R. v. Doiron, 2023 BCPC 127

Citation: R. v. Doiron 2023 BCPC 127 Date: 20230529 File No: 69306 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ROBERT RYAN DOIRON CORRIGENDUM TO THE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.C. CHALLENGER Counsel for the Crown: S. Harvey Counsel for the Accused: G. Diamond Place of Hearing: North Vancouver , B.C. Date of Hearing: July 21, September 29, November 25, December 6, 2022 Date of Judgment: May 29, 2023

A Corrigendum was released by the Court on August 9, 2023. The corrections have been made to the text and the Corrigendum is appended to this document. Introduction [ 1 ] Mr. Doiron is before the Court charged with refusal to provide a breath sample into a screening device following a lawful demand, contrary to s. 320.15(1) of the Criminal Code . Issues [ 2 ] The Crown submits it is sufficient for the Crown to prove the accused knew a lawful demand was made and a sample was not provided.

If the Crown meets that burden of proof, the accused must establish a reasonable excuse for the failure to provide a sample to the balance of probability to avoid being convicted. [ 3 ] Counsel for Mr. Doiron argues that the Crown must prove beyond a reasonable doubt that the accused intentionally failed to provide a sample.

The accused says the current provisions do not comport with the Charter and thus should be interpreted to require the Crown to also prove the mental element for the failure to provide a sample. [ 4 ] These differing positions arise from the amendments to the Criminal Code in Bill C-46 (in force December 18, 2018) respecting offences relating to conveyances. The

section in issue provides: “Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under

section 320.27 or 320.28 .” [ 5 ] Mr. Doiron also argues that the demand was unlawful as there was an unacceptable delay once the officer formed the requisite suspicion due to calling for and waiting on back-up officers to arrive. He also says the offence was not complete at the time of his arrest.

Summary of the Evidence [ 6 ] The Crown called three police officers to testify. The defence elected not to call evidence. [ 7 ] Cst. Cadorette was the investigating officer. He had been an officer on patrol in Whistler for five years and administered ASD’s five to twenty times each shift. He had confirmed the ASD used in this matter was properly maintained prior to starting his shift. [ 8 ] He observed Mr. Doiron in the driver’s seat of a van as he turned left in front of him and believed he was not wearing a seatbelt. Mr.

Doiron was pulled over without incident and there was nothing in the manner in which he was driving to indicate any impairment. [ 9 ] Cst Cadorette recognized Mr. Doiron immediately. When he began to speak to him he could smell a strong odour of liquor on his breath and observed he had glassy eyes which caused Cst Cadorette to suspect that Mr. Doiron had alcohol in his body and to determine he would make an ASD demand. Cst Cadorette said that he was very close to Mr. Doiron . He did not recall if Mr.

Doiron was wearing a mask but said over the course of the pandemic he was able to smell the odour of liquor on a person’s breath even if they were wearing a mask. [ 10 ] He had dealt with Mr. Doiron before, and as a result of those encounters, was of the view he presented a potential risk to officer safety. As he was alone, he immediately called for back-up. His view of Mr. Doiron as a potential risk was corroborated by other officers. One officer had previously arrested Mr. Doiron under the Mental Health Act and provided him with medication. During another encounter Mr.

Doiron was agitated and aggressive towards officers which resulted in the use of a Taser to gain control of him. [ 11 ] While waiting for back-up, he had a brief conversation with Mr. Doiron during which he confirmed his identity. Mr. Doiron also said he had not consumed any liquor since 08:00 that morning. [ 12 ] As soon as back-up officers arrived, he read the demand and presented the approved screening device to Mr. Doiron . He explained that Mr. Doiron would need to take a deep breath, seal his lips around the straw and blow hard and continuously until told to stop.

