R. v. Brown, 2018 ONCJ 47

CITATION: R. v. Brown , 2018 ONCJ 47 DATE: January 24, 2018 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — PAMELA BROWN ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) B. Janzen For the Crown Self-Represented Heard: October 30, November 9 and December 1, 2017 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] Pamela Brown and her boyfriend went to a bar on the evening of August 19, 2016. Brown, a diabetic, says she does not drink alcohol. Her erstwhile boyfriend, Anthony Williams does, and did on the night in question. [ 2 ] Brown lost sight of Williams at the bar.

She suspected he had left with another woman and drove to some familiar haunts to seek him out. She eventually spotted him at a bus stop at Dundas Street West and Jane Street in Toronto – a busy, multi-lane intersection even at midnight. Williams tried to evade Brown by running through live traffic. She attempted to pursue him by making an abrupt U- turn through the same traffic.

The somewhat bizarre behaviour did not escape the attention of two officers waiting for the light to change as they sat, facing east, in their marked scout directly across the very same intersection. [ 3 ] The officers immediately launched an investigation. Both claimed to detect an odour of alcohol on Brown’s breath. An approved screening device was requested and, following its arrival, demands were made of Brown that she provide adequate samples of her breath for both roadside screening and an approved instrument testing.

It is the Crown’s position that the defendant failed or refused to comply with the roadside screening demand, the single charge she faces at this trial. [ 4 ] Apart from the two officers, the only testimonial witness to the events was Brown, the defendant. She denied willfully

refusing or otherwise failing to comply with the demand. The Crown, of course, bears the burden of establishing otherwise on a standard of proof beyond reasonable doubt. [ 5 ] Brown represented herself through her trial. As is hardly foreign to prosecutions of this nature, the police conduct raises questions respecting their compliance with the defendant’s rights under ss. 8, 9 and 10 of the Charter. Crown counsel substantively addressed these issues in response to my inquiries on behalf of the self-represented defendant’s otherwise unprotected constitutional interests. B. EVIDENCE (

a) Introduction [ 6 ] There is no issue regarding the front end of the forensic narrative: The two members of the Toronto Police Service (TPS), PCs Lembo and Christou, activated the emergency equipment, parked their marked scout and quickly left it to investigate the occurrence. It was 12:06am. After completing the U-turn through heavy traffic, the defendant, now eastbound, made a left turn into the driveway of a scrapyard on the north side of Dundas, about 25 to 50 metres to east of its intersection with James. She parked her Mazda at the entrance to the driveway.

The officers meantime corralled an intoxicated Anthony Williams, the errant boyfriend, close to the same intersection. [ 7 ] The testimonial accounts begin to diverge at the point of the police interaction with the defendant. There are differences between the police and defendant’s recall. There are also material inconsistencies between the accounts of the two officers. I begin with a survey of the police evidence relevant to the disposition of the matter before me. (

b) The Police Accounts (

i) PC Lembo [ 8 ] PC Lembo approached the defendant’s vehicle. Despite his instructions to remain in her car, the defendant began to walk in Lembo’s direction. The officer described her as irate, angry and short of breath. Only when they began to speak did he notice an odour of alcohol. As to the strength of the odour, Lembo adopted his notebook entry that it was no more than a “hint”. Asked in re-examination to rank the odour on a scale of 1 to 10, Lembo assigned a 5 to “hint”. The defendant’s speech was not slurred. She did not stumble or otherwise display any unsteadiness. She was co-operative.

In Lembo’s opinion, there was no basis to charge the defendant with impaired driving. [ 9 ] In answer to his questions, the defendant described the events of that evening. Lembo also asked the defendant if she’d had anything to drink. He recalls her saying one glass of wine at around 7 to 8pm. Christou was not then present.

Nor is there any audio record of this exchange as both officers neglected to attach their microphones when they left their scout or at any other time during the course of their interface with the defendant. [ 10 ] At his request, the defendant accompanied Lembo to the intersection where his partner, Christou, was speaking with Williams. Lembo, although present, could not recall any of Christou’s conversation with the defendant. He did recall Christou reading a roadside breath demand from the back of his memo-book. He did not note the time.

As the officers did not have an approved screening device (ASD) with them, Christou radioed for one at 12:21am. Two officers delivered the ASD some eight minutes later. Lembo was “100% sure” that one of the attending officers conducted the ASD self-test. Christou conducted the defendant’s roadside screening. Despite putting the device in her mouth and being afforded several opportunities, the defendant, in Lembo’s opinion, did not appear to properly exhale. Christou charged her with failing to provide an adequate sample of her breath, cuffed her, and then read her rights to counsel.

