R. v. Tran, 2013 ONCJ 153

Citation: R. v. Tran , 2013 ONCJ 153 ONTARIO COURT OF JUSTICE 1911 Eglinton Avenue East HER MAJESTY THE QUEEN v. MICHAL TRAN ************ R E A S O N S F O R J U D G E M E N T ************ BEFORE THE HONOURABLE MADAM JUSTICE D. HACKETT on January 30 , 2013, at TORONTO, Ontario ************

APPEARANCES : Ms. M. Petrie Counsel for the Crown Ms. L. Thomas Counsel for the accused *********** WEDNESDAY, JANUARY 30, 2013 R E A S O N S F O R J U D G E M E N T HACKETT J.(ORALLY): This is a decision at the completion of a trial, and to a charge of refuse to provide a roadside screening device sample. During this trial evidence was called from PC Collins, the stopping and arresting officer, Sergeant Byers, who brought the roadside screening device to the scene, and the accused.

The onus in this, as in all criminal prosecutions, rests upon the Crown to prove each and every element of the offence beyond a reasonable doubt. I am mindful of there being some conflicts in the evidence of the officers, as compared to the evidence of Mr. Tran. In that regard, obviously the decision of R. v.

D.W. is relevant: if the evidence of the accused is believed, that would give rise to reasonable doubt; if his evidence might reasonably be true, that also would give rise to a reasonable doubt; if his evidence is not believed, that would not end the matter, the onus still rests upon the Crown, based upon all the evidence, to establish the elements of the offence beyond a reasonable doubt. The Evidence Officer Collins stopped the accused’s vehicle at 11:11 PM, after observing his driving for a three to four minute period, over two kilometres.

During this time, she noted he drove at an inconsistent speed, was weaving in and out of his lane, and drove very close to the curb. The accused responded to the officer’s emergency equipment and stopped. The officer spoke to the accused at his vehicle and determined that his nine year old daughter was in the car. While PC Collins got Mr. Tran’s documents, she believed he was turning his head to avoid direct contact with her. He denies that, and explained that he was simply looking for the documents. Suspecting alcohol consumption, PC Collins asked, and was advised that the accused had drank one glass of wine.

She also smelled alcohol. At 11:14, PC Collins formed a reasonable suspicion that the accused had been operating a motor vehicle with alcohol in his body. The officer took the accused’s keys, leaving him and his daughter in the motor vehicle, and returned to her cruiser. She then radioed for a roadside screening device. PC Collins, testified that she did not explain to Mr. Tran what was happening when she left his vehicle because she first wanted to see if there was a device that was available. Sergeant Byers responded to her radio call, and said that he would be there as soon as possible.

PC Collins, testified that she did not note the time that the device arrived, but that at 11:23 she returned to the accused’s vehicle and spoke to the driver and read the roadside demand. Sergeant Byers testified that he was aware of the importance of time in getting the roadside screening device to the scene as soon as possible, and he indicated that in this specific case, he arrived four minutes after the request, at 11:18. The accused agreed to accompany PC Collins to her vehicle for the testing. While the approved instrument was warming up, PC Collins explained to the accused how to provide a sample.

She testified that she believed the approved instrument was working properly because

the normal green light appeared, which, to her knowledge, indicates that it is ready and in proper working order. However, PC Collinsadmitted that she had no idea when the instrument had last been tested or calibrated. She described that normally there is calibration ortest sticker on the machine, but it was not on this machine that night. PC Collins stated that the sticker sometimes falls off. SergeantByers confirmed this evidence. PC Collins did not test this machine that night before beginning to administer the test to the accused. PC Collins described that she explained how to do the test and gave Mr.

Tran at least eight opportunities to provide a sample. Shedescribed each were unsuccessful and that she was watching the accused, over these tests, because he was huffing, and she explained tohim that huffing was not enough, and she repeatedly instructed him. PC Byers testified he also coached the accused. He then told him, hewas still not doing it right, and demonstrated how the test is to be done by providing a sample, himself, into the machine. It appropriatelyregistered a zero at 11:27. After this, the accused was given more chances to provide a sample, but again, without success.

PC Collinsand Sergeant Byers testified that at 11:38, PC Collins then arrested Mr. Tran for refusing to provide a sample. The accused, and the officers all testified that Mr. Tran was explained the consequences of failing to provide a sample, and PC Collinsfurther testified that she did this more than once. She advised him prior to his last attempt, that, that would be his last opportunity. In-chief, PC Collins stated she had administered, 50 to 125 ASD tests before the date in question, and she had never given anyone as manyopportunities as this accused.

