R. v. Lewis, 2019 ONCJ 925

CITATION: R. v. Lewis , 2019 ONCJ 925 DATE: December 6, 2019 Information No. 2811-998-17-25143-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. IAN LEWIS P R O C E E D I N G S A T R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE G.R. WAKEFIELD on December 6, 2019 at OSHAWA, Ontario APPEARANCES : M. Hill Counsel for the Crown B. Micner Counsel for Ian Lewis WAKEFIELD, J. (Orally): Mr. Lewis stands charged with one count of refuse roadside approved screening device and one count of impaired care and control and one count of dangerous driving, all on the 11th day of June 2017.

The Crown case comprised the testimony of Lindsay Schneider, P.C. Curcio, P.C. Robinson and P.C. Elkington. The defendant testified as did his spouse Roxanne Cain and their son, Alex Lewis. As such, all three branches of W.D. are engaged. The two underlying issues are whether the Crown has proven beyond a reasonable doubt the issue of identity, namely whether the defendant was the driver in respect of the dangerous driving and impaired driving observed by the civilian witnesses.

And secondly, whether on the refuse charge a valid demand was made and whether there was an express or implied refusal in the circumstances of the officer's denying "one last chance" at compliance and the impact on the eventual burden of the Crown as to the mens rea of the defendant at that time. The silver sedan referred to by the civilian witnesses was confirmed to belong to the defendant and as such I will refer to the motor vehicle as the defendant's. The first issue to be resolved is whether I can find beyond a reasonable doubt that the defendant was the driver prior to being found at his residence.

The civilian witness testified she was driving with a friend in her car when she observed the defendant's vehicle swerving within its lane and then into oncoming traffic lane for a good three to five seconds before returning to its own lane. This occurred in a residential neighbourhood. Traffic was extremely light at the time. While stopping at a crosswalk intersection, they did not do so properly with a rear trunk straddling the crosswalk.

During the seven to nine minutes of following the defendant's vehicle it drove into the oncoming traffic lane at least twice in jerky movements creating a movement which looked like the letter "s". The civilians followed the defendant vehicle up to the vehicle driving into the driveway of the defendant's house. The civilians drove past that house and parked on the same street, but passed the next street awaiting police arrival. The police arrived in two minutes or less after the defendant's car pulled into the residential driveway.

She confirmed that there were other cars parked on the street near the defendant's residence. The witness was not able to assist as to how close those cars were to that residence. The witness did not see the driver exit the defendant's car, nor recall if any civilian cars passed their parked car. At no time was the witness able to see who was driving the defendant's vehicle or if there were any passengers in the car. P.C. Curcio was the arresting officer. He arrived at the defendant's residence. He testified that he was at the residence at 01:32 hours, or approximately one minute after Ms.

Schneider advised 9-1-1 that the defendant car had pulled into the driveway. He was the first officer on the scene. The officer observed that the subject vehicle was still running as its taillights were still on. The driver's door was open. The defendant was at the passenger rear door which was also open and the defendant's son was standing beside the passenger side of the car as well. He described the defendant as having bloodshot eyes and emitting the odour of alcohol on his breath.

The defendant's response to the officer's question as to how much he had to drink was that the defendant was "good" and that he was "home now". The defendant also confirmed he was coming from Scarborough; with the inference he had driven there. This is expanded on by the defendant's testimony, but for the purpose of grounds and suspicion, the officer had both the odour of alcohol on the defendant's breath, the observation of bloodshot eyes and the admission of coming from Scarborough which meant it was a reasonable inference that the defendant had been driving.

There was no admission as to the nature of driving or that the defendant was the driver observed by the civilian witness. The defendant's residence is on a crescent with two access points, one at the north end and one at the south end, both access points coming off the same street. This officer entered the crescent from the north end. It was not clear where the civilians parked awaiting police, nor evidence one way or the other by the civilians regarding any other car driving away from the defendant residence.

