CITATION: R v. Doyle, 2017 ONSC 1826

COURT FILE NO.: 277/14

DATE: 20170327

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

JELENA VLACIC, for the Respondent/Crown

Respondent

• and -

GRAHAM DOYLE

EUGENE BHATTACHARYA, for the Appellant

Appellant

REASONS FOR JUDGMENT

[On Appeal from the Judgment of The Honourable D. Mcleod,

Dated October 27, 2015]

DURNO, J.

[1] The appellant was charged with refusing to comply with a demand made to him by Robert Neely, a peace officer, under s. 254(5) of the Criminal Code to provide forthwith a sample of his breath as in the opinion of Constable Robert Neely, was necessary to enable a proper analysis of his breath to be made by means of an approved screening device, contrary to s. 254(5) of the Criminal Code of Canada.

[2] The trial evidence showed that Constable Neely made the demand and Constable Moore formed the opinion the eleven breath samples the appellant provided were unsuitable.

[3] The appellant testified and gave several possible explanations for why he was unable to provide a suitable sample despite trying to do so. He was cross-examined on his failure to tell either officer the explanations he proffered at trial.

[4] At trial, no issue was raised with the wording of the information. Defence counsel (not Mr. Bhattacharya) raised two issues: whether Constable Neely’s suspicion the appellant had alcohol in his body was reasonable when he made the demand and whether the Crown had established the appellant intentionally refused to provide a breath sample.

[5] In convicting the appellant, the trial judge found that the appellant had not told the arresting officer that he had medical issues that could explain him providing unsuitable samples.

[6] In appealing his conviction, the appellant raises the two issues relied upon at trial, submitting that the trial judge erred in reaching the conclusions he did. In addition, the appellant submits the trial judge erred:

i) in convicting the appellant when he was charged with not providing a sample that was unsuitable in Constable Neely’s opinion when Constable Moore formed that opinion, and

ii) in relying upon the appellant’s roadside silence in rejecting his trial.

[7] For the following reasons, the appeal is allowed, the conviction quashed and a new trial ordered.

The Trial

[8] The appellant drove his SUV out of the parking lot of a bar and was stopped by officers from the Peel Regional Police. The appellant was alone in the vehicle. Constables Neely and Moore approached the driver’s window where Constable Neely told the appellant he was being stopped to check his sobriety. When asked, the appellant said that he had nothing to drink. While talking to the appellant, the officers smelled the odour of alcohol coming from the vicinity of the driver’s window. At 1:36 a.m. Constable Neely made a demand that the appellant provide a breath sample into an Approved Screening Device (ASD). The appellant was put into the back seat of the police cruiser for the ASD breath sample to be provided. While the appellant was in the back of the cruiser, Constable Neely smelled alcohol coming from the back seat but did not specify what time he made this observation.

[9] Between the demand and the administering of the test, Constable Crouse arrived, checked the appellant’s vehicle and turned over five beer bottles he had found on the driver’s side floor to Constable Neely. Five were empty with just a bit of liquid in them and one was full.

[10] Constable Moore administered the test in the back seat of the police cruiser. Before Constable Moore administered the test, the appellant told her that he had been at the Frigate and Firkin bar and had used mouthwash provided by the bar.

[11] Constable Moore testified the appellant did not provide a “slow steady stream of breath” as she had directed him to do on the first sample. He took small, short breathes in between. The result was an error message on the ASD which said “Error Blow Interrupted.” She reset the ASD. On the second attempt the appellant blew into the ASD and took a breath in the middle with the same error message appearing. The ASD was reset and on the third attempt he blew extremely lightly with no audible sound registering on the ASD. He took another breath and the same error message appeared. The same error message appeared during the fourth through eleventh attempts, as the appellant took mid sample breaths.

[12] At 1:52 a.m., Constable Moore concluded after eleven failed attempts that the appellant was intentionally failing to provide a suitable breath sample and arrested the appellant.

[13] In rejecting the appellant’s evidence and convicting, the trial judge relied upon the appellant’s inability to recall whether he told the officers the explanations for his inability to provide a suitable breath sample and concluded that the explanations were not given to the constables.

[14] His Honour imposed a $1200 fine and a 15 month driving prohibition.

The Grounds of Appeal

Did the trial judge err in finding Constable Neely had a reasonable suspicion the appellant had alcohol in his body?

The Positions of the Parties

[15] The appellant submits the trial judge erred in finding Constable Neely had the requisite reasonable suspicion by failing to consider the objective circumstances. In particular, he contends His Honour erred when he found that the Frigate and Firkin was a bar known to police as a location patrons left under the influence of alcohol and was routinely subject to surveillance for sobriety checks. The only evidence on this issue was Constable Moore’s hearsay evidence of what Constable Neely told the appellant. Constable Neely never testified about the bar’s reputation, nor did he say that he gave the appellant its reputation as a ground for stopping him.

[16] The appellant also submits the trial judge erred in finding Constable Neely’s evidence that he smelled alcohol in the vicinity of the driver’s door was consistent with the smell coming from the appellant’s breath. There was no evidence either officer smelled alcohol on the appellant’s breath. The trial judge’s finding that it was a common sense approach that the odour was only noticed when the appellant was speaking was unreasonable considering neither officer said they only smelled the alcohol when the appellant spoke.

[17] The appellant submits the trial judge erred in failing to consider the “constellation of objectively discernible facts” with regards to whether Constable Neely had a reasonable suspicion the appellant was involved in some type of criminal activity. These include that there was 1) no evidence of the smell of alcohol coming from the appellant’s breath, 2) no symptoms of impairment, 3) no evidence Neely was aware of the bar’s notoriety, 4) the appellant’s statement that he had not consumed any alcohol at the bar, and 5) no evidence of improper driving.

[18] Finally, when Constable Neely learned that there were open beer bottles in the appellant’s vehicle, the appellant submits he had a duty to undertake further investigation to re-assess his suspicion that the odour was coming from the appellant. While conceding the Supreme Court of Canada has held an officer must consider all factors known to him or her and there is no obligation to undertake further investigations to seek out exculpatory factors or rule out innocent explanations, the appellant submits that when the officer became aware of a possible innocent explanation he should have reassessed his grounds.

[19] The Crown submits the trial judge made no errors in finding Constable Neely had a reasonable suspicion. In his reasons, His Honour relied upon the appellant leaving a local bar and the odour of alcohol he attributed to the appellant. In addition, in regards to the objective criteria, while not relied upon by the trial judge, the factors would include the time of the stop, the appellant’s failure to come to an immediate stop when the officer activated his roof lights, and the appellant’s denial of alcohol consumption.

[20] With regards to the bar’s notoriety, the respondent notes that His Honour referred to the reputation in his initial summary of the evidence, not in the section dealing with whether the officer had a reasonable suspicion. Accordingly, the trial judge did not rely on the bar’s reputation in finding that objectively there was a reasonable suspicion.

[21] As regards the finding of the beer bottles, the Crown submits that there is no requirement for the officer to reassess his or her grounds once the demand is made. In addition, had the officer been required to reconsidered his grounds, he would have included in that assessment, that when the appellant was alone in the back seat of the police cruiser, there was a smell of alcohol that could not be attributable to beer bottles.

[22] Finally, as regards the finding the odour of alcohol came from the appellant’s breath, the Crown submits that the evidence was open to that inference because it was while the officer was speaking to the appellant that he smelled the odour in the vicinity of the driver’s window.

The Trial Judge’s Reasons

[23] His Honour found the officer’s suspicions were reasonable as follows:

The objective circumstances that this court believes to be relevant are as follows: (a) Mr. Doyle was stopped after leaving the Frigate and Firkin, a local pub; (b) when P/C Neely approached his vehicle, P/C Neely testified to smelling an odour of alcohol when speaking to Mr. Doyle.

Defence contends that the testimony of P/C Neely is vague in that it does not in actuality describe whether the smell of alcohol is emanating from – where the smell is emanating from. The suggestion is that P/C Neely’s observations with respect to alcohol could also be a smell emanating from the vehicle in light of the open beer cans.

In my estimation, the evidence of P/C Neely is consistent with the suggestion that he smelled alcohol on the breath of Mr. Doyle. When P/C Neely gives his evidence, he only smells alcohol when Mr. Doyle is speaking. He also gave that the smell was coming from the window.

This court is of the belief that although the exact words “alcohol was coming from his mouth” were not articulated, does not mean that this court is left in doubt as to where the alcohol was coming from. On a common sense approach, the smell was only noticed when Mr. Doyle was speaking. The location presumably of where the conversation is being had between Mr. Doyle and P/C Neely would be beside the window.

The words “reasonable suspicion” are not some magic incantation or formula which must be uttered precisely by the witness. It is quite sufficient if the testimony found credible, taken as a whole, establishes that the witness had the minimal reasonable suspicion.” R. v. Long, [1999] O.J. No. 364^1, R. v. Harris, [2007] O.J. No. 675^2.

The Law

Unreasonable Verdicts

[24] While not argued on the basis of unreasonable verdicts, the appellant’s first two grounds of appeal are akin to that ground of appeal. To place the arguments and analyses in context, it may assist to examine the law in regards to those areas at the outset.

[25] The test for an unreasonable verdict was set out by Doherty J.A. in R. v. Willock (2006), 2006 CanLII 20679 (ON CA), 210 C.C.C. (3d) 60 as follows:

[22] Section 686(1)(a)(i) of the Criminal Code mandates appellate review of the sufficiency of the evidence said to justify the conviction. The review is a limited one. An appellate court must determine whether a properly instructed trier of fact, acting judicially, that is reasonably, could have convicted the accused on the totality of the evidence. In performing this task, the appellate court must view the entirety of the evidence through “the lens of judicial experience”: see R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at para. 40 (S.C.C.).

