COURT FILE NO.: SCA(P) 22-0700

DATE: 2023 10 31

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

KARINA ARUTUNIAN

Paul Erskine, for the Crown/ Appellant

A. Thakore, for the Accused/ Respondent

HEARD: October 23, 2023

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable Justice M.K. Wendl of the Ontario Court of Justice dated April 14, 2022]

Conlan J.

1This is a summary conviction appeal brought by the Crown.

I. The Proceeding in the Ontario Court of Justice

2The accused, Karina Arutunian (“Arutunian”), was charged that she, on or about the 27th day of March in the year 2019, at the City of Guelph, did, knowing that a demand had been made, fail or refuse to comply with a demand made by a peace officer under section 320.27 or 320.28 of the Criminal Code, contrary to section 320.15(1) of the Criminal Code. In other words, the alleged offence was that she did fail or refuse to provide a roadside breath sample.

3Arutunian was tried for that offence in the Ontario Court of Justice, at Guelph, on March 3, 2020 and February 4, 2022. In written Reasons for Judgment dated April 14, 2022, Arutunian was found not guilty.

II. The Decision of the Trial Judge

4In the Reasons for Judgment, at paragraph 1, the trial judge framed the issue to be decided. After being stopped at a RIDE program, and after receiving a demand to provide a roadside breath sample, Arutunian “feigned blowing six times and then outright refused on the seventh”. She was arrested for the offence. Immediately thereafter, the police officer permitted Arutunian to contact counsel of choice at the roadside. After speaking with that counsel, Arutunian requested another chance to blow. That request was denied. The question was whether the offence was complete or whether Arutunian should have been allowed another opportunity to provide the breath sample.

5In the next section of the Reasons for Judgment, at paragraphs 2 through 4, the trial judge outlined the facts, which facts included the following. The roadside breath sample demand was made at 2:37 a.m. Arutunian made her first blow into the approved screening device at that same time, 2:37 a.m. After a total of six attempts, none of which was sufficient, “on the seventh attempt she outright refused”. “The first attempt occurred at 2:37 a.m. and the final refusal at 2:42 a.m.” (paragraph 2). At 2:58 a.m., after speaking to her counsel, Arutunian told the police officer that she wanted to blow. That request was denied (paragraph 3).

6In the following section of the Reasons for Judgment, at paragraphs 5 through 15, the trial judge reviewed the law and analyzed the case. The trial judge rejected the argument made by defence counsel “that the refusal of [Arutunian] was provisional until she spoke with counsel”. Defence counsel had relied on the summary conviction appeal decision of Justice Code in R. v. Mandryk, 2012 ONSC 3964, however, the trial judge distinguished that case. This is what the trial judge stated at paragraph 8 of the Reasons for Judgment:

Unfortunately, counsel’s reliance on Mandryk is misplaced.[3] First, unlike an ASD demand as in our case, there was no forthwith requirement in Mandryk. Second, unlike an ASD demand, where the right to counsel is suspended, the right to counsel is engaged when a breath demand is made. Third, the search, i.e. the breath sample, is taken at the station and not at the roadside and, therefore, there is no valid reason to insist on an answer at the roadside. As Justice Code notes, the breath demand at the roadside is merely informational, which is not the case with ASD.

7The trial judge went on, though, to state the following at paragraph 9 of the Reasons for Judgment:

However, after the end of submissions while deliberating this decision, given that Ms. Arutunian requested a chance to blow into the ASD after she had spoken to counsel, I invited counsel to provide me with further submissions on the issue of “last chance.”

8The trial judge then, at paragraph 10 of the Reasons for Judgment, reviewed the chronology of events. The “initial demand occurred at 2:37 a.m., the arrest for the refuse occurred at 2:42 a.m., [Arutunian] received her cell phone to speak to counsel at 2:47 a.m., she spoke to counsel at 2:55 a.m. and then requested to blow again at 2:58 a.m., 21 minutes after the initial demand”.

9The trial judge, at paragraphs 11 through 13 of the Reasons for Judgment, reviewed several authorities, all of them binding on the trial judge, including R. v. Hines, [1998] O.J. No. 5831, a summary conviction appeal decision of Justice McCombs, and R. v. Tynkaluk, [1989] O.J. No. 957, a summary conviction appeal decision of Justice Conant, and R. v. Domik, [1979] O.J. No. 1050, a decision of Justice Grange that was affirmed by the Court of Appeal for Ontario, [1980] O.J. No. 710.

