Court File and Parties

Court File No.: CR-20-00000151-00AP Date: 2022-04-13 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Respondent – and – Robin Titcombe, Appellant

Counsel: Jennifer Armenise, for the Respondent Edwin Boeve, for the Appellant

Heard: April 11, 2022

Reasons for Decision On appeal from the decision of The Hon. Mr. Justice P. Brissette dated September 21, 2020

Christie J.

Overview

[1] The Appellant, Robin Titcombe, was convicted on September 21, 2020 of having care or control of a motor vehicle while his ability to do so was impaired by alcohol or a drug contrary to section 253(1)(a) of the Criminal Code and failure or refusal to comply with a demand contrary to section 254(5) of the Criminal Code. He received fines of $1000 on each count and a 1 year driving prohibition, concurrent on each charge. The trial was held on February 20, 2020 and consisted of one witness called by the Crown, PC Hanan Mahmoud. PC Mahmoud was both the arresting officer and the qualified breath technician.

[2] A brief summary of the facts will suffice. PC Mahmoud, an officer with the Ontario Provincial Police (“OPP”) was involved in a RIDE check program on December 5, 2018 at Highway 12 and Hurtubise Road in Orillia. At about 2:35 a.m., the officer stopped a motor vehicle occupied by the Appellant. There was no poor driving observed and no issue with the stop itself. Soon after the stop, the officer claimed to have formed reasonable and probable grounds to arrest the Appellant for impaired driving. Upon exiting the vehicle at 2:44 a.m., the Appellant was arrested for that charge. The Appellant was provided his right to counsel, caution and a breath demand. The Appellant arrived at the Orillia OPP station at 2:52 a.m. He spoke to a lawyer between 3:31 a.m. and 4:00 a.m. The Appellant was brought to the breath room. The breath test was administered to the Appellant, however, the Appellant did not provide a suitable sample of breath in order to obtain a result, despite five opportunities to do so. The Appellant was then charged with the additional offence of refusing to provide a breath sample.

[3] The Appellant raised four grounds of appeal:

a. The Appellant argued that the demand by the investigating officer was inadequate and, therefore, not lawful. There was no evidence that PC Mahmoud made a demand of the Appellant to provide breath samples and no evidence of the type of demand she issued. There was no evidence that the officer advised the Appellant that compliance was necessary and no evidence whether the demand related to a screening test or approved instrument. The officer did not inform the Appellant that he was to provide samples, as opposed to one sample.

b. Given that the demand was unlawful, the Appellant argued that the trial judge inappropriately inferred guilt on the impaired charge from the conviction on the refusal charge. The Appellant acknowledged that the result on this ground depends on the court’s conclusion on the first ground.

c. The Appellant argued that the trial judge misapprehended the evidence in determining that there were reasonable and probable grounds for the arrest and breath demand. While the trial judge referred to an odor of alcohol, slurred speech, avoidance of eye contact, and the movement of the vehicle, the trial judge did not refer to and did not consider the evidence adduced by the defence in cross-examination of the officer, specifically that the Appellant drove and stopped properly at the RIDE, the officer had no memory of asking the Appellant to roll his window down, that most drivers look nervous, that there was no issue with how the Appellant exited the vehicle, despite moving the vehicle forward it stopped immediately when instructed, and the officer had no memory of asking the Appellant to look for his driver’s licence until she was asked.

d. The Appellant argued that the trial judge failed to consider the totality of the evidence in determining the question of impairment. The Appellant again referred to various factors that were developed in cross-examination that suggested no level of impairment.

In his written material, the Appellant had also advanced a further ground, specifically that the trial judge had reversed the burden in relation to the mens rea required for a conviction on the charge of refusal. This ground of appeal was abandoned at the outset of the argument.

[4] The Respondent reminded this court of the standard of review and the deference owed to the trial judge in arguing that the appeal should be dismissed. In relation to the specific grounds raised by the Appellant, the Respondent argued as follows:

a. The trial judge found that PC Mahmoud read the breath demand from her police issued card word for word. Even though the officer did not have the card with her when she testified at trial, the trial court reasonably concluded that a valid demand was made that conveyed an unambiguous message to the Appellant.

b. The breath demand was lawful and, therefore, the court was entitled, as per section 258(3) of the Criminal Code, to use this as evidence on the impaired. The trial judge did not infer guilt simply from this, rather it was only one factor along with many others.

c. The trial judge considered the totality of the evidence and is not required to refer to every piece of evidence in determining the reasonable and probable grounds assessment.

d. The Crown is not required to prove any level of impairment. Evidence of slight impairment is sufficient to satisfy its burden.

