HER MAJESTY THE QUEEN — v. —, 2016 ONCJ 804

ONTARIO COURT OF JUSTICE CITATION: R. v. Bernardelli , 2016 ONCJ 804 DATE: December 14, 2016 COURT FILE No.: Central East Region: Newmarket Court 16-01283 BETWEEN: HER MAJESTY THE QUEEN — AND — ANTHONY BERNARDELLI Before Justice Peter C. West Heard on September 22, 2016 Oral Submission Heard on December 14, 2016 Reasons for Judgment released on December 14, 2016 Ms. I. Denisov.................................................................. counsel for the Crown Ms. D. Pledge.......................... Counsel for the defendant Anthony Bernardelli WEST J.: [ 1 ] Mr.

Bernardelli was charged on January 31, 2016 with refusing to provide a sample of his breath into an approved screening device (ASD) pursuant to s. 254(5) of the Criminal Code of Canada . The Crown called two police officers, P.C. Kolesnyk and P.C. Ziccardi of the Aurora O.P.P., who were operating a RIDE spot check. The defence called Sgt. Zikos, of the Aurora O.P.P., who was the supervising officer at the RIDE spot check. Mr. Bernardelli testified in his own defence. [ 2 ] A Charter application was brought by the defence; however, at the beginning of the trial both counsel agreed the only issue was whether P.C.

Kolesnyk read an ASD demand pursuant to s. 254(2)(b). It was agreed this was a factual issue to be determined at the conclusion of the evidence and submissions based on the trier of fact’s assessment of the credibility and reliability of the witnesses. Ms. Pledge agreed there was no issue with the ASD the officer had with him, a Draeger 6810 or that the officer believed it was working properly or whether the officer formed a reasonable suspicion. [ 3 ] It was the defence position that P.C. Kolesnyk did not make any demand for a sample of Mr.

Bernardelli’s breath at the roadside before placing him under arrest and consequently, his arrest of Mr. Bernardelli for refusing to provide a sample of his breath in an ASD was illegal. Ms. Pledge also argued that if I accepted or I have a reasonable doubt that the officer had not advised Mr. Bernardelli of the consequences of refusing I should find Mr. Bernardelli had not unequivocally refused to provide a sample. [ 4 ] It was the Crown’s position that P.C. Kolesnyk, having formed a reasonable suspicion Mr. Bernardelli had alcohol in his body, did make a demand pursuant to s. 254(2)(

b) and Mr. Bernardelli refused to provide a sample. The Crown also argued it did not matter if P.C. Kolesnyk advised Mr. Bernardelli of the consequences of refusing before placing him under arrest. Factual Background (

a) Evidence of P.C. P. Kolesnyk

[ 5 ] On January 31, 2016, at approximately 12:58 a.m., Mr. Bernardelli was stopped by the O.P.P. at a RIDE spot check on the off ramp to Teston Road from Highway 400 northbound in the City of Vaughan. Mr. Bernardelli was operating a 2014 Black BMW 4 door motor vehicle bearing license BTXD874 and was the sole occupant. P.C. Ziccardi and Sgt. Zikos were also involved in the RIDE spot check. [ 6 ] P.C. Kolesnyk spoke to Mr. Bernardelli and detected an odour of alcohol coming from Mr. Bernardelli’s breath. When he was asked how much alcohol he had to drink, Mr.

Bernardelli told the officer he did not have anything to drink. When the officer advised Mr. Bernardelli he could detect the odour of alcohol coming from his breath, he replied, “Not much.” [ 7 ] P.C. Kolesnyk asked for Mr. Bernardelli’s driver’s license to confirm his identity and requested Mr. Bernardelli move his motor vehicle onto the right shoulder of the ramp, which he did. After confirming the driver’s identity Mr. Bernardelli told the officer he did not want to have a contract with the officer and stated he knows the superintendent. P.C. Kolesnyk testified he did not know what Mr.