When asked in re-examination why there were more than eight attempts, PC Collins stated that the accusedseemed willing to keep trying. She then agreed with the suggestion that she believed he wanted to give a sample. Next, she was askedwhy she charged him then, and PC Collins testified that Mr. Tran looked willing, but he did not do the test correctly and was notlistening. She further went on to say that in the beginning he appeared to be trying and to listen, but after repeatedly giving himinstructions, he did not change what he was doing, and continued to huff.

At the end of her evidence, she testified, she believed he wasplaying around. Sergeant Byers described that the accused was feigning his attempts and described them as comical. The accusedtestified that he was using his best efforts, and following the instructions that he was given and that the machine simply did not work. Issues In addition to the Crown’s onus, there are three issues argued in this case. One, the lawfulness of the demand; two, whether the accusedfailed to provide a suitable sample, that is to say the actus reus of the offence and; three, the mens rea of the offence. Issue 1.

Lawfulness of the demand. S. 254(2) of the Criminal Code provides; If a peace officer has reasonable grounds to suspect that a person has alcohol...in their body, and that the person has, within thepreceding three hours, operated a motor vehicle...the peace officer may, by demand, require the person to...provide forthwith a breathsample that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, ifnecessary, to accompany the peace officer for that purpose. There are two issues to consider with respect to the lawfulness of the demand in this case: (

a) the delay after the reasonable suspicion wasformed and the demand was given; and (

b) the officer’s opinion that the ASD was working properly. Issue 1a) The defence has argued that the demand was not given promptly after the officer formed a reasonable suspicion, because of the delaythat was required until PC Collins could have an ASD delivered to her. The defence submits that the failure to give the demand earlierrendered the demand unlawful. In this regard, the defence relied upon four cases in support of this position: R. v. Grant, (SCC), [1991] S.C.J. No.78, R. v. Woods, 2005 SCC 42 , R. v. Allen, [2011] O.J. No. 5764 (CJ); and R. v. Yamaka, 2011 ONSC405.

The Crown argued that the delay between PC Collins’ reasonable suspicion and the demand was entirely reasonable in all of thecircumstances, and that the subsequent demand was lawful. The Crown relied upon R. v. Misasi, (ON CA), [1993]O.J. No. 150, R. v. Dominski, [2001] O.J. No. 2314, and R. v. Quansah, 2012 ONCA 123 , [2012] O.J. No. 779. Before considering these cases, the factual underpinnings of the delay needs to be clarified.

Counsel both made submissions on the basisof there being a delay of nine minutes, calculated from 11:14 PM, when PC Collins formed a reasonable suspicion, and 11:23, when shedescribed the machine had arrived and she returned to the vehicle to speak with the accused and make the demand. In my view, based

upon all of the evidence, this is inaccurate. PC Collins testified she made no note when the instrument arrived, and when to refer to her next time entry in her notes as 11:23 when she returned to interact with the accused. In contrast, Sergeant Byers, who testified he understood the importance of the timing of the delivery of the ASD device, specifically noted in his book that was 11:18 PM. I accept his evidence in that regard. Accordingly, there was a delay of only four minutes as a result of the absence of the machine.

Although PC Collins was not specifically examined about what happened during this five minute time period between 11:18 and 11:23, she did describe she was in her vehicle. The evidence establishes, or leads to the reasonable inference, that during this period of time: (

a) she would have spoken to Sergeant Byers when he arrived; (

b) he or she, probably he, would have taken the device from his vehicle; (

c) someone took it to her vehicle and set it up, given PC Collins’ evidence that it was warming up when that she returned to her vehicle with the accused; and (

d) PC Collins would have got out of her vehicle and walked back to the accused vehicle. In my view, this time period is reasonably accounted for, and much of this activity would have occurred even if the ASD had been in the trunk of her own vehicle. In my view, the operative delay, as a result of PC Collins not having an ASD with her that night, is, at most, four to five minutes. The Cases R. v. Grant (supra) is a case where the accused flat out refused to provide a sample when stopped and given a demand in Charlotte Town, Prince Edward Island.

