R. v. Downey, 2018 NSPC 24

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Downey, 2018 NSPC 24 Date: 20180627 Docket: 2823878; 2823879 Registry: Dartmouth Between: Her Majesty the Queen v. Gerald Timothy Downey Trial Decision Judge: The Honourable Judge Theodore Tax,Heard: November 15, 2017; February 14, 2018 and May 9, 2018, in Dartmouth, Nova ScotiaDecision June 27, 2018Charge: Section 253(1)(

a) and 254(5) of the Criminal Code of CanadaCounsel: S. Gerrard, for the Crown Counsel P. Planetta, for the Defence Counsel By the Court: [1] Mr. Gerald Downey is charged with impaired operation of a motor vehicle contrary to section 253(1)(

a) of the CriminalCode and failing or refusing to comply with a demand, without reasonable excuse, to forthwith provide samples of breath necessary toenable a proper analysis of the breath by means of an approved screening device (ASD) contrary to section 254(5) of the CriminalCode. The offences are alleged to occurred on or about December 13, 2014 at or near Middle Sackville, Nova Scotia. [2] Trial evidence was heard on November 15, 2017 and concluded on May 9, 2018. The Crown Attorney and Defence Counselagreed to file written closing submissions and dates were set for the filing of briefs.

The Court indicated that the trial decision would berendered on June 27, 2018. Positions of the Parties: [3] It is the position of the Defence that there is no evidentiary basis for the impaired driving charge as there is little or noevidence of any indicia of impairment and there was no evidence of any bad driving.

Defence Counsel submits that based upon R. v.Stellato, (SCC), [1994] 2 SCR 478 the Crown has not established, beyond a reasonable doubt, some degree ofimpairment in the operation or care or control of a motor vehicle from slight to great. [4] As for the second charge, Defence Counsel submits that the Crown must establish, beyond reasonable doubt, that Mr.Downey either failed or refused to provide an ASD sample as the actus reus of the offence and that he had the mens rea to do so, in thathis failure to provide a sample of breath for analysis was intentional. It is the position of the Defence that Mr.

Downey did notintentionally fail to provide a sample of his breath for analysis, but rather, he made several good-faith attempts to provide a sample, butafter four attempts, he was charged by the police officer. Defence Counsel submits that the police officer created an “artificial yardstick”,that is, he was only prepared to allow four attempts to provide a suitable sample before he charged Mr. Downey with failing to provide asample. In addition, since Mr.

Downey had advised the police officer that he suffered from asthma, the Court ought to find that he hadestablished a “reasonable excuse” on a balance of probabilities. [5] The Crown Attorney submits that the police officer gave Mr. Downey clear instructions on how to provide a sample of breathinto an ASD and that he was charged after failing or refusing to do so after the fourth attempt. It is the position of the Crown that, sinceMr.

Downey stated after the second attempt to provide a sample that he had asthma as a reason for not being able to provide a sample foranalysis, there would be a persuasive burden on him to satisfy the Court, on a balance of probabilities, that he had a reasonable excusefor failing to do so. Since there were no noted indications from any of the police officers of any medical distress or a physical condition

that would have prevented Mr. Downey from providing a breath sample for analysis, his statement without any supporting evidence is insufficient to meet the persuasive burden established in R. v. Goleski , 2015 SCC 6 . FACTUAL BACKGROUND: [ 6 ] During the early morning hours of December 13, 2014, members of the Halifax Regional Police and the RCMP were conducting one of their Operation Christmas roadside checkpoints for impaired drivers or other offences on Windmill Road at the bottom of the Magazine Hill, near Akerley Boulevard. Const. William Diaczenko and Const.

Marshall Williams of the Halifax Police were working with Const. James White of the RCMP at that checkpoint. They had parked their police vehicles on either side of the road and were checking vehicles proceeding in both directions. [ 7 ] Around 12:15 A.M., Const. Diaczenko was checking cars going toward Dartmouth from Bedford and Sackville. At that time, there was a half ton GMC pickup truck was in the line of vehicles. Const. Diaczenko approached the truck and first checked it to see whether it had an up-to-date inspection sticker.

He noticed that the sticker on the vehicle had expired, so he asked the driver of the truck to pull over to the side of the road. Mr. Gerald Downey was identified as the driver and only occupant of that vehicle. [ 8 ] Const. Diaczenko said that the truck pulled over to the shoulder of the road and stopped without incident. He motioned the driver to roll down the window and he recollected that it only went down a little above halfway because there was a block of wood in the window. Const. Diaczenko asked the driver to produce his driver’s licence, the vehicle registration and the insurance for the vehicle.

