ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 104/12
DATE: 20121005

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Peter Gentile Appellant

Alexander D. Kurke, for the respondent
P. Berk Keaney, for the appellant

HEARD: August 23, 2012

DECISION ON APPEAL

dEL fRATE j.:

[ 1 ] The appellant, Peter Gentile, appeals his January 20, 2012, conviction by Justice N. Glaude of the Ontario Court of Justice for refusing to provide a breath sample into an approved screening device pursuant to s. 254(2) of the Criminal Code of Canada, R.S.C. 1985, c. C-46.

Background

[ 2 ] On August 1, 2010, at approximately 2 a.m., the appellant was stopped by Ontario Provincial Police Constables Nymeyer and Phillips, in the municipality of Killarney, as a result of a complaint of a possible impaired driver operating a Winnebago.

[ 3 ] The appellant stepped out of the Winnebago and admitted to Constable Nymeyer that he had been consuming alcohol. Constable Nymeyer observed that the appellant was swaying and both officers detected an odour of alcohol.

[ 4 ] Within three minutes of the stop, Constable Phillips demanded a sample of the appellant’s breath by stating:

“Approved screening device demand, I demand that you provide a sample of your breath into an approved screening device to enable the proper analysis of your breath to be made. Come with me now for the purpose of taking the sample. Do you understand?”

[ 5 ] The appellant asked that the demand be read again. He also stated that he wanted to call his lawyer. Constable Nymeyer informed him that since he was not under arrest at that point, he did not need to speak to a lawyer.

[ 6 ] The appellant then asked what would happen next. Constable Nymeyer replied that until he provided a breath sample, she was not sure what was going to happen.

[ 7 ] Constable Phillips testified that on two occasions, he had to tell the appellant to lower his voice. According to Constable Phillips, the appellant made the statements “read it again,” “what is going to happen next” and “I want to call my lawyer” at least five more times each.

[ 8 ] Constable Phillips testified that he advised the appellant of the consequences of a refusal “more than once”, and that he read him the demand twice. Constable Phillips calculated that this would have been over the course of at least eight minutes, on the basis that once the unit is powered it stays powered for four minutes, and on the night in question it was powered twice.

[ 9 ] At trial, the officers testified that the appellant was confrontational, argumentative and uncooperative throughout this period. Constable Nymeyer concluded that the appellant was stalling.

[ 10 ] After the second activation of the device, Constable Nymeyer, who had left the appellant and Constable Phillips to speak to another motorist, returned to the scene and placed the appellant under arrest for failure to provide a breath sample.

[ 11 ] The appellant testified that the device was in the hands of one of the officers and that it was presented to him to provide a sample. He said that neither officer suggested to him that he had to make a final decision and that at no time did he express to the officers what his final decision was. The officers confirmed this version of events.

[ 12 ] The appellant further testified that at roadside, he was trying to make his decision as to whether or not to blow into the breathalyser and that he kept asking to speak to a lawyer since he wanted to make the right choice. He claimed that when he was arrested, he still had not made a final choice on whether he would provide a sample.

[ 13 ] In addition to the charge of refusal to blow, the appellant was subsequently charged with impaired driving, having a blood alcohol concentration in excess of eighty milligrams and failure to stop at an accident.

[ 14 ] After a two-day trial in the Ontario Court of Justice at Sudbury, Ontario, Justice Glaude acquitted him of all charges except for the refusal to comply with a demand.

Grounds of Appeal

[ 15 ] The appellant bases his appeal on the following grounds.

(1) The trial judge erred in finding that the appellant had unequivocally refused to provide a breath sample.

(2) The trial judge’s reasons were insufficient. Specifically, they failed to adequately take into consideration and address the following issues:

(a) Constable Nymeyer’s misstatement of the law regarding rights to counsel, and whether or not that created confusion;

(b) whether the appellant’s words and actions during his interaction with the police constituted (constructive) unequivocal refusal;

(c) the time between the initial demand and the arrest for refusal to blow, and the absence of a “final warning” to provide a sample; and

(d) whether the appellant had the requisite mens rea for the offence.

