Court File and Parties

COURT FILE NO.: 16-A13545 DATE: 2021/02/26

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen – and – Paul Mtonga Respondent

Counsel: Moiz Karimjee, for the Crown Fady Mansour, for the Respondent

HEARD: January 27, 2021

Reasons for Decision on Summary Conviction Appeal

A.E. London-Weinstein J.

[1] Mr. Mtonga was acquitted of refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code of Canada by Justice Webber on April 26, 2018.

[2] The Crown raises three issues on appeal. I will deal with each of them in turn.

1. The trial judge misapprehended the officer’s evidence as to whether or not the Respondent in fact closed his lips in front of the ASD device;
2. The trial judge provided insufficient reasons explaining why he was left with a reasonable doubt regarding whether the Crown had proved mens rea; and
3. The trial judge applied the incorrect test for mens rea.

The facts accepted at trial:

[3] At 3:16 a.m., on November 27, 2016 Constable Cartmill received a call to investigate a possible impaired driver, perhaps asleep behind the wheel in the drive-through lane of a local McDonald’s restaurant.

[4] The officer arrived on scene at 3:20 a.m. to find the Respondent parked beside the pickup window with his car running. The Respondent was awake at the time.

[5] When the officer approached the Respondent, he observed him to have red, glassy eyes. The officer detected a strong odour of alcohol on the Respondent’s breath. The officer asked the Respondent if he had consumed any alcohol and the Respondent said: “Two Budweisers”.

[6] In his testimony at trial, the Respondent testified that he told the officer he had consumed two beers earlier in the evening. The officer formed the suspicion that the Respondent had alcohol in his body. He immediately called over the radio for an ASD to be brought to the scene. The demand was made within three minutes of forming the suspicion. The ASD arrived within one minute of the formal demand having been made.

[7] The officer demonstrated operation of the ASD to the Respondent at 3:31 a.m. The officer was satisfied, as a result of this demonstration, that the device was functioning properly. The Respondent made his first attempt to provide a sample at 3:32 a.m. His second attempt was made at 3:33 a.m., his third at 3:34 a.m., and his final attempt at 3:37a.m. Between the third and fourth attempts the officer recalled providing a second demonstration to the Respondent.

[8] On each of the attempts the device was reporting “insufficient volume”. The trial judge noted that the officer testified that it appeared as if the Respondent was not putting his lips around the mouthpiece. The trial judge further noted that the officer testified that it appeared as if the Respondent was failing the test on purpose. Finally, the trial judge noted that it appeared to the officer that the Respondent was blowing down the outside of the mouthpiece each time.

[9] The officer advised the Respondent that failing to provide a sample would have the same consequences as being charged with impaired driving. There was no note of this communication in his duty book.

[10] The officer arrested the Respondent for failure to provide a breath sample at 3:43 a.m. The Respondent’s evidence was that he had two beers at 5 p.m., woke up at 2 a.m. and went to McDonald’s for a snack. He lived two blocks away but decided to drive. He testified that he placed his order and drove around to what he thought was the pickup window. He waited, but his order never arrived. Instead, there was a police officer at his window. The Respondent denied being intoxicated and explained that he was trying to provide a sample each time he was given an opportunity.

[11] He agreed in cross-examination that the officer at some point told him that if he did not provide a sample he would be charged with refusal. He also admitted that the officer told him on his third attempt that it was his last chance. He insisted he was trying to provide a sample. Finally, he testified that he asked the officer, after the fourth failed attempt, to give him another chance. Instead the officer proceeded to process him on the charge of refuse breath sample. The Respondent said to the officer: Why am I being charged with refusing to provide a breath sample? He testified that he impressed on the officer at the time that he was not intentionally refusing to comply.

Did the trial judge misapprehend the officer’s evidence as to whether or not the Respondent in fact closed his lips in front of the ASD device?

