Her Majesty the Queen v. Jacquelynn Armstrong
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent)
AND
JACQUELYNN ARMSTRONG (Appellant)
BEFORE: Justice S. Nicholson
COUNSEL: J. Melo and M. Michaud, for Her Majesty the Queen (Respondent)
A. Little, for Jacquelynn Armstrong (Appellant)
HEARD: October 7, 2021
On appeal from the conviction entered on April 25, 2019 by Justice M. Edward Graham of the Ontario Court of Justice.
REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL
1The Appellant, Jacquelynn Armstrong, appeals from her summary conviction for refusing to provide a breath sample upon demand pursuant to s. 254 (5) of the Criminal Code, as it then read.
2The trial judge acquitted the Appellant of the charge for impaired driving. However, he found that she was “playing games” with respect to the request for a breath sample and was guilty of the offence of refusing to provide a breath sample.
3The Appellant was fined $1,100 and prohibited from driving for one year.
The Facts:
4These facts are taken from the decision of the trial judge.
5Early in the morning on October 1, 2017, Ms. Sylvie Morin, while traveling eastbound on the 401 through Oxford County, noticed a dark SUV traveling between 40 and 60 km per hour and swerving in and out of its lanes as well as onto the shoulder. At one point, a transport truck was forced to lock its brakes to avoid a collision with the SUV. Ms. Morin obtained the SUV’s licence plate number. Ms. Morin then observed the vehicle to move from the right lane to the shoulder, hit rough ground and drive onto the Enroute exit. The SUV hit a curb as it attempted to return to the 401 highway. It then braked, turned hard to the right and proceeded into the service centre.
6The OPP were contacted and PC Tuffin responded at 12:29 am, arriving at the Enroute about 10 minutes later. He located the SUV parked at the Enroute centre. When he looked inside PC Tuffin saw the Appellant, Ms. Armstrong, lying on her side on the fully reclined driver’s seat. She appeared to be sleeping. A set of keys were on the rear passenger seat about an arms-length away. She was wearing her seatbelt.
7PC Tuffin waited for other officers to arrive. At 12:57 am, PC Chiappetta and PC Hillier arrived on scene. The police officers approached the SUV and woke up the Appellant. She sat up and moved her right hand as if she was holding car keys and was trying to start the ignition. She was directed to exit her vehicle.
8The Appellant was arrested at 1:04 am. She told the officers that she needed to urinate and did so in her pants when they would not permit her to use a washroom for safety reasons. She was then provided her rights to counsel, a caution and breath demand at 1:12 am, all of which she is described as having understood. She was searched by a female officer at 1:23 am. The police took the Appellant from the scene at 1:29 am and they arrived in Tillsonburg at 1:56 am.
9At the Tillsonburg OPP detachment, Ms. Armstrong was placed in a cell and processed. While that was occurring, PC Goodlett, a qualified breath technician, set up the approved instrument, an “Intoxilyzer”. He was ready to receive a breath sample by 2:19 am.
10PC Goodlett then attended the cell area to speak to the Appellant. The events thereafter are described by the trial judge as “one of the central issues in this case”. PC Goodlett concluded from their interaction that the Appellant had refused to accompany him to provide a breath sample and he terminated the test procedure at 2:38:26 am.
11Ms. Armstrong was released at 4:40 am, charged with refusing to comply with a breath demand.
The Trial Judge’s Reasons:
12The evidence in the trial occurred over two days, with argument occurring on a third day. At trial, the Crown called Ms. Morin, PC Goodlett, PC Tuffin and PC Chiappetta as witnesses. The Appellant chose to testify in her own defence.
Trial Judge’s Findings on Credibility:
13Importantly, the trial judge made specific findings of credibility, after setting out the legal tests relating to credibility. He found Ms. Morin to be a credible witness whose evidence he could rely upon. With respect to the police officers, he noted that it was PC Tuffin’s first impaired driving investigation, which at times “showed”. The trial judge concluded that at times, PC Tuffin tried too hard and became defensive in his testimony. He noted that PC Goodlett was at times focussed on preparing the Intoxilyzer. PC Chiappetta was not present in the cells for all of the interactions with the Appellant.
