CITATION: R. v. Slater, 2016 ONSC 2161
COURT FILE NO.: AP37/15
DATE: 20160330
ONTARIO
SUPERIOR COURT OF JUSTICE
Summary Conviction Appeals
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and -
RICHARD SLATER
Respondent
M. Petrie, for the appellant
P. Calarco, for the respondent
HEARD: March 22, 2016
Nordheimer J.:
[1] The Crown appeals from the acquittal of the respondent, delivered on March 24, 2015 by Justice Melvyn Green of the Ontario Court of Justice, on a charge of failing or refusing to comply with a demand for a breath sample under s. 254(5) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] The facts are not in dispute. In the early morning hours of September 15, 2013, the respondent was stopped by the police for driving at an excessive rate of speed (almost 50 kph over the limit) on the Gardiner Expressway. The respondent had also been observed to be drifting in and out of the marked lanes for traffic. After being stopped, the officer noted the smell of alcohol emanating from the respondent. Consequently, the officer made a demand for a breath sample.
[3] The respondent failed seven times to provide such a proper sample, notwithstanding that he was shown a total of four times, by two officers, the proper method to provide such a sample. After the final attempt, the respondent was charged with failure to comply with a demand.
[4] At the conclusion of the trial, the trial judge acquitted the respondent of the offence. He said that he was "not persuaded to the requisite standard that the defendant intentionally failed to comply with the officer's demand".
[5] The central issue is whether the trial judge applied the proper standard for determining whether the Crown had proven the required mens rea for the offence. In reaching his conclusion that the Crown had failed to do so, the trial judge relied on the decision in R. v. Lewko (2002), 2002 SKCA 121, 169 C.C.C. (3d) 359 (Sask. C.A.), as that decision has been applied by various decisions in this Province, as establishing the proper standard. In so doing, the trial judge contrasted the standard set by Lewko with what he found to be the standard established in R. v. Porter, 2012 ONSC 3504, [2012] O.J. No. 2841 (S.C.J.). The trial judge found that the decision in Lewko required a more exacting standard, than did the decision in Porter, and that the Crown, in this case, was unable to meet that more exacting standard. More specifically, the trial judge found that the Crown had failed to prove, beyond a reasonable doubt, that the respondent had intended to refuse to provide a breath sample.
[6] I begin by saying that it is not clear to me that there is the degree of conflict between the decision in Lewko, and that in Porter, that a number of judges, including the trial judge here, have found to exist. On the issue of mens rea, the Saskatchewan Court of Appeal, in Lewko, said simply the following, at para. 9:
The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existence of a demand having the requirements of one of the three types mentioned in ss. (2) and (3). Second, the Crown must prove a failure or refusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus). Third, the Crown must prove that the defendant intended to produce that failure (the mens rea).
[7] There is no further discussion in Lewko of this third element nor is any authority cited for this enunciation of the mens rea requirement. The balance, and main thrust, of the decision addresses what gives rise to a reasonable excuse under s. 254(5). That is a separate question that is not in issue here.
[8] The decision in Porter does not dispute the fact that a mental element is necessary for the offence. Rather, it deals with the question whether the offence is one that requires a specific intent or only a general intent. The problem arises because some judges have interpreted the decision in Porter as holding that all the Crown is required to prove, to satisfy the requisite intent, is knowledge, on behalf of the accused, that a proper breath sample has not been provided. In other words, once the Crown has proven that a proper breath sample was not provided, to the knowledge of the accused, the necessary mental element is also then proved. With due respect to those who hold a contrary view, I do not read the decision in Porter as so holding. Indeed, to the degree that a conflict is suggested between Porter and Lewko, it seems to have less to do with what was actually said in Lewko and in Porter, and more to do with what some subsequent decisions have characterized as having been said in those two cases.
[9] The central point made in Porter is that, if the evidence led by the Crown establishes that the accused did not provide a proper breath sample, and the accused knows that s/he has not provided a proper breath sample, then, absent other circumstances being present that might explain that failure, the inescapable inference is that the accused intended to cause that result. This point is made in Porter where Code J. said, at para. 35:
In the Lewko and Sullivan line of cases, the accused all knew that they were failing to provide a suitable sample. Indeed, there had been repeated failed attempts with no suggestion that the accused was unaware of the failures. In other words, it could be inferred that the accused had a general or basic intent in relation to the prohibited act. [emphasis added]
[10] In fact, this is the same approach to the issue of proof of intent that was utilized in Lewko. In that decision, Bayda C.J.S said, at para. 31:
The inexorable, indeed, the only inference one can draw from these two facts in light of there being no other explanation, is that the pathetic quality of the attempts was produced by the respondent's choosing to produce that quality. In other words, the inexorable inference is that the respondent intended to produce a failure to provide an adequate sample. [emphasis added]
[11] It is also the approach that was implicitly used in R. v. Sullivan, [2001] O.J. No. 2799 (O.C.J.), the other main case referred to in Porter. In that case, the trial judge had to respond to the Crown's concerns that requiring it to positively prove intent would place an impossible burden on the prosecution. It is clear that the trial judge felt that the natural inference that arises would be sufficient to meet the prosecution's burden of proof, absent some other evidence being led by the accused to raise a doubt about it. As Duncan J. said, at para. 13:
As a matter of law, the accused has the burden of raising sufficient evidence to lend an air of reality to the issue. Further, as a practical matter, in this situation, that evidence will have to be fairly cogent.