10The trial judge, at paragraph 15 of the Reasons for Judgment, concluded as follows:

Therefore, given the factual similarity to Hines and Tynkaluk, both summary conviction appeal cases, that Officer Bigger was obviously still on scene with the accused and the ASD, I find that the request to blow was sufficiently proximate in time, although at the utmost outer limit, with the refuse to constitute one continuous transaction.[8] Furthermore, I conclude that Ms. Arutunian’s last chance request was genuine. She had spoken with her counsel of choice and promptly thereafter requested a last opportunity to provide a sample into the ASD. Officer Bigger should have accepted the offer of the accused and I say that, echoing Justice Cadsby, not without sympathy for the frustration he was enduring in the investigation. Officer Bigger conducted himself in an exemplary fashion during his interactions with accused and I commend him for putting Ms. Arutunian in contact with counsel as quickly as he did. I acquit Ms. Arutunian.

III. The Arguments on Appeal

11The Crown asks for an order setting aside the acquittal and entering a conviction. In the Notice of Appeal dated April 27, 2022, two grounds of appeal are advanced:

(i) the trial judge erred by finding that the elements of the offence were not made out; and

(ii) the trial judge erred in finding that a request for a second chance could cancel a previous unequivocal refusal.

12In its factum, the Crown’s main arguments are that:

(i) the “trial judge erred by finding that [Arutunian’s] refusal, followed by a subsequent (and proximate in time) genuine offer to blow was one continuous transaction and, as such, that the offence had not been made out”, and that error was influenced by the trial judge’s failure to consider “the two leading cases dealing with the completion of the offence: the Supreme Court of Canada’s judgment in Woods [R. v. Woods, 2005 SCC 42] and the Ontario Court of Appeal’s judgment in Degiorgio [R. v. Degiorgio, 2011 ONCA 527]” (paragraph 15 of the Crown’s factum); and

(ii) the cases relied upon by the trial judge, including Domik, supra, do not support his legal analysis (paragraph 24 of the Crown’s factum).

13Counsel for Arutunian submits as follows, taken from paragraphs 10 through 13 of the factum filed on behalf of Arutunian (citations included):

10. The Appellant’s arguments before this Honourable Court precisely mirror those in R v. Khandakar, a summary conviction appeal dealing with the exact issue in the case at bar. Dawson J. rejected this argument and recognized that Woods and Digeorgio were determined in a “very different context”.

2020 ONSC 1971 at para. 42.

11. In dismissing the appeal, Dawson J. held that:

[43] Neither Woods nor Degiorgio have had the effect of overruling or significantly modifying the considerations or principles flowing from Domik. I am not persuaded that the trial judge erred, as the appellant contends, by failing to properly consider Woods or Degiorgio. Domik, as a decision of the Court of Appeal, was binding on the trial judge and it is binding on me. I conclude the trial judge correctly identified the applicable legal principles set out in Domik. The trial judge also properly identified and considered the factors to be taken into account in determining the refusal and subsequent change of mind and offer to take the test were part of the same transaction.

Khandakar, supra

12. In R v. Grant, another summary conviction appeal which is cited by the Appellant, this issue also arose and Durno, J. held that Woods did not overrule Domik.

2014 ONSC 1479 at para. 78 Appellant’s Book of Authorities at Tab 15.

13. There are numerous cases which establish that Domik is the applicable law in the circumstances at bar. The trial Judge appropriately applied Domik. There was no error of Law.

Khandakar, supra at para. 25.

IV. The Burden and the Standard of Review

14The burden is on the appellant, the Crown.

15Factual findings made by the trial judge are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12. An appeal is not a retrial. R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6.

16Questions of law are generally reviewed on a standard of correctness.

17Absent a legally flawed approach to the evidence, the Crown cannot argue that an acquittal is unreasonable. The Criminal Code provides no authority, as in section 686(1)(a)(i) in relation to convictions, to set aside an acquittal on the basis that it is unreasonable. A Crown appeal from acquittal must be limited to a question of law and will be allowed only if the appellate court is satisfied that the judgment would not necessarily have been the same but for the error in law. The 2024 Annotated Tremeear’s Criminal Code, David Watt, K.C., and The Honourable Madam Justice Michelle Fuerst, 2023 Thomson Reuters Canada Limited, at pages 1475 and 1476, citing the decisions of the Court of Appeal for Ontario in R. v. Scott, 2021 ONCA 625 and R. v. Anthes Business Forms (1975), 1975 54 (ON CA), 26 C.C.C. (2d) 349.

V. Analysis

18For the reasons that follow, the appeal is dismissed.

19Respectfully, this Court sees no palpable and overriding error in fact committed by the trial judge, and, in actuality, none is alleged by the Crown. Moreover, this Court sees no error in law committed by the trial judge. It may be that other triers would have reached a different conclusion; that is not, by itself, cause for this Court’s intervention.

20In my respectful view, the Crown’s arguments, though ably made, are infected with two weaknesses.

21First, they are premised on the suggestion that the trial judge found that there was an “unequivocal refusal” by Arutunian to provide a roadside breath sample. That term is used in the Crown’s Notice of Appeal, in its factum, and it was repeated by Mr. Erskine in his oral submissions at the hearing of the appeal. In my opinion, the trial judge made no such finding.

