R. v. Butler, 2013 ONSC 2403

CITATION : R. v. Butler, 2013 ONSC 2403 ORANGEVILLE COURT FILE NO.: 46/11 DATE: 20130430 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) DANIELLE GARBATY , for the Respondent/Crown ) Respondent ) ) - and - ) ) ) CHARLES BUTLER ) ) ) ALAN BUCHANAN , for the Appellant ) Appellant ) ) ) REASONS FOR JUDGMENT [On appeal from the conviction of the Honourable Mr. Justice B. Pugsley, dated November 8, 2011] DURNO, J. [ 1 ] When the appellant was driving home after playing golf and attending a bar, his car struck two vehicles that were stopped in front of him at a red light.

Police investigated and charged him with impaired operation, dangerous operation and failing to provide a breath sample. He was convicted of only the refusal count. [ 2 ] He appeals contending the trial judge erred in reversing the burden of proof by requiring the appellant to establish a reasonable excuse for not providing a suitable breath sample, instead of requiring the Crown to prove, beyond a reasonable doubt, the appellant had the requisite mens rea .

He also contends: the trial judge erred in failing to appreciate the significance of evidence; in misapprehending other evidence; in approaching the case as a credibility contest between the technician and the appellant; in convicting when the officer arbitrarily allowed the Intoxilyzer’s five minute time-out to determine when to charge the appellant when he failed to give the appellant “one last chance” to provide a breath sample; and in relying on the appellant’s refusal to provide blood and urine samples in assessing the appellant’s credibility. [ 3 ] For the following reasons the appeal is dismissed.

The Evidence [ 4 ] The accident occurred on August 27, 2010. The road conditions were good and the weather clear and sunny. Michael Jorg was stopped at a red light when he noticed a vehicle, driven by the appellant, coming from behind was not slowing down. Jorg tried to avoid a collision by moving to the left, but was struck in any event. The appellant’s vehicle continued and also hit the vehicle that was stopped in front of Jorg. When Jorg confronted the appellant wanting to know what had happened, the appellant said he did not know. Jorg thought the appellant, who slurred his words, was in shock.

He also saw the appellant stumble slightly a bit later and later noticed the appellant was leaning against his car. [ 5 ] Heather McMahon was stopped in the vehicle in front of Jorg’s and was also struck by the appellant’s vehicle. To her, the appellant did not look right, he seemed confused and scattered. She told her passenger she thought he was drunk although she smelled no alcohol.

She described him as impaired or drunk to the investigating officer although in cross-examination she “guessed” he could have been in shock. [ 6 ] Constable Brendon McGee of the Ontario Provincial Police arrived at the scene at about 3:40 p.m. The officer thought the appellant was trying to avoid being close to him and was also being evasive.

He was moving quite easily and told the officer he was not injured and did not need medical attention. [ 7 ] The officer believed the appellant’s ability to drive was impaired by alcohol because his eyes were bloodshot and glassy, his speech was slow and slurred, he was somewhat unsteady on his feet, and he had a surprising odour of alcohol on his breath. The appellant told the officer he had been at Toby’s Jug where he consumed non-alcoholic beer. [ 8 ] At 3:48 p.m., P.C. McGee arrested the appellant for impaired operation, handcuffed Mr. Butler and attempted to put him in the cruiser.

The appellant dug in his heels and did not want to get in, but then did so without any problems. [ 9 ] At 3:59 p.m. the officer left the scene to attend the detachment to administer the breath tests. The appellant was frustrated and angry; being adamant that he had consumed no alcohol. [ 10 ] At 4:04 p.m. they arrived at the detachment where the officer found the appellant to be unresponsive, with his eyes open and staring. The officer saw him blink and his neck pulse moving. When asked to get out of the cruiser, the appellant made some groaning sounds.

Being concerned that the appellant was in medical distress, the officer called for an ambulance. The appellant’s legs gave out when he walked so two officers carried him into the detachment. He made no sounds and was unresponsive when spoken to. [ 11 ] Once inside the detachment, the officers removed the appellant’s handcuffs and placed him on the floor in the interview room. The appellant then exhibited seizure-like symptoms and made groaning noises. The officers called for the ambulance to be expedited. He made more intense groaning noises.

When the ambulance arrived, the appellant became combative with the police and paramedics. His limbs were held down by three officers because he was flailing his arms and kicking. He said his neck was in intense pain and that he had a fused discs from a previous accident. He refused to let the paramedics treat him or check his blood sugar. [ 12 ] Constable Dwayne Smith, who helped get the appellant into the detachment, noted Mr. Butler’s eyes were open, he was blinking and breathing, had a strong odour of alcohol on his breath and was slurring his speech.

He described the appellant as combative. [ 13 ] Part of the appellant’s time in the interview room was videotaped. It showed him on the floor with an officer holding his left arm, another his right arm and a third his feet. They asked him to stop fighting. He said he was not fighting. As the appellant spoke to the paramedics telling them he was not a diabetic when they wanted to check his blood sugar, the appellant was moving his neck around. A paramedic told the appellant to stop resisting and playing games.

The appellant said he took 30,000 pills annually for arthritis and gave the wrong date to the paramedics when asked for his birthdate. [ 14 ] Constable Roberts saw the appellant at the detachment as well and described him at that time as vocal and combative, yelling and screaming, incoherently. The officer obtained an Intoxilyzer 8000C and went to the hospital, arriving at 6:18 p.m. [ 15 ] The appellant agreed he wanted to go to a hospital on a backboard with a neck brace and was transported to the Headwaters Hospital in Orangeville.

Constable Smith accompanied the appellant in the ambulance and noted the strong odour of alcohol and that his eyes were red and glassy. When asked, he could not identify the year correctly. They arrived at the hospital at 5:22 p.m. A doctor saw the appellant at 6:06 p.m. and cleared him to provide a breath sample shortly thereafter. While at the hospital the appellant refused to allow any blood to be drawn. He also refused to provide a urine sample when asked after he was finished with the Intoxilyzer technician. [ 16 ] Duty counsel was called and Mr.

Butler spoke to duty counsel in private between 6:36 and 6:40 p.m. when he was turned over to Constable Shaun Roberts, an officer who had been qualified as a breath technician since May, 2010. This was the first breath test he had administered at a hospital. Fourteen minutes later, P.C. Roberts told Constable McGee the appellant had refused to provide a breath sample. [ 17 ] When the appellant was brought to P.C. Roberts at the hospital he was wearing a cloth neck brace and appeared to be calm, speaking to the nurse. The bed had been raised so that the appellant was at a 45 degree angle.

Constable Roberts noted the appellant’s eyes were very red, glassy and bloodshot. His speech was slurred. He spoke very slowly. As soon as the breath demand was read, the appellant started to breathe very rapidly and started to yell that he was in intense pain. He then calmed down.

When given an opportunity to provide a sample, he did not breathe into the mouthpiece. [ 18 ] The officer explained the consequences of failing to provide a sample and the appellant calmed down and said, “Okay, yeah.” When the officer opened a new mouthpiece, the appellant turned his head away and started breathing heavily and began to yell incoherently. He was again cautioned about refusing. The appellant said, “Ouch” and indicated he was in too much pain to

provide a sample. He wanted to know who had said he could provide a sample. The appellant then calmed down and said he wanted toprovide a sample. [19] When the mouthpiece was put in the appellant’s mouth, he did not exhale any air, there was no sound of air beingexhaled, there was no tone from the Intoxilyzer, no condensation in the mouthpiece and his chest was not moving. The appellant said hecould not do it as the pain was too much. He then took three deep breaths and sighed.

The officer told the appellant how to provide asample and that asthmatics and persons with diminished lung capacity have given adequate samples. None of the first three attempts bythe appellant resulted in him exhaling any air into the breath tube for analysis. [20] At 6:52 p.m. the appellant was again cautioned and given four more opportunities. While he breathed normally untilthe mouthpiece was put in his mouth, once that occurred he stopped breathing. This occurred a total of seven times. The instrument“timed out” after five minutes.

Roberts told McGee that the appellant had refused to provide a sample. [21] When the appellant was released by the arresting officer, his demeanour changed and he was observed to be calm,cooperative and compliant. [22] The appellant testified that had a fused disc at the top of his neck since birth, chronic arthritis and previous athleticinjuries. On the date of his arrest, he had two Coor’s Light beers at a bar after he played golf. After the accident, he was unaware thathe had any injuries. His next recollection was waking up on the floor with people holding him down.

He had no recollection of fightingthe officers and was not combative towards them. He only wanted the officer holding his legs to give him some slack on his legs. [23] He refused to let the medical staff check his blood sugar as he had two needles a week and did not want any moreneedles. He was never asked for a blood sample for any other reason. At the hospital, he was constantly asking for pain pills but wasnever given any.

He has had breathing problems and his chiropractor had told him that he had a floating rib. [24] The appellant recalled only two tries at providing a sample, not seven as the police testified to. For the first, he wastrying to blow and for the second, the officer wrongly accused him of pushing the mouthpiece out with his tongue when he was onlylicking his lips because they were dry. He recalled P.C. Roberts telling him to blow as though he were blowing up a balloon. He latertestified that he did not recall ever being told how hard he had to blow.

He knew he could not possibly have blown up a balloon becauseof his neck pain. [25] The next morning he had blood on his bed that caused him to believe he had struck his head in the collision. Hewent to his family doctor three days later. The appellant said he wore a neck brace for two weeks after the accident full time and off andon for another two to three weeks. [26] He did not recall any request for a urine sample at the hospital but conceded that he was in and out of fullconsciousness at points during this time. He also said he was foggy at times and not completely with it.

He agreed that there weresubstantial gaps in his memory and that he was confused after hearing some of the Crown’s evidence. [27] The appellant’s wife testified that when she arrived at the hospital the appellant was in custody so she was unable tosee him. However, she heard him moaning or retching from outside the room. The Reasons for Judgment [28] The trial judge found that in examination-in-chief and in cross-examination, the appellant was his own worstenemy. He prevaricated continuously, was argumentative and, on at least one occasion, angry with Crown Counsel.

He was quitecapable of papering over cracks in his recall by extrapolating from what was his usual experience. In short, he was not at all animpressive witness. While the trial judge was inclined to disbelieve the appellant, applying R. v. W.(D.), (1991), (SCC),63 C.C.C. (3d) 397 (S.C.C.), his evidence may have been capable of raising a reasonable doubt or the Crown may have failed to prove anelement of the charge beyond a reasonable doubt. [29] His Honour found the appellant suffered some effects from the accident and was in a degree of pain as illustrated inthe video.

His testimony was hazy in relation to what happened with the Intoxilyzer and what the appellant testified to, was never put toConstable Roberts in cross-examination. The trial judge found the appellant was a very poor witness on the particulars of the attemptedbreath tests including his inconsistent evidence about whether he was told how hard he had to blow. [30] While the appellant’s witnesses who were with him at the bar were of assistance on the other counts, the appellant’sevidence stood on shaky legs alone on the refusal count.

Given the appellant’s repeated evidence as to his fuzzy recall, the trial judgepreferred the evidence of Constable Roberts over the appellant’s on the critical events that took place during the breath test procedure,finding that clearly there were seven attempts and more than one caution. [31] As regards the appellant’s assertion that he had been diagnosed with a floating rib by his chiropractor, the trial judgefound him to be unbelievable.

His Honour then provided a series of examples, including that the appellant’s recall of the events of theafternoon and evening was very poor to the extent that he admitted he could not tell whether he was testifying as to what he recalled orwhat he saw on the video or what he heard from other witnesses. The appellant was unshaken on issues upon which he was clearlywrong such as whether he was on a backboard.

His evidence about being stopped during his second attempt by the officer was never putto Constable Roberts in cross-examination. [32] The trial judge noted the appellant was able to speak to the nurse and “at length” with duty counsel, yet had troublespeaking to Constable Roberts. His Honour noted the offender’s refusal to give a urine or blood sample impacted on his credibility. Hisexplanation was not credible and the trial judge found the appellant refused because of his concern that his blood alcohol level would bedetected from the tests.

[33] His Honour found it was only when the appellant was given the Intoxilyzer mouthpiece to provide a breath samplethat he had breathing problems. The appellant deliberately failed to exhale when given the mouthpiece. His failure to try to provide asample established the offence. [34] His Honour disbelieved the appellant’s evidence and found it did not raise a reasonable doubt in his mind. The trialjudge accepted the evidence of P.C. Roberts and convicted the appellant.

Grounds of Appeal [35] The appellant was charged that he: … did without reasonable excuse refuse to comply with a demand made to him by a peace officer, pursuant to s. 354(3) of the CriminalCode, to provide then or as soon thereafter as was practicable samples of his breath as in the opinion of a qualified technician werenecessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood contrary to s.254(5) of the Criminal Code of Canada. [36] This offence generally involves either an outright verbal refusal or a failure to provide a suitable sample, aconstructive refusal.

The latter often involves evidence the accused failed to blow long enough, blew out the sides of the mouth orotherwise “faked it.” Here, the officer said there were seven opportunities for the appellant to provide a sample. The appellant saidthere were two. The officer said the appellant twice said he was in too much pain to provide a sample but also said that he wanted toprovide a sample. The officer said the appellant did not breathe at all when given the mouthpiece.

The appellant said he tried to blowonce, but was unable to provide a suitable sample and on the second opportunity the officer misinterpreted his licking of his dry lips andtook the mouthpiece away. On the appellant’s evidence, there was really only one attempt. [37] The trial judge examined these conflicts and found there were seven opportunities and that on each occasion theappellant stopped breathing and never provided any breath into the mouthpiece. The appellant does not contend those findings wereunreasonable.

Rather, he submits that the trial judge’s route to those findings was fatally flawed and a new trial must be ordered on thefollowing bases. [38] The appellant’s first two grounds are inter-related. Mr. Buchanan submits that in the unusual setting of this incident,to have found the appellant guilty, the trial judge would have had to have convicted because the appellant did not provide a reasonableexcuse, instead of applying the proper burden and requiring the Crown to establish beyond a reasonable doubt the appellant had therequisite mens rea.

This requires an examination of whether His Honour reversed the onus and the unusual circumstances. Did the trial judge reverse the burden of proof? The Elements of the Offence, Onus and Reasonable Excuse [39] The offence of refusing to provide a breath sample requires the Crown to establish beyond a reasonable doubt theaccused refused to provide suitable breath samples. Once the Crown has established the actus reus and mens rea, the onus is on theaccused to show, on a balance of probabilities, that he or she had a reasonable excuse for failing to provide a breath sample. R. v.

Moser, (1992), (ON CA), 7 O.R. (3d) 737 (C.A.) at para. 15, 18 and 42; R. v. Rai (2005), 17 M.V.R. (5th) 296 (S.C.J.); and R.v. Malicia, [2004] O.J. No. 6016 (S.C.J.) [40] The separate defence of “reasonable excuse” is not a denial that the Crown had established the elements of theoffence. Rather, it refers to matters that stand outside of the elements the Crown must establish and is only engaged after the Crown hasestablished the two elements of the offence. R. v. Taraschuk (1977), 25 C.C.C. (3d) 108 (S.C.C.) at p. 110.

A plea of “reasonableexcuse” is an admission that the essential elements of the crime have been established, combined with an assertion that some additionalfact or set of facts precludes the imposition of criminal liability. Moser, at para. 42. [41] The actus reus or the conduct element involves a proper demand and a refusal or failure to comply with thatdemand. Moser, at para. 33. Determining whether the Crown has established, beyond a reasonable doubt the actus reus, requires anexamination of all the circumstances where the refusal is based on a constructive refusal as opposed to an outright or express refusal.

Where the accused’s conduct amounts to feigning attempts to provide breath samples, the totality of the circumstances including anyexplanation advanced at the time of the attempt or in court must be considered. R. v. Bijelic, (ON SC), [2008] O.J.No. 1911 (S.C.J.) at para. 30; R. v. Porter, 2012 ONSC 3504 , [2012] O.J. No. 2841 (S.C.J.) at para. 30 – 31. [42] Determining whether the Crown has established beyond a reasonable doubt the mens rea is more complex for tworeasons. First, there are conflicting authorities regarding whether the offence is one of general or specific intent.

Second, as Code J.phrased it in Porter, in cases where the accused appears to be trying to provide a sample but fails to do so due to some explanationadvanced at the roadside or at trial, the “bright line” distinction between the elements of the offence and an extraneous reasonable excusebecomes harder to maintain. Porter, at para. 31. The contentious issue is whether the accused’s reason for being unable to provide asuitable sample was a reasonable excuse or was relevant to the mens rea.

If it is the former, the accused bears the onus while if it is thelatter, the Crown must prove beyond a reasonable doubt that the accused had the requisite mental state. [43] A series of judgments have held that where there is evidence of a reasonable excuse such as a medical condition thatprevented the accused from providing suitable samples, the evidence was relevant to the mens rea and the Crown must establish theaccused intended to produce a failure. R. v. Lewko, (2002), 2002 SKCA 121 , 169 C.C.C. (3d) 359 (Sask. C.A.); R. v. Sullivan,[2001] O.J. No. 2799 (C.J.).

Accordingly, refusing to provide a breath sample was a specific intent offence. [44] Recently, in Porter, Code J. rejected those authorities and found the offence was one of general intent. The mens reais knowledge or awareness of the prohibited act. (at para. 37) Evidence of an explanation or excuse would be relevant to both the actus

reus and the defence of “reasonable excuse.” The error in the Lewko -Sullivan approach was in reading ‘wilful’ into the section. Code J. found “there is a long line of binding authority to the effect that where a criminal offence is silent as to the mens rea , and where the actus reus is the doing of some immediate act without any ulterior consequence, then knowledge or recklessness as to the doing of the prohibited act is a sufficient mens rea .” at para. 34.

However, His Honour went on to hold that where there is evidence of a failed attempt to provide a sample, the explanatory evidence would be relevant to a reasonable excuse defence as well. at para. 38. The Argument [ 45 ] The appellant submits the mens rea for refusing to provide a breath sample is only established with a finding the accused wilfully, voluntarily and intentionally refused to provide suitable samples, relying on R. v. Westerman 2012 O.J. No. 87 (C.J.) at para. 18 .

Rather than requiring the Crown to establish the appellant wilfully, voluntarily and intentionally refused to provide a sample, he contends His Honour required the appellant to establish he had a reasonable excuse for not providing suitable samples of his breath. By doing so, the trial judge conflated the mens rea and reasonable excuse issues. The Trial Judge’s Findings [ 46 ] Mr.

Buchanan submits the following portions of the Reasons for Judgment reflect the alleged error in applying the onus: Notably, when not confronted with an imminent request to provide a breath sample, the defendant’s demeanor, conversation and breathing was noted to be normal.

Only when physically presented with the device to provide his sample did the defendant instantly and inexplicably become incapable of breathing. [ 47 ] After rejecting the appellant’s evidence that the appellant’s doctor had told him he had a floating rib, His Honour found the appellant was given more than one try to provide a sample, he was not continually on the backboard, he had spoken to the nurse and duty counsel without complaint or inability to do so, he obviously attempted to avoid providing blood or urine samples for medical purposes and gave incredible explanations for that refusal.

The trial judge continued: These all combine to suggest that when he was about to be tested, the defendant pondered what would happen if he was over the legal limit and I accept, took the mouthpiece into his mouth and simply failed to exhale at all. In that act he made out the offence because he did not try and failed to give a suitable sample of his breath for analysis, he didn’t try at all. … The Crown has proven the final count beyond a reasonable doubt and the defendant is guilty on that count. Analysis [ 48 ] I am not persuaded the trial judge erred as contended.

His Honour did not set out the burden of proof or address the law in relation to the elements of the offence and reasonable excuse. However, he is presumed to know the law unless the appellant shows that the trial judge erred.

Having re-read the entire Reasons with particular emphasis on the above noted areas, I am unable to see where the trial judge conflated the issues or reversed the onus. [ 49 ] To the extent that the appellant appeared to advance a secondary argument - that His Honour had to have reversed the onus because otherwise he would have acquitted, suggests the verdict was unreasonable – that no trier of fact properly instructed and acting reasonably could have convicted on this evidence. I disagree. First, there was evidence upon which the trial judge could have convicted.

Second, as will become apparent in the analysis of the next ground of appeal, even factoring in the unusual circumstances of this case, I am not persuaded the trial judge had to acquit. Third, the appellant has disavowed any reliance on an unreasonable verdict ground of appeal. [ 50 ] Neither am I persuaded that the excerpts from the Reasons relied upon by the appellant reflect a reversal of the onus.

Assuming without deciding that the appellant’s evidence was not evidence of a reasonable excuse per se but only went to his mens rea as the appellant argued, I am unable to find any indication the trial judge put the onus on the appellant. In the first excerpt, the trial judge made findings of fact that were well founded in the evidence – that the appellant appeared quite normal until he was given the mouthpiece and asked to provide a sample. When that happened he became incapable of breathing.

That His Honour found the appellant’s sudden inability to breathy was inexplicable, does not put the onus on the appellant. Since the appellant’s evidence was a denial that he deliberately quit breathing when given the mouthpiece, there was no innocent explanation for the inability to breath. The trial judge’s conclusion that there was no explanation was a fair comment on this record and not a reversal of the onus. [ 51 ] In regards to the last paragraphs quoted, the trial judge reviewed a series of factors and concluded the appellant never tried to provide a breath sample.

When he deliberately chose not to provide a breath sample, the appellant made out the offence. It was the combination of factors that led His Honour to the conclusion that he was satisfied beyond a reasonable doubt the offence was committed. There is nothing in that excerpt from which it could be concluded His Honour applied the wrong onus. [ 52 ] There is nothing from which I could conclude His Honour did not find the Crown had established the appellant wilfully, voluntarily and intentionally refused to provide a breath sample. In these circumstances, it is not necessary to determine

whether the offence is one of specific or general intent. [53] On this analysis, having found the Crown had established the elements of the case beyond a reasonable doubt andhaving rejected the appellant’s explanations for not providing a sample, there was no “reasonable excuse” as the appellant’s evidencewas rejected. Did the trial judge fail to appreciate the significance of evidence? [54] The appellant submits the trial judge failed to consider the unusual facts of the case when finding the Crown hadestablished the offence beyond a reasonable doubt.

As noted earlier, the appellant linked this ground to his submission that the trialjudge had to have reversed the onus. [55] In order to succeed on this and the next ground of appeal the appellant is held to a stringent test. To succeed he mustshow the trial judge failed to consider or misapprehend evidence that is “material rather than peripheral” and that the evidence or findingplayed “an essential part of the reasoning process.” R. v. Loher (2004), 2004 SCC 80 , 193 C.C.C. (3d) 1 (S.C.C.) at para. 1; R.v. Morrissey (1995), 97 C.C.C. (3d) 218 (Ont.

C.A.) at para. 218 and 221. [56] The appellant contends the trial judge erred in failing to factor the “special circumstances” under which the offencewas alleged to have been committed into his analysis including his credibility findings. These circumstances alone or in combinationwith the alleged reversal of the onus result in it being unsafe to conclude the appellant’s actions were wilful.

In particular, he notes: 1) the tests were administered at a hospital and not a police division; 2) the technician had only been qualified for four months and this was his first test at a hospital; 3) there was no video of the testing procedure as occurs with tests in police stations; 4) the allegation was a physical, not a verbal failure to provide a suitable sample; 5) during the efforts to obtain a suitable sample, the appellant said he wanted to provide a sample; 5) the procedure was over in 5 minutes because that is when the Intoxilyzer “timed-out;” 6) the trial judge accepted aspects of the technician’s evidence based on what the appellant submits was the officer’s foggyrecollection which were not recorded in the officer’s notebook such as the appellant’s physical position when the officer was conductingthe tests and that there was no condensation in the mouthpiece; 7) the technician never told the appellant what he was doing wrong; and [57] I am unable to find the trial judge committed reversible error in failing to appreciate the unusual circumstances.

Atrial judge is not required to list each and every piece of evidence introduced at trial in the Reasons for Judgment, absent a finding thatthe omitted evidence was critical to the defence. In addition, there is nothing in the appeal record to indicate that the `specialcircumstances’ - the cumulative effect of the facts of this case was ever addressed by trial counsel. [58] Addressing the areas noted, it would have been readily apparent to the trial judge that taking the test in a hospitalwas unusual but far from unique. The elements of the offence do not change depending on the venue of the testing.

That it was aphysical as opposed to a verbal refusal is not at all unusual. That it was a recently qualified technician’s first test in a hospital wascanvassed in the evidence and subject to the 5 minute timing out issue to be addressed later, does not make or contribute to thecircumstances being special.

No doubt the absence of a videotape of the procedure resulted in some evidence that is routinely availablewhere the tests are conducted at the station not being available, but it does not in itself or in combination with other factors make itunsafe to convict. [59] As regards the officer’s alleged foggy recollections and absence of notes to support some of his evidence, the trialjudge had the opportunity to see and hear officer. His Honour was in a unique position to assess his evidence.

While the absence ofnotebook entries has the potential to impact on an officer’s reliability and or credibility, trial judges are not required to start with thepresumption that anything that is not in the notes is unreliable. It will depend on the trial judge’s assessment of that officer including thesignificance of the item omitted from the notes, what is in the notes on other issues, and the officer’s explanation. The trial judge wasnot required to find the officer’s evidence wanting in these areas.

It could also be argued that as it was his first hospital test and theunusual aspects of the appellant’s conduct, that this would have been a memorable event. [60] As regards the appellant’s assertion the officer never told him what he was doing wrong, the technician’s evidencebelies that argument. Constable Roberts testified that at 6:55 p.m. he explained to the appellant how the process worked and how toprovide a sample. The appellant made four attempts but was not providing breath into the mouthpiece. When the officer was explainingwhat he was required to do, the appellant was breathing normally.

However, once the appellant placed his mouth on the mouthpiece, hewould stop breathing. He continued: … I recall at this point, because we had already done three attempts, saying to Mr. Butler, you’re not breathing, you’ve got to breathe, asI was seeing absolutely no signs that he was breathing into the mouthpiece. [61] The appellant submits that being told he has to breathe is not being told what he is doing wrong. I disagree. Theofficer repeatedly told the appellant that he had to breathe into the machine. The appellant was not doing so.

There was evidence thatthe appellant was told what he had to do and what he was doing wrong. This aspect of the appeal also ignores the appellant’s first

version of whether he was told how to provide a sample. Initially he said that he was told how much air pressure he had to supply toprovide a proper sample. While he later recanted that evidence, it would have been open to His Honour to find that he admitted he wastold how much air he had to provide. [62] In the absence of some indication that the trial judge did not consider the evidence of the appellant being in and outof consciousness, I am not persuaded that fact alone or in combination with the other alleged omissions, reflects reversible error.

Theanswer to the appellant’s inquiry whether someone who was in and out of consciousness could have the mens rea for the offence is `yes’but it depends on the facts. Here, the trial judge found the appellant deliberately decided not to breathe into the mouthpiece because hefeared the results. That was a finding of fact open to His Honour on this record. If the appellant was conscious at the time as the trialjudge obviously found and decided he was not going to breathe to avoid the risk of being over the legal limit, the offence was made out.

Did the trial judge misapprehend the evidence? [63] As noted above the appellant must show the trial judge misstated evidence that was material, not peripheral, and thatthe misapprehension played an essential

part in the reasoning process. It is not every misapprehension that amounts to reversible error. Finally, it is not necessarily a misapprehension if the trial judge does not give the evidence the meaning urged by one side or the other. R. v.

D.B. 2012 ONCA 301. [64] The appellant submits His Honour: 1) placed too much weight on his interview with duty counsel which only lasted four minutes; 2) ignored Constable Smith’s evidence that the appellant was responsive to certain questions when asked by the nurse andwould not answer other questions when relying on the appellant’s ability to talk to the nurse as reflecting his state of awareness; 3) ignored P.C.

Smith’s evidence that the appellant was still on the backboard when finding the appellant had wrongly testifiedthat he was still on the backboard when he was asked to provide a breath sample; and 4) should not have used his rejection of the appellant’s evidence that he was told he had a floating rib in assessing hiscredibility. [65] While I agree that the record was meagre in relation to the appellant’s discussion with duty counsel and that the trialjudge erred in relying on that finding, I am not persuaded the error occasioned any substantial wrong or miscarriage of justice in itself orin combination with other misapprehensions.

The only evidence was that the appellant was on the phone for four minutes. There wasno evidence of any complaints about his consultation. Whether a four minute conversation is “at length” need not be determined as therewas no evidence what took place in terms of the appellant talking to duty counsel - what the appellant said is, and should be, unknown. [66] I am not persuaded the trial judge erred in failing to refer to the officer’s evidence that the appellant answered some,but not all of the nurse’s questions when concluding the appellant had the ability to talk to the nurse.

Again, a trial judge is not requiredto reference every piece of evidence. The important aspects of the trial judge’s findings that the appellant simply chose not to breathewhen given the mouthpiece were that the appellant had no apparent problems talking and breathing regularly except when he was giventhe mouthpiece. That the appellant did not answer some questions might lead to an inference that he did not hear and/or understand thequestions.

