r v. Gassia Vanig DJERRAHIAN, 2017 QCCQ 9788

R. c. Djerrahian 2017 QCCQ 9788 JCO 051 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal Division No.: 500-01-136693-162 DATE: August 2, 2017 ______________________________________________________________________ PRESIDING: THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ Her Majesty the Queen Prosecutor v. Gassia Vanig DJERRAHIAN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] The accused is charged with impaired driving, contrary to sections 253(1)

a) and 255(1) of the Criminal Code (count 1), and with failing to comply with a demand made by a peace officer to provide a breath sample for analysis by means of an approved screening device (ASD), contrary to sections 254(5) and 255(1) of the Criminal Code (count 2). [ 2 ] Following the testimony of the only witness for the prosecution, the lawyer acting for the DPCP conceded that she had not met her burden on the first count. The Court acquitted the accused of this charge on June 21. As such, this judgment relates only to the second count. [ 3 ] Only two witnesses were heard in this case.

Constable Bolduc, the police officer who demanded that the accused provide a breath sample, and the accused. [ 4 ] The prosecution contends that a proper order to provide a breath sample was made, and that the accused deliberately failed to comply with such order. The accused concedes that a proper order was made, but insists that she made every effort to comply with the order. Her position is that the prosecution has not proved the actus reus or the mens rea of the offence and that she therefore must be acquitted.

ISSUES [ 5 ] Has the prosecution proved the actus reus of the offence, namely that the accused failed to comply with an order to provide a breath sample for analysis by means of an ASD ? [ 6 ] If so, has the prosecution proved the mens rea of the offence, namely that the accused intentionally failed to provide a breath sample for analysis by means of an ASD ? CONTEXT

Constable Bolduc [ 7 ] On March 26, 2016, at approximately 1:15 A.M., the car being driven by the accused is stopped by Constable Bolduc and his partner for offences under the Highway Safety Code . [ 8 ] Upon approaching the driver’s window, Constable Bolduc smells alcohol coming from the breath of the accused and observes other symptoms compatible with the consumption of alcohol. He asks her if she had consumed any alcohol, and she replies that she had.

Constable Bolduc therefore asks her to step out of the car, which she does without incident. [ 9 ] Once she is out of the car, Constable Bolduc asks the accused when she had had her last drink, and what she had drunk. She responds that she had had one glass of wine which she had finished drinking at approximately 11:30 A.M. He also asks her whether she has ever done a roadside screening test before and she replies that she has not. [ 10 ] Constable Bolduc then explains to the accused that he is ordering her to provide a breath sample for analysis by an ASD .

Between 1:18 and 1:28 A.M. he explains the order to her, as well as the consequences of a refusal, a number of times, in a number of different ways. Between 1:18 and 1:20 A.M. he does so by reading from a card provided by the Sûreté du Québec. [ 11 ] After reading the SQ card to the accused for the first time, and before the accused actually blows into the machine, Constable Bolduc asks her if she understands. She replies “ya”. Constable Bolduc is not satisfied with this answer as he likes to get a “yes” or “no”. As such, he asks her to confirm her understanding and this time she says “yeh”.

He believes that she is not collaborating. Constable Bolduc testified that it is easy to see when people do not collaborate and that he did not want to end up with a refusal. [ 12 ] Constable Bolduc gives the accused four different opportunities to provide a proper breath sample. He explains to her how to blow and put the mouthpiece into her mouth. He also demonstrates how she should blow by using gestures. He tells the accused to take a deep breath when he asks her to do so, and to blow into the mouthpiece in a long continuous breath.

He tells her that she should blow into the mouthpiece the way one would blow up a balloon. He never explains how many seconds she needs to breathe for, but he gives her a demonstration. He never counts how long she actually blows for during each of her attempts. [ 13 ] On the first try, the accused takes a short, weak breath which is not what Constable Bolduc had explained. She also does not close her lips well on the mouthpiece. The machine does not register a result. It indicates “insufficient flow”. On the second try, the accused does not close her lips and her breath is very weak again.

Once again, the machine registers “insufficient flow”. [ 14 ] After the first two attempts, Constable Bolduc takes out a clean empty mouthpiece and shows the accused how to blow into it without it being attached to the machine. She does it perfectly: she closes her lips around the mouthpiece and provides a long continuous breath. He tells her he will give her one more chance. [ 15 ] On the accused’s third attempt, she closes her lips properly but again only provides a weak breath. Again, the machine registers “insufficient flow”.

