Her Majesty the Queen v. Vu Truong, 2020 ONSC 3871

Court File No.: SCA(P) 1697/19 Date: 2020 06 22 Ontario Superior Court of Justice Summary Conviction Appeal Court

Between: Her Majesty the Queen, Respondent And: Vu Truong, Appellant

Counsel: S. Yu, for the Respondent Peter Thorning, for the Appellant

Heard: May 26, 2020

Reasons for Judgment [On appeal from the judgment of Freeman J. dated June 26, 2019]

Before: Dennison J.

Overview

[1] The appellant, Mr. Truong, was convicted of refusing to provide a breath sample, contrary to s. 254(5) of the Criminal Code, R.S.C., 1985, c. C-46.

[2] There were two witnesses at trial: PC Caplan and the appellant. PC Caplan testified that the appellant did not blow into the Approved Screening Device (“ASD”) despite repeated instructions. The appellant told a very different version of events. He testified that PC Caplan did not provide him with proper instructions on how to blow into the ASD. PC Caplan was angry and shouted at the appellant, so he did not ask how to properly blow into the device.

[3] For the reasons outlined below, the appeal is dismissed.

Issues

[4] The issues to be determined on this appeal are:

1. Whether the trial judge properly determined that the elements of the offence had been proven beyond a reasonable doubt; and
2. Whether the trial judge unevenly scrutinized the appellant’s evidence as compared to PC Caplan’s evidence.

Review of the Evidence

PC Caplan’s Evidence

[5] PC Caplan testified that on August 15, 2018, at approximately 3:22 a.m., he was driving northbound on Highway 410. He observed that the exit to Derry Road was closed off with pylons due to construction. He observed a white SUV exit the highway at Derry Road and drive between the pylons. PC Caplan followed the vehicle. The vehicle stopped at a red light at the intersection at the exit ramp and Derry Road. When the light turned green, the SUV did not move for approximately five seconds. After the vehicle turned, PC Caplan activated his lights and pulled over the SUV.

[6] PC Caplan approached the vehicle and asked the driver why he exited the ramp when it was closed. The appellant advised him that the 401 exit was closed and he wanted to turn around. PC Caplan recalled that the 401 exit was in fact closed.

[7] When PC Caplan spoke to the appellant, he had a flashlight. PC Caplan detected a strong odour of alcohol emanating from the appellant’s breath. He also observed that the appellant’s eyes were bloodshot and watery. PC Caplan asked the appellant when he last consumed alcohol. The appellant denied any alcohol consumption.

[8] At that time, PC Caplan suspected that the appellant was impaired and made a demand that he provide a breath sample. PC Caplan made no notation of the appellant’s actual reply to the demand. He testified that it was unlikely that the appellant gave no response. PC Caplan testified that if the appellant did not answer, he would inquire whether the appellant understood him. He stated that he would usually ask for a verbal response.

[9] The demand was made in English. PC Caplan stated that he had no concerns that the appellant understood him. After reading the demand, PC Caplan had the appellant exit the vehicle. He still smelled alcohol coming from the appellant.

[10] The ASD was a Drager Alcotest 6810. PC Caplan testified that he advised the appellant how to blow into the ASD. He stated that he told him “to take a …”, and then the Crown interrupted him and asked him to tell the court exactly how he described it to the appellant. PC Caplan stated, “I’ll usually say ‘take a deep breath and keep blowing till I say stop.’ And I’ll tell them ‘usually you’ll hear a click. That’s when the test is done, but I’ll tell you to stop.’” PC Caplan stated that 3:24 a.m. was “the time I describe how to use it and I provide it to him to blow into it”. In cross-examination, PC Caplan also testified that his initial directions were to keep blowing until he told him to stop.

[11] PC Caplan held the device and the appellant put it to his mouth. The appellant puffed out his cheeks, but PC Caplan did not hear any air going through and there was no tone. PC Caplan explained that when someone provides a sample there is a long tone until the person has provided enough air. There was no air going through so there was no tone. As PC Caplan stated, “he made it look like he was providing a sample without actually blowing into it.” PC Caplan told the appellant “you actually have to blow into it”. The appellant told PC Caplan that he was and again puffed up his cheeks without blowing into the ASD.

[12] At 3:25 a.m., PC Caplan cautioned the appellant for failing to comply with the demand.

[13] At approximately 3:36 a.m., PC Caplan put in a new mouthpiece and demonstrated to the appellant how to provide a suitable sample into the ASD. PC Caplan showed the appellant that the device was working properly.

[14] PC Caplan then put in a new mouthpiece for the appellant. The appellant provided a sample, but it had insufficient volume. PC Caplan heard the tone, but the appellant did not provide the breath sample long enough. PC Caplan told the appellant that he had to blow harder into the ASD.

[15] The appellant blew again and provided a tone, but the sample had insufficient volume. As soon as the tone started, the appellant stopped blowing.

[16] At 3:27 a.m., PC Caplan gave the appellant a second caution and advised him that he would be charged with refusing to provide a sample. He also told the appellant that there was a possibility that he may blow an alert, which would mean a three-day suspension, not a criminal charge, because sometimes people are nervous to blow into the device.

