ONTARIO COURT OF JUSTICE
DATE: 2025-01-28
COURT FILE No.: Oshawa 23-28109167
BETWEEN:
HIS MAJESTY THE KING
— AND —
BAMBOT NJEI-BENTLEY
Before Justice Joseph Hanna
Heard on December 12, 2024
Reasons for Judgment released on January 28, 2025
N. Hegedus — counsel for the Crown
C. Melo — counsel for Mr. Njei-Bentley
HANNA J.:
OVERVIEW
[1] On October 28, 2023, members of the Ontario Provincial Police responded to a call for a disabled vehicle stopped on the 401. When police arrived the defendant, Bambot Njei-Bentley, was in an ambulance. Police initially made an approved screening demand but soon after arrested Mr. Njei-Bentley for impaired operation and made a demand for him to provide breath samples into an approved instrument.
[2] Mr. Njei-Bentley was transported to the Durham Regional Police Division in Pickering. While at the station he spoke with counsel and refused to provide samples of his breath.
[3] The defendant stands charged with impaired operation of a conveyance and refusing or failing to comply with a demand to provide samples of his breath, contrary to sections 320.14(1)(a) and 320.15(1), respectively of the Criminal Code. At his trial he brought an application to exclude evidence pursuant to s. 24(2) of the Charter for alleged violations of ss. 8, 9, and 10(b) of the Charter. Prior to closing its case, the Crown invited an acquittal on the impaired operation charge.
[4] These are my reasons addressing Mr. Njei-Bentley’s various Charter arguments and whether the Crown has proven the remaining count beyond a reasonable doubt.
THE ISSUES
[5] The following issues were raised at this trial:
- Did the police breach Mr. Njei-Bentley’s s. 8 Charter right by searching his vehicle prior to his arrest.
- Did the police have reasonable and probable grounds to arrest Mr. Njei-Bentley and make a breath demand. This issue is relevant to whether the Crown has proven the validity of the demand beyond a reasonable doubt and whether there were breaches of ss. 8 and 9 of the Charter.
- Did the police fail to comply with the informational component of s. 10(b).
- Did the police fail in their s. 10(b) implementational obligations by delaying facilitating contact with counsel.
- Did the police breach Mr. Njei-Bentley’s right to retain and instruct counsel of choice, contrary to s. 10(b) of the Charter.
- Did the police breach Mr. Njei-Bentley’s s. 10(b) Charter right by failing to afford him another opportunity to speak with counsel.
- Should any evidence be excluded pursuant to s. 24(2) of the Charter.
- Has the Crown proven the remaining elements of the refuse charge beyond a reasonable doubt.
[6] I will outline the evidence relevant to each of these issues as I address them.
1) The section 8 issue relating to the purported search of Mr. Njei-Bentley’s vehicle
[7] While initially pleaded as part of Mr. Njei-Bentley’s Charter application, once the evidence unfolded, the defendant did not pursue the argument that the police breached s. 8 of the Charter by searching his vehicle prior to his arrest. The evidence of Police Constable Church on this issue was that he looked into the vehicle without entering it to ensure that there was no one else inside. Given the evidence heard and the positions advanced by the parties, there is no basis to find a s. 8 breach relating to this conduct.
2) The reasonable and probable grounds issue: the validity of the demand, and sections 8 and 9 of the Charter
[8] The defence submits that the arresting officer, P.C. Church, only had a reasonable suspicion of alcohol consumption, which is why he made an approved screening device (ASD) demand. The defence argues that the police became frustrated by Mr. Njei-Bentley not understanding that demand and “shortcut their investigation to an arrest based on their suspicions of impairment.” According to the defence, absent a “fail” on an ASD, there were insufficient grounds to arrest Mr. Njei-Bentley and make an intoxilyzer demand. Absent a lawful demand, Mr. Njei-Bentley had no legal obligation to comply.