[12] The decision in Sullivan is consistent with what I say is the proper reading of both Lewko and Porter and, that is, that, absent evidence to the contrary, or evidence that raises a reasonable doubt, proof of the requisite mens rea for the offence will be met by the application of the general principle that a person, who does something that has predictable consequences, usually intends or means to cause those consequences. Put more directly, evidence that a person who tries multiple times to provide a breath sample, and in each instance fails to provide a sample, gives rise to an inescapable inference that s/he is intending that result, absent some other evidence being present that would suggest an absence of such an intent, or at least raise a reasonable doubt about it.
[13] Cases in the Ontario Court of Justice, subsequent to Porter, that find a conflict between Porter and Lewko, or a "deep disagreement", do not, in my view, give a fair and harmonious reading to both decisions. The decision in Lewko does not go so far as to hold that the Crown must lead evidence of an accused's actual intention to refuse to give a sample – a task that would be impossible since no one can crawl inside another person's mind to find actual intent. As I have already pointed out, in Lewko, the court relied on an inference arising from the circumstances of the case to conclude that the requisite intention had been proven.
[14] In the same vein, the decision in Porter does not say that mere proof of a failure satisfies the mens rea requirement of the offence for all purposes. Rather, it finds that the failure to provide a sample, after multiple attempts, will satisfy the mens rea requirement, because of the natural inference that arises from those facts, absent any other explanation arising in the context of the evidence as a whole. Indeed, in Porter, Code J. upheld the trial judge's conclusion that the extraneous circumstances relied upon by the accused did not rebut that natural inference or raise a reasonable doubt respecting it.
[15] All of that said, even if there is a disagreement on the appropriate standard between what was said in Lewko, and what was said in Porter, the fact remains that, in this case, there was no evidence upon which the trial judge could have reasonably concluded that the mental element of the offence was not made out. The respondent did not give evidence. He did not, consequently, provide evidence that would refute the compelling inference to be drawn from the multiple failures to provide a sample. I note, in this regard, that in virtually all of the decisions relied upon by the trial judge, as establishing what he found to be the more stringent standard of proof, the accused had given evidence that provided alternative explanations for the failures. There was also no other evidence in the circumstances surrounding the attempts made to obtain a proper breath sample in this case that contradicted the compelling inference to be drawn.
[16] Instead, in the final paragraph of his reasons, the trial judge said simply:
I appreciate that the provision of a roadside sample is, as it is sometimes put, "not rocket science". I am aware, as well, that the defendant was instructed as to the correct procedure on at least three occasions, that he was cautioned more than once as to the legal consequences of failure, that he was afforded at least six opportunities to provide a suitable sample, and that the officers attributed his futile efforts to improper technique within the defendant's capacity and control. Nonetheless, I am left with a reasonable doubt as to whether the defendant's failure to comply with the breath demand was intentional. He displayed no indicia of alcohol intoxication or impairment. He was consistently coherent and polite with the police, and at times apologetic for his inability to register a reading on the ASD. He at least twice advised that he was doing his best to generate a proper sample. According to Sgt. Wong (whose evidence was here unchallenged or otherwise qualified), the defendant "at all times attempted to blow" during the several opportunities he observed. In these circumstances, I am simply not persuaded to the requisite standard that the defendant intentionally failed to comply with the officer's breath demand.
[17] With respect, that is a conclusion without the requisite analysis to substantiate it. At no point, does the trial judge explain why the factors that he mentions would give rise to a reasonable doubt on the issue of intent in light of all of the other factors, that he also mentions, that would support the natural inference of intent, to which I have referred.
[18] The first factor is factually incorrect. The respondent had demonstrated indicia of alcohol intoxication or impairment. There was the smell of alcohol detected by the officer immediately upon stopping the accused; there was the high rate of speed of the vehicle prior to the stop; and there was the drifting in and out of lanes of traffic noted prior to the stop.