Other than saying she understood, Lembo could not recall the defendant’s response. [ 11 ] Lembo acknowledged that TPS policy required all police officers to take their mobile microphones with them when leaving police vehicles to interact with members of the public. He had not turned his mind to this protocol until after completion of the roadside testing. (ii) PC Christou [ 12 ] PC Christou first conversed with the defendant at a bus shelter on the northeast corner of Dundas and Jane as she walked to the intersection from her Mazda. He characterized the defendant as evasive and uncooperative.

Unlike Lembo, he could detect a “strong” odour of alcohol as they spoke. Also contrary to Lembo’s recall, he described the defendant as unsteady on her feet and, at times, incoherent and slurring her words. Christou formed the belief that the defendant was “drunk” and that her ability to operate an automobile was impaired by alcohol. [ 13 ] Christou then called for an ASD, at 1:21am. He did not make any breath-testing demand of the defendant at that time. He could not remember if he made the call from his hand-held device or from his parked scout.

Christou first testified that he could also not recall if he advised the defendant that he had requested the device before its arrival. He later acknowledged he had not. [ 14 ] In answer to his questions, the defendant explained that she and Williams had been at bar where she had had one drink.

Christou recalled the defendant’s admission of a prior drink when he testified, some 15 months after the event; he had not recorded this exchange in his notebook. [ 15 ] Christou could not recall any conversation with the defendant in the eight minutes between his call for an ASD and its arrival with a second police unit at 12:29am. In the interim, he did not tell the defendant she was detained; he would have, he testified, had she tried to leave. He knew the defendant possessed a cell phone, but he never advised her of her legal rights until after he arrested her for failing to provide an adequate breath sample.

It never occurred to him to do so. In Christou’s recall, nothing about the defendant’s

condition or demeanour changed in the eight-minute interval before the ASD arrived. [ 16 ] Although aware that his notes indicate that he had conducted a self-test on the ASD, Christou, like Lembo, insisted that the test was performed by one of the officers who delivered the ASD.

Later, on watching an in-car video of the procedure, the officer corrected himself; he had indeed conducted the preliminary self-test. [ 17 ] At 12:32am (at least eleven minutes after his suspicion first crystallized), Christou made two statutory demands of the defendant: first, an approved instrument demand and then, immediately following, a roadside, or ASD, demand. The defendant, he testified, appeared to understand the demands.

Christou instructed the defendant on the proper testing procedure before she commenced the roadside testing; he did not repeat, refine or otherwise revisit the instructions at any point. The defendant, he testified, “seemed like” she was attempting to provide a sample: her lips tightly gripped the tube; her cheeks were puffy; and no air was escaping the mouthpiece or tube. In Christou’s opinion, however, her efforts were not genuine. Christou cautioned the defendant after her second and third tests as to the potential penal consequences of refusing to provide an adequate sample.

In total, the defendant was afforded four opportunities to provide an adequate sample over the course of approximately one and half minutes stretching from 12:35:20am to 12:36:50am. Approximately a minute later, at 12:38am, Christou arrested, charged and cuffed the defendant, and then read her rights to counsel. He recalled asking her if she wanted to call a lawyer but could not recall, nor had he noted, her response. [ 18 ] Christou several times testified that the defendant was “always giving excuses” during the testing procedure. He had not recorded nor could he recall any of these “excuses”.

In cross-examination, Christou conceded that following her final effort he “may” have told the defendant that senior citizens or the elderly could blow better than she had. [ 19 ] Like Lembo, Christou had not worn his chest microphone through the course of his interaction with the defendant. He understood that TPS protocol required him to be equipped with an audio mike when engaged with the public but, he explained, the sudden occurrence and volatile nature of the events eclipsed compliance with his procedural obligations. He conceded that the incident had stabilized by 12:21am, when he called for an ASD.

He offered no further explanation for not then or later retrieving his audio mike other than that he did not think of it. [ 20 ] The defendant was not charged with a driving-related offence under the Highway Traffic Act or with impaired operation of a motor vehicle. Christou testified that he did not know why he did not charge her with the latter offence. (

c) The Defendant’s Account [ 21 ] The defendant is 53. She is a diabetic, having first been diagnosed about twenty years ago. She had not consumed alcohol, she testified, since her 30s because of her diabetes and the medication she uses to manage the condition. More specifically, she did not have an alcoholic drink on August 19, 2016. [ 22 ] She and Williams would typically go out on Friday nights. She served as the designated driver. She testified that PC Christou never asked her if she had had anything to drink.