Specifically, the civilian witness could not eliminate the possibility of another car driving past where they were parked awaiting police. The defendant testified and denied being the driver of the car noted by the civilian witness despite it being registered in his name. He asserted that he had lent that car to his nephew, Carleton Lewis, and that the defendant had been driving a different car in which he dropped off his son at an aunt's place and proceeded to a work function at which he denied consuming any alcohol, then returned to pick up his son and return home to meet with his nephew and exchange cars.

The nephew is described as arriving at the defendant's house after the defendant had been waiting, exchanged cars and the nephew drove off. Within minutes of that the police arrive. The nephew did not testify having been killed in a motor vehicle accident a couple of months after this incident. The defendant asserted that the nephew's accident occurred in circumstances of the nephew having consumed both marijuana and alcohol. While hearsay, the Crown was offered an opportunity to check police records on that point which they declined to do so.

The defendant's spouse, Ms. Roxanne Cain testified. She confirmed the defendant's evidence of lending the subject vehicle to his nephew. She confirmed that it was her understanding that the defendant's intent to attend the work function and, in the process, drop off and pick up his son. Ms. Cain did not see how the altercation commenced between the police and the defendant, but was alerted to it by their son running into the house. She came out and observed the police searching the car with the doors and trunk open and then the hood. She interacted with police who told her to step away.

Then she interacted with the defendant to "shush" him, corroborating the officers description of the defendant being upset, but also confirming that the defendant was offering to take the breath test with one officer telling the defendant to shut the fuck up and that the officer was done with him. She was complimentary about another officer who was helping her calm down.

While her memory was suspect in a couple of instances, such as not recalling telling one officer that the defendant had been at a work function, I accept that in the confusion of what was occurring with her husband on their front yard, that those instances do not detract from her credibility. Indeed, to essentially be complimentary towards one of the officers in her testimony carries with it a more balanced testimony than perhaps the defendant.

Her description of the situation outside essentially confirms that by the time she was observing, after the arrest, that the defendant was antagonistic towards the officers and at least one officer was antagonistic towards the defendant. Their son, Alex, also testified and confirmed that the defendant was not operating the car observed by the civilians. In assessing the defence witnesses, I certainly find that the defendant minimized his reaction to the police officers. I was especially careful in listening to Ms. Cain, as she did confirm she and her husband have talked a lot about this incident.

However, as spouses, I would be shocked to hear that over two years they did not talk about it. Ms. Cain struck me as open and balanced witness as she could be given the confusion of what occurred. I am also aware of the risk that both parents may have influenced the testimony of their son. Again, that was not my impression, and as conceded by the Crown, Alex appeared to be doing his best as a witness. As such, there must be a reasonable doubt as to who the driver was of the subject car. I find the defendant not guilty of the dangerous driving count.

Apart from the odour of alcohol and bloodshot eyes early in the morning, there was no indicia of impairment amounting to proof beyond a reasonable doubt. I find the defendant not guilty of the impaired count. With respect to the charge of refuse of the approved screening device, this was a conflict of testimonial recollections which would have been completely resolved had the officers wearing body cameras. These officers were not part of the Durham police project for such cameras. At issue on the refusal charge is whether the defendant should have been afforded a last chance to blow.

Not in issue was that it was an approved device and whether it was in good working order. Given the earlier civilian call description of the defendant's car and the defendant's proximity to that vehicle, the officer's belief in detecting an odour of alcohol on the defendant's breath, the bloodshot eyes and the reasonable inference from the defendant that he had just come from Scarborough meaning he had been driving. I find that the officer did indeed have a reasonable suspicion warranting the ability to make a demand for an ASD sample. I find that the defendant was non compliant with the ASD demand read to him.

While there was not any direct refusal, I find that the defendant, by his continued expressed intent to go into his house, his described confrontational attitude towards the officers and beginning to walk towards his house could have amounted to a refusal by conduct together with pulling out his phone in response to the officer. It was never made clear as to the defendant's intent with respect to the cell phone, whether to call someone or video the interaction with the officer. Ms. Cain confirmed how upset was the defendant and clearly antagonistic towards the officers.

