ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 94/14
DATE: 20150703
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JEFFREY COOK
Appellant
Luke Schwalm, for the Crown
Vincenzo Rondinelli, for Mr. Cook
HEARD: May 11, 2015
Trotter J.
1. Introduction
[1] After a trial before the Honourable Justice Khawly of the Ontario Court of Justice, Jeffrey Cook was found guilty of refusing to provide a breath sample, contrary to s. 254(2) of the Criminal Code. He received a fine of $1,000 and was prohibited from driving for a year.
[2] Mr. Cook appeals his conviction. For the following reasons, the appeal is dismissed.
2. The Facts
[3] It is not necessary to set out the facts in great detail. Mr. Cook was pulled over by a Toronto Police Service (TPS) officer. Mr. Cook admitted that he had been drinking. He accompanied the officer to his car for the purposes of providing a sample of his breath into an approved screening device (ASD). Mr. Cook purported to provide a sample on five occasions. The officer believed that Mr. Cook was deliberately attempting to avoid providing a sample. He testified that he told Mr. Cook that if he did not provide a suitable sample he would be charged. When Mr. Cook failed to provide a sample on his fifth attempt, the officer decided to charge him. Mr. Cook responded by saying, “This is a bullshit charge.”
[4] Mr. Cook testified that he attempted to provide a sample but that he was unable to do so. He testified that he told the officer that it was a “B.S. charge.” He then said, “Listen, I’m trying as hard as I can. Is there another way we can do this? Can I go to the station or, you know, what am I doing wrong?”
3. The Trial Judge’s Reasons
[5] After reviewing the officer’s evidence, the trial judge turned to Mr. Cook’s evidence. Mr. Rondinelli, for Mr. Cook, points to the following paragraphs from various parts of the Reasons for Judgment, which he contends reverse the burden of proof:
• Mr. Cook is trying to walk a fine line. He is telling this Court that he is, because those questions were asked by his defence counsel, that he is a respectable person, who has a respectable job, and is hard working. He is obviously intelligent. That came out in its own way implicitly. Yet, as the same time, he wants this court to accept that basically he is like a 12-year-old who is really not that clued into what seems to be the normal type of cause and consequences of rather non-complex matters such as this machine. [emphasis added]
• What Mr. Cook is really asking me to accept is that he did not have the wherewithal to understand that there is a certain amount of computation and logic exercised. He had tried it two or three times already. Each time he took in as much deep air as he could and blew it out as quickly as he could. Given each time it registered [an error], then perhaps he should have moderated it. I mean it does not take a rocket scientist to understand that. [emphasis added]
• From Mr. Cook’s own evidence, how can I accept that? How can I accept that he is so capable in certain areas of his life, particularly with his employment, and yet he is incapable of making what would appear to be normal deductions anyone can make? That is the sticking point with Mr. Cook’s evidence. [emphasis added]
• He wants this Court to accept that he is blowing as hard as he can. Obviously, because he is blowing as hard as he could, he could not blow any more than five seconds. Number one, I do not believe that. All one has to do is do it themselves. Even if one takes a deep breath and they let out all the breath they have, it does not stop them from continuing to breathe out, because it is how we breathe, particularly if your mouth is on a mouthpiece. Therefore, for you to breathe, you have to keep blowing, but he did not do that. [emphasis added]
[6] Returning to the officer’s evidence, the trial judge addressed the submission that the officer should have given Mr. Cook another chance to provide a sample. The trial judge said:
On that set of facts, which I accept, what would a reasonable person standing in the officer’s shoes believe? You have someone who appears to be functioning normally, appears to be healthy, who, on the first two attempts, is doing it in a particular way, the last three attempts, another way. The last three attempts he purposely pulls away from the machine.
A reasonable person would come to the reasonable inference that this person is purposely trying not to give a proper sample.
Now, in that event, why on earth would one keep giving him an opportunity for more tests? What would be the point? He has already established a pattern of what he is prepared to do, which is he will do whatever is required not to give a real test.
I come to no difficulty to the conclusion that there was a clear intention on Mr. Cook’s part not to provide a proper sample. There will be a finding of guilt. [emphasis added]
3. Analysis
[7] Mr. Rondinelli argues that the trial judge reversed the burden of proof. He relies on the passages in paragraph 6, above. Mr. Rondinelli also argues that the passage in paragraph 7 suggests that the trial judge applied an objective standard of fault to s. 254(2) of the Criminal Code.
[8] Dealing with the second argument first, the trial judge did not misapply the fault requirements of s. 254(2). The trial judge’s reference to a “reasonable person” was in response to the defence argument that the officer ought to have provided Mr. Cook with further opportunities to provide a sample. I acknowledge that some confusion is created by the trial judge’s quick transition from this theme to his finding of guilt. However, the trial judge addressed his mind to Mr. Cook’s subjective state of mind, finding that he intentionally refused to provide a sample: see R. v. Moser (1992), 1992 2839 (ON CA), 71 C.C.C. (3d) 165 (Ont. C.A.), at p. 176 and R. v. Young (2007), 46 M.V.R. (5th) 166 (Ont. C.A.).
[9] In terms of the burden of proof, the trial judge did not explicitly locate the issues before him within the framework of proof beyond a reasonable doubt. In the passage reproduced in paragraph 7, the trial judge merely stated that he had “no difficulty” reaching the conclusion that “there was a clear intention on Mr. Cook’s part not to provide a proper sample.”
[10] In terms of the passages reproduced in paragraph 6, there is nothing inherently wrong with a trial judge itemizing the defence evidence that he or she “accepts.” In and of itself, this does not necessarily flip the burden of proof. R. v. W. (D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) requires that trial judges examine defence evidence in order to determine whether it raises a reasonable doubt. I find some of the trial judge’s points difficult to follow. However, he evaluated Mr. Cook’s evidence and, in a very direct (if not insulting) way, rejected it. The trial judge then refocused on the officer’s evidence, concluding with the passage in paragraph 7.
[11] This case turned on an assessment of the credibility of the officer and Mr. Cook. Of course, it was not open to the trial judge to convict merely because he preferred the officer’s evidence to Mr. Cook’s. For the Crown, Mr. Schwalm submits that trial judges are presumed to know the law, especially on issues as basic as the standard and burden of proof: see R. v. C.L.Y. (2008), 2008 SCC 2, 227 C.C.C. (3d) 129 (S.C.C.), at pp. 135-136 and R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 203-204.
[12] I have re-read the trial judge’s reasons on a number of occasions in a genuine attempt to determine whether the standard of proof was properly applied. This could easily have been avoided had the trial judge simply adverted to the criminal standard and articulated that he was not left with a reasonable doubt. But he did not. After patching together passages from the reasons for judgment, and relying on the presumption of knowledge, I conclude that, when the trial judge said that he had “no difficulty” concluding “there was a clear intention on Mr. Cook’s part not to provide a proper sample,” he meant that he did not have a reasonable doubt: see R. v. Vuradin (2013), 2013 SCC 38, 298 C.C.C. (3d) 139 (S.C.C.), at pp. 145-146. Having rejected Mr. Cook’s evidence, this was a reasonable conclusion. In the absence of specific language suggesting that he did not apply the proper standard, this is the conclusion that I am required to reach: see Morrissey.
4. Conclusion
[13] The appeal is dismissed.
Trotter J.
Released: July 3, 2015
COURT FILE NO.: 94/14
DATE: 20150703
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JEFFREY COOK
Appellant
REASONS FOR JUDGMENT
Trotter J.
Released: July 3, 2015