R. v. Pathmanathan, 2015 ONCJ 570

Citation: R. v. Pathmanathan , 2015 ONCJ 570 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. KUGANENDRAN PATHMANATHAN P R O C E E D I N G S A T S E N T E N C E BEFORE THE HONOURABLE MR. JUSTICE M.S. FELIX on Friday, August 14, 2015 at OSHAWA, Ontario APPEARANCES : P. Thompson Counsel for Crown C. Pearce Counsel for K. Pathmanathan FRIDAY, AUGUST 14, 2015 …U P O N R E S U M I N G

R E A S O N S F O R J U D G M E N T FELIX, J : (Orally) Introduction The defendant Mr. Pathmanathan is charged with refusing to provide a sample into an approved screening device contrary to Section 254(5) of the Criminal Code of Canada . This allegation stems from an incident that occurred on July 6, 2013. P.C. Bacon observed the defendant driving a motor vehicle approaching an intersection. The motor vehicle did not stop prior to the intersection. It came to a complete stop approximately 15 feet into the intersection (that is to say past the white stop line). P.C.

Bacon then observed the defendant secure his seat belt and proceed on his way. P.C. Bacon caused this vehicle to stop for the observed Highway Traffic Act infractions. He noted that there was no excessive speed or other unusual actions performed by the motor vehicle. As Constable Bacon approached the driver of the vehicle he observed unusual actions on the part of the sole occupant and driver. He observed the driver to hunch his shoulders and the driver was crouched down using his hands to do something that Constable Bacon could not see.

Constable Bacon advised the defendant of the reason for the stop and had a conversation with the defendant concerning where he was coming from and whether he had consumed any alcohol. His partner subsequently advised him that there were beer cans in the back of the vehicle. The defendant admitted to consumption of one beer hours earlier and volunteered that the empty beer cans in his car were not from this particular date. P.C. Bacon noted a faint odour of alcohol. He formed a reasonable suspicion and provided the approved screening device demand to the defendant.

Police Constable Bacon did not have an approved screening device with him. He was aware that his partner Constable Brown requested an A.S.D. proximate to this time period. He subsequently became aware that Police Constable Bowler was in the area and would be attending “shortly”. Constable Bacon directed his mind to the issue of rights to counsel, but felt that there would be no opportunity to facilitate the exercise of rights to counsel prior to the imminent arrival of the A.S.D. Constable Bowler did arrive approximately nine minutes later with the A.S.D.

He advised Constable Bacon that the A.S.D. had been tested and was in proper working order. Issues There were sufficient grounds for Constable Bacon to stop the defendant. There were no Charter issues raised in this case. No suitable sample of breath was provided in this case. This was a trial concerned with the failure to provide suitable breath samples rather than an “out-right” or unequivocal refusal to provide samples.

Where a person unequivocally refuses to provide a sample and does not even touch the instrument (for example, verbally communicating that they will not comply) the Crown need not prove that the instrument was an approved screening device or in working order. ( R. v. Weare , [2005] OJ No 2411 (QL) (Ont CA) affg [2005] SCJ No 368 ). In this case there is evidence that the defendant complied with direction and placed his lips to the mouthpiece attached to the instrument and provided a sample such that there was an audible tone on each attempt.

As a result of the evidence at trial and the submissions of counsel, there are two issues to address:

I. The defendant submits there is no credible and reliable evidence to conclude that insufficient samples were generated based on the following considerations? a. Constable Bacon testified almost two years after the event concerning the duration of samples, tones produced, and messages returned from the instrument including “insufficient sample” in the absence of detailed specific notations of these factors in this notes; b.

Constable Bacon testified that he accessed codes from the bottom of the instrument to conclude that insufficient samples were generated by the defendant’s efforts when factually there were no such codes on the bottom of the instrument to refer to; and, c. There is no credible and reliable evidence that the error codes returned by the instrument were in fact related to “insufficient sample” error codes, as opposed to other available error messages. II. The defendant testified to a “reasonable excuse” in this case.

Given the subjective make up of the defendant it is argued the nine minute delay while waiting for the A.S.D. caused overwhelming fear in the defendant and he was unable to provide a sample due to this fear. Related to the “reasonable excuse” submitted, the defendant had some limits of his ability to communicate in English that also negatively impacted his ability to provide a sample. Issue 1 – Evidence of Insufficient Samples The A.S.D. was provided to Constable Bacon by Constable Bowler. Constable Bowler advised Constable Bacon that he had tested the instrument.

Constable Bacon relied upon Constable Bowler and he recognized that Constable Bowler was an officer with some experience in this area. Constable Bacon took care to note that Constable Bowler would be responsible for noting the details with respect to the particulars of the instrument. That being said, there are some issues with the administration of the multiple tests in this case: 1 . The particulars of the instrument: Constable Bacon did not examine the instrument to note the serial number of the “Draeger Alcohotest 7410” or any details concerning calibration.

