R. v. Scheuneman, 2019 ONCJ 285

O N T A R I O C O U R T OF J U S T I C E CITATION: R. v. Scheuneman , 2019 ONCJ 285 DATE: May 1, 2019 COURT FILE No: 17-1613 B E T W E E N : HER MAJESTY THE QUEEN -AND- DEVIN ALEXANDER SCHEUNEMAN Before Justice Michael G. March Heard on September 13, 2018, December 5, 2018 & March 26, 2019 Reasons for Judgment released on May 1, 2019 Lauren Rock, Caitlin Downing……………………………………….Counsel for the Crown Craig Rogers………………………………………………………….Counsel for the Accused March, M.G., J. : Introduction: 1 .

Devin Scheuneman (“Scheuneman”) stands charged that on or about December 5, 2017, he did without reasonable excuse refuse to comply with the demand made to him by a peace officer, Cst. Bennett, to provide then, or as soon as practicable thereafter, samples of his breath as in the opinion of a qualified technician are necessary to enable a proper analysis to be made to determine the concentration, if any, of alcohol in his blood contrary to s. 254(3)(

a) of the Code. The Crown called a civilian, Edward Vanbeek (“Vanbeek”), and two police officers, Cst. O’Dacre and Cst. Bennett of the O.P.P., to attempt to establish the guilt of Scheuneman beyond a reasonable doubt. The defence called no evidence. Review of the Relevant Evidence: Vanbeek: 2 . Vanbeek is a tow truck operator employed by Dwayne’s Towing in Renfrew, Ontario. He works for this enterprise “24/7,” which I took to mean that Vanbeek is constantly at the ready to respond to a call for service. 3 . Vanbeek testified that received a call from a lady on December 4, 2017.

She sought assistance with getting a truck out of a ditch on River Road. 4 . Vanbeek arrived on scene approximately 20 minutes later at around 11:00 or 11:30 p.m. He remarked that there was a lady and a young gentleman in a vehicle at the side of the road. The gentleman came up to Vanbeek to confirm that he was the owner of the vehicle in the ditch. He wanted to know how much and how long it would take to get him out. He explained that he had swerved to miss an animal on the road. He then slid into the ditch. The roads were icy that night. Vanbeek estimated that the temperature was minus 15.

5 . The vehicle at the side of the road was running. The one in the ditch was not. 6 . Vanbeek noticed the gentleman spoke with a little bit of a lisp or a slur. Vanbeek did not detect an odour on the breath of the gentleman. Vanbeek had been, at the time, ten years without a sense of smell due to a medical condition. 7 . While on scene still, Vanbeek remembered that Cst. O’Dacre showed up after the vehicle was removed from the ditch. Cst. O’Dacre asked who had been driving. Vanbeek told Cst. O’Dacre that the gentleman had. Cst. O’Dacre: 8 . At the time of testifying on September 13, 2018, Cst.

O’Dacre had been a member of the O.P.P. for just over ten years. He began working at the Renfrew detachment in April 2016. 9 . Shortly after 10:30 p.m. on December 4, 2017, Cst. O’Dacre was dispatched to a call in the Township of Horton on the outskirts of Renfrew. The collision occurred, he believed, at the intersection of River Road and Storie Road. The vehicle involved was an older pickup truck without plates. 10 . Upon arrival on scene, Cst. O’Dacre found no indication of a motor vehicle collision having occurred. He surmised that Storie Road may have been mistaken with Storyland Road.

He thus proceeded to the intersection of Storyland Road and River Road. There he observed at 11:08 p.m. a pickup truck being towed out of a ditch by Vanbeek, a blue F150, without plates. 11 . The only other male Cst. O’Dacre saw on the scene aside from Vanbeek, a person the officer knew from previous dealings, was Scheuneman. Cst. O’Dacre asked him, “What happened?” Scheuneman told the officer he was driving. He swerved to avoid a porcupine. His truck is two wheel drive. He could not get it out of the ditch. 12 . Scheuneman provided Cst.

O’Dacre with a photo licence with a class G1 designation, as well as a paper document attesting to his recently obtained G2. Scheuneman identified himself to Cst. O’Dacre with that document. Cst. O’Dacre satisfied himself that the individual in front of him was Scheuneman. On consent, a photocopy of the documents presented to Cst. O’Dacre were made Exhibit 1 on the trial. 13 . Cst. O’Dacre further testified that the gentleman, who was seated next to his counsel in court, was the accused, Scheuneman – the same individual who was driving, and who swerved to avoid the porcupine. 14 . Later, Crown counsel asked Cst.