In response to his questions, she told PC Lembo that she had been at a bar with Williams that evening but denied saying she had drunk any wine or other alcohol. She favours a non-alcoholic, tropical beverage made of sorrel and ginger (a bottle of which she produced for inspection) and speculated that her consumption of the drink that evening may have been responsible for what the officers identified as an odour of alcohol.

She may have told Lembo that she was diabetic, but she was not sure she had done so. [ 23 ] Given her driving behaviour, her admission regarding being in a bar and her emotional state, she agreed in cross-examination that it was not unreasonable for the police to think she had been drinking. [ 24 ] The defendant did not know that Christou had called for second police unit to attend. She did not feel free to go as she was under investigation. She understood that she had to provide a breath sample and Christou did caution her that she could be charged with refusing to blow if she failed to comply with his demand.

She had never previously had a breath demand made of her, but she followed the instructions as best she could. She did not, she testified, refuse to blow. Rather, she tried to exert enough air to produce a proper sample. She “tried”, she said, “my hardest”. She “want[ed] to do it” but was not able to generate a sufficient exhalation. It was, she explained, like having to hold her breath under water for two to three seconds, a feat she says she is incapable of accomplishing.

The defendant characterized the shaking of her head on the final attempt, as captured on video, as an expression of her frustration at not being able to complete the assignment. She denied ever intentionally failing to comply with the breath demand. [ 25 ] The defendant had no recall of being advised of her right to counsel and, in particular, of ever being informed that she could speak with a “free” lawyer. It may, she conceded, have gone “in one ear and out the other”. On the police evidence, she was not advised of these rights until after she was arrested and cuffed. (

d) The Video Evidence [ 26 ] The defendant’s ASD testing at the hood of the officers’ scout is captured by a camera mounted inside the police car and directed to the front of the vehicle. There are no close-ups, the resolution is poor, and the video image is interrupted by roadside illumination, the lights of passing vehicles, and constantly flashing presence of the second unit’s scout. Unlike the surrounding white officers, the defendant’s dark skin renders it particularly difficult to reliably read her expression or facial demeanour.

As already noted, neither officer carried his police issued microphone and, as a result, the video is not accompanied by an audio track. [ 27 ] As time-stamped on the DVD of the video, the defendant’s first effort begins at 12:35:20am and lasts approximately nine seconds. PC Christou holds the device to the defendant’s mouth throughout. To the degree that the image on a video monitor is of assistance, it does not appear that the defendant is doing other than consistently endeavouring to produce a sample of her breath.

There is some unrecorded conversation between Christou and the defendant following the test. [ 28 ] The defendant’s second opportunity begins fifteen seconds after the first, at 12:35:45am. Again, Christou holds the device to the defendant’s mouth. He removes it after approximately seven seconds. Although no words are audible, the defendant’s expression,

like Christou’s, suggests acknowledgement that her effort on this occasion was inadequate to generate a suitable sample. Christou appears to do most of the inaudible or unrecorded talking before the next test. Both he and he defendant gesticulate broadly but, it appears, without rancor. [ 29 ] The third attempt begins at 12:36:15, some 23 seconds after the second concludes. The defendant leans in to accept the device as Christou moves it to her mouth. Her effort again lasts only six or seven seconds before Christou removes the mouthpiece.

Again, Christou appears to do most of the talking during the 23 or so seconds before the next ASD opportunity, most of it directed at another officer. [ 30 ] The defendant appears to request manual control of the device and Christou passes it to her before she steadies herself, takes a practice breath or two, and places it at her mouth for her fourth and, as it happens, final test at 12:36:45am. She seems to experience difficulty maintaining an exhalation and Christou retrieves the devise within five or six seconds. The defendant shakes her head in apparent exasperation at the conclusion of the test.

She is not afforded a further opportunity to provide a suitable sample. Following an again unrecorded exchange, she turns around and Christou cuffs her from behind. [ 31 ] It is clear, if only from the denouement of each testing opportunity, that no adequate ASD sample was generated. However, the video record alone of the entire procedure leaves ambiguous the sincerity of each of the defendant’s efforts. Again, the absence of an audio track only complicates such determination. C. ANALYSIS (

a) Introduction [ 32 ] In Crown counsel’s resourceful submissions, the factual issue of whether the defendant did or did not consume alcohol on August 19, 2016 is, in effect, a red herring. The defendant is not charged with any offence that requires proof of intoxication, impairment or having alcohol in her blood system. Evidence of the consumption of alcohol is, says the Crown, here relevant only to the requisite “suspicion” for a lawful ASD demand pursuant to s. 254(2)(b).

An odour of alcohol, or the immediate presence of liquor or an admission of alcohol consumption is often probative of the requisite suspicion, but none of these indicia are essential to crystallization of the statutory threshold to the making of a roadside demand. As PC Christou subjectively believed the defendant had alcohol in her body and as even the defendant agreed (as detailed earlier) that such belief was “reasonable” on the basis of considerations independent of any evidence of her actually having consumed alcohol, the statutory requirements for a lawful ASD demand are, in the Crown’s argument, made out.

Given the propriety of the demand, the only remaining issue is whether the defendant failed to comply with it. In the Crown’s theory, the evidence of the two officers, coupled with that displayed on the video, afford proof beyond any reasonable doubt of the defendant’s non-compliance and, accordingly, her guilt. [ 33 ] For all its practical ingenuity, the approach advanced by the Crown ignores, if deliberately, a number of Charter-hinged uncertainties.

As canvassed earlier, there is an evidentiary basis to query police compliance with the defendant’s constitutionally protected interests, particularly in regard to their duties arising from her arguable detention and the informational and implementational components of her right to counsel. The concurrent multiple breath test demands are also troubling, as is the impact of any delay in the making of the roadside demand on the defendant’s obligation to honour that demand. Had the defendant been represented, these questions may well have been further mined at trial and pursued in closing submissions.

In view of the limited record pertaining to these matters and my determination that this prosecution can be properly resolved on the merits without resort to constitutional or related argument, I do not intend to further explore these issues. [ 34 ] My reasons, then, are narrowly focused on whether the Crown has satisfied its legal burden respecting the offence of refusing or failing to comply with the roadside breath demand. (

b) The Legal Framework [ 35 ] The defendant is charged with failing or refusing to comply with an officer’s demand to supply a suitable sample of her breath for roadside analysis, by way of ASD, of the alcohol content in her blood. An ASD demand is but one of several police demands authorized by s. 254 of the Code that may be made of drivers reasonably suspected to have consumed alcohol or reasonably believed to be driving while impaired or “over-80”.

As mandated by s. 254(2) of the Code, a police officer who suspects on reasonable grounds that a person has alcohol in his or her body and has operated a motor vehicle within the previous three hours may, by demand, require the person … to provide forthwith a sample of breath that … will enable a proper analysis to be made by means of an approved screening device … .

Subsection (5) of the same provision prescribes that, Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. [ 36 ] At simplest, a conviction for the offence set out in sub-s. (5) depends on the Crown establishing the making of a proper demand, a failure or refusal by the defendant to produce the required sample, and, finally, that the defendant possessed the necessary mental state or fault element – the defined intent or knowledge that attracts culpability – at the time of the failure or refusal.

The legal nature or definition of this last element (what lawyers call the requisite mens rea ) has proved a source of jurisprudential controversy in the context of s. 254. While the ancillary issue of “reasonable excuse” does not arise on the instant facts, the meaning and application of the fault or mental element are critical to the proper resolution of this prosecution. [ 37 ] I earlier canvassed the legal debate in R. v. Slater , 2015 ONCJ 155 . By way of introduction, I noted, at para. 17, that, “[F]ailure to comply … with any of these demands [set out in s. 254] is an offence under s. 254(5).

Refusal to comply with any of the

same demands is an independent offence. Where verbally expressed in unequivocal language, an offence of refusal is readilyestablished. Where dependent on ambiguous words or conduct, proof of refusal, like proof of failure to comply more generally, is aninferential process that requires contextual consideration of the entirety of the interaction between a defendant and the police: R. v. Tavangari (2002) 28 M.V.R. (4th) 104 (Ont. C.J.), esp. at paras. 15, 16 and 22; R. v. Bijelic, (ON SC), [2008] O.J.No. 1911 (S.C.), at para. 30; R. v. Grant, [2014] O.J.

No. 1143 (S.C.), at para. 82. [38] There is here no express or otherwise unequivocal “refusal” to participate in the roadside testing procedure. The defendant did,however, fail to generate the required sample. The Crown’s burden is to establish that this result conformed with or reflected, for want ofa better word, the defendant’s “will” – that is, the required mental state. Framed in the language of the legal authorities, the question atthe time I heard Slater was whether, by way of accompanying mental element, the Crown needed to prove, as said by the SaskatchewanCourt of Appeal in R. v.

Lewko (2002), 2002 SKCA 121 , 169 C.C.C. (3d) 359, at para. 9, “that the defendant intended toproduce that failure” or, as later put by Code J. in R. v. Porter, 2012 ONSC 3504 , [2012] O.J. No. 2841 (S.C.), at para. 34,whether the offence is one “of general intent” in which “knowledge or recklessness as to the doing of the prohibited act is asufficient mens rea”. [39] Each approach attracted its own judicial subscribers at trial and on

summary conviction review. To my subsequent chagrin, Ielected to follow what I construed as the more exacting standard prescribed by Lewko and was soon corrected on appeal (R. v. Slater:2016 ONSC 216) where Nordheimer J., as he then was, discounted the purported conflict between Lewko and Porter, reasoning that thetwo authorities could be read harmoniously.

As he explained, at paras. 8 to 10: [T]o the degree that a conflict is suggested between Porter and Lewko, it seems to have less to do with what was actually saidin Lewko and in Porter, and more to do with what some subsequent decisions have characterized as having been said in those two cases.

The central point made in Porter is that, if the evidence led by the Crown establishes that the accused did not provide a proper breathsample, and the accused knows that s/he has not provided a proper breath sample, then, absent other circumstances being present thatmight explain that failure, the inescapable inference is that the accused intended to cause that result. … In fact, this is the same approach to the issue of proof of intent that was utilized in Lewko. [Quotations from Porter and Lewko omitted.Emphasis added.] [40] Nordheimer J. then concluded, at para. 12, that, [T]he proper reading of both Lewko and Porter … is, that, absent evidence to the contrary, or evidence that raises a reasonable doubt,proof of the requisite mens rea for the offence will be met by the application of the general principle that a person, who does somethingthat has predictable consequences, usually intends or means to cause those consequences.

Put more directly, evidence that a person whotries multiple times to provide a breath sample, and in each instance fails to provide a sample, gives rise to an inescapable inference thats/he is intending that result, absent some other evidence being present that would suggest an absence of such an intent, or at least raise areasonable doubt about it. [Emphasis added.] [41] Further, at paras. 14 and 15, he helpfully notes that in most reported cases in which a reasonable doubt has been held to dispelthe otherwise “natural inference” flowing from commission of the act, “the accused had given evidence that provided alternativeexplanations for the failures” or there was “other evidence in the circumstances surrounding the attempts made to obtain a proper breathsample” that cast doubt on the otherwise “compelling inference to be drawn”.

Put otherwise, and here using language affirmativelyadopted in the Slater appeal, at para. 11, a defendant has an evidentiary burden to lead “sufficient evidence to lend an air of reality to theissue”. (

c) Applying the Law [42] In my view, I am left with just such “doubt”, a reasonable doubt, on proper application of the approach to the requisite mens reaendorsed on appeal in R. v. Slater. I reach this conclusion on close consideration of all of the evidence, including that of the policewitnesses, the defendant, and the video record of the roadside screening. The totality of this evidence affords an air of reality to thedefendant’s denial that she meant to bring about or was otherwise reckless to her failure to provide an adequate sample.

This evidentiarythreshold having been met, the burden returns to the Crown to refute the defendant’s claim to the appropriate standard of proof: R. v.Cinous, 2002 SCC 29 , [2002] 2 S.C.R. 3. As I have already indicated, the prosecution falls short of this mark. [43] To begin, I have lingering qualms about the reliability of the evidence of both officers, particularly PC Christou. Christoudescribes the defendant as “drunk”, as illustrated by classic verbal and physical indicia of intoxication that he attributes to her.

PCLembo, who was in the defendant’s immediate company for some minutes longer than Christou, repeatedly denied that she demonstratedany signs of alcohol consumption, let alone impairment, other than a “hint” of an odour of alcohol. They cannot both be right. [44] In my assessment, Christou’s characterization of the defendant as uncooperative and his qualified admission of speakingsarcastically to her at the conclusion of the roadside screening betrays the negative attitude with which he approached her presumed rolein the investigation.