[9] One of the elements of the offence the Crown must prove beyond a reasonable doubt is the existence of a valid demand: R. v. Khandakar, 2024 ONCA 620, para. 18; R. v. Degiorgio, 2011 ONCA 527, para. 43. A breath demand will be valid only when the demanding officer has reasonable and probable grounds to believe that the suspect operated a conveyance while his or her ability to operate it was impaired: R. v. Hull, 2016 ONSC 2267, paras. 5–6; Criminal Code, s. 320.28(1).
[10] The standard to make a breath demand and to effect an arrest is reasonable and probable grounds. This standard does not require proof beyond a reasonable doubt, nor even a prima facie case. The test is met where, based on all the circumstances known to the officer, “credibly-based probability replaces suspicion.” It is a lower threshold than balance of probabilities: R. v. Beaver, 2022 SCC 54, paras. 72(1), 72(6); R. v. Bush, 2010 ONCA 554, paras. 36–37; R. v. Canary, 2018 ONCA 304, para. 23.
[11] There is both a subjective and objective component to the reasonable and probable ground standard. In assessing either part of the test, the court is not limited to the arresting officer’s articulated reasons for the arrest, though those reasons will be relevant to assessing the officer’s credibility: R. v. Fyfe, 2023 ONCA 715, paras. 54–62.
[12] Evidence about subjective grounds may come from multiple sources, including the surrounding circumstances. The subjective component of the test focuses on whether the arresting officer honestly believed the suspect committed the offence: Fyfe, at para. 53; R. v. R.M.J.T., 2014 MBCA 36, paras. 60–63; R. v. Dill, 2009 ABCA 332, paras. 6–7.
[13] The objective component looks at whether “a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest”: Bush, at para. 38; Fyfe, at paras. 54–55. Accordingly, the focus is not limited to the officer’s stated grounds but must include consideration of the broader circumstances known to the officer at the time of the arrest: Fyfe, at paras. 55–62.
[14] The only officer to testify who attended the scene was the arresting officer, P.C. Church. He had only been a police officer for three weeks at the time he conducted the investigation in this case. He arrived on scene at 7:53 a.m.
[15] I found P.C. Church to be a careful witness. His evidence was not contradicted nor was it meaningfully shaken in cross-examination.
[16] He testified that when he arrived on scene he spoke with a civilian, Jeremy Lumambiajo. Mr. Lumambiajo advised P.C. Church of the following:
- He observed a male slumped over the steering wheel of a disabled vehicle.
- He knocked on the window several times and the male did not respond.
- When he opened the door, he smelled an odour of alcohol.
- He believed that the male was intoxicated.
- The male was already in the ambulance.
[17] P.C. Church then attended the ambulance and observed Mr. Njei-Bentley to be the male being attended to. The paramedic advised the officer that other than Mr. Njei-Bentley most likely being intoxicated, he was fine to transport.
[18] P.C. Church asked Mr. Njei-Bentley what had happened. Mr. Njei-Bentley responded that he did not know, he was out late, and that he needed to go to the hospital. P.C. Church asked if Mr. Njei-Bentley had had anything to drink and Mr. Njei-Bentley answered that he could not remember. P.C. Osborn then asked Mr. Njei-Bentley when he had had his last drink and Mr. Njei-Bentley answered that it was maybe around 11 but that he could not remember. P.C. Church observed Mr. Njei-Bentley to have bloodshot glassy eyes, and slurred speech. He also smelled an odour of alcohol on his breath. When P.C. Osborne asked Mr. Njei-Bentley what time it was, Mr. Njei-Bentley indicated that he did not know.
[19] At 7:56 a.m., P.C. Church formed a suspicion that Mr. Njei-Bentley was impaired by alcohol and read him an approved screening demand. In the conversation that followed, Mr. Njei-Bentley slurred his words such that parts of his speech were unintelligible. P.C. Church also observed that the odour of alcohol became much stronger. He arrested Mr. Njei-Bentley at 7:59 a.m. after being told to do so by Sergeant Simpson.