He did not make notes of the explanation and relied on his usual practice. Mr. Doiron was asked by Cst Cadorette if he understood the demand and the instructions he was given on how to provide a sample and Mr. Doiron acknowledged his understanding. [ 13 ] The ASD was presented to Mr. Doiron six times after which he was deemed to be refusing to provide a breath sample and was arrested. Mr. Doiron became agitated and was taken to the detachment. [ 14 ] Mr. Doiron was noted not to be wearing a seatbelt and pulled over at 4:32 p.m. Cst. Cadorette called for back-up at 4:33 p.m.

Back-up officers arrived on scene at 4:36 p.m. The demand was read from a standard issue Charter card at 4:40 p.m. and the first attempt was at 4:41 p.m. Mr. Doiron was deemed to have refused and was arrested at either 4:47 p.m. or 4:48 p.m. [ 15 ] The ASD readings for each sample were: #1 - Flow high; #2 - Flow insufficient; #3 - Flow insufficient; #4 – Blow; #5 – Flow high; #6 – Flow high. [ 16 ] After the second attempt Mr. Doiron told Cst. Cadorette he had asthma and had never provided an ASD breath sample before. Cst Cadorette did not make any inquires of Mr. Doiron with respect to his asthma.

He said he did not observe any problems with Mr. Doiron ’s breathing. [ 17 ] Cst. Cadorette did not provide any other instructions or advise Mr. Doiron what he was doing wrong as each attempt was made, even though he concluded that Mr. Doiron was blocking the straw with his tongue or failing to seal his lips around it or was not blowing for a long enough time.

[18] After the 3rd attempt Mr. Doiron was told that the consequences for failing to provide a sample would be a criminal offence andresult in a driving prohibition. [19] After the 5th attempt Cst. Cadorette inserted a new straw, demonstrated how to provide a sample and explained what Mr. Doironwas required to do. This demonstrated the ASD was operating properly as it registered a zero reading. [20] After the 6th attempt Mr. Doiron was arrested. Cst. Cadorette could not recall if Mr.

Doiron was told it would be his last chanceto provide a sample. [21] At some point “near the end” of the series of attempts another officer, Cst Pannu, intervened to explain to Mr. Doiron that heneeded to provide a consistent long breath and explained the consequences of failing to provide a sample. That officer testified that Mr.Doiron appeared to acknowledge what she had said. [22] Cst Kwan said he recalled Cst Cadorette telling Mr. Doiron to “keep going, keep going” as Mr. Doiron was being administeredthe ASD. [23] Immediately after being arrested, Mr.

Doiron asserted that he had “the right to blow” into a second device. Mr. Doiron was toldthis procedure only applied where an immediate roadside prohibition was being considered. Mr. Doiron became agitated and was“screaming” after his arrest. He was not observed to have any trouble with his breathing at this point. [24] He again requested an opportunity to provide a sample into an ASD at the detachment after speaking with counsel. As in theofficers mind the offence was complete, this did not occur. Findings of Fact [25] The only evidence of whether Mr.

Doiron was properly considered to present a risk to officer safety was that of the officers. Iaccept that Cst Cadorette held his belief in this regard based on reasonable grounds. [26] I accept that he could detect the odour of liquor coming from Mr. Doiron’s breath. There is no issue that Mr. Doiron wasoperating his vehicle. This is sufficient to establish the grounds to make the ASD demand. See: R. v Lindsay (ONCA), [1999] O.J. No. 870 ONCA and R. v. Hare 2018 BCPC 379 at para 22. [27] I accept the evidence of Cst. Cadorette that the ASD was calibrated and working properly.

I also accept his evidence as to thecourse of events. He made contemporaneous notes about times and the results on the ASD. I also accept his evidence, based on hisusual practice, regarding the instructions given to Mr. Doiron about how to provide a sample. This evidence established beyond areasonable doubt that Mr. Doiron knew a demand had been made. [28] I cannot accept as reliable his memory as to whether he actually observed Mr. Doiron block the straw with his tongue or when hefelt breath on his hand. However, I find he honestly reconstructed these observations based on the readings on the ASD.