14The trial judge raised concerns with the officers’ notes. There were observations that the officers testified about that were not recorded in their notes. He also noted that there were times where the officers had to revise their testimony upon reviewing their notes.
15The trial judge noted that the evidence of the officers differed with respect to important aspects. For example, PC Tuffin noted that the Appellant slurred her speech, which was not observed by PC Goodlett or Chiappetta. In respect of what transpired in the cells, the trial judge described that it was difficult to reconcile the evidence of PC Tuffin and PC Goodlett.
16Although the trial judge does describe that PC Tuffin was a credible witness whom he believed was trying to provide an accurate account, he found that he simply could not rely on his evidence.
17From the evidence of the police officers, the trial judge made the following findings of fact:
Duty Counsel spoke to Ms. Armstrong at approximately 2:37 am;
Either during the call or at least while the officers were not present, she spoke French; and
No officer spoke to her before the refusal button was pressed at 2:38:26 am.
18The trial judge then turned to Ms. Armstrong’s evidence. In describing her narrative as to the events that led up to her being located by the police, the trial judge indicated that “much of her account is entirely plausible”. He noted that she became visibly upset at times while testifying. She has been diagnosed with anxiety, which he indicated he took into account in assessing her testimony. He found her evasive when being asked questions about her driving.
19The trial judge states as follows:
At the police station her confusion and anxiety continued. However, during cross-examination, the weaknesses in the police evidence were largely overcome by her own admissions. She knew she was at a police station dealing with the police.
She remembered PC Goodlett speaking with her. She agreed that PC Goodlett or other officers explained that she needed to provide a breath sample. She agreed they were not giving her a choice. She conceded she did not leave the cells. She agreed it was possible that she was given several chances. She was being told things, but her mind was not registering.
20Importantly, the trial judge summed up his views of the Appellant’s credibility as follows:
Although I have no doubt that her father’s illness was a significant concern for her I did not find her to be a credible or reliable witness. The core theme of her evidence was her consistent claim that she had not consumed alcohol. I accept the evidence of PC Tuffin and PC Goodlett that there was an odor of alcohol on her person. I find as a fact that she had been consuming alcohol at some point prior to encountering police. The balance of her testimony is built upon this foundation of deceit.
Where the balance of her evidence conflicts with that of the police I accept their evidence despite its acknowledged flaws.
Trial Judge’s Conclusions:
21Quoting from R. v. Slater, [2016] O.J. No. 16592, the trial judge noted that a charge of refusal to provide a breath sample requires the Crown to prove three things:
That a proper/lawful demand was made;
That the accused person failed or refused to comply with the demand to provide a sample of his breath; and
That the accused intended to produce the failure and thus had the requisite mens rea.
22He described that the totality of the circumstances must be examined. The failure must be unequivocal. The trial judge described that the mens rea of the refusal will be made out where there is a failure to provide a sample after multiple attempts and absent other explanations for the failure arising in the context of the evidence as a whole. He stated that “the natural inference that arises is that the accused intended the consequences of his conduct”.
23The trial judge noted that the central issue was whether the decision not to provide a breath sample was unequivocal. He noted the efforts by the police to ensure that she spoke to Duty Counsel. Following the communication with Duty Counsel, the trial judge described that there was nothing preventing the Appellant from communicating with the police. With respect to her speaking French, he noted that she was entitled to communicate in any language. However, “by doing so after she had received further legal advice she took the risk that the police would infer that she no longer wished to speak to them. In fact, she only spoke to them in French for the balance of the evening.”
24The crux of the trial judge’s decision is encapsulated in his final three paragraphs on this issue, where he stated:
Ms. Armstrong had been uncooperative since her arrest. The police went above and beyond to try to accommodate her. PC Goodlett took a personal risk through his empathetic attempt to connect with her on her level.
