NEWMARKET COURT FILE NO.: CR-15-04630-00AP DATE: 20190226 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Appellant – and – VALENTINE EGBEOBAWAYE Respondent
Counsel: T. Hamilton, for the Crown S. Whitzman, for the Respondent
Heard: February 8, 2019
On Appeal From the Decision of Madam Justice M. Henschel dated April 25, 2018
MULLIGAN J.:
[1] The Crown appeals the acquittal of the respondent, Valentine Egbeobawaye, arising from a trial heard before Her Honour Justice M. Henschel on April 25, 2018, with reasons released for judgment on May 4, 2018. Both counsel acknowledged that the facts are not in dispute. The decision of the honourable judge involved a question of law. The parties agree that the applicable standard is therefore one of correctness.
Background
[2] On the 23rd of May 2015, the respondent was arrested. At trial, he entered a plea of not guilty to the following charge:
Valentine Egbeobawaye stands charged on or about the 23rd day of May 2015, at the City of Vaughan, in the said Region of York, without reasonable excuse, failed or refused to comply with a demand made to him by a peace officer under s. 254(2) of the Criminal Code of Canada and the circumstances therein mentioned to provide forthwith a sample of his breath, as in the opinion of a peace officer is necessary to enable a proper analysis of his breath to be made by means of an approved screening device, contrary to the Criminal Code of Canada, s. 254(5). [Emphasis added.]
[3] The arresting officer gave evidence that he had a reasonable suspicion that the respondent had a quantity of alcohol in his body. He requested the respondent to attend in his police cruiser to obtain a sample of his breath. He produced an ASD, did a self-test, explained it to the respondent, and spent about 15 minutes attempting to have the respondent provide a satisfactory sample into the device. The respondent did not produce a sample. He was then arrested for the refusal. The respondent did not testify at trial.
[4] The officer testified that the demand he made was as follows:
I demand that you provide suitable samples of your breath into an approved instrument to enable an analysis to be made to determine the concentration, if any, of alcohol in your body and that you will accompany me for this purpose. [Emphasis added.]
[5] Clearly, s. 254 deals with two different sample requests involving different devices. The first, based on reasonable suspicion, requires a sample into an approved screening device (s. 254(2)(b)). This is usually conducted by an officer at the roadside prior to an arrest. The second, based on reasonable and probable grounds, requires a sample into an approved instrument (s. 254(3.1)). This test is usually conducted at the police station by a breath technician after arrest and after rights to counsel are given.
[6] In either case, if there is refusal, s. 254(5) makes that refusal an offence.
[7] Both counsel agreed that the proper demand, if it was the officer’s intention to conduct roadside screening, should have been as follows:
I command that you provide a sample of your breath into an approved screening device to enable a proper analysis of your breath to be made and that you accompany me now for the purpose of taking the sample. [Emphasis added.]
[8] It should be noted that the Criminal Code provides definitions of “approved screening device” and “approved instrument” in s. 254(1) as follows:
Approved screening device means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purposes of this section by order of the Attorney General of Canada.
Approved instrument means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of s. 258 by order of the Attorney General of Canada.
The Decision of the Trial Judge
[9] In her written decision, Justice Henschel found that the elements of the offence of refusing to comply with a demand to provide a sample into an approved screening device were as follows:
(i) A proper demand was made; (ii) There was a failure or refusal to provide the required breath sample; and (iii) The detainee intended to fail or refused to provide the required sample.
[10] As the trial judge stated in her decision at para. 13:
The Crown must prove as an essential element of the offence that there was a “proper demand”. The critical issue to be determined is whether, in context, the words and conduct of P.C. Hominsky constituted a “proper demand”. In assessing whether a proper demand has been made a flexible and functional approach must be taken. What is important is not the formal wording used to make the demand, but whether the words and conduct of the officer clearly conveyed to the driver a demand that the driver provide a sample of breath into an approved screening device.