I cannot findhe told Mr. Doiron prior to the sixth attempt that it would be his last chance to provide a sample given his lack of recall in this regard.The evidence of the officer who testified that Cst. Cadorette was telling the accused to “keep going” is unreliable. No notes were madeand that officer’s attention was focused on the accused’s vehicle and the safety of the officers: Wood v. Schaeffer 2013 SCC 71 at para67. [29] There is no evidence Mr.

Doiron’s behaviour in failing to supply a proper sample resulted from any physical or mental healthchallenges or from a failure to comprehend the instructions given to him about how to provide a proper sample. He was calm andresponsive during the process of the demand and attempts. [30] Although he asserted he had asthma, he did not tell the officer that it was impacting his ability to provide a sample. I accept theevidence of the officers that they did not observe Mr. Doiron to have any difficulties with his breathing.

He made no other complaint orprovided any further information respecting any difficulties he was having in providing a sample.

He did not ask for any clarificationabout what he was supposed to do. [31] A person who had been given a demand to provide a breath sample into an ASD has a duty to express their concerns to theofficer about their ability to provide a sample and to ask questions if they do not understand what they are being asked to do: Bradley(cited below) at paras 152 to 154. [32] His immediate assertion of his “right to blow” into a second device is inconsistent with not being able to provide a sample due torespiratory issues and supports the inference he did understand the demand and understood he was required to provide a sample.

Delay in Making the Demand [33] The delay in making the demand after forming the requisite suspicion was 6 to 7 minutes. The call for back-up was madeimmediately. The few minutes of delay from the time the first back-up officer was on scene at 4:36 p.m. to 4:40 p.m. when the demandwas made was occasioned by the need to brief the other officers once they had all arrived. There is no unexplained delay. [34] In R. v. Breault 2023 SCC 9 the Court found that an officer who makes an ASD demand must have an approved screening devicein their possession at the time the demand is made.

With respect to issue before this court of the delay in making the demand due toconcerns about officer safety the following passage is germane: C. Unusual Circumstances That Allow for a Flexible

Interpretation of the Word “Forthwith” [53] The Quebec Court of Appeal was correct in law in stating that unusual circumstances related to the use of the ASD or thereliability of the result that will be generated may justify a flexible

interpretation of the word “forthwith” found in s. 254(2)(

b) Cr. C.

[54] As I mentioned above, it is neither necessary nor desirable for the purposes of this appeal to identify in the abstract, and in anexhaustive manner, the circumstances that may be characterized as unusual and may justify a flexible

interpretation of the immediacyrequirement. It is preferable for those circumstances to be identified on a case-by-case basis in light of the facts of each matter. However,it is important to provide some guidelines to assist lower courts in this inquiry. [55] First, the burden of establishing the existence of unusual circumstances rests on the Crown. [56] Second, as in Bernshaw, the unusual circumstances must be identified in light of the text of the provision (Piazza, atpara. 81 ).

This preserves the provision’s constitutional integrity by ensuring that courts do not unduly extend the ordinarymeaning strictly given to the word “forthwith”. [57] Like the provision at issue in Bernshaw, s. 254(2)(

b) Cr. C. specifies that the sample collected must enable a “proper analysis” tobe made, which opens the door to delays caused by unusual circumstances related to the use of the device or the reliability of the result. [58] That being said, courts might recognize unusual circumstances other than those directly related to the use of the ASD or thereliability of the result that will be generated.

For example, insofar as the primary purpose of the impaired driving detection procedure isto ensure everyone’s safety, circumstances involving urgency in ensuring the safety of the public or of peace officers might berecognized. [59] Third, unusual circumstances cannot arise from budgetary considerations or considerations of practical efficiency. A flexibleinterpretation of the immediacy requirement cannot be justified by the magnitude of the public funding required to supply police forceswith ASDs or by the time needed to train officers to use them. There is nothing unusual about such utilitarian considerations.