O’Dacre if he recognized the man who he had been dealing with at the roadside in court today. Crown counsel pointed out the obvious that he was the only man, aside from his counsel, in court when Cst. O’Dacre was testifying. Again, Cst. O’Dacre indicated that the gentleman who he was speaking to that night (December 4, 2017) was Scheuneman. 15 . Further, Cst. O’Dacre described the clothing of Scheuneman on the night in question. The officer was entirely satisfied that the individual he dealt with at the roadside was Scheuneman. Based on Scheuneman’s utterances, Cst.

O’Dacre was confident that Scheuneman was the driver of the pickup truck, which went into the ditch. 16 . Cst. O’Dacre noted Scheuneman to have glassy eyes, slightly slurred speech and an unsteady gait. The officer asked Scheuneman to accompany him to his police vehicle to take down his information. In addition to the driver’s licence, Scheuneman provided the vehicle portion of his permit – “the 10 day transit permit” – for the truck he had just bought as well as valid proof of insurance for it. 17 . At 11:23 p.m., Cst. O’Dacre asked Scheuneman about when he believed the crash to have happened.

Scheuneman replied 30 to 40 minutes ago. 18 . Shortly after this point was when Cst. O’Dacre began to notice a slight odour of an alcoholic beverage on Scheuneman’s breath. Cst. O’Dacre confronted Scheuneman on that issue. Scheuneman had previously indicated he had not been consuming alcohol. Cst. O’Dacre told Scheuneman he could smell alcohol. The officer asked again if Scheuneman had been drinking. Scheuneman admitted to having a beer, but he could not remember when he consumed it. 19 . With the admission of alcohol consumption and the detection of an odour on Scheuneman’s breath, Cst.

O’Dacre made an approved screening device demand at 11:25 p.m. 20 . Before administering the test, Cst. O’Dacre satisfied himself the device was in proper working order. On Scheuneman’s first attempt to supply a sample of his breath into it, he was unsuccessful. Cst. O’Dacre explained again to Scheuneman how to properly provide a sample, and the consequences of a failure to do so. At 11:29 p.m., Scheuneman’s second attempt was successful. It resulted in a “fail.” 21 . At 11:30 p.m., Cst. O’Dacre placed Scheuneman under arrest for driving “over 80.” The officer handcuffed Scheuneman to the rear. Cst.

O’Dacre then read to Scheuneman his rights to counsel. Scheuneman believed he had 24 hours within which to contact his lawyer. Cst. O’Dacre clarified with Scheuneman that his right to speak to a lawyer was immediate. Cst. O’Dacre asked again if Scheuneman wished to contact a lawyer. The officer’s question was met with silence from Scheuneman. Equally, Scheuneman did not respond when a standard caution was read to him. 22 . At 11:32 p.m., Cst. O’Dacre read an Intoxilyzer demand to Scheuneman. The defence took no issue with the wording of the demand.

Scheuneman responded, “I just gave you a breath sample, why do I have to give another one?” Cst. O’Dacre explained generally the reason why another sample was required. 23 . At 11:35 p.m., Cst. O’Dacre departed the scene for the Renfrew detachment where he believed the closest breathalyzer technician could be found – Cst. Bennett. Cst. O’Dacre arrived with Scheuneman at the Renfrew detachment at 11:49 p.m.

24 . As Cst. O’Dacre had not yet been advised by Cst. Bennett that the instrument was ready, Cst. O’Dacre allowed Scheuneman to have a cigarette. At this point, Scheuneman began to grow agitated and uncooperative. Cst. O’Dacre thus extinguished Scheuneman’s cigarette and lodged him in cells. 25 . At midnight, Cst. O’Dacre asked again if Scheuneman wished to speak to a lawyer. Scheuneman continued to reiterate his belief in an option to delay the call for 24 hours. Cst. O’Dacre again pointedly asked Scheuneman if he wished to speak to a lawyer or not. He would not answer. 26 . At 12:07 a.m., Cst.

Bennett informed Cst. O’Dacre that the “Intoxilyzer instrument” was ready to accept Scheuneman for testing. 27 . At 12:16 a.m., Cst. O’Dacre turned Scheuneman over to Cst. Bennett. Cst. O’Dacre communicated his grounds for making the breath demand of Scheuneman. Cst. O’Dacre also provided to Cst. Bennett a general synopsis of the events leading up to Scheuneman’s arrest. Cst. O’Dacre recalled that Cst. Bennett recorded what he was told. Cst. Bennett: 28 . Cst. Bennett was a ‘qualified technician’ on December 4, 2017, the night of Scheuneman’s arrest. He had been so qualified since June 2011.

