R. v. Loi, 2012 ONCJ 159

Citation: R. v. Loi , 2012 ONCJ 159 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN Ñ AND Ñ THO LOI ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C. Sweeny For the Crown M. Kerbel For the Defendant Heard: February 29, 2012 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] Tho Loi, the defendant, parked his car on the wrong side of a Toronto street in the early hours of September 20, 2008. The police investigated. A roadside breath demand soon followed. The defendant was afforded many opportunities to provide a suitable sample of his breath.

Eventually he was charged with refusal to do so. [ 2 ] The only evidence called at the trial was that of the officer who made the demand (PC Marco Ricciardi) and that of a second officer (PC Stephen Chen) who attended during the roadside testing procedure. The defence position, in essence, is, first, that the objective circumstances preceding the demand did not meet the statutory threshold of Òreasonable suspicionÓ for such demand, thus relieving the defendant of any legal obligation to comply.

The second position is that there is reasonable doubt as to whether the defendantÕs non-compliance with the breath demand was intentional. The burden of proving this mental element, and all other essential elements of the offence, falls, as always, on the Crown on a standard of proof beyond reasonable doubt. B. EVIDENCE [ 3 ] PC Marco Ricciardi was driving southbound on Claremont in central Toronto a little after 2am on September 20, 2008. No parking is permitted on the west side of Claremont. Ricciardi saw a blue car parked on the west side of the street with its four-ways activated.

He pulled in behind the car and began writing a ticket. He first noticed the defendant in the driverÕs seat and two passengers

in the rear as he left his scout and approached the driverÕs side of the blue car at about 2:19am. The driverÕs window was down and there was a strong smell of alcohol emanating from the interior of the car. The defendant, in response to RicciardiÕs questions, admitted to having consumed one or two drinks.

His eyes were bloodshot and watery and there was an odour of alcohol about his mouth. (Ricciardi testified to making this olfactory observation before articulating a breath demand, although itÕs only reference in his notes is in the context of Òduring the testsÓ.) Ricciardi formed a reasonable suspicion that the defendant had alcohol in his body. He asked the defendant to exit his vehicle. Then, at 2:27am, he read him an approved roadside screening device demand.

The defendant, says Ricciardi, was Òwalking normalÓ. [ 4 ] Ricciardi provided instructions on the proper testing technique although he did not initially demonstrate the technique himself. The defendant, according to Ricciardi, appeared to be blowing ÒsoftlyÓ and, at times, to be sucking when he should have been blowing. The officer encouraged him to blow more strongly. He gave the defendant many chances as he appeared to be ÒtryingÓ. After about ten futile attempts, Ricciardi replaced the mouthpiece and demonstrated the proper technique.

The officer registered a ÒOÓ on the device, indicating that there was no alcohol in his body. The defendant was then permitted a number of further attempts, registering an error message on each occasion. At some point the defendant appeared to Ògive upÓ and said, Òjust arrest meÓ.

Ricciardi encouraged the defendant to try again, advising that although it was his ÒrightÓ to refuse there would be consequences for doing so and that it would be to his, the defendantÕs, benefit to continue. (In cross-examination, Ricciardi also recalled advising the defendant he would be arrested for refusing to blow; this caution is not reflected in his notes.) The defendant agreed to try again. [ 5 ] In response to a radio dispatch, PC Stephen Chen arrived on scene around 2:48am. Chen (whose general recall was shaky at best) could not remember having a roadside testing device with him that evening.

Ricciardi, however, recalled replacing the device he had been using with the one delivered by Chen and provided the serial numbers of the second machine. In any event, the defendant continued to generate error code messages, indicating unsuitable or insufficient breath samples to permit a reliable roadside assay. Although Ricciardi made no mention of it, Chen recalled the defendant spontaneously explaining that he smoked a pack of cigarettes a day. Both officers testified that the defendant appeared as though he was going to collapse from the exertion of his exhalations.