Analysis

Standard of Review

[5] Section 686 of the Criminal Code, which is incorporated into section 822 for summary conviction appeals, allows an appeal against conviction after trial for three reasons:

a. Unreasonable verdict – The Appellant must demonstrate that no properly instructed jury, acting judicially, could reasonably have entered the verdict based on the evidence. The appellate court will, to a limited extent, re-weigh the evidence to ensure the outcome was reasonable, keeping in mind that the trial court had the advantage of seeing and hearing the evidence. R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. R.P., 2012 SCC 22, [2012] 1 SCR 746

b. Error of law – The standard of review for a question of law is correctness. The standard of review for factual findings is palpable and overriding error, showing considerable deference to the trial judge. R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309. An argument that the trial judge misapprehended the evidence is analyzed by looking at whether the trial judge was mistaken about the substance of material parts of the evidence and whether the errors played an essential part in the reasoning process. R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732.

c. Miscarriage of justice – A miscarriage of justice will occur where the trial was unfair or something has occurred that would affect public confidence in the administration of justice. R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828.

[6] A difference of opinion with the trial judge over evidence or factual findings is not enough to justify appellate intervention.

Issue #1 – Valid Breath Demand

[7] As for the demand for breath sample, PC Mahmoud testified as follows:

Q: Did you make a – any demands? A: Yes, I did. Q: What, what demand did you make? A: To accompany me to the detachment to provide a suitable sample in the – an instrument. Q: I’m, I’m sorry, I missed most of that. A: To accompany me to the detachment to provide a suitable sample in the – an instrument. Q: Did you – did you read that from anything? A: I did, yes. I read it from my form that it’s issued by the O.P.P. Q: Did you read it word-for- word? A: Yes, I did. Q: So when you – when you made your – the demand – and you told us you read it from your, your issued book – did the accused do or say anything at this stage? Really, what I’m wondering is did, did he appear to understand? A: Yes, he did. He advised that he understood, yes. Q: So I know that we just watched the video. There’s a few things that I want to cover just for the sake of completeness. You provided instructions on how to provide the sample? A: Yes, I did. Q: And he – did Mr. Titcombe appear to understand? A: Yes, but he wasn’t providing the samples the way it was explained to him.

[8] In reasons for judgment, the trial judge stated as follows at pages 7-9, 11-12:

The evidence from PC Mahmoud on this point was that she made a decision to arrest Mr. Titcombe at 2:44 a.m. for impaired operation of a motor vehicle. This was approximately nine minutes after first noticing him in his motor vehicle. After advising the accused he was under arrest, she advised the accused of his cautions and rights to counsel. She also testified she believed he understood these rights and cautions.

When asked if she made any other demands she indicated she did. The Crown asked, "What demand was that?" And she replied, "To accompany me to the detachment to provide a suitable sample into the instrument." When asked what she said verbatim, she had indicated that she read the form wording that was issued by the O.P.P. and that she did not have a copy of it with her here today. PC Mahmoud also testified that she would have read that O.P.P. wording on the demand form word-for-word. She also testified she believed the accused appeared to understand the breath demand she made of him. The demand was made after his arrest and rights and cautions were given at the roadside.

After informing him of his rights and making this demand, she placed him in the cruiser and drove him to the police station. At the police station, the accused was given an opportunity to speak to his lawyer and did so for approximately 30 minutes. After speaking to his lawyer, the accused used the bathroom and then was brought to the breath tech room where PC Mahmoud, a qualified breath technician, was waiting and preparing the Intoxilyzer 8000C for use.

Once the machine was prepared and checked by PC Mahmoud, PC Mahmoud confirmed the accused had an opportunity to speak to his lawyer and that he was satisfied with the advice. She went through the process on how to blow into the Intoxilyzer machine. She reviewed the mouthpiece and blow-tube with the accused, the need to provide a deep breath sample, and to breathe out deeply. The accused was noted on the video responding to PC Mahmoud's instructions and information by saying things like, "Okay"; "fantastic"; "go ahead, plug me in." After the initial instructions were completed, the accused's comments stops, the first attempt was made and failed.

[9] The Court then considered Justice Kenkel’s, Fifth Edition (2018), Impaired Driving in Canada, which referred to R. v. Kachmarski 2014 SKQB 39 and R. v. Ghebretatiyos, [2000] O.J. No. 4982 (S.C.A.), and also referred to the Jokinen and Keen 2019 text, Impaired Driving and other Criminal Code Driving Offences: A Practitioner’s Handbook. The authorities relied on by the court demonstrated that:

a. No specific wording is required for a section 254(3) breathalyzer demand. b. An unambiguous message of what is required – as in the person must comply and provide a sample – will suffice. c. Reading the demand from a police-issued card has been held by the courts to be sufficient.

