ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA 14/14
DATE: 2015 09 01
B E T W E E N:
HER MAJESTY THE QUEEN
R. Feldstein, for the Respondent
Respondent
- and -
SUKHVINDER DHILLON
G. Henderson, for the Appellant
Appellant
HEARD: February 27, 2015 at Orangeville
REASONS FOR JUDGMENT
[On appeal from the judgment of Pugsley J.
dated June 5, 2014]
Fairburn J
Introduction
[1] The appellant was convicted under s. 254(5) of the Criminal Code of refusing, without lawful excuse, to comply with a demand to provide a sample of his breath by means of an approved screening device [“ASD”]. He appeals his conviction.
[2] Mr. Dhillon raises three grounds of appeal:
i) the trial judge provided insufficient reasons;
ii) the trial judge misplaced the onus of proof; and
iii) the trial judge misapprehended the evidence.
There is merit to the second and third grounds of appeal.
Factual overview
[3] On September 4, 2013, the appellant was in Caledon. He was observed driving south on Airport Road. He turned eastbound onto Mayfield Road and then right onto Maisonneuve Boulevard. Mr. Dhillon was being followed by two Ontario Provincial Police officers: Constables David Greer and Geoffrey Dudzinski. The officers made observations with respect to the appellant’s handling of the motor vehicle, including that he swerved, his tires touched the side of the road, and he activated his right turn signal a long distance from his actual turn. They pulled him over.
Evidence of Constable Greer
[4] Cst. Greer approached the driver’s side window and noticed a faint odor of alcohol. Mr. Dhillon told him that he had consumed a couple of beers. At 11:39 p.m., an ASD demand was made. The grounds for this demand are not in dispute on appeal.
[5] Cst. Greer escorted Mr. Dhillon to the police vehicle. He testified that he plugged in the Alcotest 7410 GLC to warm it up. The device had been calibrated within the previous two weeks. The machine conducted a successful self-test and the light went green. He provided Mr. Dhillon with a mouthpiece by having him remove it from the plastic wrapping. Cst. Greer asked Mr. Dhillon to blow into it to ensure it was free of obstructions. Cst. Greer satisfied himself that this was the case.
[6] He then had Mr. Dhillon place the mouthpiece into the device. Cst. Greer checked to ensure that the mouthpiece was properly seated in the device. He provided Mr. Dhillon with the following instructions:
… I indicated that we needed him to provide a sample, a strong steady breath, a constant breath and said that I would advise him how long it needed to – how long the breath needed [sic] by telling him to keep going until no, no more breath was required. As well, indicated that the machine has a tone that is, when a proper sample is being provided, sounds and as long as that continues, … he needs to continue to blow into the machine.
[7] Cst. Greer was satisfied that Mr. Dhillon understood the instructions. He was friendly with the officers. Unsolicited, he spoke about various police officers that he knew. He also suggested that he knew the Mayor of Caledon.
[8] After the first attempt, an error code was received: “E0”. According to Cst. Greer, this meant one of two things: (1) either not enough air had been provided; or (2) Mr. Dhillon had stopped blowing. On this occasion, and each subsequent occasion, Cst. Greer observed Mr. Dhillon take a deep breath and “just before putting his lips around the mouthpiece, blow out [sic] majority of air he had just inhaled and then put his mouth on the mouthpiece and would only below in the remaining air that he had”. He said that Mr. Dhillon only blew into the actual device “very briefly”. While he was told to “keep going as he was blowing”, the appellant stopped providing air. When air is going into the machine a tone sounds. Cst. Greer said that he heard a tone and then it stopped when the “E0” registered.
[9] After the first “E0” code was received, Cst. Greer cautioned Mr. Dhillon that he was not getting a proper sample and that a refusal to provide a breath sample would result in the same penalty as failing the test. He then provided Mr. Dhillon with another opportunity. The second attempt also resulted in an “E0” code. As with the first sample, Cst. Greer instructed Mr. Dhillon to “keep blowing, keep blowing”. Despite having reinforced with Mr. Dhillon to take a deep breath and then put all of his air into the machine, Cst. Greer noticed that he again released air before blowing.
