded. The acoustics in the room and audio record left a lot to be desired. It was often difficult to understand what was being said or even what language was being spoken. To make matters worse, there was often considerable crosstalk among those present. Further, the audio and video on the recording was sometimes out of synch.
The recording showed that the breath demand and cautions were read in English and, when the defendant appeared to be non-comprehending, were also translated. The instructions from the QT were brief: Make a tight seal around the mouthpiece, take a deep breath and blow until I tell you to stop. There was no demonstration by the QT.
At 5:27 he made his first “attempt” but just held his breath and did not blow at all. Over the next 13 minutes he was given 12 more opportunities, some sounding short beeps and some sounding as long as 5 seconds—but none of the samples were adequate or suitable in the opinion of the QT.[2]
As mentioned, it was often difficult to make out exactly what the defendant was saying but the gist of it was that he claimed he was blowing as long and hard as he could and that it is hard or impossible for anyone to blow out of their mouth while breathing in through their nose, as one must do to not pass out.
In greater detail: After a few no blows and short blows, around the 5th attempt, the defendant produced three successive multi-second long blows, the longest being about 5 seconds. But they were not suitable because they were not long enough—he stopped too soon. The QT asked him “Do you want to blow or not?” to which he protested “I am blowing.”[3] He then stood up and said something inaudible but apparently conveying frustration. The QT directed that he sit down and he complied. He was then presented with the mouthpiece again, took it in his mouth but did not provide any air. He was again given the mouthpiece and provided a short inadequate blow.
The QT then said “I am going to give you a couple more tries.” The defendant gave two very short blows. He then stood again and gestured again as if to say “That’s it.”[4] She told him that he is going to be charged with refusal. The time was 5:40. He was argumentative saying that he did not refuse and that he blew as best he could. He talked over her and wagged his finger at her. She told him to sit down and, after slight hesitation, he complied. He calmed down and spoke with the Punjabi speaking officer. By the gestures he made he appeared to be again explaining that he was trying to blow.
The defendant then turned to the QT who was standing next to him at the Intoxilizer machine hunched over some papers and asked her “Do you want to try it again?” She immediately answered “No, I have already refused it (sic) and have explained it and I am not giving you any more time now.” It was then 5:42 am. The defendant was soon removed from the breath room.
The defendant did not testify.
Analysis
- The Court of Appeal in R v Khandakar, 2024 OJ No 3767 (CA) recognized that these fact situations give rise to two analytically distinct questions. The first is whether the defendant can come within the “same transaction” window that permits a change of mind regardless of other circumstances. But if he is too late and does not make it through the window, the second question arises for determination. The court must consider his offer together with the evidence as a whole to determine whether the actus reus and mens rea have been proven beyond a reasonable doubt (Khandakar paras 3, 65). On this question, the bona fides of his offer becomes an important and often crucial consideration.
The Domik window
A detainee subject to a breath demand who initially refuses to comply commits no offence if he later changes his mind and agrees to provide a sample. However, the window for him to change his mind is limited and he must offer his assent to comply as part of the same transaction as the initial refusal or refusals: R v Domik ([1980] OJ 642 (CA), aff’d (1979) 2 MVR 301). This rule applies to demands for a sample for roadside screening as well as for Intoxilizer testing though the interpretation of “same transaction” is more limited due to the immediacy requirement for roadside testing: R v Khandakar.
The rule is not dependent on the initial refusal being equivocal. The leeway is extended “even if their initial refusals were unambiguous” (Khandakar para 55).
Further, the rule is not limited to a single refusal followed by an offer to comply. Police officers routinely give the subject more than one chance to blow and receive more than one refusal (Khandakar para 32). The accused in Khandakar was given multiple chances to blow over 13 minutes and refused those multiple opportunities before changing his mind (Khandakar para 7). The Court of Appeal did not suggest that the trial judge was wrong in considering whether these events involved the same transaction. Rather, the Court found error only in the trial judge not properly considering the immediacy requirement applicable to the ASD situation before him. In other words, he erred in treating the case before him as if it was an Intoxilizer demand case.