[10] After considering the authorities, the court concluded as follows:

Upon considering those passages and the cases referred to therein, and upon considering the evidence and actions of the accused, a plain review of his actions on the video suggest he understood that he was required to provide samples of his breath after being arrested for an impaired operation of a motor vehicle. There is nothing noted in the video in terms of his behaviour, or through the officer's examination of him, that the accused had any questions about why he had to provide the breath sample.

Upon reviewing the actions of PC Mahmoud, and the applicable legal principles articulated above, the court finds that while PC Mahmoud could have articulated her evidence more succinctly on this point, and certainly ought to have brought her demand card or form with her to court, in the context of this case I am satisfied that she read the standard demand wording word-for-word; that she knew to do so as an experienced, qualified breath technician; and that she did summarize sufficiently the demand wording when she testified. Thus, I find a valid and sufficient breath demand was made from her upon arrest.

[11] It is the view of this court that the Appellant’s argument on this ground ignores the evidence in this case. The trial judge found as a fact that the officer read the demand from her police issued card. These were precisely the circumstances in R. v. Kachmarski, 2014 SKQB 39 which was determined to be a valid demand. The summary conviction appeal court stated:

[33] The trial judge stated that "... Section 254(3) of the Criminal Code refers to the demand which must be made. There is no evidence that the demand made by Constable Fraser meets the requirements of Subsection 3." Without any evidence of what words were used to formulate the demand, the trial judge concluded that the demand was not valid and the "detention and taking of breath samples ... were in violation of the Charter". With respect, the trial judge's analysis and legal conclusion drawn were flawed.

[34] In this context, the primary reason why the demand is relevant is to permit the Crown to obtain the benefit of the s. 258(1)(c) presumption. This subsection provides, subject to certain qualifications, that if the requirements of the subsection are met, the Crown can rely on the presumption that the defendant's blood alcohol level at the time of the alleged offence is presumed to be the same as subsequently determined by the breathalyser machine. One of the s. 258(1)(c) requirements is that the breath samples of the defendant "have been taken pursuant to a demand made under subsection 254(3)". Section 254(3) states that if a peace officer has "reasonable grounds to believe" that a person has committed a s. 253 offence as a result of the consumption of alcohol, the peace officer may "by demand ... require the person" to submit to a breathalyser test.

[35] There is no statutorily prescribed text for a s. 254(3) breathalyser demand. It is sufficient if the person to whom the demand is made was given an unambiguous message of what is required. See R. v. Tornsey, 2007 ONCA 67, 217 C.C.C. (3d) 571 at paras. 6-7; R. v. Humphrey (1977), 38 C.C.C. (2d) 148, [1977] O.J. No. 1148 (QL) (Ont. C.A.); and R. v. Ghebretatiyos (2000), 8 M.V.R. (4th) 132, [2000] O.J. No. 4982 (QL) (Ont. Sup. Ct.).

[36] Where the charge is failing or refusing to provide a proper breath sample, contrary to s. 254(5) of the Criminal Code, it may be more important for the Court to know the precise words spoken by the officer making the demand. However, in cases where the defendant has complied with the demand and samples of breath have been taken, a short form summary of what was said in relation to the s. 254(3) demand can be sufficient to permit the use of the s. 258(1)(c) presumption. See R. v. Pickles (1973), 11 C.C.C. (2d) 210, [1973] O.J. No. 23 (QL) (Ont. C.A.); R. v. Stewart, [2009] O.J. No. 11 (QL); R. v. Benson, [2008] O.J. No. 3056 (QL) (Ont. Sup. Ct.); and R. v. Tash (2008), 64 M.V.R. (5th) 86, [2008] O.J. No. 200 (QL) (Ont. Sup. Ct.).

[37] In this case, it is a mistake for the trial judge to hold that there was "no evidence that the demand ... meets the requirements of Subsection 3." There was evidence. Specifically, the officer testified that "I read him his breath demand from the card, asked if he understood, he said yes. I said will you provide a sample, he said yes." Later, the officer agreed with the suggestion that the "formal demand" was made using his "police issue[d] card." Further, the context of the rest of the evidence presented at trial, including that the defendant was forthwith taken to the RCMP detachment and provided samples of his breath into a breathalyser machine, compels the conclusion that the defendant was given an unambiguous demand which he understood and complied with. In my view, the only reasonable inference that can be drawn from the evidence before the trial judge was that the defendant accompanied the officer to the RCMP detachment and provided breath samples pursuant to the demand made.

[38] Even absent evidence of the specific words used by the officer, there was evidence - sufficient evidence - from which to conclude that a lawful demand was made for the purposes of s. 258(1)(c). The officer made a formal breath demand from his force-issued card. The defendant stated that he understood that demand and subsequently complied by providing two breath samples into an approved instrument.

