COURT FILE AND PARTIES

COURT FILE NO.: 11-1-032-00AP
DATE: 20120620
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Jeffrey Porter

BEFORE: M. A. Code J.

COUNSEL:
Richard Litkowski , for the Appellant
Brad Demone , for the Crown/Respondent

HEARD: June 15, 2012

ENDORSEMENT

A. INTRODUCTION

[ 1 ] The Appellant Jeffrey Porter (hereinafter, Porter) was convicted by Cavion J. of failing or refusing to comply with a demand for a roadside breath sample, contrary to s. 254(2) and (5) of the Criminal Code . The trial was conducted over two days, on December 21 and 22, 2010. Cavion J. reserved judgment and on January 31, 2011 he released written Reasons for judgment, finding the Appellant guilty. On February 7, 2011 he sentenced Porter to a $1,000 fine and to the mandatory twelve month driving prohibition.

[ 2 ] Porter now appeals to this court from his conviction and advances a number of grounds of appeal. At the end of oral argument I reserved judgment. These are my Reasons for judgment.

B. FACTS

[ 3 ] The facts can be briefly stated as the issue in the case was a narrow one. Constable Manmohen Gandhi stopped Porter at a R.I.D.E. spot check in Toronto on December 22, 2009. It was 12:44 a.m. in the morning. Porter denied having had anything to drink and moved away from P.C. Gandhi who, nevertheless, detected alcohol on Porter’s breath and also noted that he had red eyes and a flushed face. He was wearing a long winter coat.

[ 4 ] P.C. Gandhi made the statutory demand for a roadside breath sample. He explained to Porter how to blow into the roadside screening device, by making a tight seal and blowing until he was told to stop. A new mouthpiece was attached to the device. Porter then made five attempts to provide a suitable sample but each attempt resulted in an “error” reading. P.C. Gandhi explained to Porter that he was not blowing hard enough and warned him that he would be charged with failing to provide a suitable sample. P.C. Gandhi then demonstrated how to blow into the device by putting a fresh mouthpiece on it, blowing into it, and registering a “zero”. He gave it back to Porter with another fresh mouthpiece and Porter made four more unsuccessful attempts to provide a sample. At this point he was arrested. It was 12:49 a.m.

[ 5 ] P.C. Gandhi agreed that Porter was actually blowing into the device on his various attempts. He was simply not blowing for a long enough time. Porter was standing outside while he made the nine attempts to provide a sample. After he was arrested, and placed in the back of the police car, a strong smell of alcohol was detected in the police car by the second officer, P.C. Braida.

[ 6 ] The Appellant Porter testified. He owns and operates a funeral business. He had been sick at the time of the R.I.D.E. stop, apparently “for about the last week”, with a cough and fever. He had been working and he had not seen a doctor. On the day in question, he left his office and went to an annual Christmas party at a restaurant, arriving at about 10:30 or 11:00 p.m. He left the party and was heading back to the office to continue working when he was stopped at the R.I.D.E. spot check. He was feeling cold and was “getting sick”.

[ 7 ] Porter explained that his failure to provide a suitable sample was due to a combination of his illness, the cold air outside, and being out of breath from the repeated attempts. He testified that he advised P.C. Gandhi of these difficulties, telling him “I’ve got a cold. I am not getting the lung … I’m trying to provide the best sample I can. I’m blowing as hard as I can.” He also told P.C. Gandhi, “I have been trying these bursts two, three times to really do it but fourth, fifth, I’m out of breath. I need a little break.” He also told the officer that he preferred to do the test inside the police car as the air outside was cold.

[ 8 ] Porter agreed, both in-chief and in cross-examination, that P.C. Gandhi demonstrated how to blow into the device by actually doing it himself and then handing it back to Porter. However, Porter then qualified these two previous answers by testifying, “I don’t remember him providing a sample”.

[ 9 ] Porter’s alleged utterances at the roadside were put to P.C. Gandhi in cross-examination. P.C. Gandhi recalled Porter saying “I am blowing” but not saying that he had a cold, that he was having a hard time, that he was getting winded, or that he was cold and wanted to sit in the car. P.C. Gandhi testified that he told Porter, “Sir, you are not blowing hard into the machine, blow hard until I say ‘stop’”. He would show Porter the “error” reports and would keep repeating the instruction “to blow consistently and hard enough into the machine until I say ‘stop’”. Porter would keep saying, “okay, I’m blowing into it”. P.C. Gandhi agreed that it was cold that night. He disagreed, however, with the suggestion that Porter “could have” made the various utterances about having a cold and having difficulty breathing.