I agree with the observation that “at some point, an accused will lose the opportunity to comply with a demand. An accused who is playing games and seeing how far he can push the envelope might discover to his dismay that he has passed the point of no return” (R. v. Kitchener, 2012 ONSC 4754, [2012] O.J. No. 3857 (CJ). at paragraph 39).
The only possible inference from the totality of the evidence is that Ms. Armstrong was playing games. She is found guilty of the offence.
Grounds of Appeal:
25The Appellant argues that the trial judge’s finding that the Crown had established that Ms. Armstrong refusal to provide a breath sample was unequivocal was in error.
26In an amended Notice of Appeal, the appellant included as a ground for appeal that the trial judge had applied an uneven level of scrutiny between the evidence of the Appellant and the Crown witnesses. This ground was not pursued during oral argument.
27Finally, in a Supplementary Amended Notice of Appeal, the Appellant raised the possibility of a s. 10(b) Charter violation. Understandably, this concerned the Crown as the Appellant had explicitly decided not to pursue any Charter arguments at trial. During the course of argument, the Appellant took the position that she was not seeking to exclude evidence based on any breach of s. 10 (b) but that s. 10 (b) must be considered in determining whether the Appellant’s refusal was “unequivocal”. The Appellant sought to use the s. 10 (b) argument as it was used in R. v. Mandryk, 2012 ONSC 3964.
Evidence on the “Central Issue”:
28As noted, the trial judge described the central factual issue as being what transpired at the OPP detachment in relation to whether the Appellant unequivocally refused to provide a breath demand. I have reviewed all of the testimony with respect to this issue.
29PC Goodlett testified that at 2:27 am, PC Tuffin advised him that the Appellant was refusing to leave the cells to come to the breath sample room and provide a breath sample. PC Goodlett then went to the Appellant’s cell and she advised him that she was not leaving the cells. She told him that she was stressed out and tired. Her father was in the ICU and was not doing well. PC Goodlett relayed his own experience in losing his mother and that he understood. He described that Ms. Armstrong was upset. She advised him that she was not going to leave the cells and provide a suitable sample as her lawyer was not present. PC Goodlett then asked her to attend the breath room to provide the breath sample. She repeated that she was not going to do so.
30PC Goodlett further testified that he explained to her the consequences of refusing to provide a breath sample. She told him “I am not leaving the cell”. PC Goodlett then left the cell area to provide her an opportunity to think about it at 2:31 am. He returned to her cell at 2:35. Throughout this time, Ms. Armstrong spoke English without difficulty.
31Upon his return to her cell, PC Goodlett once again offered her the chance to attend the breath room and provide samples. She still did not want to leave the cell area to do so. He repeated the refusal process and she stated that she understood but was not leaving her cell. She then began to speak in French. PC Goodlett does not understand French and did not know what she was saying. Accordingly, PC Goodlett states that they called duty counsel back and asked for a French-speaking lawyer. Ms. Armstrong was provided an opportunity to speak to the Duty Counsel at 2:37 am. They spoke in French. On cross-examination, PC Goodlett backtracked considerably on whether she and Duty Counsel conversed only in French. His notes had contained a summary of the conversation in English.
32After that conversation with Duty Counsel, Ms. Armstrong still would not leave the cells. As a result, PC Goodlett went and pushed the “refuse button” on the Intoxilyzer. He also testified that up until the time she was released, Ms. Armstrong continued to speak only in French, after initially speaking in English. He did not have a further conversation with Ms. Armstrong after her second call with Duty Counsel. PC Goodlett indicated that it was his decision, as breath technician, to press the refusal button. However, on re-examination, PC Goodlett indicated that the Intoxilyzer could be re-calibrated after the refusal button was pressed so that breath samples could still be taken.
33On cross-examination, PC Goodlett indicated that he heard enough of the second conversation with duty counsel to know that Ms. Armstrong’s lawyer told her to provide the breath sample.