At page seven, in paragraphs 16 and 20, the Court stated: I am of the opinion that this appeal must be dismissed and the acquittal restored, and that this result is dictated on a number of alternative grounds...In my opinion, the actions of the officer in this case fell outside of the ambit of s.238(2). The demand made was not the demand authorized by s.238(2), that Mr. Grant provide a sample of this breath “forthwith”. Instead, the demand made was a demand that he provide a breath sample when the required apparatus arrived, which turned out to be half an hour later. It follows that Mr.

Grant was under no obligation to comply with the police officer’s demand, and did not commit the offence under s.238(5) when he failed to do so. The context of s.238(2) indicates no basis for departing from the ordinary, dictionary meaning of the word “forthwith” which suggests that the breath sample is to be provided immediately.

Without delving into an analysis of the exact number of minutes which may pass before the demand for a breath sample falls outside the term “forthwith”, I would simply observe that where, as here, the demand is made by a police officer who is without an A.L.E.R.T. unit and the unit does not, in fact, arrive for a half hour, the provisions of s.238(2) will not be satisfied. There were two reasons, therefore, for the Court restoring an acquittal in Grant : 1 . The demand under s. 238(2), now s. 254(2), was not lawful because when it was given, the test could not be conducted forthwith.

There was a delay of 30 minutes before the demand could be acted upon, and the forthwith requirement in this legislative scheme was therefore frustrated. In essence, the Court decided that 30 minutes, in Charlottetown, Prince Edward Island, was too long for someone who is detained to wait for an ASD. 2 . The Court also found that the detention for 30 minutes violated Mr. Grant’s s.10(

b) right to counsel, and that a 30 minute wait was two long to suspend his s.10 rights. The usual suspension of those rights, in the case of a prompt demand, and opportunity to do the test, did not apply on those facts. The Court then went on to find a violation of s.10(b). Grant is distinguishable from the case at hand in two ways. First, in this case, the demand was not made until the machine was present, or until the opportunity to provide a sample was immediate or forthwith and secondly, the delay caused by the ASD not being on hand for Mr. Tran, was only four minutes, not 30.

In my view, under s.254(2) , there is no specific requirement that the demand be made forthwith. While the cases referred to in submissions, which I am going to further explore in a moment, indicate that the legislative scheme implicitly requires a demand to be prompt, the

section does not require the demand itself to be made forthwith after a reasonable suspicion is formed. Clearly, if the legislature had intended the demand to be made immediately upon forming a reasonable suspicion, this

section would read “once the officer, etcetera”, instead of “if the officer”. The focus in Grant was on the gap between the demand and the provisions of an opportunity to blow. In the case at hand, there is no such gap. In R. v. Woods (supra) , the facts were different. There was no delay for the ASD. Nevertheless, in paragraph 44, the Supreme Court of Canada discussed s. 254(2) and commented as follows, in paragraph 44: The “forthwith” requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and an immediate response by the person to whom that demand is addressed.

In the case at hand, the demand was made promptly upon the arrival of the ASD, and the accused responded forthwith. However,obviously, in terms of his attempts, not in terms of actually providing a sample. R. v. Allen(supra), is a case with facts similar to those before this Court. There was a seven minute delay between the forming of thereasonable suspicion and the making of the demand, which occurred once the ASD arrived on scene. The accused, in that case, thenmade a clear refusal to comply.

In paragraph 26, the Court stated: That requirement cannot be expanded to cover the nature and extent that occurred here. Woods is not the only Supreme Courtpronouncement on an applied requirement of immediacy in making the demand. Justice Hill helpfully reviews the others in R. v. Wackernagel, 16 M.V.R. (5th) 297. He refers to R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, and Justice Sopinka’scomment speaking for four judges, that police officers must make a demand for an “alert” sample immediately upon forming areasonable suspicion of alcohol in the body.

And in paragraph 5 of Wackernagel, Justice Hill refers to the Supreme Court statement in R.v. Pierman and R. v. Dewald, (SCC), [1996] 1 S.C.R. 68. “We agree with Arbour, J., that the delay in demanding an‘alert’ test in this case was not in compliance with section 254(2) of the Criminal Code as interpreted in this court’s decision in R. v.Bernshaw”.

Despite using Justice Sopinka’s reference to the immediacy requirement for the demand after a reasonable suspicion is formed, JusticeKnazan goes on to describe, in paragraph 34, the following: It is the very situation contemplated by Rilling, there is no requirement to comply with a demand that is not lawful and one that is notmade immediately or, at least under Bernshaw, as soon as possible. The test for when a demand is to be made, as described in Allen, is therefore described as both immediately, after the reasonablesuspicion, as well as soon as possible after that suspicion is formed.