[20] Though he was directed to arrest Mr. Njei-Bentley by a more senior officer, P.C. Church testified that he would have done so regardless of this direction given that he believed he had reasonable grounds to arrest Mr. Njei-Bentley for the offence of impaired operation. In cross-examination he maintained that he had his own independent grounds to make an arrest. I found P.C. Church to be a credible and sincere witness. I do not doubt the genuineness of his evidence in this regard. In cross-examination he advised that he had been attempting to give Mr. Njei-Bentley the benefit of the doubt. I found the officer’s explanation regarding the additional indicia which contributed to him forming his grounds for an arrest, following his having made the ASD demand, to be reasonable and credible. Again, those observations were an increased strength in the odour of alcohol and Mr. Njei-Bentley’s speech being slurred at one point to the extent that it was unintelligible.
[21] In closing arguments, defence counsel did not really challenge the subjective aspect of the officer’s grounds and focused instead on the objective component. When I consider P.C. Church’s evidence in the context of the circumstances known to him, I am satisfied he subjectively believed that Mr. Njei-Bentley’s ability to operate a motor vehicle was impaired and that he had grounds to arrest Mr. Njei-Bentley and make a breath demand.
[22] I am also satisfied that P.C. Church’s belief was objectively reasonable. In my view, his articulated reasons for his grounds considered along with the information known by him which was provided by Mr. Lumambiajo and the paramedic, easily satisfy the objective component of the reasonable and probable grounds standard. The officer was not required to continue with the ASD procedure prior to making an arrest if sufficient grounds for an arrest were present: R. v. Marrese, [2009] O.J. No. 4467 (SCJ), at para. 19; R. v. Censoni, [2001] O.J. No. 5189, at para. 50. The defence suggested that that officer’s decision to arrest was unreasonable in part because he had been aware that Mr. Njei-Bentley had just woken up and there had been a potential medical emergency. I disagree. The officer was “not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest”: Beaver, at para. 72(6).
[23] When I consider the evidence in its entirety on this issue, I conclude beyond a reasonable doubt that P.C. Church had reasonable and probable grounds to believe that Mr. Njei-Bentley’s ability to operate a conveyance was at least slightly impaired by the consumption of alcohol: Bush, at para. 48. There being no other concerns raised regarding the validity of the breath demand, I am satisfied beyond a reasonable doubt that this element of the refuse offence has been proven by the Crown.
[24] Furthermore, I find that Mr. Njei-Bentley was neither arbitrarily detained nor subjected to an unreasonable search and seizure. His sections 8 and 9 Charter applications are dismissed.
3) The alleged delay in informing Mr. Njei-Bentley of s. 10(b) rights
[25] The defence alleges that the police breached his s. 10(b) Charter right by unreasonably delaying informing him of his right to counsel for 11 minutes following his arrest.
[26] P.C. Church testified that three events accounted for the 11-minute delay. First, he wished to get Mr. Njei-Bentley out of the ambulance and walk him to his cruiser as this was a safer location to conduct his investigation. Second, he conducted a safety search incident to arrest. Third, when he first placed Mr. Njei-Bentley in the back of the police cruiser Mr. Njei-Bentley complained that his handcuffs were very uncomfortable. In response to this complaint the officer had Mr. Njei-Bentley exit the vehicle so that he could re-adjust his handcuffs. “The right to counsel is to be provided 'immediately not instantaneously'. Police officers are not required to hand cuff the accused with one hand and with the other hand read the right to counsel from their notebooks”: R. v. Fisk, 2020 ONCJ 88, para. 51; R. v. Ismail, [2023] O.J. No. 468, paras. 61–62; aff’d 2024 ONCA 945, paras. 7–8. Based on the record before me, I do not find a breach of the informational component of s. 10(b). Furthermore, I note that as in Fisk and Ismail, the police did not elicit any evidence from Mr. Njei-Bentley during the delay in providing him his rights to counsel. Accordingly, if I am wrong and there was a technical breach of s. 10(b), in my view nothing of consequence arises from it for the purposes of s. 24(2) of the Charter: R. v. Culotta, 2018 ONCA 665, paras. 35 and 65; aff’d 2018 SCC 57.
