ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-021
DATE: 2012-08-17

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

KAREN KITCHENER
Appellant

K. Hull, for the Respondent
S. Purohit, for the Appellant

HEARD: July 30, 2012

APPEAL FROM THE ORDER OF THE HONOURABLE MR. JUSTICE C.R. HARRIS DATED JANUARY 11, 2012

DiTOMASO J.

THE APPEAL

[1] The appellant Karen Kitchener appeals against her conviction for failing or refusing to provide a breath sample, contrary to s. 254(5) of the Criminal Code of Canada.

[2] The grounds for appeal are that:

a. The trial judge erred by failing to consider and apply relevant jurisprudence.

BACKGROUND

[3] In this case, the facts are largely not in dispute.

[4] At trial, the Crown called a single witness, Police Constable (PC) Dave Thomson. He testified that on February 9, at approximately 10:35 p.m., he came upon the appellant in the driver’s seat of a motor vehicle in a municipal parking lot behind Molly Blooms Bar in Collingwood, Ontario. The engine of the vehicle was running. Upon approaching the vehicle, tapping on the window, receiving no response and opening the passenger side door to speak with the occupants, PC Thomson noted a passenger was seated in the vehicle and a strong odour of alcohol emanating from within. [1]

[5] After speaking with both the appellant and the passenger, PC Thomson observed the appellant had the smell of alcohol beverage coming from her breath, had red watery eyes, and she fumbled for her identification. PC Thomson read the appellant the approved screening device (ASD) demand, and the appellant promptly replied “I’m not doing it”. [2]

[6] PC Thomson subsequently asked if she was refusing to provide a sample of her breath into the device, to which she replied “yes, I am refusing”. PC Thomson read the ASD demand a second time, to which the appellant stated “I’m not doing it”. Again, when asked if she was refusing, the appellant stated, “yes”. [3]

[7] At 10:38 p.m., PC Thomson arrested the appellant for refusing to provide a breath sample, handcuffed her and placed her in the police cruiser. At 10:39 p.m. her rights to counsel and caution were read and she acknowledged that she would like to speak to a lawyer at the police station. At 10:41 p.m., once the arrest was complete, the appellant said that she would provide a sample of her breath. PC Thomson perceived this offer to be insincere, a game being played by the appellant and he said that it was too late to comply. [4]

[8] PC Thomson could not recall warning the appellant at any time prior to her arrest that it is a criminal offence to refuse to provide a breath sample. [5]

[9] The appellant’s offer to provide a breath sample was five minutes after the initial approved screening device (ASD) demand and three minutes after her arrest. PC Thomson testified that at the time when the appellant assented to providing a breath sample, the ASD was still present in the police cruiser and he believed the ASD was operating properly. PC Thomson testified that he was trained to operate the ASD and that he was still present when the appellant assented to providing a breath sample. He agreed that he could have taken a breath sample from the appellant at the time when she offered to provide a sample had he chosen to do so. [6]

REASONS FOR JUDGMENT

[10] The trial judge reviewed the evidence thoroughly and accurately. He referred to relevant case law and statute. He found that, “parliament did not legislate: ‘refuses twice,’ ‘refuses three times,’ or ‘refuses four times,’ or require that the refusal be followed by a “last chance,” and/or “after the consequences of refusal is explained to her.” [7]

[11] In considering whether the appellant demonstrated a reasonable excuse, he found that there was no excuse proffered at the scene, let alone a reasonable one, to explain why the appellant was refusing. This contributed to the trial judge’s finding that the refusal was clear and as unambiguous as it could be, and that it fully satisfied the requirements of the charge. [8]

[12] The trial judge stated that,

the dialogue involved four, crystal clear, outright, unambiguous, blunt refusals after ample opportunity to comply with an unambiguous, formal demand repeated twice and, in my view, Constable Thomson did give Ms. Kitchener a last chance when he got to number four and said, “Are you refusing,” and she said, “yes.” [9]

[13] In considering the circumstances as a whole, the trial judge found that the appellant’s eventual assent to the demand was insincere and that she was treating the situation as a game. [10]

[14] Having reviewed the authorities considered, the trial judge found that, as a fact, the circumstances in this case required an interpretation of the principle in the Supreme Court of Canada decision of R. v. Woods. He stated, R. v. Woods supported the view that drivers upon whom approved screening device demands are made must comply immediately, not once they have decided to stop refusing. The trial judge concluded that, in this case, where the refusal is the “clearest of cases of unambiguous, repeated refusal,” it would be an unjustifiable expansion of the legislation to find that the officer was required to provide a further “last chance.” [11]

[15] As such, he was satisfied that the Crown had proven the charge beyond a reasonable doubt.