[12] The court in R. v. Ghebretatiyos, [2000] O.J. No. 4982 (S.C.) also held that no particular words are required to create a valid demand. Again in this case, the officer testified to having read the breath demand but did not have the actual card in court. Hill J. stated:

[19] No particular words are necessary to make a breath sample demand. As observed by Culliton C.J.S. in Regina v. Ackerman (1972), 6 C.C.C. (2d) 425 (Sask. C.A.) at 427:

In my opinion, no particular words are necessary to make a demand under this section. The demand, if made in popular language or in the words of the section, or in any other words that are such that convey to the person that the demand is made pursuant to the section, is a lawful demand. In determining whether or not the words used were such as to convey to the person the nature of the demand consideration can properly be given to the surrounding circumstances.

To similar effect is the statement of Chief Justice Culliton in Regina v. Flegel (1972), 7 C.C.C. (2d) 55 (Sask. C.A.) at 57:

It was the right of the learned trial Judge to determine whether the demand was made, and he could do so from whatever was said viewed in the light of the surrounding circumstances.

This approach is entirely consistent with the result in Regina v. Humphrey (1978), 38 C.C.C. (2d) 148 (Ont. C.A.). In that case, the trial evidence did not include the actual words of the breath sample demand, the investigating officer having testified that "the accused was given a demand in regards to a breathalyser test". Jessup J.A. stated at 150:

In the view of my brother Brooke and myself, the evidence of the police officer that the accused was given "a demand in regards to a breathalyser test" was some evidence that he made a demand on the appellant, pursuant to s. 235(1) [rep. & sub. 1974-75-76, c. 93, s. 16] of the Criminal Code.

In the result, we are of the view that the learned trial Judge erred when he held that the failure of the Crown to adduce the actual wording of the demand for a breath sample made by the police officer to the accused, rendered inadmissible the certificate of analysis.

[20] This flexible yet functional approach, focusing on whether the vehicle driver understood he or she was required to give a sample of breath, is consistent with that jurisprudence recommending a review of the entirety of the circumstances in deciding whether a breathalyser technician has acted pursuant to a lawful demand: Regina v. Boyce (1997), 26 M.V.R. (3d) 238 (Ont. C.A.); Regina v. Walsh (1980), 53 C.C.C. (2d) 568 (Ont. C.A.); Regina v. Hall (1981), 1981 ABCA 13, 57 C.C.C. (2d) 305 (Alta. C.A.); Regina v. Teague (1973), 11 C.C.C. (2d) 191 (B.C.C.A.).

[13] A leading case on this issue from the Court of Appeal for Ontario is R. v. Torsney, 2007 ONCA 67, [2007] O.J. No. 355 (C.A.), in which the court stated:

6 … 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] discussion with the accused". See R. v. Horvath, [1992] B.C.J. No. 1107 (B.C.S.C.) (A.D.). 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), 6 C.C.C. (2d) 425 at 427 (Sask. C.A.) and R. v. Flegel (1972), 7 C.C.C. (2d) 55 at 57 (Sask. C.A.).

[14] Two fairly recent cases from the Superior Court of Justice in Ontario have considered what is required to demonstrate a lawful demand.

[15] In R. v. Commisso, [2021] O.J. No. 817 (S.C.), the facts before the Summary Conviction appeal court were as follows:

a. Based on the manner of driving and a smell of alcohol on the driver’s breath, PC Oster made a demand for him to provide a sample of his breath into an approved screening device at the roadside. b. The Appellant complied and failed. c. He was placed under arrest for “over 80”. d. Constable Oster read the driver rights to counsel and a caution after handcuffing him and placing him in the police vehicle. e. During the conversation enroute to the station, the Appellant asked the officer whether he would get a phone call and “how does this work”. A discussion took place, which the trial judge found amounted to PC Oster making a lawful breath demand of the Appellant

The summary conviction appeal court concluded that the finding of the trial judge, that a valid demand was made in the car enroute to the station, was supported by the following facts:

a. The Appellant was under arrest for the offence of “over 80”; b. He knew that he was being transported to a police station; c. When Constable Oster said he would try to get in touch with the Appellant's counsel of choice, he told him that if they could not reach that lawyer "you still have to do the tests"; d. Constable Oster told the Appellant that after he had spoken to counsel "you're going to provide two samples of breath into a machine. The machine is much more accurate than the one at the roadside. The one at the roadside only tells us if you're over 100 milligrams. Once we get back to the station, you'll provide us two samples into another machine"; and e. When the Appellant asked what would happen if he refused, Constable Oster said "If you refuse to provide a sample, that's the criminal offence of refuse to provide a sample. It's the exact same consequences as if you provide a sample in excess of 80 milligrams. Does that answer your question sir?" The Appellant replied: "Thanks buddy".