[10] Mr. Dhillon was provided with a third opportunity to provide a sample. He was told not to bite or put his tongue on the mouthpiece. Cst. Greer made the same observations. Mr. Dhillon stopped blowing, the tone on the machine stopped sounding and an “E0” error was received.
[11] Prior to providing him with a fourth opportunity, Cst. Greer informed Mr. Dhillon that it was in his best interests to provide a sample as the “penalty” for refusing is the same as failing the test. The appellant indicated that he understood. The same observations were then made and an “E0” reading was received.
[12] Prior to his fifth opportunity, Cst. Greer told Mr. Dhillon that it was his final try and if he did not provide a sample he would be charged with refusal. He again explained how to provide the sample. While Mr. Dhillon was told to “keep going, keep going”, he stopped blowing into the machine and an “E0” code was registered. The first test was administered at 11:40 p.m. and Mr. Dhillon was arrested for refusing to provide a breath sample at 11:43 p.m.
[13] Cst. Greer did not demonstrate the use of the machine. While he has done this in the past, he did not do it on this occasion. He acknowledged that Mr. Dhillon said he would provide a sample. He did not indicate that he was “trying and unable”. When asked whether, as far as he could tell, Mr. Dhillon was suggesting he would cooperate, Cst. Greer agreed that this was the case.
[14] During cross-examination, Cst. Greer acknowledged that he knows there is a vent hole on the ASD. He could not recall, though, where the vent is located. While he knew his hands were near the base of the device, he acknowledged that he did not know if his hands were covering the vent. The following exchange occurred:
Q. …there a, an exhaust, a hole on this device? Make sure I got the right name. Vent, vent hole?
A. Yes. …
Q. Do you know where it is on the device?
A. Not that I recall, no.
Q. All right. So you don’t know where your hands were on the device, whether or not …
A. They were near the base of the device.
Q. All right. Yeah, and you don’t know if your hands were covering this vent or not.
A. No, no.
Evidence of Constable Dudzinski
[15] As for Cst. Dudzinski, he testified that he warmed the ASD up. He was present when Cst. Greer gave instructions to Mr. Dhillon about how to provide a sample. Cst. Dudzinski testified that he observed Mr. Dhillon blow through the mouthpiece to make sure there were no obstructions. He heard Cst. Greer provide instructions to provide a long deep breath directly into the instrument. Cst. Dudzinski testified that on each occasion he attempted to blow, he observed Mr. Dhillon provide a “small puff and then it completely stopped”. While he saw Mr. Dhillon take a breath and begin to blow, he could only hear the air going into the instrument for a “very brief second” and then stop.
[16] He also observed Cst. Greer providing instructions on each occasion to take “long deep breath[s] and … blow hard and continuous until he instructed him to stop”. He said that on each occasion “[w]e could hear initial blow and then completely stop”. After the fourth attempt, Cst. Greer was overheard explaining the consequences of failing to provide a sample. As for the final attempt, Cst. Dudzinski testified that “[t]here was a very small puff and then it stopped immediately”.
[17] In-chief, Cst. Dudzinski testified that Mr. Dhillon appeared to want to cooperate with the police. He was in a good mood.
[18] In cross-examination, Cst. Dudzinski was asked about the vent on the instrument. The following exchange occurred:
Q. … you understand that you have to be careful when holding the instrument to ensure that your hand doesn’t cover the – partially or completely cover that vent.
A. Correct.
Q. Because if you do cover the vent, it would cause the machine to stop working and an “E0” will show up.
A. … an error code would come up … correct.
Q. … [a]nd the error code was typically “E0”.
A. Correct. … I believe so.
[19] In cross-examination he confirmed that he heard something only “momentarily through the instrument” and only “a bit of venting”. He confirmed it was very brief, that the tone would “just start and then it stopped”. It appeared as if Mr. Dhillon was putting his “tongue against the mouthpiece and it’s just stopping immediately”.
Evidence of Ismail Moftah
[20] The defence led evidence from Ismail Moftah who is a forensic toxicologist. He spent 28 years at the Centre of Forensic Sciences. He was qualified on consent as an expert in the workings of the ASD 7410 GLC.