POSITIONS OF THE PARTIES

Position of the Appellant Karen Kitchener

[16] The appellant submits that the police had failed in their obligation to provide a last chance at providing a breath sample to Ms. Kitchener in a situation where there was a refusal followed almost immediately by an assent and an offer to provide a breath sample. It is submitted that where a refusal and subsequent assent to provide a breath sample form part of the same transaction, it cannot be said that an accused had the requisite mens rea to commit an offence under s. 254(5) of the Criminal Code of Canada.

[17] It is submitted that the trial judge oversimplified what constitutes a refusal to provide a breath sample. In doing so, he failed to consider whether the refusal and subsequent assent formed part of a single transaction. The subsequent assent in the appellant’s case came just three minutes after the refusal and just five minutes after the initial breath demand. The ASD and its technician were still present. There was no break in the action because the assent came immediately after the appellant was arrested and she was given her rights to counsel and caution. It is submitted that it would be artificial to sever the assent and the refusal in assessing the overall response from the appellant. Further, it is submitted that the trial judge erred by not considering whether the refusal and subsequent assent formed part of the same transaction with reference to factors that the jurisprudence deems relevant to this assessment. The appellant submits that the trial judge did not take proper notice of the jurisprudence speaking to the law of “last chance”. The appellant argues that this constitutes sufficient grounds to quash the conviction or order a new trial.

Position of the Respondent Crown

[18] The respondent submits that the appellant was given four opportunities to consider providing a suitable sample of her breath into the ASD. Two demands to provide a sample were given as well as two queries as to whether the appellant was refusing. Each opportunity was met with a clear and unambiguous response indicating her intention to disregard the demand. She was subsequently charged, handcuffed and read rights to counsel and caution. She indicated she would like to speak with a lawyer upon reaching the police station. The appellant demonstrated condescension and impertinence towards the demands of an officer trying to assess her ability to safely drive and such was noted by the trial judge. Following arrest, the appellant said she was willing to comply. Under the circumstances, the officer did not provide her with further chances.

[19] The trial judge found that the essential elements of the offence had been made out and that there was no requirement upon the police to provide “last chances” to an individual who, after refusing, assents to the breath demand. The finding was open to the trial judge on the evidence and was supported by the law. Therefore, the Crown submits that the verdict was reasonable and this appeal should be dismissed.

ISSUE

[20] The issue is whether the learned trial judge made an error of law by failing to consider and apply relevant jurisprudence.

ANALYSIS

[21] The appellant submits that where a refusal and subsequent assent to provide a breath sample form part of the same transaction, it cannot be said that an accused had the requisite mens rea to commit the offence. The appellant claims that the trial judge failed to consider what constitutes a refusal to provide a breath sample and further the trial judge erred in applying R. v. Woods, 2005 SCC 42 (), [2005] 2 S.C.R 205 to the facts of this case.

[22] While “last chances” have been found to be necessary in certain circumstances, I find the trial judge correctly determined that this was not such an instance. He found that the appellant’s offer to comply with the demand was insincere, and that the officer’s decision to charge and arrest her was the only reasonable one before him.

The Law

[23] R. v. McNab and R. v. Gutierrez have considered the issue of what the Crown need prove on a charge of refusing to provide a sample into an approved screening device. There is no requirement for evidence to be adduced as to the extent of chances afforded to an individual who changes his or her mind. This is not required in order for the officer’s opinion to be received and accepted as probative with respect to the failure or refusal by the accused to provide a suitable sample. [12]

[24] The trial judge accepted that there was evidence before him:

(i) of a demand by a peace officer;

(ii) the presence of an approved screening device;

(iii) that there was an unequivocal refusal by the appellant to comply with the demand; and

(iv) that the non-compliance by the appellant was intentional.

As such, all of the necessary elements of the offence had been proven.

