CITATION: R. v. Boughen, 2015 ONSC 2192

COURT FILE NO.: 31-2013

DATE: April 15, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Laura Grant for the Respondent on Appeal

Respondent on Appeal

• and -

James Boughen

Michael J. Donnelly for the Appellant

Appellant

HEARD: November 19, 2014

MITROW J.

INTRODUCTION

1On July 29, 2013, Rabley J., in the Ontario Court of Justice, convicted the appellant pursuant to s. 254(5) of the Criminal Code that the appellant, without reasonable excuse, failed or refused to comply with a demand made to him by a peace officer pursuant to s. 254(2)(b) of the Criminal Code to provide forthwith a sample of his breath to enable a proper analysis of his breath to be made by means of an approved screening device.

2The Crown proceeded summarily. The appellant appeals his conviction to this court.

3For reasons that follow, the appeal is dismissed.

THE FACTS

4The facts that are germane to the appeal largely are not in dispute.

5A total of three witnesses testified at the trial: the Crown called Scott Mead, a constable with the Ontario Provincial Police (“Mead”), and an expert forensic toxicologist, Jean-Paul Palmentier; the appellant testified in his own defence at the trial.

6Given that the appeal centers around the appellant’s submission that he complied with Mead’s instructions as to how to provide a breath sample into the approved screening device (ASD), and that those instructions were faulty, it becomes necessary to focus specifically on the evidence relating to the appellant’s efforts to provide a breath sample into the ASD.

7Given that the trial judge accepted the evidence of Mead, and did not accept the evidence of the appellant (as discussed in more detail below), it is important to focus specifically on the evidence of Mead.

8In summary, Mead’s evidence discloses that the appellant failed to provide a suitable sample of his breath into the ASD for proper analysis on six consecutive occasions at the roadside. When Mead requested the appellant to provide a seventh sample, the appellant refused.

A. Appellant is Pulled Over by Mead

9It was Mead’s evidence that at 18:43 on September 20, 2012, he observed what turned out to be the appellant’s vehicle, a pick-up truck, southbound on King Street in the Town of Clinton. At that point, Mead was northbound on the same street. Mead was on duty at the time and operating a police vehicle.

10It appeared to Mead that the appellant, who was the operator and sole occupant of the pick-up truck, was not wearing a seatbelt.

11Mead followed the appellant’s vehicle for a brief period of time until the appellant pulled his vehicle over to the side and came to a stop.

12The appellant remained in his vehicle; Mead approached the appellant’s vehicle from the driver’s side and advised the appellant that he did not observe him wearing a seatbelt. However, at that time, Mead noted that the appellant did have a seatbelt on.

13During this conversation with the appellant, Mead testified that he detected the smell of an alcoholic beverage from the appellant’s breath and that the appellant’s eyes appeared dilated. At this point, Mead requested, and was provided with, the appellant’s drivers licence, registration for the vehicle and insurance slip.

14It was Mead’s testimony that he continued to engage in a discussion with the appellant as to whether the appellant had consumed any alcohol. Mead testified the appellant denied any alcohol consumption.

15At this point, Mead requested the appellant to step out of the pick-up truck and to accompany Mead to the cruiser for the purpose of providing a sample of the appellant’s breath into an ASD. It was Mead’s evidence that he had suspicion that the appellant had consumed alcohol recently and that it may have impaired his ability to drive a motor vehicle.

16The appellant did exit his vehicle; Mead described the appellant as being cooperative in doing that; the appellant was placed in the rear of Mead’s cruiser but the door was left open, as Mead indicated it is a cramped area, and Mead allowed the appellant to keep his feet outside of the police cruiser.

17At 18:45, Mead read the ASD demand from his notebook and it was Mead’s testimony that the appellant admitted or indicated that he understood what the demand meant.

B. First Failed Attempt

18The approved ASD device used by Mead was the Drager Alcotest 7410 GLC.

19Mead testified he had been trained in the use of that particular ASD that he had with him on that day and further that he had occasion to use that specific ASD previously throughout the course of his employment as an Ontario Provincial Police constable.

20In this appeal, the appellant does not challenge the propriety of Mead’s demand to provide a breath sample for analysis by the ASD, nor is any issued raised that the ASD was other than a proper approved device.

