R. v. Fan, 2018 ONCJ 924

CITATION: R. v. Fan , 2018 ONCJ 924 DATE: November 14, 2018 Information No. 2811-998-18-33344-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. WENWEI FAN T R I A L P R O C E E D I N G S BEFORE THE HONOURABLE JUSTICE P.C. WEST on Wednesday, November 14, 2018 at OSHAWA, Ontario

APPEARANCES O. Fitzgerald Counsel for the Provincial Crown D.

Pledge Counsel for Wenwei Fan (AS ANNOTATED) WEDNESDAY, NOVEMBER 14, 2018: R E A S O N S F O R J U D G M E N T WEST, J. (Orally): Wenwei Fan is charged that on the 31 st day of December, in the year 2017, at the Township of Uxbridge, Central East Region, did, without reasonable excuse, fail to comply with a demand made to her by a peace officer to provide such a sample of breath as was necessary to enable a proper analysis to be made by means of an approved screening device and thereby commit an offence under Section 254(5) of the Criminal Code , contrary to Section 255(1) of the Criminal Code .

This is a relatively simple case. One witness was called by the Crown, Constable Chris Hansson, who was the officer who investigated Ms. Fan on Regional Road 21, as a result of a 9-1-1 call as to an erratic driver. Constable Hansson activated his emergency lights, pulling over a blue Lexus SUV that was being driven by Ms. Fan. She was in that vehicle with three other individuals. Constable Hansson never determined who any of those individuals were, based on the evidence he gave. He received the 9-1-1 call at 11:08 and then at 11:15 is when the traffic stop was initiated.

He went to the driver’s door and spoke with the driver, who was Ms. Fan. Constable Hansson advised the driver that the reason she was being stopped was because of this radio call respecting erratic driving. He asked for her driver’s licence, insurance and ownership, which he said was his usual practice. He testified he received the driver’s licence, asked if the driver had been consuming alcohol. And he noted in his notes, with quotation marks, which meant this was a verbatim statement, “one beer.” He could smell, he testified, a strong odour of alcohol on her breath.

Later in his evidence, and maybe it was a misspeaking on his part or I am not sure, but I heard him testify that he smelled the odour of alcohol that he detected was slight. And then he later said as a result of the strong odour of alcohol, that he had challenged her on her statement to him that she had consumed one beer. She spoke with an accent. She spoke in broken English. He indicated he was aware that her first language was not English. The weather, that particular date on December 31 st , 2017, was extremely cold, he testified, minus 30 degrees Celsius. There was very

little traffic when he was dealing with Ms. Fan. Based on grounds that he formed, because of the smell of alcohol on her breath and the admission of one beer, he made a approved screening device demand and asked her to step out of the car. As he was giving the ASD demand, he was interrupted by his partner, who told him that the ASD in their cruiser was expired, in terms of its calibration date, and either he completed reading the ASD demand or it was cut-off because he had to get on the radio and request another police officer, who was nearby, to bring an ASD that was properly calibrated.

Within a few minutes, the other officer arrived on scene and at 11:19 p.m. he, again, reread the ASD breath demand. It was readout in court by the officer. It ends with “Do you understand?” At no point did anyone ask Constable Hansson what the response of Ms. Fan was to the demand. He then instructed her, as I say, to get out of the car and come back with him to his car. In cross-examination, he did not have noted in his notes whether he opened the door and motioned for her to follow him or what he said to her. He had just had nothing, just asked her to come back to his car. He then administered the first test.

He testified that he told her to form a tight seal with her lips around the mouthpiece and blow hard. And when she did that, he testified he felt a pushback on the machine, which he believed was caused by her tongue on the mouthpiece. He testified there was no deep inhale of breath prior to Ms. Fan blowing into the approved screening device. The officer indicated in his evidence that, initially, that she had tried to provide samples on six occasions. That changed as his evidence progressed, and I believe it changed because of the lack of detailed notes as to each of the attempts that were made by Ms. Fan.

Because his evidence was that there were two or three attempts, there was little to no air going into the machine, this is all in-chief, and it was at that point that he demonstrated how she should use the machine for the first time. He did a self-test and registered a zero. He said that he got another mouthpiece and blew into it and registered the zero. He testified he had her attach another mouthpiece onto the approved screening device for a subsequent test. He did not repeat his instructions to her and his evidence in-chief was he did not repeat it because she did not ask him to repeat it.

