R. v. DeCaire, 2018 ONCJ 635

CITATION: R. v. DeCaire , 2018 ONCJ 635 DATE: July 10, 2018 Information No. 17-1126 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ROBERTO DECAIRE REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE J. STRIBOPOULOS on July 10, 2018, at BRAMPTON, Ontario APPEARANCES : D. Portolese Counsel for the Crown P. Mergler Counsel for Roberto DeCaire TUESDAY, JULY 10, 2018 REASONS FOR JUDGMENT STRIBOPOULOS, J . (Orally): Mr. DeCaire is charged with “refusing” to provide a breath sample in response to a lawful approved screening device demand, contrary to s. 254(5) of Criminal Code of Canada .

On the evening of January 17, 2017, Mr. Decaire was involved in a motor vehicle accident with another vehicle. His vehicle was struck on the driver’s side as he attempted to make a “U-turn”. Apparently, Mr. DeCaire’s vehicle was “T-boned” by the other vehicle. Mr. DeCaire’s vehicle suffered significant damage in the collision. It is not contested that on the evening in question Mr. DeCaire was subject to a lawful Approved Screening Device demand. The various preconditions for the making of such a demand, pursuant to s. 254(2) of the Criminal Code , were clearly met.

At the time of the demand, the officer had ample reason to suspect that Mr. DeCaire had been operating a motor vehicle within the preceding three hours and that he had alcohol in his body. The device that Constable Alton presented to Mr. DeCaire, the Drager Alcotest 6810, is an “Approved Screening Device.” The officer’s evidence also served to establish that the device was in proper working order on the evening in question. Further, there is no issue that Mr. DeCaire did not provide a breath sample in response to the officer’s lawful demand.

Rather, given the evidence and the positions of the parties, there is really only one live factual issue in this case. That being, whether or not Mr. DeCaire, as he claims, failed to provide a breath sample because of the debilitating effects of sciatica pain. Before turning to the evidence, I will briefly address an important legal issue, about which the parties disagree, that arose during the course of argument. The Crown submits that when it comes to what it is required to prove in terms of the mens rea in this case, I should follow the decision of Code J. in R. v. Porter , 2012 ONSC 3504 , who, sitting as a

summary conviction appeal court, concluded, at para. 37 of his judgment, that: “the mens rea enacted in s. 254(5) is knowledge or awareness of the prohibited act.” On this view, as long as the accused is aware of the fact that he is not furnishing a breath sample the mens rea for the offence is made out.

To the extent that an accused claims that his inability was the result of circumstances beyond his control, for example, a medical condition, then this may afford a defence as it would constitute a “reasonable excuse.” Of course, when it comes to “reasonable excuses”, unlike the elements of the offence, the burden is on the accused to establish such a claim on a “balance of probabilities”. see Porter , at para. 38 . The holding in Porter regarding the mens rea for the offence in s. 254(5) is directly at odds with the decision of another justice of the Ontario Superior Court also sitting as a

summary conviction appeal court. In R. v. Stanley, (2003), 42 M.V.R. (4 th ) 95 (Ont. S.C.) , Justice Heeney explained the mens rea for this offence in rather different and more demanding terms. At paras. 15-17, he wrote: 15 Section 254(5) of the Code makes it an offence to fail, without reasonable excuse, to comply with a demand of a peace officer to provide a breath sample. The defence raised by the accused was that he was unable, for health reasons, to blow long enough or hard enough to provide a suitable second sample.

At first blush, this appears to raise a “reasonable excuse”, which the accused would be required to prove on a balance of probabilities. 16 However, on closer analysis, the inability of the accused to provide a sample strikes at the core issue of mens rea, which the Crown has the onus of proving beyond a reasonable doubt. The Crown must prove that the accused intentionally failed or refused to provide a suitable sample. If a suitable sample was not provided due to the physical or medical condition of the accused, as opposed to a conscious act of volition on his part, then he lacked the necessary criminal intent.

It is only after the court is satisfied beyond a reasonable doubt that the accused intentionally failed or refused to provide a sample that the “reasonable excuse” defence comes into play. 17 In situations where the accused alleges a physical inability to provide a breath sample, the case that the Crown must prove is succinctly summarized by Duncan J. in R. v.

Sullivan , [2001] O.J. 2799 (O.C.J.) at para 15 : “In the result, it is my view that, there being an air of reality to give rise to the issue, in order to convict, I must be satisfied beyond a reasonable doubt that the accused’s failure to provide samples was voluntary and intentional.”

