COURT FILE NO.: 19-0210

DATE: 2020/12/14

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen, Appellant

v.

Nathan Recoskie, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Caitlin Downing, for the Appellant

John Pepper, for the Respondent

HEARD: October 28, 2020 via Zoom at Pembroke

reasons ON A SUMMARY CONVICTION APPEAL

Overview

[1] The Crown appeals Justice Robert Selkirk’s decision dated March 19, 2018 where he dismissed the charge of refusal to blow into a roadside approved screening device (“ASD”).

[2] The trial judge found that the Crown had failed to prove that there was a valid lawful demand. He found that the officer who made the demand told the Respondent incorrect information, i.e. that a refusal to blow is the same thing as failing a test in the roadside screening device. Justice Selkirk found that the otherwise valid demand was tainted and was no longer a valid demand. He followed Wright J.’s decision from the Ontario Court of Justice in R. v. Tunnoch, [2016] O.J. No. 3113 (C.J.).

[3] The issue can be framed as follows:

Does the above-noted information provided by the officer regarding the refusal to provide a breath sample in the road screening device invalidate an otherwise valid demand?

[4] For the reasons set out below, I allow the appeal.

[5] In this decision, I will discuss the background facts, the trial judge’s reasons, the standard of review, the Crown’s grounds of appeal, the Respondent’s position, elements of the offence, various defences and the final analysis.

Background Facts

[6] The following facts arise from the evidence at the trial.

[7] On October 26, 2017, Officer McPeak was travelling westbound on Highway 60 in North Algona Wilberforce Township, when she observed the vehicle driven by the Respondent. His vehicle was swerving within the westbound lane and Officer McPeak followed him for approximately one kilometer. An eastbound vehicle approached the Respondent’s vehicle which continued to swerve towards the yellow line despite the oncoming vehicle.

[8] Officer McPeak activated her emergency lights on the cruiser. The Respondent’s vehicle did not come to a full stop. The vehicle ahead of him pulled over to the side of the road and stopped. Then the Respondent’s vehicle moved over to the shoulder and slightly pulled back onto the roadway. The Respondent did eventually come to a stop behind the vehicle ahead of him.

[9] Officer McPeak told the Respondent that she was conducting a traffic stop because of his erratic driving. The Respondent provided his documents. She detected an odour of an alcoholic beverage on his breath and she noted that he had bloodshot and watery eyes.

[10] She checked his documents at her cruiser and returned to the Respondent’s vehicle and noted that the odour of alcohol was strong.

[11] The Respondent’s reply to the officer’s question as to when he had last had an alcoholic drink was that he was not drinking and he denied having any open alcohol in the vehicle.

[12] He was asked to step out of the vehicle.

[13] At approximately 10:30 p.m. the officer formed a reasonable suspicion and read him the demand for the ASD.

[14] In response to her question as to whether he understood the demand, the Respondent replied, “I’m not blowing, fuck that, I’ve blown enough times in that, I’m sick, I can’t”. When he exited the vehicle, he told her that he was not going to blow and that she should take him to jail.

[15] The officer explained to him that being sick would not affect his ability to provide a breath sample.

[16] The officer explained to the Respondent that the consequences of failing to provide a sample is equal to registering a “fail” or an “F” on it and that it holds the same penalty.

[17] The Respondent spoke over the officer and repeated “take me to jail, take me to jail, I’m not blowing”. He said he “wanted nothing to do with it”.

[18] The officer showed him how to blow by placing a mouthpiece on it and providing a sample to show him. She then changed the mouthpiece and provided the mouthpiece and the device for him to provide a sample.

[19] The Respondent provided three unsuccessful breaths into the ASD. He provided breaths which were short and then he would start blowing in a strong manner. The device could not register the breath due to the blow interruption.

[20] She felt he was purposely not providing a suitable sample. She told him she would give him another chance and if he did not provide a suitable sample he would be arrested for refusal to provide a breath sample.

[21] He gave two more breath samples in the same manner.

[22] He did not provide a suitable sample.

[23] The Respondent was charged with:

1. Refusal to comply at the roadside with the ASD demand contrary to s. 254(5) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”);

2. Refusing to provide a sample into an approved instrument (an Intoxilyzer) at the police station contrary to s. 254(4) of the Code; and

3. Impaired operation of a motor vehicle contrary to s. 253(1)(a) of the Code.

The Trial

[24] At trial, the Respondent brought forth a number of defences including allegations of breaches under the Canadian Charter of Rights and Freedoms (the “Charter”). The matter proceeded by way of a blended voir dire/trial. The defence did not call evidence.

[25] None of the defence’s Charter challenges was accepted by the Court.

[26] The Crown abandoned the Intoxilyzer refusal charge at the start of the trial and abandoned the impaired operation charge at the close of its case.

[27] Therefore the refusal to provide a breath sample was the only charge before the Court.

[28] The trial judge found that the stop was lawful, that there were grounds for the ASD and that the initial ASD demand was a valid one. The trial judge found that there was an unequivocal refusal by the Respondent.

[29] The officer provided the following information to the Respondent: that a failure on the ASD is the same as a refusal to provide a breath sample and attracts the same penalty.

[30] In his short decision, the trial judge noted that the officer explained the consequences of a refusal to the Respondent. “She said that a failure to provide a sample is the same as failing.” “She also said and it is consistent with an over 80 charge, you will suffer an ADLS [sic: automatic driver licence suspension] and impoundment of the car, but that evidence did not come out very well for the Crown.”

[31] The trial judge found that it is incorrect that a registered failure on the demand is the same as a refusal thereby creating a flaw in the demand.

[32] The trial judge was not satisfied beyond a reasonable doubt that the officer did “refer to over 80 charge, ADLS [sic] and impoundment.”

[33] The trial judge found that, even though the Respondent did not testify, the Respondent would have assumed that “a failing would mean to him that he goes to the station to provide samples and, in fact, that is what he said upon the formal demand being read to him, ‘Let’s go to the station and I’ll provide a sample’, although he didn’t”.

[34] Although he distinguished from Tunnoch by noting that the accused in that case was clearly concerned about failing, the trial judge adopted the principle set out in Tunnoch that being told that a failure and a refusal are the same thing taints an otherwise valid demand.

[35] He read from para. 20 of Tunnoch and found that: “[T]hat taints the demand. It puts the accused in an unfair situation. If they accept the advice potentially in a worse situation as a result, and therefore because the demand is tainted, the accused is entitled to an acquittal.”

[36] The trial judge concluded that the information provided by the officer “tainted” an otherwise valid demand despite the finding that the Respondent had unequivocally refused the demand. He dismissed the charge.

Powers of the Court

[37] The powers of this appellate court are set out in the provisions of the Code set out below:

822 (1) Where an appeal is taken under section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689, with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require.

[38] The relevant provisions are:

686 (4) If an appeal is from an acquittal or verdict that the appellant or respondent was unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal may

• (a) dismiss the appeal; or

• (b) allow the appeal, set aside the verdict and

o (i) order a new trial, or

o (ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

Standard of Review

The Crown’s position

[39] The Crown argues that the standard of review is correctness as the trial judge made an error in law.

[40] She argues that the determination of whether or not a demand was unequivocal is usually an error of fact. However, in the current case, the trial judge committed an error of law by concluding that the advice provided by the officer “tainted” an otherwise unequivocal demand. This is a conclusion of law not a finding of fact. Therefore, the appropriate standard of review is correctness.

