CITATION: R. v. Keedi, 2016 ONSC 5926
COURT FILE NO.: 12-12194
DATE: 2016/09/21
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Pierre Keedi
Appellant
Stephen Donoghue, for the Crown
Pierre Keedi, self-represented
HEARD: August 31 and September 1, 2016
REASONS FOR decision
C.T. Hackland J.
[1] Following a seven day trial in the Ontario Court of Justice, the appellant was convicted by the trial judge of the offence of refusing to comply with a demand made to him by a police officer to provide a breath sample for analysis to be made by means of an approved screening device, contrary to s. 254(5) of the Criminal Code, R.S.C., 1985, c. C-46.
[2] The appellant appeals his conviction on the basis that the trial judge erred in finding that a valid breath demand was made and in failing to conclude that the appellant had a reasonable excuse not to comply.
[3] The police were dispatched on an impaired driver call to a Denny’s restaurant at approximately 5:00 am on August 12, 2012. The appellant was in the restaurant with a female friend, having driven there from a nearby McDonald’s restaurant where he had been involved in an argument of some sort with staff. When approached in the restaurant by Constable Shore, backed up by two other police officers, the appellant engaged in an aggressive verbal exchange with them and at one point demanded to be handcuffed before stepping outside of the restaurant. Constable Shore attempted to persuade the appellant to provide a breath sample and ultimately read the appellant a formal demand, while the appellant was in the back seat of the police car. When the appellant continued to refuse to provide a breath sample, he was charged with the present offence and given an appearance notice identifying the charges.
[4] At the trial, the appellant argued (1) that the police had no lawful basis to ask him to provide a breath sample; (2) that he was never asked to do so, at least in a way that he could understand. On appeal, he repeated these arguments and added the submission that he had a lawful excuse to refuse the demand in that he feared that the police were going to harm him, if he left the restaurant.
[5] The trial judge made adverse findings about the appellant’s credibility which appear to be demonstrably justified by the evidentiary record. The trial judge stated at page 8 of his reasons:
Mr. Keedi says, there was no demand and no refusal. He was an extremely poor witness. He was not responsive. He was not logical, he was rambling. He felt the police who approached him in the Denny’s, were likely there planning to kill him. He seems obsessed with theories of conspiracy
and at page 9-10
The evidence of Mr. Keedi where it does not coincide with that of Constable Shore, must be completely and totally rejected. It is simply not capable of belief. It is not capable of raising a reasonable doubt on the totality of the evidence.
[6] The case law is clear that the trial judge is in the best position to judge credibility and his findings in that regard are entitled to significant deference, see R. v. W.(R) (1992), 1992 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.).
[7] The trial judge accepted the evidence of Constable Shore that he detected an odour of alcohol on the appellant’s breath, his eyes were red and glassy and his speech was somewhat laboured. This is a sufficient evidentiary basis to constitute a “reasonable suspicion” that the appellant had consumed alcohol, so as to justify a demand to provide a breath sample into a roadside screening device. Another officer on the scene, Sgt. Richie, also testified that after the appellant was given an appearance notice, he smelled alcohol on the appellant’s breath. The trial judge was entitled to accept this evidence.
[8] The appellant argues, in the alternative, that he was not asked to provide a breath sample or at least not in sufficiently clear terms for him to understand. He says that he only came to understand what had been asked of him when he telephoned police some hours after the incident to discuss the situation. However, this is not borne out by the appellant’s own trial evidence, including the following:
…and it took me a while after I got off the phone with her to realize did they make a request for me to take breathalyzer, and then in my mind I started thinking about it at home and I said, “Oh my God, they did, he did ask me to take a breathalyzer.” I thought about it at home, and then in my mind at home I didn’t know the procedures. Now I know I don’t have to say all this but I’m gonna tell you the truth, Mr. Horricks. When I was at home I said to myself when he said to me, “Come outside, talk to us, maybe take a breathalyzer and this could all be over in five to 10 minutes.” I thought that that was the legal process. He never read me RTC cautions, he never read me a roadside screening device, I never knew anything about it, but after the lady had explained it to me and after I’d looked at the disclosure, that was the only time those words came – came out of my mouth or came into my mind was from this disclosure. That was the only time those words came out of my – came into my mind, it was from the disclosure. On the scene, he never breathed those words to me. (underlining added)
[9] The trial judge concluded that the appellant deliberately refused the breathalyzer demand and he did so because he believed his rights were being violated. This was in fact what the appellant said in a telephone message left with the police, later in the day.
[10] The trial judge’s conclusion that a demand to provide a breath sample had been made is unassailable and admitted in the appellant’s own evidence.
[11] The appellant’s argument, advanced on appeal and which arguably can be discerned from his trial evidence, is that he had a reasonable excuse not to provide a sample of his breath. The reason was his state of mind during his interaction with the police. ie. (1) he was concerned the police were wanting him to leave the restaurant so they could assault or beat him and (2) he felt the police had no right to approach him or to ask for a breath sample. He says essentially that in these circumstances, the demand for a breath sample did not register with him or he was not able to understand his obligations. He admits to being extremely agitated in his interaction with the police
[12] The trial judge did not address the issue of whether the appellant had an excuse for refusing the demand to provide a breath sample, likely because this argument was not advanced at trial with any clarity by the appellant. Indeed, the appellant’s basic position at trial was that he was simply not asked to provide a breath sample. This position was rejected by the trial judge as a matter of credibility.
[13] In my view, had the trial judge been directed to the argument as to the appellant’s reasonable excuse, he would have rejected it as it lacks any air of reality. The trial judge accepted Constable Shore’s evidence that he read the breath demand printed in his notebook to the appellant when the appellant was seated in the rear seat of the police car. If the breath demand failed to register with the appellant, it was because the appellant was refusing to listen. The trial evidence is clear that the appellant was in a rage, berating the police officers, calling them terrorists and making threats to report them. He had what the trial judge referred to as the “absurd” belief the police were there to assault him. An excuse for not providing a breath sample must be objectively reasonable. Moreover, it cannot be based on an erroneous view of the law ie. his belief that the police had no right to ask him to provide a breath sample.
[14] The appellant also argues that he was denied a fair trial because the trial judge refused to allow him to call witnesses from another restaurant where he had been earlier in the evening, apparently to show that employees there were conspiring with the police. The trial judge appropriately ruled that this could have no relevance to the issues in the case.
[15] In summary, the trial judge’s assessment of the evidence and in particular his findings on credibility are demonstrably reasonable. Constable Shore had a “reasonable suspicion” sufficient to justify the demand he made of the appellant to provide a sample of his breath. The appellant failed to establish any objectively reasonable basis for his refusal to provide a sample of his breath.
[16] I would dismiss this appeal. The appellant’s drivers licence suspension is now re-instated.
Mr. Justice C.T. Hackland
Released: September 21, 2016
CITATION: R. v. Keedi, 2016 ONSC 5926
COURT FILE NO.: 12-12194
DATE: 2016/09/21
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
Pierre Keedi
Appellant
REASONS FOR JUDGMENT
Hackland J.
Released: September 21, 2016