[12] The Crown argues that Justice Webber misapprehended the evidence of the arresting officer. The officer testified that “Each time he would attempt he wouldn’t put his mouth over the mouthpiece. It appeared that he was trying to blow out of the side of his mouth instead of blowing into the device.” In his reasons for judgment, the trial judge wrote: “The officer testified that it appeared as if the accused was not putting his lips around the mouthpiece.”

[13] The test in law for this ground of appeal is stringent. The trial judge must either fail to consider or misstate evidence that is material rather than peripheral and that plays an essential part in the reasoning process. See R. v. Morrissey (1995), , 97 C.C.C. (3d) 193 (Ont. C.A.) at 218 and 221. The trial judge did not fail to consider this evidence, nor did he misstate the evidence of the officer.

[14] With respect, I find that this criticism of the trial judge is one of semantics. The trial judge clearly indicates that the officer testified that it was the officer’s view of things that the accused was not putting his lips around the mouthpiece. The trial judge is repeating what the officer observed, what it appeared to the officer to be happening. A witness can only testify as to their observations, or how matters appear to them. Whether or not those observations are fact is determined by the trier of fact.

[15] In my view, there is no validity to the claim that the trial judge misapprehended this evidence. The criticism is one of the choice of words employed by the trial judge in relating the evidence of the officer, which in my view were accurate. I would not give effect to this ground of appeal.

Were the trial judge’s reasons insufficient in explaining why he was left with a reasonable doubt?

[16] The Respondent argues that the trial judge’s reasons were insufficient, pointing to the following evidence which emerged in cross-examination: Mr. Mtonga disagreed with the Crown that he did not place his mouth around the mouthpiece and blew the air over the side. He testified that “I placed my mouth on the mouthpiece and blew the air, and while I was blowing the air, he told me: You’re not doing it right.”

[17] The Appellant argues that the trial judge failed to address the disparity between the officer and the Respondent on this issue. Moreover, the Appellant argues that the reasons fail to address why there is reasonable doubt on the issue of intent given the four failed attempts to provide a breath sample; absent other circumstances being present that might explain that failure, the inescapable inference being that the accused intended to cause that result. R. v. Slater, 2016 ONSC 2161. This secondary issue relates to the third ground of appeal, which is that the trial judge erred in determining the appropriate mens rea for the offence.

[18] The trial judge acquitted the Respondent as he was left in a state of doubt arising from the Respondent’s request for a “last chance” to provide a sample. This last chance request came after four failed attempts to provide the sample. This factor distinguishes this case from Slater, and R v. Porter, [2012] ONCS 3504.

[19] I also do not agree with the Crown that the trial judge failed to consider the observations of the officer with respect to the four refusals and focused instead on the comments of the accused regarding requesting a fifth attempt.

[20] At page 3 of his judgment the trial judge observes that the officer’s notes demonstrated the operation of the ASD at 3:31 a.m. The trial judge noted that the officer was satisfied as a result of the demonstration that the device was functioning properly. The judge noted that the first attempt was at 3:32 a.m., the second at 3:33 a.m., and the third at 3:34 a.m., and the final attempt at 3:37 a.m. The trial judge noted that between the third and fourth attempts the officer recalled providing the second demonstration to the accused. The trial judge noted that on each of the attempts the device was reporting insufficient volume. The trial judge noted that the officer testified that it appeared as if the accused was not putting his lips around the mouthpiece. The officer testified that it appeared as if he was failing the test on purpose. The trial judge noted that it appeared to the officer that the accused was blowing down the outside of the mouthpiece each time.

