ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-C2374
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
SCOTT DELARM
Respondent
Jason Pilon, for the Crown
Self-Represented
HEARD: November 22, 2012
ON APPEAL FROM THE DECISION OF THE HONOURABLE JUSTICE J. Brunet OF THE ONTARIO COURT OF JUSTICE ON december 16, 2011 AT CORNWALL, ONTARIO
summary conviction appeal
mcmunagle j.
Introduction
[1] On October 13, 2010, the Respondent was charged with refusing to provide a roadside breath sample, pursuant to s. 254(5) of the Criminal Code, R.S.C. 1985, c.C-46 (“Code”):
Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
[2] The trial was held on November 22, 2011, in the Ontario Court of Justice, before the Honourable Justice J. Brunet, who rendered his decision on December 16, 2011. The Respondent was acquitted of the charge.
[3] The Crown has appealed Justice Brunet’s decision. The following grounds of appeal were raised:
(1) That the learned trial judge erred in law when he acquitted the Respondent of an offence contrary to s. 254(5) of the Code;
(2) That the learned trial judge erred in his interpretation of the mens rea required for an offence contrary to s. 254(5) of the Code;
(3) That the learned trial judge erred when he determined that a condition precedent to complying with a valid breath demand amounted to an “equivocal” refusal;
(4) That the learned trial judge erred when he misapplied the evidence before him to the law as he understood it; and
(5) Such further and other grounds as counsel for the Appellant may advise and this Honourable Court may permit.
[4] At the hearing of the appeal on December 14, 2012, Crown counsel agreed that the main focus of their appeal was whether Justice Brunet’s decision could be regarded as a precedent for future refuse cases. The Crown interprets this decision to mean that a “condition precedent to complying with the valid breath demand amounted to an ‘equivocal refusal.’”
[5] For the reasons that follow, I do not share the Crown’s interpretation. Accordingly, their appeal is dismissed.
Facts
[6] On October 13, 2010, at 11:42 a.m., Mr. Delarm was riding his motorcycle from Ottawa to Montreal. He was stopped by Provincial Constable Letouze of the Ontario Provincial Police on suspicion of impaired driving. Mr. Delarm indicated that he had consumed alcohol. Combined with other indicators of inebriation, the officer decided that she had a reasonable suspicion to make the roadside demand, pursuant to s. 254(2) of the Code. The officer testified that she gave the roadside demand to Mr. Delarm at 11:52 a.m. When asked if he understood the demand, Mr. Delarm answered in the affirmative and that he “knew how it worked.”
[7] It was at this point that the evidence of the arresting officer and Mr. Delarm diverges.
[8] Constable Letouze was the sole witness called by the Crown. In essence, she indicated that Mr. Delarm had “told me flat out that he would not be providing a sample.” Further, the officer testified that after replacing the mouth piece and presenting the machine to Mr. Delarm, on the second occasion, he said “I’m not going to do that.” The officer confirmed that she took these responses to mean that he was refusing to give a breath sample into the roadside screening device. Constable Letouze then proceeded to arrest Mr. Delarm.
[9] Mr. Delarm’s evidence was to the effect that “I won’t be blowing in it without speaking to an attorney.”
Analysis
[10] This court agrees with the lower court that this situation is one involving the question of whether Mr. Delarm’s response to the arresting officer is a clear and unequivocal refusal to provide a sample. The learned trial judge properly found, after assessing the credibility of Mr. Delarm, that his response to the roadside demand of Constable Letouze was an equivocal refusal. As such, it was “ambiguous or capable of more than one interpretation.”
[11] A particular concern to the Crown is the evidence given by Mr. Delarm when he told the arresting officer that “I won’t be blowing in it without speaking to an attorney.” Crown counsel, in his usual professional, fair and frank presentation, indicated that the Crown was most concerned about the possibility that this case could now be seen as a precedent for the proposition that an accused could ask to speak to counsel prior to deciding whether or not to provide a roadside breath sample.
[12] It is now the year 2013: it is trite law that once a valid demand has been made, a suspect in the circumstances described above is not entitled to consult with counsel prior to deciding whether or not to provide a roadside sample. See: R. v. Thomsen, 1988 73 (SCC), [1988] 1 S.C.R. 640.
[13] Justice Brunet was not suggesting that an accused person found in Mr. Delarm’s circumstances was entitled to delay his response to a valid demand for a breath sample by first consulting counsel. Having reviewed Justice Brunet’s decision, I respectfully disagree that this case stands for the proposition that the Crown thinks it does.
[14] Justice Brunet’s decision indicates that he was fully aware of the law that applied in the area of a charge pursuant to ss. 254(2) and 254(5) of the Code. He was also aware of the law related to the assessment of credibility, as outlined in the seminal Supreme Court of Canada decision of R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.
[15] More specifically, Justice Brunet’s decision is not one that requires a “condition precedent to complying with the valid breath demand equals an equivocal refusal and therefore a valid defence.” On the contrary, and with the greatest of respect, the Crown is over analysing Justice Brunet’s decision.
[16] The ratio for Justice Brunet’s decision is found on page 14, lines 10 through to 16 of the trial transcript:
In other words, it is not that the accused had, or did not have, a right to speak to counsel at the roadside that is of concern; rather, it is that he states that this was in his mind and that he did not intend to “produce the refusal” to avert to the elements of the offence.
[17] Further, if this court had any doubt as to the veracity of its opinion, I note Justice Brunet’s last paragraph on page 14 of the transcript, lines 17 through to 24, wherein he states:
Therefore, it is in these narrow circumstances, and pursuant to R. v. W. (D.) that I find that the Crown has not proven beyond a reasonable doubt that the accused had the required mens rea on the refusal charge before the court. Mr. Delarm is therefore acquitted.
[18] In conclusion, I see no reason to interfere with the finding of the learned trial judge and trust that any confusion that may have resulted from this decision, at least from the Crown’s point of view, is now resolved.
[19] I believe, given the fact that Mr. Delarm was self-represented on this appeal, that this Court would be remiss if it did not take a moment to thank Assistant Crown Attorney, Jason Pilon, for the quality of his factum and other written materials, as well as his fair and frank submissions to this court. They were a great deal of assistance in narrowing the issue, and also in helping the court in assisting an unrepresented Respondent, with little or no prior legal knowledge. It is hoped that we will not see Mr. Delarm before our courts ever again.
McMunagle J.
Released: February 21, 2013
COURT FILE NO.: 10-C2374
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
– and –
SCOTT DELARM
Respondent
summary conviction appeal
McMunagle J.
Released: February 21, 2013