[23] In exercising its power to review the reasonableness of the verdict, the appellate court cannot simply substitute its view as to the appropriate verdict. Nor is it sufficient for the appellate court to have a “lurking doubt” or some other vague discomfort as to the correctness of the verdict. As Arbour J. said in Biniaris at para. 42, in describing the function of appellate review for reasonableness:

To the extent that it has a subjective component, it is the subjective assessment of an assessor with judicial training and experience that must be brought to bear on the exercise of reviewing the evidence upon which an allegedly unreasonable conviction rests. That, in turn, requires the reviewing judge to import his or her knowledge of the law and the expertise of the courts, gained through the judicial process over the years, not simply his or her own personal experience and insight…

[24] Where the verdict is reached by a judge alone, the reasons of the trial judge can provide valuable insight into the reasonableness of the verdict. However, errors in the reasons are not a pre-condition to a finding that a verdict is unreasonable, and errors do not compel a finding that the verdict is unreasonable: R. v. Biniaris, supra, at para. 37.

[26] The question is not whether a conviction was the only reasonable verdict, but whether it was a reasonable verdict: R. v. Portillo (2003), 2003 CanLII 5709 (ON CA), 176 C.C.C. (3d) 467 (Ont. C.A.), at para. 51:

[27] As the trial judge made findings of credibility, in seeking to overturn a conviction based on credibility findings and inferences, the following law applies from R. v. Clark (2005), 2005 SCC 2, 193 C.C.C. (3d) 289 (S.C.C.) at para. 9:

... Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm: [citations omitted]

[28] The Court of Appeal for Ontario summarized the law in regards to palpable and overriding error in R. v. D.T., 2014 ONCA 44, at para. 80 as follows:

An appellate court may only intervene in a trial judge's credibility analysis if that analysis is the subject of a palpable and overriding error. In Waxman v. Waxman [citation omitted] this court described the palpable and overriding error standard:

The "palpable and overriding" standard addresses both the nature of the factual error and its impact on the result. A "palpable" error is one that is obvious, plain to see or clear: [citation omitted]. Examples of "palpable" factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An "overriding" error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a "palpable" error does not automatically mean that the error is also "overriding". The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: [citation omitted].

Reasonable Suspicion

[29] In R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, Binnie J. wrote:

The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief beyond a reasonable doubt upon reasonable and probable grounds.

[30] Reasonable suspicion is a lower standard than reasonable and probable grounds because it engages the reasonable possibility, rather than probability of crime. Because the standard deals with possibilities, there will be cases where the police will suspect that innocent people are involved in criminal conduct. However, the suspicion held by the police cannot be so broad that it transcends to the level of generalized suspicion – suspicion that attaches to a particular location or activity instead of a specific person: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 26-28.

[31] In R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, the Supreme Court of Canada held that a reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is so because a reasonable suspicion addresses the possibility of uncovering criminality, and not a probability of doing so: at para. 32. All the circumstances, favourable and unfavourable ones must be considered. Exculpatory, neutral and equivocal information cannot be eliminated from the determination: at para. 33. However, the obligation to consider all factors does not impose a duty to undertake further investigation to seek out exculpatory factors or to rule out possible innocent explanations: at para. 34.

[32] The odour of alcohol coming from inside a vehicle has been held to support a reasonable suspicion the driver has alcohol in his or her body: R. v. Mason, [2013] O.J. No. 28822 (C.J.); R. v. Muller, 2016 ONCJ 275.

[33] Duncan J. put it this way in Mason,

9 By contrast, the smell of alcohol is indicative of the presence -- and therefore possible consumption - and therefore presence in the body -- of alcohol. The odour of alcohol on the driver's breath is sufficient to support the required suspicion: R. v. Lindsay (1999), 1999 CanLII 4301 (ON CA), 134 C.C.C. (3d) 159 (Ont C.A.). The odour of alcohol coming from within a vehicle with the driver being the sole occupant is also sufficient: R. v. Pozniak infra; R. v. Kokkinakis [1999] O.J. No. 1326 (C.J.).

[34] His Honour then dealt with odours from vehicles with a driver and one or more passengers and continued:

11 But the Court of Appeal in R. v. Bush 2010 ONCA 554, [2010] O.J. No. 3453 made it clear that this reasoning is not appropriate in the context of assessing reasonable and probable grounds for an Intoxilyzer demand. There the summary conviction appeal court judge, [2008] O.J. No. 5947, reversed the trial judge's finding, [2006] O.J. No. 5828, that grounds existed by reasoning that many of the indicia relied upon by the trial judge were also consistent with the effects of the accident in which the defendant had been involved. Therefore, the lower Court reasoned, those indicia should have been ignored in the assessment of grounds because there could be other explanations. (para 50) On appeal by the Crown to the Court of Appeal, the conviction was restored, the Court holding:

... that there might be another explanation for some of the factors the officer properly took into account in forming his opinion of impairment to drive did not eliminate the indicia or render them unreliable.

12 The Bush decision must, a fortiori apply to the lower standard of reasonable suspicion. Accordingly, it is conclusive authority against the reasoning applied in the cases cited above, such as Rodrigues and against the submission urged by counsel for the defendant in this case. That a smell of alcohol coming from a confined space that includes the driver could be attributable to the passenger (or spilled alcohol, or an open bottle) does not deprive it of its ability to support a suspicion related to the driver. If it could be the driver or it could be the passenger, in my view there is a reasonable suspicion in respect of each of them.

13 To require the elimination of other possibilities in my view is to misconstrue the meaning of "suspicion" and to effectively equate it with a standard of "reasonable grounds to believe" -- or higher. In fact it approaches the old rule in Hodges case, applicable to proof beyond a reasonable doubt on circumstantial evidence -- consistent with guilt and inconsistent with any other rational alternative conclusion. [emphasis in original, footnotes omitted]

Analysis

The Reputation of the Frigate and Firkin

[35] First, examining the evidence in relation to the bar’s reputation, Constable Neely, the officer who formed the “reasonable suspicion” and made the demand, agreed in cross-examination that one of the reasons he stopped the appellant was that he was pulling out of the parking lot of “this particular bar,” “he’s parked in this parking lot of dispensary regarding alcohol,” it was 1:25 in the morning and he could be impaired.

[36] Constable Moore gave the direct evidence about the reputation of the Frigate and Firkin. When asked what reasons Constable Neely told the appellant for stopping him, Constable Moore gave the following non-responsive answer:

[a]s most people that work at 22 know, the Frigate and Firkin is actually a common problem area for us with a lot of LLA drinking and driving offences. I mean from my experience and I would assume also Constable Neely’s, the majority, not all, when people leaving this establishment have consumed some degree of alcohol.” [emphasis added]

[37] The appellant’s assertion that the only evidence on this point was “hearsay evidence of comments allegedly made by Constable Neely to the Appellant that were observed by Constable Moore has to be viewed in the context of Constable Neely’s agreement with counsel’s suggestion that one of the reasons he stopped the appellant was that he was leaving “this bar.” Moore never said that she heard Neely tell the appellant of the bar’s reputation. Neely never said that he told the appellant that the bar’s reputation was one of the reasons he stopped him. The appellant’s assertion that there was an inconsistency between what the officer said the appellant was told regarding the reasons for his arrest is not borne out by the evidence. While Neely did not go into the detail Moore did, he agreed that one of the reasons he stopped the appellant was that he was coming from “this particular bar.”

[38] As regards the trial judge’s use of the bar’s reputation, when assessing whether the officer had a reasonable suspicion, His Honour only said that the appellant had left a local bar. He did not mention the bar’s reputation. The police are permitted to sit outside bars and stop patrons as they drive away, regardless of the bar’s reputation or lack of reputation: R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621; R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257; R. v. Farquharson (2014), 2014 ONSC 6641, 123 O.R. (3rd) 454 (S.C.J.) Nothing more is required to permit the stop.

The Source of the Odour of Alcohol

[39] With respect to the odour of alcohol coming from the vicinity of the driver’s window when the officer was talking to the appellant and not from his mouth, I adopt the reasoning of Duncan J. above. That the appellant was the only person in the vehicle provided the reasonable suspicion that the appellant had alcohol in his body. That there could be another explanation for the odour of alcohol coming from the window did not detract from his reasonable suspicion.

The Open Beer Bottles and the Duty to Reconsider the Reasonable Suspicion

[40] First, the appellant’s submission is contrary to those of trial counsel. Not only was the argument not presented at trial, it was rejected by trial counsel and there is no allegation of ineffective assistance of trial counsel. While the Reasons for Judgment refer to the appellant suggesting there was an alternative explanation for the odour, it appears trial counsel raised the beer bottles in regards to the appellant’s intentions when doing the ASD testing – that there was no reason for him to feign compliance since he had nothing to drink and there was another explanation for the odour.

[41] Trial counsel did not argue that the officer was required to reassess his grounds. Indeed, in submission he twice said that the finding of the bottles was after the demand so it could not be taken into account. He said, “What happens after the demand, with the greatest respect, does not affect the demand” and that the subsequent explanation for the odour of alcohol was not necessary for the demand. (at p. 50, l. 19-20 and p. 52, l. 5-10)

[42] In these circumstances, it is questionable whether this ground should be considered. However, to complete the record should my inclination not to deal with the ground be wrong, I will consider the relevance of the finding of the beer bottles.

[43] I am not persuaded the officer had a duty to reconsider his reasonable suspicion when he learned of and saw the beer bottles. The sequence of events is far from clear as to the timing of Constable Neely learning of or seeing the bottles. It was sometime after the demand and before the arrest. It appears to have been after the appellant was taken to the back seat of the cruiser and left with Constable Moore. It is also not readily apparent when Constable Neely smelled the alcohol from the back seat of the cruiser so whether the beer bottles finding would have to have been considered along with the odour in the cruiser is uncertain on this record.

[44] In any event, regardless of the timing, at its highest, there would have been another explanation for the odour. The Court of Appeal has held that the presence of an innocent explanation does not eliminate the reasonable suspicion: R. v. Lindsay (1999), 1999 CanLII 4301 (ON CA), 134 C.C.C. (3d) 159 (Ont.C.A.). While the trial judge made a finding of fact beyond a reasonable doubt on the issue, it was not necessary for him to make a finding on the criminal standard as an element of the offence that the odour came from the appellant’s breath. The essential finding was that the officer had a reasonable suspicion the appellant had alcohol in his body. That he was wrong in that conclusion or that the odour actually came from the beer bottles, does not mean the officer lacked a reasonable suspicion the appellant had alcohol in his body.