22Second, the Crown’s arguments are grounded in the notion that the trial judge misinterpreted or misapplied the jurisprudence. This Court does not accept that submission.

The Alleged “Unequivocal Refusal” Issue

23On my reading of the Reasons for Judgment, the trial judge never found that Arutunian had “unequivocally refused” to provide a roadside breath sample. At paragraphs 1 and 2 of the Reasons for Judgment, the trial judge uses the expression “outright refused”, but that, in my view, was to make the point that it was a refusal instead of a feigned or failed attempt. A reading of the said paragraph, as a whole, supports that interpretation better than it does the interpretation that the Crown wants to draw – that Arutunian’s refusal was clear and unambiguous and leaving no doubt (which is what “unequivocal” means, in common parlance).

24This is not a matter of mere semantics. It is important because the Crown submits that the trial judge erroneously used a request by Arutunian for a last chance as a basis for cancelling a prior unequivocal refusal, but that misses the point. There was no “unequivocal refusal” to “cancel”. Rather, there were multiple feigned attempts and then an outright refusal as opposed to a feigned or failed attempt, and then a request to blow that was “sufficiently proximate in time, although at the utmost outer limit, with the refuse to constitute one continuous transaction” (paragraphs 1, 2, and 15 of the Reasons for Judgment).

25In other words, because this was “one continuous transaction”, there was no “unequivocal refusal”. That is how I read the Reasons for Judgment, and that is how I think they ought to be read because that is the interpretation that is most logically and rationally connected with the trial judge’s verdict of acquittal. The finding of not guilty was because the trial judge was not satisfied, beyond a reasonable doubt, that the essential element of a “failure or refusal”, a necessary ingredient of the offence under section 320.15(1) of the Criminal Code, had been made out.

The Alleged Flawed Legal Analysis Issue

26This Court makes the following observations.

27First, the Crown cites the decision of the Court of Appeal for Ontario in Degiorgio, supra. That decision, however, was overruled by the Supreme Court of Canada in R. v. Breault, 2023 SCC 9. The Supreme Court of Canada expressly preferred the approach of the Quebec Court of Appeal in R. v. Breault, 2021 QCCA 505 over that of the Court of Appeal for Ontario in Degiorgio, supra and R. v. Quansah, 2012 ONCA 123.

28In its decision in Breault, supra, at paragraphs 29 and 51, the Supreme Court of Canada held that the word “forthwith”, as that word was used in the then offence section that required an accused person to supply a sample of her breath at the roadside, must be given an interpretation that is consistent with its ordinary meaning, which ordinary meaning is “immediately” or “without delay”, except in the unusual circumstances identified by Justice Fish in Woods, supra.

29This development in the caselaw would appear to assist the Crown’s position, as it is clear that the Supreme Court of Canada has warned against an unduly broad interpretation of the word “forthwith”. And it is clear that the Supreme Court of Canada’s decision in Breault, supra appears to be consistent with the language in the new section of the Criminal Code applicable to Arutunian, section 320.27(1)(b), which employs the word “immediately” rather than “forthwith”.

30My point is simply that the Crown’s reliance on Degiorgio, supra, is misplaced. The Crown ought to have cited Breault, supra rather than Degiorgio, supra. Regardless, as explained further below, this Court finds no error in law in the trial judge’s pathway to the verdict of acquittal.

31Second, the Crown, more by implication than expressly so, takes the position that Domik, supra, ought to be regarded with caution. This is clear from expressions like Domik, supra being a “43-year-old summary conviction appeal decision that was affirmed by a majority of the Court of Appeal in a one-paragraph endorsement” (paragraph 27 of the Crown’s factum).

32This Court, on the other hand, agrees with Justice Durno in R. v. Grant, 2014 ONSC 1479 and Justice Dawson in R. v. Khandakar, 2023 ONSC 1971. Domik, supra remains good law; it is binding on this Court, as it was on the trial judge; it has not been overruled by a subsequent decision of the Court of Appeal for Ontario or by the Supreme Court of Canada, although both of those courts have had opportunities to do so, including the Supreme Court of Canada in its decision in Woods, supra.

33In fact, there are several examples of Domik, supra, after the release of the Supreme Court of Canada’s decision in Woods, supra, being considered and applied in other appellate decisions. For example, Domik, supra was referred to as “relevant jurisprudence” in the decision of DiTomaso J. in the summary conviction appeal case of R. v. Kitchener, 2012 ONSC 4754. As another example, earlier than that, and very close in time to when Woods, supra was decided, Domik, supra was referred to in Justice Howden’s summary conviction appeal decision in R. v. Olivier-Williams, 2005 24760 (ON SC). And, contrary to one theme of the Crown’s arguments in this Court, those cases were not distinguishable on the basis that they involved breath tests at the police station rather than at the roadside. Both Kitchener, supra and Olivier-Williams, supra were cases involving roadside breath samples and refusals, exactly as in our circumstances.

