ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA(P)2047/12
DATE: 2013-10-09
B E T W E E N:
HER MAJESTY THE QUEEN
Gregory Hendry, for the Crown
Appellant
- and -
PALWINDER SINGH
No one Appearing for the Respondent
Respondent
HEARD: September 13, 2013
REASONS FOR JUDGMENT
[On appeal from the judgment of Botham J. dated June 19, 2012]
Fragomeni J.
[1] The Respondent, Palwinder Singh, was charged with refusing to provide a breath sample. On June 19, 2012 the Honourable Madam Justice L.A. Botham found Mr. Singh not guilty following a trial which took place on May 31, 2012.
[2] The Crown appeals that decision on the following three grounds:
The learned trial judge erred in law with respect to the test for mens rea for the charge of refusing to provide a breath sample;
The learned trial judge erred by making an unreasonable finding that the appellant was confused in light of the evidence on the breath room video;
The learned trial judge erred by finding that the police were required to take further steps before charging him with refusing to provide a breath sample.
Summary of the Facts
[3] On April 16, 2011 at 2:30 a.m., the Respondent was stopped by Cst. Leonardo to investigate a HTA violation and to check the driver’s sobriety. While speaking with the Respondent, Cst. Leonardo formed the suspicion that the Respondent had been operating a motor vehicle with alcohol in his body and made a demand pursuant to s. 254(5) of the Criminal Code.
[4] The Respondent made five to seven attempts before providing a suitable sample into the approved screen device. In that time, Cst. Leonardo explained three times how the test was done and the consequence of not providing a suitable sample. The Respondent did provide a suitable sample of his breath producing a “Fail” reading. The Respondent was arrested and transported to 12 Division.
[5] At the time of arrest, the Respondent was given his rights to counsel. While travelling back to the division, Cst. Leonardo inquired if the Respondent would like to speak with duty counsel and the Respondent replied “I want time to think about it”. After arriving at the division, Cst. Leonardo again inquired if the Respondent would like to speak with duty counsel and the Respondent replied in the affirmative. The Respondent spoke with duty counsel between 3:38 a.m. and 3:31 a.m.
[6] At 3:32 a.m. Cst. Haramis, the breath technician, and Cst. Leonardo are in the breath room with Mr. Singh.
[7] At trial the video of what transpired in the breath room was played and then filed as Exhibit 1.
[8] At paragraph 7 of his Factum the Crown sets out the conversation that took place in the breath room as follows:
Haramis: [breath demand]. Do you understand?
Respondent: I do, but my lawyer said not to, not to do that, so.
Haramis: Not to blow?
Respondent: Yeah.
Haramis: Okay…If you..refuse to provide those samples, you will be charged with…refusing to provide breath samples. The Charge of..refusing to provide breath samples carries the exact same consequences, and the exact same penalty as if blowing over the legal limit. Do you understand that?
Respondent: Yeah.
Haramis: Okay. The instrument’s ready to receive a sample, okay. Again, I’m gonna, mouthpiece is here. Again, I’m gonna explain to you, by law, you must provide samples of your breath into this instrument.
Respondent: Mm-hmm.
Haramis: If you..refuse to provide samples of your breath into this instrument, you’re going to be charged with…refusing to provide a breath sample. That charge carries the exact same consequences, and the same penalty as if blowing into the instrument and blowing a reading over the legal limit. Do you understand that?
Respondent: Yep.
Haramis: What does that mean?
Respondent: That means if I get convict, I’ll get convicted about to, well, not regardless, but if I blow in and I blow over, I’ll get convicted.
Haramis: Well…
Respondent: Same thing as if I weren’t to blow into it, but my lawyer’s told me not to.
Respondent: That’s fine. My lawyer said not to blow into it, so.
Haramis: Uh, okay. So you understand that if you blow into and you blow over the legal limit, or if you refuse to do it, it’s the same charge?
Respondent: I know.
Haramis: You understand that?
Respondent: Yeah.
Haramis: You also understand if you blow into this instrument and you blow under, you’re released.
Respondent: Yeah. I understand.
Haramis: So did you wanna provide a sample of your breath?
Respondent: No, (inaudible).
Haramis: Are you sure there’s nothing I can a-, ask you or tell you that will make you change your mind?
Respondent: yeah.
Haramis: Okay, 3:37, subject refused to provide sample…
Leonardo: Palwinder, I explained this in the car. Like (inaudible) providing a sample then.
Respondent: yeah.
Leonardo: Um, it’s pretty severe for not wanting to do the test.