He was contacted by Cst. O’Dacre at 11:34 p.m. regarding a male in police custody for ‘over 80.’ Cst. O’Dacre was seeking Cst. Bennett’s assistance as a ‘qualified technician.’ 29 . At the time Cst. Bennett was contacted, he was out on patrol in the Town of Renfrew. He thus returned to his detachment and arrived at 11:56 p.m. He began the initiation process of the approved instrument, an Intoxilyzer 8000C. 30 . At 11:59 p.m., Cst. Bennett performed the standard quality assurance checks for the Intoxilyzer 8000C. By 12:05 a.m., December 5, 2017, Cst.

Bennett had satisfied himself that this approved instrument was in proper working order. It was ready to accept a subject for testing. 31 . At 12:07 a.m., Cst. Bennett informed Cst. O’Dacre that the instrument was ready. At 12:16 a.m. Scheuneman was given into Cst. Bennett’s custody. 32 . In turning over Scheuneman, Cst. Bennett confirmed that Cst. O’Dacre provided his grounds for making a breath demand of Scheuneman. 33 . When asked to identify Scheuneman while testifying, Cst. Bennett was able to point to where Scheuneman was located in the courtroom. 34 . Once in Cst.

Bennett’s custody, he read to Scheuneman at 12:19 a.m. the approved instrument demand, which Scheuneman understood. The wording of the demand was as follows: “I demand that you provide suitable samples of your breath directly into an approved instrument to enable an analysis to be made to determine the concentration, if any, of alcohol in your blood.” It appeared to Cst. Bennett that Scheuneman understood the demand. He indicated to Cst. Bennett as well that there was no reason why he could not provide a breath sample. 35 .

During the time of having the process explained to him, Scheuneman jumped up and sat on the breath room counter. Cst. Bennett warned him about the potential for a mischief charge if he broke any of the equipment. Cst. Bennett explained to Scheuneman that he had to sit in a seat to supply his breath samples. Throughout the process, Cst. Bennett characterized Scheuneman’s demeanour as “pretty disrespectful,” and “overall fairly abrasive.” 36 . Cst. Bennett offered Scheuneman an opportunity to contact his own personal lawyer. The officer clarified that Scheuneman could not provide a name nor a number.

Scheuneman wanted his cell phone to be able to find the number, but Cst. Bennett testified that a phone was not amongst the property on Scheuneman’s person when he was booked into the detachment. The police, Cst. Bennett indicated, simply did not have access to Scheuneman’s phone. When Scheuneman was informed of this, he did not believe the police officer. 37 . Cst. Bennett related that Scheuneman was offered duty counsel before providing a sample of breath, but he refused. He went on to supply his first sample at 12:27 a.m., which when analyzed, registered 190 mgs of alcohol in 100 millilitres of blood.

At this point, Scheuneman demanded he be given an opportunity to contact his personal lawyer. To Cst. Bennett’s best recollection, Scheuneman was handed a phone and given an opportunity to speak to a lawyer. Duty counsel was on the line waiting for him. He refused. He was then re-lodged in a holding cell. 38 . Before taking the first sample from Scheuneman, Cst. Bennett instructed him on how to provide it. The officer explained that “… it’s like inflating a balloon.” In addition, Cst.

Bennett showed him the mouthpiece, how to seal his lips around it, and to provide the sample until the officer tells him to stop. 39 . At 12:44 a.m., Cst. Bennett began the process for obtaining a second sample of Scheuneman’s breath. The officer attempted to remove Scheuneman from the cell. He wanted a cigarette. Cst. Bennett refused as a result of Scheuneman’s abrasive attitude and behaviour. Scheuneman later told Cst. Bennett that he had done two breath tests – one at the roadside on the approved screening device, and one at the police station. Scheuneman refused to provide any more. 40 . At 12:46 a.m., Cst.

Bennett explained to Scheuneman the consequences of refusing to provide a breath sample. Cst. Bennett indicated to Scheuneman that a refusal is essentially the same as an “over 80.” Scheuneman informed Cst. Bennett that he understood all the warnings. Scheuneman further appreciated that it was a criminal offence to wilfully refuse.