The Respondent’s position

[41] The question of whether the demand for an ASD sample was tainted by incorrect legal advice is a question of mixed fact and law as it requires a determination of:

1. What the advice was;

2. Whether it was incorrect;

3. Was it corrected before the final refusal;

4. Reasonable inferences about the effect of the advice on the accused; and

5. Whether the advice tainted an unequivocal demand.

[42] The Respondent points out that the trial judge also doubted the officer’s evidence when she claimed that she provided further advice to the accused that would have clarified her erroneous advice, i.e. that the penalty would be same for refusal to provide a sample and a “Fail” in the ASD.

[43] Since the trial judge must place the erroneous legal advice factually in the narrative matrix in its relation to the demand and the Respondent’s efforts to provide a sample, his decision is one of mixed fact and law and is entitled to a deferential standard of review.

[44] The Crown does not assert that the trial judge’s decision contains a “palpable and overriding error.”

[45] This Court must provide deference to the trial judge and should interfere only if the evidence does not support the decision and not to retry the issues.

Analysis

[46] In my view, this appeal deals with a question of mixed fact and law.

[47] The trial judge made findings of facts: there was a valid demand and there was an unequivocal refusal. He also made a conclusion of law when he found that improper legal information was provided to the Respondent by the officer.

[48] The standard of review of an appeal from a judge’s order is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, and 36:

36 To summarize, a finding of negligence by a trial judge involves applying a legal standard to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. Appellate courts must be cautious, however, in finding that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of “mixed law and fact”. Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

[49] Therefore:

a. Questions of law are reviewed for correctness;

b. Questions of fact will not be overturned without a palpable and overriding error; and

c. Questions of mixed fact and law lie on a spectrum. If the factual and legal aspects cannot be separated, the “palpable and overriding error” standard applies. If a question of law can be extricated, or the question is closer to the legal end of the spectrum, correctness is used.

[50] In Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35, the Supreme Court stated that “questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests”.

[51] I find that the decision deals with a question closer to the legal end of the spectrum, i.e. there is an extricable legal question or issue in principle and therefore the standard is correctness.

The Crown’s Position

[52] The Crown submits that the trial judge made the following errors:

− That the trial judge erred in law by finding that the breath demand made by Officer McPeak was not an unequivocal demand;

− That the trial judge erred in law by finding that the breath demand made by Officer McPeak was “tainted” resulting in a finding that the Crown had not proven the elements of the offence beyond a reasonable doubt; and

− That the trial Judge erred in law by finding that the Respondent did not unequivocally refuse or fail to provide a suitable breath sample because the breath demand was “tainted”.

Respondent’s Position

[53] The Respondent submits the following:

− The defence did not raise an “officially induced error” defence which could provide a “reasonable excuse”;

− A lawful demand can cease to be lawful if tainted by the officer’s subsequent words; and

− Whether or not the Respondent believed the demand was lawful does not make the demand lawful.

Legal Framework

(i) Introduction

[54] In this section, the Court will discuss the elements of the offence and what constitutes a valid demand. There will be a brief discussion of the suspension of s. 10(b) Charter rights.

[55] An officer is not required to advise the motorist of the consequences of failing to comply with the breath demand but if she does and the information is incorrect, then a number of defences may be brought forth.

[56] Below, the Court will discuss cases that deal with the defence of officially induced error and a breach of s. 7 of the Charter and its stringent requirements.

[57] Finally, I will deal with the cases which found that misinformation provided by an officer taints an otherwise valid demand resulting in the Crown failing to prove an element of the offence beyond a reasonable doubt.

(ii) Elements of the Offence

[58] The Respondent was charged under the former s. 254(5) of the Code.

[59] If the suspicion relates to alcohol, the officer may demand that the person perform coordination tests and/or supply a breath sample in an approved screening device.

[60] Before the 2018 Code amendments, a police officer needed a reasonable suspicion that the person operating the vehicle had alcohol in their body but did not need to believe that the accused had committed any offence: see R. v. Lindsay (1999), 1999 CanLII 4301 (ON CA), 134 C.C.C. (3d) 159 (Ont. C.A.), at para. 2:

…. There need only be a reasonable suspicion and that reasonable suspicion need only relate to the existence of alcohol in the body. The officer does not have to believe that the accused has committed any crime….

[61] It is an offence of general intent, the gravamen of which is non-compliance with a valid demand.

[62] The actus reus of the offence is a valid demand and proof of the non-compliance with the demand. The mens rea consists of an awareness, recklessness or knowledge on part of the accused that the demand has not been complied with.

[63] As the Court of Appeal for Ontario indicated in R. v. Degiorgio, 2011 ONCA 527, 86 C.R. (6th) 292, at para. 43, the necessary elements of the offence are:

1. The preconditions set out in s. 254(2) of the Code;

2. A demand that the individual “provide forthwith a sample of breath”;

3. The individual of whom the demand was made understood the demand;

4. The individual refused to comply with that demand; and

5. The individual did not have a reasonable excuse for failing to comply with the demand.

(iii) What is a valid demand?

[64] As the cases below set out, a valid demand must be unequivocal. No particular words are required for the demand to be a valid one. Courts take a flexible approach to the demand.

[65] In R. v. Riches (1994), 1994 ABCA 413, 162 A.R. 196 (C.A.), the issue on the appeal was whether the accused was advised that the demand pursuant to s. 254(2) of the Code must be complied with immediately.

[66] In a short endorsement, the Court stated that the demand was clear to the accused and he realized that he if refused he would be charged. The accused knew the impending consequences of his refusal as he replied to the officer that he would see him in court.

[67] The demand need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his or her breath forthwith. This can be accomplished through words or conduct, including the “tenor [of the officer’s] discussions with the accused”: R. v. Horvath, 1992 CarswellBC 1984 (S.C.), at para. 8. :

[68] 8 It is trite law that a "demand" for a breath sample under s. 254(3) need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample. In my view, that has equal application to s. 254(2). There is no particular form required for the demand, so long as it is made clear to the driver that he or she must provide a sample "forthwith". Although the Constable's evidence did not include the word "forthwith", the tenor of his discussions with the accused could have left no doubt whatever that she well knew what was required. She could not have confused a s. 254(2) demand with a 254(3) demand, as the Constable explained both in some detail.

[69] What is crucial is that the words used be sufficient to convey to the detainee the nature of the demand: see R. v. Ackerman (1972), 1972 CanLII 1300 (SK CA), 6 C.C.C. (2d) 425 (Sask. C.A.), at p. 427; R. v. Flegel (1972), 1972 CanLII 1332 (SK CA), 7 C.C.C. (2d) 55 (Sask. C.A.), at p. 57.

[70] R. v. Snow (2001), 226 Nfld. & P.E.I.R. 149 (Nfld. Prov. Ct.), at para. 40, states that if the peace officer is not sure if the accused has actually understood or comprehended how the device and mouthpiece operate, he should give an actual demonstration of its use to the accused:

The peace officer should give specific instructions as to how long an accused should blow into the machine in order to obtain a proper sample for analysis. Particular attention should be given to the covering of the mouthpiece with the tongue and its effect upon the proper providing of the sample for analysis. The peace officer should then present the device and attached mouthpiece portion to the accused, charged and ready to receive a sample of breath. If the peace officer has any reason to suspect, either from his own observations or from the actions and/or words of the accused that the accused does not understand or comprehend what is being explained the peace officer should repeat any or all of the explanation and ensure that the accused fully understands and comprehends same.