34PC Tuffin testified that he was the initial officer to arrive at the Enroute. Of note, he testified to the difficulty that he and his fellow officers had in getting Ms. Armstrong to enter his police cruiser once she was placed under arrest. She refused to put her legs within the vehicle to allow them to close the door.
35During his initial interactions with Ms. Armstrong, PC Tuffin testified that she spoke and understood English.
36PC Tuffin testified that he and Ms. Armstrong arrived at the Tillsonburg detachment at approximately 1:56 am. They began to process Ms. Armstrong. She was taken into the cell block. During that time, Ms. Armstrong indicated to PC Tuffin that she did not want to contact a lawyer. Ms. Armstrong was “lodged” into a cell at 2:04 am. At 2:10 am, PC Tuffin was notified that PC Chiappetta had contacted Duty Counsel on Ms. Armstrong’s behalf, since at roadside she had indicated that she did want to speak to legal counsel. PC Tuffin was worried that Ms. Armstrong was showing signs of being confused.
37The duty counsel called back at 2:14 am, and at 2:15 am, PC Tuffin went into the cell block and advised Ms. Armstrong that Duty Counsel was on the line. Ms. Armstrong indicated that she did not want to speak with a lawyer at that time.
38A short time after that, PC Tuffin was advised that the breath technician was ready to obtain the breath samples. He went into the cell block to retrieve Ms. Armstrong, who advised him that she was not doing anything until a lawyer was present. She was notified by someone else, in PC Tuffin’s presence, that lawyers were not permitted into the cell block but a private phone call could be arranged again.
39Upon hearing this from Ms. Armstrong, PC Tuffin felt that she did wish to speak with a lawyer even though she had previously indicated that she did not. He notified PC Chiappetta to contact duty counsel for a second time.
40According to PC Tuffin, at approximately 2:40 am, Duty Counsel called back to speak to Ms. Armstrong. When PC Tuffin advised Ms. Armstrong that Duty Counsel was back on the line, she repeated that she was not leaving the cell. They arranged for her to speak with Duty Counsel while she was in the cell block, although they could not ensure her privacy since she would not leave the cell. As Ms. Armstrong would not pick up the receiver to speak privately with Duty Counsel, they put her on speaker phone. PC Tuffin indicates that although Duty Counsel spoke to her, she did not respond to him. PC Tuffin did remember hearing Duty Counsel, in English, telling her about the refusal charge and the penalties associated with failing to provide a breath sample.
41At 2:44 am, PC Tuffin and PC Goodlett returned to her cell and advised Ms. Armstrong that she could come and do one more breath sample. They notified her that she would be charged with refusal. At that point, Ms. Armstrong began speaking in French, in a high voice, and yelling at them. PC Tuffin later clarified that after she hung up from Duty Counsel for the second time, she began to yell or speak very loudly and over top of him and PC Goodlett in French, at which point PC Tuffin advised Ms. Armstrong that he did not speak French and did not understand what she was saying.
42PC Tuffin testified that he returned to her cell at 3:18 am to check on Ms. Armstrong. She raised her voice in French and came at the bars of the cell in what he described as a very aggressive manner. A French speaking officer, Constable Boutin, was contacted to provide information to Ms. Armstrong when she was released at approximately 4:31 am.
43On cross-examination, PC Tuffin maintained that following the second call between Ms. Armstrong and Duty Counsel, there was a conversation involving himself, PC Goodlett and Ms. Armstrong and they provided her a further opportunity to provide a breath sample.
44PC Chiappetta testified that Ms. Armstrong was very “boisterous” and loud when PC Tuffin was trying to obtain her identification from her at the scene. He further described her as “very, very loud, yelling. Very upset.” In his view, she did not want to comply and exit her vehicle. When PC Tuffin attempted to place her under arrest, according to PC Chiappetta, she resisted. She was pulling away. She was screaming. She was preoccupied with having to urinate. Later, he described her as not wanting to go into the cruiser willingly.
45PC Chiappetta testified that Ms. Armstrong was speaking in fluent English.
