R. v. Lawson, 2011 BCSC 876

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lawson, 2011 BCSC 876 Date: 20110630 Docket: 36111-1 Registry: Campbell River Regina v. Arthur Lawson Before: The Honourable Madam Justice Adair On appeal from the Provincial Court of British Columbia, File No. 36111-1, Campbell River Registry, February 3, 2011 Reasons for Judgment Counsel for the Crown (Respondent): J. Boccabella Counsel for Arthur Lawson (Appellant): T. Bishop Place and Date of Hearing: Campbell River, B.C. June 3, 2011 Place and Date of Judgment: Campbell River, B.C.

June 30, 2011 [ 1 ] Arthur Lawson appeals his conviction under s. 254(5) of the Criminal Code , R.S.C. 1985, c. C-46, for failing or refusing, without reasonable excuse, to provide a breath sample. [ 2 ] On behalf of Mr. Lawson, Mr. Bishop submits that the appeal concerns a point of law on which there is no direct precedent, namely, whether silence alone can constitute the commission of the offence. Mr. Bishop submits that, at trial, there was no evidence that could support a conviction. [ 3 ] Mr.

Boccabella, for the Crown, submits that the trial judge considered the totality of the circumstances, as she was entitled and required to do. Mr. Boccabella submits that the trial judge correctly applied the proper legal test and committed no reviewable error. [ 4 ] I will briefly review the evidence at trial. [ 5 ] There is no dispute that the R.C.M.P. constable had reasonable grounds to make a demand under s. 254(2) that Mr. Lawson provide a breath sample, and that such a demand was made on Mr. Lawson, twice. There is no dispute that Mr. Lawson did not provide a breath sample. Mr.

Lawson does not say that he had any reasonable excuse not to provide a breath sample. The issue is whether it was open to the trial judge to conclude on the evidence presented that Mr. Lawson had failed or refused to provide a sample. [ 6 ] The Campbell River R.C.M.P. received a telephone call on February 10, 2009, which led them to investigate a vehicle parked behind the Quinsam Hotel in Campbell River at about 1:30 a.m. Two police officers, Constable McCarthy and Constable Blacklock, attended. They found Mr. Lawson in the rear parking area in his truck. The motor was running, but as the officers approached, Mr.

Lawson turned the motor off. [ 7 ] The officers asked Mr. Lawson to get out of his truck, which he did. The officers asked Mr. Lawson to produce identification, and he produced a driver’s licence. The officers could smell alcohol on Mr. Lawson. Constable McCarthy formed the suspicion that Mr. Lawson was operating his truck with alcohol in his body, and Constable McCarthy concluded he had grounds to make an approved screening device (“ASD”) demand. Constable McCarthy made that demand at 1:36 a.m. [ 8 ] Mr.

Lawson admits that he was in care and control of a motor vehicle on the day alleged, in the jurisdiction alleged, and that an appropriate and legal ASD demand was read to him. None of those facts are in issue on this appeal. [ 9 ] Constable McCarthy’s evidence was that Mr. Lawson made no response when Constable McCarthy first read the ASD demand. Constable McCarthy asked Mr. Lawson if he understood what had been read to him. Mr. Lawson did not respond. Constable McCarthy informed Mr.

Lawson that, by not responding to the demand, he could be charged with refusal to provide a breath sample, and that that is the same thing as being charged with impaired driving. Again, according to Constable McCarthy, Mr. Lawson did not respond. [ 10 ] Constable Blacklock’s evidence was essentially the same as Constable McCarthy’s. However, Constable Blacklock testified

that when Constable McCarthy read the ASD demand to Mr. Lawson: Mr. Lawson was hesitant to answer, as well – and I believe he – he asked questions about what would happen if he provided a sampleand did not provide a sample.

Constable Blacklock testified that the questions were something to effect of “what happens if I provide a sample or if I don’t.” ConstableBlacklock was asked whether he responded to those questions, and he testified that he believed both he and Constable McCarthyresponded and explained “the possible jeopardies of the – providing the sample and not providing the sample.” [11] The officers had a recording device with them. Constable Blacklock then recorded Constable McCarthy again reading theASD demand to Mr. Lawson. Again, Mr. Lawson made no response.

A transcript of the recording was marked as an exhibit at trial. Inaddition, the audio recording was played and also marked as an exhibit. There is no dispute that the recording discloses significantpauses. Only Constable McCarthy’s and Constable Blacklock’s voices are heard on the recording. Constable Blacklock can be heardtelling Mr. Lawson that by saying nothing, he was refusing. [12] Constable McCarthy was asked about what Mr. Lawson was doing when the recording was being made. He testified that Mr.Lawson “just kept looking all around, up, to the side. He wouldn’t make eye contact with us.

