2016 NBPC 5, 2016 NBPC 5

2016NBPC05 PROVINCE OF NEW BRUNSWICK Court File No. 04633211 PROVINCIAL COURT HER MAJESTY THE QUEEN - v. - MOHAMMED BEN SASSI Decision (No. 2) delivered by the Honourable Ronald LeBlanc, judge of the Provincial Court, at Bathurst, New Brunswick, on September 6, 2016. Accused charged under sections 253(1) (

a) and 254(2) of the Criminal Code . Counsel: René Dumaresq, for the Crown Luc Roy, for the defendant [TRANSLATION] INTRODUCTION 1 . This decision deals with two issues. Firstly, the defence brings an application for a non-suit. It alleges that the Crown failed to prove an essential element of the offence, namely that the device used by the peace officer in his attempt to obtain a breath sample from the accused was an approved screening device.

Secondly, the defence argues that, in the within matter, although the peace officer was unable to obtain a breath sample from the accused, even after explaining to him numerous times how to provide such a sample, the accused never refused to provide a breath sample. THE FACTS 2 . On May 18, 2015, Constable Kurtis Ross of the Bathurst Police Force stopped the defendant’s vehicle on St. Peter Avenue, in Bathurst. The interception of the vehicle was justified and based on reasonable grounds as a result of the commission of some driving offences. Mr.

Ben Sassi was travelling at a speed of 82 kilometres per hour in a 50 kilometres per hour speed zone. Moreover, one of the vehicle’s tail lights was burnt and therefore not working and he had, on at least two occasions, changed lanes without signalling his intention to do so. He was stopped at 2:18 a.m. 3 . When explaining to the driver why he had stopped his vehicle, Constable Ross noticed an odour of alcohol emanating from the former’s breath. It is to be noted that Mr. Ben Sassi was the driver and lone occupant of said vehicle. At the same time, Constable Ross observed Mr.

Ben Sassi fumbling while attempting to retrieve his documents. Based on these observations, he formed the belief that Mr. Ben Sassi had alcohol in his body. I am satisfied that Constable Ross had reasonable grounds to suspect that the defendant had alcohol in his body, which justified the demand to provide a sample of breath enabling a proper analysis to be made by means of an approved screening device pursuant to section 254(2) of the Criminal Code .

4 . Constable Ross instructed him to step out of the vehicle so that he could perform a test by means of an approved screening device, adding that he was of the belief that he had possibly consumed alcohol. Mr. Ben Sassi stepped out of the vehicle with both hands in his pockets. Constable Ross instructed him to remove his hands from his pockets. It is at this point that come into play a set of circumstances that will illustrate the important differences that exist between two cultures: that of the peace officer and that of the defendant. When Constable Ross instructed him to remove his hands from his pockets, Mr.

Ben Sassi raised them completely above his head. Constable Ross, of course, considered this to be unusual. He instructed him to put his arms down and to accompany him to the police car. Mr. Ben Sassi walked rapidly towards the police car, which Constable Ross found, once again, to be unusual. 5 . Mr. Ben Sassi sat in the back seat of the police car, on the passenger side. 6 . I will now speak to the circumstances in support of the application for a non-suit. Crown counsel asked Constable Ross which device he had used in order to obtain the breath sample. He answered that it was the Alcotest FST.

He was asked if this was a commonly used device and he responded that it is the device that the police force now uses. They no longer use the Dr ä ger. Crown counsel asked Constable Ross if he had undergone any training with respect to this device and if he had obtained a certificate attesting to his qualifications. Counsel for Mr. Ben Sassi stated that the defence was in no way questioning Constable Ross’s qualifications. Crown counsel nonetheless asked Constable Ross to produce his certificate and asked him the name of the device he was qualified to operate as per his certification.