[71] Also, it is important that the accused understand the demand for there to be a refusal and the discussion leading up to the final refusal is relevant. The surrounding circumstances are important.

[72] In R. v. Hiebert, 2013 MBQB 240, 297 Man. R. (2d) 84, the accused was confused about the consequences of arrest for refusal. The Manitoba Court of Queen’s Bench, sitting as a summary conviction appeal court, heard an appeal for an acquittal from a failure or refusal to provide a breath sample. The issue was whether Mr. Hiebert’s refusal to provide a breath sample was unequivocal given that he changed his mind and offered to provide a sample after he was arrested and formally charged. The Court allowed the appeal and entered a conviction.

[73] The Court found that in the time frame of 11 minutes from the stop to the arrest there was an unequivocal refusal to a formal demand and then a second unequivocal refusal made in response to the formal refusal warning. He had been warned that upon conviction on a refusal charge the consequences would have been the same as an impaired driving conviction or a conviction for driving over the legal blood alcohol limit.

[74] Another officer who arrived at the scene 5 minutes from the arrest explained to him that he could “walk away” if the sample was negative. The officer did not know that the arrest had occurred. Mr. Hiebert then changed his mind and offered to provide a breath sample.

[75] In that decision, the analysis thoroughly discusses the “bright line” as to whether there has been a clear and unequivocal refusal by referring to R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, where the Court assessed the totality of the circumstances to determine if an accused person was fully and properly informed to the point where it could be reasonably and objectively concluded that the accused understood that his or her refusal constituted a crime.

(iv) Suspension of s. 10(b) Charter rights

[76] What is notable about the roadside screening is the suspension of an accused’s s. 10(b) rights under the Charter. See Cory J. in R. v. Stillman 1 S.C.R. 607; R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at paras. 56 and 58.

[77] Therefore, the usual right to counsel guaranteed by s. 10(b) of the Charter to provide individuals who are detained with an opportunity to be informed of their rights and obligations and to obtain advice on how to exercise those rights and fulfil those obligations under the law is not available to a motorist who is stopped at a roadside and an ASD demand is made.

[78] This opportunity to be advised of s. 10(b) is made available as it is recognized that when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state.

(v) Responsibility of the individual after a demand is made

[79] There is a legal duty upon the person who receives the demand to provide a sample of breath suitable for analysis by a roadside screening device.

[80] A person to whom a demand is made is entitled to reasonable time in which to make up his mind and to comply with the reasonable instructions of the peace officer: R. v. Bowman (1978), 1978 CanLII 2337 (NS CA), 25 N.S.R. (2d) 716 (S.C.A.D.); R. v. Butt (1983), 44 Nfld. & P.E.I.R. 297 (Nfld. C.A.). However, a person cannot deliberately delay in making a decision. Further, a person cannot create a situation or cause or do something unreasonable that would create an unreasonable delay in providing the sample demanded.

[81] There is a clear legal duty upon a person to clearly express their concerns, including telling the police officer if they cannot understand what is being said to them or asked of them if they do not understand or are not clear about what is going on or what is being asked of them: R. v. Thompson (1985), 1985 CanLII 5851 (NS CA), 66 N.S.R. (2d) 316 (S.C.A.D.). A peace officer must be given the opportunity to evaluate the excuse or reason for non-compliance and act accordingly. If it is not mentioned, then it cannot be evaluated: R. v. Heather (1972), 1972 CanLII 1316 (SK QB), 7 C.C.C. (2d) 176 (Sask. D.C.).

(vi) An officer has no legal obligation to provide information

[82] Firstly, the law does not require that, in advance of the valid ASD demand, the officer must explain the purpose of the roadside screening test and the consequences of a failure to provide a sample.

[83] In R. v. Danychuk (2004), 2004 CanLII 12975 (ON CA), 70 O.R. (3d) 215 (C.A.), at para. 19, the Court of Appeal for Ontario found that there was no requirement that the ASD had to be warmed up and tested as operational before the officer made the demand; nor was there a requirement that the police officer explain the process or the consequences of a failure to comply. At para. 21, Blair J.A. stated:

[21] In my opinion, while it may be sensible for a police officer to make sure the device is working and the motorist apprised of the process and the consequences of non-compliance, it cannot be said -- in the face of these authorities -- that these matters constitute prerequisites to a valid demand for a breath sample under subsection 254(2), in my opinion.

(vii) Defence of “Officially Induced error”

[84] In obiter comments in Lamer C.J.’s reasons in R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 S.C.R. 55, Lamer C.J. recognized that an officially induced error could result in a legal excuse. He further defined the conditions under which such an excuse would be allowed.

[85] An officially induced error of law functions as an excuse rather than a full defence. It can only be raised after the Crown has proven all the elements of the offence beyond a reasonable doubt.

[86] Chief Justice Lamer in Jorgensen noted that given that this excuse is similar to entrapment, a finding of this defence will lead to a judicial stay of proceedings rather than an acquittal. Consequently, an officially induced error of law argument will only be successful in the clearest of cases: Jorgensen, at para. 37

[87] A short review of the cases provided by the Crown would be helpful to demonstrate how they are to be distinguished from the case at bar.

[88] The Supreme Court of Canada in Lévis (City) v. Tétreault; Lévis (City) v. 2629‑4470 Québec inc., 2006 SCC 12, [2006] 1 S.C.R. 420, at para. 24, stated that an officially induced error of law is an exception to the rule that ignorance of the law is not an excuse.

[89] In Lévis, the Court frames the elements as follows at para. 26:

(1) that an error of law or of mixed law and fact was made;

(2) that the person who committed the act considered the legal consequences of his or her actions;

(3) that the advice obtained came from an appropriate official;

(4) that the advice was reasonable;

(5) that the advice was erroneous; and

(6) that the person relied on the advice in committing the act.

[90] In Lévis, the Supreme Court of Canada not only approved, as a court, what had been merely a concurring opinion of Lamer C.J. in Jorgensen but noted that the effect of making a finding of officially induced error is not an acquittal, but a stay.

[91] In R. v. Halloran, 2010 ONSC 4321, 99 M.V.R. (5th) 257, the accused appealed from a conviction of refusing to provide a breath sample on a defence of officially induced error. The accused’s position was that he knew that in refusing to blow he was acting contrary to the law, but he decided to not blow because the officer told him that the consequence of refusing to blow was a 90-day driver’s suspension and his car being impounded. He knew that a conviction of having a blood alcohol level in excess of the legal limit would result in a 12-month licence suspension. The accused testified that he was taking “the lesser of two evils”.

[92] The Court held that the defence of officially induced error was not applicable to this fact situation. Justice Sproat referred to the comments of Lamer C.J. in Jorgensen and stated that officially induced error is available as a defence to prevent morally blameless individuals, who believe they are acting in a lawful manner, from being convicted. At para. 7, Sproat J. quoted from Lamer C.J. clarifying that this exception is to ensure that the “morally blameless are not made criminally responsible for their actions”.

[93] Ultimately, Sproat J. found that the court would not extend the defence of officially induced error to the accused who knew if he refused to blow that he was not acting in accordance with his legal obligation. In that case, the accused knew that his license would be suspended, that his vehicle would be impounded and that he would be required to go to court.