That’s just basically what he did; he justkept looking around the area.” On cross-examination, Constable McCarthy confirmed that Mr. Lawson made no verbal response and nophysical response such as shaking his head. Constable McCarthy said that Mr. Lawson was “just looking from – up and to each side inthe distance.” [13] Constable Blacklock was also asked about Mr. Lawson’s demeanour while the recording was being made, and he said thatthere was “absolutely – no verbal communication. It was just looking away.

I – I equated it to almost, you know, like, trying to shutdown so that maybe we’d just go away.” [14] After the second ASD demand was made, Mr. Lawson was then arrested for refusal and placed in the police car. At trial,Constable McCarthy was asked at what point did he consider that Mr. Lawson had failed or refused to provide a breath sample. Hereplied that, after he had read the ASD demand a second time and Mr. Lawson did not respond, he declared that Mr. Lawson had refusedto provide a sample of his breath. [15] The officers had the ASD in their police car. At no time in their dealings with Mr.

Lawson did either officer take the deviceout of the police car. [16] Once the officers and Mr. Lawson arrived at the detachment, Mr. Lawson began talking again, acted appropriately, had notrouble using the phone and was co-operative with the officers. [17] Constable McCarthy and Constable Blacklock were the only witnesses called for the Crown. Mr. Lawson did not callevidence.

Counsel then made closing submissions. [18] In her reasons for judgment, after setting out a brief introduction of the case, the trial judge stated the issue before her as: “whether the failure to respond, in the totality of the circumstances, amounted to a refusal to provide a sample forthwith.” The trialjudge then reviewed the evidence and the submissions. Among other things, counsel for Mr.

Lawson submitted that the court should notconvict him because he had the right to remain silent, and should not convict in a precedent-setting situation because there was no caselaw on the point. [19] The trial judge continued: [14] The issue, in my view, is whether by his actions, words or inaction or conduct Mr. Lawson conveyed a refusal. See R. v.Melanson (1973), (NB CA), 13 C.C.C. (2d) 111. Where there is a constructive refusal, such as in the case at bar, thetotality of the circumstances must clearly disclose a refusal. See R. v. Hurley [(1980), 9 M.V.R. 46 (Nfld. C.A.)] and R. v.

Collings(1980), 9 M.V.R. 105 (B.C. Co. Co. [sic]) and R. v. Bennett [(1997), (BC SC), 25 M.V.R. (3d) 279 (B.C.S.C.)]. [15] I have also considered the Supreme Court of Canada decision of R. v. Woods, 2005 SCC 42 , referred to in R. v.

Jaue[2006 BCPC 163], that an accused is required to provide a breath sample immediately on demand and must comply forthwith, and thatthe accused must be presumed to intend the natural and probable consequences of his actions and does not have the luxury of time todecide at a later time what to do. [16] On an application of the above principles and on the totality of the evidence, I find that the Crown has established its casebeyond a reasonable doubt on Count 2. [17] The reasons for this finding are as follows.

The date, jurisdiction, identity and demand are established beyond a reasonabledoubt. [18] As to the actus reus and the mens rea, first of all, the accused’s failure to comply with the demand was a constructive refusal andis the only reasonable inference that I can draw on the totality of the evidence. He understood the officers when he was asked for hislicence and responded appropriately. He looked around and failed to make eye contact when the demand was made. He asked about theconsequences of failing to make [sic] the demand, which was explained to him. When the demand was made, he failed to respond at all.

When he was asked if he understood, he failed to respond again. When the demand was put to him a second time, he failed to respond. When he was chartered and warned, he failed to respond. [19] The

section requires compliance forthwith. Some five minutes elapsed from the time of the first demand to the second. Somealmost three-quarters of an hour elapsed by the time he was chartered and warned and failed to respond or comply. There is nosuggestion that he did not understand or that he was too drunk to understand or had a mental health issue or language barrier. Heresponded appropriately before and after the demand was made and appeared fully to understand. He said he did not want to speak to a

lawyer. [20] The only inference I can draw is that he understood what he was required to do and intended to refuse to comply by notresponding by his words and actions. [21] The police, in my view, did everything they could to get him to comply. There was no need to bring out the ASD and present itto him. [22] The test is whether, on the totality of the circumstances, it has been established that he refused and that he intended to refuse. The threshold has been met by the Crown and established beyond a reasonable doubt. [20] I turn then to the arguments advanced on the appeal. [21] Mr. Bishop, counsel for Mr.