When doing so, Constable Ross noticed that he had made a mistake regarding the name of the device. He testified that the device was actually the Alco-Sensor FST and added that he was qualified to operate this device. 7 . The Alco-Sensor FST is an approved screening device. The Alcotest FST is not. In my view, the application for a non-suit must be dismissed given that Constable Ross testified that he used the Alco-Sensor FST to try to obtain a sample of the defendant’s breath rather than the Alcotest FST. I am satisfied, on the evidence presented by Constable Ross, that he used an approved screening device.

There is therefore no need for me to rule on the question of whether or not the Crown was required to establish which device was used. Based on the evidence, it was an approved screening device. 8 . At 2:24 a.m., Constable Ross read Mr. Ben Sassi the demand to provide a sample of breath enabling a proper analysis to be made by means of an approved screening device. Defence counsel did not challenge the validity of the reading of the demand and did not require that it be read in Court. Mr. Ben Sassi stated that he had understood the demand and that he had decided to provide a sample of his breath.

The device was prepared to obtain the sample. 9 . Constable Ross explained in detail to Mr. Ben Sassi what he had to do in order to provide a suitable sample. He explained to him that he had to fill his lungs with air, basically to take a deep breath, seal his lips around the mouthpiece and blow into the mouthpiece, emptying the air he had in his lungs, and continue blowing until the officer told him he could stop. 10 . Mr. Ben Sassi did not provide a suitable breath sample, despite the eight chances that were given to him by Constable Ross. 11 .

In my view, Constable Ross’s instructions were detailed and precise. He repeated them more than once in clear language. I have identified no flaws in the instructions he gave to Mr. Ben Sassi. 12 . However, based on my appreciation of Mr. Ben Sassi’s testimony at trial, it is apparent that there was a certain lack of understanding of the instructions, on his part, as well as a lack of understanding of what was expected of him. 13 . The first time Constable Ross asked him to blow air into the device, he blew very briefly in the direction of the mouthpiece, without his lips ever touching it.

The device was not able to register the breath sample. Constable Ross, once again, instructed him on how to blow air into the device. On the second attempt, the same thing happened. He did not touch the mouthpiece with his lips. The device indicated [TRANSLATION] “insufficient air”. 14 . According to Constable Ross, it was obvious that Mr. Ben Sassi did not understand what he was supposed to do. He explained again how to blow air into the device, adding that he had to make sure to seal his lips around the mouthpiece. 15 . On the third and fourth attempts, Mr.

Ben Sassi stuck out his tongue and placed it on the mouthpiece’s opening.

Constable Ross concluded once again that he did not understand the instructions, as he had never told Mr. Ben Sassi to stick out his tongue. Constable Ross told him [TRANSLATION] “no” and showed him what to do by placing his index finger in his own mouth, in an effort to show him that he had to insert the end of the mouthpiece in his mouth. Mr. Ben Sassi inserted his entire index finger in his mouth. Constable Ross told him that they were going to try again and gave him more instructions. 16 . On the fifth attempt, Mr. Ben Sassi blew a bit of air into the device, but not enough air to enable a proper analysis.

Once again, the device indicated [TRANSLATION] “insufficient air”. According to Constable Ross, Mr. Ben Sassi’s attempt failed because he had not sealed his lips properly around the opening of the mouthpiece, the airflow was not constant or the mouthpiece was temporarily obstructed. It was approximately 2:32 a.m. 17 . On the sixth attempt, Mr. Ben Sassi took a deep breath, placed his lips around the opening of the mouthpiece and blew air into the device. However, the sample of breath was insufficient to enable a proper analysis. 18 . Constable Ross decided that he had to show Mr.

Ben Sassi how to blow air into the device. He removed the mouthpiece from the device and replaced it with a new one taken from a sealed package. He told him the following: [TRANSLATION] “Watch me”. He blew air into the device, obtaining a result, which was then shown to Mr. Ben Sassi. He then proceeded to remove the mouthpiece that he had used and replace it with a new one from a sealed package. It was 2:36 a.m. He gave the device with the new mouthpiece to Mr. Ben Sassi and repeated his instructions. 19 . On the seventh attempt, Mr. Ben Sassi, once again, did not provide a suitable breath sample.