Bernardelli meant by “contract.” P.C. Kolesnyk testified he did not recall what he said to Mr. Bernardelli to cause Mr. Bernardelli to say he did not want a contract with the officer. [ 8 ] At 1:06 a.m., P.C. Kolesnyk formed a reasonable suspicion Mr. Bernardelli had alcohol in his body and read him an approved screening device demand pursuant to s. 254(2) (

b) of the Criminal Code . P.C. Kolesnyk testified he read the ASD demand from a pre- printed card officers are issued by the O.P.P. [ 9 ] The ASD demand he read was I demand that you provide a sample of your breath into an approved screening device to enable a proper analysis of your breath to be made and that you accompany me now for the purpose of taking the sample. Do you understand? [ 10 ] P.C. Kolesnyk testified he always uses the same card with the same wording. Mr. Bernardelli indicated he understood but P.C. Kolesnyk could not recall his exact response. He was satisfied Mr.

Bernardelli understood the demand. [ 11 ] Mr. Bernardelli then said he did not wish to provide a sample and doesn’t want to have a contract with the officer. [ 12 ] P.C. Kolesnyk advised Mr. Bernardelli at 1:07 a.m. of the consequences of refusing to provide a sample of his breath. He explained the criminal charge that would result. He told Mr. Bernardelli a number of times. P.C. Kolesnyk testified he told Mr. Bernardelli the ASD demand was lawful and by law he had to provide a breath sample or face the consequences. He advised Mr.

Bernardelli three times that he would be charged criminally if he refused to provide a sample. [ 13 ] P.C. Kolesnyk did not discern any difficulties or concerns respecting Mr. Bernardelli’s understanding of English. Mr. Bernardelli spoke fluent English and P.C. Kolesnyk testified he was confident Mr. Bernardelli understood everything P.C. Kolesnyk said. At 1:08 a.m., P.C. Kolesnyk arrested Mr. Bernardelli for refuse ASD demand. P.C. Ziccardi was present for the arrest. [ 14 ] P.C. Kolesnyk searched Mr. Bernardelli incident to arrest and P.C. Ziccardi searched Mr. Bernardelli’s vehicle. At 1:11 a.m., Mr.

Bernardelli was handcuffed to the rear and placed into the rear of P.C. Kolesnyk’s police cruiser. [ 15 ] Sgt. Zikos was on scene but he never approached P.C. Kolesnyk’s police cruiser or Mr. Bernardelli’s vehicle. P.C. Kolesnyk drove Mr. Bernardelli to his residence as the BMW was impounded because of the arrest. [ 16 ] P.C. Kolesnyk became an O.P.P. officer in August 2014 and had been a constable for approximately a year and a half.

He testified he had been involved in approximately 10-15 RIDE spot checks by January 31, 2016. [ 17 ] The RIDE spot check funnelled cars into a single lane just before the lights at Teston Road. [ 18 ] P.C. Kolesnyk testified he walked over to Mr. Bernardelli’s car after he requested Mr. Bernardelli pull onto the right shoulder, he did not go to his police cruiser to check Mr. Bernardelli’s driver’s license on his computer at that time. He agreed Mr. Bernardelli might have been on his phone whether he got to the BMW. [ 19 ] P.C. Kolesnyk testified the first time Mr.

Bernardelli said he did not want to have a contract with the officer was when he was on the right shoulder. P.C. Kolesnyk did not recall what, if anything, he said to Mr. Bernardelli before he made the statement about a “contract.” P.C. Kolesnyk testified he asked Mr. Bernardelli for clarification as to what he meant by “contract” however, he did not put that in his notes. [ 20 ] P.C. Kolesnyk agreed the only thing he put in his notes respecting what occurred between 1:01 a.m. and 1:06 a.m. was “Driver indicated he doesn’t want to have a contract with me. Stated he knows a superintendent.” P.C.

