R. v. Dufresne, 2017 ONCJ 872

CITATION: R. v. Dufresne , 2017 ONCJ 872 DATE: August 22, 2017 Sudbury Information No. 16971 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Ms. C. Croteau ) for the Crown ) — AND — ) ) ) DAVID DUFRESNE ) Mr. J.

Gauthier ) for the accused ) ) ) ) HEARD: August 21, 2017 kukurin J. [ 1 ] The accused, David Dufresne, is charged with two offences • S. 253(1)(a) – Impaired care or control of a motor vehicle • S. 254(5) – Failure or refusal to provide breath sample Background: The Crown’s Case [ 2 ] The crown’s story involves a call to police by personnel from the Solid Gold Bar, in Sudbury at about 2:40 am on March 12, 2016.

The officer who answered the dispatch call found the accused sitting in the driver’s seat of his motor vehicle, the front wheels of which were described as “really into a snowbank”, in a location which was clearly not a parking spot in the lot of the bar at that time of the year. The driver was later identified as the accused. He immediately said “Arrest me” when the officer approached, and put his hands out to be cuffed. The officer engaged the accused in conversation, but according to the officer, the accused was making illogical speech.

The accused told the officer that he was beaten up by some “other guys”, that he wanted to touch the officer’s bum, that he wanted to give the officer a hug and a kiss (or be hugged and kissed by the officer) and that he wanted to be “tazered”. This kind of talk persisted for some time, even into the breath room at the police station some time later. [ 3 ] The arresting officer could initially get no information from the accused as to his name, his ownership registration, or where the keys to the car were. The accused was laughing and giggling throughout this entire time.

The accused responded that he had had five drinks, then quickly amended this to three drinks. The car engine was not running when the officer arrived. The sun roof was open. It was freezing temperatures with snow still on the ground. The keys were ultimately found by a backup officer called to the scene, on the outside of the front windshield. She also found a half full bottle of Appleton rum in the vehicle. [ 4 ] Observations of the accused were consistent with impairment – falling down on exiting the vehicle, red eyes, talk consistent with inebriation, in addition to the bizarre talk mentioned previously.

In fact, the state of inebriation was not hotly contested by the accused. One observation made by the officer was of a blackened left eye of the accused, an observation also later noted by the breath technician. [ 5 ] The first officer quickly and accurately made a conclusion of impairment and arrested the accused. He was read his required rights to counsel, caution and a breath demand was made of him. He was brought to the police station and booked in, and subsequently turned over to a breath technician to provide a breath sample.

The giggling, nonsensical talk continued with little or no co- operation by the accused. Finally when the breath tech made a second demand for a sample, the accused outright said “refuse”, slid off of his chair, face first onto the floor and put his fingers in his ears, and eventually gave the breath tech his middle finger. At this point he was advised he was under arrest for refusing to blow and taken to the cell area to be lodged. The breath tech described the accused’s behaviour as erratic and unpredictable.

He cautioned him more than once not to touch the officer or he would be arrested for assaulting a police officer, and also that refusing to blow was an offence in itself with which he could be charged. [1] [ 6 ] Also as part of the crown’s narrative was information supplied by the bouncer/security guard at the Solid Gold Bar. Mr Duffy testified that the accused had come to the bar with a bottle of Pepsi in hand. Mr Duffy quickly recognized that the accused was intoxicated and refused him entry into the bar. He made arrangement for the accused to be placed in a taxi cab and driven away.

He also emptied the accused’s Pepsi bottle in which was an alcoholic beverage. This was at about 1 am. Mr Duffy next saw the accused when he went outside at about 2:30 as the bar was closing. He saw the accused in his vehicle, which Mr Duffy says was idling and had lights on (although unable to specify which), the radio playing, and the car’s front wheels in the snowbank. He observed the accused with his head and torso outside the vehicle standing up through the sunroof, and he was yelling and making noise. Mr Duffy thereupon called the police to come to the bar. Background: The Accused’s Version

[ 7 ] The accused testified. He indicated that he had been assaulted at or near the KG Bar in New Liskeard by some unknown persons. He ended up being brought by ambulance to the Temiskaming Hospital where he was seen by a doctor (whose name the accused does not know), spent the night here and was released the next day (March 11, 2016). He does not recall if someone picked him up at the hospital. The next thing he recalls is driving to Sudbury, alone, but was unable to give any reason why, as he has no family and only a few acquaintances whose addresses are not known to him.

