Court File and Parties

COURT FILE NO.: CR-17-4112-00AP DATE: 20180710

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Jillian Rae Drouillard Appellant

Counsel: I. Mizel, for the Crown K. Golish, for the Appellant

HEARD: June 21, 2018

REASONS ON SUMMARY CONVICTION APPEAL

From a decision of Justice G. Pockele dated October 24, 2017

HEBNER J.

[1] On October 24, 2017 the trial judge convicted the appellant of failing or refusing to provide a breath sample by means of an approved screening device contrary to sections 254(2)(b) and 254(5) of the Criminal Code. She was sentenced to a fine of $1,500 and a suspension of her driver’s license for a period of one year. The appellant appealed her conviction. Although the notice of appeal also included an appeal from sentence, that issue was not pursued at the hearing. This is my decision on the appeal.

Background Facts

[2] The Amherstburg Police Service set up a RIDE program the night of February 26, 2016 at Thomas’s side road. At approximately 11:30 p.m. the appellant approached the RIDE program in a red Dodge Caravan. The appellant was the only person in the vehicle. Constable Zimmerman dealt with the appellant. He explained the purpose of the RIDE program and asked the appellant if she had had any alcohol to drink. She said she had not. Constable Zimmerman smelled alcohol on her breath, found her eyes to be glossy and unfocused and asked her to pull over to the side of the road so that he could conduct a test with an approved screening device.

[3] Constable Zimmerman was wearing a body camera at the time. The body camera recorded the entire encounter. The video recording was played at the trial and was the primary piece of evidence at the trial. The video shows that the appellant made seven attempts to blow into the device. She failed each time. It appeared each time that she started blowing, briefly paused, and then resumed. Constable Zimmerman told the appellant that she needed to provide a continuous breath. After the third attempt, Constable Zimmerman told the appellant that she could be charged with refusing to provide a breath sample.

[4] After the fourth attempt, Constable Zimmerman told the appellant that she “almost had it.” He told her that she had “2 clicks and needed 3”. At that point the appellant said she was annoyed and she would not comply anymore. She was told she was under arrest for refusing to provide a breath sample. She was told it was a criminal offence to refuse. She said “because I can’t blow properly?” Constable Zimmerman offered to give her another chance.

[5] After the fifth attempt, Constable Zimmerman had the appellant blow a steady breath for three seconds without the device and then told her to try it again. After the sixth attempt, Constable Zimmerman told the appellant that he would give her one more chance and that would be it. After the seventh attempt, Constable Zimmerman said “we’re done” and the appellant was arrested.

Issues on the Appeal

[6] There were 2 issues raised on appeal. They were:

1. Did the trial judge err in finding that the defendant deliberately refused to provide a sample of her breath?
2. Did the trial judge err in finding that the officer made a valid screening device demand?

Overview of the Law

[7] The Criminal Code, section 254(2)(b), allows a police officer who has reasonable grounds to suspect that a person has alcohol or a drug in their body to require the person 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.”

[8] Section 254(5) of the Criminal Code reads:

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

[9] The elements of the offence are set out by Justice Paciocco (as he then was) in para. 26 of R. v. Soucy, 2014 ONCJ 497 as follows:

First, the Crown must prove (the factual condition of) the existence of a demand having the requirements of one of the (6) types mentioned in subsection (2) and (3) (and 3.1, 3.3 and 3.4). Second the Crown must prove an (act of) failure or refusal by the defendant to produce the required sample of breath or the required sample of blood (or a failure or refusal to submit to the evaluation of an evaluation officer).

[10] The mens rea component of the offence has been the subject of substantial jurisprudence for over 15 years. Paciocco J., in Soucy, described “a deep disagreement in the case law relating to the culpable state of mind of the accused that has to be proven by the Crown.” (para. 28) He described two lines of authority. The first is the position captured in the decision of R. v. Lewko, 2002 SKCA 121, [2002] S.J. No. 622 (Sask. C.A.). The second is the position adopted in R. v. Porter 2012 ONSC 3504 (Ont. S.C.J.).