Kolesnyk disagreed with the suggestion that when Mr. Bernardelli said he did not want to have a contract with the officer he assumed Mr. Bernardelli was refusing to provide a sample. He had not read the ASD demand yet. [ 21 ] P.C. Kolesnyk testified he did not recall saying to Mr. Bernardelli, before requesting him to pull his vehicle onto the right shoulder, he would have to blow. The ASD demand was read to Mr. Bernardelli when his vehicle was on the right shoulder. P.C. Kolesnyk could not recall if Mr. Bernardelli was inside or outside his vehicle when the ASD demand was read. [ 22 ] P.C.

Kolesnyk disagreed with the suggestion he did not read the ASD demand. He testified O.P.P. officers do not have a refusal sheet or consequence sheet which sets out what should be said to a motorist who refuses to provide a sample. [ 23 ] P.C. Kolesnyk could not recall if Sgt. Zikos came to his cruiser after Mr. Bernardelli’s arrest and inquired if Mr. Bernardelli had been advised of the consequences of a refusal. (

b) Evidence of P.C. G. Ziccardi

[ 24 ] On January 31, 2016, P.C. Ziccardi was involved in a RIDE spot check that was set up on the off-ramp from Highway 400 northbound to Teston Road. He was working with P.C. Kolesnyk and Sgt. Zikos. At some point he observed that P.C. Kolesnyk had pulled over a motor vehicle. He walked over to where the vehicle was stopped and as he approached P.C. Kolesnyk had waved the driver to pull onto the right shoulder. He did not hear the entire conversation between P.C. Kolesnyk and the driver but as he came up to the vehicle he heard the driver, Mr.

Bernardelli, say, “I do not have a contract with you.” [ 25 ] He walked to the vehicle to assist P.C. Kolesnyk. After hearing Mr. Bernardelli say “I do not have a contract with you,” P.C. Ziccardi overheard P.C. Kolesnyk advise Mr. Bernardelli about the consequences of refusing to provide a sample. He does not recall exactly what P.C. Kolesnyk said about consequences of refusing to provide a sample. P.C. Ziccardi testified he did not hear the entire conversation that occurred between P.C. Kolesnyk and Mr. Bernardelli. [ 26 ] Shortly after hearing P.C.

Kolesnyk explain the consequences of refusing to provide a sample, Mr. Bernardelli was arrested by P.C. Kolesnyk. This occurred at 1:08 a.m. P.C. Ziccardi did not recall where Mr. Bernardelli was when he was placed under arrest. P.C. Ziccardi assisted with the search of the motor vehicle after the arrest and then assisted with the vehicle being towed. [ 27 ] Sgt. Zikos was at the RIDE spot check however, he cannot recall if Sgt. Zikos was involved with Mr. Bernardelli. [ 28 ] When P.C. Ziccardi came up to this vehicle P.C. Kolesnyk was standing outside the vehicle speaking to Mr.

Bernardelli who was still seated in the driver’s seat. P.C. Kolesnyk was engaged in an interaction with Mr. Bernardelli when he approached and the first thing he could make out was Mr. Bernardelli saying, “I do not have a contract with you.” In cross-examination P.C. Ziccardi clarified as he is approaching the vehicle he first hears P.C. Kolesnyk explaining the consequences of Mr. Bernardelli refusing to provide a sample of his breath and then he overheard Mr. Bernardelli say, “I do not have a contract with you.” [ 29 ] P.C. Ziccardi heard P.C. Kolesnyk telling Mr.