[17] PC Caplan instructed the appellant to blow into the ASD again. The appellant made it look like he was blowing, and PC Caplan told him to blow harder because there was no air going through. The appellant did not follow his instructions.

[18] At 3:28 a.m., PC Caplan told the appellant that this was his last chance, or he would be arrested. The appellant put his lips on the mouthpiece but did not blow. The appellant was then placed under arrested for failing to comply with the demand. Once the appellant was arrested, he apologized for wasting the officer’s time. The appellant never asked any questions while attempting to provide the breath sample.

[19] In examination in-chief, PC Caplan was asked how many attempts in total he gave the appellant. He said, “I believe it was eight”. PC Caplan was cross-examined about the various attempts and testified that “I guess there were only six attempts, not eight”.

Mr. Truong’s Evidence

[20] Mr. Truong worked in information technology. He testified that on August 15, 2018, he worked at the West Mall because he had to fix a server that went down. He worked from 3:00 p.m. to around 2:30 or 3:00 a.m. He did not work often at this location.

[21] After work, he took Highway 427 North intending to exit at the Highway 401 East ramp. It was closed. He took the Highway 401 West ramp. He wanted to turn around and get on Highway 401 East. He got onto Highway 410 and exited at Derry Road, intending to turn around. He drove through the pylons at the exit because he saw several cars exit through the pylons.

[22] He did not think of taking Highway 427 North because he was not familiar with the area. He did not think of getting off at Dixie Road or Courtney Park. He stated that he did not know any other exit.

[23] The appellant stopped at the red light. He explained that when the light turned green, he stopped for about five seconds before turning because it was dark and early in the morning, so he wanted to be careful before he proceeded.

[24] After he turned, he saw the police vehicle with its lights on. He stopped right away. He testified that it was dark, but there was sufficient light for the officer to see into the vehicle. He said that the officer was not carrying a flashlight.

[25] The appellant stated that PC Caplan approached his car and told him to turn off the engine and step out of the car. The appellant initially denied that there was any conversation about him exiting the ramp through the pylons. Later in cross-examination, he stated that the officer told him the area was blocked and asked him how he got there.

[26] The appellant stated that once he was out of the car, PC Caplan asked him if he was drinking. The appellant told him he did not drink anything. The appellant testified that he does not drink alcohol. He denied that he smelled of alcohol or that his eyes were red and watery.

[27] PC Caplan asked the appellant to blow into the ASD but did not provide him with any instructions. The appellant agreed that he was given six attempts.

[28] The appellant testified that during the first two attempts, the officer only instructed him to blow. The appellant denied that PC Caplan cautioned him after the second attempt or demonstrated to him how to blow into the ASD.

[29] The appellant testified that on the third and fourth attempts, PC Caplan told him to blow harder. He did and heard the tones. He testified that he stopped because he thought the sample was good enough. He stated that the officer did not tell him to stop or keep going.

[30] The appellant stated that during the fifth and sixth attempts, PC Caplan did not provide any instructions on how long to blow or to blow harder. He agreed that he did not hear any tones on the fifth and sixth attempts.

[31] PC Caplan arrested him after the sixth attempt. The appellant testified that he did not ask PC Caplan any questions because PC Caplan shouted at him. He also testified that although PC Caplan was angry, the appellant asked him to give him another chance to blow into the ASD because he did not want to go to jail, but PC Caplan did not agree.

[32] The appellant stated that he told the officer that he was sorry for wasting his time because the appellant tried really hard to blow into the ASD. In cross-examination, the appellant stated that once he was arrested, he asked the officer why he did not stop other vehicles but stopped his.

[33] While the appellant had the assistance of an interpreter at his trial, there was no issue that he understood and communicated in English. His request for an interpreter at trial was to assist with any legal terms that he may not understand.

The Trial Judge’s Decision

[34] The trial judge released oral reasons ten days after hearing the evidence. She stated that by the conclusion of the trial, “the sole issue remaining was whether Mr. Truong’s refusal to comply was done without reasonable excuse”.

[35] In considering the witnesses’ evidence, the trial judge applied the principles set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742.

[36] The trial judge first considered the appellant’s evidence. She rejected his evidence and found that it did not raise a reasonable doubt. She found his evidence lacked reliability and credibility for several reasons:

(1) His evidence for why he exited at Highway 410 and Derry Road did not make sense. There were several earlier exits he could have taken to turn around, yet he chose a ramp that was closed which suggested that re-entry could be difficult due to construction. (2) The appellant testified that it was dark with no streetlights, yet the appellant testified that PC Caplan did not use a flashlight. The trial judge found this evidence did not make sense. (3) There was an inconsistency in the appellant’s evidence regarding what PC Caplan said when he stopped the appellant. In examination in chief, the appellant testified that PC Caplan did not mention the closed exit, but in cross-examination, he stated that PC Caplan said the area was blocked and asked how he got there. The trial judge accepted PC Caplan’s evidence that he immediately asked the appellant why he went through the closed exit. (4) The appellant testified that he was not instructed on how to blow into the ASD. He also testified that he did not know how to blow into it, but he put his mouth to the mouthpiece and blew. (5) The appellant testified that PC Caplan yelled at him after the second failed attempt, but later said it was after the third attempt. (6) The appellant did not ask any questions during the first four attempts because he thought he was doing it right. The trial judge found that this did not make sense because the appellant testified that he thought he provided a proper sample after the first attempt, but PC Caplan continued to demand a sample and was yelling at him to blow harder. (7) The appellant testified that after the third attempt, he knew he had to blow harder, and during the next two attempts, he produced a tone. During the fifth and sixth attempts, he produced no tone, confirming that he was not blowing hard enough into the device. (8) The appellant knew he had to blow hard enough to emit a tone so that he would not be yelled at, but during the fifth and sixth attempts, he did not blow sufficient air to emit a tone. He provided no explanation for this. The trial judge held that if PC Caplan was truly yelling at the appellant and he was afraid, it makes sense that the appellant would have blown hard enough to produce a tone on the fifth and sixth attempts. The fact that he did not undermined his evidence that he was yelled at and that he was truly trying to blow hard into the device. (9) The appellant testified that his fear of PC Caplan prevented him from asking what he was doing wrong. He also testified that the height of PC Caplan’s anger was when he arrested the appellant. The trial judge found that the appellant’s evidence that he asked for another chance and asked why PC Caplan did not stop other vehicles did not make sense given the appellant’s evidence about PC Caplan’s anger.

[37] The trial judge then considered PC Caplan’s evidence and was satisfied that the Crown had proven the offence beyond a reasonable doubt. The trial judge found that PC Caplan’s evidence made sense. She held that it made sense that he would tell the appellant to blow into the ASD until he told him to stop because this is how the machine works. It also made sense that after the first attempt, PC Caplan would tell the appellant to blow into the ASD because the lack of tone told the officer that the appellant was not blowing into the device. She also found that it made sense that PC Caplan would demonstrate how to blow into the ASD after the first two failed attempts.

[38] While counsel for the appellant submitted that there was no evidence that the appellant saw PC Caplan’s demonstration or the test result, the trial judge rejected the appellant’s evidence on this point because after the demonstration, the appellant produced a tone and then stopped blowing. The trial judge also found that it made sense that PC Caplan cautioned the appellant after the second attempt when he was not blowing into the device.

[39] The trial judge found that PC Caplan was vigorously cross-examined, and his evidence was consistent, with the exception of whether there were six or eight attempts. The trial judge found that PC Caplan was initially mistaken that there were eight attempts and this mistake was through “mere inadvertence”.

[40] Accordingly, the trial judge was satisfied beyond a reasonable doubt that the appellant was guilty of failing to comply with a breath demand without reasonable excuse.

Discussion

Issue #1: Did the Trial judge Err in Assessing Whether the Crown had Proven the Offence Beyond a Reasonable Doubt?

Position of the Parties

[41] The appellant submits that the trial judge did not apply the proper test in assessing whether the offence had been proven beyond a reasonable doubt. He submits that the trial judge went straight to the issue of whether the appellant had a reasonable excuse without first being satisfied that the Crown had proven both the actus reus and mens rea of the offence.

[42] The Crown submits that the trial judge did not err in this regard but dealt with the case as the parties framed it. Even if the trial judge erred in assessing the reasonable excuse, this was a harmless error because the trial judge required the Crown to disprove the defence of reasonable excuse beyond a reasonable doubt, which is a higher onus than is required.

The Applicable Law

[43] The actus reus of this offence requires that there be a proper demand and a refusal or failure to comply with the demand: R. v. Moser, [1992] O.J. No. 602 (C.A.), at para. 33. The refusal may be verbal, express, or constructive. “Where the accused’s conduct amounts to feigning attempts to provide breath samples, the totality of the circumstances including any explanation advanced at the time of the attempt must be considered” (emphasis added): R. v. Butler, 2013 ONSC 2403, at para. 41; R. v. Bijelic, [2008] O.J. No. 1911 (S.C.), at para. 30; R. v. Porter, 2012 ONSC 3504, at paras. 30-31.

[44] The mens rea of the offence requires the Crown to prove that the accused knew or was aware of the prohibited act. It is a general intent offence. There is no requirement that the Crown prove that the accused wilfully or intentionally refused to provide a breath sample: Porter, at para. 37; R. v. Pletsas, 2014 ONSC 1568, at para. 67.

[45] The defence of “reasonable excuse” is not a denial of either the actus reus or the mens rea. The defence “refers to ‘matters which stand outside of the requirements that must be met’”: Porter, at para. 30; Pletsas, at para. 67. For example, requesting an opportunity to speak to counsel before providing a breath sample may be considered a “reasonable excuse”: R. v. Taraschuk, [1977] 1 S.C.R. 385, at p. 932. Medical conditions may also be a reasonable excuse: Butler, at para. 43.

[46] Evidence of explanations or excuses may therefore be relevant to both the actus reus of the offence and to the defence of “reasonable excuse”.