[ 10 ] In addition to Porter’s evidence, the defence tendered a report from a toxicologist which I will refer to in greater detail below.

C. LAW

[ 11 ] The Appellant submits that the trial judge made three separate errors: he misapplied the burden of proof; he misapprehended evidence in a number of ways; and he gave insufficient reasons for rejecting the Appellant’s evidence.

[ 12 ] I will address these three grounds of appeal in their order of increasing difficulty.

(i) Failure to provide sufficient reasons

[ 13 ] The central factual issue in the case was whether Porter was genuinely trying to provide a suitable sample or whether he was feigning compliance with his statutory duty. In this regard, Porter explained that he had a cold, he was short of breath, it was too cold outside, and he wanted to do the test inside the police car. He testified that he provided these explanations to P.C. Gandhi at the roadside. P.C. Gandhi denied Porter’s account. This dispute between the two key witnesses raised an important issue of credibility.

[ 14 ] The Appellant submits that the trial judge gave insufficient reasons for rejecting Porter’s account. The functional and substantive test for assessing the sufficiency of reasons, in relation to issues of credibility, was set out by the Court in R. v. M.(R.E.) (2008), 2008 SCC 51 , 235 C.C.C. (3d) 290 at paras. 48-50 and 54-6 (S.C.C.). This approach requires deference to the trial judge and recognizes the difficulty of articulating findings of credibility but requires that the trial judge’s reasons show that he “has seized the substance of the issue”.

[ 15 ] Applying the R.E.M. approach, I am satisfied that Cavion J. gave sufficient reasons. As already noted, he reserved judgment and delivered written Reasons. These Reasons began by fully and fairly summarizing the evidence, both for the Crown and for the defence, and by making some preliminary findings of fact. At the end of his summary, the trial judge had clearly grasped the central issue in the case, as he set out the essence of Porter’s explanation for his repeated failures to provide a suitable sample. The trial judge then reviewed the submissions of counsel and made further findings on some of the more peripheral or obvious points. Finally, he set out his conclusions on the central issue of Porter’s explanation and his credibility.

[ 16 ] Taking the trial judge’s Reasons as a whole, I am satisfied that a sufficient basis was provided to explain why the Appellant’s account was rejected. In particular, the trial judge made the following findings:

• He held that the roadside test is not difficult to perform. In this regard, see also: R. v. Sun , [2008] O.J. No. 5898 at para. 15 (S.C.J.) where Belobaba J. noted that “blowing into a mouthpiece is not rocket science”;

• He noted that Porter had been drinking and that he “moved away” from the officer;

• He twice described Porter as an intelligent, sophisticated business executive who was used to stressful situations and who was not intimidated by authority;

• He noted Porter’s evidence, to the effect that he had not been “feeling well that entire week” but that he had nevertheless gone to work, he had not seen a doctor, he had attended a Christmas party for “several hours” that evening, and he was heading back “to his office”, after twelve midnight, in order to do more work. He was thirty-nine years old and he had not seen a doctor in ten years;

• He was given nine separate opportunities to provide a suitable sample, with a break in between during which he was given a warning and a demonstration. Porter had conceded that the officer “demonstrated how to provide a sample”.

[ 17 ] In light of the above five findings, the reasons why the trial judge concluded that “Mr. Porter’s explanation does not raise a reasonable doubt” and why “I do not accept he was so ill he could not physically provide a breath sample”, was sufficiently explained. Mr. Litkowski conceded, when pressed on this point, that his real complaint is that the trial judge never collected all these various findings together and set them out in one place, at the end of his Reasons, and expressly stated that he rejected the Appellant’s evidence for these five reasons. I agree that it would have been better if the trial judge had done this. However, this complaint is really one about style. Read as a whole, the Reasons set out an understandable and sufficient basis for the rejection of the accused’s explanation.