The Constellation of Factors Contrary to a Reasonable Suspicion

[45] Examining the five factors the appellant submits should have resulted in a finding the officer’s suspicion was not objectively reasonable, in determining whether an officer had reasonable and probable grounds to make an Intoxilyzer demand “does not involve an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. That some indicia that are often found in impaired drivers are not present does not necessarily undermine a finding of reasonable and probable grounds based upon observed indicia and information known to the officer:” Bush, at para. 56. The same type of analysis applies in determining whether an officer’s suspicion was reasonable.

[46] That the appellant exhibited no indicia of impairment and that there was no bad driving were part of the constellation of factors to consider. However, they were not determinative. That the appellant said he had nothing to drink, while a factor to consider, was far from decisive. While an officer is required to consider a driver’s statement that he or she had not consumed alcohol or had only consumed one or two drinks, an officer is not required to accept what a driver says with regards to consumption. There was evidence from which it could be inferred that Constable Neely knew of the bar’s reputation based upon his own evidence. In addition, the trial judge did not rely upon the bar’s notoriety.

[47] Finally, with regards to the absence of alcohol coming from the appellant’s breath, the trial judge made a finding of fact beyond a reasonable doubt that was the source of the alcohol smell. While not required to do so, that finding detracts from the appellant’s assertion that the absence of alcohol on his breath along with the other considerations noted should have resulted in a finding the suspicion was unreasonable. In any event, the authorities noted earlier support the position that the odour of alcohol coming from inside a vehicle with only the driver inside provides a reasonable suspicion in itself.

[48] The trial judge did not err in finding the officer had the requisite grounds to make the ASD demand.

Did the trial judge err in finding the appellant intentionally refused to provide a proper breath sample?

The Positions of the Parties

[49] The appellant submits the trial judge erred in finding he intentionally refused to provide a suitable sample by failing to properly assess his credibility, by improperly applying R. v. W.(D.), [1991], 1 S.C.R. 745, and by failing to consider that there was no evidence the officers were trained in the use of the ASD.

[50] The Crown responds that His Honour made appropriate findings of fact that were amply supported by the evidence, properly applied W.(D.), considered all of the evidence and was not required to find the officers were properly trained. The latter issue was never raised at trial.

The Law

[51] Absent palpable and overriding error, trial judge’s credibility findings are entitled to deference. Whether a trial judge has properly applied W.(D.) depends on an assessment of all of the reasons and not whether the three step approach was cited, and if cited, whether it was stated correctly: R. v. Cyr, 2012 ONCA 919; R. v. D.T., 2014 ONCA 44. It is the application of W.(D.) that is important, not its recitation. That a trial judge does not mention a piece of evidence or draw the inference one party wanted drawn does not mean he or she ignored the evidence: R. v. McGuffie, 2016 ONCA 365, at para. 71.

Analysis

[52] There was ample evidence upon which the trial judge could conclude the appellant intentionally refused to provide a suitable breath sample. Constable Moore set out in detail what occurred on each attempt, including the appellant blowing extremely lightly and taking a breath in the middle of the sample instead of providing one long steady breath. On one attempt, the blow was so light that the audible signal was not activated. Subject to the arguments addressed later regarding the trial judge’s rejection of the appellant’s explanations for not providing a suitable sample, the finding that the appellant deliberately refused to provide a suitable sample was amply supported by the evidence.

[53] As regards the appellant’s argument that the trial judge erred in his assessment of the appellant’s evidence by failing to properly apply the directions in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, I disagree. Subject to the right to silence issue , His Honour addressed the appellant’s credibility under the heading whether the appellant’s compliance with the demand was intentional.

[54] As regards the officers’ qualifications, defence counsel at trial (not Mr. Bhattacharya) conceded that the type of machine, the testing of the ASD, and the calibration were not in dispute. He did not concede the officer was qualified to administer the ASD.

[55] However, the Intoxilyzer demand section (s. 254(3)(a)) requires “… samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood.” Where it is an ASD sample, as here, s. 254(2) requires the driver to “provide forthwith a sample of breath that, in the peace officer’s opinion will enable a proper analysis to be made by means of an approved screening device …” (emphasis added)

[56] There is no requirement that the Crown lead evidence that the officer had any specific qualifications for using an ASD: R. v. Gutierrez (2001), 21 M.V.R. (4th) 85 (Ont.S.C.); R. v. Fillier [1995], N.J. No. 260 (Nfld.S.C.); R. v. Hibsman (1988), 86 N.S.R. (3d) 143 (Cty. Ct.)[^3] [^4]

Did the trial judge improperly use the appellant’s investigative silence to make adverse credibility findings against the appellant?

The Evidence

[57] Constable Moore testified in-chief that the appellant gave no reason why he was having a hard time providing a suitable sample. When asked if the appellant said anything when he told him what he had done wrong on the first attempt, Constable Moore said he did not recall, he did not write anything down, and it had been a long time since the arrest. When asked if the appellant said anything after the third and fifth attempts, the officer said he did not write anything down. However, when asked later if the appellant gave him any reason why he was “having a hard time,” the officer said that he did not.

[58] In-chief, the appellant was asked whether he had any explanation why the ASD “registered a fail or error?” He replied:

I had been trying to quit smoking and I, you know, I’d had had a, a cold previous to that. Possibly, I, I couldn’t provide a long enough breath or I – my lungs were capacity wasn’t long enough. I don’t know. It was – I was trying my best but I have had bronchial infections previously and I am- have medical history of being short of breath.

[59] In cross-examination, he said that he had quit smoking earlier in the week of his arrest but had one cigarette at the bar and was still smoking it when stopped. He had a cold the Monday before his arrest and was getting over it. When he got a chest cold, it would be like bronchitis. However, he testified that he did not have a bronchial infection when arrested. He had lung tests in the past and was told that he had the lung capacity of a 95-year-old person. The appellant had not brought a letter with regards to those tests.

[60] Further in cross-examination, he was asked why during the eleven attempts to provide a proper sample he had not told the officers about trying to quit smoking, having a cold or “anything like that.” He replied:

Like I said, I may have. I, I can’t recall exactly if we did have that conversation or not but I did tell her that I had had a candy but like a lozenger [sic]

[61] Later, he was asked if he would agree that it would have been really easy to tell the officer, “Hey, listen, this is why I’m having a hard time, I just had a cold. I’m getting over it.” He responded:

I, I recall her telling her, “I’m not refusing” but I didn’t – don’t recall her – telling her that I, I was getting over a cold, no.”

[62] In her submissions, Crown Counsel (not Ms. Vlacic), argued:

… at no time did he offer the explanations that have been brought up before you today, with regard to a cold, bronchitis, quitting smoking, none of which are supported by any medical evidence.

[63] In his Reasons for Judgment the trial judge found:

Mr. Doyle also quite readily mentions the various ailments that plaque his ability to breathe into the ASD yet on the night in question, he is unsure as to whether he said anything of this sort to the officers who were present. This fact, this court believes is salient as to the credibility of Mr. Doyle. Such information would have been of import to the officers on the day of the investigation. Further, the fact that the officers have no recollection of such conversation and Mr. Doyle’s memory being less than accurate on this point leads this court to believe that such conversation did not occur.

The Positions of the Parties

[64] The appellant submits that the trial judge erred in improperly using the appellant’s silence in assessing his credibility.

[65] The Crown agrees that it is not open to a trier of fact to reject the evidence of an accused on the basis that he or she remained silent at the investigative stage of the proceedings. However, Ms. Vlacic submits the Court of Appeal in R. v. Rivera (2011), 2011 ONCA 225, 104 O.R. (3d) 561, did not explicitly consider that where an accused is charged with refusing to provide an ASD sample, their roadside silence is not, at times, being assessed in order to incriminate with respect to the offence. In R. v. Ferron (1989), 1989 CanLII 2856 (BC CA), 49 C.C.C. (3d) 432 (B.C.C.A.) and R. v. Top (1989), 1989 ABCA 98, 95 A.R. 195 (C.A.), the appellants’ silence was assessed in the specific context of deciding whether they had established a reasonable excuse for failing to provide a breath sample.

[66] The Crown contends that a reasonable excuse is not an essential element the Crown is required to establish. The actus reus consists of a proper demand and a refusal or failure to comply with that demand. The ‘defence’ of reasonable excuse is not a denial of any essential element of the offences. Rather, it refers to matters which stand outside the requirements the Crown must establish. The ‘defence’ only arises after the Crown has established a valid demand and a failure or refusal to comply with the demand.

[67] Further, the Crown relies upon the judgment in R. v. Rigillo, [2012] O.J. No. 1660 (S.C.J.) where Code J., sitting on a Summary Conviction Appeal, held that the trial judge’s comment about the accused not testifying on a s. 7 application was not improper in light of R. v. Noble (1997), 1997 CanLII 388 (SCC), 114 C.C.C. (3d) 385.

[68] Ms. Vlacic submits that there are three interpretations of the trial judge’s reasons in this area:

1. the trial judge’s adverse credibility finding was based upon the appellant’s lack of a clear recollection “on such important evidence,” that in part led to the adverse credibility finding;

2. because the appellant for the first time at trial raised several excuses for failing to provide a suitable sample, the trial judge found he had not discharged his evidentiary burden of showing a reasonable excuse, or

3. the appellant testified that he was doing his best to provide a suitable sample but the trial judge found his evidence was not credible, in part, because he was silent at the roadside yet raised “a slew of reasons for not providing a sample of breath.”

[69] The Crown submits that upon a “clear and plain reading of the trial judge’s reasons” it is evident that His Honour made an adverse credibility finding because of the appellant’s lack of recollection of his roadside silence and not because of his roadside silence. Relying upon the endorsement in R. v. Norman, [2015] O.J. No. 6470 (S.C.J.), the respondent submits that it is entirely proper to rely upon an accused’s “sparseness of trial testimony” with regards to roadside utterances to reject his or her trial evidence.

[70] Ms. Vlacic submits that an accused ought to make timely disclosure of excuses to permit the police to address the issue, citing Ferron and Top. When the appellant’s silence is used in assessing the credibility of his or her reasonable excuse, it is not used to prove guilt. Accordingly, to do so does not result in a violation of s. 7 of the Charter.