[94] In R. v. Rybak, 2007 ABQB 169, 423 A.R. 139, the case was also framed as an officially induced error and not a defective demand as here. The Alberta Court of Queen’s Bench was dealing with an appeal from a conviction where the accused had claimed that he should have the opportunity to contact a lawyer at the roadside since he was told that the result of the failed roadside screening test would be a criminal charge. He also claimed that he was led into error by the officer at the scene who told him that if he blew over on the roadside screening device he would be charged with impaired driving. The accused acknowledged that had the officer told him that the roadside screening device was only an investigative tool, he would not have insisted on the right to consult a lawyer.

[95] The Court stated, at para. 4:

There is no officially induced error here: the police officer’s statement to the appellant that he would be charged if he blew a “fail” was, in fact, correct. Although that statement omitted the steps that would be taken between blowing a “fail” and the laying of an impaired driving charge, there was nothing erroneous about the information given to the appellant by the police officer. On the contrary, since the trial judge found as a fact, and the appellant does not challenge, that the police officer had properly stopped him and properly read him the screening device demand, it is clear that, in the circumstances here if Mr. Rybak blew a fail, the police officer would put that evidence together with the evidence the police officer already had of the odour of alcohol and the two statements made by Mr. Rybak about the amount of alcohol he had ingested that evening, and lay a charge of impaired driving against Mr. Rybak. Far from being led into error, Mr. Rybak was clearly told what the results of his blowing a fail would be.

[96] In R. v. O’Kane, 2008 NBCA 58, 333 N.B.R. (2d) 274, the accused discussed with the officer various potential consequences of providing a breath sample. When the officer explained to the accused that he would be arrested if he refused to provide a sample, the accused chose that option because of his fears about the reliability of the device.

[97] The Court found that the accused was not affected in his decision making by the use of the word “arrested” rather than “charged”. The Court found that this was “an unfounded semantical argument”: O’Kane, at para. 24. The court found that whether or not the police said “arrested” is irrelevant since the accused is “presumed to know the law, including that he would be charged if he refused to provide a breath sample”: O’Kane, at para. 24.

[98] Finally, Mr. O'Kane's suggestion that a distinction must be drawn between the consequences of being "arrested" and of being "charged" is an unfounded semantical argument. Mr. O'Kane was not affected in his decision-making by the use of the word "arrested" rather than "charged". In addition, whether or not the police officer said "arrested" is irrelevant since Mr. O'Kane is still presumed to know the law, including that he would be charged if he refused to provide a breath sample.

[99] R. v. Bacalzo, 2013 ONSC 6326, 54 M.V.R. (6th) 245, was a summary conviction appeal dealing with the police’s obligations under s. 254(5). The respondent was acquitted of failing to comply with a demand for breath samples contrary to s. 254(5). The Crown appealed the acquittal on the grounds that the trial judge erred in finding that (1) the defence of officially induced error had been made out; and (2) the police had a duty to give the respondent legal advice and correct her misunderstanding of the law. At the summary conviction appeal, the Court noted that “the police do not have a duty to give legal advice or correct such misapprehensions on the law”: Bacalzo, at para. 26. The trial judge had imposed an obligation on the police to correct misunderstandings the respondent had vis-à-vis the law, but they were not required to do so: Bacalzo, at para. 26.

[100] In R. v. Sures, 2010 ONSC 1622, in another officially induced error case, Shaw J. was dealing with an appeal of a conviction of a charge of refusing to comply with a breath sample.

[101] In his analysis, he had to determine whether the trial judge erred in finding that there was an unequivocal demand for breath sample and that there was an unequivocal refusal and other Charter issues.

[102] This decision is relevant here as the officer had provided the device and made a demand. The accused said: “I don’t think I should”. The officer explained to the accused that “a failure to provide is essentially the same as an over 80 charge and that it results in an arrest and a Criminal Code charge, and he would have to attend court”. To which the accused responded “in trouble either way”: Sures, at para 7.

[103] Another officer at the scene explained to the accused that “if he blew and had a negative result he could be released unconditionally, that if he blew an alert but under the limit he would be issued a 12-hour suspension and if he failed he would be arrested and transported to Thunder Bay where he would have to provide another breath sample”: Sures, at para. 9. He testified that his explanation of the ramifications of refusing to provide a breath sample occurred after the accused refused the second time and before he was arrested.

[104] The accused testified in the voir dire. He testified that he had said that he did not understand and knew the officer wanted him to blow into the device, but he did not know what his rights were and he wanted to talk to his lawyer.

[105] Mr. Sures submitted that the trial judge failed to determine whether the officers were authorized to provide legal advice at the roadside and whether he was misled by the information provided by the officers, thereby depriving him of his right to counsel: Sures, at para. 30.

30 Mr. Sures submits that the trial judge failed to determine whether the officers were authorized to provide legal advice at the roadside and whether Mr. Sures was misled by the information provided by the officers, thereby depriving Mr. Sures of his right to counsel.

[106] At paras. 31-33 of Sures, Shaw J. stated:

Firstly, the trial judge found that although the information given by the officers was not accurate, in that failing to blow is not the same as blowing over, the advice conveyed the essential message – there is no advantage to not providing a roadside screening device breath sample. The trial judge found as a fact that Mr. Sures was not confused and that he understood that he was required to provide a breath sample.

Secondly, Mr. Sures testified on the voir dire that he refused to provide a breath sample until he talked to a lawyer. That was the basis of his refusal. Mr. Sures did not have a right to consult with counsel until he refused the roadside demand. Once he had refused, he was charged and given the right to speak to counsel. The information given by the officers did not deprive Mr. Sures of his right to counsel. Moreover, the evidence is that the accused refused before either officer provided an explanation about the ramifications of refusal.

I agree with the submission of the Crown that the evidence reflects that Mr. Sures knew what was being demanded of him and made a conscious decision not to provide a sample because he could not talk to a lawyer at the roadside. This was not a mistake of fact on his part caused by any incorrect or misleading information provided by the officers but, at best, would constitute a mistake or ignorance of the law on his part which did not provide a reasonable excuse for not providing a roadside sample. See R. v. Nagy, [2003] A.J. 1013 (Q.B.), at paras. 35-38, aff’d [2003] A.J. 1288 (C.A.); R. v. Hammersley, [1995] B.C.J. No. 997 (B.C.S.C.), at paras. 21-24.

[107] In Sures, the question was framed as whether the inaccurate information provided by the officer to the accused violated the accused’s s. 10(b) Charter rights.

[108] At para. 31, Shaw J. found that the information given by the officers was not accurate, that is, failing to blow is not the same as blowing over and there is no advantage to not providing a roadside screening device breath sample. The Court agreed with the trial judge’s finding that the accused was not confused and that he understood that he was required to provide a breath sample. The Court also agreed with the trial Judge that the accused knew what was being demanded of him and made a conscious decision not to provide a sample because he could not talk to a lawyer at the roadside.

(iii) Defence: Breach of s.7 Charter defence

[109] In some cases, the accused have alleged a breach of s. 7 of the Charter due to the misinformation that they have received.

[110] This stems from the case of R. v. Kenny, [2002] O.J. No. 3601 (C.J.), which was decided before the Supreme Court of Canada’s decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[111] The defence submitted that inaccurate and misleading information given by a police officer to a person detained at the roadside with respect to the consequences of refusing to provide a breath sample constitutes a violation of section 7 of the Charter. The Respondent relies on the decision of R. v. Kenny, where a breach of s. 7 was found in circumstances where a police officer gave erroneous information to the accused, which caused him to believe that the consequence of both failing a roadside screening test and refusing to take the test was an automatic one-year driver’s licence suspension. The effect of the misinformation was to deprive Mr. Kenny “of a mind capable of understanding the consequences of his actions”, akin to the absence of an operating mind in the confession’s context, and the evidence was therefore inadmissible.