46At the OPP detachment in Tillsonburg, PC Chiappetta described Ms. Armstrong being processed and then placed in a cell. During the processing, she indicated that she did not want to speak to a lawyer. Subsequently, PC Tuffin advised PC Chiappetta that she had asked for Duty Counsel while PC Chiappetta was doing the paperwork for the incident. PC Tuffin asked PC Chiappetta to make the call to Duty Counsel. He did so.
47PC Chiappetta testified that when Ms. Armstrong was advised that Duty Counsel were on the phone for her, she indicated that she no longer wished to speak with Duty Counsel. This was likely at 2:13 to 2:15 am.
48According to PC Chiappetta, Ms. Armstrong was then informed that the Intoxilyzer was ready for her to provide a sample. She refused to leave her cell and then “went on a long ramble” about her mother being a lawyer. This occurred in English. PC Goodlett then explained the consequences of failing to provide a breath sample to Ms. Armstrong and that she could be charged with refusal. Ms. Armstrong advised that she did not want to do anything further without having her lawyer present in the cells area.
49PC Chiappetta testified that this concerned him because she might now be signalling that she wished to speak with a lawyer. He contacted Duty Counsel again. This was at approximately 2:25 am. At 2:37 am, a different Duty Counsel than the first time returned the call. Again, Ms. Armstrong refused to leave the cell to go to a private place to speak with Duty Counsel. The Duty Counsel was put on speaker phone. Duty Counsel explained in English on speaker phone to Ms. Armstrong the legal ramifications of not providing a breath sample. Ms. Armstrong remained silent throughout most of the call. However, towards the end of the conversation, she then began to only speak in French.
50After she began speaking in French, and after having provided what PC Chiappetta considered to be multiple opportunities to provide a sample, it was determined that she was refusing and it appeared that her refusal was final and unequivocal. PC Goodlett went into the breath room and entered the refusal into the Intoxilyzer. Thereafter, Ms. Armstrong continued to only speak in French and, at least in PC Chiappetta’s estimation, was acting as if she no longer understood English.
51On cross-examination, PC Chiappetta testified that he never spoke with Ms. Armstrong after her second call with Duty Counsel and prior to her being charged with refusing to provide a breath sample.
52In her testimony, Ms. Armstrong denied consuming any alcohol at all that day. She had woken up the morning of September 30th to play in a baseball tournament and had thrown up in her vehicle. She then returned home, cleaned up the vomit in her vehicle and showered. She then went and played baseball. There was a gathering at one of her teammates homes where alcohol was consumed, but not by her. She remained there until 11:00 pm or midnight and then headed to Barrie to see her family.
53She explained that if she was driving erratically it was due to fatigue and concern for her father, who had been hospitalized earlier in the week. She exited the highway at the Enroute because she was feeling quite tired.
54When the police awoke her in her vehicle, she was very confused. She had a lot of stuff on her mind.
55Similarly, while in the holding cell, Ms. Armstrong testified that her “mind was everywhere. I was completely distraught. Thinking about my dad. I didn’t understand why I was in the police station. I was scared.” Later, she testified that she was only “half-hearing what people were saying to me, but I—my mind was on my dad”. When asked why she would not leave her cell, she repeated that she was distraught, scared and thinking about her father.
56She denied having any distinct recollection of being asked for a breath sample, although she could have been. Having said that, she does recall being given a second opportunity to speak with Duty Counsel. She recalls, vaguely, being told something about having to provide a breath sample. She indicates that this advice sort of woke her up in a sense. She realized that she needed to provide a breath sample. She says that after the second call with Duty Counsel, no one asked her if she would provide a breath sample. She says that if she had been asked to do so, she would have provided a breath sample.
57When asked why she began conversing in only French, Ms. Armstrong testified that she had spent a lot of time speaking French in French immersion school so that when she gets stressed, she naturally reverts to speaking French for security.
58On cross-examination, Ms. Armstrong indicated that she offered Constable Boutin, the French speaking officer that was called to communicate with her when she was released, that she was willing to give the breath sample.