As a result, he was allowed to sit on the backseat of the first officerÕs scout (according to Ricciardi) or on the curb (according to Chen) as he continued his efforts. He was told he had three chances left. After a total of 15 to 20 unsuccessful attempts to generate a suitable sample, Ricciardi, at 2:52am, arrested the defendant and read him his rights to counsel. [ 6 ] The defendant was calm, courteous and co-operative throughout. He evidenced no signs of slurring, unsteadiness or any other indicia of impairment, nor was he arrested for this offence. In

summary, Ricciardi opined that the defendant Òwas trying to give me a sample, he just didnÕtÓ. In ChenÕs view, the defendant either did not provide a suitable sample or was unable to do so. C. ANALYSIS (

a) Introduction [ 7 ] As noted earlier, the defence advances two positions. The first is that there was an inadequate objective basis for the approved screening device (ASD) demand and, as a result, the defendant was under no obligation to comply with what, on this analysis, amounts to an unlawful demand. The second is that the Crown has failed to prove to the requisite criminal standard that the defendant had the necessary mens rea Ð that is, intentional nonÐcompliance with the demand.

The offence at issue is that set out in sub- s. 254(5) of the Criminal Code : ÒEveryone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this sectionÓ (emphasis added). A demand for a roadside breath sample is one Òmade under this sectionÓ (s. 254). [ 8 ] I address each of the defendantÕs arguments below. (

b) The ASD Demand [ 9 ] Any peace officer who has Òreasonable grounds to suspectÓ that a person has alcohol in his body and has within the previous three hours operated or had care or control of a motor vehicle may Òby demand, require the personÓ to Òprovide forthwith a sample of breath that É will enable a proper analysis to be made by means of an approved screening deviceÓ: Code, s. 254(2).

As to the conditions precedent to a lawful ASD demand, no challenge is taken to the propriety of the machine or machines used, to the existence of the requisite condition that the defendant drove or had care or control of his vehicle during the previous three hours, or to the integrity of PC RicciardiÕs claim to subjectively suspect the existence of the necessary prerequisites. The only issue is whether RicciardiÕs suspicion that the defendant then had Òalcohol in his bodyÓ was founded on Òreasonable groundsÓ. [ 10 ] The standard of reasonable suspicion contemplates both subjective and objective considerations.

While not an invisible standard, it is a conspicuously low threshold for the exercise of a police power and the jeopardy of criminal consequences for non- compliance.

RicciardiÕs suspicion that the defendant had alcohol in his body was founded on a constellation of factors: the odour of alcohol in the car and emanating from the defendantÕs mouth, the defendantÕs bloodshot and watery eyes, and his admission that he had consumed one or two drinks. [ 11 ] The appearance of the defendantÕs eyes and the odour of alcohol in a car in which there were several passengers may well not amount, even when combined, to a reasonable basis for an ASD demand.

However, I am well satisfied that the remaining factors (particularly the admission of alcohol consumption) afford ample objective basis for the demand made Ð even if the observation as to the odour of the defendantÕs breath is deleted from this calculus. While there is no evidence as to when the defendant consumed his one or two drinks or what they contained, the issue at this stage is whether there is an objective basis to ÒsuspectÓ that there was any alcohol in the defendantÕs body Ð not the defendantÕs blood alcohol concentration.

Further, given the context of their interaction and the nature of their exchange, I find it was at least reasonable for Ricciardi to suspect that the defendant was admitting to recent alcohol consumption (that is, within the previous three hours) when he answered the officerÕs predicate question. Accordingly, I have no difficulty concluding that the ASD demand was lawful and valid. (

c) The Mens Rea Issue

[12] As framed, the charge faced by the defendant is that he Òdid without reasonable excuse refuse to comply with a demandÓmade by a peace officer under s. 254(2) to provide a sample of his breath suitable for a proper analysis by means of an approvedscreening device, thus violating s. 254(5) of the Code. As said in R. v. Lewko (2002), 2002 SKCA 121 , 169 C.C.C. (3d) 359(Sask. C.A.), at para. 9, with respect to the ingredients of a charge under s. 254(5): The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existenceof a [valid] demand É .

Second, the Crown must prove a failure or refusal by the defendant to produce the required sample of breath É(the actus reus). Third, the Crown must prove that the defendant intended to produce that failure (the mens rea). The defence of Òreasonable excuseÓ, as comprehended by s. 254(5), contemplates a positive defence that may be advanced once theCrown has adequately established the essential elements I have just outlined. Chief Justice Laskin, speaking for a unanimous SupremeCourt in R. v.