[47] Code J. in Porter held that the “bright line” distinction between the actus reus and “reasonable excuse” defence becomes harder to maintain where the accused appears to be trying to provide a sample but fails to do so and provides some explanation for this failure: para. 31. The distinction is difficult to maintain where it is alleged that the accused was faking of feigning to comply with the police demand because the court must consider all of the circumstances, including the accused’s actions and explanations. As stated by Hill J. in Bijelic, at para. 30,

[…] Evidence of a refusal may arise from conduct of the detained motorist, his or her statements to the officer in the course of the ASD testing process, or from a combination of conduct and statements. Refusal to comply may be quite express or may logically be inferred from the totality of the detained driver’s behaviour.

[48] The Crown must prove the actus reus beyond a reasonable doubt. The accused must prove the defence of “reasonable excuse” on a balance of probabilities: Porter, at para. 38. An error can arise where the trial judge reverses the onus and requires the accused to prove the reasonable excuse as opposed to requiring the Crown to prove that there was a feigned attempt to provide a sample.

Analysis

[49] The appellant submits that the trial judge conflated the elements of the offence and the reasonable excuse defence and applied the wrong standard of proof by not requiring the Crown to prove the elements of the offence beyond a reasonable doubt. The appellant submits that the trial judge’s error is demonstrated in the opening paragraph of her oral reasons where she stated, “by the conclusion of the trial, the sole issuing remaining was whether Mr. Truong’s refusal to comply was done without reasonable excuse”.

[50] The trial judge’s statement that the sole issue was whether the appellant’s refusal to comply was done without reasonable excuse cannot be read in isolation. While the trial judge did not set out the elements of the offence, she is presumed to know the law. When the trial judge’s reasons are read as a whole, I am satisfied that she applied the correct standard of proof in finding that the Crown had proven its case beyond a reasonable doubt.

[51] Given the facts in this case, the trial judge was correct that the sole issue was whether the appellant had a reasonable excuse for not complying with the demand. If the trial judge accepted the appellant’s explanation, or his evidence raised a reasonable doubt, the Crown would have failed to prove that the appellant refused to provide a breath sample and the actus reus of the offence would not have been proven.

[52] The trial judge applied the proper onus in assessing the evidence. The trial judge properly understood that although there were only two witnesses, “it would be an error to approach [her] decision simply preferring one witness’s evidence over the other.” She recognized that she had to apply the principles of W.D., as she stated,

Even if I don’t accept the evidence of Mr. Truong, or don’t find that it leaves me in a reasonable doubt, I must still consider whether on the evidence I do accept the Crown has proven beyond a reasonable doubt that Mr. Truong’s refusal to provide a sample of breath into an ASD was without reasonable excuse.

[53] The trial judge rejected the appellant’s evidence that he was not told how to properly provide a sample into the ASD and held that his evidence did not raise a reasonable doubt. She explained that even on the appellant’s evidence, it was clear that by the third attempt, he knew he had to blow into the device with sufficient force to emit a tone. The fact that he failed to do so on the fifth and sixth attempts is evidence that he “wilfully” refused to provide a sample, which was a higher standard of proof than is required for the mens rea for this offence.

[54] The trial judge also properly recognized that if she accepted PC Caplan’s evidence, then the Crown would have proven its case beyond a reasonable doubt. The trial judge accepted PC Caplan’s evidence because it made sense in the circumstances and was consistent, with one exception. She found that PC Caplan’s evidence that he told the appellant to blow until he told him to stop made sense because that is how the machine works. She also found that it made sense that PC Caplan would demonstrate how to provide a sample into the ASD after the appellant’s two failed attempts.

[55] There was no need for the trial judge to explicitly address the separate defence of reasonable excuse because the trial judge rejected the appellant’s evidence about his excuse and found that he wilfully refused to provide a sample.

[56] For these reasons, the first ground of appeal cannot succeed.

Issue #2: Did the Trial Judge Unevenly Scrutinize the Appellant’s Evidence as Compared to PC Caplan’s Evidence?

Position of the Parties

[57] The second and related error alleged by the appellant is that the trial judge applied an uneven level of scrutiny to the appellant’s evidence as compared to PC Caplan’s evidence. The appellant submits that the trial judge focused on minor inconsistencies in the appellant’s evidence and was unforgiving in her criticism of his evidence. In contrast, she did not find the inconsistency in PC Caplan’s evidence to be important and was not critical of areas of PC Caplan’s evidence that warranted scrutiny. In addition, the appellant submits that the trial judge misapprehended certain pieces of the appellant’s evidence that compounded her error in assessing the appellant’s credibility.

[58] The Crown submits that the trial judge did not apply different standards when scrutinizing the evidence of the appellant and PC Caplan. The trial judge found that there were more inconsistencies and problems with the appellant’s evidence than there were with PC Caplan’s evidence. These findings do not equate to assessing the evidence using different standards. The Crown also submits that there was no material misrepresentation of the evidence that played an essential part in the trial judge’s reasoning process that resulted in the conviction.

The Applicable Law

[59] It is an error of law to subject the evidence of the defence to a higher level of scrutiny than the evidence of the Crown: R. v. Rhayel, 2015 ONCA 377, at para. 96; R. v. H.C., 2009 ONCA 56, at para. 62.