He had a hard time hearing what the driver was saying to him, because the driver of the truck was speaking in a low, almost muffled voice and continued to face forward rather than turning to speak directly to the police officer. [ 9 ] Mr. Downey was identified by a Nova Scotia Identification Card, however, Const. Diaczenko stated that Mr. Downey did not produce any of the other documents that he had requested and he was still having a difficult time understanding what Mr. Downey was saying to him. As they were engaged in that discussion, Const.

Diaczenko detected an odour of alcohol coming from his mouth, that was not a strong smell, it was between a faint and a moderate odour of alcohol. The only other observation made by Const. Diaczenko was that Mr. Downey was mumbling when he spoke and did not face him when he was speaking. However, Const. Diaczenko believed that, based upon the odour of alcohol and the fact that Mr. Downey was operating a motor vehicle with some level of alcohol in his body, he had a reasonable suspicion and read the ASD demand. [ 10 ] After reading the ASD demand, Mr.

Downey confirmed that he understood the demand and was prepared to comply with it. According to Const. Diaczenko, Mr. Downey stepped out of the vehicle and he escorted him across the roadway to the police cars in the centre of the road. [ 11 ] Const. Diaczenko did not make any additional observations relating to Mr. Downey as he exited from the vehicle. However, as they approached the police cars in the centre of the road, Mr. Downey stumbled on a smooth road surface and Const. Diaczenko reached to hold him, so he wouldn’t fall. The police officer said that Mr.

Downey had a car key and several keys on a ring in his right hand and when his hand came up, the keys nearly hit him in the face. As a result, the police officer “took control” of Mr. Downey, placed his hands behind his back and handcuffed him. He added that Const. Williams was standing nearby when this occurred. [ 12 ] Const. Diaczenko placed Mr. Downey in the back seat of Const. Williams police vehicle, but left the door open. At that point, he once again read the ASD demand and Mr. Downey said that he would comply with the demand. Then, Const. Diaczenko said that he presented the Alcotest 7410 ASD to Mr.

Downey with a new, sterile plastic mouthpiece and gave brief instructions on how to provide a breath sample. He told Mr. Downey to take a deep breath, put his lips over the mouthpiece, not break the seal with it and then continue to blow into the mouthpiece without stopping until instructed to do so. Const. Diaczenko believed that Mr. Downey understood the instructions, since he did not ask any questions. [ 13 ] Const. Diaczenko said that Mr. Downey breathed in, put his lips over the mouthpiece and began to give a sample.

However, there was not enough air for a sufficient sample and there was only a brief audible tone to indicate that air was passing through the mouthpiece into the ASD. He added that the tone started and stopped and from his experience, when the tone stops, it indicated that no air was getting into the device. Const. Diaczenko did not notice anything out of the ordinary in terms of Mr. Downey’s physical condition. [ 14 ] After the first attempt to provide a sample, Const.

Diaczenko again explained the instructions in the same manner as before the first attempt and the result of the second attempt was a similar start and stop of the audible tone. The officer did not note any medical distress on the part of Mr. Downey and as far as he was concerned, nothing was out of the ordinary. Mr. Downey was given a third and fourth opportunity, but the results were the same as before, After the fourth attempt, Mr. Downey was placed under arrest for refusal. [ 15 ] Const.

Diaczenko confirmed that he was certified as a qualified operator of that ASD, he was satisfied the device was in proper working order and that it had been recently calibrated. Const. Diaczenko added that after Mr. Downey was arrested, he provided his Charter rights and police caution. Shortly thereafter, RCMP officer Const. White approached and had a brief interaction with Mr. Downey, which he did not hear. Then, Const. White used a new mouthpiece and blew into the same ASD which Mr. Downey had made the four attempts. From there, Mr. Downey was transported to police headquarters by Const.

Williams and had an opportunity to speak with a lawyer. [ 16 ] On cross-examination, Const. Diaczenko recalled issuing three

summary offence tickets to Mr. Downey, but he did not observe any issues driving the truck as it approached the checkpoint or when it moved over to the shoulder of the road and stopped. He agreed with Defence Counsel that he never spoken to Mr. Downey before and had no idea whether he always had difficulty talking or regularly mumbled when he spoke. He added that when he issued the

summary offence tickets he usually makes observations about people’s reactions and there was nothing unusual, other than Mr. Downey continuing to look forward. Const. Diaczenko stated that he only noticed the faint to moderate odour of alcohol on Mr. Downey’s breath towards the end of their conversation. Apart from that, he had no reason to believe Mr. Downey was operating the vehicle under the influence of alcohol. [ 17 ] Const. Diaczenko said that after Mr. Downey was placed in handcuffs, he was cooperative and after being asked whether he

would provide breath samples again, he indicated that he would. He confirmed that Mr. Downey appeared to understand his instructions as to how to provide a suitable breath sample and that the first test ended because there was not a steady tone, but rather, a sporadic tone. He added that he always tells a person to keep blowing and not to stop until he tells them it’s okay to do so. [ 18 ] When the ASD indicated that it was ready to obtain another sample of air, he told Mr. Downey to take a deep breath, which he did and, blow into the mouthpiece for the second test.