I also find that P.C. Curcio was agitated in response to the attitude of the defendant. I find as a fact that once in the cruiser and calming down, the defendant did agree to comply with the ASD procedure. I find as a fact that P.C. Curcio could have provided to the defendant that opportunity to provide a sample and did not do so. I find that the officer determined he was "not gonna retract my decision and my actions as an officer" otherwise he would "have to do that with absolutely everyone". P.C.

Curcio perceived the defendant who he had never met before as someone who had "played one of his games, going off about how he is home, he wasn't complying with me, so at that point I am not going to retract my decision. To me, that's -- that's not right". The officer was quite candid in his assessment that he "was not gonna sit there all night going back and forth so I effected an arrest" for someone who the officer perceived, with some justification given the defendant's demeanor towards the officer, that the defendant was antagonistic towards police. As P.C.

Curcio testified, "I could tell he disliked police maybe just disliked me". If it was this officer who used language as described by Ms. Cain, that would have been extremely antagonistic towards the defendant and aggravated the situation. The evidence before me does not support that race played a part, nor do I take it that defence asserted it. However, I do note that there would appear to have been no attempt by the officers to de-escalate the situation other than Sergeant who was on scene who engaged with Ms. Cain and obtained her help in calming the defendant.

I note that had the officer provided the last chance to blow and the ASD did not register a fail, the matter would have been resolved within minutes of the arrest. As it stood, the officer's decision meant tying up his time and other officers until the form nine release at 02:32, in an exercise which might give the impression that the officer's refusal to permit the last chance opportunity was more to do with respecting his authority than the possibility that the defendant was impaired or over 80.

The circumstances here were that the defendant, standing in his own driveway, about to go into his own house, was given the ASD demand only three times in relatively quick succession in which from the officer's arrival to arrest consumed about seven minutes. Between walking up the defendant and having initial conversation, presumable reaching into his uniform pocket to retrieve the notebook from which he said he read the ASD demand, the struggle to force handcuffing of the defendant, the perceived refusal took perhaps three to four minutes, if that.

It is always easy to be an armchair quarterback and criticize the manner in which front line officers exercise their authority, yet I have been left with the conclusion this interaction could have been better handled by all parties, police and defendant.

The question becomes whether in law the defendant should have been offered the last chance to provide the breath sample in circumstances in which the refusal was not unequivocal but implied, but in circumstances in which the officer testified to also warning of the consequences of a refusal but in which the defendant testified to still being confused as to why the police were even there.

Clearly the relevant times were short, both in the demands and in the time for the defendant to consider his predicament and say he would blow while still in the custody of the same officer in his cruiser outside the defendant's residence, though the exact time of the offer to blow was not established by either party. The officer apparently did not tell the defendant that the third demand was the defendant's last chance. In R. v. Hamilton , [2012] O.J.

No. 1909 , there was a similar situation in which there was an ASD immediately available at the scene and an offer immediately post arrest to blow gave rise to reasonable doubt as to how unequivocal was the refusal by false blows into an ASD.

In the unusually short time between demand and arrest compared to the lengthy number of refusal trials in the Ontario Court of Justice I have experienced, I am indeed left in reasonable doubt that the defendant had completed the necessary steps for his actions to amount to an unequivocal refusal given the early request for a final chance in which there was no warning of a final chance to comply.

In circumstances where arresting officer and defendant appear to have aggravated each other to the point of an unnecessary escalation in which the officer was not prepared to exercise his discretion to permit a final chance to provide a sample into the ASD in hands' reach of the officer in my view leaves me in reasonable doubt as to the defendant's ultimate decision whether to refuse or not. That is to say that I am left in reasonable doubt whether the appropriate level of mens rea was here. As such, there will be an acquittal on the final count of refuse. MR. MICNER: Thank you Your Honour.

MR. HILL: Thank you Your Honour. MR. MICNER: If we may be excused? THE COURT: Absolutely. MR. MICNER: Thank you. * * * * * * * * * *