He does not know when he left, and when he arrived, and what he did after he arrived. He claims that he went to the Solid Gold Bar (although he does not know why he went there or how he got there) where he had a few drinks, and where he gave his car keys to the bartender, lest he leave intoxicated and drink and drive. He did not initially recall being put into a cab, where he was driven by it, and had no independent recollection of how he ended up in his vehicle at about 2:40 am. He later recalled, or rather seemed to infer, that the taxi had brought him back to the Solid Gold Bar.

He does not know how this came about. He does not recall the observations of him made by Mr Duffy (torso out of sunroof and making a racket) but does not dispute them. [ 8 ] He does not actually dispute any of the first officer’s testimony about his (the officer’

s) observations and interactions with him. It would be difficult to do so in face of the video of his behaviour in the breath room which is best described as more of the same behaviour as he had demonstrated initially. At best, he claims that this was not really him, in the sense that this was not how he normally conducts himself.

He could not explain his conduct and his bizarre speech. [ 9 ] He claims that he suffered from the beating that he received the day previously in New Liskeard, that the after effects of this was what caused his erratic and unusual behaviour in Sudbury, perhaps combined with his consumption of alcohol. He invited the court to conclude that he may have been suffering from concussion or some other condition that made him “cognitively impaired” in Sudbury. He also ascribes his poor memory to this beating, perhaps in combination with alcohol consumption.

He was clearly released at some point from police custody, but could not recall how he retrieved the keys to his vehicle. Credibility [ 10 ] I discount almost completely the accused’s version of events, and I do so for a number of reasons. [ 11 ] Firstly, this case took place well over a year ago – plenty of time for the accused or his counsel to obtain something from the doctor or the hospital in New Liskeard to confirm that the accused had spent the nigh there, and had been checked out and released. This was never provided.

The accused claims he left his keys with the bartender and had a few drinks at the Solid Gold Bar. No bartender was called to confirm this was true. In fact this was contradicted by Mr Duffy, the bouncer, who claims he refused bar entry to the accused, and also by backup officer Legace, who claims she found the accused’s car keys on his windshield and gave them to the arresting officer. He could also have called the taxi driver to confirm what happened when he left the bar in the taxi and when he returned. But there was no such witness called.

In short, the accused’s failure to call any such evidence at trial indicated to me that this evidence simply did not exist. I assume that the crown made full disclosure of its case, so the information the accused could anticipate at trial was long since known to him. [ 12 ] Secondly, the accused relies on the effects of his beating in New Liskeard as the cause of his poor memory and erratic/unusual behaviour. However, he has nothing except his own say so, that this was the causation.

I am not prepared to take judicial notice of this alleged altercation as a causation of either the incredible loss of memory of the accused, nor am I prepared to accept that this was caused as a result of this New Liskeard assault. Really the only physical evidence of this assault was a black eye of the accused. His own testimony is that he was seen by a physician, spent the night in hospital and was released. The accused had no physical evidence of bruises to other parts of his body that he described. Moreover, he initially testified that the police were not involved in his New Liskeard assault.

In cross examination, this story changed. It appears that the police asked him if he wanted to lay charges but he declined as he was unable to identify his assailants. [ 13 ] Thirdly, I am faced with clear evidence of alcohol consumption by the accused and almost equally clear evidence that he was seriously intoxicated. This was evident from the testimony of all of the crown’s witnesses. None of these persons had had anything to drink of an intoxicating nature. The accused, on the other hand, had clearly had lots to drink, to the point that he was plain drunk.