Taraschuk, (SCC), [1977] 1 S.C.R. 385, explained that, Ò[r]easonable excuse, under s. 235(2) [now s.254(5)], refers, in my view, to matters which stand outside of the requirements which must be met É before a charge can be supportedunder s. 235(2)Ó. Here, counsel for the defendant accepts that there is no admissible evidence of a Òreasonable excuseÓ and that theactus reus of the offence (that is, non-compliance with the demand as evidenced by a failure to produce a suitable sample) is made out.

The defence position, put simply, is that a reasonable doubt remains as to the existence of the requisite mens rea Ð that is, as to whetherthe defendantÕs undisputed non-compliance was intentional. (See R. v. Gutierrez (2001), 21 M.V.R. (4th) 183 (Ont. S.C.J.), at para. 15;R. v. Lewko, supra, at paras. 9-10; R. v. Dolphin, 2004 MBQB 252 , [2004] M.J. No. 433 (Q.B.), at paras. 22-23.) [13] Section 254(5) creates a single offence of non-compliance, although it may be committed either by failing or refusing tocomply with an officerÕs demand: R. v. MacNeil (1978), (ON CA), 41 C.C.C. (2d) 46 (Ont.

C.A.), at paras. 6 -7. Here, the charge faced by the defendant particularizes refusal. Proof of this manner of non-compliance is ordinarily found in asuspectÕs explicit verbal refusal to perform the test or in words or behaviour from which a trier can infer his or her rejection orrepudiation of the officerÕs demand. Although the defendant here Ògave upÓ at one point and invited his arrest, I find, on all theevidence, that this was more an expression of exasperation on his part than any refutation of an officerÕs demand.

I am buoyed in thisinterpretation by the defendantÕs resumed efforts when encouraged by PC Ricciardi. I am left, in short, with a reasonable doubt as towhether the defendant intended to ÒrefuseÓ to comply with the officerÕs demand. [14] I do not, however, rest my decision on the legal distinction, if any, between ÒfailureÓ and ÒrefusalÓ. I am left with the samereasonable doubt as the existence of the requisite mens rea if I simply ask myself whether the defendantÕs non-compliance with theofficerÕs demand Ð be it failure or refusal Ð was intentional.

I reach this conclusion in view of the combined effect of the followingfacts, as I find them: 〈 The defendant was co-operative and respectful throughout; 〈 While the defendant had consumed an unknown amount of alcohol, he did not exhibit indicia of impairment nor was he arrestedfor this offence; 〈 Other than parking on the wrong side of a street, there was nothing about the defendantÕs conduct that attracted criminal orregulatory attention; 〈 Although the defendant sometimes appeared to be blowing softy and inhaling when he should have been exhaling, neitherexperienced officer expressed the opinion that he was endeavouring to avoid giving a sample of his breath, only pretending to ÒblowÓ,or otherwise feigning; 〈 PC Ricciardi, who was present throughout the investigation, encouraged the defendant to persist in his efforts even when he wasprepared to Ògive upÓ, from which I infer that he believed the defendant was earnestly trying to respond to the demand; 〈 The defendantÕs efforts were so forceful (at least at one point) that he appeared on the verge of collapsing and was permitted tosit down to continue his labours; 〈 Both officers spoke of the sincerity of the defendantÕs attempts to provide a sample; indeed, I construe their testimony asreflecting their own doubts as to the existence of the requisite intentionality: see para. 6, supra. [15] To be clear, I do not positively conclude that the defendant persistently exercised due diligence in endeavouring to provide asuitable breath sample and that his failure to produce one rests with some defect extraneous to his own efforts.

I do, however, have atleast a reasonable doubt in all the circumstances that this failure was a product of any intentional conduct or omission on his part. Accordingly, an acquittal must follow. D. CONCLUSION [16] In the result, I find Tho Loi not guilty of the single offence upon which he was arraigned. Released on March 23, 2012

__________________________ Justice Melvyn Green