But here he was, demonstrating and knowing that she did not speak English as her first language. He then testified, “I believed there were two more times following my demonstrating the use of the device myself.” That was a curious statement that he made in his evidence in-chief. He testified in-chief that he inspected the mouthpiece. It was his belief there was no issue with the mouthpiece being used by Ms. Fan. That evidence changed a little bit in his evidence in cross-examination. This was a visual inspection of the mouthpiece, which he says is clear plastic. He did not, as I have heard in most cases, have Ms.

Fan blow into the mouthpiece after she removed it from the plastic wrapper and put his hand in front of the end of the mouthpiece to see whether air was in fact flowing through it. He did not do that for either of the two mouthpieces that he provided to her. It was just prior to the last test, he testified, which would have taken us up to about, I think, the fourth or the fifth test, that he cautioned her about not providing a sample, a suitable sample of her breath. He did not have, in cross-examination he did not have noted in his notebook exactly what he said to Ms.

Fan when he explained how to use the approved screening device. He added a further thing that he told her, that he usually told drivers that he formed a reasonable suspicion that they have alcohol in their body when they were operating a motor vehicle, that he would tell the person to blow for as long and as hard until he tells them to stop. When he was questioned a bit further about that, he indicated he did not say that to Ms. Fan. None of his instructions were noted in his notebook. That came out through cross-examination.

The caution that he gave to her was that if she was intentionally obstructing blowing into the device, that she could be arrested. Again, this was not contained in his notebook. And his explanation in-chief as to why he believed Ms. Fan understood his caution is that she didn’t ask him to repeat it. That was a common response by Constable Hansson to the Crown in respect of Ms. Fan’s understanding of what was being said to her,

English not being her first language, is that she did not ask him to repeat anything. He has nothing noted in his notebook with respect to any of the things that Ms. Fan said to him when he gave instructions, when he readher the approved screening device demand, when he cautioned her. After each of the unsuccessful attempts, he has nothing noted in hisnotes as to any of the words, whether the gist or whether verbatim, as to what was said by Ms. Fan.

And yet, on each occasion whenasked by the Crown, “Did she ask you to repeat?” “No, she didn’t.” “What did that make you believe?” “That she understood what Iwas saying to her.” After she tried the last time and did not provide a proper sample, he then advised her that she was being arrested for failing to provide asample of her breath. She was then seated in the back of the cruiser because of the cold. He then had her stand up, turn and face thecruiser, put her hands behind her back. He indicated she did not initially comply. She had been cooperative and compliant prior to this.

He testified that the two officers had to take physical control of her in order to be able to handcuff her behind her back, her hands behindher back. In cross-examination, it was put to Constable Hansson that when this was occurring Ms. Fan was saying to him, “Why? Why?” and hecould not and did not indicate that that was not said. His comment is that he had no recollection of her saying, “Why? Why?” He said,“I don’t recall if she said that.” He did agree that she was turning around and that she was looking at the officers.

He did not recall if she was speaking but he concededthat she very well could have said, “Why? Why?” In my view, this is an example that, if the officer had been taking complete notes and had noted what was being said, it would haveindicated to anyone reading it that Ms. Fan did not understand his caution and perhaps did not understand anything that had been goingon up to that point in time because she had no idea what was happening and why she was being handcuffed.

Section 254(2) provides that if a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and thatthe person has, within the preceding three hours, operated a motor vehicle or had the care or control of a motor vehicle, the officer may,by demand, require the person to comply, in the case of alcohol under subsection ‘B’, to provide forthwith a sample of breath that, in theofficer’s opinion, will enable a proper analysis to be made by means of an approved screening device. And, if necessary, to accompanythe officer for that purpose.

Section 254(5) provides that everyone who commits an offence who, without reasonable excuse, fails or refuses to comply with ademand under this section. There is no doubt that Ms. Fan failed to provide a suitable sample of her breath into the approved screening device after either four orfive or six attempts. Her defence, as argued by her counsel for her failure, is that she was attempting to provide a sample and did her best to do so. And to putit more succinctly, her counsel submits that she lacked mens rea. In a decision by my colleague, Justice Duncan, called Regina v. Greenshields, that’s [2014] O.J.

No. 475, Justice Duncan considered thetwo lines of authority dealing with whether intent is required to be proven by the Crown respecting a charge of fail to provide a breathsample. The Saskatchewan Court of Appeal in a decision Regina v. Lewko, (2002), 2002 SKCA 121 , 169 C.C.C. (3d) 359, held thatmens rea in a refusal/fail to provide sample offence is, and I quote: “The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existenceof a demand having the requirement of one of the three types mentioned in Sections 254(2) and (3).

