R. v. Westerman, 2012 ONCJ 9

Citation: R. v. Westerman , 2012 ONCJ 9 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- JAMAAL WESTERMAN REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with failing to provide a breath sample for roadside testing, offence date May 30 2010. He defends the case both on substantive and Charter grounds. 2 . The facts can be briefly stated: At 3:56 am on May 30 the defendant was driving a car in a residential area of Brampton. He had two passengers, his wife and another male who it was later learned was being dropped off at a nearby home.

A police officer stopped the vehicle. She said it had been speeding, a point denied by the defendant, and she also wanted to do a sobriety check. There was a smell of alcohol coming from inside the car. When asked, the defendant admitted to having had one drink. The officer suspected that the defendant may have alcohol in his blood and decided to screen him. She did not have an ASD and called for one. A demand was made at 3:58. The machine arrived in four minutes, at 4:02. 3 . The defendant was given a mouthpiece sealed in plastic wrap and was directed to unwrap it and insert it into the device.

In doing so he accidentally dropped it on the ground (the testing was being conducted outside, between the vehicles). There was not a second mouthpiece so another device was summonsed. It arrived at 4:10. 4 . Several attempts were made to get a suitable sample from the defendant. The mouthpiece was inspected and tested. It was not obstructed. The machine readily received samples of the officer’s breath. The officer described the defendant as giving short pulsing breaths rather than the continuous flow required. 5 . At 4:20 am the defendant was arrested and charged with failure to provide a sample.

He was read his rights to counsel. He was held in the back of the police car, handcuffed, for about ½ hour then released on an appearance notice and permitted to leave in the same vehicle, now driven by the male passenger. 6 . The defendant is a resident of New Jersey. His mother lives in Brampton about five minutes away from where the defendant was stopped. The car was hers. The defendant was on his way to her home after being in downtown Toronto that evening. 7 . The defendant testified that he tried to provide samples but was unsuccessful. He was unable to explain why.

He did not claim to have any health issues. In fact, he is a robust young man who plays football for the New York Jets of the NFL. He said he was willing to go to the station to provide samples there. He was surprised when he was charged because up to that point the officer had repeatedly said that if he didn’t give a roadside sample he would be taken downtown for a “harder test”.

8. No recitation of rights to counsel was provided to the defendant until his arrest. The defendant had a cell phone as did his wife andpassenger. He said that if he had been told that he had a right to consult counsel before or during the roadside detention he would havedone so. “Forthwith” – the Big Shot argument: 9. It is first argued that the testing did not proceed “forthwith” – an argument that has intertwined substantive and Charterimplications. If it was not “forthwith”, the argument goes, it is not a demand within section 254(5); the refusal is not a crime: R v Grant[1991] 3 CR 139.

If it was not “forthwith”, the exception to the right to counsel does not apply and the detainee will have suffered abreach of 10(b). 10. “Forthwith” has been defined in relation to whether there existed a reasonable opportunity to consult counsel. The connection flowsfrom the logic that the suspension of the right to counsel in the roadside testing situation is a reasonable limit only because of therequirement that the testing occur “forthwith” and the impracticality of legal consultation within such a timeframe.

However where timeand circumstances are such that consultation is practical, the justification for the limit falls away as does the limit itself. [1] 11. It has been authoritatively determined that whether there was a reasonable opportunity to consult counsel will depend on anassessment of all of the circumstances in the case: R v Gill [2011] OJ No 3924 (Ont Sup Crt. Durno J). Counsel for the defendant relieson the unique personal circumstances of the defendant.

He argues that the defendant had a cell phone and is an NFL player who hadimmediate access to a posse of lawyers who in turn had connections with Canadian lawyers. In essence, counsel argues that thedefendant is a big shot, a man in a position of power and privilege (my characterization) that would have enabled him, more so thanothers, to almost immediately access legal advice. 12. In my view, this argument cannot be accepted.

While the case law says that the particular circumstances must be considered, I amfirmly of the view that principles of equality dictate that the circumstances must be limited to those circumstances that would becommon to any and all detainees in the circumstances presented, that is, essentially, the time passing until arrival of the screening deviceand the time of day.[2] At least the assessment cannot include circumstances that flow from the particular detainee’s wealth, power orconnections.

This principle and limitation was recognized in the earlier cases which rejected assessment based on detainee –specificfacts. In R v Smith (1996) (ON CA), 105 CCC (3d) 58 (Ont CA) Doherty J.A. wrote: • The [detainee's] second ground of appeal is premised on the contention that there must be a case-specific assessment of thejustification for the limitation on the [detainee's] right to counsel.

The [detainee] argues that even if s. 48 of the H.T.A. imposes ajustifiable limitation on his right to counsel, that justification disappears where, as here, the appellant, to Constable Stuckey's knowledge,had immediate access to a cellular phone. • …… • …. Individuals who can afford and choose to use cellular telephones do not have broader constitutional rights than the rest of us.The second ground of appeal fails. 13.

It is recognized that the jurisprudence has developed away from the strict approach in Smith, at least with respect to the possessionand availability of cell phones, now such a ubiquitous item as to be almost always at hand and therefore part of the common relevantcircumstances. But no case that I am aware of has gone so far as to support the submission that a detainee’s position and power shouldhave a bearing on his constitutional rights.

To the contrary the non-exhaustive list compiled by Durno J in Gill (supra para 32) ofcircumstances considered relevant by the authorities does not contain any circumstance of this kind. [3] 14. In any event, even if the defendant’s unique privileged circumstances are to be taken into account, it is my view that there was stillno reasonable opportunity to consult counsel, which includes not just making a call but also making contact and receiving legal advice Rv Torsney (2007) 2007 ONCA 67 , 217 CCC (3d) 571 (Ont CA). It was 4 a.m. The first machine arrived within 4 minutes of thedemand.