4) The alleged delay in contacting counsel
[27] Mr. Njei-Bentley’s Charter materials allege that the police unreasonably delayed facilitating contact with counsel. In submissions, defence counsel advised that she was not pursuing this argument. Given the evidence I heard, I consider counsel’s position to be reasonable. There was not an unreasonable delay in contacting counsel in this case.
5) The counsel of choice issue
[28] The defence submits that the police interfered with Mr. Njei-Bentley’s right to contact his counsel of choice by not permitting him to speak with his brother. I disagree.
[29] When a detainee requests to speak with a third party for the purpose of assisting in contacting counsel of choice the police are required to facilitate this: R. v. Beals, 2020 ONSC 996, para. 70; R. v. Kumarasamy, [2002] O.J. No. 303, paras. 25–26.
[30] However, the police’s obligation to facilitate contact with counsel of choice and the detainee’s responsibility to take reasonable steps to contact counsel work in tandem. In other words, the steps the police are required to take in contacting a lawyer of choice is dependent upon the reasonable diligence exercised by the detainee in his or her efforts to connect with counsel of choice. Both obligations are assessed on a reasonableness standard: R. v. Edwards, 2024 ONCA 135, para. 36; R. v. Manchulenko, 2013 ONCA 543, para. 65; R. v. Willier, 2010 SCC 37, para. 33; R. v. O’Shea, 2019 ONSC 1514, paras. 30–35.
[31] A portion of the audio from the in-car camera was entered as an exhibit at trial (between 015:17 – 016:20 on the player). It captures the period when Mr. Njei-Bentley first arrived at the police station. An officer can be heard asking Mr. Njei-Bentley who he is calling. Mr. Njei-Bentley responds, “lawyer.” The officer then indicates that they would take the number down because they need to speak with the lawyer too. Mr. Njei-Bentley then says, “I’ll call my brother if he doesn’t pick up cuz…” The officer tells Mr. Njei-Bentley he will have reasonable use of the phone and asks if his brother is a lawyer. Mr. Njei-Bentley responds that his brother is not a lawyer but that he’ll know how to direct him. He also states, “it has been a long time I didn’t talk to him, so I can call my brother.” The officer then says that they will make those arrangements. I consider this interaction to be consistent with Mr. Njei-Bentley attempting to contact his lawyer and explaining to the officer that he would wish to call his brother if his lawyer did not answer the phone.
[32] Following the interaction captured on the in-car camera, Mr. Njei-Bentley was brought before the booking sergeant. A portion of the booking video, between 8:32 a.m. and 8:40:34, was played in court. The video shows Mr. Njei-Bentley asking to speak with his brother. P.C. Church states that Mr. Njei-Bentley has also provided the name and number of a lawyer. The booking sergeant explains to Mr. Njei-Bentley that if he needs to go through his brother to speak with a lawyer the officers will make those arrangements. The officers then advise Mr. Njei-Bentley that they will call his brother on his behalf. Eventually, the booking sergeant clarifies with Mr. Njei-Bentley whether he would like for his brother to know that he was in the police’s care or whether he would like to get a lawyer from him. At this point Mr. Njei-Bentley responded, “no, I would like him to know that I am in your care.” The booking sergeant then advised Mr. Njei-Bentley that they could do that for him. Despite Mr. Njei-Bentley’s insistence on contacting his brother, the result of this interaction is that he clarified for the officers that the reason he wished to do so was for the purpose of letting his brother know he was at the police station rather than to facilitate contact with his lawyer.
[33] P.C. Church testified that Mr. Njei-Bentley provided him with the name and contact information for the lawyer, Adetayo Akimyemi. Mr. Njei-Bentley retrieved this information from his phone. He spoke privately with this lawyer between 8:55 a.m. and 8:59 a.m.
[34] P.C. Church testified that following the call he confirmed with Mr. Njei-Bentley that he was satisfied with the call. He acknowledged he did not write in his notes that he had done this but maintained that he was sure that he had done so because he had an independent recollection of the conversation and because doing so was part of his training. The significance of an omission in an officer’s notes must be assessed on a case-by-case basis: R. v. Machado, 2010 ONSC 277, paras. 120–124; R. v. Brown, 2014 ONSC 1383, paras. 19–27. In this case, I find that P.C. Church was an honest and careful witness. I accept his uncontradicted evidence on this point. He was not shaken in cross-examination, and I do not consider it unreasonable that he as a junior officer would recall that he acted in accordance with his training in what was one of his first investigations. Nor did I find that his credibility was undermined because he omitted to include this detail in his notes. Again, given his inexperience it is understandable that his notes were imperfect.