[21] In my view, the above passage clearly demonstrates that the trial judge considered and reviewed the observations of the officer in this matter. While it is true that the trial judge did not specifically recite the contradictory evidence of the officer and the accused in regard to the accused’s evidence that the device was taken from him and he was told that he was not doing it right, it is clear that the trial judge came squarely to grips with the fact that the officer’s opinion was that Mr. Mtonga was deliberately trying to fail by not putting his lips around the mouthpiece and blowing down the outside of the mouthpiece each time. The trial judge clearly understood that the issue was whether Mr. Mtonga was willfully refusing the lawful demand. It is well established that a trial judge need not articulate every finding so long as the findings which link the evidence to the verdict can be discerned. The evidence and submissions are part of the record which must be read alongside the reasons. R. v. M.(R.E.), 2008 SCC 51 at paras 18-25. The proper question to be asked is whether, in the context of the reasons, the evidence, the issues and the submissions taken together, can the reason for the verdict be understood? R. v. M. (R.E.), para 37. The reasons themselves may be important to clarify this basis, or the basis may be clear from the trial record as a whole. The trial reasons must demonstrate that the judge “seized the substance of the matter”. Detailed recitations of fact and law are not required as long as the judge came to grips with the substance of the matter. In this case, I found that the trial judge came squarely to grips with the substance of the matter as viewed through his reasons and the record as a whole. The Appellant argues that “instead of focusing on the actions of the Respondent, the trial judge focused on what the accused said in considering whether there was reasonable doubt concerning the previous four attempts. Specifically, the trial judge focused on the accused’s request to be given a fifth opportunity to provide a breath sample in considering whether there was reasonable doubt.

[22] I disagree with this assessment of the trial judge’s treatment of the evidence. The record reflects that the trial judge considered the whole of the evidence in determining whether the Crown had proven the elements of the offence of refuse/fail. The trial judge reviewed the decision of R. v. Tavangari, [2002], O.J. No. 3273 where Justice Kenkel reviewed the types of factors considered by courts in determining whether the elements of the offence has been proven. The trial judge noted at paragraph 16 of Tavangari, the following relevant factors: the explanation given to the accused about the testing procedure; the evidence or lack of evidence of the accused’s efforts to provide a sample, the amount of time over which the testing was conducted; the number of tests completed; what warnings were provided the accused regarding the consequences of not providing the sample; the reasons given for terminating the testing; and perhaps most relevant to the issue before the trial judge was there a request to take a further test?

[23] Along this vein, the Appellant also argues that the trial judge wrongly considered the number of attempts to provide a sample as being relevant to the analysis, despite the decision in R. v. Dhillon, 2015 O.N.S.C. 5400 in which both the trial judge and the SCA judge found the number of attempts to not be heavily weighted factors within the circumstances of that case. I do not agree with this characterization of the trial judge’s reasoning. I note as well, that Slater references the accused’s knowledge of multiple failures before the inexorable inference regarding intention would arise.

[24] The trial judge explicitly acknowledges R. v. Dhillon, 2015 O.N.S.C. 5400 in his judgement. At para 18, he notes that the trial judge and the summary conviction appeal judge placed no weight on the number of attempts, nor on the rapidness with which they occurred. The trial judge accepted that the factors are not determinative but noted correctly, that one could well envision doubt in the mind of a trier being impacted by the number of attempts.

[25] In fact, this is exactly what the court in Slater stated regarding multiple attempts. The greater the number of attempts, the less doubt there is regarding the intent of an accused as the inference grows stronger with each failure. Secondly, the trial judge notes at page 15 that “There is clearly no magical number of how many opportunities to provide a sample should be extended to an accused who persists in asking for yet another opportunity to comply with the demand, but an argument can clearly be made that the prospect of doubt regarding the intent of an accused to perhaps frustrate such testing, or the plausibility of the theory that the accused is intentionally frustrating such testing, increases with each successive failure.”

[26] The functional and substantive test for assessing the sufficiency of reasons, in relation to the issue of credibility was set out by the Court in R. v. M. (R.E.) (2008) 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.) at paras 48 to 50 and 54 to 56. This approach mandates deference to the trial judge and recognizes the difficulty of articulating findings of credibility but requires that the trial judge’s reasons show that s/he has “seized the substance of the issue”. The trial judge in this case reserved judgment and later delivered a decision orally which demonstrated that he clearly grasped the central issue in the case, which was whether the crown had proven the elements of refusal.