I have carefully considered these two conflicting lines of authority. Both are binding but also irreconcilable. I must therefore choosebetween them. In that regard, I am required to follow the binding precedent that I find most persuasive. With the greatest of respect to Justice Code, I have decided to follow the holding in the Stanley decision. In preferring the decision inStanley, I adopt wholeheartedly the reasons of Justice Paciocco, when he was still a judge of this court before his elevation to the Courtof Appeal, who also declined to follow the holding in Porter. See R. v.

Soucy, 2014 ONCJ 497, 316 C.C.C. (3d) 153, at paras. 41-55. In short, I am of the view that the holding in Stanley, regarding the mens rea for the offence of refusing or failing to provide a breathsample, is more in keeping with the governing general principles of construction that apply where Parliament has created an offence thatis silent in terms of mens rea language, as is the case with respect to s. 255(4). As a result, the question squarely presented by this case is whether or not the Crown has proven beyond a reasonable doubt that Mr.DeCaire’s refusal (or failure) to provide a breath sample was on purpose.

See Soucy at paragraph. 52. Mr. DeCaire testified. In his evidence, he maintained that he wanted to provide a breath sample but that overwhelming sciatica painmade it impossible for him to do so. On his account, any failure on his part was not deliberate; but the result of his inability to focusgiven the debilitating pain he was suffering in the period after he was placed in the police cruiser and asked to furnish a breath sampleand prior to his arrest in the ambulance about a half hour later. Recognizing the importance of never shifting the burden of proof to an accused person, given that Mr.

DeCaire testified in his owndefence, I propose to follow the analytical framework suggested by the Supreme Court of Canada in R. v. W(D), (SCC),[1991] 1 S.C.R. 742. To begin, quite obviously, if I believe Mr. DeCaire’s evidence, I am required to find him not guilty. On his account, there was nodeliberate failure to furnish a breath sample, simply a situation of overwhelming pain interfering with his ability to provide whatConstable Olton was lawfully demanding from him. Alternatively, even if, after carefully considering his evidence, I do not believe Mr.

DeCaire, I must still consider whether his evidence,along with all the other evidence in this case, leaves me in a state of reasonable doubt. If it does then I must of course find him notguilty. Finally, even if I entirely reject Mr. DeCaire’s evidence and it does not leave me with a reasonable doubt, I must still go on to considerwhether or not on the whole of the evidence that I do accept I am satisfied of his guilt beyond a reasonable doubt. I turn then to the first question, do I believe Mr. DeCaire? I frankly have serious reservations regarding his testimony. Due to theseconcerns I do not believe him.

I will briefly explain why. To begin, I am troubled by the fact that prior to being subject to a breath demand, Mr. DeCaire clearly indicated to both paramedics, attwo different points in time, that although he was suffering from sciatica pain, he did not require their assistance. Second, I find it strange that when first approached by the one paramedic, Mr. Thomas, Mr. DeCaire was walking about, on the phone,and seemingly trying to avoid interacting with him. Essentially, the picture that emerges is of someone trying to avoid dealing with afirst responder.

I think that is extremely odd behaviour for anyone who has just been involved in a serious accident. Of course, it may have been that Mr. DeCaire was simply shaken up, or trying to be, in the words of defence counsel, “macho”, but hiscomments to Mr. Thomas that “he did not want to make an insurance claim” seems far more consistent with someone who is trying toavoid escalating this encounter to something that would entail the involvement of state officials. This is consistent with Mr. DeCairewanting to conceal from detection the fact that he had been drinking.

Third, there is the fact that Mr. DeCaire only begins expressing a desire for medical assistance after he is subject to a breath demand, while he is in the police cruiser and being specifically asked to furnish a breath sample. This concerns me. It may very well be, as Mr. DeCaire claimed, that he initially did not feel much pain right after the accident but that his situation worsened as time passed. In that regard, the more extreme manifestation of his pain in the aftermath of the breath demand may simply be coincidence. Of course, it is also rather suspicious.

It is consistent with someone who is looking to avoid providing a breath sample because they do not want to reveal potentially incriminating evidence to law enforcement. Fourth, Mr. DeCaire’s insistence that he remained seated in his vehicle after the accident and when he was dealt with by both paramedics, is directly at odds with the testimony of the paramedic, Mr. Thomas. Mr. Thomas is a disinterested witness. He was clear in his recollection and his testimony, that Mr. DeCaire was outside of the vehicle and walking around on the phone when he approached him. To the extent that Mr.

