R. v. Mackenzie, 2012 ONCJ 424

COURT FILE No.: Toronto 12000459 DATE: 2012·06·28 Citation: R. v. Mackenzie , 2012 ONCJ 424 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JEFFREY MACKENZIE Before Justice Justice K. Caldwell Heard on December16, 2011; April 10 and May 28, 2012 Reasons for Judgment released on June 28, 2012 Ms. M. Mackett .................................................................................................... for the Crown Mr. M. Sciarra .......................................................................... for the accused Mr. Mackenzie K. Caldwell J.: [ 1 ] Mr. Mackenzie is charged with refusing a breath sample on December 29, 2010. (

a) Summary of the Evidence [ 2 ] Mr. Athanasios Floros was a tow truck operator who was waiting for calls on Highway 401 in Toronto. He can listen to OPP broadcasts and heard of a disabled car on the 401 express lanes. [ 3 ] It quickly became apparent during Mr. Floros’ testimony that he could recall virtually nothing of that evening thus Mr. Floros’ statement to the police was admitted on the basis of past recollection recorded. [ 4 ] Mr. Floros saw Mr. Mackenzie get out of the car on the driver’s side, and said he was behind the wheel of the car. Under cross, he agreed that he assumed that Mr.

Mackenzie was the driver because he got out of the driver’s side. He agreed that the car wasn’t running when he arrived on scene. [ 5 ] The police arrived on scene as Mr. Floros was about to hook the car up to the tow truck. [ 6 ] PC Jonathan Bray testified that he arrived at 6:50 am in the vicinity of the Bayview exit, and saw Mr. Mackenzie standing in front of the car. He was on his cell phone, and said he was talking to his mother. Mr. Mackenzie said he wanted to get off the highway. For safety reasons, the officer told Mr.

Mackenzie to sit in the back of the scout car. [ 7 ] Once in the police car, the officer noted bloodshot eyes, the smell of alcohol, and slurred speech. Further, the tow truck driver told the officer that Mr. Mackenzie was the driver. [ 8 ] The officer drove the scout car off the 401 at 6:58 am, arriving at the Avenue Road exit at 7:05 am. He said he suspected there was alcohol in Mr. Mackenzie’s system given his observations but he wanted to get off the highway both to confirm his suspicions and to give the screening device demand in a safe location. [ 9 ] At 7:10 am, Mr.

Mackenzie told the officer that he was on his way home, and that he wasn’t the driver. The officer read the formal screening demand at 7:15 am and, he was asked if he understood. The officer then repeated the demand again in simpler language and asked Mr. Mackenzie if he wanted to provide a sample. In response, Mr. Mackenzie was arguing with the officer, agitated, yelling and cursing. The officer was satisfied that Mr. Mackenzie understood the demand. The officer didn’t record the entire conversation but said that there was a long conversation concerning the issue. He testified that he tried to get Mr.

Mackenzie’s attention over a three minute period, but Mr. Mackenzie kept shouting and cursing. He kept stating that he was not the driver and said “no, I was not the driver” when asked if he wanted to provide a sample. [ 10 ] The officer told Mr. Mackenzie of the consequences of failing to comply with a demand, and arrested him for refusing to provide a sample. He repeated that he wasn’t the driver when asked if he wanted to say anything in answer to the charge.

[11] The Crown called no further witnesses. No evidence was called by the defense. (

b) The Issues [12] In my view, the issues in this case are as follows: (

i) must the Crown prove that Mr. McKenzie was in care or control of or operated the car in order to establish a valid demand? (ii) did the officer have the requisite reasonable suspicion required to make the demand? (iii) has the mens rea been established beyond a reasonable doubt? (

i) Is Proof of Care/Control/Operation Required? [13] Section 254(2) governs. Below are the applicable portions:

(2) 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 …or had the care or control of a motor vehicle …whether it was in motion or not, the peace officer may,by demand, require the person to comply with paragraph …(b): …. (

b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [14] Prior to 2008, the

section read as follows:

(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle … or who has the care or control of amotor vehicle, whether it is in motion or not, has alcohol in the person's body, the peace officer may, by demand made to that person,require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a properanalysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer forthe purpose of enabling such a sample of breath to be taken. [15] A comparison of the sections shows that prior to 2008 the demand must be made of a person who is in fact eitheroperating a motor vehicle or in care or control of one – see my emphasis above.

As a result, proof of actual operation (or care/control)had to be established in order to prove a refuse charge. [16] Post 2008, the wording indicates that it is not actual operation/care/control but instead the officer’s reasonable suspicionof such operation/care/control that is relevant. [17] Justice Brewer was of this view in R v Xhelili, [2011] O.J.

No. 4059 (O.C.J.) and I fully agree with her reasoning – seeparagraph 14 of her judgement. [18] The cases decided pursuant to the section 254(2) must be read with care as cases decided under the prior version of thesection may not be fully applicable to the current version. For example, R v MacPherson, (ON CA), [2000] O.J. No.4777 (Ont. CA) and R v Swietorzecki, (ON CA), [1995] O.J. No. 816 (Ont.

CA) held that the Crown must prove thatthe accused was in actual care/control or operation of the car in order to establish a valid demand. [19] Swietorzecki examined the 1975 SCC case R v Taraschuk (1975), (SCC), 25 C.C.C. (2d) 108. InTaraschuk, the SCC held that the fact the accused had not been driving or in care or control was not a defense, or “reasonable excuse”, tothe charge of refusing to provide a breath demand. Taraschuk, however, dealt with the breathalyser demand

section then in effect asopposed to the screening device demand section. The breathalyser demand

section was section 235(1), R.S.C. 1970, c. C-34 which readas follows: 235.