Officer not Required to Explain Consequences of Non-Compliance

[25] The law does not require that, in advance of the valid ASD demand, the officer must explain the purpose of the roadside screening test and the consequences of a failure to provide a sample. Blair J.A., writing for the Court of Appeal in R. v. Danychuk, commented:

In my opinion, while it may be sensible for a police officer to make sure the device is working and the motorist apprised of the process and the consequences of non-compliance, it cannot be said – in the face of these authorities – that these matters constitute prerequisites to a valid demand for a breath sample under subsection 254(2), in my opinion. [13]

[26] Where there has been an outright refusal to provide a breath sample, it is not a prerequisite to such a demand that the Crown establish that the officer explain the consequences of a failure to provide a sample. An unequivocal refusal can be equated to an outright refusal. [14] The trial judge made a finding of fact that the refusal was unequivocal. I find there is no basis to interfere with that finding.

Correct Considerations of the Jurisprudence

[27] I find that the trial judge correctly considered the relevant case law, statutory wording and witness evidence before the court and reasoned that the circumstances of the case, the jurisprudence and the written statute directed him towards his ultimate decision.

[28] The appellant submits that the body of jurisprudence does not support the position taken by the trial judge. With respect, I disagree. The jurisprudence requires a refusal be final and unequivocal. The trial judge found that the refusal was clear and unambiguous in this case. It was an express and outright refusal. [15]

[29] The court must look at all the circumstances of the entire transaction between the police and the accused in considering whether the Crown had proved beyond a reasonable doubt that the accused refused to comply with the screening device demand. [16]

[30] I find the trial judge correctly did just that. He did not misapprehend the evidence or failed to consider those factors applicable to the determination of proof of the offence charged. The trial judge, after considering all of the relevant authorities and hearing the witness to the evidence, concluded:

In my view, to hold that a person refusing in these circumstances, as Ms. Kitchener did, not to have refused in these circumstances because of the offer three minutes later, after arrest and rights to counsel, to provide a sample could not rationally be what parliament intended. [17]

[31] I find that the trial judge’s consideration of the authorities was correct in this case. The appellant alleges that the trial judge read R. v. Woods to mean that there is no “last chance” requirement. Again, I respectfully disagree. The trial judge followed the reasoning of the Supreme Court of Canada and outlined how in circumstances such of these where the refusal is unequivocal, there is no obligation upon the police to provide a further “last chance”. The trial judge was live to the issue and stated: “four, crystal clear, outright, unambiguous, blunt refusals after ample opportunity to comply,” did occur, leading him to find that the “offences were complete at the time”. [18]

[32] The trial judge reviewed the authorities and concluded that, in his view, there was no compelling authority or weight of authorities for the “last chance” requirement. Such a requirement was not supportable by the clear wording of the section.

[33] In considering the judgment in R. v. Woods, the trial judge cited Fish J. who held at paragraph 45:

…drivers upon whom approved screening device demands are made are bound by s. 254(2) to comply immediately - - and not later, at a time of their choosing, when they have decided to stop refusing!

[34] The trial judge correctly adopted this principle and went on to correctly find that the principle did not change whether the interval was three minutes or an hour.

[35] I find the trial judge’s findings as to the existence of a refusal were not unreasonable or unsupported by the evidence. The trial judge did not misapprehend the evidence or fail to consider those factors applicable to the determination of proof of the offence charged as considered in the relevant jurisprudence including the decision in R. Domik. [19]

Mens Rea for the Offence of Failure to Provide a Breath Sample

[36] I find the trial judge correctly assessed the necessary proof of intent required for the offence. The offence under s. 254(5) of refusing or failing to provide a breath sample without reasonable excuse is a general intent offence requiring no more than recklessness or knowledge as to the actus reus of the prohibited act. [20]

[37] On reading the proceedings at trial, I find the trial judge concluded, beyond a reasonable doubt that the officer felt that the appellant was playing games. In this regard the trial judge stated:

I have reviewed all of the authorities...we are dealing with a person who is playing games with the officer...who, I am satisfied, knew she was legally required to provide a sample. [21]

[38] The trial judge accepted the evidence and found that the appellant was playing games with the officer. He found that her statements and the maintaining of her position amounted to an unequivocal refusal. In this case, there was no need, given the appellant’s conduct, for the officer to provide further opportunities.

[39] Each case will turn on its own facts and circumstances. In R. v. Chance, the court held:

At some point, an accused with lose the opportunity to comply with a demand. An accused who is playing games and seeing how far he can push the envelope might discover to his dismay that he has passed the point of no return. [22]

[40] The trial judge held that the appellant was playing games and seeing how far she could push the envelope. He did not err in finding that, as in Chance, she had passed the point of no return. [23]

[41] I find that the trial judge made correct and reasonable determinations into the mens rea of the appellant to commit the offence.

