COURT FILE: SCA(P) 560/17
DATE: 2018 03 06
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
B E T W E E N:
HER MAJESTY THE QUEEN
A. C. Sibian, for the Respondent
Respondent
- and -
NICOLE ROACH
R. Wulkan, for the Appellant
Appellant
HEARD: March 5, 2018, at Brampton
REASONS FOR JUDGMENT
[on appeal from conviction by Currie J. on July 12, 2017]
HILL J.
INTRODUCTION
[1] At trial, the appellant was found guilty of refusing, without reasonable excuse, to provide a breath sample contrary to s. 254(5) of the Criminal Code.
[2] The sole witness at trial was the investigating officer.
[3] Defence counsel at trial (not Mr. Wulkan) informed Currie J. that the appellant was not advancing a reasonable excuse for her failure to comply with the police demand for a breath sample.
[4] Two grounds of appeal are submitted:
(1) Did the court below commit an error of law by drawing an impermissible inference; namely that a brief initial resistance to proving a sample into an Approved Screening Device during a period of time where s. 10(b) [Charter] rights are suspended can be used as evidence that subsequent attempts to provide samples are not genuine
(2) Did the court below make an unreasonable finding of fact when it concluded that the Approved Screening Device (including the mouthpiece) was in proper working order?
FACTUAL BACKGROUND
[5] On November 13, 2016, Peel Regional Police Service Constable Jeff Caplan was on duty assigned to the Impaired Counter Measures Unit.
[6] At about 3:51 a.m., in Mississauga, the officer observed the appellant’s vehicle proceed through a red traffic light without stopping.
[7] Const. Caplan conducted a traffic stop at which time he observed that the appellant, the sole occupant of the vehicle, had watery and bloodshot eyes and an odour of an alcoholic beverage on her breath. Under questioning, the driver admitted consumption of alcohol prior to driving.
[8] In the circumstances, having reasonable suspicion that the appellant had alcohol in her body, the constable asked the appellant to exit her vehicle. When the appellant exited her vehicle and observed the officer holding a Drager Alcotest 6810 ASD in his hand, she stated: “Oh, a breathalyzer. I refuse”. At 3:52 a.m., the officer made a formal approved screening device (ASD) demand for a breath sample. The appellant responded, “I refuse”.
[9] At this point, the constable advised the appellant of the consequences of refusing an ASD demand. On hearing this, the appellant stated: “Hmm, I need to think about this. So what happens if I refuse?”
[10] Const. Caplan re-explained the consequences and, at 3:56 a.m., demonstrated how to properly provide a suitable sample of breath into the ASD by performing the test himself. The ASD was operating properly. Const. Caplan then opened a hard plastic sealed wrapper containing an unused ASD mouthpiece and inserted it directly into the device.
[11] When again requested to provide a breath sample, the appellant was quiet as though thinking over her options. For the third time, the constable advised of the consequences of a refusal.
[12] At 4:00 a.m., the appellant voiced agreement to provide a sample. However, the appellant blew “lightly” into the mouthpiece without enough volume for a registered blood/alcohol reading. The ASD registered “Blow Interruption”. Const. Caplan then advised the appellant to maintain a tight seal around the mouthpiece and to blow harder and to use one consistent breath. The appellant’s second effort was undertaken in the same manner she had in her first attempt. The officer could hear the appellant blowing some air but not enough into the device.
[13] In Const. Caplan’s extensive experience, he had never encountered anyone being “unable” to provide a suitable breath sample into an ASD - “[i]t’s a very simple process to do”. The appellant did not appear to have any difficulty breathing. As a result, he against counselled the appellant as to how to provide a suitable sample into the ASD. The appellant began to cry. In her third attempt, the appellant repeated her earlier approach of blowing only “lightly” into the mouthpiece resulting in another “Blow Interruption” error reading.
[14] At 4:04 a.m., for the fourth time, the officer cautioned the appellant regarding refusal to provide a suitable breath sample. Four further blowing efforts produced the same results.