[21] Mr. Moftah testified about the manual for the ASD. It suggests that where an individual is unable to provide a sample, a demonstration can be done. The rationale for a demonstration is three-fold: (1) it ensures that the instrument will accept breath; (2) it ensures that the instrument is capable of registering a zero reading; and (3) it provides the opportunity to lead “by example”.
[22] Mr. Moftah testified about the implications of blocking the air vent that is located at the base, on the underside of the screening device. He testified that when the air vent is blocked, or partially blocked, the breath sample may not be sufficient to register a reading. While the tone on the machine will sound initially, where the sample is insufficient owing to a blockage or partial blockage, the tone will stop and an E0 code will result.
Reasons for Judgment
[23] The trial judge’s reasons are lengthy and detailed. He summarized Mr. Moftah’s evidence respecting the exhaust vent as follows: “if the exhaust vent at the bottom of the device was blocked, an E0 result would be displayed”. He went on:
He also described what would happen if the vent hole was partly blocked or if there was debris from the grommet blocking an inlet hole. In cross-examination, Mr. Moftah agreed that if an officer held the device, such that he could see the screen on the device, the vent would be below. Further, if the vent was blocked, there would be an almost immediate E0 code because there would be an immediate deficient sample. No air would go in and no displayed reading would result. [emphasis added]
[24] The defence argued that Cst. Greer had blocked or partially blocked the exhaust vent and it was this that resulted in the error code, not an intention to avoid providing an appropriate breath sample. At a minimum, the defence argued that the trial judge should have a doubt about this fact. The appellant relied upon Mr. Moftah’s evidence in support of this position. The trial judge found that Mr. Moftah’s evidence did not assist the appellant because it did not parallel that of the officers. He held:
Finally, with regard to Mr. Moftah’s evidence as to the potential blockage of the exhaust vent in the device, his evidence was that if this vent was blocked, an E0 error code would take place virtually instantly. This does not parallel what both officers described as happening on each of the five chances Mr. Dhillon had to give a proper sample. [emphasis added]
[25] The trial judge concluded that there was no evidence that Cst. Greer did not operate the device correctly: “[t]here is no evidence that the officer did not operate that device properly in this case”. The appellant understood what he had to do to provide a proper sample and refused to follow the simple instructions provided.
[26] The trial judge found that the differences in the officers’ evidence, puffing versus expelling air before blowing into the device, were “subtle and ultimately irrelevant” distinctions. Demonstrating how to use the device is not a legal requirement. The failure to do so made no difference in this case.
[27] While Mr. Dhillon might have been granted more opportunities to provide a sample, despite what the trial judge found were clear instructions, he did not do so. While the trial judge acknowledged Cst. Dudzinski’s evidence that Mr. Dhillon seemed to be trying to provide a sample, he concluded that this was not so. He found as a fact that Mr. Dhillon was “carefree and unconcerned about the need to provide a proper sample”.
[28] The trial judge accepted the officers’ evidence about how the procedure took place. The lack of exhaustive note taking by the officers, a factor relied upon by the defence to suggest that their evidence should not be trusted, was of little concern in this case. On the totality of the evidence before him, he accepted the officers’ evidence as true. On the whole of the evidence he concluded that the failure to provide a sample was intentional.
The Grounds of Appeal
[29] The appellant raises three grounds of appeal: (1) insufficiency of reasons; (2) misplaced onus; and (3) misapprehension of the evidence. The second and third grounds are conveniently dealt with together.
Ground 1: The Suggestion of Insufficient Reasons
[30] In oral submissions the appellant focussed on what he said was the trial judge’s failure to provide sufficient reasons relating to how he reconciled the inconsistencies between the officers’ evidence. Specifically, the appellant argued that Cst. Greer’s description of exhaling air prior to placing his mouth on the device, and Cst. Dudzinski’s description of providing short puffs, cannot co-exist. There was an obligation on the trial judge to say more than these were “subtle and ultimately irrelevant” differences. The appellant argued that the need for reasons was heightened because of the officers’ failure to keep detailed notes of their interaction with Mr. Dhillon.
