CITATION: R. v. Pociurko, 2016 ONSC 6691
COURT FILE NO.: SCA(P) 1256/15
DATE: 20161026
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MICHAEL POCIURKO
Defendant/ Appellant
T. Sferruzzi, for the Crown (Respondent)
B. Brody, for the Defendant (Appellant)
HEARD: October 21, 2016
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice Speyer, dated October 9, 2015]
Ricchetti, J.:
THE CHARGE
[1] Mr. Pociurko was charged with a breach of s. 254(5) of the Criminal Code for failing to provide a sample of his breath into an Approved Screening Device (“ASD”).
[2] On October 9, 2015, Mr. Pociurko was convicted by Justice Speyer. Reasons were released on October 8, 2015 (“Reasons”).
[3] On October 21, 2016, at the conclusion of the Defence submission, the appeal was dismissed with reasons to follow. These are those reasons.
THE APPEAL
[4] Mr. Pociurko raises the following issues on appeal:
a) The learned trial judge erred in finding that Mr. Pociurko had the necessary mens rea;
b) The learned trial judge erred in finding that the demand was made forthwith; and
c) The learned trial judge erred in failing to find that Mr. Pociurko’s Charter rights had been breached.
THE FACTS
[5] Shortly after midnight on October 27, 2014, there was a single motor vehicle accident.
[6] When the police officer arrived at 12:11 a.m., Mr. Pociurko was standing approximately three meters from the vehicle. Mrs. Pociurko and a child were approximately 10-15 meters away from the vehicle.
[7] The officer asked Mrs. Pociurko who the driver of the vehicle was. Mrs. Pociurko gave inconsistent answers at times that Mr. Pociurko was driving, at times that she was driving and at times that they were both driving. She eventually said that the accident was the result of a mechanical failure.
[8] The officer then spoke with Mr. Pociurko. Mr. Pociurko admitted to drinking but denied that he was driving.
[9] The officer formed the suspicion that Mr. Pociurko had been drinking alcohol in the previous three hours and had been operating a vehicle. At 12:22 a.m., “within minutes” of forming the suspicion, made a demand for Mr. Pociurko to provide a breath sample into an ASD.
[10] Mr. Pociurko stated he was not the driver and was not going to blow. The officer cautioned Mr. Pociurko about the consequences of refusing to blow. Mr. Pociurko again refused to provide a sample of his breath.
[11] Mr. Pociurko was placed into the rear of the officer’s vehicle. Mr. Pociurko started to make a telephone call on his cell phone. Mr. Pociurko said he was calling his lawyer. The officer took the cell phone away and handcuffed Mr. Pociurko.
[12] Another officer arrived at 12:28 a.m. This officer again made the demand for a sample of Mr. Pociurko’s breath. Mr. Pociurko refused yelling that he was not the driver.
[13] Mr. Pociurko was arrested for refusing to provide a breath sample.
Trial Arguments
[14] At trial, Mr. Pociurko raised two issues:
a) That his Charter rights were violated when the officer refused to permit him to speak with counsel; and
b) That the first officer lacked the reasonable suspicion that Mr. Pociurko had been drinking in the previous three hours.
Justice Speyer’s Reasons
[15] The trial judge concluded that there was no breach of Mr. Pociurko’s Charter rights as the offence of refusing to provide a sample had been completed by the time Mr. Pociurko’s cell phone call was interrupted. See paragraphs 35 through 42.
[16] The trial judge had no difficulty concluding that the first officer had sufficient grounds for his reasonable suspicion. See paragraphs 11 through 22 of the Reasons.
[17] Central to learned trial judge’s reasons was that Mr. Pociurko had equivocally refused to provide a breath sample twice to the first officer. See paragraphs 30 through 32. As a result, the refusal to provide a sample to the second officer became irrelevant.
THE POSITION OF THE Defence ON THE APPEAL
[18] The Defence’s primary submission on the appeal was that Mr. Pociurko’s refusal was not unequivocal as:
a) for the first request, he did not believe he was the driver and therefore, believed that he did not have to provide a breath sample; and
b) for the second request, Mr. Pociurko was not going to comply until he had spoken with counsel and believed that he did not have to provide a breath sample until after he had spoken to counsel.