[112] In R. v. Fernandes, 2016 ONCJ 180, at para. 33, the crux of the defence position was that, if a police officer says anything about the consequences of refusing to provide a breath sample, then the information provided must be complete and understandable. However, as Brewer J. pointed out, a body of case law exists which holds that the failure of the police to provide a standardized warning to motorists in such circumstances does not violate ss. 7 or 10(b) of the Charter: Fernandes, at para. 33.

[113] In R. v. Mac, 2008 ONCJ 161, at para. 15, the Court distinguished between situations in which the police provide incorrect information and incomplete information. Justice Brewer was willing to assume, without deciding, that there is a distinction between this type of information. But in that case the accused was not given erroneous information: Mac, at para. 23. Justice Green’s decision in R. v. Ortega, 2015 ONCJ 58, at para. 51, also indicates that “there is at least some precedent for suggesting that an officer's provision of positively erroneous information regarding the consequences of failing to comply with an ASD demand may breach s. 7 of the Charter” but that incomplete information will not vitiate an otherwise valid demand. But in R. v. Fernandes, 2016 ONCJ 180, at para. 19, Brewer J. indicated that she was not aware of any support for the notion of a “retroactive vitiation of an otherwise valid demand by subsequently acquired information”. At para. 23, Brewer J. surveyed Ontario Court of Justice case law, such as R. v. Caplan, 2013 ONCJ 237, R. v. Xhelili, 2011 ONCJ 420, and Sures, and noted that in each of these cases the information provided by police was incomplete as opposed to inaccurate. The Court can distinguish Fernandes and the OCJ cases it cites on this basis. In the case at bar, there was inaccurate as opposed to incomplete information given to the Respondent.

[114] At para. 51 of Ortega, the Court stated that:

There is considerable authority (including appellate authority) for the proposition that the provision of incomplete information (as opposed to misinformation) does not compromise an otherwise effective refusal: R. v. Liptak, [2007] A.J. No. 534 (Alta. C.A.); R. v. Kovinko, [2001] Q.J. No. 8285 (Que. Mun. Ct.); R. v. Hammersley, [1995] B.C.J. No. 997 (B.C. S.C.); R. v. Mac, 2008 ONCJ 161 (Ont. C.J.), at para. 13.

[115] Justice Green noted that he did not set out to establish the contours, applicability or existence of a principle of “informed refusal” in the case at bar: Ortega, at para. 50. Justice Green had not been provided authorities which established that there was a certain “threshold [of] information necessary to compel compliance with an otherwise lawful exercise of a statutory police power with the constitutional requirements for an informed waiver of Charter protected rights … or, perhaps, protections that obtain in determining the voluntariness of an accused's statement”: Ortega, at para. 49.

[116] R. v. Horbatiuk, 2008 ONCJ 365, at para. 19, distinguished from Kenny, holding that it was fact-driven and of no assistance. But Horbatiuk did not say that Kenny was wrongly decided. The Court in Horbatiuk noted that the misinformation provided to the accused in Kenny was material and may have been detrimental to the accused, but that the case did not stand for the general principle that police have a positive duty to inform an accused of the consequences of the failure or refusal to provide a breath sample.

[117] The Provincial Court of British Columbia case R. v. Sousa, 2003 BCPC 166, also distinguished from Kenny, but on the basis that there was no evidence to the effect that the accused had made a choice that he would not otherwise have made if he had not been told of his Charter rights: at para. 23. In contrast, in Kenny, Beaman J. held this inaccurate information gave rise to a lawful excuse for his failure to blow into the machine: Sousa, at para. 22.

[118] In Fernandes, Brewer J. remarks upon something similar to Green J. in Ortega. Justice Brewer stated that she was not provided authority for the proposition that a demand may be invalidated by information later given by an officer about the consequences for refusing a breath sample: Fernandes, at para. 19. Justice Brewer noted that she was not aware of any support for the notion of a “retroactive vitiation of an otherwise valid demand by subsequently acquired information”: Fernandes, at para. 19. Accordingly, Brewer J. followed Danychuk, finding that the decision had a direct bearing on the case at bar and that where there has been an outright refusal, the failure of the police to apprise a motorist of the process and consequences of non-compliance does not affect the validity of a demand made under section 254(2): Fernandes, at para. 22.

[119] Justice Brewer distinguished from Kenny, stating that while the accused in Fernandes was worried about what it would mean to fail the roadside screening test, he did not lack an operating mind: Fernandes, at para. 30. Justice Brewer rejected the Defence’s argument to the effect that if a police officer says anything about the consequences of refusing to provide a breath sample, the information must be complete and understandable: Fernandes, at para. 33. In particular, Brewer J. held that the failure to provide a standardized warning to motorists does not violate s. 7 or s. 10(b), reasoning that the case law is clear that a motorist is not entitled to legal advice at the roadside: Fernandes, at para. 33.

[120] These authorities are founded on the fact that a motorist is not entitled to legal advice at the roadside per R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640 and R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3 and the problematic nature of requiring a police officer to provide the equivalent of legal advice. As stated by Malin J. in R. v. Rowland, 2010 ABPC 279, 1 M.V.R. (6th) 316, at para. 17:

The explanation of the legal consequences of failing to provide a sample strays into the area of giving legal advice which is beyond the duty and the competence of most constables. More significantly, it would put the investigating constable in a potential conflict in the prosecution and disposition of the case. This is all in the nature of advice that an accused might receive when exercising section 10(b) Charter rights, which superior courts have unambiguously held are suspended in the demand for and proper administration of roadside breath screening.

(ix) Tainted Demand Cases

[121] In R. v. Thornton, 2015 ONSC 358, the Superior Court of Justice was dealing with an appeal of a conviction of impaired driving. The Ontario Court of Justice had acquitted the accused on the refusal to provide a sample in the ASD due to the misinformation he had received. Justice Labrosse dismissed the appeal but did not deal with the acquittal from the refusal. This case is of no assistance to my analysis here.

[122] In R. v. Tunnoch, [2016] O.J. No. 3113 (C.J.), the accused was not putting forth the argument that he was influenced by the wrong information provided by the officer, i.e. that a refusal to provide a breath sample is the same as a failure. The Court did not accept that he really intended to provide a sample. The Court found that he was someone who had been “clearly concerned about failing, who is anxious, and who is being told that failure and a refusal are the same thing [sic]”: Tunnoch, at para. 20.

[123] The Court remarked that these are not the same thing, as a refusal results in a criminal charge whereas a failure of the ASD is the worst of three possible outcomes (pass and warn are the other two) but a failure does not result in a criminal charge. It provides reasonable and probable grounds to lead to an intoxilyzer demand which result may or may not lead to a charge.

[124] In R. v. Lalonde, [2019] O.J. No. 6681 (C.J.), the accused was stopped as part of the R.I.D.E. program. The officer noticed a strong smell of alcohol and made the demand to provide a breath sample into the ASD. The accused hesitated and asked the officer the consequences of refusing to provide a breath sample. The officer told him that the consequences were the same as if he had failed the ASD test and “it would be wise to provide a sample”: Lalonde, at para. 5. An officer also told him the same thing in French. She also told him there would be a 90-day driver’s licence suspension and that his vehicle would be impounded for seven days.