34I agree with my colleagues, Justices Durno and Dawson. Whether in the context of an Intoxilyzer breath demand (Grant, supra, particularly at paragraph 78) or a roadside screening device breath demand (Khandakar, supra, particularly at paragraph 43), Domik, supra has not been overruled, including by the decision of the Supreme Court of Canada in Woods, supra, relied upon by the Crown in our case, and thus, the trial judge in our case cannot be faulted for relying on Domik, supra.

35But did the trial judge misinterpret or misapply the decision in Domik, supra? Does Domik, supra, and do the other decisions cited by the trial judge, fail to support the trial judge’s legal analysis, as submitted by the Crown? On both of those questions, with respect, I think not.

36At paragraph 13 of the Reasons for Judgment, the trial judge quoted the seminal passage from Grange J.’s decision in Domik, supra. It was quoted accurately. It was then applied appropriately, in my view, at paragraph 15 of the Reasons for Judgment. The trial judge’s reference, at paragraph 15, to the request to blow being “sufficiently proximate in time” is addressing the expression used by Grange J., “a refusal followed almost immediately by an assent”. Although it is true that Grange J. did not refer specifically to what has been described in subsequent caselaw as the “one continuous transaction” or “same transaction” principle, that is the logical extension of “a refusal followed almost immediately by an assent”. The issue before Grange J. was “whether in the circumstances there was a refusal within the meaning of the section”. Khandakar, supra, at paragraph 21. There can only be a refusal within the meaning of the section where, among other things, it has been proven beyond a reasonable doubt that the detainee intended to refuse to provide a suitable sample. Grant, supra, at paragraph 81. The mens rea component of the offence will be determined on a case-specific analysis of all of the circumstances, including but not limited to this notion of a bona fide request by the detainee for a “last chance” to provide a suitable sample and the question of whether the refusal and the subsequent offer were part of “one transaction”. Grant, supra, at paragraphs 81 through 83.

37In other words, a refusal followed almost immediately by an assent is one continuous transaction.

38The trial judge found as a fact that Arutunian’s “last chance request was genuine”, or bona fide (paragraph 15 of the Reasons for Judgment). The trial judge also found as a fact that, when Arutunian requested to blow again right after speaking with her counsel, the police officer was still at the roadside, with Arutunian, and with the approved screening device (paragraph 15 of the Reasons for Judgment). These were findings of fact that were open to the trial judge and not challenged on appeal. The trial judge held that “the request to blow was sufficiently proximate in time, although at the utmost outer limit, with the refuse to constitute one continuous transaction” (paragraph 15 of the Reasons for Judgment). That was a conclusion of mixed fact and law, and I see no error in the trial judge making that conclusion. The trial judge accurately set out the total time period between the initial breath demand and Arutunian’s request to blow again, 21 minutes (paragraph 10 of the Reasons for Judgment). The trial judge referred to, among other cases, the binding decision of Justice McCombs in Hines, supra, where the total elapsed time period was very similar (19 minutes) and where the fact situation also involved a roadside breath test (paragraph 11 of the Reasons for Judgment). We know that the total elapsed time period in Khandakar, supra was actually longer than in our case – 23 minutes, being about 13 minutes between the initial breath demand and the final refusal which triggered the arrest (1:27 to 1:40 a.m.) and about 10 minutes between the accused’s arrest and his request to blow into the approved screening device. Khandakar, supra, at paragraph 12.

39In Khandakar, supra, Dawson J. found no error committed by the trial judge. Similarly, I find no error committed by the trial judge in our case. There was no legally flawed approach to the evidence. There was no error in law. The trial judge gave thoughtful reasons for the acquittal, citing numerous authorities including the binding decision in Domik, supra.

VI. Conclusion

40Addressing directly the four main submissions advanced by the Crown:

(i) it was open to the trial judge to find that the essential elements of the offence were not made out;

(ii) the trial judge never found that an “unequivocal refusal” was “cancelled” by a subsequent request to blow;

(iii) there is nothing about the trial judge’s analysis that runs contrary to any authority not cited by the trial judge, including Woods, supra and Breault, supra (the latter released after the trial judge’s decision); and

(iv) it is incorrect to suggest that the cases relied upon by the trial judge, including Domik, supra, do not support his legal analysis.

41That the case was a close one, as evidenced by the trial judge’s reference to the “utmost outer limit” (paragraph 15 of the Reasons for Judgment), or that the case might have been looked at differently by another jurist, both points with which I agree, is not the issue.

42Despite the able submissions of Mr. Erskine, the Crown’s appeal is dismissed.

Conlan J.