R. v. Soucy, 2014 ONCJ 497

Citation: R. v. Soucy , 2014 ONCJ 497 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. Lindsey Soucy Before Justice David M. Paciocco – Ottawa, ON Reasons for Decision Released 24 September 2014 Ms. L. Rock …….……………………………………………………………….… for the Crown Mr. B. Engel.. …………………………………………………………………....… for Ms. Soucy Paciocco J. I.

Introduction [ 1 ] Lindsey Soucy was tried before me on a single charge, which read as follows: The informant says that he believes on reasonable grounds that Lindsey Anne Soucy, on or about the 3 rd day of June in the year 2013 at the City of Ottawa did, without reasonable excuse, failed or refuse to comply with a demand made to her by a peace officer to provide such samples of breath as were necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in her blood and thereby commit and [sic] offence under

section 254 subsection (5) of the Criminal Code , contrary to

Section 255 , subsection (1) of the Criminal Code of Canada . [ 2 ] The Crown case is that in the late hours of the 3 rd day of June 2013 Ms. Soucy, who was driving her small Mazda automobile, was observed drinking from a wine bottle while waiting in the McDonald’s Restaurant drive-thru. This was reported to a McDonald’s employee at the drive-thru window, who called the police and then delayed Ms. Soucy’s order to give the police time to arrive. [1] Ultimately four officers responded to the call. Cst. Hupe of the Ottawa Police Service approached Ms. Soucy, who was in the driver’s seat of the vehicle. Cst.

Hupe was accompanied by Cst. Stockdale. The other two officers were also in the vicinity of the car during the interaction between Cst. Hupe and Ms. Soucy. [ 3 ] Cst. Hupe testified that the first thing she noticed when she approached the car was a wine bottle on the floor of the front passenger’s seat. She confronted Ms. Soucy who denied drinking from the bottle. Ms. Soucy referred to her baby who was sleeping in its baby seat in the back seat of the vehicle and challenged Cst. Hupe’s allegation by asking, “Do you think I am crazy?” Cst. Hupe testified that she smelled a strong odour of alcohol coming from Ms.

Soucy’s breath. When confronted with this Ms. Soucy admitted to having a glass of wine while visiting friends. Cst. Hupe, having formed the requisite suspicion, read her the “screening demand” for a roadside alcohol screening device (ASD). Cst. Hupe demonstrated the device, the mouthpiece was changed, instructions were given, and efforts were made by Cst. Hupe to secure a sample. Six attempts occurred in short order, in which Ms. Soucy would begin to blow but stop before a reading could be achieved. Ms. Soucy was then warned that if she did not provide a suitable sample she would be arrested.

The use of the device was re-explained and the device was reset. This time she blew long enough to produce an “insufficient air” signal, but not a suitable sample. The machine was reset an 8 th time with the same result. Cst. Hupe told Ms. Soucy she was under arrest. According to Cst. Hupe, Ms. Soucy said “Ok. Ok. I will blow properly.” Two more unsuccessful opportunities were provided and at 22:50 hours, Ms. Soucy was arrested, processed on scene, driven home, and then charged with the offence described above. The other three officers who were on scene also testified to the roles they played during these events.

[4] Ms. Soucy testified in her own defence. She denied drinking from the wine bottle that was found in her car, explaining that it wasin her car along with other bottles for recycling, and must have rolled into the front seat floor area. She said, in effect, that she did notintend to fail to provide a sample, but was unable to furnish a suitable one. She claimed that she had done her best on each occasion toprovide a sufficient sample, but a combination of anxiety and the condition of her lungs prohibited her from succeeding. [5] Ms.

Soucy explained that she was already in a state of high anxiety, having just been served with legal papers from her abusiveex-boyfriend, the father of her then three-month old child. That relationship, which she had expected to be lasting, had ended badly,leaving her pregnant and alone. Her mother, who had come from New Zealand to help with the baby, was now gone. Beforeencountering the officers she had been out with friends who were offering her support. When she arrived home her child, who was in thebaby seat, was awake and crying so Ms. Soucy began to drive around to soothe her. Ms.

Soucy was hungry and decided to go to theMcDonalds drive-thru before returning home after the infant fell asleep. She testified that in the McDonalds’ lot her car was approachedby the police and she exited her car as demanded. She was surrounded by four officers who were being aggressive with her, deriding herfor having the wine bottle in the car, challenging her claims to being unable to blow and demanding that she “blow, blow, blow.” Ms.Soucy’s upset intensified during all of this because she was worried her child, who had not been exposed to men, would wake up and seethe male officer who was looking in on her.

She wanted the baby brought to her, which the officers would not do. Ms. Soucy said that allof the anxiety this produced was coupled with a lung weakness she has as the result of an extreme pneumonia she was hospitalized with afew years ago, that necessitated lung surgery. She said that she was visibly upset and would hyperventilate and was sobbing when tryingto blow. She denied saying after being told she was being charged that she would blow properly.

She remembers asking “for a chance tocalm down and calm her breathing down so she could provide a proper sample.” No supporting medical evidence was presented. [6] Once the evidence was concluded, Mr. Engel, on Ms. Soucy’s behalf, argued not only that the evidence showed that Ms. Soucyhad “a reasonable excuse” for failing to provide a sample, he also raised for the first time the contention that the charge that she was triedon was a “nullity.” Ms. Rock, for the Crown, argued that the charge was sufficient and that the offence was made out. She contendedthat if the charge was deficient, it could simply be amended.