And second, the Crown must provea failure or refusal by the defendant to produce the required sample of breath or the required sample of blood, as the actus reas. Andthird, the Crown must prove that the defendant intended to produce that failure, that’s the mens rea.”

Justice Duncan in Regina v. Sullivan, and earlier decision, [2001] O.J. No. 2799, had come to a similar conclusion shortly before the Lewko decision. His decision has been followed by a number of courts in Ontario, including Regina v. Stanley, 2003, 42 M.V.R. (4th) 95,(Ontario Superior Court); Regina v. Campbell, 2008 O.J. No. 47 (Ontario Superior Court). Subsequent to these two decisions, Justice Code in Regina v. Porter, [2012] O.J.

No. 2842 Ontario Superior Court, at paragraphs 35 to37, disagreed with these judgments by classifying a refusal/fail to provide sample offence as one of general intent and held the mens reais merely knowledge of the prohibited act. That is knowledge by the accused that he is not providing a sample.

Justice Duncan in Greenshields, that I have already referred to, at paragraph 10 held while the offence “may be one of general intent” hecould not agree “that mere knowledge by the accused that he is not providing a suitable sample constitutes the mens rea.” He continued: “In fact, I am not even sure that such formulation necessarily describes the mental state accompanying the act or omission at all, asopposed to being after the fact assessment of what has occurred.” I agree with Justice Duncan’s conclusion at paragraph 11: “In my view, the bottom rung basic intent applicable to any crime, absent words to the contrary. (The Supreme Court of Canada recentlyreaffirmed the principle that mens rea is presumed in the absence of words specifically removing it as an element of the offence, Reginav.

MacDonald. January 17, 2014) Generally speaking, is the intent to do the act or omission that constitutes the offence. Specifically,with respect to the present offence, the mens rea of failure to provide a breath sample is the intent not to provide a breath sample.” In support of his position, Justice Duncan refers to Justice Cory’s decision in Regina v. Daviault, that’s (SCC), [1994] 3S.C.R. 63, at paragraph 6 and 7; Regina v. Rees, (SCC), [1956] S.C.R. 640; Regina v.

Docherty, (SCC), 1989 51 C.C.C. (3d) 1 S.C.C.; and in Smith and Hogan, Criminal Law, 6th edition, page 70, where the authors define the principle of“basic mens rea” as: “...in crimes requiring mens rea, as distinct from negligence, the defendant should be liable only for that which he has chosen to bringabout, or to take the risk of bringing about ie that he intended, or was reckless, whether all of the elements of the offence, both resultsand circumstance should occur.” I agree with Justice Duncan’s analysis and I adopt his conclusion that the Porter decision would lead to absurdities and unjust results.

Consequently, reasonable doubt exists as to whether the defendant’s failure to provide a breath sample was volitional or intentional, itmust result in acquittal. My colleague, Justice Felix, in a decision called Regina v. Pathmanathan, [2015] O.J. No. 5341, in dealing with a refuse to providesample into an approved screening device, contrary to Section 254(5) of the Criminal Code of Canada, made the following comments,he makes reference to the issue of a self-test by a police officer, who is engaging in routine patrol, having an ASD in their vehicle.

Andtalks about the fact that it was his respectful view that, despite the fact that a self-test may be relevant in some cases and totally irrelevantin others, it was his respectful view that it is safe to consider it, at minimum, a best practice in the absence of any direct evidence, that itwas, in fact, a recommendation by the Centre of Forensic Sciences, which he took judicial notice of from the manual respecting, I believein this case it was the Alcotest, Drager Alcotest 6810. It was his view that a police officer should do that self-test.

In the facts in the case before me, it becomes even perhaps more important. Constable Hansson, as he was reading the demand for the approved screening device to Ms. Fan, he was interrupted by his partner, whohad retrieved the approved screening device from their cruiser and determined and discovered that it is out of time, it has not beencalibrated in the appropriate time and could not be used.

