ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
John Kingdon, for the Respondent
Respondent
- and -
PIRABURAJ CAMALALINGHAM
Gregory Lafontaine, for the Appellant
Appellant
HEARD: January 11, 2016 in Brampton
REASONS FOR JUDGMENT
[On appeal from the judgment of Gage J.
dated September 22, 2014]
André J.
1Mr. Piraburaj Camalalingham (“Mr. Camalalingham”) appeals his September 22, 2014 conviction of the Refuse to Provide a Breath Sample offence pursuant to the Criminal Code, RSC 1985, c. C-46, s. 253(4). His counsel submits on his behalf that the learned trial judge erred in law by failing to consider:
a) whether Mr. Camalalingham’s utterances to the arresting office constituted evidence which was capable of raising a reasonable doubt in the Crown’s case;
b) whether the officer’s failure to give Mr. Camalalingham a “last chance” to provide a breath sample was fatal to the Crown’s case; and
c) whether the trial judge misapprehended the trial evidence.
2The Crown contends that the trial judge committed none of these errors and that accordingly, the Court should dismiss the appeal.
SUMMARY OF THE EVIDENCE CALLED AT TRIAL
3In the early morning hours of December 20, 2013 OPP Police Constable Marchyshyn (“Cst. Marchyshyn”) investigated Mr. Camalalingham after observing his car moving quickly in inclement weather.
4Upon stopping the vehicle at 1:46 a.m., the officer observed Mr. Camalalingham’s eyes to be red-rimmed, watery and bloodshot and that his breath smelled of alcohol. Thereupon, the officer formed a reasonable suspicion that Mr. Camalalingham had alcohol in his body. He then lodged Mr. Camalalingham in his cruiser and demanded that he provide a sample of his breath into an approved screening device (“ASD”): see Transcript of the Trial, pages 13-14.
5The officer explained to Mr. Camalalingham that the ASD would make a beeping tone upon receipt of a suitable sample of his breath. He advised Mr. Camalalingham that “you have to keep blowing until it [the ASD] clicks. That’s when you know we have a sufficient sample. If you’re not blowing, it’s not going to beep.” See Transcript of the Trial, page 15, lines 25-26.
6The officer demonstrated how to blow into the ASD. He blew into the machine to confirm that it worked properly. The officer testified that based upon this test, he was satisfied that the machine was operating properly: see Transcript of the Trial, page 16, lines 17-19.
7He then fitted the ASD with a new mouthpiece and asked Mr. Camalalingham to blow into it.
8Cst. Marchyshyn testified that he heard Mr. Camalalingham sucking the air in and not blowing. As a result the ASD did not make any beeping sound: see Transcript of the Trial, page 19, lines 6-9.
9The officer testified that he gave Mr. Camalalingham six opportunities to provide a suitable breath sample into the ASD. During the first three times, Mr. Camalalingham sucked the air in without blowing into the device. After each failure, Cst. Marchyshyn explained the procedure of providing a suitable breath sample into the ASD to Mr. Camalalingham. He asked him if he understood. Mr. Camalalingham replied that he did. On the second occasion, the officer cautioned Mr. Camalalingham against sucking in the air, rather than blowing into the ASD: see Transcript of the Trial, pages 22-23.
10After the third failed attempt, the officer cautioned Mr. Camalalingham about the consequences of failing to provide a suitable breath sample into the ASD. Mr. Camalalingham then began to offer an explanation to the officer about his failure to provide a suitable breath sample into the ASD.
11Before eliciting this evidence from Cst. Marchyshyn, the Crown attorney advised the court that he was “only leading these statements to explain the officer’s actions afterwards”: see Transcript of the Trial, page 24, lines 2-4.
12Cst. Marchyshyn testified that Mr. Camalalingham claimed that he could not provide a suitable breath sample because he had a heart condition. The officer again cautioned Mr. Camalalingham that failure to provide a suitable breath sample would result in him being charged with Refuse to Provide a Breath Sample. He again explained the procedure for providing a suitable breath sample into the ASD.
13The officer testified that in his fourth attempt, Mr. Camalalingham made a seal around the mouthpiece for one or two seconds without blowing. The machine did not register a tone during this attempt.