Respondent: I agree with you guys, but I have to agree with my counsel, as well, right.
Leonardo: I don’t think any counsel would tell you not to blow into the machine…
Respondent: That’s what my counsel said, so I agree with whatever my counsel says, right.
Leonardo: Okay. Did you understand him?
Respondent: Yeah.
[9] At trial Cst. Leonardo was asked if, after exiting the breath room, he recalled if anything occurred off video. It is informative for the analysis to reproduce his full answer:
A. Yes, he was put into a, like a private room in the cell area, in the same room where duty counsel is - - usually calls, and again, I’m in that private room with him and I’m explaining to him the consequences of what he’s done. I even offered myself in that room duty counsel and - - like to call again and he doesn’t want to talk to them and he doesn’t want to blow. He’s adamant. And then it’s just me explaining paperwork to him. He’s back to me at 3:40, and then at 4:09, he’s just back on the bench out in the cell area. And then we’re just making arrangements to have somebody pick him up. He’s not showing any signs of impairment, none that I’ve noticed anyway throughout the course of my investigation. He’s polite, cooperative. And somebody does end up coming to pick him up and he’s released on a Form 10.
[10] Cst. Leonardo was cross-examined about this off video discussion and the following exchange is relevant on the issue:
Q. Do you have any recollection after this conversation at 3:40 of my client changing his mind and asking or considering a request to speak to the lawyer again?
A. I don’t. Is it a possibility? Maybe. I don’t have that specifically noted. I know what I probably would’ve done if that was the case.
Q. I know what you would’ve done, if it came to your testimony, but….
A. Well….
Q. You likely would’ve made a call, I would assume?
A. No, I wouldn’t have. At that point in time, the offence was already done. I’ve - - see, the problem - - with the breath tech, it’s - - it’s the breath tech that controls the, the situation in regards to the refuse.
Q. Right.
A. Me, as a breath tech, how I handle things is a little bit differently as opposed to how other officers. And Constable Haramis did nothing wrong…
[11] Mr. Singh testified at trial and stated that he was given an opportunity to contact duty counsel and they told him to refuse.
Q. Alright. At that point in time, in your mind, were you gonna provide samples? Had you intended to provide a sample?
A. Yes, I was, but then I didn’t know if I can speak to Legal Aid, but once I found that out, I called them and they told me to refuse…
[12] Mr. Singh acknowledges speaking to Cst. Leonardo outside the video room and that he spoke to Mr. Singh about calling Duty Counsel again and Mr. Singh said no that he did not want to speak to duty counsel again.
[13] Mr. Singh testified that he then thought about it for a bit and was wondering if he heard Duty Counsel correctly. He then communicated to one of the officers his desire to contact Duty Counsel again but there was no response. Mr. Singh stated that if he had spoken to Duty Counsel again and had been told to provide a sample he would have done so.
Issue: Refuse Breath Sample as a General Intent Offence
[14] The Crown sets out in his argument that the day after the learned trial judge rendered her judgment in this case, Justice Code released his Summary Conviction Appeal decision in R. v. Porter, 2012 ONSC 3504, [2012] O.J. No. 2841.
[15] Justice Code found that the mens rea for refusing to provide a sample of breath was an offence of general intent. Justice Code did not apply the higher standard of wilfulness. The Crown argues that the learned trial judge in this case applied the higher standard of wilfulness.
Reasons of the Learned Trial Judge
[16]
I acknowledge that the simple fact of refusal on the basis of legal advice has not been held by the courts to constitute a defence to this charge; however, I see the facts of this case as being somewhat unique.
Notwithstanding his statements in the breath room, I am not convinced that Mr. Singh had a settled intention to refuse to provide a breath sample. His confusion is manifested in his comments to the breath tech in the breath room. In addition, he has testified that it was his intention to provide a sample prior to speaking to duty counsel and he was clearly confused as to what should be done. I find that that state of confusion existed not only after being charged, but while he was in the breath room.
In response to comments made by Constable Leonardo after he has been charged with refuse, he agrees that it would make sense to provide the sample but says that he feels constrained by what he believed to be the duty counsel’s advice. He has testified that while waiting on the bench in the cells after being charged, he was concerned he may have misconstrued duty counsel’s advice. His evidence makes it clear that he was clearly willing to provide the sample.
He consulted with counsel for approximately four minutes. The actual time in the breath room was short. The breath technician was quick to move to find a refusal in circumstances that really called out for a further inquiry. It was clear that the refusal was being motivated by a potentially mistaken belief in a set of circumstances, namely, his belief that legal advice had been given to refuse the tests, and no attempt was made to clarify that situation.