He either interrupted the approved screening device demand to make a phonecall for one to be brought to where they are or he read it but did not ask the question at the end, ‘Do you understand?’ Within a couple of minutes, another ASD is brought. This is an ASD that he has no knowledge of. It is not the one that he had in his

police cruiser. It becomes evident to me that Constable Hansson did not do a self-test with respect to the ASD he had with him. Because my understanding is once it is outside of calibration, I have heard this on at least three or four cases by a toxicologist from the Centre of Forensic Science, as well as on a number of other cases by breath technicians, qualified breath technicians, that this particular device will not work. You cannot blow into it to get any kind of reading if it is past its calibration.

So, Constable Hansson did not do it with respect to his ASD and when he received the new ASD, there was no evidence before me that he inquired of the officer who brought it, I do not even know who that officer is, whether there was a self-test done, and P.C. Hansson certainly did not do a self-test, on his evidence. He does not do a test on this ASD until partway through the attempts by Ms. Fan. Now, I do want to say this, the police officer is not required to note everything in a notebook, and I would provide Regina v. Brown , [2014] O.J. No. 1021 , a decision of the Ontario Superior Court.

And so, it suggests because something is not noted in a notebook, does not mean that it did not occur. But when I am dealing with a fail to provide a sample of breath into an approved screening device and the Crown’s theory, that they have to prove beyond a reasonable doubt, that there was a deliberate intention on the party of the individual not to provide a sample, that they are playing games, that they are doing things that would prevent their breath from going into the approved screening device, it seems to me a police officer’s responsibility is to provide accurate notes as to each and every attempt.

And if they do not, it calls into question and raises issues that may ultimately lead to a reasonable doubt that there was an intent on the part of the person who the demand has been made to, to provide a sample of their breath. Constable Hansson’s notes are completely deficient with respect to the attempts that were done by Ms. Fan. He does not have anything that was said by her after each attempt. He does not have anything that was said by himself to Ms. Fan, to try to explain to her why the attempt did not work and why a proper sample of her breath was not being provided.

He does not even know the exact number of attempts. And when he was questioned about that, his immediate response, which was really an answer that he gave that, I believe and I find, is to some extent indicative of what was going on at 11:19 and 20 minutes after 11 p.m. on the 31 st of December, it was minus 30 degrees outside. And as he described initially in his evidence in-chief, it was extremely cold.

That is why he justified not knowing whether it was four attempts or five attempts or six attempts, “It was so cold that night, you have no idea how cold it was.” In my view, that does not excuse the lack of notes in respect of this issue. Constable Hansson did not note specifics concerning the failed sample attempts, including, in his evidence in-chief, whether a tone was even created as a result of the attempt, what messages were returned from the ASD. And in my view, this was a serious deficiency because this matter occurred almost a year ago. The only time, and this came out in his cross-examination by Ms.

Pledge, the only time he testified as to whether there was a tone or no tone, was in cross. And his evidence was for the first four or five tests there was no tone whatsoever, and when he, after he cautioned her, Ms. Fan, he got a partial tone on that last attempt. Now, I will say there is no requirement that a police officer give a certain number of attempts to provide a proper sample of breath into an approved screening device.

But it would seem to me that if you have three or four or five attempts where there is no tone, there is no notation whatsoever as to what is happening with the machine, what is being said by the officer to the individual to get them to provide a proper sample, there has been no demonstration until after at least two or three attempts by the officer. He indicates that when he demonstrates how to blow into the machine, he does not say anything with it, so there is no explanation as to what he is doing, he just does a self-test.

And again, there is nothing in his notes to indicate exactly what he did or what he told Ms. Fan or what she said. Compounding the lack of notes with respect to these four or five or six attempts, is the fact that he is fully aware that Ms. Fan does not speak English as her first language. He does not make any inquiries as to what her language, first language is. He does not make any inquiries of the individuals who are inside the motor vehicle, as to Ms. Fan’s ability to understand English. He does not ask her at any point if she understands what he is saying to her.

His evidence with respect to his belief that she understood what he was saying to her, only comes, in my view, from assumptions. And itis because on the way the questions were asked of him, “Did she ask you to repeat?” and the answer was, “No, she did not.” “And whatdid that cause you to believe?” “I believe she understood.” That, in my view, does not indicate necessarily understanding.