41. Cst. Bennett squarely told Scheuneman he must join him in the breath room again for the second sample. Scheuneman was defiant. He informed the officer that the police did not have the right to take another breath sample from him. He had fulfilled his obligation. 42. Cst. Bennett explained multiple times that two samples within a .02 agreement have to be provided into the Intoxilyzer. They haveto be “…in good agreement.” Commonly, it would take two samples of breath into an approved instrument at the detachment to achievethis, but sometimes it takes more.

Further, he explained to Scheuneman that he was required to provide the test by law. In Cst. Bennett’sview, Scheuneman was fully cognizant of what was told to him, but he still would not supply the required additional sample orsamples. He was choosing not to until he spoke to his lawyer. However, he could not provide the name of his lawyer. 43. In Cst. Bennett’s view, Scheuneman was being defiant. He was not intoxicated to a level where he could not understand. 44. When Scheuneman was told he was being charged with refusal, it did not seem to faze him.

Nor did he offer at that point to providea further sample of his breath. At 12:51 a.m., Cst. Bennett turned Scheuneman back over to Cst. O’Dacre. 45. Under cross-examination, Cst. Bennett confirmed that he had no prior dealings with Scheuneman. Most of the exchanges betweenthe officer and Scheuneman occurred in the breath room and cell areas. The officer was confident that their entire exchanges wererecorded in the breath room. Cst. Bennett could not say if their cell area conversations were captured.

There is video surveillancethroughout the new police detachment in Renfrew where Scheuneman was taken on December 4 - 5, 2017. The unequivocal refusal toprovide the second sample occurred in the cell area. It culminated with Scheuneman closing the cell door. 46. Cst. Bennett acknowledged that Scheuneman demanded his lawyer and his phone. However, Cst. Bennett was clear withScheuneman that although that was his desire, the police did not have his phone. Consequently, they did not have the means to put himin touch with his lawyer without the lawyer’s name. 47. Cst.

Bennett denied the suggestion put to him that Scheuneman was confused as to what was required of him. Cst. Bennett toldScheuneman he had to provide two or three samples depending on what Cst. Bennett required. 48. Cst. Bennett confirmed that after the first test, Scheuneman was returned to the detachment holding cell at the officer’s choosing. Cst. Bennett escorted Scheuneman there. 49. When Cst. Bennett was ready to have Scheuneman provide his second sample of breath into the approved instrument, the officerreturned to the cell area. Cst.

Bennett gave Scheuneman the opportunity to leave the cell to attend back at the breath room. The officerwarned Scheuneman that he would be charged with refusal if he did not return to the breath room. Cst. Bennett explained toScheuneman the consequences. Scheuneman did not exit the cell. He refused to go with the officer to provide the second sample as hewas told by Cst. Bennett he was required by law to do. Indeed, he shut the door and remained inside. 50. Cst.

Bennett agreed that the approved instrument, the Intoxilyzer 800C, required its operator to wait 17 minutes between the takingof the first sample and the second one. He confirmed as well that only four or five minutes elapsed from the time the second samplecould be taken to the time at which Cst. Bennett decided to charge Scheuneman with refusal. At 12:44 a.m., Cst. Bennett went to the cellarea to retrieve Scheuneman. At 12:49 a.m., the officer aborted the testing process for taking the second sample. 51. Cst. Bennett was clear that he was not overly annoyed or frustrated at Scheuneman’s behaviour.

Scheuneman on multiple occasionsasked for his lawyer. However, he could not provide a name or contact information for his lawyer. Issues: 52. The only issue raised by the defence at trial is whether there was sufficient evidence adduced by the Crown to satisfy me as trier offact that the person who the tow truck driver, Vanbeek, and the arresting officer, Cst. O’Dacre, believed to be the operator of the pickuptruck was properly identified as the accused before the court. The Law: Eye witness identification: 53. In R. v.

Turner, [2002] ONSC 4685 , Hill J reviewed the nature of eye witness evidence at paras. 33 to 38 as follows: “[33] Because of "the dangers inherent in eye-witness testimony" (R. v. Miaponoose (1996), (ON CA), 30 O.R.(3d) 419 (C.A.), at p. 421), eye-witness identification evidence "is inherently unreliable": R. v. Goran, 2008 ONCA 195 , [2008]O.J. No. 1069 (C.A.)(QL), at para. 19. The "inherent frailties of eye-witness identification evidence are well-established" and can "leadto wrongful convictions, even in cases where multiple witnesses have identified the same accused": R. v.