14Following this fourth failed attempt, Mr. Camalalingham complained of chest pains. He advised the officer that he had a heart condition and was claustrophobic in the vehicle. By then Mr. Camalalingham was ranting at Cst. Marchyshyn: see Transcript of the Trial, page 26, lines 9-20.
15The officer testified that at this point, Mr. Camalalingham was not out of breath; and that Mr. Camalalingham was not having to stop to catch his breath: see Transcript of the Trial, page 27, lines 7-10.
16The officer nevertheless allowed Mr. Camalalingham to step out of the cruiser. He inserted a new mouthpiece into the ASD. He demonstrated to Mr. Camalalingham how to blow into the ASD. He again advised him about the beeping tone when a suitable sample was provided into the machine. He then inserted a new mouthpiece into the machine and asked Mr. Camalalingham to blow into the ASD.
17On his fifth attempt, Mr. Camalalingham placed his mouth on the mouthpiece but did not blow into the ASD. Mr. Camalalingham again maintained that he had a medical condition and complained of chest pains. Mr. Camalalingham started to rant but the officer did not discern Mr. Camalalingham having difficulty breathing, raising or lowering his voice, or experiencing shortness in his breath see Transcript of the Trial, page 31, lines 4-26.
18Following this failed attempt, the officer advised Mr. Camalalingham that he would give him a last chance to provide a sample. The officer testified, “I say to him, this is your last chance to provide a sample…” (Transcript of the Trial, pages 31-32).
19In his sixth attempt, Mr. Camalalingham did not blow into the machine. He merely placed the mouthpiece into his mouth. At 2:02 a.m., Cst. Marchyshyn advised him that he was under arrest for Refuse to Provide a Breath Sample.
20Mr. Camalalingham became upset and confrontational. The officer testified that even then, he did not observe any symptoms of shortness of breath, or wheezing by Mr. Camalalingham The accused also did not have any difficulty expressing himself. The officer then handcuffed Mr. Camalalingham and read him his rights to counsel.
21The officer later contacted an ambulance just in case Mr. Camalalingham was having any chest pains or a heart condition. An ambulance attended at the scene approximately ten minutes after the arrest. The paramedics performed some checks on Mr. Camalalingham. They released him at the scene.
22Cst. Marchyshyn testified that when Mr. Camalalingham initially exited his cruiser, the male passenger in the accused’s vehicle exited the car and started accusing him of harassment. The male had a cellphone and started videotaping Cst. Marchyshyn. The officer seized the phone and tried unsuccessfully, to obtain a warrant to search the phone. The phone was eventually returned to the passenger.
23Under cross-examination, the officer testified that the paramedics advised him that Mr. Camalalingham did not have any heart conditions and that he was possibly experiencing anxiety: see Transcript of the Trial, page 62, liens 6-9.
24The officer reiterated that before Mr. Camalalingham made a sixth attempt to provide a breath sample into the ASD, he told him that he was going to give him a last chance to blow into the ASD: see Transcript of the Trial, page 69, lines 29-31.
25Under cross-examination, Mr. Camalalingham played a video recorded by the passenger in his car during the investigation. The video recording was approximately one minute and thirty seconds to one minute and forty-five seconds in length. The video appeared to contradict the officer’s assertion that Mr. Camalalingham was loud and aggressive at the roadside. The officer agreed that Mr. Camalalingham’s tone was consistent with a person who had a soft spoken voice: see Transcript of the Trial, page 121, lines 10-12; page 122, lines 18-22.
26In re-examination, Cst. Marchyshyn testified that he made a notation, after Mr. Camalalingham’s fifth failed attempt, that the passenger was videotaping what transpired at the scene of the arrest: see Transcript of the Trial, page 129.
TRIAL JUDGE’S DECISION
27In convicting Mr. Camalalingham, Justice Gage concluded, at page 3 of his Reasons for Judgment that:
I accept the evidence of Constable Marchshyn that in the course of the numerous opportunities given to Mr. Camalalingham, both inside and outside the cruiser, Mr. Camalalingham did not once blow into the device with sufficient force to elicit the engagement tone, even for as much as a second or two.