21AT 18:45, Mead demonstrated to the appellant how to provide a suitable sample into the ASD. Specifically, Mead powered up the ASD; when prompted by the ASD, Mead took a sealed mouthpiece, placed it inside the ASD, and blew into the mouthpiece providing a suitable sample into the ASD. Mead testified it resulted in a reading of “three zeros.” Mead showed this to the appellant. Mead was satisfied that the ASD was working properly. Mead had also testified that the unit had been calibrated on September 16, 2012 by a certified breath technician.

22In relation to the significance of the three zeros, Mead testified later (when giving another demonstration as to how to use the ASD) that as he had no alcohol in his system, the ASD was showing him that a proper sample of his breath was being read by the ASD.

23Mead provided the appellant with a separate sealed mouthpiece and asked the appellant to blow into the mouthpiece. The appellant did so and Mead could hear the airflow passing through the mouthpiece and Mead was satisfied that there was no obstruction in the mouthpiece.

24Mead then explained the instruction that he gave the appellant. Mead stated the appellant replied that he understood the instruction. Mead’s instruction was as follows (page 10 of the transcript):

At that point I instructed the accused to in providing a suitable sample to use a seal, a tight seal with his lips only on the mouthpiece, keep his tongue out of the way and blow a consistent level breath into the instrument while getting verbal prompting from myself of keep going, keep going, keep going. I also told him that there would be an audible tone coming from the unit and that to keep blowing until he was told to stop.

25At 18:48, the appellant attempted his first breath sample. Mead stated the appellant blew “for approximately three seconds” and that the ASD registered a reading of “EO,” which Mead explained is a message on the ASD that tells Mead that there was not enough air volume into the unit to supply a proper sample.

26It was Mead’s evidence that after the unit registered the “EO” message, that the appellant continued to attempt to provide a breath sample into the ASD and that Mead had to advise the appellant two or three times to stop doing so. It was Mead’s unchallenged evidence that once the ASD registers an “EO,” it cannot accept a further sample for analysis until the ASD resets itself. Mead testified he had to pull the ASD away from the appellant.

27Mead reinstructed the appellant, advised him that he was not blowing long enough and that he had to provide a further sample.

28Mead testified that although the appellant appeared to understand this explanation, that the appellant became “very agitated.” It was Mead’s testimony that the appellant stated that the reason that the ASD registered the result that it did was because Mead had pulled the ASD away from the appellant prior to the appellant finishing the sample. However, Mead was clear in his evidence that this was not the case and that he had pulled the unit away only after it registered “EO.”

C. Second Failed Attempt

29The second attempt occurred at 18:49 (Mead confirmed the time during his cross-examination).

30It was Mead’s evidence that the appellant blew for “approximately three seconds again.” Another “EO” reading resulted. It was Mead’s opinion that the appellant was not “… blowing hard enough or long enough.” Mead added that three seconds is definitely not long enough to register a suitable sample.

31While waiting for the unit to reset, and to give the ready signal with the green light, Mead instructed the appellant that “… he needed to blow longer and a little bit harder …” and that the appellant should follow Mead’s instructions and verbal prompts to provide a suitable sample. Mead indicated that the appellant appeared to understand these instructions as the appellant nodded in reply.

D. Third Failed Attempt

32The third attempt occurred at 18:50. The appellant blew “for approximately four seconds again” and again the result was an “EO” reading. This indicated to Mead that there was insufficient volume to register a suitable sample. During the four seconds that the appellant was blowing, Mead was instructing the appellant “… to keep going, keep going, keep going, keep going.”

33After the reading indicating the failed attempt, Mead pulled the mouthpiece and the ASD away from the appellant. Mead reinstructed the appellant. It was Mead’s evidence that again the appellant stated that Mead was pulling the ASD away causing the “EO” reading.

34At this point, Mead instructed the appellant that this was a first warning regarding a refusal. Mead indicated the appellant understood the warning.

35For the remainder of the tests that are described below, Mead gave the ASD to the appellant to hold. For the previous tests, according to Mead, the ASD was physically held by Mead while the appellant gave the breath sample.

36Again Mead testified that the “EO” reading meant that there was an insufficient amount of air blown into the instrument through the mouthpiece to provide a suitable sample for a reading to be made.

37In relation to the warning that Mead gave to the appellant, Mead explained that the warning consisted of telling the appellant that if he failed to provide a suitable sample, and it was deemed that he was failing to provide it, that the result would be the same impact as an impaired charge under the Criminal Code. According to Mead, the appellant appeared to understand this warning.

E. Fourth Failed Attempt

38The fourth attempt was made at 18:51. The appellant blew for “… approximately three seconds,” which resulted again in a reading of “EO.” Mead explained that again there was insufficient airflow not long enough to provide a suitable sample to register a result.

