ONTARIO

SUPERIOR COURT OF JUSTICE

Court File No.: 140/14
Date: 2015-08-07

RE: Her Majesty the Queen v. Jaime Jackson

BEFORE: K.L. Campbell J.

COUNSEL:
Robert Wright, for the Crown, respondent

Peter Thorning, for the accused, appellant

HEARD: June 9, 2015

Endorsement

[Summary Conviction Appeal]

A. Overview

[1] The appellant, Jaime Jackson, was tried by the Honourable Mr. Justice B. Cavion of the Ontario Court of Justice on a charge that on or about September 27, 2013, in the City of Toronto, she did, without reasonable excuse, fail or refuse to comply with a demand for a breath sample suitable for analysis in an approved screening device, contrary to s. 254(5) of the Criminal Code, R.S.C. 1985, chap. C-46.

[2] The summary conviction trial was short and consisted of two witnesses, the arresting police officer and the accused. Essentially, the arresting officer testified that after being given at least a dozen opportunities to provide a suitable breath sample into an approved screening device, and hearing many clear explanations as to how the device worked, what kind of breath sample was required, and the criminal consequences for failing or refusing to provide the required breath sample, the appellant simply failed or refused to provide the sample the officer demanded. The appellant, on the other hand, testified that she genuinely tried to provide the requested breath sample on half a dozen occasions, but she was simply physically unable to provide the sample as she was not breathing properly as she was intimidated, overwhelmed, scared and nervous.

[3] In the result, the trial judge accepted the testimony of the arresting police officer, disbelieved the testimony of the appellant, and was satisfied beyond a reasonable doubt as to the guilt of the appellant. Subsequently, the trial judge sentenced the appellant to a fine of $1,000, and prohibited her from driving a motor vehicle for a period of 12 months.

[4] The appellant now appeals against her conviction. The appellant contends, essentially, that the trial judge erred in his application of the principles articulated in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758, and a proper application of those principles would have led the trial judge to have at least a reasonable doubt about her alleged guilt.

B. The Evidence of the Arresting Officer

[5] The arresting officer, Cst. Angel Liu of the Toronto Police Service (TPS), testified that in the early morning hours of September 27, 2013, he was participating in a Reduce Impaired Driving Everywhere (RIDE) program on the southbound 427 highway, at the Dixon Road exit. At approximately 12:58 a.m., Cst. Liu stopped the vehicle being driven by the appellant. The officer noticed a heavy odour of an alcoholic beverage on the appellant’s breath, and observed that she had red, bloodshot eyes. She also stumbled somewhat when she got out of her vehicle, and again as she walked back to the police vehicle. The appellant was also observed to lean against the guardrail a few times as she walked back to the police cruiser.

[6] Cst. Liu demanded that the appellant provide a breath sample into an approved screening device. The appellant indicated that she understood the demand. The officer demonstrated how to provide a sample into the device, and provided the appellant with detailed step-by-step instructions. The officer provided the device to the appellant at 1:03 a.m. At first, the appellant pretended to blow into the device, but actually blew no air into the device. After further instruction from the officer, the appellant provided weak and insufficient samples of her breath. Cst. Liu then informed the appellant about the consequences of failing or refusing to provide a breath sample. Further, when Cst. Liu inquired as to whether she had any medical conditions that might hinder her in providing a breath sample, the appellant told the officer that she did not suffer from asthma or have any other respiratory issues.

[7] According to Cst. Liu, the appellant then made a series of attempts where she blew just “short bursts of air” into the device that were not long enough to provide an adequate sample of her breath. After each attempt, Cst. Liu told the appellant that she had to blow longer. During this time, the appellant seemed “quite calm” and was not coughing or showing any indication of respiratory distress or illness. She was just providing short, weak bursts of air into the device.

[8] At 1:08 a.m., the officer decided to provide another demonstration as to what was necessary in order to provide a suitable breath sample. After her seventh attempt, the appellant again provided a small, short breath of air. Cst. Liu again told her that she needed to provide a long, strong sample of her breath, and reminded her again of the consequences of refusing to provide such a sample (i.e. she would be charged criminally with refusing to provide a breath sample). Her eighth effort was another series of “short, broken breaths.”