[ 18 ] Mr. Litkowski also submitted that the trial judge gave insufficient reasons as to why he accepted P.C. Gandhi’s evidence. I disagree. The trial judge was critical of P.C. Gandhi’s note-taking but he went on to stress that “notes are simply an aide-memoire, they are not evidence”. More importantly, he held that P.C. Gandhi’s notes and his evidence were consistent on the core issues and, in any event, there was no real dispute as to the basic facts of the case: Porter was a sophisticated and capable individual who was given numerous opportunities, with a warning and a demonstration in between, in relation to a task that was not difficult. Once the trial judge rejected Porter’s explanation as to why he failed to provide a suitable sample, and once he found that Porter had not “expressed any concern to the police about his physical problems”, the Crown’s case became very straightforward.

[ 19 ] The first ground of appeal, therefore, cannot succeed.

(ii) Misapprehension of evidence

[ 20 ] The test in law for this ground of appeal is “stringent”. The trial judge must either fail to consider or misstate evidence that is “material rather than peripheral” and that plays “an essential part in the reasoning process”. See: R. v. Lohrer (2004), 2004 SCC 80 , 193 C.C.C. 1 at para. 2 (S.C.C.); R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at 218 and 221 (Ont. C.A.).

[ 21 ] The Appellant submits in his Factum that there were three separate instances where the trial judge misapprehended evidence: he failed to consider Porter’s evidence; he misstated Porter’s evidence about conceding the demonstration; and he failed to consider the expert toxicologist’s report.

[ 22 ] The first submission was not pressed in oral argument. As noted above, the trial judge fully and fairly set out the Appellant’s account, grasped the substance of the issue that was raised, and then rejected his evidence. There can be no suggestion that Porter’s evidence was misapprehended in the legal sense of that term.

[ 23 ] The second submission is also untenable. Porter twice testified, both in-chief and in cross-examination, that P.C. Gandhi “tried the machine himself” and that P.C. Gandhi actually “blows into the machine” during the demonstration. Porter then retreated somewhat from these concessions and testified, “I don’t remember him providing a sample”. The trial judge was entitled to find, on this record, that Porter had “conceded that … the officer demonstrated how to provide a sample”.

[ 24 ] The third submission, concerning the toxicologist’s report, is true in the limited sense that the trial judge made no reference to the report in his Reasons. However, the report was of little value, which likely explains why the Crown consented to its admission in hearsay form. The toxicologist prepared his report prior to trial and, necessarily, had not based his report on the evidence actually heard at trial. As a result, the report’s main use was to explain how the ASD device works, how it can take a number of attempts to provide a sample, and how different people have different capacities. This was useful background information but on the central issue in the case it provided little help. As defence counsel conceded in his closing submissions, after he had reviewed the parts of the report on which he relied:

And lastly, right at the end of page seven, I mean the toxicologist or anybody I don’t think would come to court and say, ‘This guy couldn’t provide a sample’. That’s going to be a difficult proposition for anybody … it’s not a situation where the report says he couldn’t provide a sample, it’s possible.

[ 25 ] I am not satisfied that the trial judge failed to consider the toxicologist’s report. It was simply not “material rather than peripheral” to the main issue at trial and it was not “an essential part in the reasoning process”, as Binnie J. and Doherty J.A. put it in Lohrer and in Morrissey , and so it was unnecessary to refer to it in the Reasons.

[ 26 ] Accordingly, the second ground of appeal cannot succeed.

(iii) Failure to apply the burden of proof

[ 27 ] This ground of appeal is of some interest and some difficulty. The Appellant submits that the trial judge reversed the burden of proof, when rejecting the Appellant’s explanation concerning his inability to provide a sample, by placing a persuasive burden on the defence on a balance of probabilities.

[ 28 ] The Appellant’s explanation, that he was genuinely trying to provide a breath sample but failed to do so because of a combination of illness, the cold air, and being winded, was said to be relevant to proof of either the mens rea or the actus reus of the offence. It also potentially raised a defence of “reasonable excuse”. The former use of the evidence relates to essential elements of the offence on which the burden of proof rests firmly on the Crown. The latter use of the evidence relates to a defence of excuse on which the burden of proof rests on the accused.

[ 29 ] The law in Ontario is not entirely clear on various aspects of these points. In my view, it is not necessary in this particular case to definitively resolve some of the debates in the case law surrounding these issues.