I will begin by addressing the challenge to the charge. II. The Challenge to the Charge [7]

Section 581 of the Criminal Code sets out the sufficiency requirements for all criminal charges. In material

part it requires each“count” or charge to “contain in substance a statement that the accused or defendant committed an offence therein specified.” Thisrequires a charge to have both “legal sufficiency” and “factual sufficiency.” Legal sufficiency requires that the charge disclose sufficientdetails “to give the accused reasonable information with respect to the act or omission to be proved against him,” while factualsufficiency exists if the charge contains “sufficient detail of the circumstances of the alleged offence” “to identify the transactionreferred to.” Simply put, a person who is charged is entitled to know the law they are said to have broken, and, in general terms, theconduct that is alleged to have broken that law: R. v.

R.(G.) 2005 SCC 45 , [2005] S.C.J. No. 45. [8] Mr. Engel submitted that the charge was a nullity because it failed to disclose an offence. His claim is that the Criminal Codeprovides two distinct offences for persons who have failed or refused to comply with an alcohol/driving breath demand, namely, theoffence of failing to comply with an approved screening device demand issued under section 254(2), and the offence of failing to complywith an entirely different kind of demand, commonly referred to as an “evidential breath demand” or a “breathalyzer demand,” madeunder section 254(3).

He contends that the charge Ms. Soucy faced failed to describe which offence was being alleged, since it did notrefer to either of those sections, did not refer to an approved screening device, and referred solely to the general charging

section andpenalty sections, sections 254(5) and 255(1), which apply to both approved screening device demand and evidential breath demandoffences. The Crown would have me amend the charge to conform to the evidence even if this is as problematic as Mr. Engel claims,presumably by inserting reference to an ASD or the ASD section. [9] It is obvious that Mr. Engel considers this to be a defect on the face of the charge. In my view, if Mr. Engel was going to bringsuch a challenge it should have been brought before Ms. Soucy entered her plea, not after the Crown closed its case.

Section 601(1)addresses objections to charges for defects apparent on their face, and requires that they “shall be taken by motion to quash theindictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before whichthe proceedings take place.” [10] Mr. Engel urged that this requirement does not apply if a charge is a nullity, as he contends this one to be. I disagree. A judgecannot quash a charge unless it is a nullity (R v. Moore (SCC), [1988] S.C.J. No. 58), and

section 601 specificallyaddresses motions to quash. I appreciate that this may appear to be inconvenient for the defence, who would prefer to wait for the case toend before raising a defect in the charge as a “defence,” but this is likely to be a failed strategy. It is true that if a charge is shown to be anullity before trial, the charge can be relayed. The same remains true, however, if a charge is ultimately dismissed at the end of a trial onthe procedural ground that the charge is a nullity. In R. v.

Moore, supra the Court made clear that if a the charge is determined based onthe inadequacy of the process alone it is not a final disposition that is the equivalent of an acquittal, making the defence of autrefoisacquit unavailable. Simply put, even if I accept the late nullity argument and permit the challenge, the Crown is free to recharge Ms.Soucy.

[11] Since section 601(1) does apply, the first issue for me to resolve is whether to give Ms. Soucy leave to bring this challenge. Inthe end it does not matter, in my view, whether I grant leave because this charge is clearly not a nullity. I am not disagreeing with Mr.Engel’s claim that if the charge did, in fact, fail to reasonably inform Ms. Soucy of the transaction alleged against her (R. v. Cote, (SCC), [1978]1 S.C.R. 8) because it is ambiguous about the criminal provision she is alleged to have violated it would be anullity. Yet this charge does not do that.

This charge, interpreted as required by the Criminal Code, sufficiently identifies the transactionand the provision alleged to have been breached. [12] Specifically, section 581(2)(

a) makes clear that technical averments are not required. While reference to the breath demandsection alleged to have been breached would have been prudent, it is therefore not required. Section 581(2)(b), for its part, indicates thatthe charge can be made known if the charge is “in the words of the enactment that describes the offence.” This is what the charge Ms.Soucy faced during the trial does.

Specifically, the count alleges that: Lindsey Anne Soucy, on or about the 3rd day of June in the year 2013 at the City of Ottawa did, without reasonable excuse, failed orrefuse to comply with a demand made to her by a peace officer to provide such samples of breath as were necessary to enableproper analysis to be made in order to determine the concentration, if any, of alcohol in her blood That language is not found in section 254(2), the demand provision for ASDs, however.

A section 254(2) demand requires a person “toprovide forthwith a sample of breath that in a peace officer’s opinion will enable a proper analysis to be made by means of an approvedscreening device.” Instead, the words of the enactment reproduced in the count, “to enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood,” are found in the “evidential breath” demand provision, section 254(3). Simplyput, Ms. Soucy has clearly and unambiguously been charged with failing or refusing to provide an evidential breath sample.

Yet all of theevidence provided against her relates solely to her alleged failure to comply with an ASD demand. Even if I take the Crown case at itshighest, the Crown has not proved the charge it has laid. [13] One could be forgiven for thinking that this ends the matter.

Even though the modern law of pleading is meant to wash away theextreme technicality that marked the bygone era when felonies were punished by the gallows,[2] and to see cases tried on their merits, “itis part of our criminal procedure that a person accused of crime is entitled to know the charge against him, whether contained in aninformation or an indictment, in reasonably specific terms and he is tried on that charge:” R. v. Geauvreau (1979), (ONCA), 51 C.C.C.(2d) 75 (Ont.C.A.).