This was not at all like the breath she had taken when the mouthpiece was not connected to the machine, when she may have blown for 10 seconds. It is clear to Constable Bolduc that the accused is not collaborating. However, because she at least closed her lips properly on this attempt, he decides to give her one more chance. [ 16 ] On the accused’s fourth attempt, she again closes her lips properly, but again provides a short weak breath, with the result that the machine registers “insufficient flow”.

At 1:28 A.M., Constable Bolduc therefore places the accused under arrest for impaired driving, and for refusing to provide a breath sample. [ 17 ] The accused is asked to follow Constable Bolduc and his colleague and is seated in the backseat of the patrol car. She is told that she will be released after all of the administrative paperwork is done. During this time, Constable Bolduc goes to inspect the accused’s car and to speak to the passengers. He sees a 750 ml bottle of red wine on the floor. It is half full, and the cork is pushed halfway back into the bottle.

While he and his colleague finish the paperwork, they receive an urgent call, at which point they advise the accused that she would receive a summons. She is then released.

[ 18 ] Constable Bolduc acknowledges that the accused never said no, that she would not blow. She never made an excuse not to comply. She did not act defiantly. There was no physical or verbal aggression. There was no shouting. The accused did not have aggressive body language. The exchanges were polite and never insulting, except to a certain extent at the very end when she was in the patrol car. [ 19 ] Finally, Constable Bolduc stated that he never tried the machine himself to ensure that it was working properly. He said that the “usual verifications” had been done upon leaving the station.

He also ensured that the mouthpieces had never been used. He noted that when he took the machine out of the car, it indicated 13°C. No explanations were provided as to the nature of the “usual verifications” or the significance of the 13°C reading. The accused [ 20 ] Ms. Djerrahian spent the evening at a dinner party on the South Shore. She had one glass of wine, which she finished at approximately 11:00 P.M. She was the designated driver so she did not drink any more than that.

She corked the bottle and brought it home because it was half-full. [ 21 ] At approximately 1:00 A.M., she and the two friends who she was giving lifts to decide to go home. She does not know the area well and she did not notice the signs indicating the speed limit as she got onto the bridge and she acknowledges that she was speeding, and driving in the left lane.

As soon as she sees the signs indicating that the speed limit is 70 km per hour she slows down but the patrol car being driven by Constable Bolduc is already following her and asking her to pull over. [ 22 ] Constable Bolduc approaches her and asks her for her licence and registration. Then he asks her to get out of the car. He asks her if she has been drinking. She replies that she had had wine a couple of hours ago and that she is fine.

He asks her whether she has ever provided a breath sample for a roadside screening device and she replies that she has not. [ 23 ] Constable Bolduc orders her to provide a breath sample and although he explains everything in French, she understands him. He says that she should close her lips on the mouthpiece like she would if she were blowing up a balloon. She understands that she needs to close her lips and blow for a long time. She also understands that it is in order and that she has to do it. [ 24 ] After her first try, the officer tells her that the result is not good.

He tells her to blow harder and longer. She tries again, but Constable Bolduc tells her that she is still doing it wrong. Constable Bolduc says that she is doing it on purpose and that she is “going to go to jail tonight”. He tells her that it would be bad for her if she doesn’t provide the sample. He tells her that it is in her best interests to do so. She is really trying to do it right. [ 25 ] In between the attempts, she also blows into a mouthpiece which is not connected to the machine. When she does so, Constable Bolduc tells her that she is doing it properly.

At that point, she feels that there must be a problem with the machine, because she is blowing into the mouthpiece in exactly the same way as she had blown when the mouthpiece was attached to the machine. [ 26 ] The accused blows a third time and is still unsuccessful. Ultimately, she tries four times on the machine, without obtaining a valid result. While she is blowing, Constable Bolduc doesn’t say anything. After each attempt, the officer becomes agitated and hyper. It makes her very nervous. [ 27 ] Constable Bolduc accuses her of deliberately sabotaging the test.