[ 30 ] The conduct element or actus reus of the offence enacted in s. 254(5) “consists of a proper demand and a refusal or failure to comply with that demand”, as Doherty J.A. put it in his concurring reasons in R. v. Moser (1992) , 71 C.C.C. (3d) 165 at para. 33 (Ont. C.A.). Doherty J.A. then went on to make clear that the separate “defence of ‘reasonable excuse’ is not a denial of either of those essential elements but refers to ‘matters which stand outside of the requirements that must be met … before a charge can be supported’: per Laskin C.J.C. in R. v. Taraschuk (1977) , 25 C.C.C. (2d) 108 at 110 (S.C.C.). The defence of ‘reasonable excuse’ is engaged only after the Crown has proved a proper demand and a failure or refusal to comply with that demand.” The reasons in Moser do not discuss the mens rea of the offence.

[ 31 ] These principles are easy to apply in a case where the facts disclose an outright or express “refusal” to provide a sample, as in Moser itself. If the express “refusal” is knowing and conscious (assuming that s. 254(5) enacts a crime of general intent and not a crime of specific intent, a point that I will discuss shortly), then the Crown will have proved the essential elements of the offence and any explanation will only excuse if it amounts in law to a “reasonable excuse”. However, in a case where the accused appears to be trying to provide a sample but does not succeed, due to some explanation advanced at the roadside or at trial, the “bright line” distinction in Moser between the elements of the offence and an extraneous excuse becomes harder to maintain. In R. v. Bijelic (2008) , 77 W.C.B. (2d) 118 at para. 30 (Ont. S.C.J.), Hill J. explained how “the totality of the circumstances” is relevant to the actus reus in some cases:

A “feigned attempt is the equivalent of a refusal”. R. v. Young , [2007] O.J. No. 1776 (C.A.) at paras. 1-2 ; R. v. White , [2005] N.S.J. No. 62 (C.A.) at para. 9 ; R. v. Weare , [2005] O.J. No. 2411 (C.A.) at para. 1 . Whether the motorist’s conduct can be said to amount to behaviour of faking or feigning an attempt to comply with the police demand, the actus reus of refusal, depends on the totality of the circumstances . R. v. Cunningham (1989) , 49 C.C.C. (3d) 521 (Alta. C.A.) at 533. Evidence of a refusal may arise from conduct of the detained motorist, his or her statements to the officer in the course of the ASD testing process, or from a combination of conduct and statements. Refusal to comply may be quite express or may logically be inferred from the totality of the detained driver’s behaviour . As noted by Côté J.A.in Cunningham , at 533:

In my view what is a refusal depends on all the circumstances of each individual case. A single conversation may contain many twists, turns, or pauses, and one should not dissect it minutely or take a single sentence out of context. [Emphasis added].

It can be seen that Hill J. was addressing a constructive “refusal” as the actus reus of the offence in the above passage in Bijelic , and not an express or outright “refusal” as in Moser .

[ 32 ] Kenkel J. analyzed the law on this point, to generally similar effect, in R. v. Tavangari (2002), 28 M.V.R. (4 th ) 104 at paras. 15-16 and 22 (Ont. C.J.) :

In considering whether the Crown has proved beyond reasonable doubt that the accused has refused or wilfully failed to comply with a screening device demand, the court must look at all of the circumstances of the entire transaction between the police officer and the accused . See: R. v. Domik [1979] O.J. No. 1050 (Ont. H.C.J.) at paras. 4 and 5 , affirmed [1980] O.J. No. 642 (Ont. C.A.) , R. v. Taylor [1998] O.J. No. 2167 (Ont. S.C.) .

These cases typically involve conversation between the parties that is likely to be unique , as well as a variety of circumstances which tend to combine in ways that again are particular to the case. There can be no specific rules isolating one factor, such as the number of tests to be conducted, from the other circumstances of a transaction to determine whether there has been a failure to provide a sample. Each case must be individually assessed, looking at all of the circumstances of the transaction between the officer and the accused as a whole, to determine whether the Crown has proved a refusal or failure within the meaning of s. 254(5) . [Emphasis added].

In the above passage in Tavangari , Kenkel J. appears, for the most part, to be addressing cases where a “failure” to provide a sample is the actus reus . Kenkel J. also states that the mens rea is “wilfully” failing to provide a sample. However, s. 254(5) does not enact the important element of “wilfulness” and is actually silent as to the mens rea , a point that I will address below. See: R. v. Docherty (1989) , 51 C.C.C. (3d) 1 at 7 (S.C.C.), a case that dealt with the old offence of “wilfully” failing or refusing to comply with a probation order. The Court held that Parliament’s use of the term “wilfully” indicates “a legislative concern for a relatively high level of mens rea ” that was akin to “purpose”. Leaving aside the mens rea issue, the authorities analyzed in both Bijelic and Tavangari are clear that “all of the circumstances” are relevant to the actus reus , especially in cases of constructive “refusal” and in cases of “failure”. This evidence would appear, as a matter of common sense, to include any explanation advanced at the roadside for the accused’s failed efforts.