As a result, I am bound to prefer the evidence of the crown over that of the accused, and particularly where it conflicts. [ 14 ] Finally, I am unable to reconcile the occasional recall of some events with the inability to recall others on the part of the accused. For the most part, his recollection was of events which were favourable to his case. This selective memory is not explained. In addition, when he does exhibit this recall, it was often of events that were contradicted by evidence of others who were sober at the time of such events.

One glaring example is whether he was even allowed into the bar at the Solid Gold where he claims he had five then amended to three drinks. Impaired Care or Control [ 15 ] There is an abundance of case law developed in our jurisprudence on this charge. The law is designed to “ cope with and protect the person and the property from the danger which is inherent in the driving, care or control of a motor vehicle by anyone who is intoxicated ...” [2] This involves the consideration of risk.

There is a presumption in the law that a person who occupies the driver’s seat of a motor vehicle and, at the same time whose ability to operate a motor vehicle is impaired by alcohol or a drug is guilty of the offence of impaired care or control. In this case, the accused fit well into this category. It was incumbent upon him to rebut this presumption. Has the accused, Mr. Dufresne done so. I do not believe he has. [ 16 ] There is no question that his ability to drive was impaired by alcohol.

The fact that it may also have been impaired as a result of a beating he received the previous day does not change the fact of impairment by alcohol. And there is plenty of evidence of his consumption of alcohol, even his own admission. The accused did not lead any evidence that linked his behaviour and conduct while in Sudbury, including his inability to recall events, to any alleged beating he may have suffered except the fact that he had a black eye and his own evidence that he had been hospitalized and released in New Liskeard.

There was no “traumatic brain injury” evidence in this trial except in submissions of counsel. [ 17 ] The defense posed by the accused in this case was directed more to the inoperability of the motor vehicle and the

consequent lack of risk to anyone, the accused and the public, that is at the heart of what the charge is meant to protect against. So let us examine that proposition. [ 18 ] Firstly, a motor vehicle needs keys. The evidence is conflicting on the whereabouts of the keys. I prefer the evidence of the crown witnesses for reasons stated. Therefore, the accused had the keys. He must certainly have had them when the bouncer observed the car idling at about 2:40 am and the accused within (and partly sticking out of) the car.

They were found later on his windshield with no explanation (that made sense) by the accused of how they came to be there. Clearly, he had shut off the engine by the time the police had arrived. [ 19 ] Secondly, that the car was operable as was clear from the fact that it was idling, and had lights and radio on. What the accused attempted to show is that it was inextricable from the snowbank in which its front wheels were sunk. However, the accused led no evidence of whether the vehicle was inextricable from its location. In fact, the only evidence of this is from crown witnesses.

It was clear that this was going to be a defence argument and so what they had to say was of importance. Giving their evidence it greatest weight, the most that can be said of the vehicle at the time is that its front wheels were “really into the snowbank” and in cross examination, were “really stuck in the snowbank” according to the arresting officer. Officer Legace, the backup officer said that the car was stuck in the snowbank. Mr Duffy said the “car was in a snowbank”. There were no photos taken of the vehicle. Was it inextricable on this evidence? [ 20 ] I hesitate in coming to this conclusion.

This is not a case where it was abundantly clear on the facts that no one could extricate the vehicle from its location. It was merely stuck in a snowbank. There was no evidence from any tow truck driver as to whether it could be or even whether it was removed on its own power. It is incumbent on the accused to satisfy this court that the vehicle could not be extricated from its location. He has failed to do so. [ 21 ] Moreover, I disbelieve him when he says that it was his intention to sleep in the vehicle that night.

While other obvious avenues were perhaps not open to him, this did not include all other avenues. He had the sun roof open on a night when temperatures were freezing. He was in the front seat, not the back seat. He did not have keys (on his own admission) to start the car heater if he got cold. I find that having pajama bottoms on to be a ridiculous basis for inferring he was going to sleep in the car. Moreover, he was strongly intoxicated to the point that I doubt that he could even make a decision to sleep in the car. Finally, he was afforded the opportunity to have a ride away from the scene in a taxi.