As I understand Khandakar, the bona fides of the offer is not a consideration at this stage. This does not mean that a detainee can beat the breathalyzer or frustrate the process by making an insincere or non-genuine offer to try again. It only means that his bona fides does not have to be guessed at by the QT—or later determined by the Court—at this stage. If the window is still open his sincerity will be quickly determined if he makes good on his offer and then provides a suitable sample (see endnote to this judgment as well).
Cases of verbal refusal followed by change of mind are straightforward and turn on the single issue of whether the change and assent are part of the same transaction. In my view there is no reason in principle why non-verbal failure/faking cases—refusals by action—should be treated differently. In none of the cases that come before the Court has the detainee actually provided the promised sample, so the sincerity or bona fides of the offer is as questionable in the one case as the other.
In this case the relevant events flowed in a continuous line. The offer to try again was made a couple of minutes at most after his last blow and almost immediately after he was told he was being charged with refusal. The QT and the machine were still readily at hand. The defendant’s offer was in my view clearly part of the same transaction as his earlier failures to provide samples.
The first question is therefore answered in the defendant’s favour. His request was timely and accommodation of it would involve no significant inconvenience or delay. The defendant therefore made it through the Domik window. He had not yet committed the actus reus of the offence (Khandakar paras 1, 3). On that basis he is entitled to a dismissal of the charge.
It is unnecessary to go further and examine the second question, though I will do so briefly.
Mens Rea
The Crown must prove the elements of the offence beyond a reasonable doubt. That includes proof of mens rea.
As noted by the Court in Khandakar (para 19) there is a division of opinion in the case law concerning the mens rea for this offence, specifically, 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.
I have consistently adhered to the first view—that the failure must be volitional and intentional and that bona fide attempts to provide a sample, though failed, may negate or raise a doubt about such intention: R v Sullivan ([2001] OJ No 2799); R v Westerman ([2012] OJ No 97). This view was also held and applied by Durno J in the leading case of R v Grant 2014 ONSC 1479.[5] In that case the Court provided a thorough discussion on how the bona fide issue should be analyzed and determined (paras 80-86). It is lengthy and I will not reproduce it here.
The task is to determine whether the detainee intended to refuse or fail to provide a sample. But at what point in time? It is apparent that in every case of verbal refusal he has such intention when he initially refuses. The same could be said of those who fake and fail. But proof of mens rea at that point in time cannot be determinative. A wider inquiry is necessary, as demonstrated in Grant, and evidence of bona fide attempts to blow or a bona fide request or offer may support a reasonable doubt that the subject had the necessary mens rea.
In this case the defendant’s initial short and non-existent blows suggest that he was faking it, though it must be said that he received very little instruction as to how hard and long to blow. On the other hand, the longer blows suggest that he may have been making a genuine effort to comply on at least those occasions.
Whatever his intention was to that point, I find it impossible to conclude that his offer to try again was not genuine. Rather, I think that, on being charged with refusal, he smartened up and, if he had been playing games, decided to abandon that strategy and make a genuine effort to provide a suitable sample.
I have a reasonable doubt that the mens rea has been proven. The charge must be dismissed.
Endnote
- As an endnote, I should not be taken as suggesting that the QT has to be excessively indulgent of the subject’s whims or that he has to devote hours attempting to coax samples from him. To the contrary I think these situations can be handled quickly and efficiently. If the subject offers or asks to try again and has not already been given a last chance warning, I suggest it would be most efficient to give him such a warning and then give him that last chance. The bona fides of his request will soon become apparent. If he fails again, the conclusion is that either his offer was not genuine, or he has some relevant medical condition which he can attempt to prove at trial. In either case the breath testing will have come to a timely conclusion.
Counsel
C. Hurley for the defendant; M. Otim for the Crown
Footnotes
[1] The defendant represented by counsel did not request or require an interpreter at his trial.
[2] To that point the QT had conducted 220 breath tests. She said that she had never had a fail/refuse but had always been able to obtain samples from her test subjects.
[3] While I have used quotation marks, I caution that these excerpts are not to be considered completely accurate, given the audio difficulties mentioned.
[4] On both occasions that he stood up he said that he wanted to speak to the lawyer again. His request was denied. Counsel has not raised a s. 10(b) issue but argues that this request is relevant to whether he was refusing or signifying that he only wanted to get further advice about continuing.
[5] The continuing vitality and authority of Grant has recently been affirmed: R v Arutunian, [2023] OJ No 4850 and cases cited therein.