r v. NDOKWU EKUNE EDMUND, 2016 QCCQ 2494

R. c. Ndokwu 2016 QCCQ 2494 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU CITY OF GATINEAU « Criminal and Penal Division » N° : 550-01-076033-143 DATE : April 20, 2016 ______________________________________________________________________ PRESENT: THE HONOURABLE ANOUK DESAULNIERS J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

NDOKWU EKUNE EDMUND Accused ______________________________________________________________________ VERDICT (Rendered orally on April 7, 2016) ______________________________________________________________________ [ 1 ] The accused, Mr. Ndokwu, is charged with having operated a motor vehicle on November 22, 2013, while his ability to drive was impaired by alcohol or a drug, contrary to sections 253(1)

a) and 255(1) of the Criminal Code . [ 2 ] He is also charged with failing or refusing to comply with a demand made by a peace officer, by failing or refusing to blow into a roadside screening device, contrary to sections 254(5) and 255(1) of the Criminal Code . [ 3 ] The Court must determine whether the Crown has proven beyond a reasonable doubt that Mr. Ndokwku is guilty of these two offenses. Context [ 4 ] Around 2:44 on the morning of November 22, 2013, officers Valerie Charbonneau-Charlebois and Jonathan Guillemette observed Mr. Ndokwu driving a car in downtown Gatineau.

Based on information given to them earlier from two other officers, they decided to pull him over in order to check his sobriety. [ 5 ] Officer Charbonneau-Charlebois walked up to the driver’s window and informed Mr. Ndokwu of the grounds for which he was being intercepted. She detected a slight odour of alcohol and a strong odour of fresh cannabis. She asked Mr. Ndokwu for his papers, which he provided correctly but very slowly. [ 6 ] She then asked him to step out of the car. She noticed that, in doing so, Mr.

Ndokwu had to steady himself on the car, which, she concedes, may be on account of his tall stature and the car being very low to the ground. [ 7 ] Both officers Charbonneau-Charlebois and Guillemette observed that Mr. Ndokwu walked very slowly to the back of his vehicle. [ 8 ] Having reasonable grounds to suspect the presence of alcohol in Mr. Ndokwu’s body, officer Charbonneau-Charlebois made the decision to order him to provide a breath sample for analysis by an approved screening device, pursuant to subsection 254(2)

b) of the Criminal Code . [ 9 ] At 2:53 AM, she formulated her demand by reading, in English, from a card provided by the Gatineau Police Service, filed into evidence under P-1. [ 10 ] The defence admits that this constitutes a valid demand. Mr. Ndokwu told officer Charbonneau-Charlebois that he understood the demand. [ 11 ] Mr. Ndokwu apparently attempted on a couple of occasions to blow into the approved screening device. I will examine this evidence later in my decision. Suffice to say at this point that, after some unsuccessful attempts, officer Charbonneau-Charlebois placed Mr.

Ndokwu under arrest for failing or refusing to comply at 2:55 AM. [ 12 ] Mr. Ndokwu replied that he should not be arrested, as he was pulled over very close to his home.

[ 13 ] He was placed on the back seat of the police cruiser. An odour of alcohol filled the cruiser shortly after. [ 14 ] Officer Charbonneau-Charlebois also noticed that Mr. Ndokwu looked sleepy; his eyelids were heavy and he struggled to remain awake. [ 15 ] She felt that she had reasonable grounds at that point to believe that Mr. Ndokwu had driven a motor vehicle while impaired. She told him she would “add this charge to the file”. [ 16 ] Mr. Ndokwu was released at the roadside after his vehicle was towed. He proceeded to walk home, which was a very short distance away.

The two officers followed him to make sure he made it home safely. They did not notice anything particular in the way he walked. Analysis 1. Count #1: Driving While Impaired [ 17 ] The two police testified that the accused smelled of alcohol. Mr. Ndokwu, on the other hand, claimed he did not drink any alcohol that evening. [ 18 ] In accordance with the principles set out by the Supreme Court of Canada in R. v. W. (D.) [1] , I must first examine whether I believe the testimony of the accused or, if I do not believe the testimony of the accused, whether I am left in reasonable doubt by it.

