Court File and Parties

Court File No.: 43/15 Date: 2016-06-28

Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Rhiaz Hussain, Appellant

Counsel: Megan Petrie, for the Respondent Mark C. Halfyard, for the Appellant

Heard: June 14, 2016

Before: McWatt J.

Reasons for Judgment

[1] Rhiaz Hussain appeals against his conviction and sentence on a charge of refusal to provide a breath sample contrary to s. 254(5) of the Criminal Code. The appellant was convicted on April 15, 2015 by Justice E.J. Kelly of the Ontario Court of Justice. He was sentenced to a licence suspension and a fine.

[2] There are three grounds to the appeal:

(i) The trial Judge relied on inadmissible evidence when assessing the appellant’s credibility;

(ii) the trial judge erred in finding that the appellant made an unequivocal refusal; and

(iii) the trial judge erred in finding the incident containing the refusal was not a “single transaction”.

The Facts

[3] On June 7, 2013, PC McCarthy was conducting a mobile RIDE check. There is no issue that his approved roadside screening device (ASD) was in proper working order. At approximately 1 a.m. on June 8, 2013, PC McCarthy observed the appellant’s vehicle – a blue Jaguar – running with its headlights and tail lights on in the parking lot of a strip plaza in which there was a bar. There were three men in the vehicle. The appellant was in the driver’s seat when the officers approached. The appellant had an odour of an alcoholic beverage coming from his mouth. The appellant confirmed to the officer that he had been drinking alcohol. PC McCarthy activated the microphone for the in-car camera attached to his police cruiser. The officer’s interactions with the appellant, as well as those involving his escort PC Self, were thereafter captured on audio-videotape. The videotape was admitted into evidence at the trial.

[4] PC McCarthy made a demand that the appellant provide a sample of his breath into an ASD. He then asked whether the appellant understood. The appellant confirmed he did and advised he did not believe he had to comply. The officer told the appellant he had to comply with the demand and directed the appellant towards his cruiser where he had stored the ASD. He explained to the appellant that the ASD would analyse the appellant’s breath to determine how much alcohol was in his system and that he was going to demonstrate the use of the device to him. The appellant interrupted the officer to ask whether he could refuse to blow into the device. PC McCarthy responded that if he did, he would be arrested for “impaired”, for “care or control of your vehicle”. The officer believed the appellant had alcohol in his system that was impairing his ability to operate a motor vehicle. He then advised the appellant, again, that he was going to demonstrate the use of the ASD. The appellant stated: “Can I ask you not to do this then?” to which PC McCarthy responded “Pardon me?” The appellant repeated: “Can I ask you not to do this then?” PC McCarthy responded that the appellant would be arrested for care or control of his motor vehicle. The appellant then asked: “What would happen?” PC McCarthy responded: “You face a criminal charge”. The appellant then stated: “I would refuse not to then.”

[5] PC McCarthy advised the appellant he would be arrested for “care or control of your motor vehicle.” He asked the appellant whether he understood what was happening. The appellant said he did not. In the ensuing discussion, PC McCarthy confirmed with the appellant “I’ve given you the opportunity to blow in the device. You refused to do that.” He further advised the appellant that he believed, and that the appellant had admitted, that he had alcohol in his system. PC Self explained to the appellant that care or control meant that the appellant had the ability to drive his vehicle and that the appellant’s refusing to blow into the device was itself a criminal charge. PC McCarthy then read the appellant’s rights to counsel and asked whether the appellant understood. The appellant said he didn’t. PC McCarthy provided an explanation. PC McCarthy then read the appellant the demand to provide a sample of his breath into an approved instrument and asked whether the appellant understood. The appellant said he didn’t. PC McCarthy again advised the appellant he was under arrest for a criminal offence. PC Self again confirmed to the appellant that he had refused to provide a sample and advised that it had already been explained why he was under arrest. The appellant made inquiries about his car. He was then placed in the rear of the police cruiser. PC McCarthy testified his initial plan was to transport the appellant to the police station, however he realized after speaking with a traffic officer at the scene that the appellant could be released for the offence of refuse breath sample from the scene.