[ 33 ] Turning to the mens rea component of the offence, in R. v. Sullivan , [2001] O.J. No. 2799 (Ont. C.J.) , Duncan J. dealt with a case involving an asthmatic accused who had made “numerous attempts” to provide a suitable sample but had failed to do so. Duncan J. held that the evidence of his asthma was relevant to the “intentional quality of that failure”, in other words, to the mens rea of the offence. More recently, in R. v. Westerman , [2012] O.J. No. 87 (Ont. C.J.) , Duncan J. repeated this view, namely, that excuses or explanations are relevant to the mens rea of s. 254(5) offences. The main case relied on was R. v. Lewko (2002) , 169 C.C.C. (3d) 359 at para. 9 (Sask. C.A.) where it was held that “the Crown must prove that the defendant intended to produce that failure (the mens rea )” [Emphasis added]. There are a number of other trial judgments that have followed Lewko and/or Sullivan . See: R. v. Campbell (2008), 77 W.C.B. (2d) 360 (Ont. S.C.J.) ; R. v. Stanley (2003), 42 M.V.R. (4 th ) 95 Ont. S.C.J.); R. v. Manak (2008), 77 W.C.B. (2d) 233 (Ont. C.J.) ; R. v. Tahlan , [2011] O.J. No. 3489 (Ont. C.J.) ; R. v. Loi , [2012] O.J. No. 1265 (Ont. C.J.) ; R. v. Dolphin (2004), 12 M.V.R. (5 th ) 209 (Man. Q.B.) . These cases interpret the element of intention as meaning a desire or purpose of bringing about an unsuitable test result.

[ 34 ] None of these cases cite any higher authority than Lewko and the Court in Lewko does not cite any authority on the mens rea point. It seems to me that the flaw in these cases is that they treat the mental element enacted by s. 254(5) as a specific intent rather than a general intent, that is, they read in the term “wilfully”. It must be remembered that s. 254(5) is silent as to the mens rea and so the legislative intent on this point, as to the level of mens rea , is a matter of judicial interpretation. There is a strong line of binding authority to the effect that where a criminal offence is silent as to the mens rea , and where the actus reus is the doing of some immediate act without any ulterior consequence, then knowledge or recklessness as to the doing of the prohibited act is a sufficient mens rea . These principles have particularly been applied in the context of criminal driving offences, sexual assault offences, and drug possession offences. The fact that Parliament included the term “wilfully” in the old s. 666(1) offence of “fails or refuses to comply” with a probation order, but did not include it in s. 254(5), tends to support the view that s. 254(5) enacts a crime of general intent. It should also be noted that, after Docherty , Parliament enacted the modern offence of “fails or refuses” to comply with a probation order in s. 733.1 and removed the old “wilfully” requirement, while adding a “reasonable excuse” defence. As a result, s. 733.1 now tracks the statutory terms found in s. 254(5) and Docherty has been legislatively reversed in the context of breaches of probation. See: R. v. Docherty , supra; R. v. Prue and Baril (1979) , 46 C.C.C. (2d) 257 (S.C.C.); R. v. Buzzanga and Durocher (1979) , 49 C.C.C. (2d) 369 at 381 (Ont. C.A.); R. v. Pappajohn (1980) , 52 C.C.C. (2d) 481 at 487-493 (S.C.C.); R. v. Sansregret (1985) , 18 C.C.C. (3d) 223 at 232-3 (S.C.C.); R. v. Chase (1987) , 37 C.C.C. (3d) 97 at 104 (S.C.C.); R. v. Beaver (1957) , 118 C.C.C. 129 (S.C.C.); R. v. Sault Ste. Marie (1978) , 40 C.C.C. (2d) 353 at 362 and 373 (S.C.C.); R. v. Lock (1974) , 18 C.C.C. (2d) 477 (Ont. C.A.); R. v. Ford (1982) , 65 C.C.C. (2d) 392 (S.C.C.); R. v. Toews (1985) , 21 C.C.C. (3d) 24 (S.C.C.).