He gave the same words of encouragement to keep blowing on the second test as well. After the ASD reset for the third attempt, the same thing happened, there was a broken tone, despite the fact that Const. Diaczenko gave Mr. Downey the same words of encouragement. Between the third and fourth test, he completely repeated the instructions for Mr. Downey and on the fourth attempt, there was an audible tone that went on and off to indicate that some breath had gone into the device, but not enough for a suitable sample. [ 19 ] Const. Diaczenko confirmed that he did not make any observations that Mr.

Downey intentionally did not blow into the device. In other words, he did not see Mr. Downey loosen his lips around the mouthpiece or blow off to the side. He agreed that there was a sporadic tone to indicate that air was going through the mouthpiece but it would go on and off. Const. Diaczenko confirmed what he had earlier said on direct examination, that is, that his general practice has always been with these devices to only allow a person four attempts. He added that that has been his “rule of practice” for years and that it had “nothing to do with Mr. Downey’s case.” Const.

Diaczenko confirmed that his initial contact with Mr. Downey occurred around 12:13 A.M. and that he was charged with refusal at 12:24 A.M. on December 13, 2014. He agreed that he had been with Mr. Downey for about ten minutes to explain how to blow into the ASD and his four attempts. He confirmed that he never gives more than four attempts, but added that he would offer less than four attempts if the person had specifically stated by words or actions that they refused to provide a sample. [ 20 ] Const. Diaczenko confirmed that Mr. Downey was cooperative during the four attempts, but did not recall Mr.

Downey saying that he was willing to keep trying. He also confirmed that he did not warn Mr. Downey after the first unsuccessful attempt to provide a sample that his practice is only to give four attempts to provide a sample and therefore, he would only have three more attempts. Const. Diaczenko did not recall giving any warning after the second attempt either. He also added that he did not warn Mr. Downey after the third attempt that if he did not provide a suitable sample of breath on the fourth attempt, he would be charged with refusal. [ 21 ] Const.

Marshall Williams has been a long-time member of the Halifax Regional Police, who was one of the police officers at the checkpoint on Windmill Road near Akerly Blvd. in Dartmouth, NS. on December 13, 2014. Const. Williams recalled meeting Mr. Downey at a pickup truck when Const. Diaczenko called him over to assist. As Const. Diaczenko was speaking with Mr. Downey, Const. Williams was close enough to detect a “mild odour” of alcohol on Mr. Downey’s breath. He was about two or three feet away from Mr. Downey’s vehicle while Mr. Downey was seated in the driver’s seat. He believed that Mr.

Downey’s speech seemed “a bit slurred.” [ 22 ] After the ASD demand was read by Const. Diaczenko, Const. Williams heard his colleague explain to Mr. Downey how the ASD works and how he should blow into the device. Const. Williams recalled that this conversation and the demand occurred while Mr. Downey was still seated in the pickup truck. Mr. Downey attempted to blow into the device four times, but was only able to give a short breath and stopped, so the ASD registered an error code. Const. Williams was not sure whether Mr.

Downey remained seated in the truck or was standing outside the truck when he made the four attempts to blow into the ASD. Const. Williams did recall that during the four attempts, Mr. Downey blew short breaths and then stopped, despite Const. Diaczenko’s encouragement to keep blowing. [ 23 ] Const. Williams confirmed that he is also qualified as a breath technician and from his vantage point, it looked like Mr. Downey did not want to provide a sample. He stated that Mr. Downey was told on several occasions how to blow and to blow harder and longer. Mr.

Downey did not appear to be in any physical distress, but rather, appeared to be healthy and able. After failing to provide a suitable sample of breath for analysis, Const. Williams said that Const. Diaczenko took the keys to the vehicle and escorted Mr. Downey to his police car. As they walked, it appeared that Mr. Downey staggered, and when Const. Diaczenko reached out to assist him, Mr. Downey said don’t touch me and pulled away from the two police officers. It was at that point that Const. White came over to assist in restraining Mr. Downey. [ 24 ] Const. Williams confirmed that Mr.