[27] The trial judge, in assessing the whole of the record before him, noted that the officer had no note of advising the accused of the consequences of not providing a sample over and over. (Page 4). The trial judge also found as a fact that the accused kept asking the officer why he was arrested and where his car was. Page 5.

[28] The trial judge noted at page 16 of his judgment that the officer recalled the accused, upon being arrested, repeatedly asking why he was being arrested for a refusal. The trial judge noted that these exchanges, which were not noted, illustrate a level of confusion, perhaps, on the accused’s part, or alternatively are arguably were consistent with his evidence that he was not intentionally failing to provide the samples provided.

[29] The trial judge then cited his own unreported decision, R. v. Boily (released December 14, 2016) where he pointed out that in cases of equivocal conduct on the part of the accused, as near a comprehensive record of the interaction between an accused and the officer is of paramount importance. In the absence of such a record, the court is asked to accept a pivotal opinion of the arresting officer without the ability to meaningfully scrutinize its reliability.

[30] The trial judge also considered the evidence of the officer that Mr. Mtonga appeared to be trying to fail the test deliberately, and that it appeared to the officer that he was blowing to the side of the device.

[31] At paragraph 13 of the judgment, the trial judge stated “As noted in the case of R. v. Dolphin, 2004 MBQB 252, [2004], M.J. No. 433 at paragraph 12, the natural inference that one intends the consequences of his or her acts when the device has otherwise been proven to have been in good working order is a formidable piece of evidence. However, evidence of police officers that an accused “appeared to not be blowing properly” is inherently less reliable. As such, it must be carefully evaluated. The trial judge then makes reference to paragraph 15 of Dolphin.

“Considering the fact that most such tests are performed at night in the back of a police car over a relatively short period of time when the police officer’s attention is divided between the device and the accused, the court must take great care when it assesses the reliability of that evidence.”

[32] It was open to the trial judge to conclude that cases where an accused unequivocally refuses to comply with a breath demand are more often than not straightforward cases, however “failure” cases such as the one before him are often more difficult to decide. Page 13.

[33] The trial judge acquitted Mr. Mtonga on the basis of the “last chance” issue. The trial judge came to terms with the substance of the issue and explained his basis for acquitting the accused.

[34] The trial judge had a doubt regarding whether Mr. Mtonga requested a final opportunity to provide a sample. This is one of the considerations he was required to determine in assessing whether the Crown had proven the intention to refuse/fail to provide a sample. It was open to the trial judge to make that finding on the evidence before him. It was part of his overall assessment of the circumstances of the case relating to whether the elements of the offence had been proven beyond a reasonable doubt.

[35] The last chance request is not an excuse. It is part and parcel of the trial judge’s analysis as to whether Mr. Mtonga refused the sample on purpose, or whether he was demonstrating a willingness to take the sample, given his imploring of the officer to offer it to him again. This evidence relates to mens rea.

[36] If Mr. Mtonga had refused to provide a sample, rather than simply faltering in his ability to provide one, and then indicated that he could not provide the sample due to a health concern, this would be an excuse, but it would only come into play once the Crown had proven that there had been a proper demand, and that Mr. Mtonga refused to provide the sample on purpose.

[37] The trial judge assessed the credibility of the claims before him by looking to the evidence of Mr. Mtonga that he made a further request, and by finding that the state of the notes of the officer and the evidence of Mr. Mtonga, which he did not wholly accept, left him in a state of doubt. In arriving at that finding he found that the Crown had not proven beyond a reasonable doubt that Mr. Mtonga failed or refused on purpose. This request for a last chance is evidence of equivocation regarding the intent to refuse/fail.

[38] Further, the trial judge acknowledged that the number of refusals where the ASD device is working is powerful evidence which must be considered when determining whether a doubt existed as to Mr. Mtonga’s intention to refuse. This evidence was considered along with the officer’s notes, and the fact that the trial judge accepted that Mr. Mtonga appeared to be surprised that he was being charged, which suggests that he had made the request. The officer’s notes did not help the trial judge resolve that difficulty.