Lawson, submits that, on the facts, Mr. Lawson’s response amounted to no more than simplesilence, and that there is, therefore, no evidence that could support a conviction. He argues that it is unprecedented to draw an inferencethat an individual is committing the offence of failing or refusing to provide a breath sample from the fact that he or she does not give aresponse when asked by police if he or she intends to give a sample. Mr. Bishop submits further that, because of some of the decidedcases on this issue, it is wrong in principle to draw such an inference. Mr. Bishop cites R. v.

Dunn (1978), (PESCAD), 43 C.C.C. (2d) 519 (P.E.I.S.C.); R. v. Rosario, 2007 BCPC 418; R. v. Jaue, 2006 BCPC 163; R. v. Gillis, 2008 BCPC 387; R.v. Bennett (1997), 25 M.V.R. (3d) 279, (B.C.S.C.); and R. v. Melanson (1973), (NB CA), 13C.C.C. (2d) 111 (N.B.S.C.A.D.), among other cases, to argue that an accused who commits the offence has indicated in some way thathe or she is not going to provide a breath sample. In some instances, that intention is expressed by actions. Sometimes, it is expressedby the accused’s words.

In other cases, it is expressed by the accused remaining silent in the presence of a lawyer speaking on behalf ofthe accused and stating a refusal. However, in Mr. Bishop’s submission, no case has resulted in a conviction when the accused merelychose to remain silent and there was no other evidence proving refusal. [22] Mr. Bishop argues (relying on Dunn) that in order for the Crown to prove the offence in respect of Mr. Lawson, Mr. Lawsonmust be presented with the ASD and asked to blow. If Mr.

Lawson, presented with the device and having the opportunity to blow, thendid not, a case could made that he had unlawfully failed or refused to provide a breath sample. However, in Mr. Bishop’s submission,when the officers did not get a verbal response from Mr. Lawson, they never presented him with the device and asked him to blow. Theresult, in Mr. Bishop’s submission, is that, looking at the totality of the evidence, there is no clear and unequivocal proof of a refusal orfailure to comply with a demand. There is only Mr. Lawson’s silence, which, at best, is equivocal. In Mr.

Bishop’s submission, simplyremaining silent cannot constitute commission of the offence. [23] Mr. Bishop submits further that Mr. Lawson may have been familiar with the “old legal principle” that a person in policecustody has a right to silence. He argues that it therefore seems wrong in principle to say that remaining silent is, without more,sufficient to commit the offence here. Mr. Bishop submits further that the evidence demonstrating that, before and after the demands,Mr. Lawson followed the officers’ directions and engaged in conversation with them does not advance the Crown’s case. Mr.

Bishopsays that those facts establish only that Mr. Lawson understood and spoke English and was capable of responding. Mr. Bishop submitsthat the evidence makes it clear that when Mr. Lawson remained silent when he was read the ASD demand, he did so by choice and notbecause he failed to understand what the officers were saying. Mr. Bishop cites R. v. Chambers, (SCC), [1990] 2S.C.R. 1293, in support of the argument that Mr. Lawson’s silence cannot advance the Crown’s case. [24] Mr.

Boccabella, for the Crown, submits that the trial judge’s conclusion is not unprecedented, and that there are a number ofdecisions holding that the non-responsiveness or silence of an accused, when considered in light of the surrounding circumstances, hasamounted to a refusal. In particular, Mr. Boccabella cites two cases from Alberta: R. v. Page, 1982 ABCA 230 , 41 A.R. 429and R. v. Williams, 2011 ABPC 85. Williams was decided after the trial judge ruled on Mr. Lawson’s case. Page was apparently notcited to the trial judge during submissions.

Neither decision is binding on me, although I note that Page is an appellate-court decision. [25] In Page, Mr. Page had been the driver of a car involved in a single vehicle accident in which the passenger in the car waskilled. Police attended at the scene immediately. Mr. Page was asked to go to the patrol car, which he did. He was observed to beunsteady on his feet and to have the smell of alcohol on his breath. He had several small cuts on his forehead and face, his eyes werebloodshot and he did not respond to any questions put to him. At the suggestion of the police, Mr. Page went to hospital in anambulance.