F.A. (2004), (ON CA), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 39. "[S]pecial caution is called for when assessing eye-witness identificationevidence": R. v. Hersi, [2000] O.J. No. 3995 (C.A.)(QL), at para. 14; R. v. Tat (1997), (ON CA), 117 C.C.C. (3d) 481(Ont. C.A.), at pp. 515-16. Accordingly, "although identification is a matter of fact, appellate courts will subject such findings to closerscrutiny than is generally the case with findings of fact": Goran, at para. 20; R. v. Harvey (2001), (ON CA), 160C.C.C. (3d) 52 (Ont.

C.A.), at para. 19. [34] The lay opinion evidence of a police officer is not entitled to any “special regard”: R. v. Graat, (SCC), [1982] 2S.C.R. 819, at p. 840. This is especially so where the officer’s evidence is unassisted by contemporaneous notes regarding a suspect’sphysical description. The importance of documenting an immediate and fulsome description in an eye-witness case has long beenrecognized: R. v. Atfield, 1983 ABCA 44 , [1983] A.J. No. 870 (C.A.)(QL), at para. 60.

Such a recording marker operates totemper suggestive influences as a criminal case progresses. [35] As a general rule, in-dock identifications, by an individual previously unacquainted with a suspect prior to the relevant event, arevalueless in terms of probative impact. Not only has time passed since the alleged crime, but also the physical set-up of the courtroom

recognizably presents the accused as the individual on trial and therefore as the suspect toward whom the finger of accusation haspointed: see R. v. Hibbert, 2002 SCC 39 , [2002] 2 S.C.R. 445, at para. 49; R. v. Cranham, [2012] ONCA 457, at para. 11; R. v.Manley, 2011 ONCA 128 , at paras. 20-2; R. v. Brown, 2009 ONCA 563 , at para. 23; R. v. Hasson, 2008 ONCA615 , at para. 7; F.A., at para. 47; R. v. Izzard (1990), (ON CA), 54 C.C.C. (3d) 252 (Ont. C.A.), at pp. 255-6. [36] Judicial experience with eye-witness identification evidence has established that all too often it has been the cause of wrongfulconvictions.

The underlying causes have been many and various including reliance upon an honest and convincing witness who ismistaken, suggestive and improper police techniques, witness contamination, poor opportunity to view a stranger suspect, the distortingeffect of stressful circumstances (i.e. weapon focus), unconscious filling in of gaps with erroneous characteristics, etc. [37] The notorious risk associated with eye-witness identification prosecutions tends to be accentuated where there is an absence ofconfirmation by forensic or other evidence. [38] In the instance of the purported identification of a stranger, as opposed to reported recognition of a person previously known orencountered by the witness, the court must proceed cautiously in assessing the evidence of an eye-witness claiming that the personobserved at a crime scene is, in his or her opinion, the person subsequently identified.” The elements of the offence of refusal: 54.

In R. v.

Drouillard, [2008] ONSC 4295 , Hebner J. articulated the components of a ‘refusal’ offence in an impaired drivingcontext at paras 18-20: “[18] I also agree with the reasoning of Paciocco J. where he said, at para. 57: Although the Crown must prove the mens rea of an unintentional failure of the test, as a matter of common sense if a device was shownto be in good working order, the accused was given a clear explanation of its operation, and a sufficient opportunity to provide a samplewas furnished, it can generally be inferred in the absence of evidence raising some question about the ability of the accused to complythat the accused intended to avoid furnishing a suitable sample: R. v.

Dolphin, 2004 MBQB 252 , [2004] M.J. No. 433 (Man.Q.B.). Even if the accused leads evidence suggesting that they tried to provide a sample, proof that a device was properly functioningcan be considered in evaluating the testimony. [19] In

summary then, the onus of proof is on the Crown to establish the following elements of the offence beyond a reasonabledoubt: 1) The existence of a lawful demand; 2)

An act or a series of acts that constitute a failure or refusal; and 3) An intention, as described in Soucy, to commit the act. That intention may be inferred in the circumstances described byPaciocco J. in Soucy, at para. 57. [20] If these elements are proven, an accused is still entitled to raise a reasonable excuse for noncompliance, but will bear apersuasive burden, on a balance of probabilities, in so doing. (See R. v. Colson, 2018 ONCJ 118 at para. 39-40).” Analysis: Has Scheuneman been identified beyond a reasonable doubt as the individual who refused the peace officer’s demand for a breathsample? 55.