If I believe the accused or conclude that his version may possibly be true, then I must acquit him on the first ground. 1.1 The Testimony of the Accused [ 19 ] Mr. Ndokwu explained that, on Thursday, November 21 st , 2013, he worked as a personal support worker from 7 AM to 3 PM and from 5 PM to 8 PM. He was fighting a cold that day and had a sore throat and dry nose. He took some over-the-counter medication throughout the day. [ 20 ] Around 9:00 PM, he joined a birthday party held at a friend’s residence.

Food and alcoholic beverages were being served, but he claimed he only had a soft drink. [ 21 ] At around midnight, he left the birthday party and walked over to “Le Petit Chicago”, a bar located a few minutes away. He met a friend who had been waiting for him and offered him a drink. Mr. Ndokwu said he didn’t drink anything himself, but took more medication. He stayed with his friend at the bar for approximately an hour. [ 22 ] When it came time to pay for his friend’s drink, Mr. Ndokwu was informed that the bar did not accept credit or debit cards. As Mr.

Ndokwu did not have any cash on him, the bartender directed to an ATM machine located on the premises. [ 23 ] This machine, it turns out, was out of order and Mr. Ndokwu was unable to withdraw any money. [ 24 ] According to Mr. Ndokwu, the bar’s security guard suggested he walk to the ATM located at a Scotia Bank branch across the street. However, as he was walking in that direction, he got intercepted by a police officer. It seemed the security guard had told the police that Mr. Ndokwu left without paying his bill. [ 25 ] Mr.

Ndokwu said he had a confrontation with the police because he was upset about being falsely accused of avoiding to pay his bill. [ 26 ] He withdrew money from the bank’s ATM, paid the bar, then decided to walk over, alone, to another bar, “Les Quatre Jeudis”. Friends at the birthday party mentioned that they may attend this bar later that same evening. [ 27 ] However, these friends had already left “Les Quatre Jeudis” when he arrived. [ 28 ] According to his testimony in chief, Mr.

Ndokwu then decided to go home, and was pulled over on the street behind his house. [ 29 ] In cross-examination, he admitted that, instead of driving home, he went to his cousin’s place for a visit. His cousin lives nearby on Kent Street. Mr. Ndokwu did not have any particular reason to meet his cousin in the wee hours of the night. They just talked, and then he proceeded to drive home. He was pulled over by the police around 2:45 AM. [ 30 ] I find it difficult to believe that Mr. Ndokwu did not drink any alcohol that night.

He attended a birthday party with friends who are very close to him (“like family to me”) and was there for approximately three hours. He admitted that alcohol was served, but claimed he did not have any. He then proceeded to a bar, Le Petit Chicago , where, he says, he offered his friend a beer, but did not have any himself. [ 31 ] Mr. Ndokwu was clearly in a party mood that evening. After leaving his friends at the birthday party to attend Le Petit Chicago , he tried to catch up with them at another bar, Les Quatre Jeudis , even though it was probably close to 2 AM by that time.

When he realised that no one was there, he still craved for company, so much so that he visited his cousin around 2:00 AM. [ 32 ] I also note that there is a significant contradiction between Mr. Ndokwu’s testimony in chief, when he mentioned that he went home after Les Quatres Jeudis , and his cross-examination, when he admitted to visiting with his cousin. [ 33 ] Both police officers mentioned that Mr. Ndokwu smelled of alcohol. There is no evidence that he may have spilled alcohol on himself. We can safely infer that the smell of alcohol was coming from his breath.

[ 34 ] In conclusion, I do not believe Mr. Ndokwu’s testimony nor am I left in reasonable doubt by it. 1.2 The Crown’s evidence [ 35 ] As provided in R. v. W. (D.) , supra , even if not left in doubt by the evidence of the accused, the Court must ask itself whether it is convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which it does accept. Does this evidence establish beyond a reasonable doubt that Mr.

Ndokwu’s ability to drive was impaired by alcohol or a drug? [ 36 ] Officer Charbonneau-Charlebois had the following grounds to suspect the presence of alcohol in Mr. Ndokwu’s body: • a slight odor of alcohol and a strong odor of fresh cannabis emanating from the car; • Mr. Ndokwu provided his documents very slowly; • it took him longer to answer questions than could normally be expected; • he walked very slowly to the back of his vehicle. [ 37 ] In officer Charbonneau-Charlebois’ view, these observations were sufficient to reasonably suspect the presence of alcohol in Mr. Ndokwu’s body.

She did not contend, nor did the Crown in its submissions, that she had enough grounds at that point to reasonably believe that the accused’s ability to drive was impaired. [ 38 ] Later, upon noticing that Mr.