He could have paid for a hotel room or stayed at a shelter where it made more sense for him to spend the night. [ 22 ] On this charge, the crown has established the pre-requisites necessary for the presumption of impaired care or control to apply. He has failed to rebut the presumption with any credible evidence on the balance of probabilities, which is not an onerous standard of proof. Accordingly, I find him guilty of impaired care and control. Refusal to Blow [ 23 ] The accused took no issue with any Charter violations on the part of the police.

He bases his refusal to blow on his own condition at the time that a demand was made for him to provide a sample of his breath. The argument he makes is that he was unable to appreciate the nature and consequences of his refusal to blow as a result of the effects on him of the assault the previous night in New Liskeard. [ 24 ] That the accused was advised by the breath technician that refusal to blow would result in a separate charge was not disputed as this was clear from the video of what took place in the breath room.

It was equally clear that the accused was paying little attention to either the breath tech and the arresting officer while in that room, and in particular to the conversation the breath tech was trying to have with the accused. Was this conduct due to the effects of the New Liskeard altercation? I doubt it. I believe his conduct to be much more the result of the consumption of alcohol by the accused prior to his arrest. [ 25 ] Firstly, the accused drove from New Liskeard to Sudbury. This is not like going from Sudbury to Lively. It is a three or more hour drive on a busy highway. He was alone.

He made it to Sudbury without incident of which I am aware. So clearly, his mental faculties were clearly in sufficient order for him to make this trip. [ 26 ] Secondly, according to him, he was released from the Temiskaming hospital after an overnight stay. I infer that he was released voluntarily by the health care givers there and was deemed fit to be released. This adds to the inference that his mind was in good working order after the New Liskeard incident. [ 27 ] Thirdly, he gave some indications of insight and appreciation into the consequences of his being found guilty.

He verbalized something about their “not taking his driver’s licence away again” at one point. When the demand for a breath test was made a second time by the breath tech, formally read from a prepared text, the accused clearly indicated his “refuse” as was evident in the audio/video recording.

Moreover, the evidence of the breath tech was that the accused slid off of the chair in which he was seated, fell face forward to the floor, put his fingers into his ears so he would not have to hear/listen, and ultimately gave the breath tech the “finger”, a well recognized signal with a well recognized meaning. [ 28 ] Why would the accused refuse to provide a sample? Who knows? It was abundantly clear that he was inebriated in any event. What is clear is that he did refuse and did so quite emphatically. What is not clear is what prompted this refusal.

If it was the aftermath of the New Liskeard incident, it was incumbent on the accused to provide some evidence, preferably from a reputable mental health professional, who might convince the court that there was this possibility based on examination. If it was due to the accused’s consumption of alcohol, I am not sure that this constitutes an excuse that is reasonable in the circumstances. To hold otherwise would destroy the underpinning for this offence. [ 29 ] The crown has to prove (

i) a proper demand, (ii)a failure or refusal to provide a sample, and (iii) an intention to fail or refuse to provide the required sample. [3] The defence of “reasonable excuse” is engaged only after the crown has proven its pre-

requisites of demand and failure to provide. There is some controversy over whether the crown must prove the absence of reasonable excuse on the part of the accused, or whether the accused must prove reasonable excuse for not complying with a demand. The Goleski case, supra, outlines the various factors that are relevant to this debate. In the present case, these considerations favour an

interpretation that the accused knew what was required of him and he deliberately refuse to comply. This is the only way I can interpret his articulated refusal and his subsequent childish behaviour following. Moreover, his assertion, or intimation that he did not have to comply because he was not able to put his vehicle in motion is additional evidence that he did understand and appreciate what he was required to do. [ 30 ] Accordingly, I find the accused guilty on this charge as well. [ 31 ] I do not believe that the Kienapple principle [4] applies to these two charges.

They are different and the res judicata argument is of no merit. The offences under these charges are separate and distinct, both as to time and to place and as to the facts underlying them. [5] Released: August 22, 2017 Signed: “Justice John Kukurin”