[15] Const. Caplan cautioned the appellant a fifth time as to the consequences of a refusal and, for the third time, repeated instructions as to how to provide a suitable breath sample into the ASD. What followed were three further attempts, with blowing “lightly and inconsistent breaths”, not hard continuous blowing, all unsuitable for an ASD blood/alcohol reading.
[16] At 4:09 a.m., the appellant was arrested for refusing to provide a breath sample.
[17] In cross-examination, Const. Caplan agreed that an ASD operator looks for conduct on the part of a driver impeding a suitable ASD reading including sucking in air and not blowing out, puffing out of the cheeks pretending to blow, blowing air out the side of the mouth, sticking the tongue into the end of the mouthpiece, not blowing at all, or only “blowing lightly” perhaps having the impression that action will result in a lower blood/alcohol reading.
[18] Const. Caplan informed the trial court that he had not conducted any ASD test where to his knowledge there had been an obstruction in a mouthpiece. The witness had no reason to believe that there was such an impediment in this case. This exchange took place in cross-examination of the officer:
Q. and … you used the expression that, you know, you didn’t check because she was blowing lightly and it wasn’t like she was blowing hard enough that, you know, this concern may have arisen, but my suggestion to you is that I’m going to suggest to you you don’t know that she was blowing lightly and it may just be a partial obstruction that only allowed a minimal amount of air to go through. You – as you sit here to day you can’t rule out that as – as a possibility, can you?
A. I know she was blowing light. I – like I said, I’ve conducted hundreds of these tests, I’ve seen people try and do that and I coach them and eventually they do provide a hard enough sample and I get a result from the test.
Q. Well….
A. This was lightly the entire time.
Q. All right. If there was a partial obstruction do you not agree that it may – it – it would also appear as if she was blowing lightly?
A. No, I - I would know the difference.
Q. Sorry?
A. I would – I would know the difference.
Q. You would know the difference?
A. Yes.
Q. Have you ever had a case with a partially obstructed mouthpiece?
A. No, I have never heard of ….
Q. So how would you know the difference?
A. I would – I would know – I have the difference between someone blowing to try and provide a suitable sample, as I do it on a daily basis, and someone who is trying to blow lightly to make it look like they’re trying to obtain a lower breath reading.
Q. That’s your opinion, isn’t it?
A. Yes, that’s my opinion.
(emphasis added)
REASONS OF THE TRIAL COURT
[19] The experienced trial judge found Const. Caplan’s uncontradicted testimony to be “compelling”. The trial court further found that:
(1) the officer’s observations of the appellant’s driving and her condition afforded reasonable suspicion for an ASD demand and test
(2) confronted with a lawful ASD demand, the appellant effectively cascaded through a posture of outright refusal to a series of deliberately feigned attempts to comply with the demand
(3) the ASD mouthpiece was removed from a sealed package and affixed to the ASD – in the circumstances, it was not unreasonable for the officer to continue to employ the original mouthpiece throughout
(4) despite repeated opportunities to comply, over about a 17-minute period, the blowing actions of the appellant amounted to light and inconsistent blows unsuitable for ASD analysis – conduct which, in the opinion of the experienced officer, led to the absence of a test reading.
[20] The trial judge concluded that:
In my view, on the evidence of the officer, there was no reason for him to have done any of those things. He took the mouthpiece originally from a sealed container and provided it to Ms. Roach. His observations about the manner in which she was blowing into the device preclude the necessity to check into other reasons why the device was not giving a reading.
… on the facts of this case, including Ms. Roach’s initial disinclination to provide a sample, and the officer’s observations of the manner in which the attempts were made, leads me to conclude that there was no obstruction in the mouthpiece which resulted in the failing to provide readings on the device.
I am satisfied on all of the evidence, beyond a reasonable doubt, that Ms. Roach had the appropriate mens rea in refusing to provide a sample and I will enter a finding of guilt.
DISCUSSION
[21] It was submitted on the appellant’s behalf that the trial judge erred in taking into account, on the issue of refusal, the appellant’s initial disinclination to comply with the ASD breath demand. It is said that actions within this phase of deliberative processing on a driver’s part, detained and without the benefit of counsel, cannot be substantively used by a trier of fact to incriminate an accused. In this regard, counsel referred to the well-known principles in R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3; and R. v. Milne (1996), 1996 CanLII 508 (ON CA), 107 C.C.C. (3d) 118 (Ont. C.A.) (leave to appeal refused [1996] S.C.C.A. No. 353).
