ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA 56/14
DATE: 20150930
B E T W E E N:
HER MAJESTY THE QUEEN
S. Bradley, for the Respondent
Respondent
- and -
ASHLEY BROOKSBANK
B. Vandebeek, for the Appellant
Appellant
HEARD: July 15, 2015 at Milton
REASONS FOR JUDGMENT
[On appeal from the judgment of R. J. Ledressay J.
dated March 31, 2014]
André J.
[1] Ms. Brooksbank appeals her conviction of the offences of Refuse Breath Sample, Impaired Driving and Mischief Under $5,000.
[2] She raises the following grounds of appeal:
(1) The learned trial judge erred in law in finding that the Crown has proven the mens rea of the Refuse Breath Sample charge beyond a reasonable doubt.
(2) The learned trial judge erred in law in finding Ms. Brooksbank guilty of Impaired Driving.
(3) The learned trial judge erred in law by granting Ms. Brooksbank a suspended sentence on the charge of Mischief Under $5,000.
BACKGROUND FACTS
[3] Ms. Brooksbank was involved in a single motor vehicle accident at approximately 7:00 a.m. on a clear, dry day in early August, 2013. A passenger in the vehicle subsequently told the police that Ms. Brooksbank’s vehicle had initially struck the shoulder before going through a ditch and ending up on someone’s lawn.
[4] A police officer arrived at the scene followed, shortly thereafter by an ambulance. Ms. Brooksbank was crying and hysterical when the officer first spoke to her. He arrested Ms. Brooksbank after she exited the ambulance and charged her with impaired driving. Thereupon, Ms. Brooksbank became even more hysterical. She had to be forcefully placed inside a cruiser. She became belligerent to the point of kicking at a window in the police cruiser and damaging the door.
[5] In the breathroom, Ms. Brooksbank complied with some simple commands. However, she failed to respond to three separate requests to provide breath samples into a breathalyzer machine, while sobbing inconsolably.
[6] After reviewing the Crown’s evidence, the trial judge concluded that there was method to Ms. Brooksbank’s behaviour and convicted her of Refuse Breath Sample, Impaired Driving and Mischief Under $5,000. Ms. Brooksbank appeals this decision on the ground that the trial judge failed to consider that her heightened emotional state constituted a reasonable excuse for her refusal to comply with the request for a breath sample.
SUMMARY OF THE TRIAL EVIDENCE
[7] Following Ms. Brooksbank’s arrest, the police read her her rights to counsel and caution. The police contacted duty counsel for her, however she refused to speak with duty counsel: see Reasons for Judgment, pages 63-64.
[8] Ms. Brooksbank’s interaction with a qualified breathalyzer technician was captured on video and played in the court as part of the Crown’s case. The trial judge, in his Reasons for Judgment, noted that as she entered and exited the breathroom, she followed directions related to where she should go and sit down. She responded appropriately when asked her name and when the officer commented about her car.
[9] However, Ms. Brooksbank made no response when the officer read a breathalyzer demand to her, her rights to counsel and a caution. She continued crying hysterically. The breathalyzer technician then asked Ms. Brooksbank three separate times within a three minute period, whether she was going to provide a breath sample.
[10] Ms. Brooksbank neither acknowledged nor responded to the questions. After the third question, the officer advised Ms. Brooksbank that he would charge her with Refuse Breath Sample, Impaired Driving and Mischief Under $5,000. In answer to a question whether or not he believed that Ms. Brooksbank knew that she had to provide a breath sample, the officer replied that “she didn’t answer so I don’t know if she did or not”: see Transcript of the Evidence, March 24, 2014, at page 52.
TRIAL JUDGE’S DECISION
REFUSE BREATH SAMPLE
[11] The trial judge concluded, at page 64 of his Reasons for Judgment, that he was satisfied beyond a reasonable doubt, “that Ms. Brooksbank was wilfully, knowingly and consciously refusing to provide a breath sample. He found that there was “significant evidence that Ms. Brooksbank understood all the requests made to her by the police, save and except those she did not like.” He found that Ms. Brooksbank had no language and comprehension problem. He characterized her persistent crying and sobbing, as “a somewhat transparent attempt…to avoid providing a sample through the crying and sobbing”: Reasons for Judgment, page 65.
IMPAIRED DRIVING
[12] The learned trial judge relied on the Court of Appeal decision of R. v. Stellato, [1993] O.J. No. 18, 1993 3375 (ONCA), for the proposition that if “the evidence established beyond a reasonable doubt any degree of impairment then the offence has been made out.”: see Reasons for Judgment, page 65.