It is clear from this decision that the court will consider the unique factual circumstances of the case in determining whether the words used were sufficient to convey to the detainee the nature of the demand.

[16] In R. v. Fahad, 2021 ONSC 1543, a summary conviction appeal court was considering an appeal from conviction for a refusal to provide a breath sample into a roadside screening device. The officer testified that he read the ASD demand verbatim from his duty notebook, however, he never said what words he used to convey the demand. The Appellant argued that the trial judge erred in law in finding that the Crown met its onus of proving a lawful ASD demand in the absence of evidence of what was said. The pertinent facts of this case included:

a. After making observations, PC Callaghan asked that Mr. Fahad “assist me with the ASD demand”. b. As he formed his grounds for the ASD demand, he went back to his cruiser for the ASD device. c. The officer read the demand from his duty book and showed Mr. Fahad the device while reading the demand. He said he read the ASD demand verbatim from his notebook card. d. Mr. Fahad immediately refused to comply with the demand. He stated, “he wasn’t driving and that’s bullshit.” e. PC Callaghan explained that he was certain it was him driving and informed Mr. Fahad that the consequences of refusing the demand attracted the same penalty as failing the roadside. This was incorrect. Failing the roadside results in administration of the breathalyzer. A refusal at the roadside results in a refusal charge. f. PC Callaghan explained to Mr. Fahad that if he blew under the limit, he would be released. g. Mr. Fahad again refused by saying “I’m not doing it” and provided no reason for refusing. h. Mr. Fahad understood the consequences of a refusal. i. The defence argued at trial that the correction in PC Callaghan’s notes where “breath” was scratched out and “ASD” written in could have been done later. The defence argued that it was possible that PC Callaghan did not read the proper ASD demand, but rather an approved instrument breath demand. The officer testified that he initially wrote in his duty book that he read the “breath demand” but then changed this to “ASD demand”.

[17] The summary conviction appeal court stated as follows:

[20] It is established law that a demand 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 R. v. Horvath, the issue was whether omission of the word "forthwith" invalidated the demand. The officer in that case testified that he read the demand from a card but did not bring it to court. The officer paraphrased what he had said to the accused at the time in making the demand but omitted the word forthwith.

[21] The Court held that 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 the accused knew what was required. She could not have confused a s. 254(2) demand with a s. 254(3) demand as the officer explained both in some detail. The officer was also holding the ASD device at the time of the demand, as in the case before me.

[22] No particular words are necessary to make a demand under this section. The demand, if made in popular language, or in the words of the section, or in any other words that are such that convey to the person that the demand is made pursuant to that section, is a lawful demand. Consideration is properly given to the surrounding circumstances in determining whether the demand was proper. See: R v. Ackerman, (1972), 6 C.C.C. (2d) 425 (Sask. C.A.) at 427; R. v. Flegel, (1972), 7 C.C.C. (2d) 55 (Sask C.A.)

[23] The Respondent relies on R. v. Ghebretatiyos, [2000] O.J. No. 4982 where Justice Hill, sitting as a summary conviction appeal court, found that a demand was proven lawful even though the words of the demand were not part of the evidence at trial. The case was like this one, not a case where the officer repeats the gist or paraphrase of the demand, but merely testifies that he "read the demand," with no reference to the content of the demand.

[24] The trial judge in Ghebretatiyos convicted the accused although the words of the demand were not in evidence at trial. Justice Hill summarized the defence argument as follows: "The defence submits that the Crown failed to establish that the appellant was subjected to a lawful demand for a breath sample using an approved screening device. The Appellant stresses the lack of evidence of the exact wording employed by Constable McCarthy. It is further argued that there is no indication under which section of the Code the demand was made and that the officer's testimonial reference to a "standardized breath sample demand" fails to distinguish between an approved screening device test at the roadside and an intoxilyzer or breathalyzer at the police station." Para 17.

[25] Justice Hill adopted the "flexible yet functional" approach originally used to decide whether a breathalyzer technician has acted pursuant to a lawful demand: See: R. v. Boyce (1997), 26 M.V.R. (3d) (Ont. C.A.); R. v. Walsh (1980), 53 C.C.C. (2d) 568 (Ont. C.A.).

[26] The Appellant argues the evidence suggests that the wrong demand was read. In the officer's duty notebook the word "breath" is crossed out and "ASD" written. The officer also provided incorrect information to the Appellant regarding legal liability upon refusal.

[27] There are distinctions between a roadside ASD demand and the determination that a breathalyzer technician has acted pursuant to a lawful demand. The crown need not establish a lawful breath demand in order to rely on the evidentiary shortcut permitting admission of certificates pursuant to s. 258(1)(c) and 258(1)(g). See: R. v. Alex, 2017 SCC 37. However, to establish guilt beyond a reasonable doubt under s. 254(5), the Crown must prove that the accused refused a lawful demand as an element of the offence.