Bernardelli about the consequences and procedures that resulted from a refusal. The procedures had to do with the towing and impounding of Mr. Bernardelli’s vehicle for 7 days and the 90-day license suspension. [ 30 ] P.C. Ziccardi cannot say he specifically heard P.C. Kolesnyk say to Mr. Bernardelli he was under arrest for refusing to provide a sample but he knew that was the reason P.C. Kolesnyk arrested Mr. Bernardelli. P.C. Ziccardi cannot say where Sgt. Zikos was during this exchange between Mr. Bernardelli and P.C. Kolesnyk. (

c) Evidence of Sgt. J. Zikos [ 31 ] On January 31, 2016, at 12:15 a.m., Sgt. Zikos arrived at Teston Road and the off-ramp from Highway 400 northbound where a RIDE spot check was already up and running. Sgt. Zikos was in the company of a student ride-along. [ 32 ] At 12:58 a.m., he became aware P.C. Kolesnyk had stopped a motor vehicle, a black BMW. Sgt. Zikos checked the license plate of this vehicle and the owner came back to an Anthony Bernardelli with an address on Jane Street in Maple. [ 33 ] Shortly after this P.C. Kolesnyk attended Sgt. Zikos’ police cruiser and advised that Mr.

Bernardelli had refused to provide a breath sample and he was planning to release Mr. Bernardelli on an appearance notice. [ 34 ] Sgt. Zikos testified P.C. Kolesnyk approached Sgt. Zikos’ police cruiser where Sgt. Zikos was seated to tell him what had taken place. Sgt. Zikos did not have any dealings with Mr. Bernardelli. (

d) Evidence of A. Bernardelli [ 35 ] Mr. Bernardelli was born on February 6, 1968 and has been married for 25 years and has one daughter. In January 2016, he was a supervisor for Lux-Renos, a drywall company and he worked for a second company Foremont Drywall. He was he the process of changing jobs. He was employed with Foremont for close to two years and had just started with Lux-Renos. He has been unemployed since being charged. [ 36 ] On the night before he was stopped he was working as a bartender at his father’s bar. He had consumed some glasses of wine at dinner around 6:30 p.m.

He had gone to the bar to help out around 8:00 p.m. The bar is at Keele and Wilson and he was driving north on Highway 400 to exit onto Teston Road to get home. When he exited he saw the RIDE program and he was pulled over. The first officer who testified stopped him and spoke to him. [ 37 ] The officer asked him if he consumed any alcohol he said no because he thought it was later. The officer leaned in and said, “I think you’re lying, can you pull over to the right shoulder.” He came to the driver’s door and asked for Mr. Bernardelli’s driver’s license, which he provided. The officer said he wanted Mr.

Bernardelli to blow and Mr. Bernardelli told the officer he did not want to contract with him. [ 38 ] Mr. Bernardelli testified he told the officer he would like to make a call and when the officer walked away Mr. Bernardelli tried to call a lawyer. The driver’s window was up and P.C. Kolesnyk came up to the door again and knocked on the window. The officer again told him “Are you gonna – are you gonna – I – I need you to blow.” Mr. Bernardelli told the officer he was not going to. P.C. Kolesnyk told Mr. Bernardelli things were going to get a lot worse for Mr. Bernardelli if he did not blow. Mr.

Bernardelli just said to the officer, “I do not want no contract with you.” Then the officer asked him to step out of the car and Mr. Bernardelli was arrested. [ 39 ] Handcuffs were put on Mr. Bernardelli and he was put into the back of the police cruiser. [ 40 ] Mr. Bernardelli heard the officer read the approved screening device demand in court from a card, however, it was Mr. Bernardelli’s evidence the officer did not read that on January 31. Another officer searched his car and then a tow truck came. P.C.

Kolesnyk advised him when he was in the back of the police cruiser he had been charged and he filled out a blue paper. About five minutes later an older gentleman with white hair walked over to P.C. Kolesnyk’s police cruiser.

[41] Mr. Bernardelli testified the supervisor asked if P.C. Kolesnyk read Mr. Bernardelli the consequences for refusal. According toMr. Bernardelli, P.C. Kolesnyk then said, “Oh, I got to do one more thing.” He then pulled out an 8 X 11 sheet of paper and read it. Thepaper said the consequences were the same as over 80 and he also read about a lawyer and a 1-800 number. Mr. Bernardelli said hewould like to call a lawyer and P.C. Kolesnyk said he could do that later. The consequences were read when Mr. Bernardelli was in thebackseat of the police cruiser with his hands handcuffed. [42] Mr.