[13] He concluded that the Crown had proven this offence beyond a reasonable doubt based on the following factors:
(1) evidence of an unexplained accident on a clear and dry day which resulted in considerable damage to Ms. Brooksbank’s car;
(2) Ms. Brooksbank’s behaviour at the scene and in the breathroom;
(3) the odour of an alcoholic beverage on her breath;
(4) pursuant to s. 258(3) of the Code, evidence that Ms. Brooksbank failed or refused to comply with a s. 254 demand.
Reasons for Judgment, pages 69-70.
[14] In finding Ms. Brooksbank guilty of impaired driving, the trial judge placed little or no weight on the fact that Ms. Brooksbank’s eyes were bloodshot, an odour of alcohol emanated from her breath, and evidence that she was unsteady on her feet. He held that these were merely indicators of consumption of alcohol.
MISCHIEF
[15] The judge relied on the clear evidence of Ms. Brooksbank kicking inside the police cruiser and the damage, which was depicted in photographs admitted into evidence, to find her guilty of Mischief Under $5,000. However, while the trial judge concluded that the damage amounted to less than $5,000, it is the value of the damaged property; not the quantum of damage, which determines whether or not Ms. Brooksbank was guilty of Mischief Over $5,000, rather than Mischief Under $5,000.
APPELLANT’S SUBMISSIONS
[16] The appellant’s counsel makes the following submissions:
(1) The findings of fact made by the trial judge regarding Ms. Brooksbank’s emotional state should not be afforded any deference. The trial judge was simply wrong in finding that Ms. Brooksbank refused request for a duty counsel. Furthermore, there was no evidence that Ms. Brooksbank was contriving to avoid providing a breath sample.
(2) Ms. Brooksbank lacked the mental element to commit the offence of refusal to provide a breath sample. The officer asked her three times within a three minute period: “Ashley, are you going to blow?” The officer never provided her with a mouthpiece nor did he explain the implications of a refusal to provide a breath sample. Within those circumstances, Ms. Brooksbank’s emotional state constituted a reasonable excuse which vitiated any wilful intention to refuse to provide a breath sample into the intoxilyzer machine.
(3) If the conviction for the Refuse Breath Sample is set aside, that for the Impaired Driving should suffer the same fate given that the trial judge relied on the refusal conviction in finding Ms. Brooksbank guilty of Impaired Driving.
(4) If Ms. Brooksbank’s conviction for Refuse Breath Sample and Impaired Driving are overturned, then Ms. Brooksbank’s sentence for the Mischief charge should be a conditional sentence, rather than the suspended sentence imposed by the trial judge.
ANALYSIS
[17] This appeal raises three issues, namely:
(1) What is the appellate standard of review?
(2) Did the trial judge err in law in finding that the Crown proved the mens rea of the offence of Refuse Breath Sample beyond a reasonable doubt?
(3) Did the Crown prove Ms. Brooksbank’s guilt on the charge of impaired driving beyond a reasonable doubt?
(4) Was the sentence imposed on Ms. Brooksbank for the offence of Mischief Over demonstrably unfit?
ISSUE NO. ONE: The Standard of Appellate Review
[18] Absent palpable or overriding error, factual findings by a trial judge should be afforded considerable deference: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52, at para. 49; R. v. Cresswell, 2009 ONCA 95, [2009] O.J. No. 363 (C.A.), at para. 14.
[19] In Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201 (C.A.), at paras. 296-297, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 291, the Court of Appeal described “palpable and overriding error” as follows:
The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear: (Citation omitted). Examples of Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.
An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: (citation omitted)
[20] A trial judge has considerable latitude in his or her appreciation of the evidence and the inferences to be drawn therefrom in the assessment of the credibility of witnesses. Accordingly, all factual findings are open to a trier of fact, except unreasonable ones: R. v. Biniaris, 2000 SCC 15 at paras. 32, 33, 37 and 42.
[21] In reviewing the learned trial judge’s factual determinations, the test is not whether the appellate judge would have arrived at a different factual conclusion but whether it was open to the trial judge to make the factual conclusion that he or she did.
ISSUE NO. TWO: Did the trial judge err in law in finding that the Crown proved the mens rea of the offence of Refuse Breath Sample beyond a reasonable doubt?
[22] There are conflicting line of authority concerning the mens rea of this offence. On line of authority hold that the offence in s. 245{(5) of the Code is a general intent offence which only requires a recklessness or knowledge as to the actus reus of the prohibited act: R. v. Kitchener, 2012 ONSC 4754, [2012] O.J. No. 3857 (S.C.J.) at paras. 36-39; R. v. Porter, 2012 ONSC 3504, [2012] O.J. No. 2841, (S.C.J.) at para. 37.
[23] The second line of authority holds that the essential elements of the offence of refusal to provide a breath sample pursuant to s. 254(5) of the Code are:
(1) a proper demand;
(2) a failure or refusal by the accused to provide the required sample;
(3) an intention to produce that failure: see R. v. Lewko (2002), 2002 SKCA 121, 169 C.C.C. (3d) 359 (Sask. C.A.); R. v. Campbell, [2008] O.J. No. 47 (S.C.J.).