Allocating alimited budget is the daily reality of any government (Conseil scolaire francophone de la Colombie-Britannique v. BritishColumbia, 2020 SCC 13, [2020] 1 S.C.R. 678, at para. 153). [60] Fourth, the absence of an ASD at the scene at the time the demand is made is not in itself an unusual circumstance. (emphasisadded) [35] See also: R. v. Fildan ONSC, Hill, J. at para 39; R. v. Quansah 2012 ONCA 123 at para 48; R. v Ranieri 2007ABPC 50 at paras 22 to 25. [36] I find as fact that Cst.

Cadorette held an articulable and legitimate safety concern and diligently pursued his duty to make thedemand forthwith in all the circumstances. During that time he was alone roadside with Mr. Doiron and was not in a position toimplement Mr. Doiron’s 10(

b) rights during the delay. I find the demand was lawful. Mens Rea of Refusal under s. 320.15(1) of the Code [37] I agree with the analysis of Paciocco, J. (as he then was) in R. v Soucy 2014 ONCJ 497 with respect to the mens rea which wasrequired to be proven under s. 254(5), the previous provision regarding failure to comply with an ASD demand.

He determined that theCrown was required to prove beyond a reasonable doubt that an accused failed to provide a proper sample on purpose which reflected theunderlying value in criminal law that the morally innocent should not be punished. [38] In the current provision, this fundamental value is seen to be met by allowing for an accused to establish a reasonable excuse forfailing to provide a sample. [39] The mens rea required to be proved under this provision has not yet been the subject of consideration by any superior appellatecourt. However, the weight of the authorities from Superior Court

summary conviction decisions and Provincial Court decisionssupports that the Crown need only prove knowledge of a lawful demand and a refusal to comply. The offence is one of general intentand it falls to an accused to establish a reasonable excuse should the Crown meet its burden of proof. [40] R. v.

Bradley 2022 NBQB 31 at paras 121 to 189 provides a detailed (and entertaining) analysis of the mens rea required under s.320.15(1) and concludes at para 184: “I realize that this is uncomfortably close to putting an onus on an accused, normally not permissible in the criminal law, but this accordswith the intent of Parliament and the finding by the Supreme Court of Canada that some impaired driving laws are close to absoluteliability laws. They survive constitutional challenge however because they allow for an accused to escape liability by way of proof of areasonable excuse.

It is not for this Court to defeat that intention considering the universally known carnage Parliament continues towork toward preventing.” [41] R. v Daytec 2021 ABPC 48 also provides a comprehensive analysis of the mens rea requirement for s. 320.15(1) at paragraphs50 to 58. See also: R. v Turnbull 2022 ABQB 42; R. v Sweet 2022 SKQB 126; R. v Arudselvam 2022 ONCJ 445; R. v Mckinnon 2020ABPC 86; [42] I find the reasoning and analysis in each of the above decisions to be sound, complete and persuasive.

Although I am not boundto follow any of these authorities, I agree with the conclusion reached in each. [43] I decline to follow the decisions of R. v Taylor and R. v Burgess 2021 NSPC 34 as those decision are not fullyreasoned and fail to consider the intent of Parliament. [44] I find the Crown has met the burden of proof and established that a lawful demand was made, Mr. Doiron had knowledge of thatdemand, and failed to provide a proper sample of his breath. Was the Offence Complete?

[ 45 ] Mr. Doiron argues that as he was not told the sixth attempt would be his last chance and because he immediately asserted “the right to blow” that the offence should not be found to have been complete at the time he was arrested. This issue is inextricably intertwined with the issue of whether the officer properly concluded at the time that the subject was purposefully failing to provide a sample. [ 46 ] There is no “right to blow” into an ASD once a subject has been deemed to be failing to comply: R. v. Wilson [1996] B.C.J. No. 887 . [ 47 ] I find that Mr.