Bernardelli testified P.C. Kolesnyk was very soft-spoken and sometimes he could not hear what he was saying. When theofficer told him he thought he was lying it made him feel nervous. P.C. Kolesnyk did not advise him of the consequences of refusing toprovide a sample before he was arrested. Mr. Bernardelli testified if he had understood the consequences of refusing he would haveblown. [43] Mr. Bernardelli agreed he told the officer he had not had anything to drink. The officer then leaned into the car and told Mr.Bernardelli he thought Mr. Bernardelli was lying. Mr.

Bernardelli disagreed the officer told him that he could smell alcohol on him. [44] Mr. Bernardelli agreed when the officer came to his vehicle after he pulled onto the right shoulder the officer asked him to blow.Mr. Bernardelli testified the officer told him he wanted Mr. Bernardelli to blow into an “on-screen device.” The officer kept saying overand over he wanted Mr. Bernardelli to blow. P.C. Kolesnyk then walked away and when he came back Mr. Bernardelli was on his cellphone and P.C. Kolesnyk asked Mr. Bernardelli “Are you gonna – are you gonna blow, like provide us with a sample.” Mr.

Bernardellitold the officer he was not going to blow for the third time, and then said “I don’t want no contract with you.” The officer then said,“Things are going to get a lot worse for you” and ‘Step out of the vehicle, you’re under arrest.” [45] The officer said, “I want you to blow in the on-screen device.” He went away and when he came back he said, “Are you going toblow ‘cause we have to get a sample from you. I want you to blow.” When Mr. Bernardelli said no, the officer asked him to step outsideand placed him under arrest. [46] Mr. Bernardelli testified P.C.

Kolesnyk told him three times he wanted him to blow and he told Mr. Bernardelli, “Things aregonna get a lot worse for you.” Mr. Bernardelli testified he knew the officer wanted him to blow in this “on-screen device.” Mr.Bernardelli agreed he knew the officer wanted a breath sample to see whether he had been drinking and Mr. Bernardelli agreed herefused. [47] At one point P.C. Kolesnyk told Mr. Bernardelli, “This is your last time. Are you – are you gonna – are you gonna blow.” Mr.Bernardelli told the officer, “I want no contract with you.” [48] Mr.

Bernardelli testified he knows he made a mistake and should have blown that night. He understood that night P.C. Kolesnykwanted him to blow but he refused to blow. Every time P.C. Kolesnyk asked Mr. Bernardelli to blow he told him, “I want no contractwith you” [49] Mr. Bernardelli maintained he was not told about the consequences until after he was arrested and handcuffed sitting in the backof the police cruiser. The Law [50] Section 254(2)(

b) provides: If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within thepreceding three hours, operated a motor vehicle…or had the care or control of a motor vehicle…whether it was in motion or not, thepeace officer may, by demand, require the person to comply…with paragraph…(b), in the case of alcohol: (

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. [51] Section 254(5) provides: Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. [52] Section 495(1)(

a) provides: A peace officer may arrest without warrant (

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit anindictable offence. Analysis [53] In R. v. Moser, (ON CA), [1992] O.J. No. 602 (C.A.), at para. 33, the Court held the defence of “reasonableexcuse” is engaged only after the Crown has proved a proper demand and a failure or refusal to comply with that demand. [54] Ms. Pledge initially seemed to be arguing that P.C. Kolesnyk did not read Mr. Bernardelli the approved screening device breathdemand pursuant to s. 254(2)(