Thomas’ evidence differs from that of Mr. DeCaire on this point, I accept Mr. Thomas’ evidence without reservation. In that regard, I have serious concerns that Mr. DeCaire denied being outside of the vehicle walking around while talking on the cell phone because this would be somewhat in conflict with his claim that he was experiencing debilitating sciatica pain in the aftermath of the accident that grew progressively worse. Finally, and most significantly, in my view, is Mr. DeCaire’s refusal to consent to the paramedics pricking his finger to take a small amount of blood to test his blood sugar level.

I recognize that Mr. DeCaire testified that he thought the paramedics were planning to sedate him, and that is why he refused this request. However, Mr. Archdekin testified that he specifically told Mr. DeCaire that he simply wanted to prick his finger to check his blood sugar. Mr. DeCaire’s refusal of this routine medical test is consistent with not wanting to share his blood with the paramedics due to a concern that such a sample could serve to reveal something that Mr. DeCaire was actively trying to conceal. Although no single one of these items, when considered alone, would be fatal to Mr.

DeCaire’s creditability; when considered collectively, they cause me to disbelieve his evidence. I must next consider whether Mr. DeCaire’s evidence, along with all the other evidence in this case, leaves me in the state of reasonable doubt. In that regard, I will list those items of evidence that are arguably supportive of Mr. DeCaire’s account: First, I accept, and the exhibits filed confirm, that Mr. DeCaire suffers from sciatica, and that he was taking treatment for that condition in the period immediately preceding the accident.

In fact, he would appear to have attended for acupuncture treatment the very day before, on January 16, 2017. Second, it is apparent from the evidence of the two paramedics that Mr. DeCaire was indeed suffering from at least some sciatica pain prior to the breath demand being made. When he was dealt with initially by Mr. Archdekin, the paramedic noted that Mr. DeCaire was holding his leg. Similarly, when he was next dealing with the second paramedic, Mr. Thomas, Mr. DeCaire reported to the paramedic that he was experiencing sciatica pain.

Third, it is also clear, according to the arresting officer and two paramedics, that Mr. DeCaire’s condition, in terms of his apparent disorientation and incoherence, only appeared to worsen in the thirty to forty minute period preceding his arrest. Fourth, Mr. DeCaire’s apparent inability to focus, which he claimed was due to severe sciatica pain, is consistent with his non-responsive answers to Constable Alton when he attempted to discharge his informational obligations under s. 10(

b) of the Charter . In that regard, Mr. DeCaire’s answers were, at best, incoherent. Fifth, the same apparent lack of focus, or struggle with comprehension, continued back at the hospital, when the officer attempted to review the Form 9 release document with Mr. DeCaire. Finally, I also note that Mr. DeCaire was not showing any apparent signs of impairment. In my view, this is at least somewhat supportive of a claim that he was not impaired by alcohol on the night in question and therefore would not have had anything to hide.

Of course, many of these potentially confirmatory items of evidence are entirely in keeping with someone who wanted to avoid furnishing a breath sample and who exaggerated his medical condition for that very purpose.

The question squarely presented, at this point, is whether, based on Mr. DeCaire’s evidence, and all of the other evidence in this case, I am left in a state of reasonable doubt on the question of whether or not his failure to provide a breath sample was deliberate. To be sure, if Mr. DeCaire bore the burden of establishing on a balance of probabilities that extreme pain was the reason he was unable to provide a breath sample, I would find him guilty. In short, he has not satisfied me on a balance of probabilities that that is the case. Although I accept that Mr.

DeCaire’s suffered from sciatica, and that his pain was indeed manifest on the evening in question, on the whole of the evidence, I am not persuaded that it is more likely than not that his pain was the cause of his failure to provide a breath sample. However, as explained, the burden of proof is on the Crown to establish beyond a reasonable doubt a deliberate failure to provide a breath sample. When I consider Mr.

DeCaire’s evidence, along with all of the other evidence in this case, I am simply not sure whether his failure was deliberate or the result of an inability to provide a breath sample due to his suffering the effects of extreme pain. I therefore have a reasonable doubt. Mr. DeCaire is entitled to the benefit of that doubt. Accordingly, I find him not guilty. ...MATTER COMPLETE