Ndokwu looked sleepy, she informed him that he would be charged with driving while impaired. [ 39 ] It is well established in case law that a person who drives while their ability to do so is impaired by alcohol is guilty of that offence regardless of whether their ability to drive is greatly or only slightly impaired. [ 40 ] Impairment is an issue of fact which the Court must decide on the evidence as a whole. [ 41 ] The Court can consider a combination of symptoms such as smell of breath, glassy and bloodshot eyes, slurred speech, loss of balance, etc. [ 42 ] Before convicting an accused, the Court must be satisfied beyond a reasonable doubt that their ability to operate a motor vehicle, as opposed to their general abilities, was impaired by alcohol.

On this subject, see the very recent decision by the Court of Appeal of Quebec in Brais v. R. [2] [ 43 ] In the case at bar, the signs or impairment can be summarized as follows: • Mr. Ndokwu smelled of alcohol; • his eyes were red; • he looked sleepy; • he walked slowly to the back of his car; and • it took him longer than normal to answer questions from the police. [ 44 ] While slow reactions can be attributed to impairment, they do not necessarily always point to this conclusion. Some persons are more prompt than others. Mr.

Ndokwu reacted slowly, but his reactions were appropriate: he provided the papers he had been asked for, and he told officer Charbonneau-Charlebois that he understood her instructions regarding the screening device. [ 45 ] In addition, Mr. Ndokwu parked his car correctly when he was pulled over. [ 46 ] I also bear in mind that, while both officers observed Mr. Ndokwu walking slowly to the back of his car, there was no evidence that he lost his balance at any point. Also, officer Guillemette didn’t notice anything out of the ordinary when he watched Mr. Ndokwu walk to his home. [ 47 ] Mr.

Ndokwu’s car smelled of fresh marihuana, but there is no evidence that such odour emanated from his person nor his breath. No drug was found in his possession. The Crown did not content, and rightly so, that he was impaired by a drug. [ 48 ] Looking at the evidence as a whole, I find that, while there is a solid basis on which to conclude that Mr.

Ndokwu had consumed alcohol prior to his arrest, the evidence is not sufficient to conclude, beyond a reasonable doubt, that his ability to drive was impaired by alcohol. [ 49 ] In conclusion, though I do not believe the evidence of the accused, I cannot say that after assessing the evidence as a whole, I am not left without a reasonable doubt. [ 50 ] Thus, Mr. Ndokwu is acquitted on the first count. 2.

Count #2: Failing or Refusing to Provide a Breath Sample [ 51 ] The offence of failing or refusing to comply with a demand of a peace officer provided at ss. 254(5) of the Criminal Code requires the Crown to prove beyond a reasonable doubt the following three elements:

• the peace officer made a valid demand; • the accused failed to provide the required breath sample ( actus reus ); • the accused intended to produce that failure ( mens rea ). [ 52 ] Once the Crown has established these three elements of the offence, the accused is found guilty unless he presents a reasonable excuse for failing or refusing to provide breath sample. 2.1 The First Element of the Offence: The Demand [ 53 ] The defence admits that the Crown has established the first element of the offence, i.e. that officer Charbonneau-Charlebois made a valid demand to Mr.

Ndokwu. [ 54 ] Let’s now turn to the second element of the offence, the culpable act, or actus reus. 2.2 The Second Element of the Offence: The Culpable Act [ 55 ] Refusal is often apparent from statements made by the accused following the demand. It can also be proven by direct evidence from the attending police officer. [ 56 ] The proof of failure often involves a combination of inferences and direct observations of the attending officers. [ 57 ] The absence of a result of the screening device does not automatically lead to the conclusion that the accused voluntarily failed to provide a breath sample.

The Court must assess whether the lack of result flows from the voluntary actions of the accused or, rather, from external factors such as a defective device, or an obstructed mouthpiece.

Each case is unique and the Court may examine a number of elements. [ 58 ] The Court may consider, for example : • the behaviour of the accused; • the efforts put into providing a sample; • statements made during the transaction; • the number of attempts; • the time elapsed between the first and the last attempt; • the steps taken by the attending officer to ensure that the device is functioning properly. [ 59 ] The evidence shows that officer Charbonneau-Charlebois read the order to provide a breath sample at 2:53 AM. Mr. Ndokwu told her that he understood.