He sealed his lips properly around the mouthpiece, but did not blow enough air into the device. Constable Ross informed him that if he did not provide a suitable breath sample, he would be accused of refusing to provide the required sample, adding that the consequences would be the same. 20 . According to Constable Ross, Mr. Ben Sassi was agitated, [TRANSLATION] “on edge”. He was talking about his baby and his wife at home. He kept repeating [TRANSLATION] “please, please”. He could not calm down and was talking a lot. Constable Ross told him that it was his last chance. 21 .

According to Constable Ross, on the last two attempts, Mr. Ben Sassi blew air continuously, but blocked the opening of the mouthpiece with his tongue, therefore preventing the air from entering the device. 22 . At approximately 2:44 a.m., Mr. Ben Sassi was placed under arrest for refusing to provide a sample of breath enabling a proper analysis to be made by means of an approved screening device. Constable Ross had allowed Mr. Ben Sassi to blow air into the device eight times. Despite Constable Ross’ detailed instructions and demonstration, the defendant failed to provide a suitable breath sample every time. 23 .

The four mouthpieces were admitted into evidence as Exhibit C-1. Constable Ross explained that there was nothing visibly obstructing the mouthpieces and that, in any event, he could hear the air flowing through the device, which meant that there was no obstruction hampering the proper functioning of the device. 24 . Regarding the level of understanding between the defendant and the officer, Constable Ross testified that they could communicate with one another. Constable Ross understood everything Mr. Ben Sassi said to him, despite his foreign accent.

When he asked the defendant for his documents, he gave them to Constable Ross. When he told the defendant to take his hands out of his pockets, he took them out. According to Constable Ross, Mr. Ben Sassi understood him. I note, in passing, that Constable Ross expresses himself in clear, precise and easy to understand French. 25 . Mr. Ben Sassi testified. He has a strong accent and it was not always easy to understand him. He was 33 years old at the time the events took place. He is from Tunisia. He came to Canada following a revolution in his native country, and has lived here since 2011.

At the time of the alleged incidents, he was a permanent resident of Canada, but he indicated that he had become a Canadian citizen in July 2015. His first baby was born on May 13, 2015, five days prior to his arrest. He lived in Bathurst with his wife and their newborn baby. He worked for Vestas on the maintenance of the wind turbines on route 180, near Bathurst, but he had stopped working in order to take care of his baby with his wife.

He explained that he needed to take care of his wife, since she had given birth by caesarean, that his baby was a newborn, and that he did not know how to take care of a newborn baby. He was sleeping during the day, rather than at night, the baby was crying and he was simply [TRANSLATION] “ exhausted ”. 26 . He took care of the baby and shared the chores with his wife. She was not able to cook, so he left the house early on the

morning in question to go to McDonald’s, which was open 24 hours a day, to pick up some food for him and his wife. Since he did nothave any money, he had to go to the Ultramar on St. Peter Avenue in order to withdraw money from the automatic teller machine. It ison this route that he was stopped by Constable Ross. 27. He admitted that he had consumed a beer at noon and another one between 7:30 p.m. and 8:00 p.m., and he agreed thatConstable Ross could have smelled alcohol on his breath as a result of his alcohol consumption. It was the first time in his life that hehad been stopped by a police officer in Canada.

He was fearful of Constable Ross given the problems that existed in his native country,as a result of the actions of the military and police forces. 28. Mr. Ben Sassi’s strong accent was clearly evident when he described his first contact with the peace officer. He had toprovide his driver’s licence, his vehicle registration and his insurance certificate, but his testimony relating to these events was difficultto understand, given his lack of understanding and the difficulties he had trying to communicate in French.

The police officer had askedhim if he had consumed any alcohol on the night in question and the defendant told him no, thinking that the officer was asking him if hehad consumed alcohol in the local bars. He did not understand the question, even though he understood the language used. 29. Mr. Ben Sassi tried to explain how he had had trouble understanding Constable Ross’s instructions regarding the functioningof the approved screening device, but once again, it was difficult for him to express himself in a clear and intelligible language. His firstlanguage is Arabic, not French.