This requirement is at the heart of the adversarial system which was borne of revulsion toinquisitorial proceedings in which suspects were tried without charge to see if they committed some offence. It is why our criminaljustice system is called an “accusatorial system,” and it is why it is common to say that the issue in a criminal case is not whether theaccused committed a crime, but rather whether the Crown has proved the crime charged beyond a reasonable doubt. [14] In spite of this, the modern law reflects a decidedly pragmatic bent, containing broad powers for amending charges. In R. v.

Irwin (ON CA), [1998] O.J. No. 627 (C.A.), a decision binding on me, the Ontario Court of Appeal interpreted

section 601of the Criminal Code to have recognized two distinct kinds of amendments. [15] The first power of amendment addresses defects on the face of the charge, where motions are to be taken before the trial begins.This is because, as I have explained, in those rare cases where the charge is a nullity because it did not provide reasonable notice of theoffence, the charge cannot be amended. Given that it is a nullity the judge has no jurisdiction to try the case since jurisdiction over theoffence comes from a valid charge. The trial cannot occur so there is no point in commencing.

For defects that fall short of creatingnullities, amendments are available generously according to the terms of

section 601, subject to the important caveat that a court lacksjurisdiction to amend the information by substituting one charge for another: (R. v. Kerr (1922), 53 O.L.R. 228 (C.A.); R. v. Elliot (ON CA), [1970] 3 C.C.C. 233 (Ont.C.A.); R. v. Elliot (No.2) [1977] 2 S.C.R. 393). [16] The second power of amendment applies during trial, including at the close of evidence, since it involves amending theinformation to conform to the evidence that has been presented.

The Irwin decision recognized that courts have a sweeping power toamend charges to conform to the evidence, including by substituting a new charge for the charge laid. Indeed, that occurred in Irwin.The accused was tried on an assault charge but the evidence showed his offence not to be an assault but rather unlawfully causing bodilyharm. The Court of Appeal amended the charge and denied his appeal, convicting him of the latter offence, making it clear in the processthat trial judges have this same power of amendment. [17] Irwin has been widely followed. Recently in R. v. Brownson [2013] O.J.

No. 4661 (C.A.), the Court of Appeal again recognizedthis authority but elected not to amend the charge after Brownson, who was charged with driving while disqualified by a Criminal Codeprohibition order, was proved only to have been driving while disqualified by a licence suspension. Both cases made it clear that when itcomes to the power to amend so that the charge conforms to the evidence under section 601(2), the sole determinant is whether the

amendment would prejudice the accused. Brownson would have been prejudiced by the amendment because the focus of the brief triallitigation was on the allegation that a driving prohibition was in force. Had the charge been different, so too would the focus of the trialhave been different. Irwin was not prejudiced because the factual theory of the crime was identical, regardless of the charge. In R. v.Irwin Justice Doherty explained: On a plain reading the

section contemplates any amendment which makes a charge conform to the evidence. The limits on that amendingpower are found, not in the nature of the change made to the charge by the amendment, but in the effect of the amendment on theproceedings, and particularly, on the accused’s ability to meet the charge.

The ultimate question is not what does the amendment do tothe charge, but what effect does the amendment have on the accused. [18] In effect, if the accused has not been prejudiced after considering the factors identified in section 601(4), then pragmatics trumpsthe principle of a specific allegation, and the practice that it is generally the Crown’s obligation to lay the charge it will prosecute.

Thosepragmatic reasons include the compelling interest in having criminal allegations determined on their merits, coupled with the reality thatrefusing the amendment is apt to result in the Crown simply laying the charge properly and starting again. Since the accused has neverbeen tried on the right charge there is no “double jeopardy” impediment to the Crown starting over.

Permitting the amendment in theabsence of prejudice is a way to avoid the waste of a completed trial, the inefficiency of repeating the evidence, the inconvenience towitnesses, and the costs involved in a new trial, including to the accused. [19] In my view, judges have little discretion in deciding whether to grant such an amendment, even though section 601(2) relating toamendments to conform to the evidence uses the permissive term “may,” while the power of amendment identified in section 601(3)uses the compulsory term “shall.” I say this because section 601(8) declares that the decision to grant any amendment is a question oflaw, meaning that it is subject to appeal, and section 601(4) identifies the mandatory factors that must be consulted.

Any discretion isweak in that the trial judge is entitled to evaluate the impact of the amendment on the accused, but if the decision made is unreasonableor proceeds on wrong principles, the amendment can simply be made at the appeal level. That is not to say that the standard of prejudiceshould be an aggressive one. In R. v. Brownson, supra, the Ontario Court of Appeal commented with respect to appellate courts usingthis power to amend by substituting charges that such amendments should be done with caution. Justice MacPherson was not suggestingthat courts should make such amendments only rarely.

His point, at para 30, was that he did not think that the prejudice bar should be setvery high, particularly at the appeal stage. Still, the focus in determining whether to grant the amendment is on the prejudice to theaccused. Ultimately, the judges’ duty comes down to this.

If the judge concludes that the amendment, given the nature of the evidencepresented in prior proceedings and the circumstances of the case, would not realistically mislead or prejudice the accused and that theproposed amendment would not cause an injustice, the judge is required to substitute the charge that the evidence discloses. [20] In this case it is patent that there would be absolutely no prejudice to Ms. Soucy in amending the charge to allege a failure orrefusal to comply with an ASD demand. The Crown presented the case as if prosecuting an ASD charge alone, and through her counselMs.