STANDARD OF REVIEW

[42] Section 686(1) (a)(i) of the Criminal Code of Canada (applicable to summary conviction appeals by s. 822) provides that an appeal maybe allowed where the appellate court concludes that (i) the verdict reached at trial was unreasonable or unsupported by the evidence, (ii) or should be set aside on the ground of wrong decision on a question of law, or (iii) on any ground where there has was a miscarriage of justice.

[43] The summary conviction appeal court has limited jurisdiction in reviewing findings of fact by the trial judge. [24]

[44] An Appellate court is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it. Providing this threshold test is met, an Appellate court is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial. [25]

[45] I find that on a review of the evidence before the Court, the trial judge as the trier of fact could have reasonably reached the conclusion he did, namely, that the appellant had the necessary mens rea for the offence, that the appellant’s refusal to provide a suitable breath sample was unequivocal and unambiguous in all the circumstances and that another “last chance” was not warranted. On all the evidence, the trial judge could and did find that the offence was complete and that the appellant’s change of heart came too late.

[46] I find that the trial judge was alive to all of the issues before him both factual and legal. He considered the relevant authorities, statutory provisions, and the evidence. On all of the evidence, he concluded that all of the essential elements of the offence had been proven beyond a reasonable doubt. I find that he did not commit an error of law by failing to consider and apply relevant jurisprudence. To the contrary, in respect of the standard of review, the trial judge could have and did reasonably reach the conclusion that he did on the evidence and relevant jurisprudence before him.

DISPOSITION

[47] For the reasons given, this appeal is dismissed.

[48] The stay of driving prohibition issued by McCarthy J. on May 10, 2012 is hereby vacated.

DiTOMASO J.

Released: August 17, 2012

[1] Proceedings at Trial, p. 6, lines 5-20; p. 7 lines 5-10
[2] Proceedings at Trial, p. 7, lines 20-25
[3] Proceedings at Trial, p. 9, lines 5-10
[4] Proceedings at Trial, p. 9, lines 10-15; p. 14, lines 5-10
[5] Proceedings at Trial, p. 13, lines 9-12
[6] Proceedings at Trial, p. 14, line 29; p. 16, line 1
[7] Proceedings at Trial, p. 19, line 30; p. 20, lines 1-5
[8] Proceedings at Trial, p. 21, lines 25-30; p. 23, lines 5-10; p. 24, lines 20-26
[9] Proceedings at Trial, p. 23, lines 23-30
[10] Proceedings at Trial, p. 23, lines 23-30
[11] Proceedings at Trial, p. 25, lines 5-30; p. 26, lines 1-25; p. 27, line 30; p. 28, lines 1-5
[12] R. v. McNab, [2001] O.J. No. 4738 (S.C.J); R. v. Gutierrez, [2001] O.J. No. 3659 (S.C.J.)
[13] R. v. Danychuk, 2004 12975 (ON CA), [2004] O.J. No. 615 (C.A.) at para. 21
[14] R. v. Danychuk, supra, at paras. 26-27
[15] Proceedings at Trial, p. 23, lines 5-10; p. 24, lines 20-26
[16] R. v. Domik, [1979] O.J. No. 1050 (Ont. H.C.J.) at paras 4 and 5; R. v. Taylor, [1998] O.J. 2167 (Ont. S.C.), at para 53; R. v. Cunningham, 1989 ABCA 163
[17] Proceedings at Trial, p. 24, lines 11-17
[18] Proceedings at Trial, pp. 23 and 24
[19] R. v. Domik, [1980] O.J. No. 710 (C.A.); R. v. Taylor, [1998] O.J. 2167 (Ont. S.C.); R. v. Brown, [2004] O.J. No. 4423 (S.C.J.)
[20] R. v. Porter, supra, at para. 34
[21] Proceedings at Trial, p. 23, lines 13-16
[22] R. v. Chance, [1997] O.J. No. 4939 (O.C.J.) at para. 36
[23] R. v. Stowe, [1983] B.C.J. No. 1128 (Co. Ct.) at para. 11
[24] R. v. Paradisi, 1998 1989 (ON CA), [1998] O.J. No. 2336 (C.A.) at para. 2
[25] R. v. R.P., [2012] S.C.C. 22 (S.C.C.)