[60] An argument that the trial judge applied a different level of scrutiny to the defence’s evidence than to the Crown’s evidence “is a notoriously difficult ground of appeal to succeed upon because a trial judge’s credibility determinations are entitled to a high degree of deference”: R. v. Kiss, 2018 ONCA 184, at para. 83. Such arguments are often seen as a veiled invitation to re-assess the trial judge’s credibility determinations: Kiss, at para. 83; R. v. Aird, 2015 ONCA 447, at para. 39.

[61] It is not enough to show that a different trial judge could have reached a different credibility assessment or failed to say something in assessing the credibility of the complainant and accused. To succeed, the appellant must point to something in the reasons or on the record that makes it clear that the trial judge applied different standards in assessing the defence and Crown evidence: R. v. Howe, [2005] O.J. No. 39 (C.A.), at para. 59; Kiss, at para. 83.

[62] Courts have found that the trial judge applied an uneven scrutiny of the evidence where the trial judge focused on small weaknesses in the evidence of the accused but did not consider similar small weaknesses in the complainant’s evidence: R. v. Gravesande, 2015 ONCA 774, at para 37. An uneven scrutiny of the evidence was also found where the trial judge took every opportunity to find a reason to reject the accused’s evidence but was forgiving of similar or more serious problems in the complainant’s evidence: Kiss, at paras. 84, 86-93.

Analysis

[63] This case is not like Gravesande or Kiss. In this case, there were several inconsistencies in the appellant’s evidence that had an adverse impact on his credibility. In contrast, there was only one inconsistency in PC Caplan’s evidence. The fact that the trial judge found more inconsistencies in one witness’ evidence as opposed to the other does not mean that the evidence was unevenly scrutinized. Moreover, the trial judge found that the appellant’s evidence did not make sense in several areas. In contrast, the trial judge found that PC Caplan’s evidence made sense. There is nothing wrong with a trial judge assessing evidence “through the lens of common sense and everyday experience”: H.C., at para. 64.

[64] I will now address several of the appellant’s specific complaints with how the trial judge treated his evidence as compared to the PC Caplan’s evidence.

The Appellant’s Evidence

1. Evidence of How He Got Onto Derry Road

[65] The trial judge found that the appellant’s evidence as to why he exited at Derry Road did not make sense. The appellant testified that he was trying to exit onto the Highway 401 East, but it was closed. He ended up going West on Highway 401 and then took Highway 410. He said he wanted to turn around yet passed several exits before he exited at Derry Road, which was closed with pylons.

[66] The appellant submits that in finding that his evidence did not make sense, the trial judge failed to consider that the appellant was unfamiliar with the area, that there were pylons on the ramp, and that other cars travelled through the ramp. The fact that the trial judge did not refer to this evidence does not impact her finding that the appellant’s evidence did not make sense. Her point was that the appellant had other opportunities to exit earlier to turn around, but he did not do so. Instead, he chose to drive past several exits and then exit at a closed ramp. The trial judge is not required to refer to all of the evidence.

2. Evidence About PC Caplan Not Having a Flashlight

[67] The trial judge found that the appellant’s evidence that PC Caplan did not have a flashlight did not make sense in light of the appellant’s evidence that the area was dark and there were no residences, businesses or streetlights nearby.

[68] The trial judge correctly stated that PC Caplan testified that he was alone and used a flashlight to see the appellant. She erred however in stating that PC Caplan testified that he had the flashlight for safety. The Crown submitted that it made sense that PC Caplan had a flashlight for safety given the time and location of the stop, but this is not what PC Caplan testified to.

[69] To warrant appellate intervention, there must be more than a mere misstatement or inaccuracy in the trial judge’s treatment of the evidence: R. v. T.T., 2009 ONCA 613, at para. 33. The “misapprehensions must be of substance rather than detail, they must be material rather than peripheral to the judge’s reasoning and the alleged errors must play an essential part in the reasoning process”: T.T., at para. 33. In those circumstances, the accused has not received a fair trial and has been the victim of a miscarriage of justice, even if the evidence at trial was capable of supporting a conviction: R. v. Cloutier, 2011 ONCA 484, at para. 60; R. v. C.L.Y., [2008] 1 S.C.R. 5, at para. 19; R. v. Lohrer, [2004] 3 S.C.R. 732, at para. 1.

[70] In this case, the misapprehension of evidence was not of substance and did not play an essential part of the trial judge’s reasoning process. First, this was a minor fact the trial judge considered in rejecting the appellant’s evidence that PC Caplan did not have a flashlight. The appellant testified that it was dark, yet PC Caplan could see into the vehicle without a flashlight. That evidence made no sense regardless of whether PC Caplan said he needed the flashlight for safety. Second, even if the trial judge was incorrect about the source of the information that the flashlight was necessary for safety, it is a matter of common sense that PC Caplan would have a flashlight given the circumstances, as submitted by the Crown.

[71] I also do not accept the appellant’s submission that the appellant’s inconsistent evidence regarding the flashlight was a collateral issue that the trial judge improperly overemphasized, as in Kiss. Whether PC Caplan had a flashlight formed part of the interaction with the appellant and the circumstances under which the demand was made. The inconsistency in his evidence on this point was relevant in assessing the appellant’s credibility regarding what occurred during the interaction.