Soucy conducted the trial entirely as if the allegation was indeed the breach of an ASD demand, including by presenting what hercounsel believed to be a “reasonable excuse” type defence. In short, Ms. Soucy had the same trial she would have had if properlycharged. [21] The only remaining question on this issue is whether I have an adequate section 601(2) amendment motion before me.

TheCrown’s section 601(2) request was a contingent one, responding to the defence submission that the charge was a nullity, which it is not.Still, it would be niggling, impractical and contrary to the policy of seeing cases resolved on their merits were I to interpret narrowly theCrown motion to make the charge conform to the evidence. It would be impractical because, as I say, Ms. Soucy could simply becharged again with the correct charge, forcing a reprise of the trial we just had. In any event, I have the power to amend a charge of myown motion: R. v. Powell (BC CA), [1965] 4 C.C.C. 349 (B.C.C.A.).

Even if I did not have a motion before me Iwould exercise that discretion here in the interest of finality and in the complete absence of any prejudice to Ms. Soucy. [22] The charge will therefore be amended to delete the phrase “to provide such samples of breath as were necessary to enable properanalysis to be made in order to determine the concentration, if any, of alcohol in her blood,” and in its place, to insert the words “undersection 254 subsection 2.” III. The Explanation A. The elements of the offence [23] The offence under consideration provides that:

254(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. [24] It is customary, of course, to break the elements of an offence – the things the Crown must prove – into the actus reus or theobjective physical conditions that must exist at the time of the offence, and the mens rea requirements or mental elements relating to thestate of mind of the accused at the time of the offence. 1.

The Actus Reus Elements [25] Although the actus reus or physical acts of an offence are typically associated with the physical act engaged in by the accused,the actus reus is not restricted to the act of the accused. Other objective physical facts that must be present for an offence to occur, suchas the factual conditions that must pertain or the consequence that an offence provision requires, are actus reus elements.

Not alloffences include all three forms of actus reus elements. [26] For its part section 254(5) does not require any specified consequence but it does require specified acts by the accused,committed under identified conditions. Those actus reus elements have been described in the often-cited decision of R. v. Lewko 2002SKCA 121 , [2002] S.J. No. 622 (Sask C.A.).

As adapted to include the distinction between acts and conditions identified here,and bringing them up to date given amendments to the Criminal Code since Lewko was decided, the actus reus elements are: “First, the Crown must prove [the factual condition of] the existence of a demand having the requirements of one of the [six] typesmentioned in ss.(2) and (3) [and 3.1, 3.3 and 3.4]. Second the Crown must prove an [act of] failure or refusal by the defendant to producethe required sample of breath or the required sample of blood [or a failure or refusal to submit to the evaluation of an evaluationofficer].”[3] 2.

The Mens Rea Element [27] Virtually all of the authorities are in agreement that independently of the “reasonable excuse” reference in section 254(5), andeven though no subjective mens rea elements is expressed, the offence of failing or refusing has an implicit, additional subjective mensrea component.

This is in keeping with the presumption that a mens rea or mental element is required in the absence of wordsspecifically removing mens rea as an element of an offence, a presumption borne of the foundational notion that criminal punishmentshould only exceptionally be imposed in the absence of the moral fault that comes from the offender having a subjective, culpable mentalstate: see, most recently, R. v. A.D.H. 2013 SCC 28 , [2013] SCJ No. 28, paras 22-28.

Since there is nothing in section 254(5) tosuggest that Parliament did not intend a subjective mens rea requirement, subjective mens rea must be read into the provision. [28] What complicates things is that there is deep disagreement in the case law relating to the culpable state of mind of the accusedthat has to be proved by the Crown. There are two lines of authority, what I will call the “Lewko position” captured in the decision of R.v. Lewko, and the “Porter position,” adopted more recently in R. v.

Porter 2012 ONSC 3504. [29] The Lewko position holds that the Crown must prove that the accused intentionally refused or failed to provide a suitable sample.“Therefore, a person who fails to provide an appropriate sample despite genuinely attempting to do so, will not have committed the actus reus of the offence”: R. v. Sheehan (2003), 35 M.V.R. (4th) 61 (N.L.Prov.Ct) at para. 42, adopted in R. v. Goleksi 2014 BCCA 80 at para.72. This

interpretation has been most fully articulated by Duncan J. of this Court, in R. v. Sullivan [2001] O.J. No. 2799 (Ont.C.J.)decided before R. v. Lewko, supra, in R. v. Westerman [2012] O.J. No. 87 (Ont.C.J.), and most recently in R. v. Greenshields [2014] O.J.No. 475. It has been applied in a number of courts, including in the Ontario Superior Court of Justice

summary appeal cases of R. v. Stanley (2003), 42 M.V.R. (4th) 95 (Ont.S.C.J.) and R. v. Campbell (2008), (Ont.S.C.J.). On this standard, if Ms.Soucy’s testimony that she tried her best but failed raises a reasonable doubt in my mind, she would be entitled to an acquittal. [30] The Porter position applies a conception of “general intent” that is met if the Crown proves the “knowledge or awareness [by theaccused] of the prohibited act”: para. 37.

