ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 54/13

DATE: 20140311

RE: Her Majesty the Queen v. Jessica Tina Pletsas

BEFORE: K.L. Campbell J.

COUNSEL: Jason Gorda, for the Crown, respondent
Vincenzo Rondinelli, for the accused, appellant

HEARD: January 7, 2014

REASONS FOR DECISION

[Summary Conviction Appeal]

A. Overview

[1] This appeal raises two issues for consideration. First, did the interventions by the trial judge fatally compromise the appearance of the fairness of the trial? Second, did the trial judge err in the manner in which he assessed the necessary elements of the offence of failing to comply with a demand to provide a suitable sample of breath into an approved road-side screening device?

B. The Factual Background

1. Introduction

[2] The appellant, Jessica Pletsas, was tried by the Honourable Mr. Justice B. Cavion of the Ontario Court of Justice on a single charge of failing, without reasonable excuse, to comply with a demand for a breath sample suitable for analysis in an approved screening device, contrary to s. 254(2) of the Criminal Code, R.S.C. 1985, chap. C-46. The offence was alleged to have been committed in Toronto on or about January 29, 2012. The appellant was 21 years old at the time of the alleged offence.

[3] The trial was completed in one day, on March 18, 2013. There were but three witnesses called by the parties: two police officers and the appellant. Subsequently, on March 25, 2013, Cavion J. released reasons for judgment in which he found the appellant guilty of the alleged offence. That same day, the appellant was sentenced to a fine of $1,000 and prohibited from driving for a period of one year.

2. The Police Evidence

[4] The police investigation of the appellant, in the “Entertainment District” in downtown Toronto, began at approximately 3:08 a.m. on January 29, 2012. A firefighter approached Cst. Danny Mota, a Toronto Police Service (TPS) officer who was on patrol in the area of King Street West near the intersection of Brant Street. The firefighter told Cst. Mota that the driver of a nearby Volkswagen Golf appeared to be “drunk,” and was slouched over the wheel of her vehicle, sleeping. So concerned was the firefighter, he had apparently used his fire truck to block the path of the appellant’s vehicle so that she was unable to drive any further along King Street West.

[5] When Cst. Mota approached the appellant, she was still seated in the driver’s seat of her vehicle. She appeared lethargic and very drowsy. There was also a female passenger in the vehicle. When Cst. Mota spoke to the appellant, he noticed the smell of alcohol on her breath. However, the appellant denied that she had consumed any alcohol that night, explaining that she had come to the area to pick up her girlfriend, the passenger. The appellant produced her driver’s licence without difficulty or incident.

[6] While the appellant did not appear “drunk,” as Cst. Mota reasonably suspected that the appellant’s ability to operate her vehicle was impaired by alcohol, he demanded that she provide a sample of her breath suitable for analysis into an approved road-side screening device. This demand was made at approximately 3:09 a.m. The appellant acknowledged her understanding of this demand. Just before making this demand, Cst. Mota contacted the TPS dispatcher to summon the attendance of an officer with an approved screening device. He then told the appellant that the device was on the way and, given the coldness of the night, permitted her to wait inside her vehicle.

[7] Cst. Rietkoetter of the TPS arrived on the scene very quickly, at approximately 3:16 a.m., with an approved screening device. The officer is a qualified operator of this device. As he was arriving, Cst. Mota walked the appellant over to the nearby parked “court wagon” police vehicle for the purpose of this breath test. The appellant did not stumble, stagger or fall, or exhibit any unsteadiness during this short walk. Cst. Mota had the appellant sit on the passenger side of the front seat of the court wagon while he briefed Cst. Rietkoetter about his involvement with the appellant. Cst. Rietkoetter then took over the investigation, while Cst. Mota stood nearby and observed their interactions.

[8] Cst. Rietkoetter explained to the appellant exactly how the machine worked, and explained in detail what the appellant was obliged to do in order to provide a suitable sample of her breath. The appellant indicated her understanding of the process, stating that she had done this many times in the past.