Downey was placed in the back of his police car and was handcuffed at that time. Then, Const. Diaczenko gave Mr. Downey another opportunity to blow into the ASD. He made three or four more attempts to blow into the ASD, but did not provide a suitable sample. Const. Williams did not recall if he heard any sounds from those attempts, but added that his memory of the events was not really 100%, as the incident occurred years ago. [ 25 ] On cross-examination, Const. Williams confirmed that that the first series of four attempts to blow into the ASD started around 12:20 A.M.. Thereafter, Const.

Williams stated that Mr. Downey was given the opportunity to provide four more attempts while seated in the truck or standing outside the truck. He agreed that even though Mr. Downey was given that opportunity, Mr. Downey had already been placed under arrest for refusal. [ 26 ] Const. James White of the RCMP was at the checkpoint on Windmill Road on December 13, 2014. He heard a commotion and came over to assist Const, Diaczenko and another officer in restraining the man. Then, Const. Diaczenko asked him to get his ASD from his vehicle. Prior to the man blowing into the ASD, Cont. White heard Const.

Diaczenko tell the man how to blow into the device and to continue blowing until told to stop. He was not close enough to the man, seated at the back of a police car to detect any odour of alcohol. Const. White said that the person attempted four times to provide a sample and after the fourth time, Const. Diaczenko informed the man that he was under arrest. Const. White then took the ASD, put a new mouthpiece on it and provided a sample of his breath to show that the device was in proper working order. [ 27 ] Our cross-examination, Const. White confirmed that he had given the ASD to Const.

Diaczenko and he was about five feet away from him when the man made four attempts to provide a breath sample. [ 28 ] Mr. Downey testified that he is now fifty-six years old and on the evening in question, he had not consumed any alcohol. He added, that, at that time, he had a chest infection, had been prescribed penicillin, was told not to drink alcohol while on that antibiotic and did not drink any alcohol that day. That evening, he was visiting with friends in Lower Sackville and a lady became aggressive with him, so he decided to leave.

He confirmed that he was driving a 2001 Sierra pickup truck, green in colour when he came to the police

checkpoint. Mr. Downey said that he blew four times into the ASD, but he kept saying he could not blow hard enough because he hadasthma. [29] While he was testifying, he spoke in a low voice and was asked to repeat or clarify what he was saying, adding that he couldnot talk much louder when he met with the police officers on Windmill Road. He stated that, both then and now, he uses a puffer in themorning and at night, adding that his puffer was in the truck that evening. At that time, he had a clogged chest and it was hard to breathe.Mr.

Downey added that he tried as hard as he could to blow into the ASD, but he did not remember hearing any noises or sounds. [30] Mr. Downey maintains that he was asked to blow into the ASD while he was standing on the side of the road between a policevehicle and his truck. He said that after the fourth attempt, he was told he had not blowing hard enough and then the police officercharged him with refusal to provide a breath sample. [31] On cross-examination, Mr. Downey stated that he had borrowed the vehicle from his sister to visit with friends in LowerSackville.

He confirmed that he drove down Magazine Hill towards Dartmouth and saw the police cars on the side of the road, but theydid not have their emergency lights activated. Mr. Downey said that he did roll the window all the way and that is when the officer toldhim that it was a roadside spot-check. When the police officer shined the flashlight into the cab of the truck and asked for his documents,Mr. Downey stated that he did not have a licence and that he was not able produce the other documents. [32] Mr.

Downey maintained that he had not consumed any alcohol that evening and that there was no alcohol in the truck or in hissystem. In response to the statement made by the police officer that he detected a faint to moderate odour of alcohol, Mr. Downeyspeculated that the only thing he could think of was that there was a scented green leaf on rear-view mirror of the truck. Mr. Downeystated that he looked straight ahead because the window was open, it was raining and he did not want to get wet. He added that he doesnot speak in a loud manner and that is the way he talked then and now.. [33] Mr.

Downey confirmed that the police officer asked him to get out of the truck and to blow into the ASD. Mr. Downey deniedstumbling after he got out of the truck, but said that as he was walking towards a police car, the RCMP officer grabbed him and threwhim up against the truck. After that, the Halifax Regional Police officer gave him the mouthpiece for the ASD and he blew into it. Heconfirmed that he was agitated as a result of the police officer “putting his hands on him.” [34] According to Mr. Downey, the ASD was offered to him between the police car and the truck that he was driving.