Applying this standard, it is no answer that the accused tried their best to furnish a sampleunless they prove, on the balance of probabilities, that they had a “reasonable excuse” for failing: para. 38.[4] Porter has been followedin a number of cases, including most recently in the

summary conviction appeal case of R. v. Plestas 2014 ONSC 1568. If the Porterposition applies, since Ms. Soucy knew or was aware that she was failing to provide a sufficient sample, she had the mens rea for theoffence, and could succeed in avoiding conviction only by proving that her anxiety and lung condition prevented her from complying. [31] In the face of conflicting

summary conviction appeal decisions, with no higher authority having settled the matter, neither ofthese lines of authority is binding on me. I am persuaded, however, that the Lewko position, which is in keeping with basic criminal lawprinciples, is correct. With respect, I agree with the recent decision in R. v. Tikhonov [2014] O.J. No. 3479 (Ont.C.J.) and the decision of

Justice Duncan in R. v. Greenshields, supra, that the decision in R. v. Porter, supra is not correct and should not be followed. [32] First, the Porter position does not sit comfortably with the principle of contemporaneity that applies to all offences. This principlerequires that all elements of an offence must co-exist, or, in other words, that the mens rea must accompany the actus reus: R. v. Williams (2003), 2003 SCC 41 , 13 C.R. (6th) 240 (S.C.C.).

I agree with Justice Duncan that applying a mens rea of knowledgein the case of a true failure seems to be not so much a description of the state of mind of the actor while the act of failing is occurring, asit is “an after-the-fact assessment of what has occurred”: R. v.

Greenshields, supra at para. 10. [33] More importantly, and with respect, while I agree that section 254(5) is a general intent provision, it is my view the Porterdecision does not properly describe the relevant mens rea concepts, confusing general intention and specific intention, and conflatingintention with the very different mens rea of knowledge. [34] The confusion I believe to have occurred between general intention and specific intention lies at the heart of the decision.Specifically, the Porter Court was incorrect, in my view, in concluding that if the Crown must prove that the accused intended to fail orrefuse to provide a suitable sample this is a “specific intent” requirement.

In fact, proving an intention to refuse or fail to provide asuitable sample as called for by the R. v. Lewko line of cases represents the basic general intent requirement. [35] In R. v. George (SCC), [1960] S.C.R. 871 at 890 Justice Ritchie explained the difference between generalintention and specific intention as follows: “In considering the question of mens rea, a distinction is to be drawn between “intention” as applied to acts done to achieve animmediate end on the one hand and acts done with the specific and ulterior motive and intention of furthering or achieving an illegalobject on the other hand.

Illegal acts of the former kind are done “intentionally” in the sense that they are not done by accident orthrough honest mistake…” (emphasis added) On this standard, the act of refusing or failing in order to bring about the immediate end of avoiding the provision of a suitable samplewould be an example of general intention. [36] A similar definition of basic or general intent is provided in R. v. Lewis (1979), (SCC), 47 C.C.C.(2d) 24 at 33(S.C.C.).

There Justice Dickson explained that “in most criminal trials, the mens rea with which the Court is concerned, [is] related to“intent,” i.e., that which precedes and induces the exercise of free will to use particular means to produce a particular result.” Sincespecific intent offences are the exception and general intent the rule, it is obvious that Justice Dickson was speaking of general intentionoffences when he offered this definition. Choosing to offer only short breaths in order to fail to produce a suitable sample would be anexample of the general intention he contemplates.

Choosing to provide a suitable sample but failing because of inability to succeed wouldnot. [37] In R. v. Hibbert (SCC), [1995] 2 S.C.R. 973 Chief Justice Lamer was interpreting the term “purpose” in section21(1)(

b) of the Criminal Code. He concluded that it meant “on purpose” and commented that it therefore has the same meaning asintention or “immediate intention,” a clear reference to general intention. To meet that burden the Crown must prove that an accusedperson refused or failed to provide a suitable sample, “on purpose.” [38] I cannot therefore agree with R. v. Porter that requiring the Crown to show that someone intended to refuse or fail to provide asuitable sample, is akin to requiring proof of “the desire or purpose of bringing about an unsuitable test result,” (para. 33).

As R. v.Hibbert, supra, illustrates, requiring proof that someone produced a result “on purpose” is different from proving “desire.” Hibbert, whowas under threat that he would be shot if he did not lure his friend down to the lobby so his friend could be shot, did not “desire” luringhis friend into a trap but when he paged his friend down, he clearly intended to do so. [39] Nor does requiring the Crown to prove that the accused intended to refuse or fail to provide a sample call for proof of an “ulteriorpurpose” as was suggested in R. v. Porter, supra at para. 34.

Ulterior purpose offences are those that involve “not only the intentionalperformance of the actus reus but, as well, the formation of further ulterior motives or purposes.”: R. v. Daviault, (SCC),[1994] 3 S.C.R. 63, per Sopinka J., citing R. v. Bernard [1980] 2 S.C.R. 833 at 880 (emphasis added). An example would be assaulting apeace officer “with intent to resist arrest” (section 270(1)(b)) where the accused must not only intend to engage in unwanted touching ofthe peace officer but must also do so for the ulterior purpose of resisting arrest.

Intending to refuse or fail to provide a suitable sample isnot an “ulterior purpose.” It is an immediate end, not unlikely the intention to apply force to another, and as such, is an example of

general intention as contemplated in R. v. George, supra. [40] Nor does requiring the Crown to prove that the accused intended to refuse or fail to provide a suitable sample amount to proof of“motive” as R. v. Porter, supra appears to intimate at para. 36. It does not matter whether the accused person chooses to offerinsufficient breaths to avoid detection, or to aggravate the police, or because they like the attention of being charged criminally. Theirparticular motive forms no part of the basic mens rea of intention that the Lewko position requires to be proved. [41] In my view R. v.