Upon arrival at the hospital, Mr. Page was asked some routine questions by the admitting nurse. However, Mr. Pageignored them and walked out. One of the police officers followed Mr. Page outside and told Mr. Page he should be examined by adoctor before he left. Mr. Page was convinced to return to the hospital lobby. On being approached by an officer who was intending toread a breathalyzer demand to Mr. Page, Mr. Page told the officer he wanted medical treatment. [26] Mr. Page was then placed on a bed in the emergency ward to await examination by a doctor. The officer read the demand toMr. Page.

The officer’s evidence was that, before he had finished reading the demand, Mr. Page closed his eyes and turned his headaway. When the officer asked Mr. Page if he understood the demand, Mr. Page made no reply. [27] The trial judge found that Mr. Page’s conduct in closing his eyes and turning his head, even under the circumstances, to be aclear refusal or failure.

The trial judge considered the fact that there was no machine available to conduct the test to be irrelevant. [28] On appeal to the Alberta Court of Queen’s Bench, the court was satisfied that there was sufficient evidence to support the trialjudge’s finding that Mr. Page had, by his conduct, refused to provide breath samples, and dismissed Mr. Page’s appeal. On furtherappeal to the Alberta Court of Appeal, the sole issue before the court was whether Mr. Page’s reaction to the demand made at thehospital was capable of being a failure or a refusal to comply with that demand.

The court concluded that, in all of the circumstancessurrounding the making of the demand, Mr. Page’s responses were, in law, capable of amounting to a refusal or failure to comply withthat demand without lawful excuse, within the meaning of the section. Mr. Page’s appeal was, accordingly, dismissed. [29] Williams is a trial-level decision. Ms. Williams was charged with a number of offences, including failing to provide a bloodsample pursuant to a demand made under s. 245(3) of the Criminal Code. Ms. Williams never said she would not comply with the

demand. The main issue for the court was whether Ms. Williams’ conduct was sufficient to support a conviction. The demand was readto Ms. Williams after she had been taken to hospital emergency. Before and after the demand, Ms. Williams spoke to hospital staff andanswered their questions. However, when the demand was made, Ms. Williams did not respond at all, but stared at the ceiling. The trialjudge concluded that, in all of the circumstances of the case, by her conduct, Ms.

Williams demonstrated a clear intention not to complywith the demand, and her conduct in not responding amounted to a failure or refusal to comply with the demand. [30] In my view, the test applicable was correctly stated by the trial judge in para. 14 of her reasons, and is well summarized byMr. Justice Melnick in R. v. Bennett, as follows: [14] It is settled law that a refusal may be a verbal refusal or a refusal by conduct: R. v. Melanson (1973), (NBCA), 13 C.C.C. (2d) 111 (N.B.C.A.) at p. 113.

However, it is imperative that the court must consider all the circumstances of the case inassessing whether the accused in fact refused to take the test. In R. v. Cunningham (1989), 1989 ABCA 163 , 49 C.C.C. (3d)521 (Alta. C.A.), Mr. Justice Coté stated for the majority at p. 533 the importance of taking into account the totality of circumstances,especially where the alleged refusal involves an exchange between the accused and a police officer: In my view what is a refusal depends on all the circumstances of each individual case.

A single conversation may contain many twists,turns, or pauses, and one should not dissect it minutely or take a single sentence out of context. . . . [16] Commensurate with general criminal law principles, the onus is on the Crown to prove beyond a reasonable doubt that theaccused made such a constructive refusal or failure. Based on all the circumstances, the trier of fact must be able to "legitimatelyconstrue from the accused's actions or words that he is going to follow a certain course of action" before a conviction can be entered: R.v. Hurley (1980), 9 M.V.R. 46 (Nfld. C.A.) at p. 49.

The totality of circumstances must clearly disclose a refusal or failure by theaccused, as Judge Darling noted in Collings v. R. (1980), 9 M.V.R. 105 (B.C.Co.Ct.) at p. 109: The enactment in the Criminal Code although a necessary one to apprehend drinking drivers, is nevertheless a most unusual one in thatit compels a citizen to actively create evidence possibly incriminating himself.

As has been said in prior cases on this section, thelanguage should be strictly interpreted, that is to say that there must be clear refusal or a clear failure to comply with a demand before theoffence is completed. [17] In the same vein, it was held in R. v. Melanson, [1990] N.B.J.