ANALYSIS
[19] Mr. Pociurko’s lawyer candidly admits that the assertion that Mr. Pociurko was not the driver and Mr. Pociurko’s request to speak with his lawyer do not constitute a reasonable excuse for refusing to provide a breath sample promptly when requested by the officer. However, Mr. Pociurko’s lawyer submitted that Mr. Pociurko might have provided the breath sample if he had known that neither excuse was a basis for refusing to provide the breath sample promptly.
[20] The Defence submits that Mr. Pociurko’s attempt to call his lawyer demonstrates that he did not have a settled intention not to provide a breath sample; he was “confused”; therefore his refusal was essentially “not then”; and therefore his refusal was equivocal.
[21] The difficulty with this circuitous argument is that the breath sample must be provided promptly. Mr. Pociurko made it clear he would not provide his breath sample promptly for two reasons, neither of which are a reasonable excuse in law for non-compliance. Mr. Pociurko’s response was essentially - maybe I will later. That constitutes a refusal since it is not providing a breath sample promptly.
[22] The learned trial judge, found that “On the evidence before me I am satisfied that Mr. Pociurko had a settled intention to not comply with the demand until after he had spoken to his lawyer. His actions and words amount to an unequivocal refusal.” There was ample evidence to support the learned trial judge’s finding of fact that Mr. Pociurko’s refusal was unequivocal.
[23] Contrary to the submission that there was a misapprehension of material evidence – the Defence simply disagrees with the learned trial judge’s finding that the refusal was unequivocal. This was a finding that was clearly open to the learned trial judge on the trial evidence.
[24] The Defence suggests there was confusion on the part of Mr. Pociurko regarding his obligation to provide a breath sample. The evidence does not support such a finding. There was no confusion about the demand for a breath sample and there was no confusion of Mr. Pociurko’s refusal to provide it promptly. The offence was made out prior to the interrupted phone call to the lawyer and prior to the demand by the second officer.
[25] The Defence suggested that the police officer failed to explain to Mr. Pociurko that neither his assertion he was not the driver nor his desire to speak with his lawyer constituted a reasonable excuse to refuse to provide a breath sample promptly. There is no such obligation on the police. The learned trial judge found that the first officer advised Mr. Pociurko of the consequences of refusing to provide a breath sample. Mr. Pociurko took it upon himself to refuse to do so based on a basis which is not a reasonable excuse for the refusal. Essentially, he now blames the police officer for not explaining the law in much greater detail.
[26] The Defence points to R. v. McCann [2015] O.J. No. 1653 (O.C.J.) where the trial judge concluded that the accused did not make an unequivocal refusal when the accused asked to speak with her lawyer first. While I have grave doubts that an accused’s misunderstanding of his or her right to speak with counsel before providing a breath sample promptly is in an equivocal refusal (as so found in McCann), this is an appeal and the learned trial judge’s findings of fact that Mr. Pociurko’s actions and words amounted to an unequivocal refusal are entitled to deference unless there is a palpable and overriding error. There is no palpable and overriding error by the learned trial judge.
[27] The Defence reliance on R. v. Mandryk, [2012] O.J. No. 3349 (S.C.J.) is misplaced. In that case, the accused had provided the breath sample for the ASD. The accused was then arrested for “over 80”. At that point, Mr. Mandryk’s Charter rights were engaged. The law is clear that a request for a breath sample for the ASD without an opportunity to speak with counsel does not create a s. 10 Charter breach. See the authorities referred to in paragraph 35 of the Reasons.
[28] The Defence suggests that the delay of a few minutes (of up to 5 minutes) was not “forthwith”. Whether the demand is made forthwith is a finding of fact. It depends on the circumstances. In this case, there were issues surrounding the identity of the driver of the vehicle given the responses by Mrs. Pociurko and the subsequent assertion by Mr. Pociurko that he was not the driver. These facts no doubt impacted the learned trial judge’s assessment of the timing to formulate the suspicion and what was “forthwith” in these circumstances. The learned trial judge concluded that the request for a breath sample was forthwith. See paragraphs 23 through 28. There was ample evidence to support the trial judge’s finding of this fact.
[29] As I have concluded that there was ample evidence to support the learned trial judge’s finding that the request for a breath sample was made forthwith, there was no Charter right breach.
CONCLUSION
[30] Appeal dismissed.
Ricchetti, J.
Released: October 26, 2016
CITATION: R. v. Pociurko, 2016 ONSC 6691
COURT FILE NO.: SCA(P) 1256/15
DATE: 20161026
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MICHAEL POCIURKO
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice Speyer, dated October 9, 2015]
Ricchetti J.
Released: October 26, 2016