28He noted further at page 4 of his Reasons for Judgment that “[T]he evidence before me demonstrates that Mr. Camalalingham made no effort whatsoever to comply with the demand.”
29The trial judge made reference to the video which was marked as an exhibit during the trial. He noted that he heard Mr. Camalalingham stating that he was a heart patient and was not feeling well. Mr. Camalalingham also complained about being unfairly targeted by Cst. Marchyshyn.
30The trial judge further noted at page 6 of his Reasons for Judgment that:
Whether Constable Marchyshyn is wrong about Mr. Camalalingham’s voice being raised outside the cruiser is difficult to assess, given the poor audio quality of the video, but again, that is an issue of perception about which others may reasonably disagree without affecting the overall credibility of the officer.
31Regarding the issue of the police failing to give Mr. Camalalingham a “last chance”, the trial judge concluded that the factual circumstances in the case did not raise this issue, given that “there was no offer to comply by Mr. Camalalingham at any time”: see Reasons for Judgment, page 7.
ANALYSIS
32This appeal raises the following issues:
(1) Did the trial judge err by finding that the “last chance” doctrine did not apply, given Mr. Camalalingham’s failure to to comply with the demand?
(2) Did the trial judge err by failing to consider whether Mr. Camalalingham suffered from the medical condition he complained about, therefore giving him a reasonable excuse not to comply with Cst. Marchyshyn’s demand?
(3) Did the trial judge misapprehend the evidence when he concluded that Mr. Camalalingham failed to comply with Cst. Marchyshyn’s demand?
ISSUE NO. ONE: Did the trial judge err by concluding that the Crown’s evidence did not raise the issue of “last chance”?
33Section 254(2) (b) of the Criminal Code stipulates that a peace officer who has reasonable grounds to suspect that a person has alcohol in his or her body while operating a motor vehicle, may, by demand, require that person to provide forthwith a sample of breath that will enable a proper analysis to be made by means of an approved screening device.
34Section 254(5) of the Criminal Code provides that everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
35The essential elements of the Criminal Code offence set out in s. 254(5) are:
(1) a proper demand;
(2) the failure or refusal to produce the required sample; and
(3) an intention to produce the failure or refusal.
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.)
36Once the Crown has proven these elements, an accused may raise a reasonable excuse for his or her failure to comply with a proper demand from a peace officer. Absent such an excuse, a person may be convicted of the offence where the Crown has proven the essential elements of the offence beyond a reasonable doubt.
37Mr. Camalalingham’s counsel submits the following:
a) Cst. Marchyshyn’s evidence reflected that Mr. Camalalingham tried and failed to comply repeatedly and offered a litany of reasons for his inability to comply – to wit, sensations of claustrophobia, anxiety and chest pains;
b) the arresting officer concluded that those excuses were legitimate enough to warrant medical attention; and
c) having so concluded, the arresting officer was obliged to afford Mr. Camalalingham a further opportunity to comply after medical attention was administered.
38I would not give effect to this ground of appeal for the following reasons.
39While I agree with the first submission, I disagree with the other two. The officer did not conclude that the proffered excuses for not providing a proper breath sample into the ASD “were legitimate enough to warrant medical attention”. On the contrary, Cst. Marchyshyn testified that he did not observe any telltale symptoms of heart problems or chest pains such as laboured breathing, wheezing or other signs of discomfort on Mr. Camalalingham. He concluded, based on his observations, that Mr. Camalalingham was merely seeking an excuse for not blowing into the ASD.
40The officer acted on Mr. Camalalingham’s complaint of feeling claustrophobic while he sat at the back of the cruiser, by having him exit the cruiser after the fourth failed attempt. Thereafter, Mr. Camalalingham twice failed to provide a breath sample into the ASD.
41The officer testified that he merely contacted the ambulance services out of an abundance of caution rather than because of any belief that Mr. Camalalingham’s complaints were legitimate.