The Law

[71] The uses and misuses of an accused’s silence after being detained have led to a series of appellate judgments from which some general guidelines emerge. They reflect the importance of focusing on the facts of the case, the purpose for which the evidence was led and most importantly, the use to which the evidence was put.

[72] Three Court of Appeal cases provide the starting point for the analysis. In Rivera, Ms. Rivera was stopped by a police officer conducting a R.I.D.E. program. After 21 attempts to provide a suitable breath sample, she was charged with refusing to do so. At the roadside, Ms. Rivers told the officer twice that she had had three glasses of wine, later that she had one glass of wine and still later, that she only had one beer.

[73] At trial, the officer testified that at no time did Ms. Rivera say she was suffering from a medical problem, nor did she say why she would be unable to provide a proper sample.

[74] Ms. Rivera testified that chest pains prevented her from providing a proper sample. She was experiencing a panic attack and was concerned that she might faint or have a heart attack. Ms. Rivera called expert evidence that she suffered from panic attacks and could have been suffering from one the night of her arrest.

[75] In rejecting Ms. Rivera’s evidence and convicting, the trial judge held that she had “rationally and intentionally” told lies to the officer regarding her employment and was inconsistent with regards to how much alcohol she had consumed. Her roadside lies undermined her trial credibility. Her comments to the officer reflected rational thought and belied a severe panic attack.

[76] Further, the trial judge held:

Ms. Rivera did not indicate any illnesses or medical difficulties to the police officer, nor did she indicate any reason(s) why she could not provide a sample ... Ms. Rivera did not tell the officer that she was having a panic attack at any time ... I further accept Constable Tai's evidence that there were no outward symptoms observable of physical distress nor did Ms. Rivera complain of any medical problem throughout his dealings with her ... She never showed any overt signs of anxiety or panic attack, nor did she make any complaint to the officer.

[77] Ms. Rivera’s Summary Conviction Appeal was dismissed. The Court of Appeal quashed the conviction and ordered a new trial, finding the trial judge erred by relying upon the appellant’s roadside statements and by misusing the appellant’s roadside silence regarding medical issues. The Court noted the limited use that could be made of roadside statements as follows:

106 Of course, there is no constitutional violation in police obtaining statements from motorists without having been advised of their s. 10(b) rights in the roadside stop context, but that is only because roadside stops have been found to be constitutionally permissible under s. 1 of the Charter. Critical to the finding that roadside testing is not unconstitutional is the limited use to which evidence obtained during the roadside stop may be put, as explained in Elias, at para. 58: "the evidence obtained as a result of the motorist's participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer's suspicion that the driver might be impaired. It cannot be used as direct evidence to incriminate the driver".

[78] In Rivera, the Crown presented arguments that were similar to those raised in this appeal in the Crown’s Additional Submissions – that the right to silence jurisprudence does not apply because the onus was on the appellant to establish a reasonable excuse for her failure to provide a sample.

[79] The Court held:

113 The authorities cited by the Crown do not stand for the principle the Crown asks this court to accept. None of these authorities address whether it is open to the court to use the accused's silence on the issue of a reasonable excuse at the time of arrest in rejecting the accused's evidence at trial of a reasonable excuse. In other words, because the appellant said nothing at the time of her arrest explaining her failure to blow, can that be a basis for disbelieving her trial evidence of a reasonable excuse?

114 In R. v. Poirier (2000), 2000 CanLII 3294 (ON CA), 133 O.A.C. 352, this court explained, at para. 18, that the choice to invoke the right to silence is irrelevant to any issue at trial:

However, when it is the accused whose testimony is being impeached, an allegation that he or she did not speak out, or give an explanation of his or her conduct, at an early opportunity, conflicts with his or her right to remain silent. As the authorities have decided, the Crown is precluded from making the allegation, and no inference can be drawn that if the accused was innocent he or she would have asserted his or her innocence upon arrest. [Emphasis added.]

[80] The Court cited R. v. Rohde (2009), 2009 ONCA 463, 246 C.C.C. (3d) 18 (Ont.C.A.) where the accused, charged with possessing a sawed-off shotgun, testified that he was unaware of the gun’s presence and that someone else had used his condo shortly before. His evidence was rejected because he had not come forward earlier with that explanation. The Court of Appeal found reversible error linking the rejection of his evidence to his pre-trial right to silence. His constitutional right not to say anything was violated.

[81] In R. v. Palmer, 2008 ONCA 797, the accused’s evidence was rejected because she did not give her trial explanation at the time of her arrest. The Court found no error in rejecting an accused’s evidence because it was unbelievable. However, by going further and using her post-arrest silence as a basis for finding her incredible, the trial judge erred.

[82] Finally, the Court examined R. v. G.L. (2009), 2009 ONCA 501, 250 O.A.C. 266, where the accused had chosen to speak to police with respect to some matters but not others. The Court found the appellant’s right to remain silent was not extinguished because he chose to speak about some issues and not others. R. v. W.L., 2015 ONCA 37 reached the same conclusion.

[83] G.L. must be read in conjunction with another 2015 Court of Appeal judgment lest it be concluded that no use can be made of omissions where an accused answered some but not all police questions. In R. v. Hill, 2015 ONCA 616, the accused told the police how he killed the deceased by strangling her. At trial, he testified that the deceased verbally and physically abused him before he strangled her. He was cross-examined on his failure to tell the police anything about the abuse.

[84] Doherty J.A. found that omissions can be integral to the existence of material inconsistencies between two versions of an incident. It was important that the accused had given the police an account that left out important details. These omissions could be viewed as inconsistent with a subsequent account. Cross-examining on inconsistencies was permitted. Cross-examining to invite the judge or jury to draw an adverse inference from an accused’s silence with the police was not.

[85] Turning next to the Ontario Summary Conviction Appeal judgments, in R. v. Norman, 2015 ONSC 6710, relied upon by the Crown, the appellant appealed his conviction for failing to comply with a recognizance that only permitted him to be outside of his residence for specified reasons. Seeing a friend was not one of the exceptions to his house arrest.

[86] The investigating officer testified the appellant told him he was going to see a friend. Norman testified he never made that statement but said “something about …. I was going to AA,” a permitted exception to his house arrest. When it was suggested in cross-examination that he never told the officer he was in the area to attend an AA meeting, the appellant said, that he was “pretty sure that came up at some point: but did not remember “a lot of the evening.”

[87] MacDonnell J., the SCAJ, concluded:

It was in that context that the trial judge observed that given the nature of the house arrest terms by which the appellant was bound, one would expect that "he would be most anxious to tell the police the exact details about the location of the meeting to which he intended to go." The judge stated:

He failed to do so and at best, on his evidence, he surmised he said something about an A.A. meeting. I am not persuaded he said anything to the police about his intent to attend that meeting...

And later:

Moreover, I find that whatever explanation and reason he provided to the police for being in the area of the city did not include information about his intention to attend a specific A.A. meeting. In those circumstances, I find no basis to reject the police evidence that he said something to them about a friend and being on his way to work.

[88] MacDonnell J. continued at para. 8:

In the context of the issue that the trial judge was addressing, I read his reasons as holding that if the appellant had actually made the statement that he claimed to have made, his memory of it would not have been vague. The vagueness of his memory about something important was a factor that the trial judge was entitled to consider in relation to whether to believe the police evidence that the appellant had made an inculpatory statement rather than the appellant's evidence that he had made an exculpatory statement. This was not a case like R. v. Wilson, 2013 ONSC 7830, where the sparseness of an accused's initial explanation to the authorities was used as a basis for rejecting a more expansive explanation provided at trial. Rather, it was a case where the sparseness of the appellant's trial testimony with respect to what he had said earlier was used as a basis for rejecting his trial testimony in that respect. That use did not implicate the appellant's right to silence.

[89] In Rigillo, the appellant was charged with refusing to provide a breath sample. He alleged that his s. 7 Charter right to silence was violated when the trial judge noted that he had not testified on the Charter application. Rigillo provided no explanation at the roadside and did not testify on the Charter motion.

[90] Code J. found that the trial judge’s comments about the defendant’s lack of testimony on the s. 7 Charter application did not breach his right to silence. On a Charter motion the burden of proof was on the accused. Within the confines of Noble, the accused’s silence (on arrest and at trial) was not used to help establish his guilt. The comments were made in determining if he had met his onus on the Charter application.

[91] The final Summary Conviction Appeal judgment is Fairburn J.’s recent judgment in R. v. Kovacevic, 2017 ONSC 193 where a new trial was ordered because the trial judge, who provided some unassailable reasons for rejecting the appellant’s evidence of bolus drinking, went on to find that a person who had recently consumed 13 ounces of alcohol would have told the police at the time of his Intoxilyzer test that he had done so. The problematic aspect was that comment directly intersected with the right to silence: at paras. 40-1.

[92] Finally, addressing the out-of-province cases relied upon the Crown, the factual situation in Ferron and Top did not involve the accused apparently trying to provide a sample. Neither case involved the accused’s roadside silence or the use of an ASD. In both cases, the accused testified that they refused to provide a breath sample because they were unsuccessful in contacting their counsel of choice. Ferron never mentioned his reason when he refused. Top told the officer he was refusing because he was having trouble contacting his lawyer. The Court found fault with that position because he did not say that the second lawyer he left a message for had called him back promptly when he left a previous message in the middle of the night as he testified at trial. Neither did he ask to speak to another lawyer nor ask for a brief delay in providing a Breathalyzer sample to await the call back.

[93] It was in that context that the Courts held that the reason for the refusal should have been given to the officer. That would have enabled the officers to address the issue.

[94] In the Court of Appeal, Doherty J.A. referred to Ferron in his concurring reasons in R. v. Moser (1992), 1992 CanLII 2839 (ON CA), 7 O.R. (3d) 737. Moser was in a motor vehicle accident and taken to hospital where he refused to provide a breath sample after speaking to counsel. Shortly after the refusal, an x-ray was taken that showed his neck was broken. An orthopaedic surgeon testified that had Moser tried to provide a breath sample, it would have placed him in serious danger of becoming a quadriplegic. The majority and concurring judgments found that despite not knowing of the danger, Moser had a reasonable excuse for not providing a breath sample. Doherty J.A. noted it was not a case where the accused knew “of a potential risk to his well-being and did not so advise the police in order to avoid the possibility of a follow-up blood demand, citing Ferron. Such deliberate non-disclosure could well impact on the reasonableness of the refusal,” citing Ferron.