[9] Cst. Liu testified that he then had the appellant remove the mouthpiece from the approved screening device, and hold it in her hand. He asked her to blow into the mouthpiece, into her own hand, for approximately ten seconds. The appellant then provided a “steady sample of breath into her own hand” for approximately ten seconds. The officer then told the appellant that if she could provide that kind of sample into the device, he would have an adequate sample of her breath. However, when the officer reinserted the mouthpiece into the approved screening device, the appellant again provided only a series of “short, weak, breath samples.”

[10] The officer then explained again what was necessary for a sufficient breath sample and told the appellant that they could not just “continue in this way.” He told the appellant to “blow with enough strength as if [her] life depended on it.” He had to raise his voice somewhat to make himself heard over the loud passing traffic. He agreed that the appellant may have been a little intimidated by this. Further, Cst. Liu explained to the appellant that a criminal charge is a “life changing” event and that her blood-alcohol might only fall within the “warn” range which would not result in anything criminal. The appellant expressed her understanding of these consequences. Nevertheless, on her twelfth attempt, at 1:13 a.m., the appellant provided another series of “short, weak, broken breaths” and was then arrested by Cst. Liu for refusing to provide a breath sample.

[11] The appellant was released from the scene once Cst. Liu had completed the necessary paper work. When she was provided with her release papers, at approximately 2:07 a.m., the appellant asked Cst. Liu for another opportunity to provide a sample. The officer explained that it was “too late.” The appellant suggested that perhaps she could be provided an opportunity to provide a sample at the police station, but the officer explained that she had already been charged with refusing to provide a sample.

[12] According to Cst. Liu, the appellant seemed “very calm” throughout this process and never appeared to have any physical ailments, or breathing or respiratory problems. She never seemed “exhausted” from her efforts. She seemed quite able to provide a “very sufficient” breath sample into the mouthpiece itself, when it was in her hand, but would not provide a similarly suitable sample when the mouthpiece was connected to the approved screening device. Indeed, according to the officer, none of the appellant’s attempts were long enough to be even “close” to providing an adequate breath sample.

C. The Evidence of the Appellant

[13] The 37 year old appellant testified in her own defence. Ms. Jackson testified that she was wearing a dress that day and the weather was “kind of chilly.” She admitted that she had consumed some alcohol that night, but only about one glass of wine at dinner. She agreed that the officer asked her to provide a breath sample and gave her some instructions as to how to provide the sample. She testified that the officer told her to blow as hard as she could into the device to make sure that an adequate sample was obtained.

[14] The appellant testified that she tried to provide a sample and was “absolutely” making a bona fide effort to provide an adequate breath sample, but she was “a little bit nervous.” She thought that she made six bona fide attempts to provide a sample of her breath. Further, the appellant testified that, after her second failed attempt, the officer started “yelling at [her] to do the sample” and to “breathe like [her] life depended on it” and telling her that “his daughter could do this.” The officer seemed to be frustrated with her efforts. The appellant agreed that the officer told her that she was not blowing long enough or hard enough into the device.

[15] The appellant testified that she found the situation “very intimidating” and she was “overwhelmed” and “scared” and started shaking because she was so nervous. She testified that she was not “breathing properly because of the situation.” She found that her breaths were “short.” She also thought that the officer was “belligerent.” The appellant agreed that they each had to raise their voices at the roadside to communicate over the noise of the passing highway traffic.

[16] She testified that at one point she asked the police officer if she could go down to the police station for “blood work” or another test, but the officer told her that she had been given enough chances and it was “too late.”

[17] The appellant agreed that she had no medical issues or problems with her respiratory system, such as asthma, that would prevent her from providing a breath sample. The appellant testified that she smoked no more than “a pack a week” of cigarettes, and she agreed that smoking did not interfere with her respiratory ability in playing sports or going for long walks.

[18] The appellant denied that she had been given twelve opportunities to provide an adequate breath sample. She recalled that there were only “a few.” She agreed, however, that the officer did demonstrate the device to her, and changed the mouthpiece at one point during her efforts to provide a breath sample. She agreed that she was able to blow into just the mouthpiece at that point, and her breathing seemed “normal” at that point.