39While the appellant was attempting to blow into the ASD for a fourth time, Mead testified that he continued coaching the appellant with the words “… keep going, keep going, keep going.” When the unit registered the failed attempt, Mead told the appellant to stop and then Mead took the ASD away from the appellant to wait for the unit to reset itself.

40After the fourth failed attempt, Mead testified that the appellant stated to Mead that the appellant was not willing to blow again. This resulted in Mead again going over the consequences of a refusal with the appellant; basically again advising the appellant that he needs to provide a suitable sample and that if he refuses to provide a suitable sample or it is deemed that he is failing to do so, the consequences are the same as an impaired charge. Mead testified that the appellant did appear to understand that warning.

41Mead testified that at this time the appellant became very agitated with Mead. Mead also described the appellant as being “… kind of verbally aggressive.” As a result, at 18:52, Mead requested for a second police unit to attend at his location. Although Mead stated that the appellant was not physically aggressive, Mead did indicate that the appellant was “definitely confrontational verbally.” By that, Mead explained that the appellant was arguing with Mead in regards to Mead pulling the ASD away from the appellant on the first attempt, alleging that the ASD was not working properly, stating that he was blowing hard enough and that he was following instructions.

F. Fifth Failed Attempt

42The appellant made a fifth attempt to blow into the ASD at 18:54. Mead testified that the appellant attempted to provide a sample, blowing into the ASD “… for approximately four seconds” and again resulting in a reading of “EO.” Again, Mead interprets this reading as meaning there was insufficient airflow through the mouthpiece into the ASD to provide a suitable sample for a reading. During the time the appellant was blowing into the unit, Mead kept encouraging the appellant verbally “… to keep going, keep going, keep going.”

43It is also at this time that Mead testifies that at no time on this test and the other four tests did he instruct the appellant to stop blowing except after the ASD registered a result of “EO.”

44When asked in-chief about whether there had been continuous blowing, Mead responded that he definitely noted this on the first attempt but he could not say that he noted it on the other attempts.

45In relation to the fifth test, Mead was asked in-chief whether there was ever an end to the appellant providing a breath sample, whether the appellant stopped at any time or was there a continuous breath. Mead testified that it looked like there was a hesitation or a drop in air volume that would cause the ASD to read that it was getting insufficient air volume to register a sample.

46Mead then takes the ASD away from the appellant, after the reading indicating a failed test. At this time, Mead’s evidence is that the appellant is arguing with Mead regarding the results of the breath test. Mead describes the appellant as being frustrated at that point.

47It is Mead’s evidence that he has another discussion with the appellant as to how to give a proper sample and Mead reinstructs the appellant on what the appellant needs to do and, further, Mead tells the appellant what Mead feels the appellant is doing in regards to not blowing long enough or hard enough.

48Mead described his reinstruction as follows (at page 22):

Again a nice tight seal with his lips around the end of the mouthpiece, remove the obstruction if it was a tongue or his teeth, blow a consistent steady stream of air into the instrument while he’s given instructions and don’t stop until he’s told to.

49It was Mead’s evidence that the appellant appeared to understand that explanation.

50Mead testified that at 18:56 he re-demonstrated for the appellant how to provide a suitable sample. This re-demonstration consisted of Mead opening another sealed mouthpiece, placing it inside the ASD, blowing into the ASD “… a steady stream of consistent air which resulted in a reading of three zeros and that was again shown to the accused.”

51When Mead was cross-examined in relation to the fifth test, Mead agreed that the appellant was “very agitated” after the test failed; Mead reaffirmed his concern that the appellant was not blowing “long enough or hard enough”; and Mead reconfirmed that on every occasion so far, when he told the appellant to stop blowing, that this was after the “EO” message registered on the ASD.

G. Sixth Failed Attempt and Refusal to Provide a Seventh Sample

52At 18:58, Mead requested the appellant to provide his sixth breath sample.

53Mead explained that he handed the ASD to the appellant; that the appellant provided “… a three second breath sample”; and Mead further stated that it looked like a pause again or a drop in the volume, which resulted in another reading of “EO,” which Mead again explained indicated an insufficient volume of air through the mouthpiece into the ASD. Mead asked the appellant to stop and took the ASD from the appellant.

54Mead advised the appellant at this point that this was his last warning, that he would be able to provide one more test and that failing to do so would result in a refusal. Mead indicated that the appellant appeared to understand this warning.