[95] While the comments are instructive, they appear as obiter in a concurring judgment from 1992 which has to be read in conjunction with later judgments of the Court of Appeal. Finally, Moser, Ferron and Top, involved refusals to provide breath samples after their arrest and having the rights to counsel, not breath samples at the roadside.

Analysis

[96] The following summary from the caselaw is the basis upon which the conclusions on this issue are reached:

1. where an accused upon apprehension gives the police an account of an incident, a trier of fact can compare the version of events provided to the police with the version of events given at trial: Hill Cross-examination on the gaps in what the accused told the police on a given topic is permitted because there is an inconsistency between the trial evidence and the account given to the officer.

2. where an accused testifies that he or she has a vague memory of what he or she told the police, that is a relevant consideration in assessing his or her trial testimony regarding the incident provided the trier of fact does not link the accused’s arrest date silence to rejecting his or her evidence: Rivera It is the vagueness of the accused’s trial evidence that is relevant to his or her credibility and reliability, not his or her post-detention silence.

3. a trier of fact cannot use an accused’s silence on arrest as a link in rejecting her or his trial evidence: Rivera, Kovacevic

[97] Applying those criteria, I am persuaded the trial judge erred in using the appellant’s silence to reject his trial evidence and to convict him. I reach that conclusion for the following reasons.

[98] I accept that the Reasons are open to the interpretation that in part the appellant’s evidence was rejected because of his lack of complete recall of what he told the officers. That he was unsure of what he told the police was salient to the appellant’s credibility as the trial judge found. That finding did not use the appellant’s silence. Of note, His Honour found that fact was “salient,” meaning prominent or conspicuous, not that it was determinative as to the appellant’s credibility and/or reliability. Rather, it assessed only the reliability of his trial evidence surrounding his arrest. Had the reasons stopped there, the appellant could have no quarrel on this point.

[99] The trial judge then found “such information [the medical explanation] would have been of import to the officers” investigating the accused. It is difficult to see what use the officers could have made of the information had it been provided. While the cases noted earlier with regards to not being able to contact counsel of choice were not cited to His Honour, if the comment was a reference to them, there is an important distinguishing factor. The appellant was stopped at the roadside where the officer formed a reasonable suspicion he had alcohol in his body. There was no option of a blood sample which requires reasonable and probable grounds which did not exist in this case.

[100] Of greatest significance, the trial judge added another factor for rejecting the appellant’s evidence. While His Honour did not say he rejected the appellant’s evidence or that it did not leave him with a reasonable doubt, it is implicit in the last paragraph on page 66 and His Honour’s conclusion that he did so. In that paragraph the trial judge sets out all the reasons why he rejected the appellant’s evidence. While it is perhaps preferable to say that the accused’s evidence was rejected when a conviction is entered, it is not required when the rejection is implicit in the trial judge’s analysis: R. v. Brunton, 2016 ONCA 752, at para. 50.

[101] The trial judge’s finding that the appellant did not give the officers any medical reason for his failure to provide a suitable sample, used his exercise of his right to silence in rejecting his evidence. The trial judge linked the rejection of his evidence to his silence. He erred in so doing.

[102] This conclusion is supported by the Crown’s factum where, before the right to silence issue was raised during the initial arguments on the appeal, the Crown wrote in regards to the appellant’s submission that the trial judge erred in his application of W.(D.):

... It was clear from the trial judge’s analysis under this heading[^5] that the trial rejected the evidence of the appellant, because: the appellant’s various assertions as to why he could not provide a suitable sample of breath were stripped away in cross-examination; and because while the appellant was quick to list off various ailments that may have affected his ability to provide a suitable breath sample at trial, he offered up no such comments at the roadside. [emphasis added]

[103] Further; at the outset of the Reasons, His Honour said, “The facts as outlined below relate to those facts which will be of import to the Court’s final determination.” The facts outlined included that the appellant never mentioned his ailments to the officers. That finding was important to the trial judge’s rejection of the appellant’s evidence. It is clear that at least in part the appellant’s roadside silence was relied upon in rejecting his trial evidence.

[104] Turning next to Rivera, the Court of Appeal rejected the following arguments: the right to silence jurisprudence was inapplicable where the onus was on the accused to establish a reasonable excuse, that there was an onus on an accused to make timely disclosure of the reason(s) they could not provide a suitable sample and where the accused’s silence is used to asses credibility and not to establish guilt, there is no section 7 Charter violation because the reasonableness of the excuse is extraneous to the elements of the offence.

[105] Notwithstanding those findings, the Crown asserts:

What the Court in Rivera did not explicitly consider, however, that the Courts in Ferron and Top did, is that the defendant’s roadside silence in a refusal case is not, at times being assessed in order to incriminate him or her with respect to the offence. The roadside silence of the defendants in Ferron and Top was assessed in the specific context of deciding whether Mr. Ferron or Mr. Top had established a reasonable excuse for failing to provide breath samples.

[106] What the Crown appears to be arguing is that while the Court of Appeal rejected the caselaw as supporting the interpretations of the law advanced by the Crown in Rivera and here, the Court never addressed whether the Crown’s submissions were correct, regardless of the appellate authorities from British Columbia and Alberta. I have trouble accepting that the Court simply rejected the authorities without addressing the legal position advanced. The suggestion that the Court of Appeal rejected the cases the Crown submitted supported their position and never decided what the law was in this area is not sustainable on my reading of Rivera. The Court of Appeal does not require authorities to provide the state of the law.

[107] In Rivera, the Court rejected the submission the Crown now advances as follows:

113 … None of these authorities address whether it is open to the court to use the accused's silence on the issue of a reasonable excuse at the time of arrest in rejecting the accused's evidence at trial of a reasonable excuse. In other words, because the appellant said nothing at the time of her arrest explaining her failure to blow, can that be a basis for disbelieving her trial evidence of a reasonable excuse?

119 I agree with the appellant's submission that the negative inferences drawn by the trial judge from her failure to advise Constable Tai that she was experiencing a panic attack violate the principles underlying the right to remain silent. It is clear to me that the appellant's silence on the issue of her panic attack at the roadside was a significant factor in the trial judge's assessment of her credibility.

[108] In Rivera, the trial judge noted that Ms. Rivera did not indicate any illness or medical difficulties, did not indicate any reason(s) why she could not provide a sample, and did not tell the officer that she was having a panic attack. The Court of Appeal held that “the trial judge’s repeated reliance on [the appellant’s] silence on the issue of the panic attack was not a proper consideration on the issue of her credibility.”

[109] Dealing next with the cases upon which the Crown relies, it is difficult to see how Rigillo assists the Crown’s submission that the roadside silence is relevant in assessing whether the trial testimony of the accused established a defence. Rigillo never gave an explanation, either at the roadside or at trial. There was nothing to compare.

[110] Similarly, I am not persuaded Norman assists the Crown. While not stated, I proceed on the basis Norman was not under arrest and had not been given his rights to counsel. The issue was the Crown’s evidence that the appellant made an inculpatory utterance in regards to an issue that would have been readily apparent to him – the reason he was out of his residence while on house arrest. His recollection of the discussion on a critical issue was vague. The trial judge not only found he never mentioned AA but accepted the police evidence that he gave an inculpatory statement. It was the appellant’s inculpatory admission that was the key to Norman, not his silence. He gave one explanation when confronted by the police and a different one at trial. It was appropriate to consider the inconsistent explanations and the appellant’s vague memory of the night of his arrest. Neither analysis included the use of the accused’s silence at the time of arrest.

[111] Regrettably, the trial judge was not given the assistance counsel should have provided. The Crown in opening the door to the explanation, should have told the trial judge the limited use to which the evidence could be put. If evidence in regards to what was and was not said on a previous occasion is going to be introduced, the counsel asking the questions has to know the basis upon which they are asking the questions and the limitations on its use. Instead, the Crown reiterated the prohibited use of the evidence in her trial submissions.

[112] Defence counsel was also not as helpful as he should have been, making no comment with regards to the Crown’s improper submission as to the use to be made of the evidence.

[113] The trial judge did what the Court of Appeal found was reversible error in Rivera by relying upon the appellant’s roadside silence as a basis upon which he assessed the appellant’s evidence.

[114] While I did not understand the Crown to suggest that a finding His Honour linked Mr. Doyle’s silence to the rejection of his evidence was harmless, I find it was not. Notwithstanding the other reason given for the rejection of the appellant’s evidence, where it is clear that the appellant’s silence contributed to the conclusion, as opposed to being one of two alternative findings that would independently support the rejection, it cannot be concluded the error occasioned no substantial wrong or miscarriage of justice: R. v. Van, 2009 SCC 22, at para. 34; Kovacevic, at para. 45.

[115] On the basis of this ground, a new trial would be ordered.

[116] I turn next to the issue that would result in the appellant being acquitted if his arguments are accepted.

Was the Crown required to establish that Constable Neely made the ASD demand and formed the opinion that the breath samples were not suitable for analysis?

[117] Before addressing counsels’ positions, three areas are not part of the analysis. First, since no Charter arguments were raised in relation to this ground of appeal, the reasons do not address any potential Charter issues. Second, Mr. Bhattacharya does not contend Constable Neely’s demand was invalid. Finally, the analysis applies only to charges of failing or refusing to provide an ASD breath sample.

The Positions of the Parties

[118] The appellant submits that he should be permitted to raise this issue on appeal for the first time. There is no impediment to the issue being considered as the evidentiary record permits the review.

[119] If permitted to raise this ground, Mr. Bhattacharya contends that it is an element of the offence of failing or refusing to provide an ASD sample that the same officer makes the demand and forms the opinion the driver has failed or refused to provide a suitable breath sample. He relies on the judgments in R. v. Padavattan (2007), 2007 CanLII 18137 (ON SC), 223 C.C.C. (3d) 221 (S.C.J.), at para. 20 and R. v. Shea (1979), 1979 CanLII 2917 (PE SCTD), 3 M.V.R. 134 (P.E.I.S.C.) in submitting “the clear language of the statute requires that the officer making the demand must have formed a reasonable suspicion and must also form an opinion as to the sufficiency of the breath samples provided.”