The time probably stops there, as a detainee cannot rely on delay caused by his own action, however inadvertent (dropping themouthpiece). Even stretching it to the arrival of the second machine at 4:10am (total 12 minutes), there was no reasonable opportunityfor anyone to consult counsel in the circumstances. Substantive Issue: 15. As outlined in the

summary of facts above, the defendant testified that he was trying to provide a sample but was unable to do so.He could not explain why. Is this a defence? If so, what burden of proof applies? 16. There is no disagreement in the case law that an inability to provide a sample will provide an answer to a refusal charge. There ishowever a disagreement as to whether it should be characterized as an issue of “reasonable excuse” or of a negation of mens rea.

Thedistinction is important because different burdens of proof apply – if it is a reasonable excuse, the burden is on the defendant on abalance of probabilities[4] otherwise, the burden is on the Crown. The distinction has particular significance in this case because thedefendant’s claim is rather thin. There is no explanation as to why he could not provide a sample. From his occupation, it can beassumed that he was in excellent condition, with superior lung capacity. The female police officer had no problem providing a sample norpresumably did the passenger who was allowed to drive the defendant home.

The officer said that the defendant was blowing contrary toinstructions – ie being deliberately obstructionist. Still, the defendant says otherwise and he is entitled to the benefit of reasonable doubton credibility. He presented as credible on the witness stand. There was no indication that he was impaired or evidence that he had hadmore than the one drink. His wife, also credible, supported him as to his consumption. If his consumption was modest as claimed andhis condition sober, he would have nothing to hide or reason to attempt to avoid testing.

I have a reasonable doubt – though barely so -that his failure to provide a sample was intentional. I am certainly not satisfied to any higher standard including a balance of

probabilities. 17. There is a line of cases dealing with this question in the specific context of a claim of inability to comply due to medical condition. Ithink there is no conceptual difference between those cases and the present case. Both are equally cases where the defendant is assertingthat his non-compliance with the demand was not intended, the only difference being that in the medical cases the defendant asserts areason for his inability to comply. The inability of the defendant to point to a possible reason makes his case weaker but does not in myview alter the essential nature of the defence. 18.

In R v Sullivan [2001] OJ No 2799 I discussed this issue and concluded that the proper characterization is one of intention, anelement of the offence, and when evidence puts the issue in play, the Crown bears the burden of proving intention beyond a reasonabledoubt. Some cases have disagreed with this view but, having given those cases careful consideration, I am not persuaded that I shouldchange the opinion I expressed in Sullivan.

I am encouraged in this in that the preponderance of more recent authority – includingdecisions from provincial Courts of Appeal and the Superior Court of Ontario - share the conclusion I reached in Sullivan: R v Lewko2002 SKCA 121 , [2002] SJ No 622 (Sask CA); R v Carmichael [2003] AJ 316 (CA);R v Gutierrez [2001] OJ No 3659 (OntS.C); R v Stanley [2003]OJ 2076. Further, I believe this view accords with general fundamental criminal law principle.

It appears to beaccepted that the mens rea of the refusal offence is that the failure to provide a sample be willful - voluntary[5] and intentional: seeKenkel Impaired Driving in Canada PP 142-3 and authorities cited. If that is so, then I find it impossible to understand how a denial ofhaving such intention can be anything other than a “defence” that goes to the elements of the offence which when it has an air of reality,must be negated by the Crown. 19.

By contrast, it is difficult to understand how a requirement that the defendant prove the absence of mens rea on a balance ofprobabilities can be consistent with fundamental principle or for that matter, compliant with the presumption of innocence guaranteed bythe Charter. The former case law that placed reliance on s794(2) of the Code can no longer be considered valid, given the more recentrestrictive

interpretation of that subsection in R v H.P. (2000) (ON CA), 143 CCC (3d) 223 (Ont CA). The handful ofcases still adhering to the “reasonable excuse” view (see R v Bichon [2003] OJ No 5840(CJ); R v O’hene [2003] OJ No 3829(CJ) purport to find support in the judgment of the Court of Appeal in R v Moser (1992) (ON CA), 71 CCC (3d) 165wherein Doherty JA confirmed that “reasonable excuse” refers to matters “outside of the elements of the offence”. With respect, I don’tsee how this supports the view that non-intentional failure comes under “reasonable excuse”.

Isn’t it just the opposite, since intention isan element of the offence? 20. In my opinion the law is accurately and succinctly stated by Gorman J. a prolific and thoughtful judge of the NewfoundlandProvincial Court in R v Sheehan [2003]N.J. No 57: In my view, the actus reus of this offence is the failure or refusal to comply with the demand. The mens rea element requires that thefailure or refusal to comply be intentional. Therefore, a person who fails to provide an appropriate sample despite genuinely attemptingto do so, will not have committed the mens rea of this offence.

It is important to keep in mind that this has nothing to do with whether ornot the accused had a reasonable excuse. 21. In

summary, it remains my view that a reasonable doubt as to whether the defendant’s failure to provide a breath sample was willfulor intentional provides a sufficient answer to the charge. I have such a doubt. The charge is dismissed. [6] January 11 2012 B Duncan J J. Sone, V. Aujula for the Crown P. Ducharme for theDefendant [1] While the logic of defining “forthwith” in relation to opportunity to consult counsel may be sound, certain practical difficulties arise:See discussion: R v Beattie [2009] OJ No 4121 para 15-16.