[ 35 ] In the Lewko and Sullivan line of cases, the accused all knew that they were failing to provide a suitable sample. Indeed, there had been repeated failed attempts with no suggestion that the accused was unaware of the failures. In other words, it could be inferred that the accused had a general or basic intent in relation to the prohibited act. Their reason for failing to provide a suitable sample was simply their motive, explanation, or excuse and not their intent. See: R. v. Lewis (1979) , 47 C.C.C. (2d) 24 at 33-6 (S.C.C.); R. v. Hibbert (1995) , 99 C.C.C. (3d) 193 at 205-214 (S.C.C.). Hibbert makes clear that even paraticularly compelling excuses, like duress, cannot negative mens rea .

[ 36 ] All of the leading text writers take the view, when applying mens rea or intention to the doing of an immediate act, that knowledge is the basic mens rea in these kinds of offences and that it must be kept distinct from the accused’s motives and excuses. For example, Professor Stuart, in Canadian Criminal Law , 2011 Thomson Reuters, 6 th Ed. at p. 234 states:

A person who goes to a dentist intends to go there even if he or she has no real desire to do so. Subjective mens rea is a concept of cognitive awareness and no more. It seems wise that the Court wishes to avoid an inquiry into desires which may be hidden and complex. The courts have similarly distinguished the issue of motive. A motive for an act is the explanation of why the actor acted.

Similarly, in his Textbook of Criminal Law , 1983 Stevens and Sons, 2 nd Ed. at p. 76, Glanville Williams states:

You have defined intention in relation to consequences. Don’t we speak of an act itself as being intentional?

Yes. We may quite properly say, for example, that D intentionally trespassed over V’s land, or that D. intentionally went through a bigamous ceremony of marriage – without referring to, or implying any consequence. We say that bodily movement (like speaking, writing, gesturing, walking) is intentional if it is conscious or heedful, meaning that the actor in a sense knows what he is doing when he does it. He need not consciously attend to his movements, but they are purposive and are under his control.

Also see: Manning, Mewett and Sankoff, Criminal Law , 2009 Lexis Nexis, 4 th Ed. at pp. 165-171, where the authors note that modern Canadian law is to the effect that “motivation should not be confused with intention”, but rather “should be addressed instead as an excuse”, and that “most of the common terms regarding intent … can and have been interpreted so as to focus on knowledge of an outcome”. Although the authors dislike the terminology “specific intent” and “general intent”, they agree that “the concept of some crimes requiring a further objective while others merely require a present knowledge is a valid distinction”[Emphasis in the original].

[ 37 ] For all these reasons, I cannot agree with the Lewko and Sullivan line of authority. In my view, the mens rea enacted in s. 254(5) is knowledge or awareness of the prohibited act.

[ 38 ] Assuming that evidence of explanations or excuses is relevant to the actus reus of the s. 254(5) offence, in some cases of failed attempts to provide a sample, there is undoubtedly a strong body of case law holding that such evidence is also relevant to the defence of “reasonable excuse”. These cases, some of which are binding, place a burden of proof on the defence on a balance of probabilities. See: R. v. Moser , supra at paras. 15, 18 and 42 ; R. v. Peck (1994) , 1 M.V.R. (3d) 197 (N.S.C.A.); R. v. Rai (2005) , 17 M.V.R (5 th ) 296 at para. 75 (Ont. S.C.J.) ; R. v. Malicia (2004) , 68 W.C.B. (2d) 694 at para. 32 (Ont. S.C.J.) ; R. v. Sullivan , supra at para. 17. Accordingly, this body of evidence can apply in two quite distinct legal contexts.

[ 39 ] In the case at bar, I am satisfied that the trial judge placed the burden of proof on the Crown in relation to the elements of the offence. In this context, he addressed Porter’s explanation or excuse for his failed attempts by applying the well-known principles in R. v. D.(W.) (1991) , 63 C.C.C. (3d) 397 (S.C.C.). That case, of course, places the burden of proof on the Crown when resolving any issues of credibility that relate to the essential elements of the offence. Cavion J. stated the following, in this regard:

However, I certainly endorse the application of the well-known principles outlined in R. v. W.D.

After hearing the evidence and listening to the submissions, I find that Mr. Porter’s explanation does not raise a reasonable doubt . Mr. Porter is an intelligent and astute business man. He is accustomed to dealing with people from all walks of life and often in high stress situations. He is not shy nor is he intimidated by authority. I do not accept he was so ill he could not physically provide a breath sample . There is no indication he expressed any concern to the police about his physical problems. [Emphasis added].