Principles applicable on review of refusal to blow cases

[ 16 ] Not surprisingly, there is a considerable amount of jurisprudence on this issue. In R. v. Bijelic , [2008] 77 W.C.B. (2d), Hill J. summarized the case law where there is no outright or explicit refusal in response to a demand for a breath sample. At paragraph 30, he stated:

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.

[ 17 ] R. v. Tavangari (2002) 28 M.V.R. (4 th ) 104 outlines some of the factors to be considered in determining whether there has been a refusal or a feigned attempt to provide a sample, including:

• the explanation given to the accused about testing procedure,
• evidence or lack of evidence of the accused's efforts to provide a sample,
• the amount of time during which testing was conducted,
• the number of tests attempted,
• whether the accused was warned it was a criminal offence to refuse,
• whether the accused was told of the consequences of refusal,
• whether the accused had been warned that he was being given a final chance to provide a suitable sample,
• the time delay, if any, between the arrest for failure or refuse and the request for another chance to provide a sample,
• other circumstances which tend to show whether or not there was a wilful failure or refusal by the accused to provide a suitable sample.

[ 18 ] In R. v. DeGiorgio , [2011] ONCA 527, LaForme JJ.A., outlined the constituent elements of the offence for failing to comply as follows, at paragraph 43. The fourth and fifth factors are most relevant to the case at hand:

(1) The preconditions set out in s. 254(2) ;
(2) a demand that the individual “provide forthwith a sample of breath”;
(3) the individual of whom the demand was made understood the demand;
(4) the individual refused to comply with that demand; and
(5) the individual did not have a reasonable excuse for failing to comply with the demand.

[ 19 ] More recently in R. v. Quansah 2012 ONCA 123 , 287 O.A.C. 383 , LaForme JJ.A., quoting R. v. Woods 2005 SCC 42 , [2005] 2 SCR 205, said at paras. 43 and 44 :

It is true, as I mentioned earlier, that “forthwith”, in the context of s. 254(2) of the Criminal Code , may in unusual circumstances be given a more flexible interpretation than its ordinary meaning strictly suggests.

The “forthwith” requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and an immediate response by the person to whom that demand is addressed.

Analysis

[ 20 ] I will deal with these issues raised by the appellant separately.

The trial judge erred in finding an unequivocal refusal

[ 21 ] The appellant submits that the trial judge erred in concluding that the appellant unequivocally refused the demand. In his testimony at trial, the appellant stated that he wanted to know his rights and that he was insisting on speaking to a lawyer so that he could make the right choice. What the trial judge said about this is as follows:

By finding him guilty of the refusal, I can, if I wish, draw an inference that it was because he was afraid that he would blow over. I find that in the circumstances of this case the inference to be had is that he was either in a state of belligerence or that he wanted really to speak to a lawyer as the reason to not draw the inference available to me. ( R. v. Peter Gentile , Sudbury, 103137 (Ont. Sup. Ct.) at p. 7).

[ 22 ] Later on, the trial judge stated:

In all of the circumstances, in having heard all of the evidence, I find that Mr. Gentile either refused because he wanted to speak to a lawyer, which is not a defence and, secondly, and more probable, is that he was so confrontational, so argumentative, that any attempt to reason with the man was impossible. Accordingly, while the ASD was there, had powered down twice, in those circumstances and on these specific facts I find that the refusal was absolute. ( Gentile , at p. 8).

[ 23 ] The Crown submits that the trial judge did consider and address the issue of whether there was an unequivocal constructive refusal.

[ 24 ] The Crown adds that, in his reasons both on the acquittals on the other counts and the conviction on this count, the trial judge made a finding of fact that the appellant was uncooperative and argumentative and out of control. Additionally, the judge found that his insistence on speaking to a lawyer was not a reasonable excuse and thus provided no defence. Accordingly, it was open to the judge to find that by his conduct the appellant had constructively, but unequivocally, refused to provide a sample of his breath.

[ 25 ] I agree. While the reasons in this respect could have been more expansive, I am convinced that Justice Glaude applied the correct law to his findings, and determined that the appellant had the requisite mens rea to refuse to provide a breath sample.