He tells her that she needs to blow so that a result registers on the test and that it is not registering. She understands. Although she and the officer are standing close together, she doesn’t see what the machine indicates after each test. She can see numbers and lights but the officer doesn’t show it to her. [ 28 ] The accused testifies that she knows that she has to blow. She understands the consequences of not blowing. She wants to blow. There is no reason for her not to blow.

She feels defeated when it doesn’t work. [ 29 ] Following her fourth failed attempt, Constable Bolduc advises her that they will go into the patrol car and do some paperwork. At this point, she is relieved. When Constable Bolduc begins to read her her rights, she says “you tricked me” because she had thought

that when they went to sit in the car, it meant that everything was okay. ANALYSIS [ 30 ] On a charge pursuant to section 254(5) , the prosecution must prove the following three things beyond a reasonable doubt: • The existence of a valid demand; • A failure or refusal by the accused to produce the required sample of breath or blood (the actus reus ); • That the defendant intended to produce that failure (the mens rea ). [1] [ 31 ] As stated above, the accused concedes that a valid demand was made. However, she argues that the Crown has proved neither the actus reus nor mens reas beyond a reasonable doubt.

The actus reus The law [ 32 ] The actus reus is easy to prove in cases of outright refusal. However, in cases such as this, where the accused attempts to provide samples and appears to cooperate, it is more challenging to prove the commission of the culpable act. In Tavangari , Justice Kenkel elaborated on this point as follows: These cases typically involve conversation between the parties that is likely to be unique, as well as a variety of circumstances which tend to combine in ways that again are particular to the case.

There can be no specific rules isolating one factor, such as the number of tests to be conducted, from the other circumstances of a transaction to determine whether there has been a failure to provide a sample. Each case must be individually assessed, looking at all of the circumstances of the transaction between the officer and the accused as a whole, to determine whether the Crown has proved a refusal or failure within the meaning of s. 254(5) . [2] . [ 33 ] The fact that a result is not obtained is not enough to prove the actus reus [3] .

All of the evidence must be evaluated in order to determine whether the unsuccessful tests are caused by the accused, as opposed to factors which are unrelated to him or her [4] . [ 34 ] Furthermore, there is no presumption that an approved screening device (ASD) is functioning properly [5] . As such, in certain cases, the prosecution must make this proof.

The justification for this requirement has been explained as follows: 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. There is no presumption that an approved screening device will function properly.

Moreover, the machine is one owned and operated by the State, and it is not an onerous burden for the Crown to provide some evidentiary foundation upon which to infer that the machine was working properly. In some cases, this may not even require direct evidence, but may be inferred from the totality of the Crown's case. But if there is no evidence at all on this point, I think that the accused is entitled to a directed verdict.

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. [6] [ 35 ] To be clear, it is not always necessary for the prosecution to prove the proper functioning of the ASD in cases of failed attempts to provide proper breath samples. Each case must be evaluated on its own facts, based on the whole of the evidence [7] . Application [ 36 ] This Court finds the accused’s testimony to be credible and reliable.

The prosecutor, very honourably, observed in her closing arguments that the accused testified calmly, and answered all of the questions. The Court agrees. The Court noted that the accused was neither evasive nor defensive throughout her somewhat lengthy cross-examination. [ 37 ] Furthermore, the testimony of the accused is corroborated in many respects by the whole of the evidence. For example, she said that she had only consumed one glass of wine and therefore had no reason to fear the results of the ASD .

In fact, she demonstrated so few signs of impairment that following the close of the prosecution’s case, the prosecutor conceded that she could not meet her burden on the impaired driving charge and the accused was subsequently acquitted. The accused also stated that she had brought one bottle of wine to the dinner party to drink and to share with the others, and corked it and brought home at the end of the night because it was still half-full. Indeed, Constable Bolduc saw this half-full bottle in the accused’s car. [ 38 ] The accused’s testimony in many respects mirrored that of Constable Bolduc.

She acknowledged his many explanations to her as to how to blow properly, the fact that she was given four chances, and the fact that he gave her a mouthpiece which was unattached to the ASD in order to try blowing that way.

The only real difference between the testimony of the accused and that of Constable Bolduc is that the accused stated that she was trying her best to provide the required breath samples, while Constable Bolduc concluded that she was not. [ 39 ] The Court notes that Constable Bolduc stated that the accused was generally cooperative and polite, was not aggressive, never explicitly refused to provide a breath sample and never tried to make an excuse for not complying. Constable Bolduc never said that the accused was faking or “game-playing”.