Porter, supra, does not accurately capture the divide between general and specific intention. [42] With respect, I am also of the view that the position adopted in R. v. Porter, supra, that general intent can be proved by showing“knowledge or awareness” is wrong. As I understand the law, the mentes reas of “intention” and “knowledge” are distinct mens reaconcepts that play different roles in the criminal law. “Intention” is a mens rea or required mental state that relates to the act element ofoffences, such as the act or omission of refusing or failing to provide a sample.

Meanwhile knowledge is a mens rea or required mentalstate that relates to the factual conditions or prerequisites to an offence, such as the existence of a valid demand made under

section 254. The respective role played by these mental states was made clear in the classic statement relating to subjective mens rea found in R. v.City of Sault Ste. Marie (SCC), [1978] 2 S.C.R. 1299 at 1309-1310.

There, Justice Dickson (as he then was) explainedthat: “Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited actdid so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them.” [43] While the law does know of more specialized forms of mens rea, these are the basic subjective fault requirements that areimplied if an offence is otherwise silent about mens rea and where there is no manifest Parliamentary intention to dispense withsubjective fault. Accordingly in R. v.

Buzzanga and Durocher (ON CA), [1979] O.J.

No. 4345, when speaking withreference to the act requirement, Justice Martin said at para. 32, that “[t]he general mens rea which is required and which suffices formost crimes where no mental element is mentioned in the definition of the crime, is either the intentional or reckless bringing about ofthe result which the law, in creating the offence, seeks to prevent…” The implied mental element relating to the act of refusing or failingto provide a sample is therefore “intention or recklessness,”[5] not “knowledge or awareness of the prohibited act.” [44] This is not to say that “knowledge” is irrelevant to “intention.” Generally one needs knowledge to have intention.

For example, aperson cannot intend to steal something unless they know it is not their own. It does not follow, however, that knowledge itself importsintention as the Porter decision appears to imply: see paras. 35-37. I might, for example, know that I am being involved in a car accidentbut that is an entirely separate thing from intending to be in one.

Or I might slip and know that I am falling but that fall cannot bedescribed in any way as “intentional.” It is no less untenable, in my view, to say that someone is intentionally refusing or failing toprovide a suitable sample even though they are honestly trying to do so, simply because they know or are aware that they did notsucceed. [45] There are also a number of offences where “knowledge” is the most relevant mens rea element, such as possession offences. It isnot uncommon for see jurists discuss such offences as if “knowledge” is the mens rea.[6] Yet even here “knowledge” is not a self-standing mens rea.

To be guilty of possession an accused person must intend to exercise control over the thing that they know theypossess.[7] Whether in this class of case or not, as Justice Dickson explained in R. v. Sault Ste. Marie, supra, the mens rea of knowledgeapplies to the factual conditions constituting the offence.

It is not a substitute for the mentes reus that apply to the act of the accused. [46] With the greatest respect, “all of the leading text writers” relied upon in Porter to equate cognition and intention do not, on myreading of them, “take the view, when applying mens rea or intention to the doing of an immediate act, that knowledge is the basic mensrea in these kinds of offences…” as asserted in R. v. Porter, supra at para. 36. [47] When Professor Stuart was commenting that “subjective mens rea is a concept of cognitive awareness and no more,” he was notoffering a description of the basic mens rea of intention.

He was simply trying to explain that one can intend to do something, such asgoing to the dentist, without desiring to do it. The distinction he was making was between the cognitive state of mind of intention, andthe emotional evaluation of desire. Tellingly, on the next page of his text he included the passage quoted above from R. v. Lewis, supra,describing “intent” as “the use of particular means to produce a particular consequence.” [48] When Glanville Williams was commenting that “an act is intentional if it is conscious or heedful” he was simply asserting that

the actor must know what his bodily movements are. He was describing what, in Canadian law, has come to be known as “voluntariness”and what we have come to treat as part of the actus reus. [49] And when Manning, Mewett and Sankoff commented that “the concept of some crimes requiring a further objective while othersmerely require a present knowledge is a valid distinction,” they were not suggesting that knowledge alone equals intention.

They wereseeking to explain, without using what they considered to be the confusing terms “specific intent” and “general intent,” the distinctionthat exists between those offences where the mens rea is complex enough to attract the defence of intoxication, and those where it is not.Their point was that it is useful in deciding whether the defence of intoxication should apply to distinguish between those offences thathave an ulterior purpose, and those offences that simply require that the offender have a present knowledge of what they are[intentionally] doing.

Indeed, in that same discussion the authors quote the passage from R. v.

George, supra, that I include above whichexplains that general intent exits when acts are done to achieve an immediate end, as opposed to by accident or through honest mistake. [50] If the principles of mens rea are properly applied in my view, the basic mens rea of intention that is to be read into section 254(5)requires, at its highest, no more than that the accused must refuse or fail “on purpose.” [51] There is, however, one more point of some subtlety related to intention and knowledge that I feel the need to address because itcan cause conceptual confusion, and I do not want to be seen to have oversimplified things.