[120] The appellant concedes that one officer can make the demand and a second administer the ASD and form an opinion regarding the suitability of the samples provided one of two scenarios exist: the demanding officer either 1) is present for the testing and concludes the samples were unsuitable or 2) is not present but is told that the accused did not provide a suitable sample and forms an opinion the breath sample was unsuitable. If these preconditions are not met and one officer makes a demand and another administers the ASD test, no offence can be committed.

[121] The appellant submits that the same requirements apply whether the driver outright refuses to provide a sample through words or actions or whether he or she has deliberately failed to provide a suitable sample for analysis. Mr. Bhattacharya submits that if the appellant had got into the back seat of the cruiser and told Constable Moore that he would not provide a sample, the offence would not be complete until Constable Moore conveyed that information to Constable Neely.

[122] Further, the appellant submits that in addition to the Criminal Code wording, the Crown chose to word the information specifying the same officer made the demand and formed the opinion. In the result, the Crown was required to establish that it was the same officer.

[123] The appellant opposes any amendment to the information at this stage even if one could address the issues raised above. The result should be an acquittal.

[124] Ms. Vlacic submits the evidentiary record is inadequate to permit the appellant to raise any grounds involving the ‘same officer’ issue when it was never raised at trial.

[125] If leave is granted, the Crown submits that the ‘same officer’ criterion is not an element of the offence. The comments upon which the appellant relies in Padavattan were obiter dicta in a Charter decision. The Crown contends Padavattan is wrongly decided on this issue and should not be followed. The finding is contrary to binding authority from the Court of Appeal and contrary to other Summary Conviction Appeal judgments.

[126] Ms. Vlacic submits that the officer’s opinion as to the suitability of the breath sample is not an element of the offence. The offence is completed once the driver does not provide a suitable sample. It is not necessary to establish that the officer who read the demand was the same officer who determines the suitability of the sample. The actus reus is a proper demand and a failure or refusal to comply with that demand. Once the preconditions of the demand are established, the demand was forthwith and the accused unequivocally refused, without reasonable excuse to provide the suitable sample, the offence is complete.

[127] The Crown submits that requiring Constable Moore or any administering officer to tell Constable Neely or any demanding officer that the driver had outright refused or refused to provide a suitable sample is inconsistent with the Court of Appeal’s reasoning in R. v. Degiorgio (2011), 2011 ONCA 527, 275 C.C.C. (3d) 1. It would give a driver a windfall if the first officer was not told despite the offence being completed.

[128] The Crown contends the wording of the information that the opinion was that of Constable Neely was superfluous and the information should be amended. To do so at this stage would work no injustice to the appellant. On this approach the information would read that the appellant:

without reasonable excuse, refused to comply with a demand made to him by Robert Neely, a peace officer under s. 254(5) of the Criminal Code to provide forthwith a sample of his breath, contrary to s. 254(5) of the Criminal Code of Canada.

[129] The Crown concedes that if the ‘same officer’ criteria is an element of the offence that amending the information would accomplish nothing.

[130] In the alternative, Ms. Vlacic points to two sections of Constable Neely’s evidence that support the conclusion that he did form the requisite opinion regarding the suitability of the breath sample.

[131] In the further alternative, should I find that evidence does not support Ms. Vlacic’s interpretation, she submits that the issues now raised should be litigated and explored at a new trial where the ‘same officer’ issue is known to counsel and the trial judge.

The Law

Raising Issues for the First Time on Appeal

[132] In general, appellate courts will not consider issues raised for the first time on appeal. However, there remains a discretion to do so if it is in the interests of justice: R. v. Zvolensky, 2016 ONCA 947, at para. 5. One of the criteria most frequently applied is whether the evidentiary record is such that the issue can be argued.

Section 254(2)

[133] Section 254 (2) gives the police the authority to demand roadside breath samples as follows:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel … the peace officer may, by demand, require the person to comply with … both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests ... ; and

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[134] Section 254(5) creates the offence of failing to refusing to provide a roadside breath sample as follows:

Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

[135] In R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, the police stopped a driver, made an ASD demand and he outright refused to provide a sample. He was arrested, given his rights to counsel and taken to the station where he spoke with counsel. He then offered to provide a breath sample. He “tried” several times but failed to provide a suitable sample into the ASD. He was charged with refusing to provide a breath sample at the station. He was acquitted because the demand was not “forthwith.’ While the Crown chose not to prosecute Woods for the first refusal, the Supreme Court of Canada found that the offence had been completed at the roadside: at para. 40-42.

[136] In Degiorgio, after a valid demand, the accused told the officer three times that he would not provide a breath sample. When the demand was made and the accused refused, the officer did not have an ASD with him and there was no evidence how long it would have taken to have one brought to the scene. The issue was whether the Crown was required to establish that the sample could have been taken forthwith.

[137] The Court of Appeal found there was no such onus on the Crown at paras. 42 and 65:

42 The conduct criminalized by s. 254(2) consists of a proper s. 254(2) demand and an unequivocal refusal to comply with that demand. The offence is completed when the refusal is given: R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 at paras. 40-42. There is nothing in the language of s. 254(2) that would require the Crown to prove that had the driver not refused to provide the sample, the demanding police officer could have complied with his or her obligation to take the sample "forthwith". Nor can I understand why, as a matter of criminal law policy, a driver who has unequivocally refused to forthwith provide a breath sample should escape criminal responsibility for that refusal based on events subsequent and totally unrelated to the refusal. How is the culpability of the person who refuses to comply with a demand reduced because, as events may have developed, the officer may not have been able to take the sample forthwith?

65 The offence created by s. 254(2) is complete upon the refusal. In the face of such a refusal, the police are not obliged to carry on as if there had been no refusal and the court is not obliged to speculate as to what might have happened had the police officer carried on. The offence is complete upon proof that the preconditions to the demand in s. 254(2) existed, the officer demanded a sample "forthwith", and the appellant unequivocally refused, without any reasonable excuse, to provide that sample.

[138] In R. v. Moser (1992), 1992 CanLII 2839 (ON CA), 7 O.R. (3d) 737 (C.A.), Doherty J.A., in a concurring judgment, found that the elements of the offence were a proper demand and a refusal or failure to comply with that demand.” In R. v. Lewko (2002), 2002 SKCA 121, 169 C.C.C. (3d) 359 (Sask. C.A.), an unsuitable sample case, the Court held that the elements of the offence were a valid demand, a failure or refusal to produce the required breath sample, and the driver intended to produce the failure (the mens rea).[^6]

[139] In R. v. MacNeil, [2002] O.J. No. 3982 (S.C.J.), the Crown appealed an acquittal where the trial judge, on a directed verdict application, found there was no evidence the ASD was an approved instrument. The Summary Conviction Appeal Judge (SCAJ) addressed the comments in R. v. Gutierez [2001] O.J. No. 3659 (S.C.J.). That SCAJ held that where there is an outright refusal there was no need to prove the ASD was an approved instrument but where there was not an outright refusal that the ASD was an approved instrument was an “external essential ingredients of the offence.” Sach J. held, at para. 8:

To the extent that this reasoning is meant to imply that the essential ingredients of the offence under s. 254(2) and (5) change depending on the factual circumstances of the particular case, I have difficulty with it. The essential ingredients of an offence do not change. What may change are the facts necessary to establish an essential ingredient. So, for example, where the evidence of the refusal is dependent on the readings of the machine, it may be necessary, in order to establish that there was a refusal, to lead evidence that the machine was an approved machine and that it was in working order. In other cases, such as in those cases where there has been an outright refusal, (i.e. where the evidence of the refusal is not based on the readings of the machine), there would be no need to lead evidence about the nature or functioning of the machine to establish that the necessary elements of the offence have been made out. This is the point that was made by Lambert J.A. in R. v. Leveque (1985), 1985 CanLII 653 (BC CA), 22 C.C.C. (3d) 559 (B.C.C.A.) where he states at page 562:

I agree with Mr. Justice Seaton that the question of whether in any particular case all the ingredients of the offence established by s. 235¹ of the Code have been met is a question of fact of which evidence in relation to whether the breathalyser is in working order may or may not be required, depending on all the other evidence that is led in the case.

[140] In R. v. Weare, [2005] O.J. No. 2411 (C.A.), the Court of Appeal approved the SCAJ’s comments in MacNeil. Weare twice provided very light breath samples, was warned and thereafter refused to blow. The trial judge found he had feigned providing a suitable sample. The Court of Appeal adopted the reasoning in MacNeil as follows:

In our view, the interrelationship between the elements of the offence under s. 254(5)(a) of the Criminal Code and the evidence that the device was an approved device is aptly described in para. 8 of R. v. MacNeil, [2002] O.J. No. 3982 (S.C.J.). As such, if a finding is made that the accused did not legitimately attempt to provide a sample but merely feigned an attempt, in our view, that amounts to the equivalent of a refusal, thereby constituting the offence without the need to show that the device is an approved device.

[141] While the case dealt with a demand for a Breathalyzer sample at the station and not an ASD demand, R. v. MacNeil (1978), 1978 CanLII 2464 (ON CA), 41 C.C.C. (2d) 46 (Ont.C.A.) is informative with regards to assessing elements of the offence. The information alleged that he failed or refused to comply with a Breathalyzer demand to provide such samples of his breath as were necessary to determine the proportion, if any, of alcohol in his blood, and to accompany the peace officer for the purpose of enabling such samples to be taken. [emphasis added] While MacNeil had refused to provide a sample, he argued that because the information alleged that he also failed to accompany the officer and there was no evidence MacNeil failed to accompany the officer, that the offence had not been completed.