(1) Where a peace officer on reasonable and probable grounds believes that a person is committing, or at any time within thepreceding two hours has committed, an offence under

section 234, he may, by demand made to that person forthwith or as soon aspracticable, require him to provide then or as soon thereafter as is practicable a sample of his breath suitable to enable an analysis to bemade in order to determine the proportion, if any, of alcohol in his blood, and to accompany the peace officer for the purpose of enablingsuch a sample to be taken. [20] The Court in Taraschuk held that the breath demand

section clearly linked the officer’s reasonable and probable groundsto the overall commission of the impaired driving/care or control offence, which includes the elements of both impairment anddriving/care or control. There was no requirement in that demand

section that the person be in actual care or control. Instead, the officermust simply have the reasonable and probable grounds to believe that the person was in care or control. [21] The Court of Appeal in Swietorzecki noted the difference in wording between section 235(1) and the screening demand

section in effect at the time of Swietorzecki, holding that the screening demand

section required the person to be in actual care or controlin order for the demand to be valid and thus the fact that the person was not in actual care or control was a defense to a refusal charge. [22] The 2008 amendments to the screening demand section, however, mean that the

section now parallels in substance thebreath demand

section addressed by the SCC in Taraschuk. The reasoning in Taraschuk is now applicable to the current screeningdemand section, meaning that it is the officer’s reasonable suspicion of care or control that is relevant, not the actual fact of care orcontrol. (ii) Did the Officer Have the Requisite Suspicion? [23] PC Bray is told by the tow truck driver that Mr. Mackenzie is the driver. There is no one else anywhere in the vicinitythat appears to have any connection with the car. It is pulled over on a busy multi-lane highway a long distance from any pedestrianthoroughfare. Despite Mr.

Mackenzie’s protestations to the contrary, the officer formed the suspicion that Mr. Mackenzie was thedriver. I accept the officer’s evidence in its entirety. [24] This suspicion also was reasonable on an objective basis. It is not definitive proof that is required at this juncture butmerely reasonable suspicion, both on a subjective and objective basis. Both branches of this test have been met on the basis of thisevidence. [25] The officer did not specifically state in his evidence that he formed the suspicion that Mr.

Mackenzie had operated the carwithin the last three hours but given the factors I have outlined in paragraph 24 I infer that the officer had the reasonable suspicion thatMr. Mackenzie had operated the car within the three hour time frame. (iii) Did Mr. Mackenzie possess the necessary mens rea? [26] The officer put the demand to Mr. Mackenzie more than once. He read the demand to him in the formal language fromthe back of his book and explained what it meant in simple terms as well. He told Mr. Mackenzie what the consequences were ofrefusing to blow into the machine. [27] Throughout this process, Mr.

Mackenzie was agitated, yelling and screaming that he wasn’t the driver. [28] The N.S.C.A. in R v Peck, (NS CA), [1994] N.S.J. 39 noted at para. 33 Care must be taken not to confuse the proof of the excuse by the accused with the opportunity always open to the accused to rely onreasonable doubt as to intention to commit the offence.

If the trial judge in this case had a reasonable doubt that the appellant hadintended to commit the offence, he was obliged to acquit. [29] In R v Boucher, [1986] N.B.J. 761, the arresting officer read the accused his right to counsel, and told him that he couldcall a lawyer as soon as they reached a phone. He then asked the accused if he wanted to take the breathalyser test and the accusedreplied, “I don’t think so”. He repeated this response a few times. The officer then told him that if he didn’t take the test, he would becharged with refusal and placed under arrest.

The officer again asked the accused if he wished to take the test the accused said “no”. [30] The appellate court took issue with the fact that the officer made an invitation to the accused to take the test as opposed tomaking a demand, concluding “the offence is committed when a demand is refused - not when an invitation is declined”. [31] Mr. Sciarra drew a parallel between this case and Boucher, noting that the officer in this case asked Mr. Mackenzie if hewanted to provide a sample, hence Mr. Sciarra argued that the officer merely put an invitation to Mr. MacKenzie. [32] Each case turns on its own facts.

The Court in Boucher made a point of commenting on the arresting officer’sinexperience and why, upon a full reading of the evidence, the trial judge would not have confidence in the officer’s evidence. TheCourt also put weight on the officer’s statement, "I can't advise you. I'm not a lawyer. You will have to call counsel. . . a lawyer", whenasked by the accused about the consequences of refusing to provide a sample. Further, the Court noted that this statement was made aftertelling the accused that he could contact a lawyer at the station.

These factors led the trial judge to conclude that the refusal equivocaland that the mens rea had not been established. [33] The scenario before me is different. I accept the officer’s evidence in full. He explained the demand twice to Mr.Mackenzie, once in the formal language found in the back of the officer’s book and again in simpler language. He told Mr. Mackenzieabout the consequences of refusing. Throughout, Mr. Mackenzie was argumentative, swearing, angry, and repeatedly insisting that hewas not the driver.

I find that this behaviour and these responses clearly conveyed a refusal to provide a sample and that an examinationof the overall scenario also establishes that Mr. Mackenzie was clear as to the meaning of the demand – he simply chose not to provide asample. [34] For the reasons outlined, I find Mr. Mackenzie guilty of the charge. Released: June 28, 2012 Signed: “Justice K. Caldwell”