[31] In R. v. Sheppard, 2002 SCC 26 [Sheppard], the court set out the responsibilities of a trial judge when it comes to reasons. The reasons must demonstrate the trial judge’s understanding of the nature of the case and that it was the one that was argued and decided. This has been referred to as “a functional context-specific approach to the adequacy of reasons”: R. v. R.E.M., 2008 SCC 51, at para. 15 [R.E.M.]; Sheppard, at paras. 24-28, 46-52; R. v. Walker, 2008 SCC 34, at paras. 19-23; R. v. Vuradin, 2013 SCC 38, at paras. 10-15; R. v. F.C., 2015 ONCA 191, at paras. 29-35.
[32] Ultimately, reasons serve three main purposes: (1) they inform an accused why a certain result has been arrived upon; (2) they provide for a level of public accountability; and (3) they permit the ability for review: Sheppard, at para. 46; R.E.M., at para. 17. It is unnecessary for a trial judge to discuss every detail in a case or resolve every issue. Reasons should be “read as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered": R.E.M., at para. 16. Read in context, provided the reasons show why the trial judge did what he or she did, the reasons are sufficient.
[33] I find that the reasons do that here. From a “functional context-specific approach”, they do what they are required to do; they explain why the trial judge found beyond a reasonable doubt that the accused had intentionally failed to provide a breath sample into the ASD. Indeed, I found the reasons thoughtful and comprehensive.
[34] As to the appellant’s complaint that the trial judge was duty bound to provide more exhaustive reasons when reconciling the differences between the officers’ evidence, I disagree. It was open to the trial judge to find that the differences were “subtle and ultimately irrelevant”. Having regard to the entire evidentiary record, including the positioning of the officers relevant to the appellant when he was provided with five opportunities to give a breath sample, it was open to the trial judge to characterize the differences in this manner.
[35] At the end of the day, the officers were consistent in their description of a small amount of air going into the machine. Whether they both heard the appellant exhale air before Mr. Dhillon placed his lips on the mouthpiece is not relevant. Whether his “efforts” to provide a breath sample were described as a “puff” is not relevant. The differences in how the officers described what occurred may be owing to nothing more than their positioning relative to the accused. Alternatively, it may reflect nothing more than semantics.
[36] What is relevant is that they both observed a small amount of air going into the ASD, the tone sound, and the tone stop before an appropriate sample was obtained. It was open to the trial judge – as the finder of fact – to conclude on the basis of the whole of the record that the differences between their evidence was “subtle” and “irrelevant”. There was no need for a further explanation.
[37] Moreover, it was also open to the trial judge, as the finder of fact, to reject Cst. Dudzinski’s opinion that Mr. Dhillon seemed to be trying to provide a breath sample. Again, based on the whole of the evidence, it was open to the trial judge to find that Mr. Dhillon was not trying to provide a sample but, rather, intentionally avoiding doing so.
[38] As it relates to the absence of notes, which the appellant suggests is linked to the inadequacy of reasons, the trial judge did not see the absence of detailed notes as a matter that impacted on his assessment of the officers’ credibility or the reliability of their evidence. It was open to him to come to this conclusion: R. v. Machado, 2010 ONSC 277, at paras. 123-24; R. v. Thompson (2001), 141 O.A.C. 1, at para. 8.
[39] While the importance of notes has been repeatedly affirmed, including in Wood v. Schaeffer, 2013 SCC 71, at paras. 53-68, it must be remembered that at least one of the primary purposes for notes is to assist with refreshing memory. While good note taking can and often does reflect good police work, the fact that an officer does not have something in his or her notes does not mean that it did not occur. When assessing the credibility and the reliability of an officer’s evidence, it is open to a trial judge to place as much weight on the absence of notes as deemed appropriate in all of the circumstances. The trial judge here decided that the absence of detailed notes was irrelevant to his considerations. This is neither a surprising, nor prohibited conclusion.
[40] The trial judge’s reasons were more than adequate and there is no Sheppard error.
Grounds 2 and 3: The Suggestion of a Misplaced Onus and Misapprehension of Evidence
The positions of counsel
[41] The appellant says that the trial judge misplaced the onus relating to whether the officer properly administered the ASD test. The comment that the appellant takes aim at is: “There is no evidence the officer did not operate the device properly in this case.” The defence say that this reversed the onus of proof. It was for the Crown to prove that the police operated the device properly, not for the accused to prove, or even raise a doubt, that it was not operated properly.