[125] He was never told that he would be charged if he refused to provide a sample into the ASD. Justice Masse detailed the differences between refusing to provide a sample and registering a “failure”. A failure on the ASD means that the officer has established reasonable and probable grounds to arrest the motorist, provide them with their s. 10 (b) rights and bring them to the station for an intoxilyzer test.

[126] The court confirmed that a failure on the ASD is not a criminal offence: Lalonde, at para. 17.

[127] However, there are serious consequences for refusing to provide a breath sample. An individual will face a criminal charge with identical punishment as being convicted with impaired driving or the charge of a blood concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood. These consequences included fines of at least $1,000 or jail of up to 5 years if prosecution is by way of indictment and a driving prohibition for at least a year. The individual will be saddled with a criminal record.

[128] The accused in Lalonde was given seven opportunities to provide a sample.

[129] In Tunnoch, the Court found that the wrong information taints the demands as “[i]t puts the accused in an unfair situation. If they accept the advice potentially in a worse situation as a result, and therefore because the demand is tainted, the accused is entitled to an acquittal”: at para. 20.

[130] Justice Masse found that the accused did not understand that there would be criminal consequences if he refused and he thought that he would rather face the impoundment of his vehicle and a 90-day suspension of his driver’s license.

[131] He referred to R. v. Sures, where the Court found that police are not required to give legal advice and are recommended to not give legal advice.

[132] At para. 24, Masse J. stated:

If police do give legal advice, then they ought to make sure that the advice they do give is correct. Otherwise, the detained individual may be unwittingly induced into making decisions that are completely contrary to their best interest, thus making a bad situation worse.

[133] Justice Masse found that it was reasonable to conclude that the accused relied on the incorrect and misleading information that was provided to him by the police and was induced to make the wrong decision. The right decision would have been to provide a sample.

(vi) Series of Transactions

[134] As the Court of Appeal for Ontario noted in R. v. Degiorgio, 2011 ONCA 527, 86 C.R. (6th) 292, at para. 42, “[t]he conduct criminalized by s. 254(2) consists of a proper s. 254(2) demand and an unequivocal refusal to comply with that demand. The offence is completed when the refusal is given: R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at paras. 40-42.”

[135] In R. v. Lubieniecki (2019), 450 C.R.R. (2d) 29 (Ont. C.J.), in a blended trial and Charter voir dire decision, the issue of whether the demand was lawful pursuant to the Code arose. There was no question that there was an unequivocal refusal.

[136] Justice Latimer of the Ontario Court of Justice found, at para. 19, that the refusal offence is crystallized when all elements of the offence have been made out and that Degiorgio, at para. 42, governed.

[137] In R. v. Rosen (2018), 406 C.R.R. (2d) 182 (C.J.), Bacchus J. dealt with the charge of a failure to provide a sample in a blended trial/Charter voir dire.

[138] When asked what would have happened if his lawyer had advised him not to provide a sample, the officer said he would be charged and it would have the same consequences as if you were to blow and fail the roadside, that is a 90-day license suspension and a 7-day vehicle impound.

[139] The accused refused and when the device arrived at the scene, he refused again.

[140] The Court found his evidence to be inconsistent and contrived, and he refused to admit that he knew he was being investigated for a criminal offence. The Court did not accept his evidence that he did not understand the nature of the demand.

[141] The Court found that there is no requirement that the ASD be presented and that the testing process be explained or what the consequences of a failure to provide a sample would be: Rosen, at para. 36.

36 However, if an unequivocal refusal occurs within the time frame of a demand made forthwith there is no requirement that the crown show that the ASD was on scene and ready for use at the time the demand was made. Further there is no requirement that the ASD was presented to the driver and the testing process explained or that the consequences of a failure to provide a sample were explained:

The conduct criminalized by s. 254(2) consists of a proper 254(2) demand and an unequivocal refusal to comply with that demand. The offense is completed when the refusal is given. There is nothing in the language of s. 254(2) that would require the Crown to prove that had the driver not refused to provide the sample, the demanding police officer could have complied with his or her obligation to take the sample "forthwith". Nor can I understand why as a matter of criminal law policy a driver who has unequivocally refused to forthwith provide a breath sample should escape criminal responsibility for that refusal based on events subsequent and totally unrelated to the refusal.

R v Degiorgio, 2011 ONCA 527 para 42. Also see, R v Danychuk 2004 CanLII 12975 (ON CA), [2004] O.J. No. 615.

[142] In R. v. Xhelili, 2011 ONCJ 420, the accused submitted that the police were obliged to provide him with the consequences of refusing to comply. The officer conveyed to the accused his legal obligation to provide a breath sample and in response to the inquiry from the accused the officer stated that the failure to provide a sample could result in the same penalty as being found guilty of imp

[143] aired driving. The Court held that this information was neither inaccurate nor misleading. The accused cut off the officer’s further explanation.

(x) Advice vs. information

[144] The Crown has referred to the case of R. v. Codina #6, 2017 ONSC 7648, where the Superior Court distinguished between “advice” and “information”. At para. 5 of Appendix A “Essential Elements of Counts One to Four” of her decision, Molloy J. stated:

(5) In determining whether Ms. Codina provided “advice” it is important to distinguish between what is “information” and what is “advice.” It is only the giving of “advice” that attracts liability, not merely providing “information.” In this context, the word “advice” has a technical meaning that is more restrictive than its ordinary dictionary definition. Legal “information” may describe the law so as to help a person understand it, but it is general in nature. Anybody can provide general information about immigration law, the government programs offered to people seeking to immigrate to Canada, and the options and immigration procedures generally available. On the other hand, legal “advice” involves a review of the facts and issues raised in a particular case and personalized recommendations based on how the law applies in specific circumstances. It is typically given on the understanding that it may well be followed and depends on the individual circumstances of the person to whom it is directed. It is particularized advice directed to a person’s legal rights or duties, including recommendations as to how the law may apply to them. “Here is what I think you should do” is legal advice. “Here is some information about Canadian immigration law and the immigration programs offered by our government” is legal information.

Analysis

(i) Introduction

[145] A motorist who has stopped and is required to provide a sample without a right to seek counsel may have questions, concerns and comments about the process.

[146] The motorist has limited defences such as the defence of legally induced error or an infringement of his rights pursuant to s. 7 of the Charter.

[147] There is an interaction between the officer and the individual being required to provide the demand. The officer is performing her civic duty in investigating a possible impaired driver and, in doing so, is required to abide by the law.

[148] If the individual asks questions, it is natural for the officer to wish to respond to those inquiries. In this case, I find that the officer provided the Respondent with information, i.e. general information rather than advice of what he should do.

(ii) Information provided in this case

[149] Given the importance of the information that the officer provided to the Respondent, it is worthwhile to review in detail the transcript from the trial. It is also important to review the Respondent’s reaction.

[150] Here, as will be shown below, the Crown argues that there was an unequivocal demand. Initially he refused. The officer provided wrong information regarding the consequences of refusal of a breath demand. The Respondent made three attempts to below. But the officer believed he was not genuinely providing the samples and was instead purposely providing inadequate samples. She told him that she would give him another opportunity and if he refused he would be charged. He made two further attempts to blow. The Respondent refused to provide any further samples.

[151] Below is the transcript at pages 19-20 of the officer’s evidence from examination-in-chief regarding her conversation with the Respondent:

Q What did you do after he told you that he’s not blowing, he’s blown enough times not when he’s sick?

A. I tried to explain to him - he was, from the initial time that we got out of the vehicle and we were, when I was speaking to him, he had the position that he was not going to blow and he had said earlier, just take me to fucking jail.