Insufficiency of reasons, generally

[ 26 ] The appellant submits that the judge’s reasons are insufficient to satisfy the requirements stipulated in R. v. Sheppard , 2002 SCC 26 , [2002] 1 SCR 869, where the Supreme Court stated that meaningful reasons must be given so that the parties understand the decision and so that an appellate court may review the correctness of the decision.

[ 27 ] In my view, the learned trial judge did meet the requirement of Sheppard . In his reasons he clearly outlined the evidence, which was neither complicated nor contradictory, with respect to the stop and the subsequent arrest. He went on to explain why the Crown had not satisfied him beyond a reasonable doubt on the other counts and then clearly outlined why the actions of the appellant constituted a failure to provide a sample. The trial judge considered the appellants’ answers and demeanor and made a finding of fact that due to his heightened emotional state, his mistaken belief that he was entitled to speak with a lawyer, or both, he constructively and unequivocally refused to blow into the device.

[ 28 ] Though brief, I find that the judge’s reasons were clear and detailed enough to permit the parties to understand why he acquitted on some charges and convicted on the refusal. Reasons are to be reviewed with a view to accountability and basic fairness, not perfection, and appellate courts are not given the power to intervene based solely on the perceived quality of the trial judge’s expression. ( Sheppard , at paras. 26 and 55 ).

[ 29 ] Furthermore, the reasons presented no difficulty to me in my role as an appellate judge in reviewing his findings and reasons, which is another part of the underlying rationale for the requirement for reasons:

[T]he purpose, in my view, is to preserve and enhance meaningful appellate review of the correctness of the decision (which embraces both errors of law and palpable overriding errors of fact). If deficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention... ( Sheppard , at para. 25 ).

[ 30 ] Accordingly this ground of appeal is dismissed .

Constable Nymeyer’s misstatement of the law regarding rights to counsel, and whether or not that created confusion

[ 31 ] When the appellant was asked to provide a breath sample for analysis, he asked on several occasions for the opportunity to speak to a lawyer. Constable Nymeyer told him that he did not need a lawyer yet as he was not under arrest.

[ 32 ] The appellant submits that this advice was erroneous and misled the appellant, and furthermore that the trial judge’s approach to the evidence effectively shifted the onus of proof to the appellant.

[ 33 ] The Crown agrees that Constable Nymeyer’s statement was inaccurate. However, the Crown submits that the trial judge properly considered it and determined that though unfortunate, the misstatement did not diminish the clarity of either the demand or the refusal, and no reverse onus was placed on the applicant.

[ 34 ] I agree. In his reasons, the trial judge was aware of the misstatement and addressed it as follows:

Now, in finding him guilty of the refusal I am very well aware that case law indicates that there must be a clear and unequivocal refusal. I find in this case, however, that constructively there has been an unequivocal refusal. I say that notwithstanding the fact that the police officer may have unfortunately used the wrong words when he was speaking about a lawyer when she said that he did not need one. I find that while that is unfortunate it does not absolve the defendant of all liability. ( Gentile at pp. 7-8).

[ 35 ] Constable Nymeyer’s statement was clearly erroneous, and what she should have stated was that the appellant was not entitled to a lawyer at that stage, since he was not under arrest and there was no right to counsel triggered yet. See R v. McIntyre , 2005 24602 (ON SC) , [2005] O.T.C. 597.

[ 36 ] In my view, the trial judge was correct in concluding that the applicant was not materially misled by the statement, particularly in light of the fact that the officers made it clear to him several times that he was required to provide a breath sample, failing which he would face criminal charges.

[ 37 ] In my view, the trial judge considered and analyzed the issue and concluded that the incorrect statement by Constable Nymeyer was not relevant, a finding of fact based on the evidence before him.

The time between the initial demand and the arrest for refusal to blow

[ 38 ] Both sides agree that at one point during the investigation, Constable Nymeyer left the scene to speak to another motorist, and that upon her return she arrested the appellant for failure to provide a sample.

[ 39 ] The appellant submits that this course of action was highly unusual, unrecorded in Constable Phillips’s notes, and suggestive of a lack of care in the investigation. He submits that the approximate time of eight minutes between initial demand and arrest is near the low end based on the case law as it is, and that the arresting officer’s absence for an indeterminate period during those eight minutes creates further uncertainty as to the reasonableness of her decision that his refusal was unequivocal.