55Mead noted that at 19:00 two constables arrived pursuant to his backup request. Mead advised the officers that he was having an issue with having the appellant provide a suitable sample.

56Mead testified that he again reinstructed the appellant “… on how to provide a suitable sample with a proper seal on the mouthpiece, a long steady stream of air into the Alcotest as the verbal prompting would be given and to continue to breathe into the Alcotest until he was told to stop” (page 25). Mead testified that the appellant appeared to understand this further reinstruction.

57After the ASD had reset itself, Mead observed the green ready light and handed the ASD to the appellant. The appellant refused to provide a sample. Mead again cautioned the appellant in regards to the result of a refusal and the appellant responded that he was not going to provide a further sample and the appellant handed the ASD back to Mead.

58At 19:03, Mead arrested the appellant for refusal, handcuffed him and searched him. Mead testified that the appellant understood the caution given by Mead when the appellant refused to provide a sample.

59It is noted that there is no issue as to the fact that the appellant refused to provide a sample.

60It was Mead’s evidence that the appellant at this point was “frustrated, argumentative,” although he was not swearing.

61Mead testified in-chief as to his observations regarding the appellant’s physical state, especially during the time when he was attempting to provide the breath samples. It was Mead’s evidence that the appellant did not appear to be in any discomfort; Mead explained that the appellant did not look like there was any possible shortness of breath; and further, Mead testified there was no indication from the appellant that the appellant was not feeling well.

62It did not appear to Mead that the appellant was suffering from any medical condition or that the appellant was in any pain. In relation to the various tests, Mead was asked what he observed the appellant doing with his mouth in relation to the mouthpiece. Mead testified that the seal appeared to be good; that Mead could not tell for sure if the appellant was possibly using his tongue as an obstruction; and Mead indicated that “certainly” the appellant was not blowing long enough, and the appellant would pause or he would not blow hard enough during that short period of time.

H. Cross-Examination of Mead in Relation to the Failed Attempts of the Appellant to Provide a Suitable Sample

63Mead agreed in cross-examination that it appeared that the appellant did have a tight seal formed around the mouthpiece. He confirmed that he could not say for sure if there was an obstruction with the tongue.

64When asked as to what he said to explain to the appellant how to provide a breath sample, Mead stated (at page 43): “… to blow into the ASD until told to stop while being prompted keep going, keep going, keep going, consistently and with good force.”

65In relation to the first test, Mead explained it was his opinion that the appellant clearly “wasn’t blowing hard enough” (page 45). Mead explained he had arrived at this opinion by observing the appellant’s “physical capabilities” while attempting to provide a sample, including whether he took a deep inhalation prior to blowing.

66During cross-examination, Mead was asked about his discussion with the appellant about “proper testing.” Mead’s discussion with the appellant included advising the appellant that “… he wasn’t blowing hard enough or long enough, and that he needs to provide a longer sample, listen to verbal prompts and expel all the air in his lungs” (page 53).

I. The Evidence of the Crown Expert Witness

67Jean-Paul Palmentier (“Palmentier”) was qualified, on consent, by the trial judge as an expert in the giving of evidence relative to absorption, distribution, elimination of alcohol in the human body, including the calculation of blood alcohol concentration, as well as the principles and methods of operation of various instruments, and this includes the specific ASD used by Mead in the present case.

68Palmentier explained the operation of the ASD and the meaning of the message “EO.” In essence, Palmentier corroborated Mead’s evidence.

69Palmentier explained that an “EO” reading on the screen of the ASD indicates that the subject has not provided a sample and met the minimum acceptance criteria.

70Palmentier explained that the minimum acceptance criteria for the ASD used by Mead in the present case are as follows:

a) The subject has to provide a sample with enough flow-rate to equal six litres per minute. Palmentier analogized this to blowing through a straw, through three inches of water;

b) Once the flow-rate is made, the device signals with a tone that that criterion has been met;

c) The device then waits four seconds, which is the minimum criterion. Once the sample has been accepted, the instrument will then conduct an analysis;

d) If the first two criteria are not met, then an “EO” message registers and the device will no longer accept the sample;

e) The third criterion is that the person must provide at least 1.2 litres of air into the instrument.

J. Evidence of the Appellant

71Given the credibility findings made at trial, I find it is necessary only to review briefly some of the appellant’s evidence.

72At the time of trial, the appellant was 67 years of age.

73It was the appellant’s complaint throughout his evidence that he continued to follow the instructions given by Mead and that he continued to blow into the ASD.