42But, even if his complaints were legitimate, the information conveyed by the paramedics to Cst. Marchyshyn negated any of the officer’s obligations to offer Mr. Camalalingham a “last chance” to provide a sample into the device. The paramedics advised the officer that Mr. Camalalingham did not have heart problems. While this information was not elicited for the truth of its contents, it goes to Cst. Marchyshyn’s state of mind concerning his failure to give Mr. Camalalingham a “last chance” to blow into the ASD. Indeed, this information confirmed the officer’s conclusion that Mr. Camalalingham did not have a legitimate reason for not blowing into the ASD.
43There is no doubt that in the appropriate circumstances, a “last chance” or further opportunity to blow into an ASD, may be warranted. If, for example, Mr. Camalalingham had blown into the ASD for a moderate period and had stopped short on account of a medical condition, then in those circumstances, a “last chance”, upon request, may well have been necessary to enable the Crown to prove beyond a reasonable doubt that the offence under s. 254(5) of the Criminal Code had been made out.
44But this is not the case here. In the first three attempts, Mr. Camalalingham sucked in air, rather than blow into the ASD. In the other three, he did no blow into the ASD. The officer was not contradicted on his testimony regarding the attempts, or lack thereof, made by Mr. Camalalingham to blow into the ASD. In my view, there was ample evidence to support the trial judge’s conclusion that Mr. Camalingham intentionally failed to comply with Cst. Marchyshyn’s repeated demands and warnings about the consequences of failing to comply with his order.
45The Crown submits that Cst. Marchyshyn had no obligation to offer a “last chance” for Mr. Camalalingham to blow into the ASD given the latter’s failure to request another opportunity to blow.
46A review of cases where the “last chance” argument had been litigated reveals that it is only where an officer denied an accused’s request for a final opportunity to blow, the issue of whether the refusal was final or unequivocal arose: see R. v. Tynkaluk [1989] O.J. No. 957 (S.C.); R. v. Domik [1979] O.J. No. 1050, at page 307, affirmed [1980] O.J. No. 710 (C.A.); R. v. Reid [1988] O.J. No. 2494 (Dist. Ct.); R. v. Stowe (1983) 22 M.V.R. 273; R. v. Chance [1997] O.J. No. 4939 (C.J.), at paras. 35 and 36; R. v. Hines [1998] O.J. No. 5831 (S.C.); R. v. Taylor [1998] O.J. No. 2187 (S.C.); R. v. Brown [2004] O.J. No. 4423 (S.C.), at para. 12; R. v. McIntyre [2005] O.J. No. 2927 (S.C.); R. v. Manak, 2008 ONCJ 207, O.J. No. 1718; R. v. Hamilton, 2012 ONCJ 252; and R. v. Kitchener, 2012 ONSC 4754, [2012] O.J. N. 3857.
47In a few of these cases where the accused requested a final opportunity to blow, the failure of the arresting officer, following a number of unsuccessful attempts, to specifically advise the accused that he or she was being given a last chance to blow, created a reasonable doubt that the officer’s refusal was unequivocal: see R. v. Barstead (unreported) 11 February 2005 (Ont. O.C.J.), R. v. Hamilton.
48In this case, Mr. Camalalingham failed to request, following his arrest, another opportunity to blow. In my view, his actions in the first three “attempts”, his failure to blow in the final three, the two warnings he received regarding the consequences of not blowing, the fact that the officer advised him that he was being given a “last chance” to blow, and Mr. Camalalingham’s failure to request another opportunity to blow, collectively justify a conclusion that his refusal to blow into the ASD was final and unequivocal.
49Was the officer obligated to offer Mr. Camalalingham another opportunity to blow in the circumstances of this case even if Mr. Camalalingham did not specifically request it? In my view, he was not. Mr. Camalalingham’s failure to request a “last chance” constitutes proof that he was not particularly interested in being given one. This is not a case where the detainee did not fully understand what was required of him, or one where he was temporarily distracted or afflicted with a malady which affected his ability to provide a proper sample. Indeed, Mr. Camalalingham repeatedly accused the officer of harassing him and that may well account for his failure to provide a proper breath sample into the ASD.