Doiron ’s conduct over the series of attempts as described by Cst. Cadorette gave rise to an inescapable, and therefore reasonable, inference that he was intending not to provide a breath sample. He blew both too forcefully and too softly and did not continue to blow until told to stop on any attempt. On one attempt he did not blow at all. He showed no signs of difficulties with his breathing throughout the process or in his later dealings with the officer. I have taken into account that at the moment the officer deemed him to be purposefully failing to comply Mr.

Doiron had not yet asserted that he had “the right to blow” into a second device. [ 48 ] It was also suggested that the pace of the attempts to obtain a sample was pressured and the presence of three officers was intimidating. There is no evidence that Mr. Doiron felt pressured or intimidated or that this impacted his ability to provide a breath sample. There is no evidence of how much time is required to provide a sample or to reset the ASD to receive another sample. [ 49 ] I have considered that the entire series of transactions relating to the attempts to obtain a sample occurred over 7 minutes and that Mr.

Doiron was not told after the 5 th attempt that the next would be his “last chance”. However, in all the circumstances I find Cst. Cadorette was correct in concluding Mr. Doiron was purposefully failing to provide a proper sample and deeming him to be refusing after the sixth attempt. [ 50 ] I do not find that Mr. Doiron ’s immediate assertion of his “right to blow” into a second device to be evidence of a sincere effort to comply. If so, he would have asked to provide a sample into the ASD which had already been presented to him. I find that statement corroborated the officer’s conclusion that Mr.

Doiron was purposefully failing to comply. [ 51 ] The circumstances in the matter before me are distinguishable from those in R. v Arduselvam 2022 ONCJ 445 where the accused had been in a serious motor vehicle accident. The attempts to provide a sample were made in a hospital bed. After several attempts he was deemed to have refused. The accused immediately asked for another opportunity to try to provide a sample. The accused testified that he was suffering from chest pain but was unable to articulate this to the officer.

The Court found this evidence established a reasonable excuse to the balance of probability. [ 52 ] R. v Artunian 2022 ONCJ 172 and the cases referred to therein are also distinguishable . In Artunian the accused immediately asserted her 10(

b) rights upon being stopped in a roadblock. She then was given seven opportunities to provide a sample into an ASD and, similar to Mr. Doiron , did not follow the directions of the officer on how to provide a proper sample. After the 7 th attempt she was arrested, exercised her right to counsel and immediately thereafter offered to provide a sample of her breath into the ASD.

This offer was found to have been sincere and that the officer should have provided her another opportunity. [ 53 ] I agree with the proposition that telling a subject that the next attempt would be their last chance to comply may provide more cogent evidence of an intention not to comply and in turn that the offence was complete. However, whether an officer did or did not advise about a “last chance” is one of many factors to be considered when determining whether they were correct in deeming a subjects conduct to amount to a refusal and treating the offence as complete.

The Court must carefully consider all of the circumstances when determining the mental state of a subject from their conduct. [ 54 ] Having carefully considered all of the circumstances I find the offence was complete at the time Cst. Cadorette deemed Mr. Doiron to have failed to provide a proper sample and arrested him. Has the Accused established a Reasonable Excuse? [ 55 ] I have already canvassed the circumstances relating to any potential reasonable excuse in my findings of fact.

I do not find the evidence establishes to the balance of probability any reasonable excuse for failing to provide a breath sample. [ 56 ] In my view, Mr. Doiron ’s immediate assertion of “the right to blow” into a second device, given the device being used had been demonstrated to him to be working properly, gives rise to the inference that Mr. Doiron was being guileful in failing to provide a sample into the first device in order to achieve this result. His reaction when told that procedure was not applicable in the circumstances supports that inference. [ 57 ] I find Mr.

Doiron guilty. ________________________________ The Honourable Judge J.C. Challenger Provincial Court of British Columbia CORRIGENDUM - Released August 9, 2023

In the Reasons for Sentence dated May 29, 2023, the following changes have been made: [1] The cover page title should read: REASONS FOR JUDGMENT ________________________________ The Honourable Judge J.C. Challenger Provincial Court of British Columbia