3. Evidence on Their Conversation About the Closed Exit

[72] The appellant’s evidence was inconsistent as to whether PC Caplan said anything to him about exiting the ramp when he was first stopped. This inconsistency is not in relation to a collateral or minor point. It was a significant inconsistency in the appellant’s evidence.

4. Evidence That The Appellant Did Not Know How to Blow Into the ASD

[73] The trial judge held that while the appellant testified that he did not know how to blow into the ASD, when it was given to him, he did in fact blow. He clearly knew that he had to blow into it.

[74] I reject the appellant’s submission that this is “one of the main reasons” the trial judge rejected the appellant’s evidence. It was one factor the trial judge considered.

[75] I also do not accept the appellant’s submission that the trial judge did not understand that the issue was that the appellant did not know how to blow into the ASD properly, not whether he knew he had to blow into the ASD when the reasons are read as a whole. The trial judge referred to the appellant’s evidence that he was not given any instructions, except being told repeatedly to blow harder. She rejected his evidence that he was not provided proper instructions and referred to the fact that after third attempt, which according to PC Caplan’s evidence was after he provided a demonstration, the appellant provided samples sufficient to emit tones for the next two attempts.

[76] The fact that the appellant put his mouth to the ASD despite testifying that he was told to blow but was not given any instructions is a factor the trial judge was entitled to consider in assessing the appellant’s credibility.

5. Evidence That PC Caplan Yelled at the Appellant Between the Second and Third Attempts

[77] There were inconsistencies in the appellant’s evidence as to when PC Caplan yelled at him. In examination in chief, the appellant never testified that the officer yelled at him. He used words such as the officer “asked” him or “told” him certain things. In cross-examination he said testified as follows,

Q. And like you said earlier, when you don’t understand something in either your personal or professional life, you ask for clarification. Correct? A. Yes. When he talked to me, he was angry and he raised his voice and he scare me, I dare not ask him any question because he was a police officer. Q. Except for “why did you stop them and not me?” – or vice-versa. A. I didn’t ask that redundant question because I was arrested and charged already by that time. Q. So an officer has raised his voice at you and caused you to be afraid, before your arrest, but after- and you’re too afraid to say anything at that point, but after your arrest you have now the courage to say, “Why did you stop me and not those other people?” A. Because everything was done already, and then he charged me, arrested me already, so… Q. When you say he got angry with you, how - what did he do that made you think he was angry? A. He shouted at me each time that I- even though I try to blow into the device, but fail, and he shouted at me. Q. So by shouting at you that caused you to be afraid of him? A. Yeah. Q. He didn’t threaten violence on you. A. He said that I would go to jail. Q. He didn’t hit you. A. No. Q. He didn’t hurt you in any way. A. No. Q. So what he said was exactly about jail. A. He said that if I don’t blow hard I would go to jail, and I did blow - I blow harder already. I blew harder after he shouted at me, and then I heard a tone. Q. Regardless of what he may or may not have said to you, you knew that you needed to put your mouth on the device and blow. A. He didn’t show me how to blow into the device. I did not know how to blow into it. Q. But you made an attempt nonetheless, without knowing. A. Yes, twice. And then he shouted at me, and told me to blow harder, and the third time there was a tone. Q. By the fourth - or by the third attempt you knew - you started to catch on that “Okay, I have to blow hard enough to emit a tone”. A. Yes. Q. And you were told by him at that point to blow harder. A. Yeah. Yes and I did. Q. You don’t say to him how hard? A. After each attempt he shouted at me, that why I didn’t ask him. Q. But for the first three attempts he was not shouting at you. A. He shouted at me and I continued to blow. Q. Your evidence sir, is that he started shouting at you after the third failed attempt. A. That’s correct. Q. And during the first three attempts, where there was no shouting, you did not ask him how to do the blow. A. If I did something wrong, how come he didn’t show me how to do it?

[78] The trial judge did not misapprehend the evidence. The appellant agreed with the Crown’s suggestion that the officer did not shout at him until after the third attempt. The problem with this evidence is that there was no basis for the Crown to put that suggestion to the appellant. Had counsel for the appellant objected, the trial judge would have disregarded this answer because the appellant had previously testified that it was after each time or after the second attempt. The appellant never testified that PC Caplan first shouted at him after the third attempt.

[79] Whether this is characterized as a misapprehension of evidence or evidence that should not have been admitted, I do not find that this error renders the verdict unreasonable, constitutes an error in law or results in a miscarriage of justice such that a new trial should be ordered.

[80] The trial judge was correct that there was an inconsistency in the appellant’s evidence regarding when PC Caplan started to yell at him. The error, whether it was after the second or third attempt, was one of detail not substance.

[81] Even assuming the trial judge erred in considering this evidence, it is not a material misapprehension. As explained by the Supreme Court of Canada in R. v. Sinclair, 2011 SCC 40, “for a misapprehension of evidence to be material, it must go to a central element of the trial judge’s reasoning on which the conviction is based.” “An error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground”: at para. 56.