[ 40 ] Having rejected Porter’s evidence at this stage of his Reasons on the more favourable reasonable doubt standard, in relation to proof of the elements of the offence, it was not strictly necessary for the trial judge to go on and consider that evidence again in the context of a defence of “reasonable excuse”. Nevertheless, the trial judge proceeded to address this further issue in the following terms:

I agree that the category of “reasonable excuse” is an open one, but as the O.C.A. has stated in R. v. Moser , the accused has the onus to show he had a reasonable excuse.

But more significantly, aside from Mr. Porter’s bald assertion that “the failure to provide a sample was due to my cold and cold air” there is not a scintilla of evidence that there is any connection between that excuse and the inability to provide a suitable sample. For his excuse to have any legs, there must be some credible evidence of correlation. I find there is none. In my view, Mr. Porter has not discharged the onus to show that having a cold and flu like symptoms prevent a person from providing a suitable sample. In other words, it is my opinion that simply saying, “I had a cold and it was cold outside” is by itself not a reasonable excuse.

[ 41 ] Defence counsel at trial had argued that Porter’s conduct at the roadside, that is, whether he was genuinely trying or merely feigning compliance, was relevant both to the essential elements of the offence and to a defence of “reasonable excuse”. It is, therefore, not surprising that the trial judge addressed the same body of evidence twice, placing the burden on the Crown initially and then placing the burden on the defence in relation to “reasonable excuse”. The case is similar, in this regard, to R. v. Rai , supra at para. 75,where Hill J. stated:

Quite apart from the jurisprudential debate as to whether asthma-impaired lung capacity to provide a suitable breath sample in a s. 254(5) case amounts to an excuse, as I think it does , extraneous to the essential elements of the offence to be established by the defendant on a balance of probabilities or to a circumstance directly relevant to an element of the offence to be negated by the prosecution beyond a reasonable doubt, the trial judge was ultimately satisfied on the more exacting standard that no reasonable doubt existed to believe the appellant’s asthma was the cause the second sample was not obtained . While the trial judge expressed her conclusion using both approaches, a reading of the whole of the reasons in fact reflects her personal preference for the standard of proof upon the prosecution to negate the impact of asthma on its proof of the elements of the offence. [Emphasis added; citations omitted].

[ 42 ] Like Hill J. in Rai , I am satisfied that the trial judge placed the burden of proof on the Crown and rejected the Appellant’s evidence, while applying the principles in W.D. to the essential elements of the offence. It is, therefore, unnecessary to decide whether more recent authorities have been moving away from placing a persuasive burden of proof on the defence, in relation to a defence of “reasonable excuse”, and have only imposed an evidentiary burden. I note that none of these more recent authorities have gone so far as to reverse Moser , which remains binding authority on the point in this province in the context of s. 254(5) offences. See: R. v. Perka et al (1984) , 14 C.C.C. (3d) 385 at 404-5 (S.C.C.); R. v. Williams (2008) , 228 C.C.C. (3d) 414 (Ont. C.A.); R. v. H. (P.) (2000) , 143 C.C.C. (3d) 223 (Ont. C.A.); R. v. Fisher (1994) , 88 C.C.C. (3d) 103 (Ont. C.A.); R. v. Lee’s Poultry Ltd. (1985) , 17 C.C.C. (3d) 539 (Ont. C.A.); R. v. Daniels (1990) , 60 C.C.C. (3d) 392 (B.C.C.A.); R. v. Lewko , supra ; R. v. Nash (2004) , 65 W.C.B. (2d) 493 at para. 21 (Ont. S.C.J.), aff’d (2005) 66 W.C.B. (2d) 609 (Ont. C.A.) ; R . v. J.G. , 2012 ONSC 1090 ; R . v. Edwards , [1974] 2 All E.R. 1085 (C.A.) ; Sopinka et al, The Law of Evidence in Canada , 2 nd Ed. 1999, Butterworths Canada Ltd. at 80-86.

[ 43 ] Accordingly, the ground of appeal concerning reversal of the burden of proof has not been made out.

D. CONCLUSION

[ 44 ] As none of the three grounds of appeal have succeeded, the appeal from conviction must be dismissed.

M.A. Code J.
Date: June 20, 2012