[42] This issue is linked to the third and final ground of appeal relating to the suggestion that the trial judge misapprehended the expert evidence. The appellant argues that the Moftah evidence raised a live issue as to whether the ASD was properly operated. He argues that by misunderstanding the evidence, the trial judge did not appreciate its significance to the issue of intent and, at a minimum, a new trial is required.
[43] Crown counsel counters that the trial judge understood the Moftah evidence. It was open to him to characterize the evidence in the manner he did. The trial judge simply dismissed the relevance of the Moftah evidence, as it related to the possibility of a blocked vent, because, the Crown argues, it was out of sync with the evidence of Cst. Greer.
The impugned passages
[44] For ease of reference, the impugned passages from the Reasons for Judgment are repeated:
He also described what would happen if the vent hole was partly blocked or if there was debris from the grommet blocking an inlet hole. In cross-examination, Mr. Moftah agreed that if an officer held the device, such that he could see the screen on the device, the vent would be below. Further, if the vent was blocked, there would be an almost immediate E0 code because there would be an immediate deficient sample. No air would go in and no displayed reading would result. [emphasis added]
Finally, with regard to Mr. Moftah’s evidence as to the potential blockage of the exhaust vent in the device, his evidence was that if this vent was blocked, an E0 error code would take place virtually instantly. This does not parallel what both officers described as happening on each of the five chances Mr. Dhillon had to give a proper sample. [emphasis added]
[45] While Mr. Moftah testified in-chief that a blocked vent would lead to an “E0” reading “right away”, he qualified this evidence during cross-examination. When asked whether if the vent was blocked the “E0” message would register “almost immediately”, Mr. Moftah placed emphasis on the word “almost”.
The evidence of Ismail Moftah relating to a blocked or partially blocked vent
[46] As Mr. Moftah’s evidence on this point was not a model of clarity, I have set out the relevant passages below. The following exchange occurred in-chief:
Q. … if that device is either partially or completely blocked, … we already heard from the officer [Cst. Dudzinski] that there’s an “E0”, but I want to know from your standpoint….
A. Yes, it will give an “E0”. I will agree with the officer, would give a deficience [sic] and because the sample is not as long or is not that strong. And both of this case is you hear the tone for a very short period of time and the duration of the sample less, definitely less than four seconds.
Q. So, the instrument … if it’s partially or completely blocked and you provide a sample … what does the instrument do?
A. The instrument will still – part of the sample will go inside the instrument.
Q. Yes.
A. And this part of the time, if the duration of it is less than four seconds or if the pressure and once is a [sic] pressure it goes lower, you are not gonna hear the tone when the sample goes on and you hear the tone, means the pressure is okay of the, of the breath. So if both of them less than four second, you will see deficiency and below which is “E0.”
Q. So, if it’s blocked, will it …?
A. There – yeah, you will – there is – the vent to hole – when you provide the sample, this is a small, tiny instrument…
Q. Yeah.
A. …and a person will expire when they are provide the sample at least three litres, up to five litres. This, most of it, it’s gonna be vented out, so another opening, and there is a smaller direction for the – what would allow only 1.2 millilitre sample to be analyzed. This is one will trigger the “E0” because this sample is not that good sample, you know. But most of the sample would be vented out so with the other bigger hole. If you block this bigger hole, the instrument will automatically will give an “E0.”
Q. Or was blocked, it will give an “E0” almost … immediately.
A. Immediately, right away. [emphasis added]
[47] The Crown followed up on the vent issue in cross-examination. He attempted to have Mr. Moftah confirm that if the vent hole on the ASD was blocked, or partially blocked, that the “E0” would register “immediately”. The following passages demonstrate the Crown’s efforts in this regard:
Q. Now, you just gave evidence that if that vent is blocked, almost immediately you’ll have an “E0”, is that fair?
A. … Once you block, you will see the “E0” will be on the screen. …
Q. … my question to you again is if the vent is blocked, or partially blocked, the “E0” signal come on [sic] almost immediately. That was the evidence I heard earlier.