b) and consequently, Mr. Bernardelli did not refuse to provide a sample when he told P.C. Kolesnyk he didnot want a contract with him as the officer did not make any demand. However, after the evidence given by Mr. Bernardelli the argumentfocused on Mr. Bernardelli’s evidence of not being advised by P.C. Kolesnyk as to the consequences of refusing to provide a breathsample into the ASD. Ms. Pledge submitted if I accept Mr. Bernardelli’s evidence or it raises a reasonable doubt that his refusal wasunequivocal I should dismiss the charge. [55] The first problem with this argument is the evidence of Mr. Bernardelli himself. It is clear on Mr. Bernardelli’s evidence he

understood P.C. Kolesnyk was requesting he provide a breath sample into an “on-screen device,” which he refused to provide. Mr.Bernardelli agreed the officer came to his vehicle after he pulled onto the right shoulder and asked Mr. Bernardelli to blow. The officer,according to Mr. Bernardelli, asked him several times if he was going to blow and Mr. Bernardelli responded, “No, I don’t want nocontract with you.” Mr. Bernardelli agreed the officer then told him “Things are going to get a lot worse for you” and then asked him tostep out of his vehicle as he was under arrest. [56] P.C.

Kolesnyk testified he read the ASD demand from a pre-printed card provided by the O.P.P. It was at this point Mr.Bernardelli told the officer he did not want to have a contract with the officer. P.C. Kolesnyk testified he did not understand what Mr.Bernardelli meant by not wanting to have a contract with him. [57] I accept the evidence of P.C. Kolesnyk that he read the ASD demand from a pre-printed card. The demand refers to an “approvedscreening device.” Mr. Bernardelli testified P.C. Kolesnyk wanted him to blow into an “on-screen device.” It is my view Mr. Bernardellimisheard what P.C. Kolesnyk said to him.

He was sitting in his car when the ASD breath demand was read and he testified P.C.Kolesnyk was very soft-spoken and he was unable to hear everything the officer said. I also find Mr. Bernardelli may not have seen P.C.Kolesnyk reading from the pre-printed card because he was seated in his car. [58] I further find Mr. Bernardelli clearly refused to provide a sample and he did this on a number of occasions. On Mr. Bernardelli’sevidence P.C. Kolesnyk asked him several times if he was going to blow and Mr. Bernardelli told the officer no. Mr.

Bernardelli testifiedhe made a mistake in not blowing into the “on-screen device.” [59] Mr. Bernardelli testified the officer did not advise him of the consequences of failing to provide a sample until after he wasalready arrested. Yet both P.C. Kolesnyk and P.C. Ziccardi testified the consequences and procedure following a refusal to provide asample were explained to Mr. Bernardelli by P.C. Kolesnyk. P.C. Ziccardi testified he heard P.C. Kolesnyk explaining the consequencesand procedures, which involved loss of license for 90 days and Mr. Bernardelli’s vehicle being impounded for 7 days. P.C.

Ziccardioverheard Mr. Bernardelli tell P.C. Kolesnyk, “I do not have a contract with you” after P.C. Kolesnyk explained the consequences andprocedures resulting from a refusal. I accept the evidence of the two officers that the explanation as to consequences following a refusalto provide a breath sample into the ASD was made by P.C. Kolesnyk before Mr. Bernardelli was arrested. [60] I do not accept Mr. Bernardelli’s evidence that P.C. Kolesnyk only advised him of the consequences after the arrest when he wassitting in the back of the police cruiser.

I do not accept his evidence that a white haired police officer, Sgt. Zikos came to P.C.Kolesnyk’s police cruiser and asked whether Mr. Bernardelli had been advised of the consequences of a refusal and P.C. Kolesnyk forthe first time took out an 8 X 11 piece of paper and read it to him outlining the consequences. I find Sgt. Zikos did not attend P.C.Kolesnyk’s police cruiser, rather it was P.C. Kolesnyk who walked over to Sgt. Zikos’ police cruiser and advised Mr. Bernardelli wasunder arrest for refuse to provide a sample and P.C. Kolesnyk had decided to drive Mr.