[142] The Court of Appeal disagreed finding:

6 Section 235(2), in our opinion, creates one offence, that is, the failure or refusal to comply with a demand made by a peace officer under subsection (1). The failure or refusal to comply with the demand could be committed by either refusing to accompany the peace officer for the purpose of enabling the samples to be taken, or having accompanied the peace officer for the purpose of enabling such samples to be taken, then refusing to provide such samples. However, the gist of the offence is the failure or refusal, without reasonable excuse, to comply with the demand to provide samples of breath consequent upon a demand made pursuant to s. 235(1).

7 Once it was shown that the offence was committed in one of the manners provided for in the information, in our opinion it was not necessary for the Crown to prove that it also had been committed in an alternative manner, even though the alternative manner had been set forth in the information. It was the failure to comply with the demand which constituted this offence. The additional averment was not an essential one to be proved and may be regarded as surplusage.

[143] In Padavattan, Duscharme J. outlined the contested and non-contested issues as follows, at para. 11:

The parties agree that s. 254(2) requires the Crown to prove the following:

(1) The officer making the demand must have the reasonable suspicion that the person has alcohol in his body ("reasonable suspicion").

(2) The officer determining whether the breath sample is sufficient to permit a proper analysis of breath must have the reasonable suspicion; and

(3) The officer requiring the person to accompany him to provide a breath sample must have the reasonable suspicion.

The parties further agree that none of these requirements is at issue on this appeal. Rather the only point of disagreement is whether or not s. 254(2) requires the Crown to prove that the officer who physically administers the ASD test must have the reasonable suspicion.

[144] The SCAJ found the answer to that question was ‘no.’

[145] Padavattan was charged with driving having consumed excess alcohol. The first officer formed the reasonable suspicion he had alcohol in his body. When he received the call that a civilian had reported a possible impaired driver, he requested an ASD be brought to his location as he did not have one in his cruiser. A second officer arrived after Padavattan was stopped. The second officer administered the ASD in the presence of the first officer. Padavattan provided a breath sample that analyzed “fail,” was arrested and provided Intoxilyzer breath samples that were over the legal limit.

[146] At trial, Padavattan challenged the admissibility the breath samples, alleging the sample was not taken “forthwith” and that the police breached his rights to counsel. The trial judge dismissed those applications but questioned whether the wording of s. 254(2) required the second officer to have a reasonable suspicion that Padavattan had alcohol in his body. The second officer never testified[^7] and the first officer said he did not have any discussions with the second officer before the ASD was administered.

[147] The trial judge found a breach of s. 8 of the Charter, refused to hear submissions on s. 24(2) and excluded the results of the Intoxilyzer tests. He found the Crown had not shown that the test complied with s. 254(2). In the result, the Crown obtained conscriptive evidence in other than a legal way: R. v. Padavattan 2005CarswellOnt 10090, (C.J.) at para. 8. Since s. 254(2) was not complied with, there was a s. 8 breach.

[148] The trial judge relied upon R. v. Telford (1979), 3 M.V.R. 156 (Alta.C.A.) where the Court found there was no requirement that the demanding officer was the first officer to deal with the accused, Shea, where one officer making the demand and a second officer administering the ASD was approved provided the same officer made the demand and formulated the opinion as to the suitability of the breath sample, and R. v. Cullum (2001), 15 M.V.R. 267 (Ont. C.J.) where the same trial judge held that the officer who administered the ASD had to have had the reasonable suspicion. He also relied heavily upon a judgment of Hill J. to the same effect, the name of which he could not recall.[^8]

[149] In Shea, the Court held:

7. … Here the section anticipates the performance of three basic functions: demanding, testing and forming an opinion as to the adequacy of the breath sample. In my respectful view, the section clearly requires the same peace officer who makes the demand to formulate the opinion whether or not the breath sample enables a proper analysis. The phrase “in the opinion of the peace officer (italics mine) refers definitely to the officer who has made the demand.

8. But that is not so say, as the learned Provincial Court Judge found, that the peace officer making the demand and the person who conducts the breath test must be one and the same person. The peace officer making the demand requires his suspect “to provide forthwith such a sample of his breath …” To whom? The section does not say. Here, in the absence of a definitive statement by Parliament, I am inclined to construe the section as requiring the suspect, upon the instructions of a peace officer, to provide a breath sample to an operator of a roadside testing device, whoever that may be.

9. In those situations where the peace officer making the demand is not the same person operating the A.L.E.R.T. testing device, a difficulty arises in the manner in which a peace officer formulates his opinion as to whether the necessary breath sample has been provided. If the officer conducts the test himself, then he relies upon first hand information and personal knowledge in reaching his opinion. If he has assigned the test to another and is not present during the test, then he is unable to formulate the opinion required by s. 234.1(1) without reliance upon information from third persons. This problem was discussed by Chief Justice Culliton in R. v. Strongquill, 1978 CanLII 1815 (SK CA), [1978] 5 W.W.R. 762, 4 C.R. (3d) 182, 43 C.C.C. (2d) 232 (Sask. C.A.), who concluded in a breathalyzer demand case that information received from a third person [W.W.R. p. 764]:

While such evidence was hearsay, it was nevertheless admissible for a limited and specific purpose. It was admissible to establish the state of mind of the officer that there were probable and reasonable grounds for his belief that the respondent had been the driver of the motor vehicle. It was not admissible in proof of the facts therein stated.

10 The learned Chief Justice also made reference to the decision in R. v. Ruszkowski, 1973 CanLII 849 (SK QB), [1973] 3 W.W.R. 370, 11 C.C.C. (2d) 235 (Sask. Q.B.), where the trial Judge held that in the circumstances there prevailing:

the information given by one police officer to the officer who made the demand, was sufficient to provide reasonable and probable grounds to justify the belief required to make the demand. He further held that such evidence was admissible for that purpose.

11 For a somewhat analogous situation see R. v. Cluney, (1972) 1971 CanLII 1278 (NS SC), 5 C.C.C. (2d) 181 (N.S. Co. Ct.).

12 I conclude therefore in the opinion that the peace officer making a demand pursuant to s. 234.1(1) must be the same person who formulates the opinion whether the breath sample provided was adequate for the purpose of a breath analysis. I am further of the opinion that a peace officer may rely upon the information of another person administering the test for the purpose of formulating this opinion … [emphasis added]

[150] Returning to Padavattan, on the Crown appeal, Duscharme J. found that neither Telford nor Shea supported the trial judge’s conclusion. His Honour determined there was no breach of s. 8 of the Charter so that the evidence was admissible.

[151] In the contentious paragraph His Honour held:

20 In my view, the clear language of the statute requires that the officer making a demand under s. 254(2) of the Code must have formed the reasonable suspicion and must also form an opinion as to the sufficiency of the breath samples provided. As well, an officer who makes the demand may require the subject to accompany him for the purpose of the test. However, where these requirements are satisfied, there is nothing in the language of s. 254(2), that expressly or by implication precludes the ASD test being administered by another officer. Nor is there any requirement that this other officer form the reasonable suspicion before administering the ASD test.⁴

[152] With regards to the information required to form the reasonable suspicion, Duscharme J. held that where a second officer arrives after the detention of the driver and administers the ASD test, “the second officer could easily acquire reasonable suspicion based on information provided by the first officer:” at para. 23. Similarly, in R. v. Noel, 2015 ONSC 2140, Goldstein J. held that the detaining officer could tell the officer who arrived later of the grounds and have the second officer administer the test.

[153] In R. v. Miller, [2008] O.J. No. 5570 (S.C.J.), one officer made the demand while a second officer administered the ASD test. On the SCA the appellant argued the trial judge failed to consider “the requirement that the same officer who made the breath demand pursuant to s. 354(2) of the Criminal Code must also determine the suitability of the breath sample provided,” relying upon Padavattan. Frank J. held that Padavattan was of “limited relevance” as the issue in that case was whether the respondent’s s. 8 rights were breached. In Miller, the appellant’s s. 8 rights were not in issue.

[154] The SCAJ found ‘same officer’ issue only arose in the context of the information that was worded identically to this one, naming one officer as making the demand and forming the suitability opinion. It does not appear that it was argued as an essential element of the offence.

[155] Frank J. found that the demanding officer also formed an opinion as to the sufficiency of the breath samples as he testified that he believed Miller was not providing a sample because he thought that if he did, he would fail. He purposely blocked the test so as not to give the officers a reading. It is apparent the demanding officer watched the testing.

Analysis

Should the appellant be permitted to raise any issues regarding the ‘same officer’ criteria of s. 254(2) when none was raised at trial?

[156] I am persuaded that the evidentiary record is adequate to address this issue. That evidence is set out in the next section of the Reasons, and need not be outlined here. I also find that it would be in the interests of justice to permit the appellant to raise the issue. It is arguable that he should have been acquitted.

[157] In addition, with respect, the Crown’s submission that there should be a new trial to permit the issue to be addressed with counsel and the trial judge being aware of the issue is misplaced. There was no obligation on trial counsel to mention the issue before the evidence was completed to permit the issue to be addressed. The prosecution framed the information.

Was there evidence Constable Neely formed the opinion regarding the suitability of the breath samples?

[158] The issues raised by the appellant are all answered if there was evidence Constable Neely formed an opinion regarding the suitability of the samples. If there was evidence to that effect, then whether the ‘same officer’ criterion is an element of the offence, was required because of the factual allegations and/or the wording of the information are of no moment.

[159] Constable Neely’s evidence with regards to the suitability of the samples is as follows:

i) A: … and I was there for a brief part of it, at one point I was at the passenger side door and I, I did observe one of the blows and I could hear the, I guess the – like the beeping of the ASD and it was starting and stopping (He was unable to say to which of the blows he was referring)

ii) Q: … and what occurred next in the course of your investigation? (after seizing the beer bottles)

A: Yeah, just after – yeah, several minutes and – yeah, just several attempts by Constable Moore just the – there, there was no sufficient reading given into the ASD.

iii) Constable Neely was present when Constable Moore arrested the appellant for refusing to provide a breath sample at 1:52 a.m.

[160] When Ms. Vlacic raised the second excerpt as either supporting her position that there was evidence Constable Neely formed an opinion regarding the suitability of the breath samples or that a new trial should be ordered so that the issue could be explored if it was not clear, I questioned the source of the information. Upon further reflection, since Constable Neely was giving the chronology of what occurred at the scene, there are only two options - either he saw the ASD testing or Constable Moore told him the appellant provided breath samples that did not provide a reading.