[39] I would not give effect to this ground of appeal.

[40] The final ground of appeal is somewhat related to the second, in that the Appellant argues that the trial judge erred in law by applying the incorrect mens rea test on the refusal.

Did the trial judge err in applying the incorrect mens rea test on the refusal/failure?

[41] The offence itself provides that:

s.254(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

The Actus Reus Elements:

The actus reus or physical acts of an offence are associated with the physical acts done by an accused, however, it also includes other objective facts which must be present for an offence to occur, such as the factual conditions which must pertain, or the consequence that an offence provision requires. Not all offenses include all three forms of actus reus elements. R. v. Soucy, 2014 ONCJ 497, [2014] O.J. No. 4518, para 25.

The actus reus elements of the offence, as described in R. v. Lewko, 2002 SKCA 121, [2002] S.J. No. 622 (Sask. C.A.) and adapted to include the distinction between acts and conditions identified in Soucy, and updating them to conform to the amendments to the Criminal Code since Lewko was decided, are:

First, the Crown must prove [the factual condition of] the existence of a demand having the requirements of one of the [6] types of mentioned in ss.(2) and (3) [and 3.1,3.3 and 3.4] Second the Crown must prove an [act of] failure or refusal by the defendant to produce the required sample of breath or the required sample of blood [or a failure or refusal to submit to the evaluation of an evaluation officer] [^1]

The Mens Rea Element

The Appellant argues that the trial judge erred by requiring that the Crown prove that the Respondent failed on purpose. I do not agree that the trial judge erred.

[42] There are two lines of authority regarding the mens rea for s. 254(4).

[43] In R. v. Lewko, 2002 SKCA 121 Sask C.A., at para 9, the Court held that to prove mens rea the Crown must prove that the accused intended to produce a failure. In Lewko, the Court concluded that the trial judge had properly concluded intent had been proven by inference. The “pathetic” failures of the accused, with no countervailing evidence, satisfied the trial judge beyond a reasonable doubt that the requisite mens rea of intention had been established. The trial judge, having found that the Crown had proven the mens rea, and the actus reus, turned to the issue of reasonable excuse, and found there was none.

[44] The trial judge relied on the reasoning of Paciocco J., as he then was, in R. v. Soucy, 2014 ONCJ 497, [2014] O.J. No. 4518. Soucy followed the Lewko line of cases. In my view the trial judge was correct in finding that the mens rea for this offence is refusing or failing to provide a proper sample on purpose, as held in Soucy.

[45] The second line of authority flows from R. v. Porter, 2012 ONSC 3504, 2012 ONCS 3504. In Porter, Justice Code held that knowledge (of failing) or recklessness as to the doing of the prohibited act is sufficient to establish mens rea.

[46] Justice Code provides a reasoned analysis as to why “willfully” should not be read into the section. The “willfully” term connotes an intention. Justice Code makes an argument by analogy that s.733(1) of the Criminal Code now tracks the statutory terms found in s. 254(5) and notes that R. v. Docherty, [1992] 2 S.C.R. 941 S.C.C., has been legislatively reversed. In Docherty, the Supreme Court held that subjective mens rea is required for a breach of probation charge.

[47] Recently however, the Supreme Court of Canada in R v. Zora 2020 SCC 14, 2020 S.C.C. 14 held that subjective mens rea is required in a s. 145(3), breach of recognizance charge and noted that removal of the word “willfully” does not on its own indicate an intent to create an objective mens rea offence. (Para 50) The Court noted its jurisprudence supports a subjective mens rea and referred to Docherty.

[48] The Court in Zora, reiterated the foundational principle which Justice Paciocco referenced in Soucy, which is that the presumption of subjective fault reflects the underlying value in criminal law that the “morally innocent should not be punished.” The Court noted that this criminal sanction should only rarely be imposed absent the moral fault which follows from the offender having a subjective, culpable mental state. This is not an absolute rule, but captures what was assumed to be present in the mind of Parliament when enacting the provision. The provision of subjective fault will only be overridden by clear expressions of a different legislative intent. Paras 27-29.