[6] During the officer’s evidence in chief, Crown counsel played the first 10 minutes of the video tape from 1:00:15 to 1:10:21 a.m. showing the events leading up to and shortly after the appellant’s arrest at approximately 1:03:19 A.M.. The video was paused periodically to permit the officer to comment. PC McCarthy confirmed that the appellant was released from the scene at 2:00 a.m. and that the video remained running throughout. Crown counsel indicated he did not want to play the entire video but would fast forward approximately 35 minutes to events at the end of the video. Crown counsel noted in doing so, “obviously my friend can, if he chooses, play any portion of any of the video, but I want to go to where I next have notes at 1:45 so I am moving forward 35 minutes.” The next portion played captured events from 1:44:14 to 1:54:15 a.m.

[7] When the video resumed playing at 1:44:14, the appellant was still seated in the rear of the police cruiser and inquiring why his car was being impounded. He advised he was not consenting to anyone moving his car and complained that police should be more concerned with drug dealers in the area than with his car. PC McCarthy advised the appellant that he was going to be charged with refusing to provide a breath sample. The appellant confirmed, at 1:45:38, that he had refused to provide a breath sample. The appellant asked PC McCarthy: “you’re allowed to impound my car for 7 days for refusing to provide a breath sample?” PC McCarthy confirmed that in addition to his car being impounded for 7 days, his license would be suspended for 90 days. The appellant then inquired, at 1:46:30 a.m.: “What if I were to provide a sample?” PC McCarthy advised the appellant that it was too late. The appellant complained, repeatedly, that no one told him about the 90-day license suspension and inquired as to the cost of retrieving his car from the impound. At 1:48:10, he stated that if he had known his licence was being suspended for 90 days, he would have given a breath sample. He asked about the return of his vehicle and advised he was not consenting to any search of his car.

[8] In cross-examination, PC McCarthy agreed he had initially arrested the appellant for impaired care or control and that his intention was to transport the appellant to the police station for breath tests on the intoxilyzer. He did not recall having said anything in between the two video segments played by the Crown about the refuse breath sample charge. He agreed he had not said anything to the appellant about the 7-day impoundment of his car and 90-day licence suspension until the latter portion of the video. He agreed after the appellant had refused to provide a breath sample, he had not offered him a further opportunity to blow into the ASD. He agreed it was a mistake on his part not realizing that he could release the appellant on a Form 9 at the scene.

[9] The appellant, 25, was born and raised in Toronto and is a university graduate. He testified at the trial. At the time of the offence, he was working in sales and had gone to a restaurant/bar with colleagues for a work celebration. He estimated they were at the establishment between 4 to 5 hours during which time he said he had, possibly, two beers. He denied he was intoxicated when he left the establishment with two colleagues, but said it was not his plan to drive his colleagues home. He was sitting in his car having coffee when police approached. He agreed that he asked the officer “Can I ask you not to?” when he was asked to provide a sample into the ASD, which he admitted was a plea for the officer to let him go. He refused to provide a breath sample because he was scared and unsure about what to do. Though he was told it was a criminal offence, he did not know the full consequences for refusing to blow for himself, for his licence or for his vehicle. After the arrest, he did not offer to blow because he assumed that refusing was a better decision. He testified that he had made “at least one or two requests” to provide a breath sample prior to being advised of the consequences of refusing, then changed his mind and offered to provide a breath sample only after he realized his car would be impounded and his licence suspended for 90 days. He explained his change of mind in the following exchange.

Q. When you were asked for a second chance or to blow into the machine again what was in your mind or what changed your mind?

A. When I realized the consequence of the refusal, when I realized it was a 90-day suspension and my car impounded.

[10] In cross-examination, the appellant initially confirmed then retreated from the evidence he had offered to blow before being told of the licence suspension. He agreed that he understood the situation, and intended to communicate to police that he was not going to comply with the breath demand. He agreed that he had, approximately 42 minutes after his refusal, verbally confirmed to police that he had refused to provide a breath sample. He also agreed that prior to his refusing, he knew that refusing was a criminal offence. He agreed that his change of heart had only occurred after learning of the 7-day impound and the 90-day licence suspension.

Analysis

(i) Did the Trial Judge Rely on Inadmissible Evidence?