A. Oh, oh yeah, because there is nothing going – very little goes into the instrument, enough to trigger the “E0”, the deficience ambit is not long enough or strong enough. …
Q. But in the case we heard today, evidence that there was actually some air going into the machine and there was a tone going on that air was going into the machine and then the “E0” came on, is that fair?
A. Yeah, that’s fair because if you don’t have anything going into the instrument or the machine of the instrument, you’re not gonna see anything.
Q. Of course.
A. As if nobody’s blowing in it.
Q. Of course. But you indicated that, that the “E0” comes on almost immediately and the evidence we heard today we heard that the tone would go on for a little bit then it would stop.
A. It has to be less than – I qualified it. I said if less than four seconds would give an “E0”. If four second or more, definitely if it’s more than four second, it should give a reading.
Q. Right. But for an “E0” for the blocking of the actual vent, it does require just under four seconds, it happens almost immediately, that was your evidence.
A. … but we’re talking about seconds now here because one second could produce it, two second could produce it, three second. In this is goes by [sic] very fast … it’s not something it’s gonna take a minute. No, this one, talking about less than four seconds. …
Q. Is it fair to say that, that someone’s providing a sample if the vent is, is blocked, again, your evidence was almost immediately there would be an “E0” registered….
A. I’m, I’m glad that you used the word almost immediately.
Q. Sure.
A. … which is true, almost immediately.
Q. And, and – but it’s fair to say also less than four seconds.
A. Yeah, it can go up to less than four second [sic]. This is it. [emphasis added]
[48] Apparently unsuccessful in nailing down this issue, the Crown attempted one last time. This attempt is as follows:
Q. But is it fair to say, sir, that if that vent was blocked and this accused or any person was providing sample, that air would not be able to escape if he’s blowing into the machine?
A. Most of it is not gonna go into the machine. Very little is gonna go into the machine which will trigger the “E0” ... and it’s not an acceptable sample for the instrument. It will give a deficient sample, yes, “E0”.
Q. Yes, but as, as we heard, the, the actual signal is going on for a bit, went on, but just before the four seconds…so what I’m saying to you is that if that vent had been blocked, there’s no way that it could’ve gone on for several seconds. It would’ve stopped immediately… because the air could not escape.
A. If you have fully blockage of the vent hole, yes, it will stop. That’s why I’m saying, with this case, when you get the “E0” very fast … it’s blow, you see the “E0”, and you hear the two tones and, and that’s why even the officer by the time he recognize the “E0”, the instrument is giving green light again to start. …
Q. But again, if the air is going into the instrument and that vent is blocked, air has nowhere to go.
A. Most of it have [sic] nowhere to go. That’s why it’s not gonna, nothing is gonna go and except very small amount goes – that’s what it triggers the “E0”.
Q. Right. But you’re saying a very small amount, that wouldn’t trigger the tone of the actual A.S.D. to go on showing that air is coming in to the … actual machine.
A. … the tone will stop within seconds in this case. One second, once a sample goes in, the tone will stop and – but it will stop very quickly, you’re right.
Q. Stop very quickly, not, not closer to the four seconds.
A. No, no. Not – close to the four second, still just weak sample and this drop in below the threshold of 15 cm pressure. [emphasis added]
[49] While his evidence was at best choppy, taken as a whole, Mr. Moftah testified that if the vent was blocked, or partially blocked, a tone would sound and E0 message register. This may take a second or more. If the vent was fully blocked, then the tone would sound for only a second.
[50] The trial judge found that Mr. Moftah had testified that if the vent was “blocked”, an E0 error code would take place “virtually instantly”. (He did not address the partial blockage.) While Mr. Moftah’s evidence was more nuanced than this, including that a partial blockage could lead to a longer time, the trial judge’s summary of his evidence does not constitute a clear misapprehension of the evidence. It could be that a second or two or even three, could be characterized as “virtually instantly”. Mr. Moftah was clearly talking about less than four seconds, which could be characterized as virtually instant.
[51] While the characterization of Mr. Moftah’s evidence does not constitute a clear misapprehension of evidence, respectfully, the misapprehension comes in when Moftah’s evidence is contrasted with that of the officers. After summarizing the effect of Mr. Moftah’s evidence, that the tone would stop and “E0” code appear “virtually instantly”, the trial judge went on to say that the evidence did not “parallel what both officers described as happening”. Respectfully, the difficulty is that Mr. Moftah’s evidence did parallel what the officers’ described in their evidence.