Bernardelli home as there was no reason to bringhim to the police station and he could be released. This was the evidence of Sgt. Zikos, who was called as a witness by the defence. [61] It is my view P.C. Kolesnyk did not want to charge Mr. Bernardelli with refusal to provide an ASD breath sample as he said tohim on at least three or four occasions he wanted Mr. Bernardelli to blow. This was confirmed by Mr. Bernardelli in his evidence. Itaccords with common sense for P.C. Kolesnyk to attempt to get Mr.

Bernardelli to blow by advising him the consequences of refusing toblow are exactly the same as if he blew above the legal limit. Mr. Bernardelli asserted for the first time, at this trial, he would haveblown into the ASD if the officer had told him the consequences of refusing. On Mr. Bernardelli’s evidence P.C. Kolesnyk did advisehim of the consequences when he was under arrest in the back of the police cruiser, yet at no time did Mr. Bernardelli tell P.C. Kolesnykhe wanted to provide a sample. I find Mr.

Bernardelli’s evidence on this issue is an after-the-fact rationalization for what I have found tobe his unequivocal refusal. I do not accept Mr. Bernardelli’s evidence as to the timing of P.C. Kolesnyk advising him of theconsequences of a refusal. [62] At no time during his evidence did Mr. Bernardelli provide a “reasonable excuse” for refusing to provide a sample of his breathinto the approved screening device.

In fact, as indicated above he conceded he made a mistake in refusing to provide a sample of hisbreath. [63] Finally, there is no requirement in s. 254(5) that a police officer must advise a driver of the consequences of refusing to provide asample of their breath. Certainly a practice has developed that police officers tell a driver who refuses to provide a sample what theconsequences are in an effort to convince an uncooperative individual to provide a sample. It is my view even if P.C. Kolesnyk had notadvised Mr.

Bernardelli of the consequences until after the arrest this would in no way affect the lawfulness of the arrest. [64] In R. v. Danychuk, (ON CA), [2004] O.J. No. 615, the Court of Appeal held that where there is an outrightrefusal to provide a breath sample into an ASD – as is the situation here – the failure of a police officer to apprise a motorist of theprocess and consequences of non-compliance does not affect the validity of a demand made under section 254(2). [65] Further, in R. v. Grant, [2014] O.J.

No. 1143, (SCJ), at para. 80, Durno J. held: I am not persuaded that there is an obligation on the demanding officer in every case to tell the driver that it is his or her last chance toprovide a suitable sample. Nor am I persuaded that whenever a driver is told he or she is going to be charged with refusing to provide anIntoxilyzer sample, that simply asking for another chance means the offence has not been completed. Were it as the appellant appears tocontend, the procedure could never end. [66] I adopt the reasoning of Justice Durno and I also adopt the reasoning in R. v. Sures, [2010) O.J.

No. 1615 (SCJ, Shaw J.): Essentially, Mr. Sures' argument is that the court should impose on the police an obligation to give legal advice to individuals who arereluctant to comply with a demand for a roadside breath sample, in lieu of legal advice from counsel to which they are not entitled. Iagree with the trial judge that this argument is precluded by Thomsen.

As stated by the trial judge, if access to legal advice from aqualified lawyer is not constitutionally required, why would information read by a police officer from a standard issue script be required?It is not the job of the police to persuade, negotiate or provide legal advice in order to obtain compliance with a breath demand.

[ 67 ] Mr. Bernardelli unequivocally refused to blow into the approved screening device and he admitted this in his cross-examination. Just as P.C. Kolesnyk testified he did not understand what Mr. Bernardelli meant by his not wanting or having a contract with the officer, I do not understand what he meant as well. [ 68 ] In conclusion, I am satisfied on the totality of the evidence that Mr. Bernardelli refused outright to provide a sample of his breath into the ASD. There will be a conviction on that charge. Released: December 14, 2016 Signed: Justice Peter C. West