[11] The appellant contends that because the issue in this case was whether the appellant gave an unequivocal refusal to blow into the ASD, the trial judge’s findings about credibility of the witnesses was paramount. As a result, the trial judge should not have reviewed the entire in-car video because only certain parts of it were admitted into evidence at the trial. His Honour erred when he relied on the parts not admitted into evidence in order to reject the appellant’s evidence and find him guilty.

[12] It is clear that the entire video was admitted as evidence in the trial. The video was authenticated by PC McCarthy. There were no limits, placed by counsel for Crown or the defence, on the use that could be made of the whole of its contents. Defence counsel’s position at the trial was that the judge should consider the whole interaction between the accused and the police because the defence theory was that interaction was part of a “single transaction”.

[13] Counsel for the defence also confirmed to the trial judge that the “whole video is now before the court” and that he had “no problem” with the trial judge reviewing and considering it.

[14] The Crown played only parts of the video when calling evidence, but that did not render the unplayed portions inadmissible.

[15] Once the video tape was admitted as evidence, the trial judge was free to draw inferences from it, which he correctly did. (R. v. Nikolovski, [1996] 3 S.C.R. 1190).

(ii) Did the Trial Judge Err by Finding the Appellant had made an Unequivocal Refusal?

[16] Absent palpable and overriding error, this court should show considerable deference to findings of fact and practical inferences drawn by the trial judge (R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6 at para. 9, citing Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802; Lensen v. Lensen, [1987] 2 S.C.R. 672; Geffen v. Goodman Estate, [1991] 2 S.C.R. 353; Hodgkinson v. Simms, [1994] 3 S.C.R. 377; Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114; Schwartz v. Canada, [1996] 1 S.C.R. 254; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235).

[17] Whether the appellant made an unequivocal refusal to blow into the ASD and whether he had the necessary mens rea for the offence were findings of fact to be made by Justice Kelly.

[18] The appellant complains that the trial judge did not give adequate weight to PC McCarthy’s conduct at the scene in determining whether the appellant had unequivocally refused to comply with the breath demand and whether the appellant’s later statements mitigated the earlier refusal.

[19] After a review of the testimony, other evidence and submissions about the misinformation PC McCarthy gave the appellant about what charges he would face for refusing to comply with the ASD demand, the trial judge concluded that, although the misinformation was a factor he considered, the appellant’s assertion that he was confused about his responsibilities on the night in question was not credible. Specifically, he found that he had no doubt the appellant made a deliberate decision to refuse to provide a sample early on in his interactions with officers, knowing that he would face criminal charges.

[20] There was clear evidence in the trial that it was only the prospect of having his licence suspended and his car impounded that compelled the appellant to rethink his unequivocal refusal. And, even then, the evidence supports the fact that the appellant inquired about, but did not ask to provide a breath sample.

[21] There was no error. There was clear evidence in the case to support His Honour’s findings on this issue.

(iii) Was It an Error for the Trial Judge to Find There was No “Single Transaction”?

[22] If an accused changes his mind in the face of an initial unequivocal refusal, then offers to provide a breath sample, the police should give the accused another opportunity where the refusal and the later change of heart can be considered as part of a single transaction (R. v. Fanchi at paras. 15-16; R. v. Cunningham, 1989 ABCA 163; R. v. Domik, afff’d R. v. Domik; R. v. Sagh).

[23] In this case, the trial judge found that there was no single transaction in which the appellant offered to provide a breath sample. He considered the case of R. v. Sores, 2010 ONSC 1615 at para. 39 to support his conclusion that it was not up to police to persuade the appellant to provide a sample or to provide legal advice to the appellant in order to obtain compliance with a breath demand. He also distinguished the appellant’s case from others where those cases had found single transactions.

[24] He found that the appellant asked a question about what would happen if he were “to provide a sample now?”, but there was no unequivocal offer by him to provide one and if there was one, the offer came too late for it to be reasonably considered part of a single transaction.

[25] There was evidence in the trial to support these factual findings. I will not interfere with them.

[26] And, for these reasons, the appeal is dismissed.

McWatt J.

Released: June 28, 2016