[ 40 ] Although the actions of Constable Nymeyer may have been unconventional, I find that there is no indication that they prejudiced the appellant.

[ 41 ] Although Constable Phillips was the one holding the device, Constable Nymeyer was present when the demand was made on at least two occasions. Both officers were present when the appellant was advised that he had to provide a sample and that failure to do so would constitute an arrestable offence, the penalty for which would be the same as the penalty for impaired driving. ( Gentile , p. 4)

[ 42 ] Upon her return, Constable Nymeyer saw that the appellant was as antagonistic as he was when she left, and had not yet provided a sample. She placed the appellant under arrest. Based on the multiple demands, explanations of the consequences of failing to comply and the obstructionist attitude of the appellant, in my view either of the officers would have had the right to arrest him at that point. This ground of appeal is dismissed.

The absence of a “final warning” to provide a sample

[ 43 ] The appellant submits that at no time did he unequivocally state that he would not provide a sample. His repeated questions and requests for more information from the officers were merely to assist him in arriving at an informed decision. Accordingly, before being placed under arrest, the officers should have stated that it was his last chance to provide a sample.

[ 44 ] The appellant relies on the decisions of R. v. Tavangari [2002] 28 M.V.R. (4th) 104 , R. v. Brown [2004] O.T.C. 967 and R. v. McIntyre 2005 24602 (ON SC) , [2005] O.T.C. 597 where the accused in those cases, were given 10 and 17 opportunities before they were arrested.

[ 45 ] The trial judge considered the evidence of the officers and of the appellant and at page 8 of his reasons states:

I find that in the circumstances the police did everything they could in the sense that they talked to him about the lawyer, they repeated at least five times everything that was being told to him, that they read him the ASD demand, advised him as to the consequences, advised him that a failure would be equal to driving while impaired.

In all of the circumstances, in having heard all of the evidence, I find that Mr. Gentile either refused because he wanted to speak to a lawyer, which is not a defence and, secondly, and more probable, is that he was so confrontational, so argumentative, that any attempt to reason with the man was impossible. Accordingly, while the ASD was there, had powered down twice, in those circumstances and on these specific facts I find that the refusal was absolute.

[ 46 ] Once the officers have formulated reasonable and probable grounds, section 254(2) (b) of the Criminal Code stipulates that the person must:

[P]rovide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[ 47 ] The appellant refers me to cases where before the arrest was made, the accused was afforded multiple opportunities to provide a sample. In R. v. McIntyre the accused was afforded seventeen chances; in R v . Tavangari ten chances and in R. v. Grant the accused was afforded twenty-five chances.

[ 48 ] In this case, there is no issue that the officers had the requisite reasonable and probable grounds to make the demand and that they proceeded to make a demand as soon as those grounds were formulated. There is also no issue that the appellant understood what was being requested since he immediately asked to speak to his lawyer. At least eight minutes had elapsed. At least five requests were made. The officers and equipment were available. The consequences of not providing a sample were explained. I find that to require the officers to make a formal, “final” request is overly rigid, given the context. Unlike the caselaw presented to me by the appellant, the appellant did not request to be afforded an opportunity to provide a sample soon after being placed under arrest. Lastly, the appellant did not have a reasonable excuse for failing to comply with that demand.

[ 49 ] The trial judge considered the evidence and concluded that under these circumstances, either due to his belligerence or his insistence on wanting to speak to a lawyer, he unequivocally refused to provide a sample. His mistaken belief, possibly due in part to the misstatement of the police officer that he was entitled to speak to a lawyer at that stage, was not a relevant consideration. See R. v. Van Deelen , 2009 ONCA 53 , 185 C.R.R. (2d) 1 . Therefore, this ground of appeal is dismissed as well.

[ 50 ] In summary, the appeal is dismissed and the order staying the driving prohibition is lifted.

Mr. Justice Robert G.S. Del Frate

Released: October 5, 2012

COURT FILE NO.: 104/12
DATE: 20121005

ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent – and – Peter Gentile Appellant
decision on appeal Del Frate J.

Released: October 5, 2012