[19] The respondent says that what the trial judge meant was that the respondent did not present any "personal" indicia of impairment at the time that the breath samples were taken. There is no such qualification on the trial judge's statement of this factor. However, even if that is what the trial judge meant, it still does not explain why the absence of indicia of possible impairment would raise a doubt about the intent of the respondent in failing to provide a proper breath sample.
[20] Second, the fact that the respondent was polite, coherent and apologetic does not mean that the respondent was not impaired. Not all persons who drink are rude, confused and discourteous. Again, it is not evident why this factor would give rise to a reasonable doubt regarding the respondent's intent.
[21] Third, the fact that the respondent said that he was trying his best does not mean, of course, that he was truly trying his best. The trial judge does not say that he believed the respondent on this point or, if he did, why he believed the respondent in light of the evidence of the officers, that the trial judge also refers to, that the respondent was purposely not providing a proper sample.
[22] The trial judge also misstated the evidence on the fourth factor. As counsel for the respondent acknowledged, Sgt. Wong did not say the respondent "at all times attempted to blow". What Sgt. Wong accepted was that there was always some breath that emanated from the respondent when he made his attempts. There is a qualitative difference between those two. Of course, had the respondent refused to blow altogether, there would be no issue on the mens rea element because he then would have clearly refused to provide a sample. In any event, the fact that some effort was made, perhaps a "pathetic" effort as was found in Lewko, does not rebut the natural inference that arises regarding the requisite intent.
[23] Reduced to its basics, on the evidence that was before the trial judge, there was simply nothing to refute the logical and inescapable inference that a person, who is given multiple opportunities to provide a breath sample, and who fails on each of those opportunities, is intentionally causing that result. Absent some explanation as to why that logical and inescapable inference had no application to the case here, a conviction on the offence ought to have followed.
[24] The respondent contends that the reasons of the trial judge demonstrate that he had a basis for finding that there was a reasonable doubt. The respondent says that a trial judge is not required to go into great detail in his/her reasons, especially in a busy court such as the Ontario Court of Justice.
[25] I do not quarrel with the latter proposition but I would note a couple of salient facts as it relates to this case. One is that the trial judge took some time (slightly more than two months) to render his decision. The other is that the trial judge took almost twenty pages in his reasons to discuss the issue of the requisite mens rea for the offence, and the perceived disagreement between Lewko and Porter, and less than a page to give his conclusion regarding the application of that issue to the facts of this case. The work pressures of the Ontario Court of Justice do not, in those circumstances, serve to explain the lack of an analysis with respect to the application of the legal principles to the facts as found.
[26] I do, however, quarrel with the first proposition. I do not agree that the reasons of the trial judge enunciate the reasons why he found that there was reasonable doubt. Reasons given by a trial judge must allow for meaningful appellate review: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. Indeed, as Binnie J. said in that case, at para. 24:
At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost.
[27] There is no explanation or justification for the result to be found in the reasons of the trial judge here. Rather, there is simply the conclusion that reasonable doubt exists. From where that reasonable doubt arises, given the facts of the case, is left to guesswork. Indeed, the result would suggest that the trial judge adopted a mens rea requirement for the offence that exceeds even the most generous reading of the reasons in Lewko and in R. v. Soucy, 2014 ONCJ 497, [2014] O.J. No. 4518 (O.C.J.), the two cases that he cites for his conclusion as to the requisite test. It is of some moment to contrast the trial judge's conclusion here, with the conclusion reached in Soucy, where Paciocco J. said, at para. 57:
Although the Crown must prove the mens rea of an intentional failure of the test, as a matter of common sense if a device was shown to be in good working order, the accused was given a clear explanation of its operation, and a sufficient opportunity to provide a sample was furnished, it can generally be interred[sic] in the absence of evidence raising some question about the ability of the accused to comply that the accused intended to avoid furnishing a suitable sample: [citation omitted]
The trial judge here did not cite any evidence that would raise "some question about the ability of the accused to comply" that might raise a doubt regarding the requisite intent.
[28] For the reasons that I have outlined, I have concluded that the trial judge's decision cannot stand. The respondent suggested that, if I reached that conclusion, the proper remedy was to order a new trial. I do not agree. The trial judge made all of the necessary findings of fact. Indeed, there is little dispute on the facts in this case. The trial judge identified the only issue for resolution as the proper test for the mens rea requirement. There is no doubt, in my view, that had the trial judge applied the proper mens rea requirement, a conviction would have resulted. I see no reason, in those circumstances, to require the trial to be repeated.
Conclusion
[29] The appeal is allowed, the acquittal is set aside and a conviction is entered. The matter is remitted back to the trial judge for sentencing.
NORDHEIMER J.
Released: March 30, 2016
CITATION: R. v. Slater, 2016 ONSC 2161
Court File No.: AP37/15
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and -
RICHARD SLATER
Respondent
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: