2011 ONSC 6514, 2011 ONSC 6514

CITATION : Her Majesty the Queen v. Michel Marquis, 2011 ONSC 6514 COURT FILE NO.: 09-2262 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) M. Humphreys, for the Respondent ) Respondent ) ) - and - ) ) ) MICHEL MARQUIS ) ) ) Michael A. Crystal, for the Appellant ) Appellant ) ) ) ) HEARD: July 6, 2011 On Appeal from the Decision of the Honourable Justice D. K. Kirkland of the Ontario Court of Justice dated August 18, 2010. REASONS FOR DECISION McMunagle J.

Introduction [ 1 ] On August 2009, in the City of Ottawa, the Appellant was charged with refusing to provide a breath sample, contrary to s. 254(5) of the Criminal Code, R.S.C., 1985, c. C-46. On December 7, 2009 the Appellant was further charged in relation to the same event, with operating a vehicle while impaired by alcohol, contrary to s. 253(1) (

a) of the Criminal Code, supra . [ 2 ] At a trial held on August 18, 2010, in the Ontario Court of Justice, before the Honourable Justice D. K. Kirkland, the Appellant was acquitted of operating a motor vehicle while impaired by alcohol, but was found guilty of refusing to provide a breath sample.

[ 3 ] On the same day, the Appellant was sentenced to pay a fine of $1,000 pursuant to s. 255(1) (a)(

i) of the Criminal Code , supra . The Appellant was also given the minimum statutory one year driving prohibition, pursuant to s. 259(1) (

a) of the Criminal Code, supra . The Appellant appeals his conviction only. The Appellant’s Notice of Appeal raised three grounds of appeal: 1) that the trial judge erred in his Application of the principal of reasonable doubt as set out in the Supreme Court of Canada case of R. v. W.D. (1991), 63 C.C.C. (3d) 297; 2) that the trial judge erred by allowing his analysis of a reasonable doubt to become a credibility contest between the accused and the arresting officer contrary to R. v. W.D., supra ; 3) that the verdict was unreasonable given the acquittal on the other charge of operating a motor vehicle while impaired by alcohol, contrary to s. 253 (

a) of the Criminal Code , supra , and against the weight of evidence in all the circumstances. [ 4 ] The Appellant in his factum at para. 10 added four more grounds of appeal, but it was agreed with counsel that the main focus of the appeal was on grounds six and seven. Specifically, whether or not Judge Kirkland misinterpreted and misapplied the case of R. v.

Woods , [2005] 2 S.C.R. 2005 , which interpreted subsection 254(2)’s requirement that a breath sample be supplied “forthwith”, and further whether or not Judge Kirkland failed to appreciate that the case at bar was more analogous with the line of “last chance” cases rather than with R. v. Woods, supra . Factual Background [ 5 ] On August 15, 2009, Constable Aaron Reichert of the Ottawa Police service was on patrol when he observed a vehicle he believed to be exceeding the posted speed limit.

He activated his lights and stopped the vehicle at around 2:10 a.m. [ 6 ] Constable Reichert approached the vehicle and asked the Appellant if he had had anything to drink that evening. The Appellant responded that he had had two glasses of wine at the casino. [ 7 ] Constable Reichert read the Appellant the roadside demand for a breath sample at 2:23 a.m. Constable Reichert testified that the Appellant refused to provide a breath sample.

The Appellant testified that he indicated to the officer that he was not sure whether he should provide a breath sample. [ 8 ] The Appellant testified that his hesitation to provide a breath sample was due to medical concerns, specifically that he was unsure how the alcohol he had consumed would interact with medication he was taking at the time and he was worried that blowing hard into a testing device could aggravate a herniated disc in his back. The Appellant’s physician, Dr.

Bernard Leduc, provided supporting testimony regarding the Appellant’s medical conditions. [ 9 ] At the trial Constable Reichert testified that:

a) he stopped in a parking lot at the corner of McArthur and Crete when his attention was drawn to an approaching vehicle travelling at a high rate of speed;

b) he estimated that the vehicle was travelling at twice the posted speed limit and as such he activated his emergency lights and pursued the vehicle;

c) the driver did not respond to his emergency lights, so he hit his air horn several times, the vehicle eventually coming to stop on St. Laurent Blvd; close to a kilometer from where he initiated the pursuit;

d) he spoke to the driver, the Appellant, who was the sole occupant of the vehicle, and detected an odour of alcohol emanating from his breath. He asked the Appellant if he had anything to drink to which he replied: ‘he had two glasses of wine at the casino’;

e) based on the admission of alcohol consumption and other indicia, he, Reichert, suspected that the driver might be intoxicated and at 2:23 hrs made a “roadside screening demand.” [ 10 ] It was also the evidence of Constable Reichert that:

a) at 2:23 hrs, he commenced reading the roadside demand, but the Appellant interrupted him midway through and said he ‘refuses’ or words to that effect;

b) he asked the Appellant to wait until he was finished reading the ‘demand’ and re-read him the ‘demand’. Once finished the Appellant stated that he understood and refused;

c) he then explained to the Appellant the consequences of refusing, that it would be in his best interest if he complied with the demand, what was required to comply with the demand and that he comply; the Appellant stated: “I refuse that…”

d) at that point the officer again explained the consequences of refusal, that it carries the same penalty as blowing over, heasked the Appellant if there was any ‘medical reason’ why he could not perform the test as there was no apparent reason to himwhy the Appellant could not perform the test; at 2:25 hours the Appellant responded ‘no’ to the medical query and repeated: “I refuseto blow into anything, I had two glasses of wine”. [Emphasis added]

e) at 2:27 hours the officer once again explained the consequences of not complying. The Appellant became aggressive; hebegan to raise his voice and stated: “I had two fucking glasses of wine and I get fucking stopped”.

f) at 2:28 hrs the officer once again explained to the Appellant the consequences of refusing to provide a breath sample. The appellant became more aggressive, raised his voice, and stated: ... “that I have been driving for fucking 30 years, I pay fucking taxes, and you’re treating me like a fucking immigrant”. He is asked to provide a sample and replies: “I’m not goingto blow for anything, no way, I won’t blow.” [Emphasis added]. …

j) he was not sure if he should take the test, for the following reasons: i. he was on medication at the time he consumed the wine and was not sure how that would affect him; ii. he was not drunk or anything; [11] Two other witnesses testified at the trial:

a) Constable Lafreniere: who attended at the scene to deliver an ASD to Constable Reichert. He had no dealingsor conversation with the Appellant.

b) Dr. B. Leduc: who testified about the treatment and medications prescribed to the Appellant for his herniateddisc. He also testified about the side effects of such medication, especially when combined with alcohol. However, at no timedid this witness testify or suggest that any of the medications prescribed or injuries the Appellant suffered did or could affect his ability to provide a breath sample. [12] At 2:30 a.m., Constable Reichert placed the Appellant under arrest and placed him in handcuffs.

The Appellant did not receive awarning that the demand made prior to the arrest was his last chance to provide a sample. At 2:36 a.m., Constable Reichert read theAppellant his right to counsel. At this time, the Appellant indicated that he was intending to supply a breath sample and that he had notbeen provided an adequate chance to do so before he was placed in handcuffs. His request to supply a sample was denied. [13] At trial, the following exchange occurred between counsel for the Appellant and Constable Reichert: Q.

Okay, So, if you had this discussion between the 2:23 and 2:30, I’m going to suggest to you that six minutes laterafter he’s been placed under arrest that he says I would have taken the test, there was no compelling reason not to let him takethe test, was there? A. Um, no. The reason that I’m not, at that point that I don’t provide him with the test, is he’s already beencharged with the offence. I’ve already arrested him for the offence at that point.

Reasons for Trial Decision [14] The learned trial judge found that there was an unequivocal refusal at 2:28 in answer to a further request by the officer to providea sample. The Appellant’s response was “I’ve been driving for 30 fucking years. You treat me like a fucking immigrant. I refuse toblow.” At 2:30 a.m. the Appellant is then arrested. Further at page 147 of the decision, Justice Kirkland indicated that ConstableReichert’s testimony was that Mr. Marquis said, at 2:36, “I was going to. You didn’t give me a chance, come on”.

Whether that can beinterpreted as “I want to do it now would be a question of credibility, I assume, because Mr. Marquis says definitely he wanted to do thetest now”. After reviewing the relevant case law and having found Constable Reichert’s evidence credible, Justice Kirkland made afinding that there was a deliberate refusal to provide the breath sample and therefore found Mr. Marquis guilty of that charge. JusticeKirkland also had a reasonable doubt with respect to the impaired charge and found Mr. Marquis not guilty. [Emphasis added].