Christou claims to have reasonably determined that the defendant’s ability to drive was impaired by alcohol. On thisbasis, he made both roadside and Breathalyzer statutory demands of the defendant. Yet, Christou never arrested the defendant forimpaired driving. Asked why not, he could not tender an explanation.

Nor could he or Lembo explain why, contrary to their professionalobligations, they had not retrieved their microphones from their scout while they idled, waiting some ten empty minutes for delivery ofan ASD. [45] Both Christou and Lembo were insistent that one of the officers who delivered the ASD conducted the self-test on the device.Both were patently wrong. Indeed, until corrected by the video, Christou’s testimonial insistence took precedence over his own notebookreference to having performed the test himself.

On the other hand, he recalled at trial, some 15 months after the event, the defendanthaving told him she had had a drink in a bar when, despite the incriminatory salience of such admission, he had failed to make anyreference of this assertion in his notebook. And while Christou several times claimed that the defendant was repeatedly “making

excuses” for her failure to provide a suitable sample, he neither recorded nor recalled a single one of them. [46] I am left with doubts as to reliability of Christou’s characterization of the defendant’s efforts to provide a sample as deceitful orinsincere. I note that, even on the police evidence, there is no suggestion that the defendant verbally refused to participate in the testing,nor did she push the ASD away or otherwise physically rebuff an invitation to exhale into the device.

There are, of course, noregulations, judicial guidelines or even standard practice governing the number of opportunities that the subject of a s. 254 demand mayor should be afforded. That said, having presided over many dozen, if not well more than a hundred drinking-and-driving-relatedprosecutions over many years, I cannot recall a case in which, as here, a subject who does not expressly refuse to participate was allowedonly four occasions to perform the test or where the entire process was truncated by the police after a mere 90 seconds. [47] The defendant’s own evidence was far from impeccable.

She was sometimes vague. She admitted that she had forgotten partsof her interface with the police. She acknowledged her displeasure with PC Christou. But she did testify and she did deny doing anythingother than making her best effort to follow Christou’s instructions and provide a proper sample: she “tried”, as she said, her “hardest”.She was materially consistent and struck me as candid and natural, as opposed to cunning or rehearsed. She also offered, by way ofexplanation for her inability to adequately exhale, an anecdotal account of the difficulty she experienced holding her breath under water.

On the defendant’s evidence alone, I am left with a palpable doubt as to whether she did other than try to provide the roadside sampledemanded by the police. [48] I find some confirmation of the defendant’s position in the video evidence. Given the poor resolution and absence of any audiorecording, some of the imagery is admittedly ambiguous. Nonetheless, after repeated viewings, I am content that the defendant did nothesitate to accept the device each time it was handed to her. She requested an opportunity to self-administer the machine on the lastoccasion.

She was never, on my read of the video, re-instructed, or not fully so, on the appropriate procedure or given an opportunity tocollect herself. Nor, even on the police evidence, was she ever cautioned that the fourth attempt was her “final chance”.

Further, I acceptthe defendant’s uncontradicted testimony that this was her first exposure to a roadside screening procedure. [49] The police failure to utilize their microphones is particularly frustrating. (The requirement is dictated by the TPS Policy &Procedure Manual, 15-17, “In-Car Camera System”, R.O. 2009.01.29-0097.) The best evidence of the defendant’s exchanges with PCChristou, the content of his instructions and cautions, the reasons he expressed, if any, for curtailing the testing after less than twominutes are lost to the evidentiary calculus.

The explanations or justifications, if any, advanced by the defendant for her futileperformance are equally unrecorded. [50] To the degree that the totality of the evidence, direct and circumstantial, leaves a doubt that the defendant’s intent was anythingother than to meet the statutory demand, the lack of an audio record does not assist the Crown in meeting its burden. Were it available,an audio track could, at least hypothetically, allay my concerns respecting the reliability of the police accounts, particularly that of PCChristou.

It could also serve to confirm or belie portions of the defendant’s account of the procedure. As said by a unanimous SupremeCourt more than 20 years ago in R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320, at para. 39, a reasonable doubt “is logicallyderived from the evidence or absence of evidence”. Both here contribute to my doubt as to the defendant’s guilt. D. CONCLUSION [51] Consistent with these reasons, I find the defendant not guilty. Released on January 24, 2018 Justice Melvyn Green