Obviously, in Allen, the court applied the former test in acircumstance where the delay was seven minutes before the machine arrived. Though counsel did not provide the Bernshaw(supra) case to me, given the reference in Allen to the test in Bernshaw being bothimmediate and as soon as possible, I have taken a look at that decision. Bernshaw is not a case about a delay in the giving of a demandbecause the approved screening device was not on scene.

Rather, it primarily dealt with the issue of the validity of an officer relyingupon an ASD fail to form reasonable and probable grounds for a breathalyzer demand in a situation where the officer did not know whenthe accused had last consumed alcohol, in the context of manual recommendation to wait 15 minutes after the last alcohol consumption.

In paragraph 79, the majority decision refers to the Lamer quote referred to earlier in Grant, and goes on to state the following inparagraph 80: The above passage seems to indicate that the Grant case does not rule out the possibility that there is in fact some leeway to administerthe test after a certain period of delay. Lamer C.J. expressly declined to decide the exact length of the time before which the demandcould be said to fall outside the term “forthwith”. In Grant, however, a half-hour delay in circumstances where no screening device waseven at the scene fell outside the ambit of the Criminal Code.

A number of cases decided both prior to Grant as well as subsequently have held that “forthwith” does not mean immediately. In R. v.Seo (1986), (ON CA), 54 O.R. (2d) 293 (C.A.), it was held that the test could be administered as soon as reasonablypossible in the circumstances.

Finlayson J.A. noted that “forthwith” is defined in Jowitt’s Dictionary of English Law as well as inBlack’s Law Dictionary to mean within a reasonable time having regard to the provision and the circumstances of the case.(emphasisadded) The test described here in the majority decision by four judges of the Supreme Court of Canada, in Bernshaw, is therefore that thedemand must be given as soon as reasonably possible having regard to all of the circumstances in the case. It is only in the minoritydecision of Mister Justice Cory, in paragraph 54, that a reference is made to the demand having to be immediate.

I therefore disagreewith the description of the test in Allen and find that the demand must be made as soon as is reasonably possible, after the formation ofthe reasonable suspicion, for the following reasons. Firstly, in my view, the language of the Supreme Court of Canada in Woods and inBernshaw, is not that the demand must be immediate, but rather it much be given promptly. The definition of promptly in Black’s LawDictionary is, ready and quick to act as the occasion demands.

Secondly, the decision of the Supreme Court of Canada in Grant, also suggests that a demand is not proper if it is made before themachine is available, because that frustrates the requirement that the opportunity to blow be forthwith. Unless every officer is expectedto have an ASD in their vehicle or on their person, it is difficult to understand how police officers will be in a position to make thedemand immediately upon forming a reasonable suspicion in all cases.

Thirdly, the majority Supreme Court of Canada decision in Bernshaw defined the test as, “as soon as possible in all of the circumstances”. In my view, a reasonable wait for an ASD would fall within the meaning of prompt and as soon as possible in all of the circumstances. In R. v. Yamka (supra) , after the officer formed a reasonable suspicion, the accused was placed in the police vehicle until an ASD could be brought to the scene. The machine was brought 10 minutes later and the accused was then given the demand. The Court was called upon to consider a Charter breach under s. 8, 9, 10(

a) and 10(b). The court found that the 10 minute delay until the machine arrived was a breach of s. 8, 9, and 10(a). However, under a s. 24 analysis, the subsequent evidence that the accused failed the test was not excluded. In that case, the court stated in paragraph 28, as follows: “Forthwith” means “immediately” or “without delay.” It connotes a prompt demand and an immediate response by the person to whom that demand is addressed. Woods , at para. 13 and 44 . An ASD demand that does not comply with the “forthwith” component is not authorized by s.254(2) and is not a lawful demand.

The resulting breath sample is obtained in violation of the driver’s s.8 rights. Again, that court specifically referred to a “prompt” demand in that quotation. In stating that an ASD demand does not comply with “forthwith” in s.254(2) , in my view, does not mean that the Court was indicating that the demand must be “forthwith” or “immediate”, but rather that it can only be made when the detainee can be given the opportunity to provide a sample “forthwith”, given his obligation under that provision. The Crown referred me to three cases.

Dominski(supra) and Misasi(supra) both dealt with a Charter application which is not before this court. In addition, the Crown referred me to the Quansah decision, which I found to be helpful. In that decision, at paragraph 45, the Ontario Court of Appeal states: In sum, I conclude that the immediacy requirement in s.254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually.