[28] Comparisons to the s. 254(5) refusal offence and an over 80 offence must recognize the different purposes of the demands. Culpability for the refusal offence is based on disobedience with lawful compulsion, whereas culpability for an over 80 offence is based on driving with a blood alcohol concentration over the legal limit. The requirement for reasonable grounds to demand a breath sample under s. 254(3) of the Code is not a precondition to the operations of the presumptions in s. 258(1)(c) and 258(1)(g).

[32] In this case the officer said merely that he read the demand. There was also confusion regarding what was said regarding the consequences of refusal.

[34] The trial judge in this case found that a lawful demand was made in the absence of evidence of the content of the demand. The fact that the officer showed the device to the Appellant is some evidence that a demand was made. I disagree with the defence that the exact, verbatim words of the demand must be in evidence. However, in my view, in order to establish that a lawful demand was refused, there must be evidence of the demand which was made. The officer should have been able to relate the words he used in making the demand to the Appellant. In the absence of evidence of what was said to the Appellant, in my view this verdict was not one which was reasonably available to the trier on the facts of this case and the conviction is therefore unreasonable.

[35] I am mindful of the requirement for deference to the conclusion of the trial judge. An unreasonable verdict is one in which a reasonable trier properly instructed and acting judicially could not conclude that the Crown had proved its case beyond a reasonable doubt. R. v. Yebes, [1987] 2 S.C.R. 1681

[36] Absent evidence of the content of the demand, the trial judge, in essence, took judicial notice of the content of the demand without indicating she was doing so. Judicial notice is the acceptance of a fact without proof. See R. v. Williams, [1998] 1 S.C.R. 1128 para 54. Judicial notice dispenses with the need for proof of facts that are clearly not controversial or beyond reasonable dispute: R. v. Find, 2001 SCC 32 para 48.

The conviction was set aside and a new trial ordered. It would appear that the summary conviction appeal court in Fahad held that the content of the demand needed to be established. This is contrary to other jurisprudence referred to above which have suggested that the actual words used for the demand are not necessary and not important, and that it will depend on a consideration of all of the circumstances to determine whether the nature of the demand was conveyed.

[18] In the case at bar, the trial judge found as a fact that the officer read the demand from the police issued card. There was no suggestion that this may have been an ASD demand rather than an approved instrument breath demand. Even though this case involved a charge for refusal, it was not a refusal in the sense that the Appellant refused to go with the officer to the station or refused to take the test outright such as in Fahad. According to the evidence, the officer read the breath demand, the Appellant understood and accompanied her to the station. Back at the station, he spoke to a lawyer for approximately 30 minutes. The interactions in the breath room were audio and video taped, and reviewed by the trial judge during the trial. The trial judge found, as a fact, that the Appellant exhibited signs of understanding what he was being asked to do in that video, including comments responding to the officer, such as “Okay”, “fantastic”, “go ahead, plug me in”. The Appellant then had five opportunities to provide a breath sample, during which on each occasion, he put his lips on the tube to blow, but failed to provide a suitable sample. After the first failed attempt, he had an opportunity to speak to counsel for a second time.

[19] It is this court’s view that the trial judge provided a thorough and reasoned analysis for his conclusions that this was a valid demand, conclusions which were supported by the evidence at trial and the relevant authorities.

[20] This ground of appeal must fail.

Issue 2 – 258(3) Inference

[21] As stated above, this court has concluded that the trial judge appropriately determined that the breath demand was lawful. Given the lawfulness of the demand, the trial judge was entitled to rely on section 258(3) which stated:

(3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(1)(a) or in any proceedings under subsection 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 254 is admissible and the court may draw an inference adverse to the accused from that evidence.

[22] The trial judge did not conclude the guilt of the Appellant on the impaired charged solely from a finding that the Appellant refused to comply with a valid demand. It was not a direct leap from a conviction on the refusal to a conviction on the impaired. This was one of many factors that the judge considered, in addition to observations he made and a consideration of the case law. The trial judge stated at pages 27 and 28 of the reasons for judgment:

In this particular case, the court does not see any evidence indicating the defendant has some other reason for refusing the sample. The court is mindful in the case at bar that no explanation was given by the accused on the video or elsewhere as to why he couldn't sustain his breath or blow and, at the same time, the accused appeared responsive cognitively to the officer and there were no obvious medical impairments.

It wasn't like there was a car crash and he was suffering from a chest injury or anything of that nature. However, there were several mentions by the accused describing himself as a good guy and, again, at least multiple times, telling the officers that he has an O.P.P. cousin who also works in this area. For some reason he felt the need to explain that to them.

