R. v. Sarachandran, 2011 ONCJ 294

Citation: R. v. Sarachandran , 2011 ONCJ 294 ONTARIO COURT OF JUSTICE (Central East Region) BETWEEN: HER MAJESTY THE QUEEN and VIGITHAN SARACHANDRAN Accused JUDGMENT Counsel for the Crown Mr. Martin Dionne Counsel for the Defence Mr. David Locke KENKEL J., 1 . Mr. Sarachandran is charged with refusing a lawful demand to provide a sample into an approved screening device contrary to s.254(5) of the Criminal Code . 2 . In this case it’s alleged that the refusal was not outright but by conduct – the repeated failure to provide a suitable sample.

The Crown submits that considering the evidence as a whole the only reasonable inference is that the failure to provide a sample was wilful. 3 . I find that the Crown has failed to prove that allegation for the following reasons: - The evidence as to the demand was ambiguous. While the investigating officer referred to issuing the standard demand from the back of his notebook he did not record his conversation with the accused. A second officer 3-4 feet away heard the officer tell the accused, “I will need you to blow into the box”.

It’s not plain in what context that instruction was given, but it may reasonably have left the accused with the impression that the officer’s direction was a request and not a lawful demand. We don’t know because none of the conversation was noted. - The accused’s response as to whether he understood the demand was not noted.

- The investigating officer did not remember how many attempts the accused made nor was there any note of that number in his notebook. His use of an approximate number on this simple detail shows little real recollection of the testing process. - The investigating officer did not record or recall how long each attempt took. - The second officer, Constable Cadieux’s evidence helped with certain details, but it was not his investigation and he didn’t hear much of the initial interaction between the accused and the investigating officer. 4 .

The one sentence conclusory description of the testing process in the investigating officer’s notes leaves little support in the evidence for the Crown’s assertion that the circumstances are consistent only with a wilful failure to provide a sample. 5 . The charge is dismissed. Delivered at Newmarket, May 30, 2011 Hon. Justice Joseph F. Kenkel