[35] Finally, I observe that there is no evidence that Mr. Njei-Bentley requested to contact a different lawyer than the one he spoke with.
[36] Mr. Njei-Bentley bears the onus of establishing a breach of the implementational duties under s. 10(b): R. v. Van Binnendyk, 2007 ONCA 537, para. 11; R. v. Duerksen, 2018 BCCA 46, paras. 25–41; R. v. Gardner, 2021 ONSC 3468, para. 62; R. v. Tarapaski, 2022 MBCA 74, para. 52; R. v. Julom, 2022 ABCA 198, paras. 100–104. This includes the burden of showing that he only spoke to the lawyer he did because he misunderstood his rights: R. v. Ghotra, 2020 ONCA 373, paras. 38–40. For the reasons given, I find that Mr. Njei-Bentley has not demonstrated that the police failed to facilitate contact with his counsel of choice.
6) The refusal to permit a second consultation with counsel
[37] The defence argues that the police infringed s. 10(b) of the Charter by failing to afford him a second opportunity to consult with counsel.
[38] Generally, a single consultation with counsel will be constitutionally sufficient. There are three non-exhaustive categories of exceptional circumstances that can trigger a police obligation to provide a detainee with a second opportunity to speak with counsel:
(1) the police invite the accused to take part in non-routine procedures that counsel would not consider at the time of the initial consultation;
(2) there is a change in jeopardy that could affect the adequacy of the advice received during the initial consultation; and
(3) there is reason to question the detainee's understanding of his rights.
R. v. Sinclair, 2010 SCC 35, paras. 49–52; R. v. Lafrance, 2022 SCC 32, para. 72.
[39] There was no suggestion by the defence that either the first or second category was in play at this trial.
[40] Regarding the third category, this can arise in situations where the police have either undermined the legal advice the detainee has received or damaged the detainee’s confidence in the lawyer they spoke to. Additionally, this can occur when there are objective indications that the consultation was deficient in a material way such that there are reasons to question the detainee’s understanding of his or her rights. General confusion or a need for help is not sufficient to require an additional consultation: Sinclair, at paras. 52–53; Lafrance, at para. 86. Nor is a request, without more, sufficient to retrigger the s. 10(b) right to counsel: Sinclair, at para. 65. An assessment of the third category requires a broad inquiry into all the circumstances: Lafrance, at para. 79.
[41] There is no evidence that the police either undermined the advice Mr. Njei-Bentley received from counsel or weakened his confidence in his lawyer.
[42] Mr. Njei-Bentley, while in the breath room, repeatedly asked to speak with his lawyer and made multiple references to having his lawyer present. He also repeatedly told the breath technician that he did not understand his rights. Notwithstanding these observations, when I consider Mr. Njei-Bentley’s entire interaction with the police, I do not believe Mr. Njei-Bentley’s claim that he did not understand his rights.
[43] When P.C. Church read Mr. Njei-Bentley his rights to counsel, Mr. Njei-Bentley indicated he understood. The police facilitated contact with Mr. Njei-Bentley’s counsel of choice, after which P.C. Church confirmed that Mr. Njei-Bentley was satisfied with the call.
[44] With regards to Mr. Njei-Bentley’s interactions with the breath technician, P.C. Lang, I find it significant that Mr. Njei-Bentley responded inconsistently regarding his understanding of the breath demand and the consequences for not complying with that demand.