59From the above review of the evidence, there were obvious discrepancies between the evidence of the three police officers. However, as the trial judge explicitly noted in his reasons, he was entitled to accept some, all or none of the evidence of the witnesses at trial.
Analysis:
60As noted by the trial judge, in refusal to provide breath sample cases, the Crown is required to prove beyond a reasonable doubt the following elements:
The existence of a demand meeting the statutory requirements;
A failure or refusal by the defendant to produce the required sample of breath; and
That the defendant intended to produce that failure or refusal. (see: R. v. Slater)
61The failure or refusal to produce the required sample of breath must be clear and unequivocal (see: R. v. Belanger, [1993] O.J. No. 1492).
62Furthermore, it is possible for a refusal that appears to be unequivocal to be in fact “provisional” if a defendant refuses to provide a breath sample until after he has had an opportunity to speak to counsel. As noted in R. v. Bourns, [1993] O.J. No. 2687 (Ont. Gen.Div.), by Thomas J., at paragraph 15:
15 In my respectful view, the officer had a duty to read the breath demand to the appellant after the appellant had exercised his right to counsel. It would be an academic and meaningless exercise to advise the accused of his rights to counsel and provide an opportunity to exercise those rights and not require the officer to read the demand again. Presumably, after the appellant had spoken to his lawyer, he was in an informed position and, in my respectful view, public policy and common sense dictate that the breath demand should have been read again. At that point, the accused has exercised his legal rights, and received the legal advice Parliament envisaged when the Charter of Rights was enacted. He then is in a position to be fully informed and to make an informed choice as to whether he was, in the face of a lawful and valid demand, prepared to take the tests or to refuse to do so, and face the consequences of a charge against him for failing or refusing to provide breath samples.
63Code J. applied this line of reasoning in R. v. Mandryk, the case most heavily relied upon by the Appellant. In Mandryk, the defendant had registered a “fail” on the roadside ASD and was asked to accompany the police officers back to the station to provide breath samples into an Intoxilyzer. He declined to do so and was charged with refusing to provide breath samples. He had been advised of his s. 10(b) right to counsel and he asked to exercise that right. However, because he was never taken to the police station, he never did speak to counsel prior to being charged at the scene.
64As counsel for the Appellant attempts to do on Ms. Armstrong’s behalf in this appeal, Mr. Mandryk’s counsel relied upon the accused’s s.10 (b) right to counsel as a “backdrop” to the argument that having been deprived of his right to counsel, any refusal could not be described as “unequivocal”.
65Code J. noted at paragraph 54 of Mandryk that a definitive refusal can only be established once the accused, who is seeking access to counsel’s advise, has received it at the police station and has then refused, or has confirmed an earlier refusal, to provide a sample.
66Thus, Ms. Armstrong argues that, having been provided an opportunity to speak to Duty Counsel, it would be unfair for her not to be provided an opportunity to give an unequivocal refusal, or a further opportunity to provide a breath sample after having had that conversation. She argues that it is only after consulting with counsel that a “definitive refusal” can emerge.
67I cannot agree with that position in the circumstances of this case. This is not a case like Mandryk, where there was no opportunity to speak with counsel. Ms. Armstrong, on the evidence, did have an opportunity to hear what Duty Counsel had to say. Rather than heed Duty Counsel’s advice, the trial judge found that she chose to play games.
68Appellate courts are obligated to show great deference to findings of credibility made at trial, recognizing that the trial judge is in a special position on matters of credibility, including the advantage of seeing and hearing the evidence of witnesses firsthand. In respect of a finding of credibility by a trial judge, an appeal court must defer to the conclusions of the trial judge unless a palpable and overriding error can be shown. It is not enough that there is a difference of opinion with the trial judge (see: R. v. Canavan, [2019] O.J. No. 349 (Ont.C.A.) at para. 36).