50Had the officer formed the belief that Mr. Camalalingham’s ability to comply with a demand was adversely affected by, for example, coughing, wheezing or other signs of discomfort, then he or she would have had an obligation to afford the detainee a reasonable opportunity to comply with a Criminal Code s. 254(3) demand.
51This was not the case here. Accordingly, Cst. Marchyshyn was not obliged to give Mr. Camalalingham another chance to blow into the ASD, after he had been released by the paramedics.
ISSUE NO. TWO: Did the trial judge err by failing to consider whether Mr. Camalalingham suffered from the medical condition he complained about, therefore giving him a reasonable excuse not to comply with Cst. Marchyshyn’s demand?
52Simply put, the trial judge did not. Cst. Marchyshyn considered Mr. Camalalingham’s complaints about heart problems, chest pains and claustrophobia. He concluded, based on his observations, that these alleged problems were not factors in Mr. Camalalingham’s refusal to comply with the breath demand. Second, he had no reason to change his conclusion after the paramedic advised him that Mr. Camalalingham did not have any heart problems.
53Third, this ground of appeal raises an evidentiary problem – was the trial judge required to accept the utterances about chest pains and a heart problem attributed to Mr. Camalalingham, for the truth of their contents? The Crown specifically advised the court that he was not tendering the utterances for that purpose. In other words, the Crown was not adducing the utterances as proof that Mr. Camalalingham had heart problems, or experienced chest pains or claustrophobia when Cst. Marchyshyn required him to blow into the ASD. The trial judge was not required to accept Mr. Camalalingham’s self-serving utterances regarding his failure to provide a breath sample.
54At page 5 of his Reasons for Judgment, the trial judge noted the following of the video taken by Mr. Camalalingham’s passenger: “What is not seen on the video is any visual evidence that Mr. Camalalingham is unwell”. Furthermore, the trial judge accepted Cst. Marchyshyn’s evidence that he did not observe any signs of distress on Mr. Camalalingham. It was open for the trial judge to do so, based on the officer’s testimony.
55For the above reasons, this ground of appeal must fail.
ISSUE NO. THREE: Did the trial judge misapprehend the evidence by concluding that Mr. Camalalingham failed to comply with Cst. Marchyshyn’s demand?
56Mr. Camalalingham’s counsel maintains that contrary to the trial judge’s conclusion, the accused implicitly offered to comply with Cst. Marchyshyn’s demand. Accordingly, the trial judge erred in concluding that Mr. Camalalingham had unequivocally refused to comply with the officer’s demand. Defence counsel points to the fact that a mere fourteen minutes elapsed between the time of the Criminal Code s. 254(3) demand (1:48 a.m.) and the time of Mr. Camalalingham’s arrest (2:02 a.m.).
57There is no statutory requirement that an arresting officer is required to give a minimum number of opportunities to a detainee to blow into an ASD. Whether a number of attempts to blow is sufficient to a support a conclusion that a detainee unequivocally refused to blow, will be based on the circumstances of the case. Such circumstances include, but are not limited to, the nature of the detainee’s attempts to blow, what the officer said to him or to her, and the detainee’s responses to the officer.
58In this case, the arresting officer afforded Mr. Camalalingham six opportunities within a fourteen minute period, to provide a suitable breath sample into an ASD. In the first three attempts, he sucked in, rather than blow air into the device. On the next three, he simply did not blow into the ASD. The officer demonstrated on two separate occasions how to blow into the ASD and told him the legal consequences of not complying with his demand. In my view, the circumstances of this case justified the trial judge’s conclusion that Mr. Camalalingham failed to comply with Cst. Marchyshyn’s demand.
59Accordingly, this ground of appeal must fail.
DISPOSITION
60For the above reasons, the appeal is dismissed. The stay of driving prohibition issued by Justice Sproat on April 10, 2015, is hereby vacated.
André J.
Released: January 25, 2016
CITATION: R. v. Camalalingham, 2016 ONSC 499
COURT FILE NO.: SCA(P) 612/14
DATE: 20160125
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
PIRABURAJ CAMALALINGHAM
Appellant
REASONS FOR JUDGMENT
André J.
Released: January 25, 2016