[45] At 9:11 a.m. P.C. Lang explained to Mr. Njei-Bentley that he was making a lawful demand pursuant to the Criminal Code of Canada. Mr. Njei-Bentley nodded along. The officer then explained that the demand compelled Mr. Njei-Bentley to provide samples of his breath and that if he did not do so he would be charged with refusing to provide a breath sample. Mr. Njei-Bentley responded, “ok.” The officer then asked again if Mr. Njei-Bentley understood there were consequences to not providing samples and Mr. Njei-Bentley again responded, “okay.” Based on the officer’s clear explanations and Mr. Njei-Bentley’s verbal responses and nodding it is clear to me that Mr. Njei-Bentley understood the nature of the demand and the consequences for non-compliance. Immediately after, at 9:12, P.C. Lang again read the breath demand and asked Mr. Njei-Bentley if he understood. Mr. Njei-Bentley responded, “no.”
[46] When asked what part of the demand he did not understand, Mr. Njei-Bentley responded that he felt he had been mistreated by the police. When the officer asked Mr. Njei-Bentley if he wished to read the demand himself Mr. Njei-Bentley refused, indicating that he was not a lawyer. This conveyed to me that Mr. Njei-Bentley was not interested in seeking clarification about what the officer was saying to him. Between 9:13:36 and 9:13:45, the officer then again asked Mr. Njei-Bentley whether he understood that he was requiring him to provide samples and that if he refused to comply he could be charged with a criminal offence. Mr. Njei-Bentley indicated he understood all of this. At 9:18, P.C. Lang again read the breath demand to Mr. Njei-Bentley and asked him if he understood. This time Mr. Njei-Bentley responded, “I do not understand.” Despite having indicated at 9:11 and 9:13 that he understood the nature of the breath demand Mr. Njei-Bentley reverted at 9:18 to advising the officer that he did not understand. Between 9:19:20 – 9:20:05, P.C. Lang asked Mr. Njei-Bentley if he understood that by refusing to provide samples of his breath, he would be charged with an offence Mr. Njei-Bentley claimed to not understand. This response was clearly unbelievable given Mr. Njei-Bentley’s previous responses. I note later during the breath room interaction Mr. Njei-Bentley returned to acknowledging that he did understand the nature of the demand and that there would be criminal consequences if he refused to provide samples of his breath.
[47] Mr. Njei-Bentley’s assertions that he did not understand the breath demand or the consequences for not complying with that demand were in my view transparent attempts to delay or avoid providing samples of his breath. Given that context, I am persuaded that Mr. Njei-Bentley’s repeated assertions that he did not understand his rights were similarly an attempt to avoid providing breath samples.
[48] Additionally, while Mr. Njei-Bentley repeatedly asserted to P.C. Lang that he did not understand his rights, his only explanations regarding this related to expressing his displeasure regarding how he perceived he had been mistreated by the police and explaining that he had never been in a situation like this before.
[49] Furthermore, I do not find that Mr. Njei-Bentley was indicating that he believed he was entitled to have his lawyer present. Instead, I find that he expressed that he wanted to have his counsel attend. There was no evidence led that Mr. Njei-Bentley was advised by counsel that he had a right to have a lawyer present prior to providing breath samples: see similarly, R. v. Hunter, 2023 ABCA 201, para. 23. Furthermore, when Mr. Njei-Bentley first indicated that he wanted his lawyer present, P.C. Lang advised him that his lawyer would not be attending. Mr. Njei-Bentley responded, “okay” and did not appear to express any surprise by that.
[50] I have considered the entire record before me of Mr. Njei-Bentley’s interactions with the police as well as his particular vulnerabilities. He is a racial minority who advised the police he had never been arrested before. At the same time, he is not especially young, being in his 30s, and he presented on video as a confident person, who spoke English fluently. He was also not shy to assert himself – indeed, he repeatedly told the police he wished to remain silent. Furthermore, despite Mr. Njei-Bentley’s claims during the breath video that he was mistreated by the police I was presented with no evidence to that effect. The evidence of P.C. Church, P.C. Lang, and the videos filed show that the police were polite and courteous with Mr. Njei-Bentley throughout their interactions with him.
[51] When I consider all the circumstances, I do not find that there were objective indicators that Mr. Njei-Bentley did not understand his s. 10(b) rights. On the contrary, I find that Mr. Njei-Bentley’s claims to not understand his rights were insincere and attempts to avoid providing breath samples.