[11] After reviewing leading authorities, Her Honour acquitted the respondent, noting in her reasons:
[27] In this case, the fact that the officer read the accused the wrong demand is significant because only a lawful demand can criminalize disobedience with the demand. The compulsion to comply is created by the issuance of the demand and nature of the demand. In this case, the officer did not forget the exact words used, or omit a word from the formal demand that was conveyed implicitly, rather he made a demand under s. 254(3) of the Criminal Code. As between an ASD demand and an approved instrument demand, there are important differences in the circumstances in which the demands can be lawfully made, in the wording of the demands, and in the consequences that flow from the demands.
[28] At the time of the demand, the officer did not, as required, have reasonable grounds to believe that an offence had been committed under s. 253 and as a result the s. 254(3) demand was an unlawful demand. Because it was an unlawful demand the accused had no obligation to comply with the demand…
Analysis
[12] Both Crown and defence relied on a number of authorities where courts have considered circumstances in which an incorrect demand, an ASD command, was read to an accused as a basis for an accused being required to provide breath samples into an approved instrument when police had reasonable and probable grounds. No authorities were provided with respect to an accused person being charged with a refusal to provide a sample into an ASD device upon reasonable suspicion, when an incorrect demand had been made to provide a sample breath into an approved instrument.
[13] In R. v. Ghebretatiyos, [2000] O.J. No. 4982, Hill J. indicated that a functional and flexible approach should be taken, noting at para. 19:
In my opinion, no particular words are necessary to make a demand under this section. The demand, if made in popular language or in the words of the section, or in any other words that are such that convey to the person that the demand is made pursuant to the section, is a lawful demand…
[14] In R. v. Waisanen, 2015 ONSC 5823, Justice K. Campbell reviewed circumstances where the officer, by mistake, read the approved screening device demand instead of the approved instrument demand. After reviewing the facts, Campbell J. stated at para. 19:
…Approved screening device demands made pursuant to s. 254(2)(b) of the Criminal Code have been consistently held to be legally inadequate for this purpose. The decisions in this line of authority persuasively explain that these two demands are significantly different in their content and in their practical consequences for the accused, and that strict technical compliance with s. 258(1)(c) of the Criminal Code is required given the considerable evidentiary assistance provided to the Crown by the provision.
[15] In R. v. Alex, 2017 SCC 37, [2017] S.C.J. No. 37 (SCC), the Supreme Court of Canada reviewed the issue of the evidentiary shortcuts available to the Crown, when the Crown is able to file a certificate with respect to breath readings. The Court noted differences between refusal offences and over 80 offences, stating at paras. 48-49:
[48] I have difficulty with this comparison for a number of reasons. First, the textual argument assumes that the language of s. 254(5) requires the lawfulness of the demand to be an element of the offence. In my view, however, this element is better thought of as arising from the general nature of the refusal offence – an offence which criminalizes disobedience in response to lawful compulsion. Notwithstanding the words “made under”, disobedience with unlawful compulsion is simply not criminal. For example, the unlawfulness of an arrest can provide a complete defence to the charge of resisting arrest under s. 270 of the Code.
[49] …Culpability for the refusal offence is based on disobedience with lawful compulsion, whereas culpability of an “over 80” offence is based on driving with a blood-alcohol concentration over the legal limit. The lawfulness of the breath demand has no logical bearing on culpability for an “over 80” offence…
Conclusion
[16] The respondent was charged with a refusal offence, failing to provide a sample of his breath into an “approved screening device”. However, the demand made upon him was a demand that he provide a sample into an “approved instrument”. The officer had no reasonable and probable grounds to make such a demand. The learned trial judge clearly identified that it was an essential element of the offence under s. 254(5) that a lawful demand was made upon the respondent. As the Supreme Court noted in Alex at para. 48, “Disobedience with unlawful compulsion is simply not criminal.” In all the circumstances, I am not satisfied that the trial judge fell into legal error requiring appellate intervention in acquitting the respondent.
[17] The appeal by the Crown is dismissed.