[49] The Court also held that the inclusion of the statutory defence of a “lawful excuse” in s. 145(3) plays no role in the interpretation of the mens rea of the offence. Lawful excuse provides an additional defence that would not otherwise be available to the accused. Zora para 37.

[50] For these reasons, I am satisfied that willfulness must be read into the section, and that the appropriate mens rea is refusing on purpose. I agree with the reasoning of Justice Paciocco that knowledge that one is failing is insufficient. One can be intending to provide the sample and fail to do so. However, it is open to a trial judge to find that repeated failures give rise to an inference from the evidence that the Crown has established the failure was on purpose. To use a different example, one may intend to lose weight, yet fail repeatedly to do so. Knowledge of failing, does not establish an intention to fail. The individual’s awareness of their failure is not tantamount to intention. However, an impartial observer watching an individual eat pizza and ice cream every day, may rightfully conclude that the individual’s intent, in fact, is not to lose weight.

[51] To further complicate matters, in relying on Soucy, which adopts the “Lewko” position, Justice Webber referred to the decision of Justice Melvyn Green in R v. Slater (2015) O.J. No 1464. That decision has been overturned by Nordheimer J.: See R. v. Slater 2016 ONSC 2161.

[52] In Slater, Justice Nordheimer downplayed any divergence between Lewko and Porter. With respect, I am unable to agree with this conclusion. Lewko and the cases which follow it require the Crown to prove that the accused refused to provide a sample wilfully. Porter holds that the Crown is not required to prove that the accused wilfully failed to provide a sample, and knowledge of failed attempts is sufficient mens rea.

[53] Justice Paciocco in Soucy, found that the mens rea for this general intent offence, is refusing a proper demand on purpose. He wrote: “Specifically, the Porter court was incorrect, in my view, in concluding that if the Crown must prove that the accused intended to fail or refuse to provide a suitable sample, this is a “specific intent” requirement. In fact, proving an intention to refuse or fail to provide a suitable sample as called for by the Lewko line of cases represents the basic general intent requirement. Soucy, para 34.

[54] In my view, it was open to the trial judge to find that the record provided to him by the officer was inadequate to satisfy him as to Mr. Mtonga’s intention. I agree that intention is determined by inference, rather than direct evidence, however the last chance request also gives rise to an inference. It was open to the trial judge to consider it in determining whether he was left in a state of doubt.

[55] The trial judge noted in his judgment that where there is evidence of a number of failed tests, and no other circumstantial evidence which would raise a doubt on the issue of intent as in Dolphin, that a strong inference arises that an accused is intentionally failing. In Slater the inference was described as inexorable and inescapable. However it is described, it is an inference arising from the evidence, which the trial judge specifically recognized and referenced in his judgment.

[56] I am of the view that the correct mens rea for refuse/fail is as described in Soucy, failing/refusing on purpose. This was Justice Webbers’ conclusion as well. I note that Nordheimer J., in Slater left open the possibility that there is in fact a divergence in the case law as to the appropriate mens rea for a fail/refuse.

[57] In Slater, the court found there was simply nothing to refute the logical and inescapable inference that a person, who is given multiple opportunities to provide a breath sample, and who fails on each of those opportunities, is intentionally causing that result. Absent some explanation as to why that logical and inescapable inference had no application to the case, he found that a conviction should have been registered.

[58] In Mtonga, the accused did testify. His evidence regarding requesting another chance to try and provide a sample left the trial judge in a state of doubt. In considering whether the crown had proven mens rea beyond a reasonable doubt, the trial judge was correct to consider this evidence.

[59] The Appellant argues that the rationale underpinning the acquittal relates to what constitutes reasonable excuse once a refusal has been proven. However, the trial judge determined that the basis for the acquittal did not relate to the existence of a reasonable excuse, but the failure of the crown to prove that Mr. Mtonga refused on purpose. The issue of a reasonable excuse did not arise, as the Crown had not proven that the failure was on purpose. The trial judge found that despite not accepting the evidence of the Respondent, he was left in a state of doubt that the refusal was unequivocal.