[82] Striking this evidence from the trial judge’s assessment of the appellant’s credibility would not leave the trial judge’s reasoning on unsteady ground. There was overwhelming evidence upon which to reject the appellant’s evidence. The trial judge pointed to eight other factors that she considered in determining to reject the appellant’s evidence. Many of the other factors contained greater inconsistencies. Moreover, the appellant’s evidence did not make sense on several material issues. I do not find that consideration of this inconsistency in the appellant’s evidence played an essential part in the reasoning process that resulted in a conviction in the circumstances of this case. T.T., at para. 33: Cloutier at paras. 82-85; R. v. Morrisey (1995), 22 O.R. (3d) 514.

6. Evidence About Why the Appellant Did Not Ask What He Was Doing Wrong

[83] The trial judge also held that it did not make sense that the appellant testified that he did not ask during the first four times if he was doing anything wrong. The appellant testified that he believed he provided a proper sample after the first attempt, but by his own evidence, PC Caplan kept demanding a sample. I do not find that anything turns on the fact that the trial judge referred to this as an inconsistency as opposed to an implausibility as suggested by the appellant.

7. Issues Related to the Appellant’s Evidence After the Third Attempt

[84] The trial judge found that the appellant knew he had to blow harder but did not do so. As she explained, the appellant produced a tone in the third and fourth attempts but did not produce a tone on the fifth or sixth attempts. This evidence also undermined the appellant’s evidence that PC Caplan yelled at him. If the appellant did not want to be yelled at, it would have been reasonable for him to have blown hard enough to emit a tone on the fifth and sixth attempts.

[85] The trial judge also did not accept the appellant’s reason for not asking questions about how to blow into the device. The appellant stated that PC Caplan’s anger prevented him from asking him what he was doing wrong. Yet as soon as the appellant was placed in custody, he found the courage to ask for another chance. He also asked why the officer did not stop other vehicles using that exit. The trial judge found that if the appellant had truly been afraid of the officer’s yelling, he would not have had the courage to ask these questions at the height of the officer’s anger.

[86] The appellant submits that the trial judge failed to recognize that once the appellant was arrested, his situation was different. I do not find the fact that the trial judge did not mention this evidence impacted the point made by the trial judge. The appellant’s evidence regarding why he asked questions after he was arrested did not make sense. The appellant testified that the officer shouted at him and told him he would go to jail before he was arrested. If he was afraid of going to jail, why did he not ask questions about how to provide a sample before he was arrested? Instead, the appellant waited until after he was arrested, when according to the appellant PC Caplan was the most angry, to ask for another chance. Despite PC Caplan’s anger, the appellant also decided to ask at that time to why he was stopped when others were not. I agree with the trial judge this evidence makes no sense.

PC Caplan’s Evidence

1. Evidence on Vague Instructions Provided to the Appellant

[87] I disagree with the appellant’s submission that there were “generous allowances” accorded to PC Caplan’s testimony as compared to the appellant’s testimony. Simply put, there were significant problems with the appellant’s evidence and there were virtually no concerns with PC Caplan’s evidence. I will address some of the specific complaints raised by the appellant.

[88] The appellant submits that PC Caplan’s evidence regarding how he told the appellant to blow into the ASD is vague. The trial judge should have scrutinized PC Caplan’s evidence on this point. The fact that she did not demonstrates that she unfairly scrutinized the appellant’s evidence.

[89] Contrary to the appellant’s submission, PC Caplan’s evidence about what he told the appellant is not vague and did not warrant additional scrutiny by the trial judge. The officer’s evidence on this point is as follows:

[p.10] Q. And once you produce it to the defendant what if anything do you say to him. A. I advise him how to blow into it. I tell him to take a … Q. Would you mind just telling us exactly how you described it to him if you recall? A. I usually say “Take a deep breath and keep blowing till I say stop.” And I’ll tell them “usually you’ll hear a click. That’s when the test is done, but I’ll tell you when to stop.” Q. And in terms of communicating how it works… Is there any other way you communicate it to him and show him how it works? A. I do later on. Q. What time does he attempt? A. So at 3:24 am. That’s the time I describe how to use it and I provide it to him to blow into it. [p. 22] Q. Okay. Did you say how long and how steady to blow? A. I tell him - well, my initial directions were to keep blowing until I tell him to stop.

[90] In addition, the officer testified that he told the appellant several times to blow harder. The trial judge also considered and accepted PC Caplan’s evidence that he showed the appellant how to blow into the ASD after the second attempt. It was not disputed that after the second attempt the appellant produced a tone, which supports the trial judge’s finding that PC Caplan showed the appellant how to blow into the ASD.

[91] Based on the above evidence, there was ample basis for the trial judge to find that PC Caplan explained to the appellant how to blow into the ASD. No further scrutiny on this point was necessary.

2. Evidence About the Appellant’s Understanding of How to Blow Into the ASD

[92] I do not accept the appellant’s submission that PC Caplan’s evidence is inconsistent regarding whether the appellant understood the instructions, such that it warranted consideration by the trial judge in assessing the officer’s evidence. In examination-in-chief, PC Caplan was asked the following questions:

[p. 9] Q. And how would you characterize his English when he did in fact speak to you? A. I had no concerns that he understood what I was saying to him. He was responding to me in English, responded to all my questions in English, didn’t seem confused at any time about anything I was saying to him.