[17] In Porter, Justice Code sets out the following at paras. 34 to 37:
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), 1979 227 (SCC), 46 C.C.C. (2d) 257 (S.C.C.); R. v. Buzzanga and Durocher (1979), 1979 1927 (ON CA), 49 C.C.C. (2d) 369 at 381 (Ont. C.A.); R. v. Pappajohn (1980), 1980 13 (SCC), 52 C.C.C. (2d) 481 at 487-493 (S.C.C.); R. v. Sansregret (1985), 1985 79 (SCC), 18 C.C.C. (3d) 223 at 232-3 (S.C.C.); R. v. Chase (1987), 1987 23 (SCC), 37 C.C.C. (3d) 97 at 104 (S.C.C.); R. v. Beaver (1957), 1957 14 (SCC), 118 C.C.C. 129 (S.C.C.); R. v. Sault Ste. Marie (1978), 1978 11 (SCC), 40 C.C.C. (2d) 353 at 362 and 373 (S.C.C.); R. v. Lock (1974), 1974 517 (ON CA), 18 C.C.C. (2d) 477 (Ont. C.A.); R. v. Ford (1982), 1982 16 (SCC), 65 C.C.C. (2d) 392 (S.C.C.); R. v. Toews (1985), 1985 46 (SCC), 21 C.C.C. (3d) 24 (S.C.C.).
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), 1979 19 (SCC), 47 C.C.C. (2d) 24 at 33-6 (S.C.C.); R. v. Hibbert (1995), 1995 110 (SCC), 99 C.C.C. (3d) 193 at 205-214 (S.C.C.). Hibbert makes clear that even particularly compelling excuses, like duress, cannot negative mens rea.
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, 6th 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, 2nd 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, 4th 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.
[18] In R. v. Kitchener, 2012 ONSC 4754, [2012] O.J. No. 3857, again released after the learned trial judge rendered her decision in the case at bar, a decision of Justice Di Tomaso, Justice Di Tomaso dealt with the mens rea issue relating to the offence of failure to provide a breath sample as follows at paras. 36 to 39:
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.
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.
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.
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.
[19] I agree with the analysis set out in Porter and Kitchener and that the offence is one of general intent.
[20] In these circumstances this ground of appeal has merit and on this basis alone the acquittal must be quashed and the matter sent back to the Ontario Court for a new trial before a differently constituted court.
Issue: Last Chance Request Defence
[21] The Crown submits that the trial judge erred in finding that the “last chance request” defence was applicable in this case when Mr. Singh neither made a request for a last chance to provide a breath sample.
[22] The Crown submits that the jurisprudence in this area is such that fundamental to these decisions is that the refusal and request for another chance form a single transaction. In other words, the request follows almost immediately following the refusal. Further to that, the Crown argues, the request is to provide a breath sample.
[23] The Crown points to two decisions to support his position. In R. v. Domik, [1979] O.J. No. 1050 (H.C.) the Court states the following at para. 5:
5 I do not read these cases as establishing that in all circumstances a refusal separated in time from a later assent constitutes a crime. What I do gather from the cases is that the circumstances of the refusal and assent, the time between them and perhaps the availability of technician and machine are relevant considerations. Section 235 is drastic legislation interfering with the usual rule against self-incrimination. I do not think it unreasonable for a lay person or indeed anyone unskilled in criminal law at first to react negatively to an invitation to give the police incriminating evidence. I cannot imagine that Parliament intended to make such a refusal followed almost immediately by an assent, criminal. Moreover, I would not define such conduct as a refusal any more than I would that of Byron's lady who
"A little still (she) strove and much repented And whispering I will ne'er consent, consented."
The questions posed in the stated case are as follows:
“(a) Did I err in law in holding that there was a refusal in law by the Appellant to comply with the demand made to him by Constable Paul Clark under s. 235(1) of the Criminal Code?
(b) Did I err in holding that the denial by Constable Steve Thomas of the Appellant's request to provide then such samples of his breath as in the opinion of a qualified technician were necessary to enable a proper analysis to be made in order to determine the proportion, if any, of alcohol in his blood, was not such a denial of natural justice as to entitle the Appellant to a dismissal of the charge against him in any event, notwithstanding that there was no evidence before me that the test could not be given and that each sample taken pursuant to the demand of Constable Paul Clark made under s. 235(1) could not have been taken within the 2 hour period after the time when the offence was alleged to have been committed?"