[60] The trial judge found that the Respondent, after being advised that he was going to be arrested, pled for a last chance.

“Mr. Mtonga testified that after his fourth attempt, and after being advised that he was going to be arrested for refuse breath sample, he pled with the officer invoking the fact that he had a family and children, and asked for yet another opportunity to provide a sample. There is no evidence that the officer recorded this exchange in his duty book.”

[61] The trial judge also noted that the officer recalled the Respondent, upon being arrested, repeatedly being asked why he was being arrested for a refusal. He found that there was an arguable basis, despite the lack of the officer’s notation, that the Respondent was in a state of confusion, which was consistent with his evidence that he was not intentionally failing to provide the samples demanded.

[62] The trial judge acquitted the Respondent as he was left in a state of doubt on the issue relating to the officer refusing to provide a last chance to the respondent. The trial judge correctly reviewed the factors cited in R. v. Tavangari, 2002 O.J. 3173 when assessing an accused’s intent not to provide a sample.

[63] I agree with the Respondent that the reasons of the trial judge make clear that on the evidence before him, he was not able to reject the Respondent’s evidence that he requested a last chance and was not provided one. I also note that the trial judge explicitly noted that while he could not accept the Respondent’s evidence, on application of R v. W.D. 1991 SCC 93, [1991] 1 S.C.R.742 the evidence surrounding the request for an additional chance left him in a reasonable doubt that the Respondent was intentionally frustrating the testing process by feigning.

[64] There is no requirement that the accused be given one “last chance” post-refusal. R. v. Kitchener, 2012 ONSC 4754, [2012] OJ No 3857 (SCJ).

[65] However, where an officer has denied an accused’s request for a final opportunity to blow, the issue of whether the refusal was final or unequivocal arises. R. v. Tynkaluk [1989] O.J. No. 957 (S.C.); R. v. Domik [1979] O.J. No. 1050, at page 307, affirmed [1980] O.J. No. 710 (C.A.)

[66] Where a person makes false attempts to comply with the demand he is refusing to provide adequate samples…a subsequent offer in such a case should be treated no differently than an offer made following an outright refusal. Tynkaluk, supra.

[67] Many years after the decision in Domik, Justice Grange’s comments regarding the counterintuitive nature of self-incrimination to a lay person who has not had an opportunity to speak to counsel, are still appropriate when approaching equivocal cases of fail/refuse in my view. As Tynkaluk makes clear, this is true even in cases where an individual may be feigning co-operation with the ASD device.

[68] Having found that the Crown failed to provide the mens rea element beyond a reasonable doubt, there was no basis on the facts of this case for the trial judge to consider whether the accused raised a reasonable excuse.

[69] The finding of an acquittal was open to him on the facts of this case. There were four failures, incomplete officer notes which contributed to an incomplete record, and some evidence of a request for a fifth sample. In my view, these factors distinguish this case from Slater, and Porter. In Slater the accused did not testify and there was no “last chance” request. There was also no last chance request in Porter.

[70] For the reasons outlined, the appeal is dismissed.

A.E. London-Weinstein J. Released: February 26, 2021

Footnotes

[^1]: As Justice Paciocco pointed out in Soucy, at the time R. v. Lewko, 2002 SKCA 121, [2002] S.J. No. 622 (Sask.C.A.) was decided, the Criminal Code contemplated only 3 kinds of demands, the ASD demand, (s.253(2)), the evidential breath demand (s.253(3)(a)(i)), and the blood demand (s.253(3)(a)(ii). Since Lewko was decided, the Criminal Code was amended to include a demand that persons submit to an evaluation conducted by an [drug] evaluating officer (s.253(3.1)) and a demand by a [drug] evaluating officer to provide a sample of breath (s.253(3.3)) or oral fluid, urine or blood (s.253(3.4)).