[22] In oral argument, Mr. Wulkan submitted that the direct compelled participation of a motorist, detained without access to counsel, engages a deliberative process on the detainee’s part as to whether or not to comply with a s. 254 demand. In different circumstances, a detainee, for example at a police station, can consult with counsel during his or her decision-making. It was argued that while some motorists detained at the roadside will make their compliance decision silently, others will speak out loud. The appellant fell into the latter category and her utterances were “the natural consequence of [the officer] making that demand” and a “necessary part of what follows” from an ASD demand.
[23] This submission is unpersuasive on the facts of this case. Const. Caplan made a lawful demand. What immediately followed was the response, “I refuse”. At the relevant point in time, the officer was not engaging in any manipulative or investigative questioning designed to elicit a response other than compliance with the s. 254 demand. The communication of the appellant to Const. Caplan of words clearly expressing an intention to refuse the ASD demand were not only part of the actus reus, but also were not the product of any direct compelled participation protected by the Orbanski/Milne principle.
[24] The trial judge was entitled to consider the totality of the circumstances once the lawful ASD demand was made in order to fully appreciate the context of 10 successive failures on the appellant’s part, over the period of a number of minutes, to provide a suitable breath sample. More specifically, the trial court was within its jurisdiction to assess whether the appellant’s disinclination to comply with the ASD demand evolved from initial blatant refusal to a strategy of more subtle or nuanced efforts to refuse or evade proper testing by then feigning cooperation.
[25] The totality of the acts or words of the appellant after the s. 254 demand, evidencing non-compliance, were integrally part of the actus reus of the refusal offence and did not implicate compelled self-incrimination and accordingly the trial judge’s analysis was not in error: R. v. Rivera, 2011 ONCA 225, at paras. 89, 94, 101-103, 107 (leave to appeal refused [2011] S.C.C.A. No. 234); R. v. Guenter, 2016 ONCA 572, at paras. 50-52; R. v. Quenneville, 2009 ONCA 325, at para. 1.
[26] Turning to the appellant’s second ground of appeal, the defence at trial did not allege that the ASD itself was not in proper working order. Const. Caplan tested the device prior to inserting a new mouthpiece for the appellant.
[27] The focus for the defence at trial was that the investigating officer could not reasonably exclude a defective or obstructed mouthpiece as an objective cause for the failure of the ASD to register a blood/alcohol reading during the series of breath-blows by the appellant. In other words, it was said that the state of the device’s mouthpiece made it appear that the appellant was not complying with the ASD demand.
[28] The conclusion of the trial judge that no doubt existed as to the mouthpiece being an extrinsic cause of the ASD failure was reasonably supported by the evidence. The trial judge had the distinct advantage of seeing and hearing the officer testify. The totality of circumstances, including the unsealing of an unused mouthpiece, and the constable’s experience and detailed observations, constituted a reasonable foundation for the court’s finding that the appellant deliberately refrained from a legitimate attempt to provide a suitable breath sample. In any event, in these circumstances, of repeated light and inconsistent, not hard and continuous blowing, the trial court was not obliged to inquire further into the condition of the ASD mouthpiece: see R. v. Didone, 2015 ONCA 636, at paras. 12-18; R. v. Young, 2007 ONCA 342, at paras. 1-2; R. v. Weare, [2005] O.J. No. 2411 (C.A.), at paras. 1-3.
CONCLUSION
[29] The appeal is dismissed.
[30] It is ordered that the clerk of the appeal court comply with Rule 40.23(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) as to distribution of these Reasons for Judgment.
Hill J.
DATE: March 6, 2018
COURT FILE: SCA(P) 560/71
DATE: 2018 03 06
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
RE: R. v. NICOLE ROACH
COUNSEL: C. Sibian, for the Respondent
R. Wulkan, for the Appellant
REASONS FOR JUDGMENT
[on appeal from conviction by Currie J. on July 12, 2017]
Hill J.
DATE: March 6, 2018