He blew intothe ASD four times, but could not get a signal due to his asthma. He confirmed that he understood the nature of the demand and hefollowed the instructions that he had been given by the police officer. Mr. Downey maintained that he did not refuse to provide a samplebecause he blew four times into the device. He maintained that the officer told him that he needed to blow harder, not longer. Mr.Downey confirmed that after the second attempt, he told the officer that he had asthma.

ANALYSIS: [35] In any trial of the criminal offence, the accused person is presumed to be innocent unless and until the Crown has established,beyond a reasonable doubt, that he or she committed the offence in question. The onus of proof of the essential elements of the offencerests with the Crown and does not shift to the accused. In deciding whether the Crown has proved its case to the criminal standard, a trialjudge must consider the entirety of the evidence and not conduct a piecemeal analysis of the evidence.

In that way, the trial judgeexamines the cumulative effect of all of the evidence, in order to determine whether the guilt of the accused person has been establishedbeyond a reasonable doubt. [36] In R v. Lifchus, (SCC), [1997] 3 SCR 320 and R v. Starr, 2000 SCC 40 , [2000] 2 SCR 144, theSupreme Court of Canada has pointed out that the proof beyond a reasonable doubt does not involve proof to an absolute certainty, but itis closer to absolute certainty than it is to a balance of probabilities.

However, it is not to be based on imaginary or a frivolous doubt.Moreover, a judge may conclude that a reasonable doubt may arise from the evidence presented during the trial or from the absence ofevidence. [37] When an accused person testifies, as Mr. Downey did in this case, a trial judge must also assess the credibility and reliability ofhis evidence, in applying the reasonable doubt standard. In R v. WD, (SCC), [1991] 1 SCR 742, the Supreme Court ofCanada adopted a three-step analysis to evaluate evidence in this situation.

In the first step, the trial judge must determine whether thetestimony of the accused is believed and if so, an acquittal must be entered. If not, then the second step requires the consideration by thetrial judge whether the accused person’s evidence results in the judge having a reasonable doubt as to the accused persons guilt. If so, anacquittal must be entered.

However, if the answer to the second question is no, then the final step in the analytical process is to requirethe trial judge to consider the totality of the evidence presented to determine if the accused’s guilt has been proven by the Crown beyonda reasonable doubt. [38] In this case, there was no specific challenge to whether Const. Diaczenko had reasonable grounds to suspect that Mr. Downeyhad some alcohol his body while he was operating a motor vehicle within the previous three hours pursuant to section 254(2)(

b) of theCriminal Code. Based upon the fact that this was a roadside checkpoint set up by police during the holiday period, prior to Christmas,2014 and a couple of the police officers have testified that they detected a faint to moderate odour of alcohol coming from Mr. Downey’sbreath, I am satisfied that Const. Diaczenko had the requisite reasonable suspicion to make an ASD demand for Mr.

Downey to forthwithprovide a sample of his breath for analysis. [39] However, I also find that there was absolutely no evidence of any erratic driving or any other evidence of indicia of impairmentupon which the Court could conclude, beyond a reasonable doubt, that Mr. Downey’s ability to operate a motor vehicle was impaired byalcohol during the early morning hours of December 13, 2014.

Based upon that lack of evidence with respect to the section 253(1)(a)Criminal Code charge, I agree with Defence Counsel that the essential elements of the impaired driving charge as established in R, v.Stellato, (SCC), [1994] 2 SCR 478 have not been established beyond a reasonable doubt. In those circumstances, I findMr. Downey not guilty of the impaired driving charge contrary to section 253(1)(

a) of the Criminal Code. The Failure or Refusal to Comply With the ASD Demand:

[40] At the outset, it is important to note that this case does not involve the issue of whether there was an express refusal to providea breath sample. This is a case of failing to provide a suitable sample, which must be determined on the basis of whether or not the Courthas established, beyond a reasonable doubt, the requisite mens rea or intention necessary to constitute the offence. [41] With respect to the actus reus, I find that there is no dispute in the evidence that Mr.

Downey was not able to provide a suitablesample of his breath, forthwith, for proper analysis by an ASD after making four attempts to do so. Const. Williams had stated that herecalled Mr. Downey may have had as many as eight attempts to provide a sample of his breath but acknowledged that, without havingmade any notes of an incident, he did not have a 100% recall of the events which occurred almost three years ago. Having said that, Ifind that the evidence of Mr. Downey is consistent with the evidence of Const. Diaczenko and Const.