[11] In Lewko, the court held that the Crown must prove that the accused intentionally refused or failed to provide a suitable sample. “Therefore, a person who fails to provide an appropriate sample despite genuinely attempting to do so, will not have committed the actus reus of the offence”. Paciocco J. said that “on this standard, if Ms. Soucy’s testimony that she tried her best but failed raises a reasonable doubt in my mind, she would be entitled to an acquittal.” (Para. 29)

[12] In Porter, the court applied a conception of “general intent” that is met if the Crown proves the “knowledge or awareness by the accused of the prohibited act”. Paciocco J. said, “In applying this standard, it is no answer that the accused tried their best to furnish a sample unless they prove, on the balance of probabilities, that they had a “reasonable excuse” for failing”.

[13] Paciocco J. preferred the reasoning in Lewko. He said the Porter decision appeared to imply that knowledge imports intention. He referenced someone who knew they were involved in a car accident being entirely separate from intending to be in one. He said “[i]t is no less tenable, in my view, to say that someone is intentionally refusing or failing to provide a suitable sample even though they are honestly trying to do so, simply because they know or are aware that they did not succeed.”

[14] Paciocco J. summarized his conclusion at para. 50 simply:

If the principles of mens rea are properly applied in my view, the basic mens rea of intention that is to be read into section 254(5) requires, at its highest, no more than that the accused must refuse or fail “on purpose”.

[15] A similar result was reached by Harris J. in R. v. Tikhonov, 2014 CarswellOnt 10103. At para. 18, Harris J. said:

For those who honestly attempt to provide a breath sample, this construct (the Porter conclusion) presupposes the ready availability of an evidentiary justification for the failure to produce a viable ASD [Approved Screening Device] result. Surely it is to be expected that there will be those who tried but failed for reasons that are not known, ranging from underlying health issues of which they are not aware, to ASD mechanical or operational shortcomings, to other emotional and situational exigencies. For these individuals, the presumption of innocence would be little more than empty rhetoric under the Porter concept of the section 254(5) offence.

[16] At para. 19, Harris J. said:

As a result of the above conclusions, I have determined that the Crown must prove that the defendant intended to produce that failure to provide a suitable breath sample…

[17] I agree with the approach taken by Paciocco J. and Harris J. outlined above. Although not binding on me I find the reasoning to be persuasive. A cornerstone of our criminal justice system is the presumption of innocence until proven guilty beyond a reasonable doubt. That standard must apply to a s. 254(5) charge just as it applies to any other charge.

[18] I also agree with the reasoning of Paciocco J. where he said, at para. 57:

Although the Crown must prove the mens rea of an unintentional failure of the test, as a matter of common sense if a device was shown to be in good working order, the accused was given a clear explanation of its operation, and a sufficient opportunity to provide a sample was furnished, it can generally be inferred in the absence of evidence raising some question about the ability of the accused to comply that the accused intended to avoid furnishing a suitable sample: R. v. Dolphin, 2004 MBQB 252, [2004] M.J. No. 433 (Man. Q.B.). Even if the accused leads evidence suggesting that they tried to provide a sample, proof that a device was properly functioning can be considered in evaluating the testimony.

[19] In summary, then, the onus of proof is on the Crown to establish the following elements of the offence beyond a reasonable doubt:

1. The existence of a lawful demand;
2. An act or a series of acts that constitute a failure or refusal; and
3. An intention, as described in Soucy, to commit the act. That intention may be inferred in the circumstances described by Paciocco J. in Soucy, at para. 57.

[20] If these elements are proven, an accused is still entitled to raise a reasonable excuse for noncompliance, but will bear a persuasive burden, on a balance of probabilities, in so doing. (See R. v. Colson, 2018 ONCJ 118 at para. 39-40)

Issue 1. Did the trial judge err in finding that the defendant deliberately refused to provide a sample of her breath?