69It is clear from the reasons of the trial judge that credibility played a central role in his determination of whether Ms. Armstrong’s refusal was unequivocal. There can be no stronger pronouncement than the trial judge’s determination that “[t]he balance of her testimony is built upon this foundation of deceit”. The trial judge, quite simply, accepted very little of the Appellant’s evidence. Importantly, he specifically rejected that after speaking with counsel that she intended to provide a breath sample, stating, as follows:
- As I stated earlier, I found her to be an evasive witness. I do not believe that she had an epiphany upon speaking to Duty Counsel. If she did there was nothing preventing her from communicating that to the police. Ostensibly, that was the reason the police made the call on her behalf.
70Admittedly, on the evidence accepted by the trial judge, and his specific finding of fact, there would have been little, if no, time between the speaker phone conversation with Duty Counsel and PC Goodlett pressing the “refusal button” on the Intoxilyzer. However, the trial judge obviously felt that the Appellant’s choice to speak in the French language was determinative of the unequivocal nature of her refusal. He concluded that she was “playing a game” by suddenly speaking only in French and pretending not to know how to converse in English when she had clearly done so throughout her interactions with police to that point.
71The Appellant did not, after hearing Duty Counsel advise her to provide a breath sample, indicate any willingness to provide a sample. While counsel argues that she was not given an opportunity to do so because the refusal button was pressed, she could not have known the button had been pressed. As PC Goodlett testified, there was nothing preventing him from re-calibrating the Intoxilyzer following pressing the refusal button. She still gave no indication that she was prepared to cooperate. To the contrary, by choosing to speak only French after being specifically advised by Duty Counsel to provide a breath sample, the Appellant signalled to the officers that she was unequivocally refusing to provide a breath sample. As the trial judge stated at para. 104:
- She is entitled to communicate in any language. In particular, she has the right to receive advice in one of Canada’s official languages. However, she chose an inopportune time to change her mind. That was certainly her choice. However, by doing so after she had received further legal advice she took the risk that the police would infer that she no longer wished to speak to them. In fact, she only spoke to them in French for the balance of the evening.
72Plainly, the trial judge rejected the Appellant’s explanation for why she suddenly only spoke in French for the remainder of the detention. The only inference from his reasons is that he believed it was an intentional ruse as part of her intentional refusal to cooperate with police.
73Whether there was an unequivocal refusal is a finding of fact (see: R. v. Nanji, 2006 CanLII 7391 (ONCA)). As noted by Hill J., in R. v. Bijelic 2008 CanLII 17564 (ON SC), [2008] O.J. No. 1911, at para. 30:
…Evidence of a refusal may arise from conduct of the detained motorist, his or her statements to the officer in the course of the ASD testing process, or from a combination of conduct and statements. Refusals to comply may be quite express or may be logically inferred from the totality of the detained driver’s behaviour. As noted by Cote J.A. in Cunningham, 1989 ABCA 163, [1989] A. J. No. 544, at 533:
In my view what is a refusal depends on all the circumstances of each individual case. A single conversation my contain many twists, turns or pauses, and one should not dissect it minutely or take a single sentence out of context.
(emphasis added)
74The trial judge relied upon R. v. Kitchener, 2012 ONSC 4754, [2012] O.J. No. 3857. In that case, the accused immediately and repeatedly refused to provide an ASD breath sample. She was then arrested for refusing to provide a breath sample. She was read her rights to counsel and she asked to speak with counsel. After she spoke with counsel, she indicated that she would provide a breath sample but the officer refused to accept the offer, perceiving it to be insincere and a game being played by the accused. As quoted by the trial judge, Ditomaso J. described the situation that persons refusing to provide breath samples may find themselves in, at paras. 39 and 40, as follows:
39 Each case will turn on its own facts and circumstances. In R. v. Chance, the court held:
At some point, an accused will lose the opportunity to comply with a demand. An accused who is playing games and seeing how far he can push the envelope might discover to his dismay that he has passed the point of no return.
40 The trial judge held that the appellant was playing games and seeing how far she could push the envelope. He did not err in finding that, as in Chance, she had passed the point of no return.