I would just draw attention to a number of cases, and starting in our Court of Appeal and, specifically, the Ontario of Court of Appeal, itis held that where detainees have language barriers which prevent them from understanding what is going on, their Charter rights, that“special circumstances” arise, which require the police to act reasonably to ensure the detainee can meaningfully understand what theirobligations are or what their

Section 10(

a) or 10(

b) Charter rights are; that’s Regina v. Vanastaceghem, (ON CA),[1987] O.J. No. 509,(C.A.), at paragraphs 18 to 20. I note the date of that judgment. Since 1987, the infancy of the Charter of Rights and Freedoms, our Court of Appeal drew attention toCrown attorneys, to defence lawyers and to police officers who are going to be investigating individuals who do not have English as theirfirst language, that they need to do more. There are other cases. Now, a Court of Appeal judge, Justice Tulloch, in the decision called Barros-Da Silva, [2011] O.J.

No. 3794,when he was in the Superior Court at paragraphs 29 to 30; Regina v. Michaud [1986], O.J. No. 1631, also a Superior Court decision atpage six; and Reginal v. Shmoel, [1998] O.J. No. 223, and that is a decision of Justice Marin in the Ontario Court of Justice at paragraphseight and nine.

These cases hold that the police have an obligation to ensure where “special circumstance” exist surrounding language issues, that thedetainee has the opportunity to meaningfully exercise their rights to counsel, once they have been explained in their own language, or toeven, when the are being given demands to provide breath samples, for example under 254(2) or 254(3), that they would be, have thatexplained to them in their own language, as well, or at least an investigation as to whether they understand what the officer is saying.

And in a case where “special circumstances” exist, as I believe in this case it does and I find it does, I agree with the following passage inShmoel, supra, at paragraph 25: “The police proceed at the peril of a successful prosecution where there are indicia of a language comprehension problem and aninterpreter is neither offered nor made available, an accused person must understand not only that he or she has the right to retain andinstruct counsel upon detention but also be permitted a meaningful exercise of that right.” I extrapolate that quote that I have just given to a situation where a person is being requested, as by way of a demand by a police officer,to comply with a demand, either to blow into an approved screening device and provide a sample of their breath or to blow into anapproved instrument and also provide a sample of their breath.

They need to fully appreciate and understand those rights and thoseobligations. The gravamen of the offence before me is either an unequivocal refusal by the individual, which is not the case here, or a police officer’scharacterization of a “failure” to provide a sample of breath. A failure to provide a sample requires the officer administering the approved screening device to document this detailed closely. Thelack of this finer detail, in this case, causes me to have reasonable doubts as to whether or not Ms.

Fan fully understood what she wasbeing asked and causes me to have reasonable doubts as to an intention on her part to play games or to defeat the demand that was madeof her by failing to provide, deliberately, a sample of her breath. It also causes me to have significant doubts as to the reliability of the evidence that was given in-chief by Constable Hansson. There was an exchange of questions and answers towards the end of Constable Hansson’s cross-examination that I, as I have consideredit causes me concern, and that was this suggestion put by Ms. Pledge when she suggested that Ms.

Fan said words to the effect that shedid not understand English a hundred percent. The officer’s first response to that question was, “I believed she understood English.” Ms.Pledge then said, “You’re not answering my question. I’m suggesting she told you she didn’t understand English a hundred percent orher English wasn’t perfect.” The officer’s response was, “I agree with that suggestion.” It is then asked, “And this is not indicated ineither of the two sets of notes that you prepared a couple of hours after the events?” and he agreed.

And then she asks this question, “Well, did that not cause you some concern about her ability to understand the things that you were saying to her and that you did nothing in respect to her saying she didn’t understand English a hundred percent?” There were questions then asked about, “You didn’t ask her what the language was that she spoke normally, you didn’t inquire as to whether she was fully comprehending what you were requesting of her.” It was at that point that Constable Hansson expressed that he, perhaps, did not fully appreciate the question that was being asked by way of suggestion and maintained, “I don’t recall Ms.

Fan saying she didn’t understand English a hundred percent.” But he then said that he made an observation that English was not her language of choice, was not her first language, and he made no further inquiries. In my view, he was required to do so and it would not have taken up any further time. He would not have been out in the cold much longer if he had done that. His lack of any kind of detail in his notes respecting the attempts that were made, goes directly to what the Crown needs to prove beyond a reasonable doubt and that is that Ms.

Fan deliberately and with intention refused to provide a sample or failed to provide a sample. This is one of those cases where I cannot be satisfied beyond a reasonable doubt that Ms. Fan deliberately, with intention, failed to provide a sample, that she was playing games, that she was doing things to prevent her breath from going into the approved screening device. I have a reasonable doubt, and when I have a reasonable doubt I am to acquit and I dismiss the charge that is before the court.