White that he was charged with theoffence after four unsuccessful attempts to provide a suitable breath sample for analysis by the ASD. [42] In my review of the relevant case law, there appears to be some dispute as to whether the Crown is required to establish thatthere was a specific intention to not comply with the demand to provide a sample of breath for analysis. This dispute in the case lawappears to divide around the issue of whether the failure or refusal to provide suitable samples of breath for analysis was a willful ordeliberate act by the accused. In R v.

Lewko, 2002 SKCA 121, at para. 9, and many other cases which have followed it, the Court ofAppeal ruled that the definition of the mens rea for this charge, was that “the defendant intended to produce that failure.” [43] In this case, there is no evidence of a clear statement of refusal or very specific actions from which the only reasonableinference is that the accused person has refused to provide breath samples. None of the three police officers who were apparently close toMr. Downey, when he blew into the ASD four times made any observations about feigned efforts to blow into the device.

There is noevidence that Mr.

Downey faked closing his lips around the mouthpiece or that he covered the mouthpiece in some way while feigningan effort to provide a breath sample, nor did he exaggerate puffing his cheeks out to make it look like he was really taking a deep breath,but then blow lightly. [44] Therefore, the key question is whether the Court is satisfied that any words spoken by the accused or any actions taken orinactions by the accused person are sufficient to establish, beyond reasonable doubt, the requisite mens rea or mental element of theoffence of failing to provide a suitable sample of breath for analysis.

In making that determination, it is important to note that therelevant jurisprudence may not have established a clear bright line between the evaluation of the evidence relating to whether the mensrea was established beyond a reasonable doubt based upon the direct evidence and reasonable inferences from the evidence, withoutconflating that issue with the issue of whether there was a reasonable excuse which may have been advanced by the accused for beingunable to provide a suitable sample. [45] In those circumstances, the contentious question is whether the accused’s reason for being unable to provide a suitable sampleis relevant to the mens rea or should be considered separately as a possible “reasonable excuse” if the Court concludes that the Crownhad established the requisite mens rea.

If it relates to a reasonable excuse, then the accused person bears the onus to establish that excuseon a balance of probabilities. On the other hand, if the Court is able to maintain a “bright line” distinction between the essential elementsof the offence and a possible “reasonable excuse,” then the onus is on the Crown to establish the mens rea beyond a reasonable doubtbefore there is any consideration of whether or not the accused person has established a “reasonable excuse.” [46] In R. v.

Bonang, 2016 NSPC 73, my colleague Judge Hoskins agreed with and fully endorsed the reasoning of Justice Paciocco(as he then was) in R. v. Soucy, 2014 ONCJ 497 at paras. 53-55: 53. I am mindful that the application of this mens rea obscures the distinction between “refusal” and that “failure” given that anintentional failure is, in substance, a form of refusal: R, v. Weave, [2005] O.J. No. 2411 (CA). This is not, however, problematic.

Byincluding both terms Parliament has made it clear that the obstruction of an officer’s efforts to secure information relevant to alcoholimpaired driving offenses need not be openly defiant. 54. I am also mindful that applying an “intention” mens rea removes all claims of “inability to produce a sample” from the reasonableexcuse category, meaning that the “reasonable excuse” category has relatively little application in the case of “failures.” It still has animportant function to perform in cases of refusal, however, which explains its inclusion: see for example, R. v.

Greenshields, supra, andthe many cases digested in Joseph P Kenkel, Impaired Driving in Canada [2012/2013 Edition], (Toronto: Lexis/Nexis, 2012). 55. Finally, I am aware that the effect of recognizing a mens rea of intention increases the burden of proof on the Crown, leaving it todisprove beyond a reasonable doubt that a failure was intentional, rather than calling on the subject to establish an inability to comply ona balance of probabilities or at least discharge an evidential burden.

This, in turn, makes it easier for individuals who have been drivingunder the influence to avoid detection by feigning inability. These concerns should not be exaggerated, however. The first is nothingmore than a mundane application of the presumption of innocence.

Nor is the corollary consideration – the prospect that feigninginability might be encouraged – a reason that a court can use for deviating from established interpretive principles relating to moral fault.The way that courts address feigning is to evaluate the credibility of such claims when they are made, in light of all of the evidence, notby convicting individuals even in the face of reasonable doubt because of fear that applying ordinary principles of law will enable othersto avoid detection. [47] In R. v.

Soucy, supra, at para. 57, I also note that Paciocco J. stated that, although the Crown must prove the mens rea of anintentional failure of the test, as a matter of common sense, if the device was shown to be in good working order, the accused was givena clear explanation of its operation, and a sufficient opportunity to provide a sample was furnished, it can generally be inferred in theabsence of evidence raising some question about the ability of the accused to comply, that the accused intended to avoid furnishing asuitable sample: R. v. Dolphin, 2004 MBQB 252 .