[161] Since Constable Neely saw one inadequate sample, the only inference is that Constable Moore told him the results of the ASD testing. Shea holds that is an acceptable route to establish the demanding officer was also of the opinion that the samples were not suitable. It was not necessary that Neely administered the ASD or saw all of the testing.

[162] There is no law that the ‘same officer’ criteria can only be one officer in a case. Indeed, the authorities noted earlier show that with regards to the opinion as to the suitability of the breath samples, that the officer can act upon hearsay: Shea. In addition, the second officer to arrive on the scene can obtain his reasonable suspicion to make the demand from the first officer.

[163] While there is no direct evidence Constable Neely formed the opinion, there is no requirement that an officer utter the “magic words,” that he or she formed a certain opinion: R. v. Hall (1995), 22 O.R. (3d) 389 (C.A.), R. v. Fraelic (1977), 1977 CanLII 2036 (NS SC), 36 C.C.C. (2d) 473 (Sask.C.A.), R. v. Blanchette (1978), 41 C.C.C. (2d) 205 (Alta.Dist.Ct.) and R. v. Freese, [1996] O.J. No. 473 (C.J.) It can be inferred that the officer had that opinion. In addition, it is not readily apparent the demanding officer in Padavattan testified that he formed the opinion.

[164] On this record, there was undisputed evidence that Constable Neely was present for one unsuitable breath sample, was told by Constable Moore that the appellant had given unsuitable samples on “several attempts,” and was present when Constable Moore arrested the appellant for refusing to provide a suitable sample. That evidence permits the findings that Constable Neely had all the information he required to formed his own opinion and did so.

[165] Constable Neely was entitled to act upon what he saw, what he heard and what Moore told him in reaching his opinion. While he was not asked for his opinion, there is no other inference than that he held the requisite opinion. That evidence satisfied the ‘same officer’ criteria if that evidence was essential to a conviction.

[166] While that finding addresses the ‘same officer’ ground of appeal, should I be wrong in that conclusion and to complete the record given the extensive submissions that counsel provided, I will address the remaining issues.

Is the ‘same officer’ criterion an element of the failing or refusing to provide an ASD breath sample?

[167] Section s. 254(2)(b) provides:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle … or had the care or control of a motor vehicle … the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[168] The section contains the following factors:

1. reasonable grounds to suspect a person has alcohol in their body,

2. reasonable grounds to suspect the person has operated a motor vehicle … or had the care or control of motor vehicle within the preceding three hours,

3. a valid demand,

4. to provide forthwith a sample of breath that,

5. in the opinion of the peace officer will enable a proper analysis to be made,

6. by means of an approved screening device, and

7. to accompany the peace officer for that purpose

[169] The first issue is whether the ‘same officer’ factor is an element of the offence. I am not persuaded it is for the following reasons. As the Court of Appeal held in Weare, the elements of the offence do not change from one prosecution to another depending on the factual allegations. As the above noted cases establish, there will be prosecutions in which the ‘forthwith’ component is irrelevant: Degiorgio. In others, there will be no need to prove the ASD was an approved instrument: MacNeil Because the Crown is required to establish the ASD was an approved instrument in some cases, does not make it an element of the offence. Clearly, not each of the seven factors in the subsection are essential elements.

[170] The Court of Appeal has twice examined the elements of the offence and found they are: 1) a valid demand, 2) a refusal or failure to provide a sample, or a failure to accompany the officer, and 3) an unequivocal refusal, without any reasonable excuse: Moser, Degiorgio While Shea found the section anticipated three functions (demanding, testing and forming an opinion as to the adequacy of the sample), the Court of Appeal for Ontario did not include “forming an opinion as to the adequacy of the sample” as an essential element. Indeed, if the driver outright refused to provide a breath sample or to accompany the officer, there is no breath sample upon which to form an opinion.

[171] There will be cases where other factors in the subsection will be essential to the prosecution, not essential elements of the offence, but as the necessary evidence to establish the elements as Weare found.

[172] With regards to Padavattan, I do not read para. 20 as establishing that it is an element of every failing or refusing to comply with an ASD demand charge that the Crown establish the demanding officer formed a reasonable suspicion the driver had alcohol in his or her body and the same officer held the opinion that the breath samples provided were not suitable for analysis. I reach that conclusion for the following reasons.

[173] First, the authorities noted earlier pre and post-date Padavattan and did not include the same officer formed the opinion as to the suitability of the samples criterion as an element of every offence under s. 254(5). Moser was decided in 1992, Padavattan in 2007 and Degiorgio in 2011.

[174] Second, Duscharme J.’s finding in Padavattan was made in the context of assessing whether there was a violation of s. 8 of the Charter where Padavattan provided a suitable breath sample. He was not charged with refusing to provide an ASD breath sample. The issue was whether the evidence of the ASD ‘fail’ was properly obtained in accordance with the Criminal Code and could be used by the officer in concluding he had reasonable and probable grounds to arrest and make an Intoxilyzer demand - whether s. 8 of the Charter had been breached. Padavattan determined that where an officer relies on an ASD ‘fail’ to obtain his grounds to make an Intoxilyzer demand, the ‘same officer’ criterion applied. The demanding officer had to have formed the opinion but did not have to personally administer the ASD test.

[175] Here, the Crown was not required to establish that Constable Neely made the demand and formed the opinion the breath samples were not suitable for analysis as an essential element of the offence.

Was the Crown required to establish the “same officer” criterion because of the route the prosecutor chose to establish the elements of the offence?

[176] The next question is whether the factual allegations by which the Crown sought to establish the elements of the offence required the Crown to prove the ‘same officer’ criterion.

[177] The offence of refusing to comply with an ASD demand can be committed in at least the following ways:

i) verbally refusing to provide a breath sample,

ii) refusing to accompany the officer for the purpose of testing,

iii) feigning providing breath samples which I infer means the driver puffing his or her cheeks as if they were blowing but did not or similar actions that are assessed without reliance on the ASD – there is no breath sample, and

iv) providing breath samples that are not suitable for analysis in the opinion of “the officer” relying upon the ASD notifications

[178] What evidence will be required to prove the elements of the offence can vary depending upon which route the Crown seeks to establish the elements: Degiorgio and Weire. Here, the factual allegations led the Crown to prosecute the appellant using the fourth route to prove the elements of the offence. In doing so, the prosecution relied upon the ASD as Constable Moore testified about the ASD notifications that the samples were insufficient.

[179] While I found this issue challenging to determine, I conclude that the Crown was required to prove Constable Neely formed the opinion as to the suitability of the samples. Once the Crown embarks upon this route to establish the elements of the offence, the opinion as to the suitability of the samples becomes mandatory.

[180] As Padavattan and Shea hold, the wording of the subsection clearly connotes that the demanding officer must form “the opinion.” Parliament has legislated who should determine the suitability of breath samples; “a qualified technician” in s. 254(3) and “the officer” in s. 254(3). While not determinative, there is no authority to the contrary in a case involving two officers since Shea in 1979 and Padavattan since 2005.

[181] The Supreme Court found in relation to s. 254(3) in R. v. Deruelle, 1992 CanLII 73 (SCC), [1992] 2 S.C.R. 663, that it was not a “model of clarity.” If the same could be said about s. 254(2) and the subsection was ambiguous because “the officer” could refer to the one who administers the ASD and not necessarily the demanding officer, the result would be the same because where there is ambiguity it must be resolved in favour of the accused: Marcotte v. Deputy Attorney-General for Canada (1976), 1974 CanLII 1 (SCC), 19 C.C.C. (2d) 257 (S.C.C.)

[182] As is apparent from the cases noted earlier, “the opinion” does not mean that only one officer can form an opinion with respect to the suitability of the samples. The demanding officer and the administering officer can both form the opinion: Padavattan, Miller

[183] In this context, I agree with Mr. Bhattacharya’s submission that this requirement is not an onerous one to meet. In many, if not most cases, there is only one officer involved. If there are two officers, it is not too onerous to have the demanding officer present or to advise him or her of the ASD test results so that they could form their own opinion. If a second officer arrives after the driver is stopped, that officer can obtain the reasonable suspicion from the first officer.

[184] To be clear, it is only in the context of the fifth route to establish the elements of the offence that the ‘same officer’ criterion applies. Were the driver to outright refuse when placed in the cruiser with a second officer who was going to administer the test, the offence is complete. There is no sample upon which to base a suitability assessment.

[185] The next questions whether the wording of the information required the Crown to establish Constable Neely formed the opinion as to the suitability of the samples and whether the information should be amended need not be addressed given the findings above. Whether the “same officer” criterion was in the information is of no moment.

Conclusion

[186] The appeal is allowed, the conviction quashed and a new trial ordered.

[187] Mr. Doyle is ordered to appear in Court 104 at 9:00 a.m. on April 10, 2017 to set a new trial date.

DURNO J.

Released: March 27, 2017

CITATION: R v. Doyle, 2017 ONSC 1826

COURT FILE NO.: 277/14

DATE: 20170327

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and –

GRAHAM DOYLE

Appellant

REASONS FOR JUDGMENT

[On Appeal from the Judgment of The Honourable D. McLeod Dated October 27, 2015]

Durno J.

Released: March 27, 2017

[^3]: The Court of Appeal has also held that there is no requirement that the officer administering the ASD is knowledgeable with regards to its workings: R. v. Coyle (2007), 51 M.V.R. (5^th) 161 (Ont.C.A.)

[^4]: I note as well that there was evidence that Constable Moore had administered ASD tests between twenty and fifty times over five years. Constable Neely had tested the ASD before they went on the road and Constable Moore had tested it before he gave the ASD to the appellant.

[^5]: Was the defendant’s compliance with the breath demand intentional?

[^6]: There are conflicting authorities on the mens rea issue, an issue which need not be addressed in these reasons: see: R. v. Porter, 2012 ONSC 3504 at para. 34.

[^7]: He had been injured and was unavailable. The trial judge refused the Crown’s adjournment request.

[^8]: As noted in the SCA judgment, no one has been able to locate the judgment. I also have been unable to find the decision.