The defence argued that no proper identification was made by the tow truck driver, Vanbeek, or by the arresting officer, Cst.O’Dacre, that Scheuneman was the driver of the truck, which went into the ditch. I disagree for the following reasons. 56. Firstly, Vanbeek referred to a young gentleman he saw when he responded to the call for assistance. When he arrived, there wasonly the gentleman and a lady on scene. The gentleman told Vanbeek he was the driver. He served to avoid an animal. He ended up inthe ditch as a result. Vanbeek then passed this information along to the arresting officer, Cst. O’Dacre.

Vanbeek did not, strictlyspeaking, need to identify Scheuneman to assist the Crown in proving its case. 57. Secondly, O’Dacre asked Scheuneman “What happened?” Scheuneman told the officer he swerved to avoid a porcupine. He thencould not get his truck out of the ditch. He provided a photo driver’s licence to Cst. O’Dacre. The licence set out the gentleman’s nameadjacent to the photo – “Scheuneman, Devin Alexander.” The photo equally bears an exact likeness to the young gentleman whoanswered to the charge before me. A photocopy of Scheuneman’s driver’s licence seized by Cst.

O’Dacre was, on consent, madeExhibit 1 on the trial. I am left with no doubt that the gentleman, who put his truck in the ditch, was Scheuneman. 58. Thirdly, in an unsolicited fashion, Cst. O’Dacre, while testifying, looked at Scheuneman and commented that he hoped he was notmispronouncing the accused’s name. There was absolutely no issue in the mind of Cst. O’Dacre that the person he saw in court as theaccused was the same person he dealt with at the roadside and police station on December 4 and 5, 2017. 59.

Fourthly, the dangers associated with the eye witness identification of a stranger do not exist in this case. In R. v. Turner, supra, atpara. 44, Hill J. observed that the officer who dealt with the motorist at the roadside did not have photo identification. Cst. O’Dacre did. Cst. O’Dacre had absolutely no reason to doubt that the young gentleman he was dealing with was a person by the name of DevinAlexander Scheuneman. The antics Scheuneman displayed at the police station, in my view, would have made him more memorable aswell to the police officers who were investigating him. Even nine months later, when Cst.

O’Dacre testified on September 13, 2018 in avery fluid manner, he looked at the accused before the court referring to him as Scheuneman. It is readily understandable why he could

have. 60 . Fifthly, following the detection of alcohol on Scheuneman’s breath and his failure of the approved screening device test, Cst. O’Dacre arrested Scheuneman. Cst. O’Dacre thus took Scheuneman to Cst. Bennett for further breath testing. Cst. O’Dacre told Cst. Bennett about the grounds for making a demand to Scheuneman to provide samples of his breath into an approved instrument. It is Cst. Bennett’s demand for breath samples with which Scheuneman refused to comply. At law, Cst. Bennett was entitled to rely on hearsay grounds, if need be, as a basis for making his breath demand (see R. v.

Vollett, [2010] ONSC 6929 at para 17). In my view, Cst. Bennett’s demand was superfluous, but valid, in any event. Cst. O’Dacre’s demand that Scheuneman supply samples of his breath directly into an approved instrument was a continuing one. In effect, Scheuneman had two demands made of him by two peace officers to do the same thing – provide suitable samples (i.e. plural) of breath. Both demands compelled Scheuneman to comply with the officers’ demands. He failed to do so. Conclusion 61 .

The defence did not challenge the basis for reaching a finding of guilt on the admissible evidence called at the trial aside from the issue of whether there was a proper identification of the accused. In my view, this tactic was wise. There was ample evidence to demonstrate that Scheuneman refused to comply with Cst. Bennett’s demand without any reasonable excuse. As indicated, Cst. Bennett’s demand was lawful. 62 . Scheuneman’s acts, or series of acts, constituted a failure or refusal on his part to comply with Cst. Bennett’s demand.

The only reasonable inference I can draw from Scheuneman’s conduct was his insistence he had already complied with Cst. Bennett’s demand was an error of law. Cst. Bennett was well within his legal right to demand a second sample of breath from Scheuneman, and subsequent ones, if Cst. Bennett deemed any of them unsuitable, or not in “good agreement”, following their analysis by an approved instrument. 63 . Scheuneman, by words and conduct, unequivocally refused to comply with Cst. Bennett’s demand. 64 . Accordingly, I must find him guilty of the offence with which he was charged.

DATED: May 1, 2019 ________________________________ March, M.G., J. :