The officer inserted an unused mouthpiece into the screening device without touching the said mouthpiece. [ 60 ] She informed Mr. Ndokwu that he would need to blow continuously into the device until she directed him to stop. She asked him if he understood these instructions and he responded that he did. [ 61 ] She held the device in front of Mr.

Ndokwu and he put his lips on the mouthpiece but, according to both officers, he did not exhale at all. [ 62 ] Officer Charbonneau-Charlebois testified that the air blown into the device normally exits at the top, but that she could not feel the air exit the device during the events in question. Nor did she hear the sound of air blowing through the instrument. [ 63 ] The device did not display any “+” sign to confirm it was receiving a breath sample.

Officer Charbonneau-Charlebois admits, however, that she did not write down this last piece of information in her notes. [ 64 ] Officer Charbonneau-Charlebois encouraged Mr. Ndokwu by repeating “blow, blow” but he did not provide a proper breath sample. She withdrew the device from his mouth and repeated her instructions for blowing into the device. She also warned Mr. Ndokwu that failure to provide a breath sample could amount to a refusal. [ 65 ] Officer Charbonneau-Charlebois said Mr.

Ndokwu made a facial expression to show that he was trying, but he didn’t verbalize anything. [ 66 ] Officer Guillemette testified that Mr. Ndokwu was either not blowing at all or blocking the mouthpiece with his tongue. He did not notice on Mr. Ndokwu any of the facial movements usually associated with providing a breath sample into the device. [ 67 ] Both officers agree that Mr. Ndokwu was calm and cooperative. [ 68 ] Officer Charbonneau-Charlebois testified that Mr. Ndokwu made two other attempts, with similar results. Both Mr.

Ndokwu and officer Guillemette testified, however, that there were only two attempts in total, after which Mr. Ndokwu was put under arrest for refusal at 2:55 AM. 2.2.1. Evidence that the instruments were functioning correctly

[ 69 ] Where the accused attempted and failed to provide an appropriate sample, there is, in certain circumstances, an obligation for the Crown to induce some evidence that the equipment was working properly. [ 70 ] Justice Pringle, of the Ontario Court of Justice, made the following remarks in R. v. Farkas : (…) I do see the issues of a failed attempt and a concern about the integrity of the machine as inextricably interwoven.

If the defendant has attempted to blow but the sample is insufficient, there are only two possibilities about where the fault lies: either the problem is with the defendant, or it is with the machine.

In these circumstances, it seems entirely logical to require that the Crown resolve the competing inferences about where the fault lies in a manner that is consistent with the Crown's burden to prove the case. […] Putting it differently, I find that, in the absence of some evidence that the machine was working properly, no reasonable jury properly instructed could find the accused guilty of providing an insufficient sample [3] . [ 71 ] Many other courts, including appellate courts, have taken a similar position. So have many of my colleagues of the Court of Québec, in, inter alia , R. v. Tremblay [4] , R. v.

Villeneuve [5] and Directeur des poursuites criminelles et pénales v. Standish [6] . [ 72 ] In particular, the Courts have ruled on many occasions that, when an accused attempted and failed to provide a breath sample, the Crown must show that the attending officer examined the device for any malfunctions, including obstructions. These decisions are reviewed in detail in R. v. Tremblay and R. v. Villeneuve , supra . [ 73 ] Officer Charbonneau-Charlebois testified that she inspected the screening device at the police station at the beginning of her shift.

She explained that she inserted an unused mouthpiece into the screening device and performed a manual test on the device, which registered a reading of “0”. She explained that this reading proved that the device was working properly. Any other reading would reveal that the device is malfunctioning. [ 74 ] Officer Charbonneau-Charlebois mentioned that she inspected another disposable mouthpiece, to make sure it was not obstructed or otherwise defective before inserting it into the screening device for use by Mr. Ndokwu. She verified that its wrapping was still properly sealed prior to use.

She examined the shape of the mouthpiece, looked for any missing parts and made certain that a small ball was located inside. [ 75 ] In my opinion, this evidence is sufficient to meet the Crown’s obligation to “show some evidence that the machine is working properly” ( Farkas , supra ). [ 76 ] Furthermore, in R .v.