I find the accused's failure or refusal to provide a sample upon demand were a product of his attempt to avoid self-incrimination. And, as I indicated earlier in the mens rea analysis, this court found that the accused's actions could be perceived somewhat as deliberate. In these circumstances, it is my view that it is appropriate to place some weight on the refusal as through the adverse inference provision to support a conclusion of impairment.

With that noted, having considered the above-mentioned factors on the issue of impaired driving this court considered both — does apply the presumption under section 258(3) and is mindful of the slight impairment issues that presented with respect to Mr. Titcombe, and finds the accused guilty of impaired operation of a motor vehicle as per section 253(1)(a) of the Criminal Code as charged….

[23] It was open to Justice Brissette to draw the adverse inference in this case and to use it as a piece of evidence to found the conviction.

[24] In submissions, the Appellant acknowledged that his argument on this issue was dependent on his success on the first issue. In other words, the Appellant argued that because the demand was unlawful, the trial judge was not entitled to rely on s. 258(3) and the inference it allows. The Appellant conceded that a lack of success on the first issue would lead to a lack of success on this second issue.

[25] This court finds that the trial judge was able to use the inference in this case and that he used it appropriately. This ground of appeal must fail.

Issue #3 – Reasonable and Probable Grounds for Arrest and Subsequent Breath Demand

[26] The trial judge found that the officer had reasonable and probable grounds to arrest the Appellant and make the breath demand. The trial judge stated as follows at pages 15-16 of the reasons for judgment:

In the case at bar, and prior to arresting the accused, PC Mahmoud testified she was participating in the RIDE program at approximately 2:30 in the morning on the date in question. Furthermore, in dealing with the accused she noted several factors that she considered important prior to him being arrested for impaired operation, things like, one, she smelled alcohol when dealing with the accused at the driver's side window of his vehicle. He was the lone occupant in that vehicle. She described him as being nervous, uncooperative and unhappy. She said he looked away and was avoiding eye contact with her. PC Mahmoud testified that Mr. Titcombe said, "That can't happen," or, "This can't happen," and very briefly started to drive forward. In cross-examine, I think, was clarified sort of that his vehicle lurched forward when being questioned about if he had had anything to drink that evening. The car moved forward to the point where she said she had to yell "Stop" at him, and he did stop the car. And, sixth, she also testified that she noticed he had slurred speech.

PC Mahmoud also testified that as a breath technician and a police officer for many years she had personally dealt with impaired persons hundreds of times and was subjectively satisfied at this point on her observations that she had made that there were enough grounds to arrest Mr. Titcombe for the impaired operation of a motor vehicle. I say again she was not qualified as an expert on the public intoxication of other persons but offered this opinion, in terms of what the court understood, just in terms of substantiating her subjective ground. Beyond that, the court would give it no further weight.

In the next phase of the assessment, the court continued, has to consider whether those six factors just listed are sufficient to objectively support her subjective belief that the accused was driving while his ability to do so was impaired, even to a slight degree, by alcohol.

Having reviewed those six factors and considered them in totality, and being mindful that PC Mahmoud is not required to establish a prima facie case or proof on a balance of probabilities, the court is satisfied that the factors testified to by PC Mahmoud are objectively sufficient to support her subjective belief. As such, the court finds that PC Mahmoud, and the facts at this case, had reasonable and probable grounds to make a valid breath demand.

[27] In R. v. Mahmoud, 2011 ONCA 693 at paras 46-48, the Court of Appeal stated that a misapprehension of the evidence can occur where the trial judge failed to take into account items of evidence relevant to the issue at trial.

[28] While this court agrees with this as a general principle, this court does not agree that the trial judge failed to take into account any evidence on this trial. The trial judge is not required to refer to every piece of evidence in every section of its analysis. By this point in the reasons, the trial judge had already referred to many of the facts in the case, including that the Appellant drove and stopped properly at the RIDE check stop. (page 2 of the Reasons for Judgment). By stating, “having reviewed those six factors and considered them in totality”, the trial judge was signalling that he had considered these six factors in the totality of all of the evidence.

[29] In R. v. Bernshaw, [1994] S.C.J. No. 87, which was referred to by the trial judge in this case, the Supreme Court of Canada stated:

[48] The Criminal Code provides that where a police officer believes on reasonable and probable grounds that a person has committed an offence pursuant to s. 253 of the Code, the police officer may demand a breathalyzer. The existence of reasonable and probable grounds entails both an objective and a subjective component. That is, s. 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief: R. v. Callaghan, [1974] 3 W.W.R. 70 (Sask. Dist. Ct.); R. v. Belnavis, [1993] O.J. No. 637 (Gen. Div.) (QL); R. v. Richard (1993), 12 O.R. (3d) 260 (Prov. Div.); and see also R. v. Storrey, [1990] 1 S.C.R. 241, regarding the requirements for reasonable and probable grounds in the context of an arrest.