D. The Reasons for Judgment at Trial

[19] In written reasons for judgment, the trial judge expressed his awareness of the principles articulated in R. v. W.(D.), at pp. 757-758, noted that he was obliged to resolve any “reasonable doubt” in favour of the appellant, and ultimately concluded that, based on the totality of the evidence, he had no reasonable doubt as to the guilt of the appellant.

[20] Cavion J. described the appellant as an “intelligent woman,” accustomed to dealing with people during the course of her employment (past and present), and who revealed “not a scintilla of nervousness” in giving her evidence. The trial judge concluded that did “not believe” the testimony of the appellant that her nervousness, or the police officer’s “intimidation” made it “difficult or impossible for her to physically provide a breath sample.” Citing R. v. Sun, [2008] O.J. No. 5898, at para. 15, Cavion J. noted that providing a breath sample in these circumstances is “not rocket science,” and merely involves “blowing into a small plastic tube for ten seconds,” which the appellant seemed quite able to do when the mouthpiece was “disconnected from the device.” The trial judge also observed that the appellant never raised any complaints with the arresting police officer that she was “cold, intimidated or nervous” and, in fact, Cst. Liu testified that the appellant seemed calm during their interaction.

[21] Cavion J. ultimately concluded that the Crown had proved the essential ingredients of the offence, and he found the appellant guilty.

E. Analysis

[22] This was an uncomplicated case. It did not require any sophisticated or technical legal analysis. The appellant was charged with failing or refusing to provide a breath sample into an approved screening device. Faced with the conflicting testimony of the arresting police officer and the appellant, the trial judge was obliged to determine, applying the principles outlined in R. v. W.(D.), at pp. 757-758, whether the Crown had established the alleged guilt of the accused beyond a reasonable doubt.

[23] The testimony of the arresting police officer fully supported the allegation. On the basis of the testimony of Cst. Liu, the appellant was given at least a dozen opportunities to perform a simple task – provide a breath sample into an approved screening device. The officer fully explained to the appellant how this task was to be undertaken, and what was necessary for its completion. The appellant expressed her understanding of these clear and simple directions and yet, time and time again, she was failed or refused to provide a suitable breath sample into the approved screening device. She seemed quite able to blow long enough, and hard enough, into the mouthpiece alone, when it was not connected to the approved screening device. However, she was unable to repeat that simple feat when the mouthpiece was attached to the approved screening device that would analyze her sample of breath for alcohol. To the arresting police officer, the appellant seemed “calm” throughout their encounter, and she never expressed any complaint to him about being cold, intimidated, scared, overwhelmed, or nervous. This evidence was certainly capable of satisfying the trial judge as to the alleged guilt of the appellant beyond a reasonable doubt.

[24] The testimony of the appellant conflicted with the evidence of the arresting police officer in a number of respects. For example, while the appellant agreed that the officer gave her the appropriate directions as to how the breath sample had to be provided into the approved screening device, she testified that the officer only gave her about a half-dozen opportunities to provide such a sample. More importantly, the appellant testified that, on each such opportunity, she genuinely attempted to provide a suitable breath sample. She explained, however, that she was simply unable to accomplish this goal, apparently as a result of being chilly, scared, nervous, intimidated and overwhelmed. Yet, the appellant admittedly did not suffer from any respiratory problems, and no explanation was offered as to why her alleged feelings of fear, nervousness, intimidation or being overwhelmed might have prevented the appellant from providing a breath sample suitable for analysis into an approved screening device.

[25] In his reasons for judgment, the trial judge summarized and considered this evidence and, in the result, rejected the testimony of the appellant, accepted the testimony of the arresting police officer, and concluded that he was satisfied beyond a reasonable doubt as to the guilt of the appellant. This was a perfectly reasonable verdict, and was adequately explained by the trial judge in his reasons. The reasons for judgment addressed the issues raised by the case and explained to the appellant why she was found guilty.

[26] On appeal, defence counsel argued that the trial judge erred in deciding the case entirely upon his assessment of the demeanour of the appellant.