Bourbonnais , Justice Sophie Bourque of the Superior Court of Québec ruled that, in particular, evidence showing that the officer checked the mouthpiece need not be presented in every case : « L'appelante soumet qu'il n'y a pas de preuve que les policiers se sont assurés que les embouts qu'ils ont utilisés lors des quatre tentatives n'étaient pas obstrués, et que l'accusation de refus devrait, par conséquent, être rejetée.

Encore ici, le juge [André] Perreault [the trial judge] fait une analyse exhaustive de la jurisprudence applicable et conclut, à bon droit, qu'une telle preuve n'est pas nécessaire dans tous les cas, mais qu'elle pourrait le devenir selon les circonstances, si se pose la question de l'obstruction possible de l'embout comme raison au défaut de l'appareil de fournir une lecture de l'échantillon fourni.

Le juge Perreault conclut que, dans le présent dossier, il n'y a aucune preuve mettant en cause l'utilisation de l'embout, puisque toute la preuve démontre clairement que madame Bourbonnais utilisait des tactiques pour ne pas souffler, et non pas qu'il y avait quelque problème de fonctionnement que ce soit avec l'appareil. » [7] [ 77 ] Similar remarks were made by Justice Marco Labrie, of the Court of Québec, in R. v.

Temblay : « On peut facilement imaginer que dans un cas donné, un juge pourrait être convaincu hors de tout doute raisonnable que l'acte coupable est démontré alors que la poursuite n'a jamais mis en preuve le bon fonctionnement de l'ADA puisque le comportement de l'accusé, ou certaines déclarations, ou encore certains gestes posés démontrent clairement qu'il feignait de souffler ou tentait autrement d'éluder son obligation. » [8] [ 78 ] Mr. Ndokwu said he blew normally into the device and complied with the officer’s instructions.

He demonstrated to the Court how, in his opinion, he blew into the screening device, clearly exhaling a significant quantity of air during his demonstration. This evidence is in contradiction with the testimony of both police officers, who indicated that no air was blown into the device. The Court finds it difficult to believe this aspect of Mr. Ndokwu’s testimony. [ 79 ] Mr. Ndokwu never mentioned in his testimony any potential obstruction that may have hindered his attempts.

He blamed his physical condition, rather than a defective mouthpiece or device, for any failed attempt to provide a breath sample. [ 80 ] In conclusion, the Crown presented sufficient evidence, in the circumstances, to show that the mouthpiece and the device had been checked and were working properly. [ 81 ] The Court does not find any evidence pointing to mechanical malfunction that would warrant any obligation on the Crown to prove that additional steps were taken during or after the tests to ensure that the instruments were in good working order. 2.2.2 Did the Accused Voluntarily Fail to Provide a Breath Sample?

A) The Limited Number of Attempts and Short Timespan [ 82 ] I now turn to whether the evidence shows, beyond a reasonable doubt, that the culpable act of failing to provide a proper breath sample was caused by the accused.

[ 83 ] In its analysis of the evidence pertaining to the actus reus , the Court may consider the number of attempts as well as the time elapsed between the first and the last attempt. See R v. Tremblay [9] , R v. Frianchi [10] , as well as R. v. Brenner [11] . [ 84 ] In the case at bar, the time elapsed between the order and the arrest for failing or refusing was strikingly short, i.e. two minutes.

The number of attempts was also uncommonly low: two to three at the most. [ 85 ] According to the defence, officer Charbonneau-Charlebois could not have conducted in such short timespan the operations described in her testimony and this finding alone should lead to the conclusion that the testimonies of both officers are implausible and unreliable. [ 86 ] Indeed, the timespan between the demand and the arrest for refusal lends to the conclusion that only two attempts were probably made, as reported by officer Guillemette and Mr. Ndokwu.

The Crown argued in its final submissions that this aspect of officer Guillemette’s testimony may not be reliable because he may have been distracted. Officer Guillemette, however, did not mention any distractions and seemed certain that only two attempts were made. [ 87 ] The Court is of the view that, more likely than not, Mr. Ndokwu was only afforded two attempts to provide a breath sample. [ 88 ] In other circumstances, so few attempts and such a short time between the breath demand and the arrest for refusal may be a serious cause for concern. [ 89 ] However, Mr.

Ndokwu did not contend in his testimony that he was not given sufficient opportunities to provide a breath sample or that he did not understand what was required of him or was not provided with sufficient information.