Analysis [15] The scope of review in the present Appeal is limited to examining whether the conviction is unreasonable and not supported byevidence. See R. v. Burns (SCC), [1994] S.C.J. No. 30 (S.C.C.), R. v. Biniaris 2000 SCC 15 , [2000] S.C.J.No. 16 (S.C.C.). [16] Counsel agree that there is no dispute that the investigating officer had the authority to make an ASD demand pursuant to s.254(2)(

b) of the Criminal Code, supra, as a result of the Appellant’s admission to consuming two glasses of wine.

[17] It is an offence to fail or refuse, without lawful excuse, to comply with a demand made under s. 254(2)(

b) of the Criminal Code,supra, and s. 254(5) of the Criminal Code, supra. The criminal conduct consists of a proper demand and an unequivocal refusal tocomply [emphasis added]. The offence is complete when the refusal is given. See R. v. Degiorgio, 2011 ONCA 527 ,2011ONCA 527 at para. 42: The conduct criminalized by s. 254(2) consists of a proper s. 254(2) demand and an unequivocal refusal to comply withthat demand. The offence is completed when the refusal is given: R. v. Woods, 2005 SCC 42 , [2005] 2 S.C.R. 205 at paras. 40-42.

There is nothing in the language of s. 254(2) that would require the Crown to prove that had the driver not refused to provide thesample, the demanding police officer could have complied with his or her obligation to take the sample "forthwith". Nor can I understandwhy, as a matter of criminal law policy, a driver who has unequivocally refused to forthwith provide a breath sample should escapecriminal responsibility for that refusal based on events subsequent and totally unrelated to the refusal.

How is the culpability of theperson who refuses to comply with a demand reduced because, as events may have developed, the officer may not have been able to takethe sample forthwith? [18] The Appellant contends that the facts in this particular case were more in line with the “last chance to blow” cases. I respectfullydisagree. Had Mr. Marquis made any attempts to provide a roadside sample, then that position would be tenable.

However, given hisunequivocal refusal, and more specifically the words enunciating that refusal at 2:28 a.m. wherein he was again asked to provide asample and replied “I’m not going to blow for anything, no way, I won’t blow.” Mr. Marquis is then arrested, and, after his rights tocounsel are read, he then asks for an opportunity to blow. [19] Regrettably for Mr. Marquis, it is simply too late. The suspect does not get to decide along some sort of artificial invisiblecontinuum as to if and when he is going to provide a roadside sample.

The law is crystal clear, once the officer has reasonable suspicionto form the demand and makes the proper demand, the suspect must comply immediately, not when he is good and ready or feels like it.See R. v.

Woods, 2005 SCC 42 , 2005 S.C.C. 42, and specifically para. 44: The “forthwith” requirement in s. 254(2) appears to me, however, to connote a prompts demand by the peace officer, andan immediate response by the person to whom that demand is addressed…[Emphasis added]. [20] And further in para. 45: Finally, on this point, the Crown contends that the respondent’s breath sample was obtained “forthwith” in the sense of“as soon as reasonably possible in the circumstances”, since the respondent failed to comply sooner with the officer’s roadside demand.Putting the submission this way is sufficient to demonstrate its incongruity.

Drivers upon whom ASD demands are made are boundby s. 254(2) to comply immediately – and not later, at a time of their choosing, when they have decided to stop refusing!.[Emphasis added]. [21] The facts are not in dispute in this case. Specifically, Mr. Marquis did not furnish the breath sample in response to the multipledemands made by Constable Reichert, and it was only after he was arrested and was given his Charter rights that he wanted to changehis mind. Unfortunately for Mr.

Marquis it was too late, as indicated by the Supreme Court of Canada. [22] I see no merit to any of the Appellants other grounds for appeal that were essentially obtained at the hearing. The trial judgemade no errors in this regard. [23] In the result, the Appeal is dismissed and the original conviction confirmed. _______________________________ Mr. Justice John A. McMunagle Released: November 15, 2011 CITATION: Her Majesty the Queen v. Michel Marquis, 2011 ONSC 6514 COURT FILE NO.: 09-2262

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – MICHEL MARQUIS Appellant REASONS FOR JUDGMENT McMunagle J. Released: November 15, 2011