[27] Recently, in R. v. Rhayel, 2015 ONCA 377, [2015] O.J. No. 2675, at paras. 84-94, Epstein J.A., delivering the judgment of the Court of Appeal for Ontario, discussed the jurisprudence that reflects our “growing understanding” of the “fallibility” of the “judicial evaluation of credibility” based on “the appearance and demeanour of witnesses,” and the “limited value” of demeanour, given that it is affected by so many different factors, including cultural factors, stereotypical attitudes and the somewhat artificial environment and stressful circumstances of the courtroom. Epstein J.A. observed that it was “important for trial judges to bear in mind that, to the extent possible, they should try to decide cases that require assessing credibility without undue reliance on such fallible considerations as demeanour evidence.”

[28] In the circumstances of the present case, the trial judge did not decide the case entirely upon his assessment of the credibility of the appellant based upon her demeanour in the witness box. Nor did the trial judge place an inordinate or exaggerated degree of importance upon the appellant’s demeanour in assessing her credibility. Rather, the trial judge simply observed that, in the somewhat artificial and stressful environment of the courtroom, where she had a great deal at stake, and might reasonably have been expected to be stressed and nervous, the appellant did not reveal “a scintilla of nervousness” when she testified. The trial judge also noted that, based upon the evidence of her background and work experience, it was apparent that the appellant was an “intelligent woman” who was “accustomed to dealing with people.” Further, the trial judge observed that providing a breath sample is “not rocket science,” and “many people” are able to accomplish this simple task “successfully,” especially given that it only requires “blowing into a small plastic tube for 10 seconds,” and the appellant managed to do this “when the mouthpiece was disconnected from the device.” The trial judge also noted that, in her interaction with Cst. Liu, the appellant never complained of being “cold, intimidated or nervous,” but rather appeared “calm” throughout. In my view, in his reasons for judgment, the trial judge relied upon all of these various considerations in ultimately concluding that he did “not believe” the appellant’s testimony that it was nervousness and intimidation that “made it difficult or impossible for her to physically provide a breath sample.”

[29] In my view, Cavion J. was entitled to accept the testimony of the arresting police officer, as he obviously did, and reject the testimony of the appellant for the various reasons he provided. Further, having expressly referred to the principles articulated in R. v. W.(D.), the trial judge was entitled to come to the conclusion that he was satisfied as to the guilt of the appellant beyond a reasonable doubt. See R. v. D.(J.J.R.) (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252, 218 O.A.C. 37 (Ont.C.A.), at para. 53; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 31-32, 48-51, 64-68; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 23-24, 30; R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 (C.A.), at paras. 3-9; R. v. Hoohing, 2007 ONCA 577, [2007] O.J. No. 3224, at paras. 11-16; R. v. Mends, 2007 ONCA 669, [2007] O.J. No. 3735, at para. 18; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 20-28; R. v. Menow, 2013 MBCA 72, 300 C.C.C. (3d) 415, at paras. 16-28; R. v. F.C., 2015 ONCA 191, [2015] O.J. No. 1437, at paras. 48-50.

[30] On appeal, defence counsel also argued that the trial judge erred in applying a different standard of scrutiny in his assessment of the testimony of the arresting officer and the appellant, and was much more critical of the testimony of the appellant.

[31] As Doherty J.A. noted in R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480, [2005] O.J. No. 39 (C.A.), at para. 59, this is a “difficult argument to make successfully,” in that it is not enough for an appellant to show that a “different trial judge could have reached a different credibility assessment,” or that the trial judge failed to say something that he or she might have said in assessing the respective credibility of the key witnesses, or that the trial judge “failed to expressly set out legal principles relevant to that credibility assessment.” The appellant must be able to “point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence” of the appellant and the complainant or main Crown witnesses. It is also a difficult argument to advance successfully as “credibility findings are the province of the trial judge and attract a very high degree of deference on appeal,” and appellate courts “invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge’s credibility determinations:” R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39. Accordingly, the appellant “must be able to identify something clear in the trial judge’s reasons or in the record indicating that a different standard of scrutiny was applied,” something “sufficiently significant that the heavy door of deference is opened to the domain of the trial judge, where credibility is assessed:” R. v. Rhayel, at para. 98.

[32] Having reviewed the entire record of these proceedings, and carefully considered the reasons for judgment delivered by the trial judge, I am not convinced that the trial judge applied a different standard of scrutiny in his ultimate conclusion to accept the testimony of the arresting police officer and reject the evidence of the appellant.

F. Conclusion

[33] In the result, the appeal against conviction must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: August 7, 2015