74The appellant also complained that Mead would take the ASD away from him while the appellant was still blowing.

75It was the appellant’s evidence that he blew a total of seven times and that it was on the eighth time that he refused to provide a sample. However, as noted, Mead’s evidence was clear that there were six failed attempts and the refusal came on the seventh demand for a sample.

76The basis of the appellant refusing to blow pursuant to the last demand (being the seventh request), was that the appellant had done what he could to provide a sample the first six times and the appellant was of the view that inevitably the same failed result would follow.

77The appellant testified that there was a discussion between him and Mead whereby Mead suggested, and the appellant agreed, that the appellant should go to the police station and instead provide a sample into the breathalyzer (at one point the appellant referring to the breathalyzer as the “big machine,” stating that that is how Mead referred to it).

GROUNDS FOR APPEAL

78Although various grounds of appeal were advanced in the appellant’s notice of appeal, the grounds of appeal as argued by the appellant during the hearing of the appeal can be summarized as follows:

a) The police officer who conducted the roadside breath tests provided the appellant, continuously, with faulty instructions as to how to provide a suitable breath sample into the ASD;

b) On all the evidence, the trial judge should have been left with a reasonable doubt as to whether the appellant had the requisite mens rea, namely whether the appellant intended to produce a failure to provide a breath sample;

c) The trial judge’s failure to conduct a proper analysis, as required by R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.), contributed to the trial judge’s failure to find that there was a reasonable doubt on the issue of mens rea.

79Also subsumed within the grounds of appeal is whether the appellant failed or refused to comply with the demand “without reasonable excuse” as set out in s. 254(5) of the Criminal Code. This issue, in turn, engages s. 794(2) that deals with the burden of proof in relation to any “reasonable excuse” that may exist in the present case.

STANDARD OF APPELLATE REVIEW

80In this summary conviction appeal, it is not the function of this appeal court to retry the case or to substitute its own decision (R. v. Colbeck, 1978 CanLII 2447 (ON CA), 1978 CarswellOnt 1206, 42 C.C.C. (2d) 117 (Ont. C.A.) at para. 3). The test for an appellate court in determining whether a verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported on the evidence is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered (R. v. Biniaris, 2000 SCC 15, [2000] S.C.J. No. 16 (S.C.C.) at para. 36).

THE REASONS FOR JUDGMENT

81The trial judge recognized the obligation to instruct himself with respect to the principle set out in R. v. W.(D.). He states this obligation early in his reasons at page 132:

As I must I instruct myself with respect to the principles set out in R. v. W.D., anytime an accused person testifies on his behalf it’s important that a court does the analysis to ensure that the various branches of that test are met.

82The trial judge then characterized the appellant’s evidence as a denial: that he made his best efforts to provide a sample into the ASD; that he did as he was told to do; and that he did the best he could do and that he was unable to provide a suitable sample.

83As a result of different versions of the evidence, the trial judge stated the importance of conducting an analysis as to the credibility and reliability of witnesses.

84The trial judge accepted the evidence of Mead. He described being “very impressed” with Mead’s evidence, noting Mead was meticulous in his methodology and detailed in his description, and fair in acknowledging certain deficiencies in his recollection and with respect to his note taking.

85Relevant to the issue raised by the appellant, that Mead gave flawed instructions to the appellant, I find that the following passage is relevant from the reasons (at page 133):

I must say that his evidence was convincing in the way that he explained it to me, and it is clear to me or at least it appeared to me that he is an officer that has been here before on these kinds of offences and that he has done his best to understand what the potential defences might be, what the problem areas are that he must address as a police officer, and that he’s sensitive to dealing with these particular areas in the manner in which he gives his evidence. I see no reason why it is that he would approach his investigative duties in a different way and those observations in my view are important when ultimately assessing the credibility and reliability of the defence and the crown cases.

86The trial judge reviewed in some detail each of the six failed attempts of the appellant to provide a sample, and also the appellant’s refusal to blow into the ASD, when asked by Mead to provide a seventh breath sample.

87The trial judge accepted that while the appellant was providing samples of his breath that he “did not appear to be in any discomfort.” The trial judge noted the appellant’s testimony that, although the appellant had learned later that he may have had broken ribs at the time, that the appellant “… didn’t attribute any difficulties on the evening in question to those broken ribs” (page 139).

88In attempting to assess the impact of any particular injury, the trial judge in part noted that there was no medical evidence and, according to Mead, that the appellant did not appear to be in any discomfort and did not appear to have any shortness of breath (pages 139-140).