He did testify that he believed it to be an approved screening device. The instrument was turned on and appeared to be functioning properly. 2 . Constable Bacon did not conduct a self-test prior to administering the test on the defendant . At the commencement of the testing Constable Bacon did not conduct a self-test of the instrument. Constable Bacon testified that notwithstanding his experience using the instrument he had little recollection of his training on this particular instrument. I am aware that Centre for Forensic Science (C.F.S.) has advocated that a self-test be performed by the administrator.

But I cannot rely on that knowledge because it was not addressed in the evidence at this trial. While counsel to the defendant offered to refer Constable Bacon to the manual, it was never produced or placed into evidence. I am not entitled to take judicial notice of the C.F.S. manual. I do not know if it is currently still a recommendation that a self-test be performed prior to the subject testing. Whether or not a self-test at the commencement of the process is a recommendation, it is not a pre-condition to the use of the instrument.

I am left to reasonably conclude that it may be a good practice to follow nonetheless for several reasons such as: a. When an officer commences with a demand to provide a sample the officer cannot know if the object of the test is going to refuse or fail to comply. b. When an officer commences with a demand the officer may not know if there are comprehension issues or language issues. c. When an officer commences with a demand the officer may not know if the previously functioning instrument is now subject to

failure or has for example, run out of power. d. The self-test gives the object of the test a chance for the defendant to observe the functioning of the instrument – a sort of “dry run”. e. The self-test gives the officer administering the self-test an opportunity to demonstrate to the subject who is required to take the test how simple it may be to blow into the instrument.

This issue of the self-test may be relevant to some cases and totally irrelevant in others, but it is my respectful view that it is safe to consider it at minimum a best practice in the absence of any direct evidence that it is in fact a recommendation by the C.F.S. (Centre for Forensic Science). 3 . Constable Bacon did not conduct a self-test at any time throughout the multiple sample requests: Throughout all of the unsuccessful sample requests in this case, there was no intervening self-test by the administrator of the test.

Once again, I cannot take judicial notice of the C.F.S. training manual, but it stands to reason that where there are repeated efforts with no result, a self-test interspersed amongst unsuccessful samples may assure a court that there was no malfunction or other issue with the instrument. 4 . Constable Bacon did not note specifics concerning the repeated attempts: A police officer is not required to note everything in a notebook see ( R v Brown [2014] OJ No 1021 (SCJ) . Just because something is not noted in a notebook does not mean that it did not occur.

But in this case there are reliability issues with the notes produced by Constable Bacon. He did not note specifics concerning the failed sample attempts including the tone produced on each attempt, messages returned from the instrument, the phrase “insufficient sample”, or the particular error codes produced by the instrument (if any). He responsibly noted in his evidence that this was his first refusal charge. This was a deficiency. He would seek to rectify this deficiency in the future. To be clear, he did not note any error codes or even the phrase “insufficient sample” in his notes.

I do accept his evidence that a notation of a one second blow inferentially means there was an insufficient sample. I must also consider his evidence that he modified his typed notes out of fairness to the defendant to show that the defendant did provide one sample that was three seconds in duration. In his notebook notes, he noted “10 failed samples of one sec max producing no results”. In his typed synopsis he referred to some samples being longer than one second. I have not reviewed his typed notes, nor did I hear any further evidence of any details in his typed notes.

I am not sure that Constable Bacon referred to the bottom of the instrument to determine what error code number reflected an “insufficient sample”. If he did this, he did not note it or the particular code. Constable Bowler is a more experienced officer in this area and he could not recall the particular error code number, but testified he would look up the code online electronically rather than refer to the bottom of the instrument. Constable Bacon credibly acknowledged that these details were lacking. He further acknowledged that on a charge of “refusal” these were the most important details.

Constable Bacon testified to the particulars of each attempt as follows in

summary: • Blow #1: The defendant took a deep breath, blew it out and for a second blew into the device, took his mouth off of the mouthpiece and advised “I can’t”. He did form a seal around the mouthpiece and there was an audible tone for about a second. The result was an insufficient sample. The defendant said he could not do this as he had a seven year old daughter. “Please do not do this”. He asked that the police let the vehicle go to his girlfriend who had pulled in behind them.

Constable Bacon advised of the consequences of refusal. • Blow #2: the defendant blew only for a second, pulled back again, again advised “I can’t”. There was a tone for a split second then “insufficient sample”. Did not note the error code down. • Blow #3: The defendant took a deep breath, blew out prior to placing his lips on the instrument and then blew a two second breath into the device before pulling back again and advising “I can’t”. This was a similar attempt to the first sample. There was a tone and another insufficient sample in the opinion of the officer. • Blow #4: He removed the mouthpiece.

He was told to put it back in. He blew for a second then said he could not.

• Blows #5, 6 and 7: Were described by Constable Bacon as “three more attempts”, the duration being one second each and he was cautioned for refusal. There were no further specifics provided on these blows. • Blow #8: Was approximately three seconds, then the defendant pulled back and advised he could not do this as he had just consumed Tylenol. • Blow #9: He blew into for a second, removed his lips, backed off the device. A tone heard and the officer described an insufficient sample. • Blow #10: This was his final sample. The defendant advised that he could not.