Even if the accused leads evidence suggesting that they had tried to provide asample, proof that a device was properly functioning can be considered in evaluating that testimony. [48] I also agree with and endorse Justice Paciocco’s comments in Soucy, supra, relating to the issue of mens rea for the offence ofrefusal or failure to provide a sample for analysis contrary to section 254(5) of the Criminal Code, and that the offence requires theCrown to establish that the accused must have intentionally refused or failed to provide a breath sample.

In other words, the accusedmust have refused or failed to provide a breath sample “on purpose.”

[ 49 ] In this case, I find that Mr. Downey told the police officers, after the second attempt to provide a breath sample that he had asthma. However, I also find that the evidence clearly established that Mr. Downey kept trying, for at least two more attempts, to provide a sample of his breath. Furthermore, I also find that Const.

Diaczenko stated that his practice is to only provide a maximum of four attempts to provide a suitable sample of breath for analysis and that after the fourth unsuccessful attempt, he charges a person with failing or refusing to provide a sample of breath following a demand. [ 50 ] Defence Counsel has submitted that the charge of failure to provide a sample of breath for analysis should be dismissed because of the contradictory evidence provided by the police officers and the arbitrary definition of refusal created by Const. Diaczenko. He also submits that the fact that asthma was mentioned by Mr.

Downey relates more to an absence of intentional failure to comply with the demand as opposed to a situation where the accused has essentially refused to comply with the demand by putting forth a “reasonable excuse” which Mr.

Downey would have to satisfy on a balance of probabilities. [ 51 ] In this case, the Crown Attorney has submitted that if an accused person is charged with failing or refusing to comply with the demand to provide a sample of breath for analysis pursuant to section 254(5) of the Criminal Code , they may avoid conviction for failing or refusing to comply with that demand if they had a “reasonable excuse” for having done so. In R. v. Goleski, 2015 SCC 6 , affirming 2014 BCCA 80 , the Supreme Court of Canada confirmed that section 794(2) of the Criminal Code , which only applies to

summary proceedings, places a “persuasive burden” on the defendant to prove an exception or an excuse prescribed by law, such as a “reasonable excuse” for failing to comply with the ASD demand. [ 52 ] Based upon the submissions of counsel and the relevant case law, I find that the Court should first analyse whether or not the Crown has established the actus reus and the requisite mens rea beyond a reasonable doubt. Here, there is no dispute that Mr.

Downey did not provide a suitable sample of his breath for analysis after four attempts, but the dispute between the parties is whether he intentionally failed to do so. In this case, there was no evidence of any words being spoken or specific actions taken from which the Court could reasonably infer that Mr.

Downey had refused to provide a sample to demonstrate that he had absolutely no intention whatsoever to even attempt to provide a sample of his breath for analysis. [ 53 ] With respect to the analysis of the facts and circumstances to determine the issue of whether the Crown has established the mens rea of an intentional failure to provide a sample of his breath for analysis, it is important to evaluate all of the testimony during the trial. First, I accept the evidence of Const.

White that when he blew into the ASD through the mouthpiece, there was a tone to indicate that the ASD was receiving air and the analysis confirmed no alcohol in that breath sample. I find that the evidence of Const. White demonstrated that the ASD was working properly through its internal checks and that there were no obstructions to the mouthpiece by his use of a sterile mouthpiece to blow into the device. [ 54 ] In addition, I find that the explanation of how to blow into the ASD by Const. Diaczenko, the coaching by Const. Diaczenko telling Mr. Downey to continue blowing until he was told to stop and Mr.

Downey’s own evidence leaves no doubt whatsoever that Mr. Downey understood what he was expected to do with the ASD. There is no question that the Crown has established the actus reus of this offence as there is no dispute between the parties that after four attempts to provide samples of his breath for analysis, none of those attempts resulted in the ASD being able to obtain a suitable sample for analysis. [ 55 ] Given the evidence of the Const. Diaczenko and Mr. Downey, I am satisfied that Mr. Downey was only provided four opportunities to provide a suitable sample of his breath for analysis.

However, I should also note that there was contradictory evidence provided by Const. Williams as he recalled Mr. Downey having as many as eight attempts to provide a suitable sample of breath, the first four samples being taken either while seated in the truck or just outside his truck as compared to the evidence of Const. Diaczenko and Mr. Downey that only four attempts were made while Mr. Downey was seated in the back seat of Const. Williams’ police car. Given the fact that key aspects of Const. Williams evidence were inconsistent with the evidence of Const. Diaczenko and Mr.