Courts must bear in mind Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible

interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s.254(2). Fourth, the immediacy requirement must take into account all the circumstances. There is no need to refer to the fifth item in that quotation because it related to the Charter application and the s. 10(

b) issue. Conclusion on Issue One Based upon these cases, I come to the following conclusions. The demand in this case, which was made 12 minutes after the stop, was lawful in all of the circumstances. The delay occasioned by the ASD not being on scene was four minutes. In my view, in all of the circumstances, that is reasonable and PC Collins actions prior to the demand, after the arrival of the ASD, are reasonably accounted for and make the demand one that falls within the test of “as soon as possible in all of the circumstances”.

The accused was therefore under an obligation to provide a sample forthwith after that demand was made. Having made that determination, that does not mean Charter Rights are not engaged when there is a delay between the forming of a reasonable suspicion and the demand. Given that there is no s.10 Charter application in this case, this court is not called upon to consider if PC Collins should have explained the reasons for the accused’s detention, and provided him with his right to counsel.

Issue 1(

b) The Proper Operation of the ASD Under s. 254(2)(b), the accused must comply with the demand, and provide, forthwith, a sample that in the peace officer’s opinion, will enable a proper analysis to be made by an approved screening device. In order for the officer to have that opinion, the officer must believe that the machine is in proper working order. Both PC Collins and Sergeant Byers testified that ASD machines are sent out, tested, and calibrated by an expert every two weeks. Although Sergeant Byer initially said “every month”, he later corrected himself.

Evidence indicates that a record or proof of that testing and calibration is kept at the station, and also placed on the device by means of a sticker. Both officers indicated that these stickers sometimes fall off. PC Collins even described them as “flimsy”. With respect to the device used on the night in question, Sergeant testified that the device was in his vehicle from the beginning of his shift, however, he could not remember putting it in himself, or whether or not it was already there. He also testified that he could not recall checking the sticker that night.

PC Collins testified that when she used Sergeant Byers’ machine, it did not have a sticker on it. Sergeant Byers was not aware of the absence of the sticker until trial. In terms of the importance of the sticker, PC Collins agreed that a testing calibration sticker indicates whether or not the ASD is reliable and in working order. She described her training on the ASD as including being told not to use the machine if there is no proof of calibration.

Although evidence indicates that the testing record at the police station could be used to verify whether or not a machine had been calibrated, PC Collins did not try to access those records for this machine on that night. Instead, she assumed that it had been properly tested, because of the system, which sends all machines out for testing every two weeks. PC Collins proceeded to make the demand and use the machine based on this assumption and despite, what she admitted, was her training. At the point when Mr.

Tran was given the demand, PC Collins did not have direct knowledge that this specific machine had been calibrated as required, within the last two weeks. In terms of the reliance this officer placed upon the usual testing system, she certainly indicated she subjectively believed that the machine had been tested, and I accept that. However, she never described the system, or any safeguards that are in place within the system, that would guarantee that all systems would get tested, and none are missed.

In my view, there is therefore insufficient evidence before me to conclude that her subjective opinion, in that regard, was objectively reasonable. In my view, PC Collins did not have the necessary opinion that, that device would produce a proper analysis for the sample. In my view, the demand was therefore not lawful under s. 254(2), and Mr. Tran was therefore not under any obligation to provide breath samples into that device.

Even if one was to accept the evidence of the officers, which supports the Crown’s position that the accused feigned his attempts, the fact that he failed to blow would not change the fact that the demand was not lawful in the first place, and he was not obliged to blow. While PC Collins also relied upon the green ready light to buttress her opinion that this machine would enable a proper analysis, in my view, the green light would have come on after the demand was made because she described the machine was simply warming up at the time that she brought the accused back to the vehicle.

In my view, the green light, therefore does not make her belief any more objectively reasonable at the time she made that demand. Finally, PC Collin also relied upon Sergeant Byer’s self test, and his reading of zero to confirm her opinion. Again, in my view, this came too late to perfect her opinion at the time of the initial demand. Even the attempts subsequent to Sergeant Byer’s demand, were in response to the same initial demand, and that demand remained unlawful throughout their interaction.