[93] I disagree with the appellant’s assertion that PC Caplan’s evidence in cross-examination is inconsistent with his earlier evidence. As the officer testified,

[p. 17] Q. So you’re saying he did not did not understand your instructions. A. I didn’t say whether he did or didn’t. Q. I am asking if he understood your instructions. A. I don’t know if he understood them. I just explained it to him. Q. Okay, all right. When you initiated the first caution you indicated to him “You could be under arrest if you don’t’ provide a sample” in the same method he was doing so in the first attempts, did you feel he understood them. A. Yeah, I - I felt like he did. Q. Okay. But he didn’t say anything to you. A. I don’t recall if he did or didn’t. [p. 27] Q. You indicated he understood that demand. And again there’s – I’m not raising any Charter issues, but I just want to clarify. What did he say to you to suggest he understood that? A. I can’t recall what he said. However, if I believed he didn’t understand the demand, I would definitely make note of that. Q. Okay. A. I think I just forgot to write down his response in my notes. Q. Is it possible he had no response? A. Unlikely, because I ask at the end of it “Do you understand” and for him to - if he was just blank and didn’t answer that, I’d be inquiring, “Do you not understand?”, right, so... Q. What about a head nod, if he nodded his head or anything? Would that still allow you to continue? A. I would usually ask for a verbal command - or response.

[94] PC Caplan could not have known if the appellant actually understood. He was consistent in his evidence that he believed that the appellant understood the instructions he gave. PC Caplan was also consistent in his evidence that he could not recall what the appellant said.

3. Evidence About PC Caplan’s Demonstration of the ASD

[95] The appellant also submits that the trial judge misapprehended the evidence that PC Caplan demonstrated to the appellant how to use the ASD in front of him and that he showed the appellant the zero reading on the ASD.

[96] I do not find that the trial judge misapprehended the evidence. The relevant evidence is as follows:

Q. Was he provided afforded another opportunity to provide a sample? A. so at 3:26 a.m. I dispose of the mouthpiece he was using. I put on a new mouthpiece, and I demonstrated to him how to provide a suitable sample into the approved screening device. Q. Did you provide that sample in view of the defendant? A. Yes I did. Q. All right. Did you provide any further instruction on how to blow … A. I showed him … Q. … a breath sample? A. I showed him that it was working properly. It resulted - my breath resulted as zero milligrams in 100 millilitres of blood is what showed up on the approved screening device, so I know it was working properly.

[97] A fair reading of the evidence is that PC Caplan conducted the demonstration in front of the appellant and showed the appellant the results from the breath test.

4. Evidence About Mistakes with Respect to a Number of Attempts

[98] The appellant submits that the trial judge was unforgiving of the appellant’s evidence in finding that there was an inconsistency as to whether the officer yelled at him after the second attempt or the third attempt. In contrast, the appellant submits that the officer was not subjected to the same scrutiny when he was mistaken about the number of attempts made.

[99] I do not find that the different manner in which the evidence was considered demonstrates that the trial judge applied uneven scrutiny to the evidence. The appellant had several inconsistencies in his evidence, and the inconsistencies related to what happened and when. In contrast, there were no inconsistencies in PC Caplan’s evidence with respect to when and what events occurred.

[100] The only inconsistency was how PC Caplan counted the number of attempts. At the end of his examination-in-chief, he was asked how many attempts there were. He responded, “I believe it was eight”. In cross-examination, PC Caplan described all of the attempts again. At the end of his cross-examination, PC Caplan stated, “I guess there was only six attempts, not eight”. In light of the evidence, it was reasonable for the trial judge to find that the error in counting the number of attempts was inadvertent. This does not provide a basis to find that the trial judge unevenly scrutinized the officer’s evidence.

5. Evidence About PC Caplan Yelling at the Appellant

[101] Finally, the appellant submits that the trial judge’s failure to scrutinize PC Caplan’s evidence that he did not yell at the appellant was unfair because she scrutinized and rejected the appellant’s evidence on this point. She found that if PC Caplan yelled at the appellant, it makes sense that he would have produced a tone on the fifth and sixth attempts.

[102] I do not find that the trial judge acted unfairly because she did not scrutinize the officer’s evidence on this point. PC Caplan testified that he was probably a bit frustrated, but that he did not raise his voice. Unlike the appellant’s evidence on this point, there were no inconsistencies and nothing nonsensical in PC Caplan’s evidence to suggest that he was not telling the truth.

[103] For these reasons, the second ground of appeal cannot succeed.

Conclusion

[104] The trial judge applied the correct onus in determining whether the Crown had proven the case beyond a reasonable doubt. Moreover, the trial judge did not unfairly scrutinize the defence evidence as compared to the Crown’s evidence. Simply put, there were several inconsistencies in the appellant’s evidence and his evidence did not make sense on material points. In contrast, PC Caplan’s evidence made sense, and the trial judge fairly dealt with the one inconsistency in his evidence.

[105] The appeal is therefore dismissed.

Dennison J. Released: June 22, 2020