[9] Over the course of approximately the next half-hour, the appellant made some 30-40 attempts to provide a suitable sample of her breath. She never provided a suitable breath sample. According to Cst. Rietkoetter, he repeatedly instructed the appellant as to what she had to do to provide a suitable breath sample. More specifically, he told her that she had to continue to blow into the device until he told her to stop. The appellant never complied with this instruction.

[10] Cst. Rietkoetter testified that, at first, the appellant failed to blow any air at all into the device, as evidenced by the device emitting no tone whatsoever. At one point, at approximately 3:25 a.m., Cst. Rietkoetter took back the device, checked it to ensure that it was functioning properly – he found that it was – and then handed it back to the appellant with a fresh new mouthpiece. At this point, the appellant indicated that she had performed “millions” of such breath tests, that she knew what she was doing, and that she did not require any further instructions from the officer. In her subsequent efforts, over the course of the next ten minutes, the appellant appeared to be blowing some air into the device, but she never blew long enough to provide a suitable sample for analysis.

[11] That night the appellant was wearing a short “little dress,” with no coverings on her legs, a mid-thigh length coat, and boots. It was cold outside. She had no hat, scarf or gloves. At one point, at approximately 3:35 a.m., the appellant was shivering and said that she was very cold, and she asked if she could put on the pair of track/sweat pants that she had in her car. She was allowed to do so by the police officers. They took her back to her vehicle, she was permitted to put on the warmer pants, and then they returned to the “court wagon.” According to Cst. Rietkoetter, after the appellant was permitted to change, she did not again complain about being cold.

[12] Cst. Rietkoetter testified that after they returned to the court wagon, there were many further unsuccessful efforts to provide a breath sample. Again, the appellant would just blow into the device for “a couple of seconds at a time,” but never long enough to provide a suitable sample of her breath. After each unsuccessful sample, Cst. Rietkoetter told the appellant that she had provided an insufficient sample of her breath, and he reminded her that she was obliged to provide a “suitable” sample of her breath for analysis.

[13] Eventually, after some 30-40 unsuccessful efforts, Cst. Rietkoetter expressly warned the appellant that, if she failed to provide a suitable breath sample, she would be arrested, taken to the police station and charged. He also advised her of the potential penalties. At this point, according to Cst. Rietkoetter, the appellant made some type of sarcastic remark about it being “warmer at the police station if she could provide a sample there.” After further multiple unsuccessful efforts, Cst. Rietkoetter stopped the testing process. The appellant never provided a suitable sample. In the view of Cst. Rietkoetter, the appellant was being “deliberate” in failing to provide a suitable sample of her breath into the “extremely simple” approved screening device.

[14] Cst. Rietkoetter testified that, during his interactions with the appellant, he could smell an odour of alcohol on her breath, but he made no note of any other indicia of alcohol impairment on the part of the appellant.

[15] The appellant was placed under arrest at approximately 3:50 a.m., at which time Cst. Rietkoetter tried to advise the appellant of her right to counsel. However, when she was told that she was under arrest and would be charged, the appellant became “extremely irate.” She became “aggressive and belligerent,” yelling and swearing at the police officers. As Cst. Rietkoetter described the aftermath of the arrest, the appellant caused “quite a scene,” screaming and yelling at the officers. The officer was unable to “talk over her” in advising her of her right to counsel. The appellant was still in this “irate” condition when Cst. Rietkoetter provided her with the “paperwork” in connection with her arrest at 4:15 a.m.

[16] Cst. Mota, who stood nearby when the appellant was dealing with Cst. Rietkoetter, testified that the appellant was just not supplying the amount of breath that was required for analysis. There was simply “no effort” on her part to supply a breath sample into the approved screening device. According to Cst. Mota, eventually, it just got to the point where it was “ridiculous.” In cross-examination, however, Cst. Mota agreed that the appellant never said that she did not want to comply with the demand, and appeared to be “puzzled” as to why she could not produce a suitable sample.

(continued verbatim exactly as in the decision)

Kenneth L. Campbell J.

Released: March 11, 2014