He said: [TRANSLATION] “I did not understand how it worked.” He testified that sometimes heunderstood, but, at other times, he did not understand the instructions. 30. Mr. Ben Sassi testified that he had not understood everything that Constable Ross had said during his testimony. He statedthat at his work place, he occasionally has to get them to repeat instructions three times.With respect to Constable Ross, he said that hewas not able to understand everything, that there are [TRANSLATION] “peculiar accents here”.

I reference part of Crown counsel’scross-examination to illustrate the defendant’s lack of understanding. He asked Mr. Ben Sassi if it was illegal to operate a motor vehiclewhile impaired in Tunisia. Mr. Ben Sassi answered no. Crown counsel, surprised by this response, asked: [TRANSLATION] “It is notillegal to operate a motor vehicle while impaired in Tunisia?” The defendant answered that it is prohibited. The prosecutor did not askwhat the difference was between “illegal” and “prohibited”. 31.

With respect to the device, he said: [TRANSLATION] “I tried to do my best.” And regarding his testimony, he stated:[TRANSLATION] “I said everything that happened. I did not exaggerate the story.” 32. In my view, Mr. Ben Sassi was nervous. He was confused. He was in a situation that, for him, must have been very troubling.He was tired and stressed by the lack of sleep, as well as agitated by his being stopped for the first time by a police officer requiring himto provide a breath sample by means of a device that he was not familiar with, in response to instructions which he had not fullyunderstood.

It was dark, he did not see the mouthpiece attached to the device and he did not have a good appreciation of what wasrequired of him. 33. The essential elements of the offence of refusing to comply with a demand to provide forthwith a sample of breath that willenable a proper analysis to be made by means of an approved screening device as required by section 254(5) of the Criminal Code arethe following: (1) the existence of a valid demand made by a peace officer pursuant to section 254(2)(

b) of the Criminal Code; (2) thefailure or the refusal of the accused to provide the required sample of breath; and (3) the proof that the accused intended to produce thisresult. Once these three elements have been proven beyond a reasonable doubt, the accused must be found guilty of the offence, unlesshe raises a defence or a reasonable excuse: R. v. Lewko (2002), 2002 SKCA 121 , 7 C.R. (6th) 71. 34. In order to determine if there was a refusal to comply, the judge must examine and consider all of the circumstances, as wellas the general context surrounding the commission of the offence: R. v. Dupré, [1995] J.Q.

No. 1155 (Que. Sup. Ct.). 35. The onus falls on the Crown to prove that the refusal to comply was intentional. The burden of proof with respect to theintention to comply is different from that of establishing the existence of a reasonable excuse. The burden of proving intention rests withthe Crown; the burden of establishing the existence of reasonable excuse falls on the accused, but only after proof of an intentionalrefusal to comply has been established. Without proof that the refusal to comply was intentional, the prosecution cannot succeed,whether or not there exists a reasonable excuse. 36.

How can one prove that the refusal to comply was intentional? The Court of Appeal of Newfoundland and Labrador, in R. v.

Sceviour, 2010 NLCA 47, 258 C.C.C. (3d) 196, provides us with some guidance, at paragraphs 15 and 16: 15 “How can one prove that an accused intended not to provide a breath sample? Ordinarily, it is quite easy. The policeofficer from simple observation can testify (as she did here) whether or not the accused made a genuine effort to blow into thetube. 16 Case law assists with a presumption. As Freeman J.A. wrote in para. 52 of R. v. Peck, (NS CA), [1994]N.S.J.

No. 39, (1994), 359 A.P.R. 206 (N.S.C.A.), in dissent, but not on this point: A person is presumed to intend the consequences of his or her acts, so proof of the actus reus creates a presumption that therequisite mens rea was present. The presumption is rebuttable. When the actus reus [failure to provide a breath sample] is madeout by the Crown, an evidentiary burden shifts to the accused person to rebut the presumption. It is effectively rebutted when theaccused person succeeds in raising a reasonable doubt as to whether the withholding [of a breath sample] was intentional.” 37.