He blew for one second and then pulled back off the device. This caused an insufficient sample in the opinion of the officer. Constable Bacon was cross-examined extensively concerning the preparation of his notebook notes and his typed report. As indicated above, based on the evidence that I heard at the trial, his notebook entry was “10 failed samples of one sec max producing no results”. I heard some evidence that there was detail in the typed report, but I did not hear evidence concerning that detail.

I did not hear evidence that the sequence and description of each blow as I have just outlined above in this judgment was reflected in his notes. This is why counsel to the defendant submitted that the reliability (that is to say the ability to recall the specific sequence and specific details) had to have been compromised. I have a doubt about the accuracy of the details provided in viva voce evidence courtesy of an independent recollection where the events happened two years ago prior to the trial and the prepared notes are sparse.

The gravamen of the offence before the Court is either an unequivocal “refuse” or a police officer’s characterization of a “failure” to provide. A “failure” to provide a sample requires the officer administering the approved screening device test to document this detail closely. The lack of this finer detail in this case causes me to favour the defence submission and causes me to have a doubt as to the reliability of the evidence. The defendant testified and said that he tried to provide samples.

He says that the police made fun of him, told him that his wife and child would disown him, that his community would disown him. He was sad, stressed, and did not know what was happening. He was fearful of the police because of memories of the past, experiences in another country. He thought that he would be physically assaulted or his child taken away. He testified in court that he pleaded with the police not to hurt him or kill him and to leave his child alone. He told the Court that he did the best he could. He agreed that he said at times that words “I can’t”. The officers were telling him to “Blow! Blow!

Blow! and he was scared and could not blow. Frankly, I prefer the evidence of P.C. Bacon. Constable Bacon was honest, credible and forthright concerning deficiencies in his approach that night. If I did not have the reliability concerns that I’ve outlined, the statements made by the defendant concerning his daughter, his employment as a taxi driver, and needing his licence would have satisfied me to the criminal standard. I prefer this evidence from Constable Bacon and find that this is probably what was said.

But in these circumstances, where we are not dealing with an unequivocal refusal, the sequence of events is crucial and absent detailed notes or recollection of the circumstances the reliability concerns impact the evidence of Constable Bacon. Having regard to the principles outlined in W.D., preferring the evidence of Constable Bacon to the evidence of the defendant is not enough to ground a criminal conviction. Given my finding on this issue I will address the second issue briefly. Issue 2 Reasonable Excuse Constable Bacon testified that he did not believe that the defendant was driving while impaired.

There were none of the traditional indicia associated with intoxication. Significantly however, there was an odour of alcohol and empty beer cans in the car. While the defendant told Constable Bacon the empties were not from that date he was entitled to be suspicious and hold a reasonable suspicion in support of an approved screening device demand. The defendant advanced a defence of reasonable excuse based on the following cumulative factors:

1. The delay associated with the arrival of the instrument; 2. Prior personal trauma experienced by the defendant in his home country during interactions with the police in that foreign country; 3. The manifestation of the stress and anxiety of dealing with the police officers that night and; 4. To a degree, a language barrier. The defendant testified and outlined some unfortunate traumatic circumstances that he had experienced and witnessed involving thepolice in a foreign country. He testified that while waiting for the arrival of the A.S.D. these experiences came back to him.

He wasscared and he was physically impacted such that his ability to provide a sample was compromised. The interaction with the investigatingofficers in this case and the discussions about his family and his employment caused a physiological reaction such that he wasfunctionally unable to provide samples. The defendant also testified that the police made fun of him, that they were saying his wifewould leave him, his child would be taken away and/or disown him and he would be kicked out of the house. The defendant must satisfy me on a balance of probabilities of this reasonable excuse (R. v.

Goleski 2014 BCCA 80 , [2014]B.C.J. No. 347 aff’d 2015 SCJ No. 6 (SCC)). He has not done so for the following reasons: 1. As outlined moments ago I prefer the evidence of Constable Bacon. While this might not be enough to sustain proof beyond areasonable doubt given the reliability issues in his evidence, it is relevant to the balance of probabilities burden in relation to thisreasonable excuse. I prefer the evidence of Constable Bacon concerning the conversation topics (that is to say the defendant discussedhis daughter, his employment, and the need to maintain his licence).

I am not satisfied that the police engaged in the discussions or theconduct described by the defendant. 2. There is no detailed evidence concerning the circumstances described by the defendant in the foreign country. There was no contextprovided or timeline. There is no objective way for me to evaluate the truth of what he is saying. There is no external evidence tosupport the truth of what he says happened or the impact on him. 3. There was no evidence of any medical treatment or psychiatric treatment for the traumatic experiences described by him (see forexample R. v. Ohene 2003 O.J. No. 3829 or the R. v.

Mason 2011 O.J. No. 3941 O.C.J.). Two cases where medical evidence was led insupport of a reasonable excuse. 4. The defendant through cross-examination it was revealed had many interactions with the police over the past 12 years as a taxi driverseemingly without any issues. 5. The defendant verbalized nothing consistent with this self-described state of affairs at the time at the roadside. The defendant is acquitted. * * * * * * * * * *