[52] Cst. Greer testified that Mr. Dhillon blew into the device “very briefly” before the tone stopped and the E0 error code registered. Cst. Dudzinski described the length of time as puffing into the device for a “very brief second” and “then it stopped immediately”. He also testified that the tone would “just start and then it stopped”. According to Cst. Dudzinski, it appeared that Mr. Dhillon was putting his “tongue against the mouthpiece and it’s just stopping immediately”. This evidence conformed with what Mr. Moftah described would happen if the vent was covered or partially covered.
[53] I note that the difficulty may have arisen during the cross-examination of Mr. Moftah. It was suggested to Mr. Moftah that there had been evidence that “the actual signal is going on for a bit, went on, but just before the four seconds … so what I’m saying to you is that if that vent had been blocked there’s no way that it could’ve gone on for several seconds”. Neither Cst. Greer nor Cst. Dudzinski testified that the tone went on for “several seconds”. This suggestion was incorrect and, indeed, in conflict with their evidence. To compound matters, this suggestion was repeated in closing submissions, as summarized in the trial judge’s reasons.
The law relating to a misapprehension of the evidence
[54] The court is to apply a rigorous standard to misapprehensions of evidence sufficient to justify quashing a conviction. The misapprehension must go to a matter of substance and be “material” to the verdict and reasoning of the trial judge: R. v. Lohrer, 2004 SCC 80, at para. 2. The misapprehension must “play an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction’”. In determining materiality, the court must have regard to the entirety of the reasons and whole of the trial record. See: R. v. Akindolire, 2015 ONCA 545, at paras. 4-5; R. v. Abdullahi, 2015 ONCA 549, at paras. 6-7.
Analysis
[55] While the trial judge found that there was “no evidence that the officer did not operate the device properly in this case”, it was for the Crown to prove that the ASD was administered properly. As noted in R. v. Danychuk (2004), 2004 12975 (ON CA), 184 O.A.C. 131, at para. 25, when it comes to feigned attempts to provide a breath sample, as distinct from an outright refusal, the Crown may be required to establish that the screening device itself was in good working order. Mr. Justice Blair held:
Another line of authorities indicates that in circumstances where there has been an "unsuccessful attempt" to provide a breath sample - either because of efforts by the person subject to the request to feign compliance, or because of a faulty device - the Crown may be required to lead evidence to show the screening device was in good working order: see R. v. Lumley, [1988] O.J. No. 2521 (Prov. Ct. (Crim. Div.)); Yake, supra; Gutierrez, supra; R. v. Weir (1989), 1989 4927 (NL SC), 78 Nfld. & P.E.I.R. 260 (S.C. (T.D.)); and, Farkas, supra [R. v. Farkas, 2002 79556 (ON CJ), [2002] O.J. No. 4682]. These cases are founded on the theory that such proof may be necessary lest the evidence raise a reasonable doubt the unsuccessful attempt was due to a flaw in the device. [emphasis added]
[56] There was no evidence here, and no suggestion, that the ASD was not in good working order. It had been calibrated in the recent past, had a charge, and appeared to be functioning. The difficulty is that there was some evidence that the ASD may not have been operated correctly: R. v. Valere, 2013 ONCJ 594, at paras. 39-42; R. v. Gutierrez (2001), 21 M.V.R. (4th) 183 (Ont. SC), at paras. 17-21.
[57] This evidence included Cst. Greer’s admissions that: (1) he was holding the device when the breath tests were being administered; (2) his hands were near the base of the device; (3) he did not know where the vent was located on the device; and (4) he did not know if he was blocking the vent. Officer Dudzinski testified about the fact an E0 error code will emerge if the vent on the ASD is blocked. An E0 error code resulted on each of the five occasions that Mr. Dhillon was given an opportunity to provide a breath sample.