[21] There are two possible pathways to conviction in the second element of the offence. The accused can outright refuse to provide a breath sample. Alternatively, the accused can fail to provide a breath sample on purpose. In this case, in his reasons for judgment, the trial judge found that the appellant outright refused to provide a breath sample. He said “The Crown must show that the accused either wilfully refused to comply or, unequivocally, expressed an intention to refuse to comply. We have both elements here.” In my view, the trial judge erred in making the finding. After four attempts to provide a breath sample, the appellant became annoyed and said that she would not comply. Within seconds, while she was still in her vehicle, she resiled from that position and stated an intention to comply. The officer accepted that retraction and offered the appellant another chance to comply. Thereafter she made three further attempts to provide a sample.

[22] The law on this point goes back to 1979 in the decision of Grange J. of the Ontario Supreme Court – High Court of Justice (as it then was) called R. v. Domik, [1979] O.J. No. 1050. That case dealt with an initial refusal to provide a breath sample followed by a later assent. After reviewing jurisprudence to that point, Grange J. said, at para. 5:

I do not read these cases as establishing that in all circumstances a refusal separated in time from a later assent constitutes a crime. What I do gather from the cases is that the circumstances of the refusal and assent, the time between them and perhaps the availability of technician and machine are relevant considerations. Section 235 [a predecessor section] is drastic legislation interfering with the usual rule against self-incrimination. I do not think it unreasonable for a layperson or indeed anyone unskilled in criminal law at first to react negatively to an invitation to give the police incriminating evidence. I cannot imagine that Parliament intended to make such a refusal followed almost immediately by an assent, criminal.

[23] I agree with these comments. The video depicts the appellant in a stressful situation. The officer’s demeanour and language to her were forceful and intimidating. Each time she tried to provide a breath sample, the officer insisted on holding the machine and repeated in a somewhat aggressive tone “blow blow blow blow blow blow blow” over and over while the appellant was attempting to provide the sample. After four attempts, she declared that she was annoyed and that she would not comply. An exchange took place between the appellant and the officer where the officer informed the appellant that it was a criminal offence to refuse to provide a sample. Exactly one minute and 15 seconds after the appellant said she would not comply, the officer agreed to give her another chance and she made three further attempts.

[24] It seems to me that the exchange between the appellant and the officer cannot be compartmentalized such that her statements indicating an intention not to comply can be separated from her subsequent assent. Given her retraction from that position, and her three further attempts to provide a sample, I do not think it can be said that there was an outright refusal on the part of the appellant to provide a breath sample.

[25] However, that does not end the matter. The alternative pathway to conviction must be considered. The next question is, therefore, whether the Crown had proven, beyond a reasonable doubt, that the accused had failed, on purpose, to provide a sample of her breath.

The Device

[26] Where the question is one of failure, the Crown is required to prove beyond a reasonable doubt that the roadside test device was operating properly. The Crown conceded this point in argument.

[27] In R v. Andrievsky, 2015 ONCJ 70, the accused was stopped at a RIDE program. He tried on ten different occasions to provide a breath sample. After the fifth occasion, the officer took a fresh mouthpiece for himself, demonstrated how to provide a breath sample and the device returned a reading of “0”. The officer then instructed the accused to put his original mouthpiece back on the device and five further attempts were made. The officer also gave evidence that he was informed by another officer that the device had been tested at the start of his shift and a sticker was placed on the device indicating that it had been calibrated 11 days earlier. Bourque J. said at para. 9:

Where there is an unequivocal refusal to take the roadside test, there is no requirement that the Crown prove that the device was functioning. Whereas in our case, the charge is a failure to provide a sample and there is evidence of many attempts (at least 13 in our case) then there is an onus on the Crown to prove beyond a reasonable doubt that the device was operating properly.

[28] Counsel for the accused in that case took the position that as there was no evidence that the officer took specific steps to see that the mouthpiece used by the accused was free of obstruction, the court ought to be left with reasonable doubt as to whether the mens rea of the offence had been proven; that is, that the accused intentionally did not provide a sufficient sample (para. 9). Bourque J. found that there was sufficient other evidence that satisfied him beyond a reasonable doubt that there were no obstructions.

[29] In the case at hand, there was no evidence that the device was tested. There was no evidence that the device was operating properly. The officer did not take the instrument and demonstrate, himself, the appropriate method required to provide a satisfactory breath sample as was the case in Andrievsky. As there was no evidence that the device was in good working order, the inference that the appellant intended to avoid furnishing a sample cannot be made (Soucy, at para. 57).