In R. v. Buzzanga and Durocher, supra,Justice Martin recognized that when the mens rea of intention applies, it includes within it an extended conception of intention, whichGlanville Williams called “foresight of certainty.” He explained at para. 45, after analysing a number of authorities: [A]s a general rule, a person who foresees that a consequence is certain or substantially certain to result from

an act which he does inorder to achieve some other purpose, intends that consequence. The actor's foresight of the certainty or moral certainty of theconsequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it, then he decided to bringit about (albeit regretfully), in order to achieve his ultimate purpose. His intention encompasses the means as well as to his ultimateobjective. This concept was applied, in my view, in R. v. Chartrand (1994), (SCC), 31 C.R. (4th) 1 (S.C.C).

There the accused didnot act for the purpose of depriving the parents of control over their child, but Chartrand knew that it was substantially certain that if hetook the child away in his car this would be the result. A statutory variation of this form of intention is provided for in the offence ofmurder under

section 229(c). It can be seen that this extended form of “foresight of certainty” intention, which is available for anyoffence that has the mens rea of “intention” absent an indication of Parliamentary intention to the contrary, does include a “knowledge”component, but not as a self-standing substitute for intention.

The accused must choose or intend to pursue his act for whatever purposewhile knowing that even though the prohibited result is not his immediate purpose that prohibited result is almost certain to occur. [52] In effect, this form of intention is a souped-up form of recklessness, distinguishable from recklessness because it is enough tosupport a finding of recklessness that the accused sees and takes an unjustifiable risk of bringing about the prohibited result, even if theaccused does not see that the prohibited result is “certain or substantially certain” to occur.

Like recklessness, this form of intention is notrealistically going to apply for pure conduct crimes such as failing or refusing to provide a sample; it is difficult to imagine a factsituation where someone who is not refusing or failing on purpose and who is trying to furnish a sample will somehow foresee a risk thattheir intentional unjustifiable conduct could result in them refusing or failing.

While technically this extended form of intention andrecklessness are both available for section 254(5) prosecutions, it therefore seems safe, in my view, to proceed on the functional basisthat the mens rea for refusing or failing to provide a sample contrary to section 254(4) is basic or general intention, that is to say, that theaccused must refuse or fail to provide a sample on purpose. [53] I am mindful that the application of this mens rea obscures the distinction between a “refusal” and a “failure” given that anintentional failure is, in substance, a form of refusal: R. v. Weare [2005] O.J. No. 2411 (C.A.).

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 alcohol andimpaired driving offences 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 thereasonable excuse category, meaning that the “reasonable excuse” category has relatively little application in the case of “failures.” Itstill has an important function to perform in cases of refusal, however, which explains its inclusion: see for example, R. v.

Greenshields,supra, and the many cases digested in Joseph F. 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 to

disprove beyond a reasonable doubt that a failure was intentional, rather than calling on the subject to establish an inability to comply onthe 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 concern – the prospect that feigning inabilitymight be encouraged – a reason that a court can use for deviating from established interpretive principles relating to moral fault. The waythat courts address feigning is to evaluate the credibility of such claims when they are made, in light of all of the evidence, not byconvicting individuals even in the face of reasonable doubt because of fear that applying ordinary principles of law will enable others toavoid detection. B.

Analysis [56] It is not contested that in this case that the actus reus of the offence has been proved beyond a reasonable doubt. A lawful ASDdemand was made yet Ms. Soucy “failed” to provide a suitable sample. She no doubt knew that a demand had been made and thereforehad the required mental state related to the demand.[8] Even though her counsel styled this a “reasonable excuse” defence the criticalissue is about mens rea. It is whether the Crown has proved beyond a reasonable doubt that Ms. Soucy intended to fail.

The ultimatefactual question that I have to resolve is whether there is a reasonable doubt left on the evidence that she was incapable of furnishing asuitable sample in all of the circumstances, or whether that doubt has been removed by the Crown case. [57] Although the Crown must prove the mens rea of an intentional failure of the test, as a matter of common sense if a device wasshown to be in good working order, the accused was given a clear explanation of its operation, and a sufficient opportunity to provide asample was furnished, it can generally be inferred in the absence of evidence raising some question about the ability of the accused tocomply that the accused intended to avoid furnishing a suitable sample: R. v.

Dolphin 2004 MBQB 252 , [2004] M.J. No. 433.Even if the accused leads evidence suggesting that they tried to provide a sample, proof that a device was properly function can beconsidered in evaluating that testimony. In this regard Cst. Hupe testified that she was not aware of any defects in the device,demonstrated it, and changed the mouthpiece. She described how the machine was receiving air after the mouthpiece was changed,recording insufficient air in those instances where Ms. Soucy provided sufficient air to provoke a signal. There can be no question thatMs.

Soucy understood what she was expected to do with the ASD device. The machine was demonstrated and its operation wasexplained to her, and she was given 10 opportunities to furnish a sample. [58] As indicated, in this case Ms. Soucy provided evidence in her defence denying that she intended to fail to furnish suitablesamples and explaining that she was too anxious to furnish a sample, an inability that was contributed to by her lung condition. Theprinciples of R. v. W.(D.) apply to that evidence.

If I affirmatively believe her evidence, or even if it simply leaves me in a reasonabledoubt, I must find her not guilty. Even if I reject her evidence in its entirety, I have to go on and ask whether the Crown has proved herguilt beyond a reasonable doubt on the evidence I do believe, always bearing in mind that this is not a credibility contest. The issue is notwhich of the competing versions I prefer, but whether the Crown has proved its case beyond a reasonable doubt. [59] I do accept Ms. Soucy’s description of what was happening in her life at the time.