[24] An accused may exonerate himself or herself by raising, on a balance of probabilities, the defence of reasonable excuse.
[25] In R. v. Bijelic, 77 W.C.B. (2d) 118, 2008 17564, at para. 30 (Ont. S.C.J.), Hill J. noted that:
…Evidence of a refusal may arise from conduct of the detained motorist, his or her statements to the officer in the course of the ASD testing process, or from a combination of conduct and statements. Refusal to comply may be quite express or may logically be inferred from the totality of the detained driver’s behaviour.
[26] The learned trial judge treated the offence of Refuse to Provide Breath Sample as one requiring a specific intent in that he concluded that Ms. Brooksbank intentionally failed to comply with the demand. He did so largely because of his conclusion that Ms. Brooksbank complied with some requests from the police officers and chose not to comply with others.
[27] Whether the offence in s. 254(5) of the Code is viewed as an offence of specific or general intent, it was open to the trial judge to conclude that Ms. Brooksbank intentionally failed to comply with the three specific requests for her to blow into the Intoxilyzer machine. The trial judge had occasion to view the videotape of Ms. Brooksbank in the breath room. He heard the questions posed to Ms. Brooksbank and saw her reaction to them. He also noted that she responded appropriately to innocuous questions concerning her identity and her car. The trial judge found that Ms. Brooksbank was generally cooperative before her arrest, but became belligerent following her arrest. It was therefore open to the trial judge to question Ms. Brooksbank’s emotional state and to view it as staged and contrived.
[28] The trial judge considered other evidence including the fact that there were no comprehension or language difficulties, the fact that Ms. Brooksbank had been issued two demands for a breath sample and the fact that the qualified technician made three separate requests to Ms. Brooksbank, “in clear and straightforward language”. Based on all the evidence, the trial judge concluded that Ms. Brooksbank “wilfully, knowingly and consciously” refused to provide a breath sample: see Reasons for Judgment, March 11, 2014, at page 64.
[29] In my view however, the trial judge erred by not giving adequate consideration to the fact that the officer asked Ms. Brooksbank in a very short period whether she was going to blow in the machine and the officer’s failure to advise her of the legal consequences of not providing a breath sample. Ms. Brooksbank was crying uncontrollably when she was asked those questions. At the very minimum, the officer should have warned Ms. Brooksbank that it was a criminal offence to refuse. He should have cautioned her of the consequences of refusal. Having reviewed the breathroom video, I am of the opinion that the breathalyzer technician grew impatient with Ms. Brooksbank and decided to charge her after she failed to respond to his third question.
[30] Accordingly, Ms. Brooksbank’s conviction of this offence will be set aside and an acquittal entered.
ISSUE NO. THREE: Did the learned trial judge err in finding Ms. Brooksbank guilty of impaired driving?
[31] The trial judge properly considered the unexplained accident and relied on the case of R. v. Grant, [2005] O.J. No. 6129 (S.C.J.), by Justice Bruce Durno, for the proposition that evidence of an unexplained accident may be sufficient to establish a driver’s guilt for impaired driving. He also placed some significance on Ms. Brooksbank’s post-arrest behaviour at the scene, the odour of alcohol on her breath and her behaviour in the breath room. The trial judge properly relied on the case of R. v. Stellato for the principle that any degree of impairment, ranging from slight to extreme, may be sufficient for a finding of guilt.
[32] Even if Ms. Brooksbank’s behaviour, in the circumstances of this case, did not constitute a refusal to provide a breath sample, the trial judge properly considered all the evidence in determining whether Ms. Brooksbank’s ability to operate a motor vehicle was impaired by the consumption of alcohol. To that extent, the trial judge was entitled to consider Ms. Brooksbank’s behaviour in the breath room when assessing her guilt on this charge.
[33] In my view, the trial judge did not err in finding Ms. Brooksbank guilty of this charge. Accordingly, this ground of appeal fails.
ISSUE NO. FOUR: Did the trial judge err in imposing a suspended sentence for the charge of Mischief Over?
[34] In my view, he did not. While Ms. Brooksbank lacked a criminal record, the circumstances of the case and her conviction for impaired driving justified the sentence imposed by the trial judge.
DISPOSITION
[35] The appeal is allowed in part. The conviction for Refuse Breath Sample is set aside and an acquittal is entered. The conviction for the Impaired Driving is affirmed as is the sentence on the charge of Mischief.
André J.
Released: September 30, 2015
COURT FILE NO.: SCA 56/14
DATE: 20150930
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
ASHLEY BROOKSBANK
Appellant
REASONS FOR JUDGMENT
André J.
Released: September 30, 2015