Although it is unnecessary to go further, in my view, had PC Collins known about the green light and Sergeant Byers’ self test before she made the demand, that would still not make the demand objectively reasonable in my view, for the following reasons. Firstly, it was PC Collins testimony that the ASD system that the police have adopted, relies upon the sticker to indicate that the machine is operating properly. If the sticker is not there, evidence indicates the station can be called to verify it has been properly tested. Even if those records were accessed after Mr.

Tran’s arrest, it would not change the unlawfulness of the initial demand at that point in time. Secondly, while PC Collins placed great reliance on the green light to say the device is working properly, despite the absence of the sticker, she is not an expert. Without evidence from an expert, who can say that in the absence of a green sticker, a green light still guarantees reliability and proper calibration, this court cannot be satisfied that the demand was lawful.

Thirdly, while Sergeant Byers’ self test subjectively confirmed for these two officers, that the machine was working properly without the sticker, I find that in the absence of expert evidence, that a zero reading from someone who has not been drinking, guarantees a proper reading from someone who has consumed alcohol, is a factor that makes that conclusion of the officers not objectively reasonable.

Finally, and it is startling to this court, that based upon PC Collins evidence, these stickers are flimsy and sometimes fall off. Surely, it would be a very simple matter to develop a cheap sticker or marker that never falls off these machines. The simplicity of the solution to this problem cries out for it to be fixed. Based upon this reasoning, I find that Mr. Tran did not, in fact, fail to comply or refuse to comply with a lawful demand under s. 254(2) of the Criminal Code , and he is therefore acquitted.

Given this finding, it is unnecessary to go on to consider the two remaining issues, however, if I am wrong, it may be helpful to briefly comment on these issues from a trial perspective. Issue 2. Whether the Accused Failed to Provide a Suitable Sample Issue 3. Whether he Intended not to Provide a Suitable Sample In my view, based upon all of the evidence, I accept the evidence of PC Collins and PC Byers, that Mr. Tran was given sufficient instructions to understand how to provide a suitable sample.

I also accept their evidence, describing his inadequate and intermittent delivery of air into the machine, which resulted in an intermittent tone. This occurred despite their coaching telling him to keep blowing and keep blowing, which the accused confirmed in his evidence. I accept PC Collins evidence that each attempt produced an “E0” reading, despite her evidence and the cross-examination of her evidence, on the basis of R. v. Ponn ampalam [2012] O.J. No. 1425 . I also make this finding despite the absence of the specific notation of “EO” in her notes, where she simply recorded “insufficient sample”.

I also accept the evidence of the two officers, that this test is a relatively simple one, like blowing up a balloon, and that it normally requires only four to five seconds of steady breath. The accused, on his own evidence, is a healthy male, although he described that, because it was cold and he had no jacket, he was cold and shivering, and that it affected his ability to blow. This evidence of shivering was never put to the officers. In addition, he never complained to the officers about this.

If this was an issue, and the reason he could not do what the officers repeatedly told him to do, given the nature of their interaction, as described by both Sergeant Byers and Mr. Tran as jovial or comfortable, and the officers repeated attempts to coach and help him provide a sample which were confirmed by Mr. Tran, one would have expected him to have complained about the cold as the reason why he was having trouble. On his evidence, he never did that. I therefore do not believe his evidence in that regard, and do not find that it might reasonably be true, or that it raises a reasonable doubt.

I also find that it is not a reasonable excuse for his failure to provide a sample. I find that, based upon all of the evidence, the Crown would have established, beyond a reasonable doubt, the actus reas and mens rea of the charge of refusing to provide a sample, contrary to s. 254(5) of the Criminal Code . So, in the end, Mr. Tran is acquitted on the basis of issue 1(b). Date transcript ordered........................30 Jan. 2013 Date transcript completed......................20 Mar. 2013 Date ordering party notified...................20 Mar. 2013 FORM 2 Certificate of Transcript Evidence Act , subsection 5(2)

I, Nathanael Naval, certify that this document is a true and accurate transcript of the recordings of R. v. M. Tran in the Ontario Court of Justice held at 1911 Eglinton Avenue East, Toronto taken from Recording Number(s) 094040 – Jan. 30, 2013. 20 March 2013 ______________ _______________________________ Date NATHANAEL NAVAL (Court Reporter) THIS IS TO CERTIFY THAT the foregoing is a true and accurate transcription from recordings made herein, to the best of my skill and ability. 20 March 2013 ______________ _______________________________ Date NATHANAEL NAVAL (Court Reporter) Certificate of Transcript (Rev. 03/04)