So after reading the formal demand from the approved screening device demand, he was just, he was agitated, he was adamant he was not blowing. So I kept attempting to explain to him the consequences of failing to provide a sample is equal to registering a fail, an “F” on it, and it holds the same penalty. He was talking over me. He just kept saying, “Take me to jail, take me jail, I’m not blowing, just take me to jail.” He was angry, he was very angry. He was just, he wanted nothing to do with it. I tried to explain to him, the equal consequences.

So I continued to give him the opportunity to blow by taking the approved screening device. I put the mouthpiece on it. I provided a sample to show him how, you know, it functions, and showed him the results of zero milligrams of alcohol in 100 millilitres of blood. I changed the mouthpiece and, at the time, I gave him an opportunity to provide a sample to the approved screening device.

[152] At page 22 of the transcript from the officer’s examination-in-chief, she said:

Q So after he does that for the first sample into the ASD, what do you do?

A I explained it has to be continuous, that he can’t stop breathing midway and then start breathing into the device again, it need to be continuous, the toning, he needs to keep his breath continuous as the audible tone is heard until the end and I would guide him to stop when the suitable sample was provided. So then I provided Mr. Recoskie a second, two more times after that where the same results as the first.

Q. And after he provided two more samples that were the same as the first.

A. They were the same fashion. It was, everything was the same way, yes.

Q What was the next thing that you did?

A I believed at that time, so there was three non-suitable samples provided. At that time, I believed he was purposely and intentionally not wanting to provide a sample, given that he had already said many times he wasn’t going to . I believed he was playing games. He knew what he was doing, he knew that a suitable sample would not be registered by, by stopping and then starting over again so. I told Mr. Recoskie that I believed he was purposely not providing a sample but I would give another chance and that if he doesn’t provide a sample, he would be arrested for refusal of the approved screening device so..

Mr. Recoskie was provided, was attempted to provide another sample again in the same fashion. So I gave him one more after that just to, because he was still blowing into it. I thought give him one more chance. In a total, there was five but they were all done in exact same fashion, he was just repeating it over and over. So after the fifth attempt, I believed he just simply was refusing to provide a sample.

[153] At page 90, under cross-examination, the following exchange occurred between defence counsel and the officer:

Q According to you, according to both your independent recollection and your notes, Mr. Recoskie said, “I’m not blowing, fuck that, take me to jail”, those comments, before you made the breath demand, right?

A yes, they were made, it was first reaction to me telling him I could smell alcohol on his breath.

Q. That’s not what your write in your synopsis.

A And I agree with you, it’s not in there, but I’m – I mean, we don’t, a synopsis is not everything and it’s could be like. I mean, I have it in my notes, I know it’s not the synopsis. I can’t, I mean there’s probably other things that aren’t in the synopsis but it’s in there, just at a later time when he repeated a few times to me so.

Q That phrase, okay, “I am not blowing, fuck this, take me to jail.”

A Correct

Q. That appears in your notes before you make a breath demand, right?

A It also appear – yes, it does, and then it also appears in my notes further down where he says, where it’s explained to him, he’s talking over me, he just kept saying ‘take me to jail, fine, take me to jail’. He had been saying that.

Q Right

A. He said that prior to.

Q I understand. I look at your synopsis.

A right

Q And there’s nothing about “I am not blowing, take me to jail’, before you make the breath demand.

A Not in the synopsis, but it was in my notes.

Q I suggest it doesn’t make any sense. Of course, your synopsis is right. Why would someone say “I’m not blowing” if you haven’t provided them with….

A. Well, he said that he’s…

Q ….the option of blowing?

A…he’s blown. I believe he said he’s blown before in those, so he obviously would have known that, that’s what was coming so he was already adamant that he wasn’t going to .

[154] At page 94, the officer’s evidence in cross-examination was as follows:

Q Now you testified in-chief and I take it, you know, you’re trying to be fair to Mr. Recoskie but you give him a number of opportunities to provide a sample?

A Correct.

Q Right? That part of your training, as well?

A Well, until you believe, you have grounds to believe that they’re refusing, you give them…

Q Yeah.

A. ….until you form those grounds.

Q. Yeah. And you, now as a, as a breath technician you know the difference between the approved screening device and intoxilyzers, right?

A That’s correct.

Q. You know that the approved screening device will give you a Zero, a Warn or a Fail, right?

A Or numbers, Correct.

Q. Sorry?

A Or numbers?

Q okay what numbers?

A Zero to 0-4-9, .049

Q Okay, 0-049, Warn or Fail.

A Yes. Any number between then, yes.

Q. Okay. Between 0 and 049?

A Correct.

Q. Nothing over 049?

A. It goes to a Warn.

Q. It goes to a Warn? Right. And then it goes to a Fail, right?

A Correct

Q. You know what, and obviously I suspect you have some familiarity with the law when it comes to the approved screening device demand and the intoxilyzer demand, right?

A Correct.

Q. You know that if it fails, the approved screening device demand, what that does for you is you’re allowed to arrest them for over 80 and take them to the intoxilyzer to provide a sample, right?

A Yes

Q But you know that returning a fail, an “F” result on the approved screening device demand is not, in and of itself, a criminal offence, right?

A Well, failing the roadside gives you grounds to believe that there’s more than, I mean they’re calibrated at a hundred but 80 milligrams of alcohol in their body.

Q My question is simple. You know that failing the approved screening device, returning an “F” on that device is not in and of itself a criminal offence, right?

A True

Q Right. So in other words, if somebody fails that and doesn’t provide a further breath sample, it’s not an offence to fail the ASD, it just gives you the grounds to go to the station and make them provide a breath sample into the intoxilyzer, right?

A That is correct.

[155] At page 97 of the officer’s evidence in cross-examination, she said:

Q Okay. She (Crown) asked you, after asking if there are any observations about him not understanding or being confused, you said, “After reading the formal demand, he was just agitated and adamant. I kept explaining the consequences.”

A Correct

Q “Failing to provide a sample is the same as registered an “F on it, the same penalty. I tried to explain the equal consequences”. Say that?

A Yes. And the equal consequences, I explained, was the ADLS suspension, the impound vehicle, the, everything that comes with an over 80, which is in my notes.

[156] At page 98 of the officer’s evidence in cross-examination, she said:

Q constable McPeak, you told Mr. Recoskie that if he refused or failed to provide a breath sample, “the consequences for refusal would be the same as an “F” fail”. Have you been trained to do that?

A Well, failing it, over 80, I guess the fail itself – no, I agree with you, the fail itself is not, not the consequence to that but the over 80 and then – some people won’t understand the consequence of over 80 so I always go into, you know, your license will be automatically suspended, you have the 7-day impound and then I articulate with an impaired over 80, and I mean, I guess in my experience, I have never had someone blow a fail on the side of the road and then pass at detachment. That’s never happened. So it’s kind of, in my, in my experience, it hasn’t.

Q Have you been trained – my question was have you been trained to say that the consequences for refusing are the same as failing? This, an “F” fail.

A No. They’re just words that I use to help explain to.

[157] At page 116 of the officer’s evidence in cross-examination, she said:

Q. You agree that it’s not all, there are things that aren’t in your notes about what you said to him and he said to you, but also you’re unable to remember, to stand here and tell us….

A. I think that was all that was said between us, like I just want to find this in my notes, because he didn’t talk much, so there, the dialogue was just- I don’t think he would have said anything else in there. Just, he never talked much.