[58] It is against this backdrop that Mr. Moftah gave evidence about the implications of blocking or partially blocking the exhaust vent on the device. A tone will sound and an E0 message will appear quickly. Even on the trial judge’s characterization of Mr. Moftah’s evidence about the effects of a blockage of the vent, that a code will appear “almost immediate[ly]” and “virtually instantly”, this aligned with the officers’ evidence that the tone stopped (and E0 appeared): “very briefly”, in a “very brief second”, and “immediately”.
[59] On the whole of the record, the misapprehension of evidence played an essential part in the reasoning process that resulted in conviction. By dismissing the relevance of the Moftah evidence because the trial judge believed that it did not “parallel” the officers’ evidence, the trial judge disregarded evidence that may have impacted on an assessment of whether the ASD test was administered correctly. In turn, this went to the heart of whether the E0 reading resulted from operator error or from an intention not to provide a breath sample.
[60] When considering the importance of the misapprehension of evidence to the result in this case, it is essential to recall that the appellant did not outright refuse to provide a breath sample. Rather, this case hangs on the trial judge’s conclusion that the appellant was feigning his efforts to provide a sample. The jurisprudence is clear that a “feigned attempt is the equivalent of a refusal”: R. v. Bijelic, 2008 17564 (ON SC), [2008] O.J. No. 1911 (Sup. Ct.), at para. 30; R. v. Young, [2007] O.J. No. 1776 (C.A.), at paras. 1-2; R. v. Weare, [2005] O.J. No. 2411 (C.A.), at para. 1.
[61] The appellant stresses that this is also a case where only five opportunities were provided to give a sample. While counsel fairly acknowledges that there are no minimum number of tries that must be afforded to an individual before an officer can form the grounds for an arrest for refusing a breath sample, he argued that the number of opportunities provided in this case was at the lower end of what is found in the jurisprudence. In a case where there is no outright refusal, he says that this is also an important factor for consideration in terms of the impact of the misapprehension of evidence and how it intersects with the finding of intent.
[62] A contextual approach is applied to determine whether a person is pretending and, thereby refusing: R. v. Grant, 2014 ONSC 1479, at paras. 81-82. There are all manner of situations where a contextual approach may result in a finding that an individual is intentionally refusing after less than five offers to provide a sample. It is important to remember that a person who is required to provide a breath sample must do so “immediately”. As noted by Justice Fish in R. v. Woods, 2005 SCC 42, at paras. 44-45:
Drivers upon whom ASD demands are made are bound by s. 254(2) to comply immediately -- and not later, at a time of their choosing, when they have decided to stop refusing! [emphasis in original]
[63] I place no weight on the fact that only five attempts were made to get a breath sample. I agree with the trial judge that:
Mr. Dhillon was given five attempts. The fact that these attempts took place quickly, one after the other, is not of significant moment here, although other officers may have been slower in their test procedure than Greer was.
[64] What I do place weight on, though, is the fact that there has been a misapprehension of the expert evidence and how it relates to the officers’ observations. Properly approached, there was some evidence that the device was not properly operated. This goes to the very core of the mens rea for the offence of refusing a breath sample.
Conclusion
[65] The misapprehension of evidence went to a critical issue in this case, whether the appellant intentionally refused to provide a breath sample. While the Crown argued as an additional issue that, even if I find an error, there is no substantial wrong within the meaning of s. 686(1)(b)(iii), as adopted by inference into s. 822(1) of the Criminal Code, I decline to exercise my jurisdiction in this regard.
[66] This is not a case where it can be said that despite the error, no substantial wrong has occurred. The curative proviso applies in two situations: (1) to those cases involving harmless errors that have no impact on the verdict; and (2) to those cases where, despite a serious error, the evidence is so overwhelming that it can be said with confidence that, despite the error, no substantial wrong or miscarriage of justice has occurred. See: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 26; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 34-35; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 81.
[67] The appeal is allowed. The conviction is quashed and a new trial is ordered before a differently constituted summary conviction trial court. The appellant is ordered to appear on September 15 at 9:30 a.m. at the Ontario Court of Justice in Orangeville, courtroom 101 to set a new trial date.
Fairburn J
Released: September 1, 2015
COURT FILE NO.: SCA 14/14
DATE: 2015 09 01
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
SUKHVINDER DHILLON
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of Pugsley J.
dated June 5, 2014]
Fairburn J
Released: September 1, 2015