I also accept that she had significant concernsabout her child. Cst. Hupe acknowledged that Ms. Soucy’s response upon being asked if she understood the demand was “No. Is mybaby O.K. You are scaring me.” I also accept that she persisted in wanting to see her baby throughout the event. Each of the officerscommented on her interest in the baby, most especially Cst. Stockwood. I also accept that while Ms. Soucy is not afraid of police officersgenerally, the atmosphere was inherently intimidating and Cst. Hupe was not the only officer confronting Ms. Soucy. Cst.

Stockwoodadmitted to confronting her with the discovery of the wine bottle, but he did not go so far as to agree that he accused her of drinking anddriving. While the other officers, Cst. Smith and Cst. Burgess had no recollection of interacting with Ms. Soucy, I find her account ofofficers encouraging her to blow to be entirely plausible, particularly given that Cst. Stockwood confirmed that she was upset about thenumber of officers. This was an anxiety provoking event. [60] Having said that, in spite of her credible delivery and her ability to withstand cross-examination, I am persuaded that Ms.

Soucyexaggerated her condition. She variously described crying, having tears running down her face, hyperventilating, sobbing, and asking forher asthma inhaler. None of the four officers who testified noted her to be doing any of these things. I find it difficult to accept that all ofthem would have failed to note any of these things had they occurred. [61] I say this because, while these officers did not have perfect recall of all details of their encounter with Ms. Soucy, the conditionshe describes would have been noteworthy.

A hyper-ventilating, sobbing subject asking to be given her inhaler is not the kind of thingthey would have missed or misremembered. [62] I have, of course, considered whether the officers might be withholding information about how upset Ms. Soucy was, since itcould damage the prosecution or reflect badly on them, but I found the officers to be credible. Cst. Hupe clearly bore Ms. Soucy noanimosity. She gave her 10 chances to blow into the machine, including after she initially arrested Ms. Soucy. When she was done being

processed Cst. Hupe showed her the kindness of driving Ms. Soucy home and making sure she arrived safely. She was also forthrightabout Ms. Soucy’s limited signs of impairment. I am confident that Cst. Hupe was fair in her evidence. So, too, was Cst. Stockdale. Hewas quick to admit that he did not test the bottle cap found on the seat of the vehicle to see if it fit the suspicious bottle, and he was quickto acknowledge that he did not recall details. I found him to be a compelling witness. Although they had much less to say, there were nocredibility problems with the testimony of Cst. Stephen and Cst.

Burgess. [63] Not only did these officers not confirm the degree of upset claimed by Ms. Soucy, the key officers described her as angry. WhenCst. Hupe confronted her with the allegation about drinking from a bottle in the drive-thru Ms. Soucy was not intimidated but respondedconfrontationally by asking “Do you think I am crazy?” When challenged with arrest Cst. Hupe described Ms. Soucy as getting sort ofangry and responding, “What are you going to do?” Cst. Stockdale agreed that Ms.

Soucy became upset when told she would be arrested.He said that her voice was angry when she was questioning why so many officers were present. [64] It is in this context that I accept Cst. Hupe’s testimony that after Ms. Soucy was initially told she was going to be arrested, shesaid words to the effect of “OK. OK. I will blow properly.” The way Cst. Stockwood put it Ms. Soucy begged for another chance andsaid she would blow properly. I do not accept Ms. Soucy’s recollection that instead she asked for a chance to calm down and slow herbreathing down and provide a proper sample. I agree with Ms. Rock that if Ms.

Soucy was as anxious as she claimed, it is most unlikelythat she would remember the details of the conversation she had with Cst. Hupe, who, having no apparent animosity against Ms. Soucy,made a timely recording of what she heard, a version confirmed by Cst. Stockdale. The response, “OK. OK. I will blow properly,” is not,of course an admission that Ms. Soucy could provide a suitable sample. It is, however, evidence that up to that point she had not beendoing her best, and it is circumstantial evidence that Ms. Soucy was reluctant to furnish a suitable sample.

Since this statement is part ofthe actus reus of the failure, it is available to me in spite of the general rule that I cannot rely upon Ms. Soucy’s roadside comments inconsidering her guilt: R. v. Rivera 2011 ONCA 225 , [2011] O.J. No. 1233 (Ont.C.A), leave to appeal refused [2011] SCCA234. [65] As indicated, there is also evidence that the ASD was working properly, and was used properly. In addition, there is thetestimony of Cst. Hupe, which I credit, that Ms. Soucy would start and stop blowing. It is not that she would remove the device when thisoccurred, which may have been indicative of an exhausted effort.

According to Cst. Hupe, Ms. Soucy would put her lips around it but notblow. Moreover, her efforts did not become worse over time. They became better, with the first few attempts producing no response andthe latter few introducing enough air to provoke an “insufficient air” signal. While I accept that Ms. Soucy had lung surgery, I do nothave supporting medical evidence of a lingering effect, and in my view, the manner in which the failures occurred in all thecircumstances are more consistent with an effort to avoid success than with a physical inability. [66] Ultimately, Ms. Soucy’s performance caused Cst.

Hupe to form the opinion that Ms. Soucy was not trying. So, too, did Cst.Stockdale. I am not, of course, bound to share their opinions, but based on all of the evidence before me I am satisfied beyond areasonable doubt that this was so. Ms. Soucy intended to fail the roadside tests required of her. I am therefore finding Ms. Soucy guilty ofthe offence of failing to provide an ASD sample, contrary to section 254(5) of the Criminal Code. RELEASED: 24 September 2014 __________________________________________ The Honourable Justice David M. Paciocco