Decision

[158] For the reasons explained below, I find that the trial Judge erred in law when he found that the Crown has failed to prove all the elements of the offence.

[159] After a careful review of the transcript, I find that initially the officer’s information to the Respondent was not complete as she stated that the refusal to blow was the same as failure to blow and would attract the same consequences. This is not necessarily wrong information if the officer had gone on to explain that in her experience when an individual fails the ASD, he is likely to also fail the intoxilyzer test. However, in this case, she did not.

[160] At trial, she explained that in her experience when someone fails the ASD it usually results in a failure with respect to the intoxilyzer and a charge of driving over the legal limit.

[161] However, when the Respondent then made three attempts to provide a sample, she told him that she would give him another opportunity and that otherwise he would be charged for refusal to provide a sample. This information clarified the consequences of a failure to blow and hence, in my view, the elements of the offence were made out, that is: there was an unequivocal lawful demand.

[162] I find that the demand was unequivocal despite the initial incomplete information provided by the officer because:

− The Respondent knew that he was required to blow by law as he attempted five times to unsuccessfully blow;

− After three attempts to blow, the officer told him the consequences of his failure to blow, that is, he would be charged;

− The Respondent knew the consequences he faced because he told the officer “take me to jail” even though there is no requirement on the Crown to show that the Respondent was aware of the consequences of the failure to provide a sample; and

− Even upon his exiting his vehicle, when he was first stopped, he stated that he was not going to blow.

[163] This is not a case of ambiguity. The Respondent understood the officer’s demand and he unequivocally refused an unequivocal demand. He refused after the demand but before he was aware of the consequences. The officer’s explanation of the consequences did not persuade the Respondent to comply.

[164] The Respondent submits that the officer’s words are particularly prejudicial where incorrect legal advice is given at the roadside, given that the subject of the investigation has not been informed of his rights to counsel and the officer at the scene is the only source of legal advice. This is not borne out by the evidence. The trial judge erred when he found that this information provided by the officer tainted the demand.

[165] Looking at the facts in this case, the Respondent responded to the initial demand by saying that she could take him to jail. According to the officer, he appeared agitated and he was not blowing.

[166] She then said that she informed him of the consequences of not blowing and that a refusal was the same as a failure. She admitted that this was not part of her training. She conceded that a refusal would result in a charge whereas a failure would give her reasonable and probable grounds to bring him to the station for him to blow in the intoxilyzer. A failure would not result in a criminal charge.

[167] She wished to give him a number of opportunities before she believed she had grounds to charge him with refusal.

[168] She did advise him after the first three failed attempts that he would be charged if he refused. The Respondent was aware of the consequences.

[169] There are very few situations where an individual might be required to incriminate himself without first being advised of and/or allowed to contact counsel. The roadside breath testing stop is one of them.

[170] He had no reasonable excuse. However, the defence argues and I agree that this is not legally induced error case which would provide the Respondent with a reasonable excuse such that the information affected his decision-making process.

[171] Cases turn on their own facts.

[172] In Hiebert, the accused refused to provide a breath sample, but then he changed his mind and offered to provide a sample. After receiving the formal demand, he said no, but he asked for a better explanation of what the consequences would be for refusing. The demand was read again. The Court called this the “refusal warning”. The accused said: “‘No, I will not provide a sample’”: Hiebert, at para. 8. The officer explained that the consequences of a refusal charge would have the same legal consequences as an impaired driving conviction or a conviction for driving over the legal blood alcohol limit. It was explained to him several times and he continued to indicate that he would not comply with the request.

[173] He was formally arrested. While at the scene, another officer attended who was not aware that an arrest had taken place and told the accused that if the sample was negative, he could “walk away”: Hiebert, at para. 11. The accused testified that he had a moment of clarity and he volunteered to provide a sample. The original officer told him it was too late: Hiebert, at para. 11.

[174] The Court referred to R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 where the Supreme Court of Canada discussed what constitutes a refusal to provide a breath sample. The Court stated that there is an obligation to make the demand forthwith and that there is an obligation on drivers to provide an immediate response to the demand: Woods, at para. 44. In that case, at para. 29, the Court stated that the “forthwith” requirement in s. 254(2) is linked to “its constitutional integrity” and “Parliament’s intention to strike a balance in the Code between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.”

[175] At para. 45, the Court stated that drivers are bound to comply immediately.

[176] In Hiebert, the Court found that in the 11 minutes from the stop to the arrest, there was “an unequivocal refusal in response to a formal demand and then a second unequivocal refusal made in response to the formal refusal warning”: Hiebert, at para. 32. The accused understood the nature of the refusal crime after various explanations were made to him. His recanting to a second officer was “not part of the same transaction or serious of events that constitute a refusal”: Hiebert, at para. 33.

[177] Justice Rempel in Hiebert summarizes the need to examine the facts at paras. 25-26:

[25] In R. v Woods and indeed all the case law that precedes and follows that decision, judges are engaging in a balancing exercise, as the competing interests of the rights of an individual to be free from unreasonable state intrusions into his or her privacy and the state’s interest in law enforcement come into play. As a result, every time a decision as to a refusal arises the facts must be subjected to a rigorous judicial analysis in which these competing interests are scrutinized in the context of the totality of the circumstances in which they arise. This test is perhaps better described by law professors as simply a matter of each case turning on its own facts.

[26] When assessing the totality of the circumstances in refusal cases the courts have assessed a whole constellation of factors to determine if an accused person was fully and properly informed to the point where it could be reasonably and objectively concluded that the accused understood that his or her refusal constituted a crime. The existing case law describes the key factors to be considered in these kinds of cases are as follows:

1. the timeline from the moment of the traffic stop through to the arrest and then the subsequent acquiescence (if it followed the arrest);

2. the reasonableness of the efforts of the police to explain the nature of the demand and the refusal warning before the arrest and any further explanations or comments of the police or the accused that may have followed after the arrest; and

3. the degree of understanding that the accused seemed to demonstrate to the police in response to both the demand and the refusal warning.

[178] In Lalonde, Masse J. made findings that the accused could have been mistaken in his understanding of the law, but the Court ultimately acquitted on the basis of the tainted demand by following Tunnoch. The Court found that the accused was never told that it was criminal offence if he refused to provide a breath sample: Lalonde, at para. 13.

[179] In addition, in Tulloch, Wright J. found that the accused was clearly concerned about failing and was anxious while being told that a failure and a refusal are the same thing. The Court did not believe him when he stated that he did honestly try to provide a sample. There is no evidence that he was told that he would be charged if he refused.

[180] Therefore, I distinguish these aforementioned cases where there was no evidence that the officer ultimately told the motorist that if he refused, he would be charged.

[181] Also, unlike in Tunnoch and Lalonde, there was evidence in those two cases that the accused may have been confused or that the original incomplete information affected his decision-making process.

[182] There is no question that in this case the Respondent knew what was expected of him. Indeed, he even tried to provide a sample on a few occasions.

[183] Accordingly, the appeal is allowed, and I am entering a conviction on the refusal charge.

Justice A. Doyle

Date: 2020/12/14

COURT FILE NO.: 19-0210

DATE: 2020/12/14

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty the Queen, Appellant

v.

Nathan Recoskie, Respondent

BEFORE: Justice A. Doyle

COUNSEL: Caitlin Downing, for the Crown

John Pepper, for the Accused

HEARD: October 28, 2020

REASONS on summary conviction appeal

Justice A. Doyle

Released: 2020/12/14