Furthermore, the Court places significance on the fact that from almost the very beginning of the intervention, the officer raised a concern about a potential lack of collaboration [8] . The Court believes that this may have coloured his

interpretation of the subsequent course of events.

[ 40 ] The Court also feels compelled to comment on the credibility of Constable Bolduc more generally. Almost immediately upon taking the stand, he asked for permission to consult his notes contained in the police report. The Court asked him to attempt to testify from memory, and stated that he could reiterate his request if he needed to consult the report for particular details.

Despite these clear instructions, the officer was clearly looking down at his report, which was in front of him, throughout his testimony, and ultimately, the Court had to ask him to turn the papers over in order to ensure that he respected the Court’s direction. For this reason, where their testimony differs, the Court accepts the testimony of the accused over that of Constable Bolduc. [ 41 ] The Court also got the sense that Constable Bolduc believed that the accused would be basing at least part of her defence on the fact that she speaks English and that he was speaking with her mainly in French.

He seemed to go out of his way to insist that the accused understood French and that his colleague was translating things into English throughout the intervention. The Court found this aspect of Constable Bolduc’s behaviour troubling in that he did not seem to be testifying as an impartial and objective witness but rather as someone who wanted to make sure to “make his case”.

This behaviour continued in cross-examination when he at times questioned why the defence lawyer was asking him particular questions, and often provided unsolicited information which was unresponsive to the questions which had been asked of him. [ 42 ] Ironically, the accused did not claim to have not understood her conversation with Constable Bolduc and clearly stated that she understood everything that he explained to her.

She was not particularly critical of him other than to state that both he and his colleague became more and more agitated as the intervention continued. [ 43 ] Given all of the above, and in particular the Court’s finding regarding the credibility of the witnesses, this is one of those cases where the prosecution does need to provide some evidence regarding the proper functioning of the machine in order to prove the commission of the culpable act. [ 44 ] The evidence on the record on this point is very limited.

In response to a question in cross-examination, the officer noted that when they left the station, he did the “vérifications d’usage”. There is no evidence as to what such verifications involve, at what time this took place, and whether the machine had been used between the time they left the station and the intervention in relation to the accused. [ 45 ] Furthermore, Constable Bolduc was asked whether he tried the machine himself after the first two unsuccessful attempts to blow by the accused. He answered that he did not.

There is no evidence that he tried following any of the subsequent attempts either. [ 46 ] In the circumstances, the Court is not convinced beyond a reasonable doubt that it is the accused’s behaviour which led to the unsuccessful results. As such, the Crown has not proved the commission of the actus reus . The mens rea [ 47 ] Although the conclusion regarding the prosecution’s failure to prove the actus reus beyond a reasonable doubt is sufficient to dispose of this matter, the Court will still address whether or not the prosecution has met its burden to prove the mens rea of the offence.

The law [ 48 ] The failure to provide a breath sample is not in and of itself enough to prove the commission of the offence set out at section 254(5). To fall within the scope of this provision, the failure must be voluntary and intentional [9] . [ 49 ] Proof of the mental element of the offence will be inferred from the whole of the evidence. Often, the facts relevant to determining whether proof of the actus reus has been made will be re-examined in the analysis as to whether the mens rea has been proved. Application [ 50 ] The accused testified that she genuinely wished to provide a breath sample.

There was no reason for her not to blow as she knew that she was not impaired. She understood the instructions and believed that she was following them and blowing in exactly the same way as the officer asked her to blow. She knew that she had to blow and that it was in her interest to provide a valid breath sample. She was trying her best. She felt “defeated” when her attempts continued to be unsuccessful. [ 51 ] The Court has already indicated that it finds the accused to have been a credible witness.

In the circumstances, her testimony both alone and when considered in the context of the whole of the evidence raises a reasonable doubt regarding her intention to commit the offence. The mens rea has therefore not been proved beyond a reasonable doubt. DISPOSITION For all of the foregoing reasons, Ms. Djerrahian is acquitted. __________________________________ SUZANNE COSTOM, J.C.Q.

Me Isabelle Major Prosecuting Attorney Me Dahlia Gaiptman Accused’s Attorney Hearing dates : March 28, May 15 and June 21, 2017