[30] The trial judge identified the requirement in his reasons at page 38 of the transcript, but concluded that such evidence was not required. He said:

The crown is not required to prove it was in fact calibrated or in good working order, particularly, in instances where there is a refusal to provide a sample.

[31] For the reasons set out above, this was not a case of an outright refusal. The question is whether there was an intentional failure to provide a breath sample. Under those circumstances, some evidence on the part of the officer that he believed the device was in good working order and the reasons therefore is, in my view, necessary. Again, the trial judge identified the requirements in the following passage:

The Crown need only prove that the officer had, objectively, reasonable grounds for believing the device was in good working order, and formed reasonable grounds to arrest, based on the fail.

[32] There was no evidence in this case that Constable Zimmerman had reasonable grounds for believing that the device was in good working order. There was no evidence whatsoever that the device was in good working order.

The Evidence of the Accused

[33] The accused gave evidence at her trial. In her examination in chief, she gave the following evidence:

“Q. And so you agree that you – the officer asked you to blow into the machine a few times. A. Yes. Q. Okay. Were you trying to blow into the machine? A. I was. Q. Okay and so, the officer is saying that you weren’t making a, a sincere effort to do that, were you making a sincere effort to do that? A. I feel like I was.”

“Q. All right. In what – in – you weren’t – you ‘re not saying that they – you’re – is that something to do with saying about your understanding of the process, is that – is that what you’re telling us? A. Do I understand the process of the breathalyzer? Q. Of what was going on, yes. A. I thought I was – I thought I was doing it correct.”

[34] Given the evidence of the accused that she had made sincere attempts to provide a breath sample and she thought she was doing it correctly, it was necessary for the trial judge to embark upon the analysis directed by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. The trial judge made reference to the number of attempts made by the accused (seven). The trial judge found that the appellant was told of the consequences of refusal. The trial judge found that she was frightened. He commented on the videotape and found that she was not winded. He found that she was “a bit dazed” and “not immediately responsive”. He referenced the evidence of the two police officers that there was a heavy order of an alcoholic beverage in the vehicle. He then said:

The Crown has established a prima facie case. The defence has to raise a reasonable doubt on any of the essential elements and through its evidence has attempted to raise a reasonable doubt on the question of mens rea or intent to commit this offence, intent to refuse to provide a sample, intent to fail to provide a sample. Best evidence is failed to raise a reasonable doubt on any of these issues and the evidence of that offence does not rise to the level of being believable or practical, it’s entirely speculative.

[35] It is clear from his reasons that the trial judge did not accept the appellant’s evidence. However, in my view, he did not properly apply the W.(D.) analysis in the above passage. In my view, the trial judge shifted the onus from the crown to the accused.

[36] The Crown is not required to simply establish a prima facie case. The Crown is required to prove its case beyond a reasonable doubt on all of the essential elements. The W.(D.) analysis does not result in a shift of that burden on to the accused. It is only when all of the essential elements are proven by the Crown beyond a reasonable doubt that the W.(D.) analysis is used to assess the evidence of the accused.

[37] In this case, the Crown did not prove its case beyond a reasonable doubt. The Crown did not call evidence that the roadside screening device was in good working order. That evidence was required in order to prove, beyond a reasonable doubt, that the mens rea component of the offence was established – namely that the accused failed to provide a breath sample on purpose. That evidence would also be required to allow the inference described in Soucy. Without that evidence there can be no inference that the appellant intended a fail result.

[38] As the second element of the offence has not been proven beyond a reasonable doubt, the conviction cannot stand.

[39] Given my findings on the first ground for appeal, there is no need to consider the second ground for appeal.

Disposition

[40] For the reasons set out above, the decision of the trial judge is set aside and the appellant is acquitted of the charge.

“original signed and released by Hebner J. ”

Pamela L. Hebner Justice

Released: July 10, 2018

COURT FILE NO.: CR-17-4112-00AP ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – Jillian Rae Drouillard Appellant ruling on summary conviction appeal Hebner J. Released: July 10, 2018