75The trial judge concluded that Ms. Armstrong was playing games, that there was an unequivocal refusal and, in my view, the evidence was available to support that inference.
76The Appellant referred to several cases in which courts have been critical of police officers whose notes do not contain specific evidence of the words used by an accused in refusing to provide a breath sample. These cases non-exhaustively include R. v. Foster, [1999] O.J. No. 5060 (Ont.Sup.Ct.), R. v. Ross, 2015 ONCJ 115, [2015] O.J. No. 1043 (Ont.C.J.) and R. v. Jurado, [2007] O.J. No. 501 (Ont.C.J.) and the failure of the police to accurately record the accused’s words used in refusing led to acquittals. In Ross, Paciocco J. (as he then was), stated at paras. 52-54, as follows:
52 In a charge such as the present one the onus is on the Crown to prove that there has been an unequivocal refusal. Although it is always important for officers to make complete notes, this is particularly so where the actus reus of the offence is predicated on what an accused person is communicating.
53 I agree with the sentiment expressed in R. v. Jurado, [2007] O.J. No. 501 (Ont. C.J.) by Justice Brown. In that case, the officer failed to record the comments said to amount to an unequivocal refusal, but instead wrote his impression or opinion about what the accused was communicating. At para. 35 Justice Brown rejected the Crown’s invitation to accept the officer’s opinion that the words spoken, whatever they may have been, amounted to an outright refusal. He commented, “I would think that a police officer would take the short period of time required in a case such as this to make verbatim note of the words of the refusals or the conduct constituting the refusal when those words or conduct constitute the actus reus of the offence.” He then cited R. v. Foster, [1999] O.J. No. 5060 (Ont.Sup.Ct.) with agreement where Justice Misener said at para. 20, “[to infer an unequivocal refusal] simply because that was apparently the opinion of the police officer is an abdication of the judicial function. I would not deny the judge’s right to take that opinion into account, but to accept it as proof beyond a reasonable doubt without so much as a tittle of evidence capable of providing the basis for the opinion is wrong.”
54 To be clear, it is not impossible in my view for a judge to be satisfied beyond a reasonable doubt that there has been an unequivocal refusal, where the officer fails to record the precise words said to constitute that refusal. The outcome depends on the circumstances. In this case, for example, there is evidence that Mr. Ross attempted for some time to frustrate the roadside screening device and he refused to sign the Promise to Appear. He was being an uncooperative and difficult subject and this does go some way to informing what probably happened. (emphasis added)
77In my opinion, although the criticisms expressed by the trial judge of the officers’ note-taking deficiencies are well deserved this is one of those cases mentioned by Paciocco J., where the unequivocal refusal can be established beyond a reasonable doubt by the conduct of the accused, in particular her sudden change in English fluency, even in the absence of precise notes setting out the specific words of the refusal. In this case, her refusal was manifest not by what she said, but by her conduct in refusing to leave her cell to go to the breath sample room and by her choice of speaking French to say whatever it was that she said.
Disposition:
78I am certainly mindful of the drastic nature of the offence of refusal to provide a breath sample, given that the offence otherwise insists upon a person providing evidence that may self-incriminate them in an offence of driving with excessive alcohol in their blood. This has been determined to be justifiable given the dangers posed by drinking and driving. It is laudable that courts have insisted upon the refusal being clear and unequivocal and done with a view to a person’s s. 10(b) Charter rights being respected. Nevertheless, there are cases in which courts must guard against disingenuous attempts to circumvent the legal obligation to provide a breath sample and escape penalty altogether. These cases include cases, for example, in which accused persons feign an inability to properly blow into an ASD or Intoxilyzer on multiple occasions.
79In my view, the trial judge in this case was entitled, after considering all of the evidence and after outright rejecting much of Ms. Armstrong’s evidence, to conclude that she was being uncooperative and playing games with the police officers in order to avoid providing a breath sample.
80Accordingly, the appeal is dismissed.
“Justice S. Nicholson”
Justice Spencer Nicholson
Date: January 5, 2022