No. 31 (Q.B.) at p. 10 (Q.L.) that a constructive refusal is madeout where officers "did everything possible, everything that they could reasonably be expected to do to get [an accused] to co-operate andtake the test". [31] Whether the Crown has proved a refusal beyond a reasonable doubt depends on the totality of the circumstances in anindividual case. As Page illustrates, silence in the face of a lawful demand can be taken into account as part of the totality of thecircumstances. Evidence that an accused said nothing in response to a lawful demand is both relevant and admissible.

In the context ofthe totality of the circumstances, the act of saying nothing may be equivocal and ambiguous, or it may be eloquent and clear. [32] The trial judge’s reference, in para. 15 of her reasons, to the Supreme Court of Canada’s decision in R. v. Woods, 2005 SCC42, is also important. In my view, it indicates the trial judge took into account, in considering all of the circumstances, the obligationcreated by s. 254(2) on an individual in Mr.

Lawson’s position to provide a sample “forthwith.” In the face of a lawful demand, there is,for example, no right to delay responding to the demand in order to consult legal counsel for advice. Instead, there is an obligation on acitizen to interact with a police officer and comply with a demand immediately, not at a time of the citizen’s own choosing. There is, forthe reasons described in R. v. Woods (see in particular paras. 14 and 29-32), an interference with Charter rights. [33] The trial judge was entitled to look at Mr.

Lawson’s behaviour – all of it – when he was interacting with Constable McCarthyand Constable Blacklock in assessing whether the totality of the circumstances clearly disclosed a refusal or failure on his part to complywith a lawful demand made under s. 254(2). That is what the legal test, as summarized in R. v. Bennett, required the trial judge to do. Inhis written submissions in reply, Mr. Bishop suggests that Mr. Lawson was actively choosing to “remain silent.” However, in my view,this choice was not open to him once a lawful demand had been made.

His obligation was then to provide a sample “forthwith.” [34] Mr. Bishop’s argument that there was insufficient evidence to convict is premised on Mr. Lawson’s silence – his non-responsiveness – being the only relevant evidence available. If Mr. Lawson’s silence is the only evidence, then (the argument goes) thetrial judge could not legitimately draw any conclusion based on it, certainly not that Mr. Lawson was guilty beyond a reasonable doubt. The implication is that, on its own, Mr. Lawson’s silence was equivocal, whereas a conviction requires a clear refusal or clear failure tocomply.

Equivocal evidence cannot provide proof beyond a reasonable doubt. [35] However, the legal test requires the trial judge to consider all of the circumstances of the case. In isolation, Mr. Lawson’ssilence may be equivocal, just as a single sentence taken out of context might be equivocal. However, when considered in the context ofother events in the early morning on February 10, 2009, including the circumstances in which the second demand was made, the trialjudge was satisfied beyond a reasonable doubt that Mr. Lawson refused and he intended to refuse the demand.

In my view, she made noreviewable error in reaching that conclusion. [36] Mr. Bishop submits that this case is distinguishable from Page. There, Mr. Bishop notes, Mr. Page demonstrated his refusalby closing his eyes and turning his head away from the officer, in addition to making no reply when asked if he understood the demand. [37] It is true, based on the evidence, that Mr. Lawson did not shake his head, or turn his head away. However, the trial judgefound that some five minutes had elapsed from the time of the first demand to the second, and almost three-quarters of an hour hadelapsed by the time Mr.

Lawson was chartered and warned. In context, especially in the context of “forthwith,” this is a very longperiod. The officers explained to Mr. Lawson the consequences of not responding to the demand: that he could be charged with refusalto provide a breath sample. When the demand was made the second time, and the recording made, Mr. Lawson looked all around, upand to the side, but would not make eye contact with the officers. That is deliberate behaviour.

[ 38 ] The trial judge said that the only inference she could draw was that Mr. Lawson understood what he was required to do and intended to refuse to comply by not responding by his words and actions. In my view, the trial judge was entitled and required to consider all of Mr. Lawson’s behaviour – including his silence in the face of the two demands – in assessing whether the elements of the offence had been proved beyond a reasonable doubt. [ 39 ] The function of a

summary conviction appeal judge is to determine whether the trial judge could reasonably have reached the conclusion that the appellant was guilty beyond a reasonable doubt: see R. v. Pomeroy , 2007 BCSC 142 , at para. 26 . In my view, the trial judge identified the correct legal test and made no reviewable error in applying that test. The evidence was reasonably capable of supporting the trial judge’s conclusions that Mr. Lawson refused a lawful demand and that he intended to refuse. [ 40 ] I therefore dismiss Mr. Lawson’s appeal. “The Honourable Madam Justice Adair”