I think the answer to question (a) must be a qualified yes, i.e., that the learned trial judge erred in holding there was a refusal in the absence of evidence of the circumstances of the later assent. The transcript of the trial is, of course, not before me and it may be that there was evidence which would assist the learned trial judge in determining whether in the words of MacDonald, J.A. in Bowman, supra, "the refusal and the subsequent change of heart form(ed) but one transaction" but I should have thought as did Nicholson, J. in Perry that the time element and even the availability of the machine and the technician would have helped in determining whether there was a refusal. Certainly evidence of that is missing, and there is nothing in the stated case to show that any consideration was given to the circumstances of and relationship between refusal and assent.
[24] In R. v. Franchi, [1999] O.J. No. 4895 (S.C.J), Hill J. sets out the following at paras. 15 to 19:
Depending on the totality of the circumstances, including the facts regarding the lack of compliance, the temporal gap between the apparent refusal/failure and the assent or further request to provide a sample, and the availability of machine and technician, the court is entitled to conclude that the subsequent assent or agreement to provide a breath sample is effectively part of a single transaction of the motorist responding to the demand: R. v. Domik (1979), 2 M.V.R. 301 (Ont. H.C.) at 307 per Grange J. (as he then was) (affirmed Ont. C.A., March 13, 1980 (unreported)); R. v. Bowman (1978), 1978 2337 (NS CA), 40 C.C.C. (2d) 525 (N.S.C.A.) at 528-9 per Macdonald J.A.; R. v. Chance (1998), 32 M.V.R. (3d) 70 (Ont. Ct. of J. - Prov. Div.) at 74-79 per Vaillancourt Prov. J.
It was particularly important in a case such as this, where there was effectively no gap or break in the sequence of events preceding the plea to again blow, where the machine and operator were immediately at hand, and where the appellant was blowing into the machine to perhaps within one second of the required breath expulsion, for the court to advert to this issue. In the circumstances of the appellant's apparent immediate request, was there a refusal? Was the offer to blow genuine?
On the record of the reasons for judgment in this case, and quite apart from the mere conclusory statements as to credibility, I am not confident that an essential issue was considered by the trial court.
In the result, a new trial is ordered. It is for a trier-of-fact, seeing and hearing the witnesses, to determine the legitimacy of the appellant's offer to blow. An offer which is not genuine, but merely an illegitimate gimmick, will not serve to raise a reasonable doubt that the entirety of the transaction should be treated as a refusal.
A new trial is ordered. If the prosecution proceeds with a new trial, on agreement of the Crown, the appellant can be summonsed to the new proceeding.
[25] The Crown’s position on this issue is succinctly set out in his factum at paragraphs 23A and B as follows:
A. The evidence was that following the refusal, Cst. Leonardo spoke with the Respondent in another room and attempted to either get him to call duty counsel again or to provide a sample, each was refused. It was only five minutes after this conversation, approximately 10 minutes after the refusal, that accused began to question his decision. This is not a single transaction.
B. The Respondent never requested a last chance to provide a breath sample. His evidence, at its highest, was a request to speak with duty counsel for a second time.
[26] When assessing this issue it is important and necessary to look at the entirety of the interaction Singh had with the police. Singh is adamant he will not provide a breath sample. Both Cst. Haramis and Cst. Leonardo strongly impress upon Singh his legal obligation to provide a breath sample and they explain to Singh the consequences of not doing so. Singh acknowledges this and states to Cst. Haramis that he understands. Both Cst. Haramis and Cst. Leonardo try to persuade Singh to provide a breath sample. Singh is adamant he will not. In the breath room it becomes clear that Singh refuses and the charge is at that point in time made out.
[27] Cst. Leonardo even asks Singh, in relation to the legal advice Singh received:
Leonardo: Okay. Did you understand him?
Respondent: Yeah.
[28] In all of these circumstances the last chance defence has no application.
[29] I agree with the position of the Crown on this issue and in accordance with the cases referred to by the Crown it is my view that on this ground of appeal the acquittal must be set aside and a new trial ordered.
Disposition
[30] The acquittal is set aside and a new trial is ordered. The matter is remitted back to the Ontario Court of Justice for a new trial before a differently constituted court.
Fragomeni J.
Released: October 9, 2013
COURT FILE NO.: SCA(P)2047/12
DATE: 2013-10-09
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
PALWINDER SINGH
REASONS FOR JUDGMENT
Fragomeni J.
Released: October 9, 2013