Appeal from the decision of Justice J.D. Evans dated March 17, 2016 in which Mr. Gignac was found guilty of failing to comply with a demand for a breath sample, contrary to section 254(5) of the Criminal Code.

VALLEE J.:

BACKGROUND

[1] Early in the morning of July 26, 2015, the police received a traffic complaint. The vehicle was identified and subsequently followed. According to the evidence of P.C. Forrest, the vehicle was swerving back and forth between the northbound and southbound lane. P.C. Forrest stopped the vehicle. As a result of his interactions with the driver, Mr. Gignac, P.C. Forrest formed the belief that his ability to operate a motor vehicle was impaired by alcohol. Mr. Gignac was arrested at 2:55 a.m.

[2] At trial, P.C. Forrest testified that he attempted to place Mr. Gignac in the rear of his cruiser. He became very argumentative. He locked his head and his legs into the frame of the cruiser and would not go in. P.C. Forrest required the assistance of P.C. Robertson in order to put Mr. Gignac into the back seat, during which time, Mr. Gignac was yelling and not listening to the explanation that P.C. Forrest was providing.

[3] According to P.C. Forrest, while at the police station, Mr. Gignac was requested to provide a breath sample. P.C. Forrest assisted the breath technician, P.C. Fleming, with the process. Mr. Gignac requested to use the bathroom. According to P.C. Fleming, he was in the bathroom for approximately ten minutes during which time he ran the water continuously. He requested to speak to a lawyer. Arrangements were made for him to speak to duty counsel. Subsequently, he was found sleeping on a bench. Nobody was on the phone.

[4] According to the evidence of P.C. Fleming, initially, Mr. Gignac blew into the Intoxilyzer machine three times; however, it appeared to PC Fleming that Mr. Gignac was putting his tongue against the end of the mouthpiece. He was making a gesture like he was blowing but he was not letting any air pass through. P.C. Fleming stated that Mr. Gignac blew into the machine’s tube for only short bursts of time, despite the instructions provided. Accordingly, he did not provide a sufficient breath sample in order for the machine to carry out an analysis.

[5] P.C. Fleming stated that Mr. Gignac requested another chance to provide a sample, which P.C. Fleming allowed. On this fourth attempt, he made marginally more effort. As with his previous attempts, he intentionally stopped providing the sample. When this attempt did not result in a sufficient sample, Mr. Gignac then requested another chance which P.C. Fleming denied. P.C. Fleming stated that the reason for this was that Mr. Gignac was intentionally frustrating the process. P.C. Fleming admitted that during the process, he became quite frustrated with Mr. Gignac and at one point was yelling at him.

[6] In his reasons for judgment, the trial judge stated:

With respect to the fail to comply charge, the court has found that the demand made to the accused was made as soon as practicable in these particular circumstances and that it was a lawful demand.

There was no issue taken with the Intoxilyzer technician’s qualifications, his operation of the instrument or the proper functioning of the approved instrument.

However, the defence submits that the evidence before the court does not establish the accused’s mens rea with respect to the offence beyond a reasonable doubt. Primarily because the accused requested another opportunity to blow after his third attempt which was marginally better than his two prior non-blows.

Clearly, there are some circumstances where such a request should be honoured. However, in the instant case, the video evidence, in my view, clearly demonstrated the accused’s continuous uncooperative and obstructed conduct in the course of the testing procedure.

And despite his marginal effort in his final blow after being told it was his final blow, there was no reason for the Intoxilyzer technician to believe that the accused would properly provide a suitable sample if given one further opportunity to do so.

The officers acknowledged frustration with the accused was unfortunate, but perhaps understandable.

In all the circumstances here and on the evidence before it, the court is satisfied beyond any reasonable doubt that the accused wilfully failed to comply with a lawful demand to provide suitable samples of his breath and I find him guilty as charged.

STANDARD OF REVIEW

[7] The appellant states that the standard of review is correctness. The appellant’s position is that the trial judge failed to apply the legal test for determining whether the appellant possessed the relevant mens rea to be convicted of the offence. This constitutes an error in law.

[8] The respondent states that the court should consider whether the verdict was unsupported. That is to say, was the evidence so insufficient that no properly instructed jury could have convicted the appellant?

THE APPELLANT’S POSITION

[9] The appellant relies on para. 9 of R. v. Lewko, 2002 SKCA 121, [2002] SJ No 622 (Sask.C.A.) in which the court stated:

The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existence of a demand having the requirements of one of the three types mentioned in ss. (2) and (3). Second, the Crown must prove a failure or refusal by the defendant to produce the required sample of breath…(the actus reus). Third, the Crown must prove that the defendant intended to produce that failure (the mens rea).

[10] The appellant states that in paras. 82 and 83 of R. v. Grant, 2014 ONSC 1479, [2014] O.J. No. 1143, the court set out a more fulsome articulation of the law which should be accepted by this Court. It is the following:

The determination of whether the last element above, the mens rea component, is satisfied beyond a reasonable doubt will require a case-specific analysis of all of the circumstances, including the following:

i) the words and actions of the detainee from which the officer concluded he or she intended to refuse to provide a suitable sample;

ii) the number of opportunities the officer provided to the detainee;

iii) the instructions provided to the detainee by the officer including any reference to the applicable law, how to provide the sample, and whether the detainee was told they were being given one last chance to provide the breath sample;

iv) the detainee’s state of intoxication and attitude;

v) the availability of the technician and the Intoxilyzer, and

vi) where the detainee has been told that he or she has refused to provide a suitable sample will be charged and indicates they want another opportunity, the time between being told of the charge and the offer, the number of opportunities to provide a breath sample and previous “last chance” offers, and the manner in which the offer is made. These criteria will assist in determining whether the request was bona fide.