89At this point in his reasons, the trial judge found that the evidence “… would certainly meet the test of a prima facie case and so as a result it’s necessary to look at the evidence of Mr. Boughen” (page 140).

90In the context of reviewing the evidence of the appellant, the trial judge noted that there had been no attack on the ASD itself; the trial judge found it “problematic” in relation to the defence that the ASD was tested twice by Mead, each time producing appropriate readings.

91The trial judge reviewed and rejected the appellant’s claim that he did the best he could in trying to provide a suitable sample, noting that the appellant “… was simply blowing into an instrument with sufficiency that Mr. Palmentier described as being not that difficult in the circumstances” (page 141).

92The trial judge then mentions, again, the lack of any medical evidence but is careful to add that the onus is not on the appellant, and that the onus always remains on the Crown to prove the case beyond a reasonable doubt. The trial judge concludes at page 142:

In all of those circumstances it would be my view that Mr. Boughen was not providing a sample as directed by the officer suitable for analysis and as a result would fit within the ambit of refuse.

Having said that, unfortunately I think as following as I believe in that particular point and I would simply say I on the test of W.D. don’t accept the evidence of Mr. Boughen or have a reasonable doubt. The refuse to the officer at the end is a pretty strong case for the crown. [my emphasis]

93In relation to the appellant’s refusal to provide the seventh sample, the trial judge considers the argument that the appellant’s refusal was justified given his frustration regarding the previous failed attempts. The trial judge concludes that this was not the appellant’s decision to make, and specifically rejects the appellant’s evidence that Mead told him that he could come back to the police station and instead provide samples for the breathalyzer. The trial judge concludes that this alleged offer from Mead was never made (pages 142-143).

DISCUSSION

A. Relevant Statutory Provisions

94The following provisions of the Criminal Code are relevant for the purpose of this appeal:

254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(b) to provide 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.

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

794(2) The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

B. Did Constable Mead provide flawed instructions to the appellant as to how to provide a breath sample?

95The crux of the appellant’s submission is that Mead understood that there were two essential components to the sufficiency of the breath sample: that the sample had to be sufficiently long; and that the sample had to be of sufficient force or, to put it another way, the appellant had to blow “hard enough.” However, the appellant submits that Mead emphasized to the appellant only the first criterion, that the sample had to be “long enough,” and not that the appellant had to blow “hard enough.”

96The appellant complains that, time and time again, during the six failed tests, that the appellant was told to “keep going, keep going, keep going,” rather than being told to “blow harder, blow hard, blow harder.”

97I do not accept the appellant’s submissions that the instruction to “keep going” is synonymous with emphasizing the length of the blow. This instruction, which was used frequently by Mead, has to be placed in context.

98At the outset, before the first test, Mead explained clearly what was required to provide a sample into the ASD. This included Mead’s instruction to “… blow a consistent level breath into the instrument while getting verbal prompting from myself of keep going, keep going, keep going.” The trial judge specifically referred to Mead’s initial instructions (reasons, page 135). I find that a proper interpretation of the “keep going” instruction is not limited to blowing “long enough” as argued by the appellant, but rather encourages the appellant to keep providing a “consistent, level breath” in accordance with Mead’s initial instructions.

99Also, on this point, there were a number of tests that were under the minimum four second duration, as required, according to the expert evidence; hence, I do not agree with the appellant’s characterization of the main problem as being “not blowing hard enough”; clearly “not blowing long enough” was also a problem.

100During oral argument, the appellant did concede that after the second test there was evidence of Mead telling the appellant that he needed to have a more sustained airflow through the instrument. The appellant referred to Mead’s evidence (page 13) that Mead “… advised him again that he needs to blow longer and more sub stained [sic] airflow through the instrument.”

101It was submitted by the appellant that the transcript likely had a typographical error and that the word was “sustained.” However, the appellant further submitted that this still does not address the force of the blow. Accepting the appellant’s submission that the word was “sustained,” I find that it does, to some extent, address the force of the blow.

102More importantly, however, the appellant did not refer to the further evidence of Mead who testified that, while waiting for the ASD to reset after the second test, that he instructed the appellant “… that he needed to blow longer and a little bit harder …” (page 14). During cross-examination, in relation to the second test, Mead testified that the appellant was “not blowing hard enough or long enough” and Mead confirmed that he had said that to the appellant (pages 48-49).

103In his reasons for judgment, the trial judge accepts that after the second test, Mead told the appellant to blow longer and harder to provide a sample (page 136).