Downey as well as the fact that Const. Williams acknowledged that his memory, without notes, of this incident, was not 100%, I cannot accord his evidence any significant weight. In addition, I cannot accord any significant weight to his conclusory statement that it appeared to him that Mr. Downey did not want to provide a sample of his breath in the ASD. [ 56 ] I find that Mr. Downey was only provided with four opportunities to provide a suitable sample of his breath.

I also find that he was never warned after any attempt, that if he failed to provide a suitable sample after a fourth attempt, he would be charged with failing or refusing to provide a suitable sample of his breath for analysis. In other words, I find that it would have been reasonable for Const. Diaczenko to warn Mr. Downey that his jeopardy was potentially changing and that if he was feigning his efforts to provide a sample of breath, he was on notice that this would be his last opportunity to do so. [ 57 ] Furthermore, I also find that Const.

Diaczenko’s “rule of practice” that he only provided four opportunities at a maximum to provide suitable samples of breath, was an arbitrary or “artificial yardstick” which did not take into account the actual efforts made by Mr. Downey or any specific observations of feigned attempts or other intentional ways to not comply with the demand. [ 58 ] Mr. Downey testified that he never intentionally failed to furnish suitable samples of his breath and stated that he was making his best efforts to do so. Clearly, his evidence and Const.

Diaczenko’s evidence established that some air was going through the mouthpiece into the device as there was a tone that the device was receiving some air, but it was a broken tone to indicate that there was not enough air for analysis, before Mr. Downey took another breath and continued blowing. After the second attempt, he told the officer that he had asthma and he maintained during his trial testimony that he had a puffer in the truck which could have been utilized, if anyone had asked him to use it before making his next attempt to provide a suitable sample. Unfortunately, Mr.

Downey did not have the presence of mind to make that request and the police officers with whom he was interacting did not ask him if he had a puffer and whether he wished to use it before making a further attempt. [ 59 ] In addition to stating that he suffered from asthma, Mr. Downey also maintained during his trial testimony that on that evening in question, he was suffering from a chest infection which might also explain why he had a shortness of breath at that time. Since Mr.

Downey maintained that he had not consumed any alcohol because he was under doctor’s orders not to do so while he was taking the penicillin to treat the chest infection, I find that, in those circumstances, it would be reasonable to infer that he would have no reason to be concerned about the results of the ASD when he said that he would comply with the police officer’s demand.

[60] Given the evidence of Mr. Downey, the Court is required to apply the three-step analysis for triers of fact as outlined by theSupreme Court of Canada in R v. W.(D.) (SCC), [1991] 1 SCR 742. [61] In the final analysis, while I do not necessarily accept Mr. Downey’s evidence, I find that his evidence and the totality of thecircumstances of this case leaves me in reasonable doubt as to whether he intentionally failed to comply with a lawful demand to providea sample of his breath into an approved device. Given Mr.

Downey’s evidence that he had not consumed any alcohol that evening andthe fact there was little or no evidence of any indicia of impairment proffered, I cannot reject Mr. Downey’s evidence simply based uponthe police officers’ conclusory statements. [62] Furthermore, I find that the decision to charge Mr. Downey with failing or refusing to provide a suitable sample of his breathfor analysis by an approved device was based upon the police officer’s stated “rule of practice” not to allow any more than four attemptsto provide a sample of breath for analysis. I find that the decision to charge Mr.

Downey was based upon the officer’s personal “rule ofpractice” which amounted to an arbitrary and “artificial yardstick” without any warnings of possible jeopardy and without taking intoaccount the individual circumstances of Mr. Downey. [63] In addition, I find that the totality of the evidence leaves me in reasonable doubt as to whether Mr.

Downey was actuallymaking good-faith efforts to provide a sample of his breath for analysis or whether the Court could reasonably infer that he was feigningattempts to intentionally avoid providing a breath sample which might confirm that he had been operating a motor vehicle after havingconsumed a significant quantity of alcohol. [64] In conclusion, for the reasons which have been outlined above, I find that the evidence of Mr.

Downey and the totality of thecircumstances in this case leaves me in reasonable doubt as to whether Crown has established the mens rea of the offence contrary tosection 254(5) of the Criminal Code. In those circumstances, I find him not guilty of the offence of failing or refusing to provide asample of his breath for analysis into an approved device. [65] Finally, as I have indicated previously in this decision, I have found that Mr. Gerald Downey is not guilty of the offence ofimpaired operation of a motor vehicle contrary to section 253(1)(

a) of the Criminal Code. [66] Orders accordingly. Theodor Tax, JPC