[52] I do not find that the police were obliged to permit Mr. Njei-Bentley to have another consultation with counsel prior to continuing with the breath procedure.
7) Section 24(2) of the Charter
[53] In view of my findings on the Charter applications, it is unnecessary to consider s. 24(2) of the Charter. I will briefly indicate that if there was a s. 10(b) breach relating to the delay in reading Mr. Njei-Bentley his rights to counsel, I would consider this to be a very minor breach which had no impact on Mr. Njei-Bentley. In my view, excluding the actus reus of the offence would not be appropriate.
8) Has the Crown proven the offence beyond a reasonable doubt?
[54] Mr. Njei-Bentley is presumed innocent. It is the Crown’s onus to prove each of the essential elements of the offence charged beyond a reasonable doubt.
[55] To prove the actus reus of the offence, the Crown must prove that the police made a lawful demand under either s. 320.27 or 320.28, and that the accused either "fail[ed]" or "refus[ed]" to comply. In cases involving the refusal branch of the offence, the accused must be proved to have refused "unequivocally": Degiorgio, at para. 42; Khandakar, at para. 18.
[56] The jurisprudence is divided about whether the mens rea for the offence requires proof that the accused intentionally refused to provide a breath sample or whether the Crown need only prove that the accused would know their conduct would have that result: Khandakar, at para. 19 (citing: R. v. Porter, 2012 ONSC 3504; R. v. Lewko, 2002 SKCA 121; R. v. Soucy, 2014 ONCJ 497; R. v. Slater, 2016 ONSC 2161; R. v. Mtonga, 2021 ONSC 1482).
[57] As mentioned earlier, the only argument raised with respect to the validity of the demand was the challenge to the demanding officer’s grounds. For the reasons already given, I have resolved that issue in favour of the Crown. I am satisfied beyond a reasonable doubt that there was a valid demand.
[58] The breath room video also makes it abundantly clear that Mr. Njei-Bentley unequivocally refused or failed to provide samples of his breath. He repeatedly indicated that he would not provide a sample despite being explained that he was required to do so and the criminal consequences of failing to do so. He refused to take the mouthpiece when it was handed to him. He also refused to blow into the machine when it was presented to him. There was nothing ambiguous about his words or actions.
[59] The Crown has proven the mens rea for the offence regardless of which approach from the jurisprudence is used. Applying the more stringent approach, Mr. Njei-Bentley’s words and actions make it clear beyond a reasonable doubt that he intentionally was refusing to provide samples of his breath. At no point did Mr. Njei-Bentley make any attempt to provide a sample or indicate that he was willing to do so.
[60] “A ‘reasonable excuse’ refers to something outside the essential elements of an offence. An excuse speaks to whether an accused should be held accountable for what otherwise would be a crime”: R. v. Armstrong, 2011 ONCA 709, para. 9. The only potential reasonable excuse raised in this case is that Mr. Njei-Bentley expressed a desire to speak with counsel again prior to providing breath samples. I find that he did not have a right to do so. Any assumption he may have had in that regard would not afford him a reasonable excuse: see R. v. Gentile, 2012 ONSC 4898, para. 49; R. v. Van Deelen, 2009 ONCA 53; R. v. Kumar, 2016 ONSC 7928, para. 102. I am satisfied beyond a reasonable doubt that Mr. Njei-Bentley did not have a reasonable excuse to refuse to comply.
[61] In summary, I am satisfied beyond a reasonable doubt that Mr. Njei-Bentley intentionally and unequivocally refused or failed to comply with a valid demand to provide samples of his breath and that he did so without a reasonable excuse.
CONCLUSION
[62] For the reasons given, the Charter applications are dismissed, and Mr. Njei-Bentley is found guilty of failing or refusing to comply with a lawful demand to provide samples of his breath, contrary to s. 320.15(1) of the Criminal Code.
[63] The Crown acknowledges that it cannot prove the impaired operation charge. That count is accordingly dismissed.
Released: January 28, 2025
Signed: Justice Joseph Hanna