104Also noteworthy is the appellant’s evidence during cross-examination confirming he had been told by Mead that he was “… not blowing hard enough …” (page 113).

105Further, after the fifth test, Mead re-demonstrated how to blow a breath sample into the ASD; he also reinstructed the appellant as to the use of the ASD, telling him, again, “… to blow a consistent stream of air into the instrument …” Importantly, Mead’s reinstruction includes telling the appellant “… what he [the appellant] needs to do and what I feel he’s doing in regards to not blowing long enough or hard enough” (page 22).

106In his reasons for judgment, the trial judge, referring to the appellant’s fifth failed attempt to provide a suitable sample, noted Mead’s evidence as indicating a hesitation or drop in air volume that indicated to the trial judge that the appellant had stopped blowing (page 138).

107During oral argument, the appellant referred to Mead’s evidence in cross-examination (page 54) where Mead agreed with the suggestion that the only thing that the appellant appears to be doing wrong is “not providing sufficient volume into the machine.” The appellant submits that his objection to Mead’s instructions to the appellant is that Mead does not specifically concentrate on what he identified as the problem – the fact that there is an insufficient volume going into the ASD; that Mead never says “blow harder, blow harder, blow harder,” rather he says “keep blowing, keep blowing, keep blowing.” In making this submission, the appellant acknowledges that on one occasion Mead does say to blow consistent, and on another occasion he referred to blowing in a “sustained” manner.

108I do not accept the appellant’s submission that when Mead identified the problem as being an insufficient volume going into the ASD, that that equates only with the appellant not blowing “hard enough.”

109The evidence of the expert witness, Palmentier, related to three interdependent criteria:

a) a person has to blow into the instrument with a minimum flow-rate of 6 litres per minute;

b) the minimum duration of a person blowing into the instrument is four seconds; and

c) the person has to blow a minimum air volume of 1.2 litres into the instrument.

110It is clear from Palmentier’s evidence that the volume of air blown into the ASD is a function of time and the flow-rate. For example, a flow-rate of 6 litres per minute means that if a person blew at that rate for 1 minute, then the volume of air would be 6 litres; if a person blew at that same rate for 30 seconds, then the volume would be 3 litres. Consequently, when Mead referred to an insufficient volume of air blown into the ASD, that does not necessarily equate, as argued by the appellant, to “not blowing hard enough.” Palmentier testified that 1.2 litres of air were required as a minimum; if, as stated by Mead, that there was insufficient volume, that could be because the flow-rate was insufficient (did not blow hard enough) or because the time was insufficient (blew hard enough, but not long enough) or because both the minimum flow-rate and the minimum time were not reached (did not blow long enough and hard enough).

111It was apparent from Mead’s evidence that at times the appellant blew under four seconds (“not long enough”); at other times the appellant did not blow “hard enough” and he was told that.

112The trial judge reviewed the circumstances of the six failed tests; he considered the instructions given by Mead to the appellant; he considered that Mead provided two demonstrations as to how to provide a sample into the ASD; and he considered the expert evidence. The trial judge made no finding that Mead provided flawed instructions to the appellant. On the evidentiary record before the trial judge, and noting that the trial judge accepted the evidence of Mead and preferred it over the evidence of the appellant, I see no basis to interfere with the trial judge’s assessment of the evidence. I find it was reasonable for the trial judge not to have found that Mead gave flawed instructions to the appellant.

C. The Mens Rea Issue and Whether the Trial Judge Properly Completed the Analysis Required by R. v. W.(D.)

113The appellant submits that there are three essential elements to the offence:

a) the existence of a valid demand;

b) the actus reas, being the failure or refusal of the appellant to provide a sample; and

c) the mens rea, being whether the appellant intentionally produced a failure or refusal to provide a breath sample.

114The appellant takes no issue as to the Crown’s proof of the valid demand and the actus reas.

115In relation to the mens rea element of the offence, the appellant submits that on the evidence that was accepted by the trial judge that the appellant at all times was following Mead’s instructions; that the appellant continued to blow each time (meaning he “kept going, kept going, kept going”) until told to stop; that he was given faulty instructions; that he was doing as he was told; and that he had no intention to produce a failure or refusal to provide a sample.