Where the detainee offers to provide a “last chance” sample, it will be for the officer initially, and at trial for the trial judge to determine whether the post charge offer was bona fide and whether the refusal and subsequent offer were part of “one transaction.”

[11] The appellant states that the trial judge did not give consideration to the Grant test. He did not give appropriate reasons. He did not analyse the number of times that the appellant had to provide the sample. He did not consider whether the instructions from the breath technician were adequate. He did not analyse whether the appellant should have been given another opportunity. He did not specifically discuss the duress to which the appellant was subjected.

[12] The appellant states that the issue of duress was essential to resolving whether or not the mens rea was made out.

THE CROWN’S POSITION

[13] The Crown states that adopting a pigeon hole approach would not be appropriate. The question of how many attempts are sufficient and over what period of time depends entirely on the circumstances. For example, 20 attempts made by a person in a hospital bed may not be sufficient whereas in other situations, a few attempts will be adequate. The Crown states that this is a question of fact, not law.

[14] The Crown points out that in Lukow, the court stated that failing to provide a breath sample is a general offence test. The trial judge considered all of Mr. Gignac’s conduct throughout the interaction. He had to be forced into the cruiser. He was not cooperative in the breath room. He was read his rights. He requested an opportunity to speak to duty counsel which was provided. He was drinking water and was found asleep on a bench in the cell. There was nobody on the phone. Mr. Gignac’s behaviour led the officers to conclude that he was not going to provide a breath sample. He refused to provide to valid samples.

[15] The Crown states that there is no statutory time limit which must be provided to an accused, nor is there a maximum number of opportunities that must be provided. An accused cannot decide when to provide a sample. It has to be provided when requested. The list in Grant provides helpful guidance but is not determinative. There is no requirement to provide a last chance when the warnings were clear and reasonable opportunities had already been provided. There was no reason for the breath technician to believe that if Mr. Gignac was provided with another opportunity, he would properly provide a sample. The interaction with the breath technician might have been short; however, the significance of the interaction should be considered. For example, if an accused is confused and is making attempts, this is different from a situation where an accused is attempting to circumvent the system.

[16] Mr. Gignac was uncooperative in all aspects beginning with his arrest. This provides a context in which to consider intent. When considering whether an accused is refusing to provide a breath sample, all other behavioural factors are relevant including what happened prior to the request and during the request. Here, the accused was so uncooperative that the breath technician was justified in concluding that there was an intentional refusal. One of many factors was the technicians evidence was that Mr. Gignac put his tongue at the end of the breath piece and was blowing but was not allowing air to get through.

[17] The Crown states that adequate evidence was properly before the trial judge. He applied the appropriate test and concluded that Mr. Gignac was feigning efforts to provide a breath sample. The test is general intent; however, if as argued by the appellant, the test is specific intent, the evidence at trial showed that Mr. Gignac had a specific intent to defeat the process.

ANALYSIS

[18] In the trial judge’s reasons, he referred to the video which included the following:

(a) the words and actions of Mr. Gignac which led the breath technician to conclude that he intended to refuse to provide a suitable sample (Grant (i));

(b) the three opportunities that had been provided to Mr. Gignac (Grant (ii));

(d) Mr. Gignac’s state of intoxication and attitude (Grant (iv)); and

(e) The last chance provided to Mr. Gignac before he requested another last chance and was refused (Grant (v)).

[19] In his reasons, the trial judge focused on Mr. Gignac’s words, actions and attitude that led P.C. Flemming to believe that Mr. Gignac would not provide a suitable breath sample if given one further opportunity. A video of the events in the room as well as a transcript was provided at the trial. The video confirmed PC Fleming’s evidence. When Mr. Gignac requested another chance, it appears that he did not provide a proper sample. There was evidence before the trial judge for him to conclude that there was no reason for the Intoxilyzer technician to believe that the accused would properly provide a suitable sample if given another “second chance” to do so and that P.C. Flemming’s belief was justified. The trial judge specifically addressed the mens rea requirement when he stated that Mr. Gignac’s words and actions showed a wilful failure to comply with a lawful breath demand. The mens rea requirement was made out.

[20] I find that the trial judge applied the tests set out in Lewko and Grant to the facts in this matter. The evidence before him was sufficient for him to conclude that Mr. Gignac wilfully refused to provide a breath sample. I cannot say that his decision was incorrect.

CONCLUSION

[21] The appeal is denied.

M.E. VALLEE J.

Released: October 26, 2017

R. v. Gignac, 2017 ONSC 6427

Case Summary

Appeal from the decision of Justice J.D. Evans dated March 17, 2016 in which Mr. Gignac was found guilty of failing to comply with a demand for a breath sample, contrary to section 254(5) of the Criminal Code.

BACKGROUND

STANDARD OF REVIEW

THE APPELLANT’S POSITION

THE CROWN’S POSITION

ANALYSIS

CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 2