[30] Proof of reasonable and probable grounds does not require proof of the commission of the alleged offences beyond a reasonable doubt, or even the establishment of a prima facie case. See R. v. Debot at p. 29

[31] For the objective requirement to be satisfied, the court must consider the circumstances known to the officer at the time of the arrest, from the perspective of a reasonable person standing in the shoes of the officer at the time of the arrest, with the officer’s knowledge, experience and training. See R. v. Palmer, 2018 ONCA 974 at para 15

[32] The concept of reasonable grounds is about probabilities, not confidence at the level of no reasonable doubt See: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 at para 74

[33] PC Mahmoud identified her grounds. The trial judge reviewed those grounds, and the evidence in its totality, and concluded that the grounds were subjectively and objectively reasonable in the circumstances. The trial judge was not expected, and certainly not required, to repeat every piece of evidence he had heard in order to demonstrate his consideration of this issue.

[34] This court is satisfied that the trial judge took into account all items of evidence relevant to this issue and reached a proper conclusion. This ground of appeal must fail.

Issue #4 – Fail to Apply the Proper Test for Impaired Operation

[35] In considering the charge of impaired operation, the trial judge stated at page 23 of the reasons for judgment as follows:

On the second charge — the impaired driving charge — with respect to the charge of impaired driving, I will just reiterate defence counsel argues that while there were several indicia of impairment in this case, when considered in totality there was no marked departure with respect to normal driving behaviour. And on the issue of the Crown relying on the presumption the defence again indicated while it was available to them to attract liability on this charge they take the position that the evidence in this case is weak and not established beyond a reasonable doubt and, as such, the presumption ought not to apply.

The Court then considered the leading cases of R. v. Stellato (1993), 78 C.C.C. (3d) 380, 18 C.R. (4th) 127 (Ont. C.A.), aff’d , [1994] 2 S.C.R. 478n, 90 C.C.C. (3d) 160n, and R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), leave to appeal refused, and stated at page 25-26:

In the case at bar, when the court considers the evidence of impairment the court considers the evidence of slurred speech of the accused as testified to by PC Mahmoud, which was at times noticeable on the video; at times it was not noticeable on the video. Also, the evidence that Mr. Titcombe walked, as the officer indicated, noticeably slow when he was handcuffed and being directed to walk to the police cruiser by the officer; and also considers the evidence of the inexplicable lurch forward in the vehicle when he was being questioned by the officer at the roadside. Also to be noted, though, and considered, was that his comprehension levels on the video seemed fine, and there was no evidence of poor driving prior to attending the RIDE program or even as he pulled in to the RIDE program. There was also no evidence of fumbling for documents or stumbling when he walked at the scene or in the police station.

Having reviewed the evidence, it would be difficult to conclude that there existed sufficient evidence to conclude that Mr. Titcombe's ability to operate a motor vehicle was well impaired beyond the slightest degree. However, there is evidence of slight impairment to drive when one considers the manner in which he walked noticeably slow upon leaving his car; that there was slurring of his speech at the scene and again later on at the police station; and the unexplained sudden lurch forward when being questioned about the alcohol that he had been drinking that evening at the roadside. And as previously noted in R. v. Stellato, the slight impairment standard is not a very onerous one.

The Court also referred to a reliance on s. 258(3) as an additional factor to consider. He concluded as follows:

With that noted, having considered the above-mentioned factors on the issue of impaired driving this court considered both — does apply the presumption under section 258(3) and is mindful of the slight impairment issues that presented with respect to Mr. Titcombe, and finds the accused guilty of impaired operation of a motor vehicle as per section 253(1)(a) of the Criminal Code as charged.

[36] There is no question that a trial judge must consider the totality of the evidence, including evidence of non-impairment, when making a determination on the charge of impaired operation. See R. v. Udma, 2019 ONSC 2350, paras 12-15.

[37] In the case at bar, the trial judge was acutely aware of the Stellato test. He considered the totality of the evidence presented, including evidence that suggested lack of impairment. He clearly paid close attention to the video of the breath room. The trial judge’s reasons must be read as a whole, especially when considering whether there was a failure to consider evidence. It is clear from Justice Brissette’s comments that he did not find this to be overwhelming evidence of impairment, but that this was not the required standard of proof. After a consideration of the evidence as a whole, including evidence of non-impairment, he concluded that it met the “slight” impairment threshold in Stellato. This was a proper conclusion on the basis of the evidence presented.

[38] This ground of appeal must fail.

Conclusion

[39] It is this court’s view that the trial judge gave a thorough and detailed analysis of the facts and legal issues in this case.

[40] For all of the foregoing reasons, this appeal is dismissed.

Justice V. Christie Released: April 13, 2022