116The appellant submits that there was proof that he continued to follow Mead’s instructions because the appellant would just keep blowing and Mead had to tell the appellant to stop blowing after the “EO” message came on. However, the evidence of Mead was that while the appellant kept blowing, he was doing that after the “EO” light registered, at which time the ASD would not accept any further sample. Mead did testify that on some occasions he had to repeat several times for the appellant to stop blowing after the ASD registered an “EO” and that Mead had to physically take the ASD from the appellant.

117On the issue of R. v. W.(D.), the appellant submits that the reasons of the trial judge suggest that he considered the first two branches of the W.(D.) test, but not the third branch that required the trial judge, if he was not left in doubt by the evidence of the appellant, to ask himself on the basis of the evidence that he did accept, whether he was convinced of the appellant’s guilt beyond a reasonable doubt.

118I am unable to accept the appellant’s submissions in relation to the mens rea and R. v. W.(D.) arguments.

119The issue of any alleged faulty instructions has been dealt with earlier. The trial judge made findings of credibility, as he was entitled to do; the credibility findings are not attacked on this appeal. I find, on the evidentiary record, that the trial judge placed on the Crown the burden to prove all the elements of the offence beyond a reasonable doubt. I am satisfied that the judgment at trial was reasonable and supported by the evidence. The trial judge reviewed the evidence, made findings of fact and rejected the theory of the appellant’s defence.

120Further, aside from the six failed attempts, the appellant faced a substantial obstacle arising from his outright refusal to provide a seventh sample after a proper demand had been made. The trial judge, quite properly, took this into account, noting that this refusal “is a pretty strong case for the Crown.”

121In relation to the test in R. v. W.(D.), I find, reading the reasons as a whole, that the trial judge was alive to his obligation to consider the three branches set out in R. v. W.(D.) and that he did so.

122I do comment briefly on one aspect of the mens rea argument. The appellant relied on the decision of R. v. Lewko , 2002 SKCA 121, [2002] S.J. No. 622 (Sask. C.A.), that in relation to mens rea, the Crown had to prove the appellant intended to produce the failure.

123In the case at bar, the appellant adopted the mens rea test as set out in Lewko. The authorities relied on by the Crown in the case at bar included R. v. Porter, 2012 ONSC 3504, [2012] O.J. No. 2841 (S.C.J.), a decision of Code J., sitting as a summary conviction appeal court where the accused was convicted of failing to provide a roadside breath sample. In that case, the accused made five attempts to provide a sample, with each attempt resulting in an error reading.

124Code J. undertook a detailed analysis as to the mens rea test set out in Lewko. Code J.’s discussion centres around the issue of whether the mental element enacted by s. 254(5) is a specific or general intent. Ultimately Code J. rejects the test as enunciated in Lewko, and concludes, on the basis of numerous other authorities cited, that the mental element created by s. 254(5) is one of general, not specific intent, and that the mens rea enacted in s. 254(5) is simply “knowledge or awareness of the prohibited acts” (paras. 33-37). Code J. does acknowledge and cite a number of cases, including Ontario cases, that have followed Lewko. In a recent case released March 24, 2015, R. v. Slater, 2015 CarswellOnt 4004 (C.J.), Green J. provided a detailed and exhaustive review of the conflicting jurisprudence, including R. v. Porter. Green J. concludes at para. 35 that the mens rea element requires that the failure or refusal to comply be intentional.

125In the case at bar, during the appeal neither counsel addressed, either in the facta or during oral argument, the issue as to whether the mental element of the offence created by s. 254(5) was a specific or general intent. No reference was made to the discussion by Code J. on this issue. In its factum, the Crown referred to portions of R. v. Porter that did not deal with the mens rea standard. However, the Crown did not object specifically to the appellant’s reliance on Lewko as to the requisite mens rea.

126The issue as to the nature of the mens rea element was not specifically discussed during the trial, based on the transcript that was provided for the hearing of this appeal.

127In my view, all that needs to be said on this issue in the case at bar, given the evidentiary record before the trial judge, that included the appellant’s outright refusal to provide a seventh sample, is that it was open to the trial judge to find the appellant guilty by applying the definition of mens rea as set out in Lewko and as relied on by the appellant.

128In relation to the issue of “reasonable excuse,” in his reasons, the trial judge adequately canvassed, and rejected, whether the appellant had a “reasonable excuse” to fail or refuse to comply with the demands made by Mead. The trial judge’s reasons demonstrate that the trial judge was satisfied beyond a reasonable doubt that the appellant had no reasonable excuse to fail or refuse to provide suitable samples pursuant to the valid demands that were made.

CONCLUSION

129In accordance with the foregoing reasons, the appeal is dismissed.