Thus, the question to be asked in this case is the following: Did Mr. Ben Sassi’s testimony raise a reasonable doubt regardinghis intention to refuse to comply with the demand that was made by Constable Ross to provide a sample of breath that, in his opinion,would enable a proper analysis to be made by means of an approved screening device? 38. In my view, notwithstanding the eight attempts to obtain this sample, the prosecution did not prove beyond a reasonabledoubt that Mr. Ben Sassi refused to comply with the demand. The Crown proved that the accused failed to provide a breath sample.However, Mr.

Ben Sassi’s testimony raised a reasonable doubt as to whether his failure to provide a breath sample was intentional. 39. The Court cannot harbour any reasonable doubt that the person’s refusal or failure to comply with a demand was intentional.If there is a reasonable doubt, the judge must give the accused the benefit of the doubt. 40. In my view, Mr. Ben Sassi’s testimony raises reasonable doubt as to whether he intentionally refused to comply with thedemand in this case. He was confused, tired and stressed out by the events.

In my opinion, he did not fully understand Constable Ross’sinstructions, given the important differences in their accents. Moreover, he was unfamiliar with the process of providing a breath sample,as well as with the functioning of the device used by Constable Ross. Mr. Ben Sassi did not have a reasonable excuse for not providing asample of his breath. He admitted that he could have blown into the device. Yet, he did not know how; he did not understand what wasbeing asked of him by the police officer.

I am satisfied that he made genuine and sincere efforts to comply with the demand, but wasunable to follow the instructions because he did not fully understand them. 41. Lastly, I do not believe that Mr. Ben Sassi refused to comply with the demand made by Constable Ross. The circumstancesas a whole were such that he quite simply was unable to understand what he was supposed to do.

The acts of raising his hands in the air,of imitating Constable Ross by putting his index finger in his mouth, as well as his inability to understand the police officer’s instructionsand his state of mind at the time of the events have satisfied me that this is a case involving a lack of understanding rather than anintentional refusal to comply with the demand. 42. I am going to give him the benefit of the doubt. I find him not guilty of the offence of refusing to comply with the demand. 43.

It is also worth noting that the Court would have arrived at the same conclusion in the within matter if it had relied uponCode J.’s

interpretation of the mens rea of the offence in R. v. Porter, 2012 ONSC 3504. Porter suggests that the mens rea of the offencedeals with the issue of whether the person detained acted in a deliberate manner when he failed to provide a sample of his breath, ratherthan with a specific intention to refuse. I do not have to rule on this question. In my view, whether the mens rea is one which requires aspecific intent (Lewko, supra) or a general intent (Porter, supra), the result would have been the same in this case. I am not satisfied onthe evidence that Mr.

Ben Sassi knew that the manner in which he was blowing into the device would fail to provide a suitable sample. 44. With respect to the alleged offence of operating a motor vehicle while his ability to do so was impaired by alcohol or a drug,there is no evidence to suggest that his ability to operate a motor vehicle was impaired. Other than the odour of alcohol emanating fromMr. Ben Sassi’s breath and the fact that he was fumbling with his documents, there is no evidence to support a finding that his ability tooperate a motor vehicle was impaired by alcohol.

Lastly, Constable Ross himself must not have believed that the defendant’s ability tooperate a motor vehicle was impaired given that he only made a demand for a breath analysis by means of an approved screening device.By making this demand, rather than a demand for a breath analysis by means of an approved instrument, I find that Constable Rosshimself did not believe Mr. Ben Sassi was driving while impaired. In any event, the Crown did not prove that Mr. Ben Sassi’s ability to

operate a vehicle was impaired by alcohol or a drug. I therefore find him not guilty of the offence under section 253(1) (

a) of the Criminal Code . DATED at Bathurst, N.B., this 6th day of September 2016. Ronald LeBlanc Judge of the Provincial Court