Rather, he submitted that he complied correctly with officer Charbonneau-Charlebois’ demands, that he did blow normally into the device, and that his sore throat may have caused him to provide an insufficient air sample. [ 90 ] The Court also notes that the time elapsed during the transaction is often considered when of examining whether the arresting officer should have provided the accused with one more opportunity to blow into the screening device when the accused requests it after their arrest. See, for example, R. v. Richard [12] , and R. v. Villeneuve [13] . Mr.

Ndokwu made no such request. [ 91 ] The evidence does not show any reasonable prospect that Mr. Ndokwu would have provided a suitable sample if afforded more time or additional opportunities to blow into the device before or after his arrest. [ 92 ] In the special circumstances of the present case, the evidence as a whole establishes the required culpable act, the actus reus , although there were only two failed attempts and they span over a very short period of time.

B) Was the Culpable Act Involuntary? [ 93 ] As part of its considerations on the actus reus , the Court must also examine whether Mr. Ndokwu’s failure to comply with the breath demand was voluntary or whether it may have been an involuntary consequence of his sore throat or dry nose. [ 94 ] Mr. Ndokwu testified that he had a sore throat that evening which, in his view, may explain any failed attempt. He said that he informed officer Charbonneau-Charlebois of his condition after his first failed attempt. This is somewhat paradoxical, given that Mr.

Ndokwu also testified that he blew normally into the device. [ 95 ] The Court does not believe this aspect of Mr. Ndokwu’s testimony, nor is left in reasonable doubt by it. [ 96 ] On the day of the events, Mr. Ndokwu worked for eleven hours as a personal support person. He then went to a friend’s birthday party for another three hours or so. After that, he felt well enough to meet another friend at a local bar, Le Petit Chicago , where he stayed for at least another hour. Around 1:00 AM, Mr.

Ndokwu still felt well enough to walk over to another bar, Les Quatre Jeudis , to meet with friends from the birthday party. Seeing that no one was there, he still felt well enough to make an unplanned visit to his cousin at his home around 2:00 AM. These actions are not consistent with someone who is feeling ill and has difficulty exhaling. [ 97 ] Both officers testified that they did not notice anything abnormal in Mr. Ndokwu’s breathing.

He did not raise this issue during the transaction, only expressing his discontent with being arrested so close to his home. [ 98 ] The Court also notes that the defence, in its final arguments, did not submit that the failure to provide proper samples may have been involuntary ( actus reus ) or intentional ( mens rea ) due to Mr. Ndowku’s sore throat or dry nose. [ 99 ] In light of the evidence as a whole, I come to the conclusion that the Crown has met its burden of proving the actus reus , the culpable act, beyond a reasonable doubt.

This is the only reasonable conclusion that can be drawn from the evidence. 2.3 The Third Element: Mens Rea [ 100 ] Has the Crown proven beyond a reasonable doubt that Mr. Ndokwu intentionally failed to provide a proper breath sample? [ 101 ] Officer Charbonneau-Charlebois explained to Mr. Ndokwu how to perform the test. He understood her instructions. She also warned him of the consequences of a refusal and informed him that failure to provide a proper sample could amount to a refusal. The device and the mouthpiece were in good working order. Mr.

Ndokwu was offered two opportunities to comply with the breath order, but he feigned in his attempts. He willingly failed to blow into the screening device. The Court can infer that he intended the natural consequences of his acts. [ 102 ] Looking at the evidence as a whole, I am satisfied that the Crown has met its burden of proving beyond a reasonable doubt the third element of the offence, i.e. that Mr. Ndokwu intended to fail to provide the required breath sample. This is the only reasonable conclusion that can be drawn from the evidence.

2.4 Reasonable Excuse [ 103 ] The defence did not submit in its final arguments that Mr. Ndokwu’s sore throat or dry nose could amount to a reasonable excuse. Indeed, the evidence presented at trial does not lend any merit to such a proposition. Conclusion [ 104 ] For all of these reasons, Mr. Ndokwu is found guilty on the second count for failing or refusing to comply with a breath demand contrary to section 254(5) of the Criminal Code .

FOR THESE REASONS, THE COURT : FINDS THE ACCUSED NOT GUILTY of driving while impaired (count #1); FINDS THE ACCUSED GUILTY of failing to comply with the demand (count #2). __________________________________ ANOUK DESAULNIERS, J.C.Q. Mtre Isabelle MacKay Counsel for the prosecutor Mtre Vincent Rose Counsel for the accused Date of hearing : Decembre 14, 2015