It might also lead to the conclusion the appellant was being selective in what he said. [67] In relation to whether the appellant was on the backboard when given the mouthpiece to provide a sample, theappellant concedes that there was conflicting evidence on the issue. However, he argues the trial judge erred because given all theevidence it was more likely the appellant’s evidence was correct.

The appellant further submits this was one of the trial judge’sstrongest findings of credibility and that on this record His Honour could not have reached the conclusion he did. [68] While there was conflicting evidence on the point, what the appellant seeks is to reverse a finding of fact. In regardsto credibility findings, the appellant must show the trial judge committed a palpable and overriding error. L.H. V. Canada (AttorneyGeneral), 2005 SCC 25 , [2005] 1 S.C.R. 401. I am not persuaded the appellant has shown such an error.

His Honour heardand saw the witnesses and made a finding of fact he was entitled to make on the evidence. [69] If I am wrong on this issue, the error was harmless and the verdict would inevitably have been the same. I do notagree that this was one of the strongest findings of credibility against the appellant. There were numerous similar findings and I amunable to conclude that any one played the preeminent role the appellant suggest in relation to the backboard evidence. The trial judgefound the appellant was not a good witness, that he was his own worst enemy.

It cannot be suggested that the record was devoid of anybases upon which the trial judge could have reached that conclusion. The appellant agreed there were substantial gaps in his memory,that he was confused to hear some of the witnesses’ evidence and that he was confused about what he recalled. [70] Finally, I am not persuaded His Honour erred in using the rejection of the appellant’s evidence he was told he had afloating rib as impacting on this evidence. The appellant has not shown His Honour committed a palpable and overriding error. It wasopen to His Honour to make the finding he did.

He saw and heard the appellant testify. Did the trial judge approach the case as a credibility contest between the technician and the appellant? [71] The appellant submits His Honour erred in examining the case as a credibility contest between the appellant and thetechnician. In a related submission, Mr. Buchanan questions whether a person who was in and out of consciousness while in hospitalcould have the mens rea for the offence and submits the trial judge erred in finding the Crown had established the appellant had the

requisite mens rea. [72] I am not persuaded the trial judge regarded the case as a credibility contest. Without directly referencing W.(D.) atp. 45 and 46 of the Reasons, His Honour followed the instruction. The critical determination is whether the trial judge applied thejudgment, not whether he or she quoted the case or read the exact words. [73] Reading the entire judgment, I cannot find any indication that His Honour regarded the case as a credibility contest.

While the trial judge said he preferred the technician’s evidence in relation to the critical events during the breath tests, reading theReasons as a whole, with particular emphasis on the concluding paragraphs, I am persuaded the trial judge determined the case applyingthe correct onus, had the Crown established the elements of the offence beyond a reasonable doubt and not as a credibility contest, whichwitness did he prefer.

Did the trial judge error in convicting when the technician determined when to charge the appellant by the five minute time-outof the Intoxilyzer? [74] The appellant submits the trial judge erred in convicting when the officer arbitrarily let the 5 minutes “time-out”period of the Intoxilyzer determine when the appellant had refused to provide a breath sample. While conceding the trial record is not asfulsome as might be expected on this issue, the appellant notes the officer gave no other reason why he had to stop attempting to obtain abreath sample other than the timing-out of the Intoxilyzer.

It does not appear this argument was presented at trial. [75] The technician testified as follows when asked what happened after he had given three cautions and the appellanthad failed to provide a breath sample after having been given additional opportunities: A: Well at that point, when the, the instrument’s ready to receive a sample, you’ve got essentially a five minute window in order to gainthat suitable sample. What had happened at this case was, that time had elapsed and a message comes up on the Intox, Intoxilyzer, nosample given, so, at that time, P.C. McGee was in the room also. I advised Mr.

McGee regarding the additional charge of failing toprovide a breath sample. … Q: … after that five minutes expires, does it, does it, is there a sound that comes from the instrument or is there is something that showsup on the screen or both A: Actually both. And in this case it’s a, I call it the, high-low. It goes, an audible sound, ding dong essentially, repeatedly, and a,message comes on the digital display saying no sample given.

So at that time, that five minute window is closed, you have to restart thebreath test in sequence to, to prepare for a sample to be given. [76] On this record, it is apparent that the timing-out function played a role in the officer’s decision to charge theappellant. While there are reported cases where longer periods have been allowed for the provision of breath samples and cases wheremore attempts/opportunities have been allowed, there is neither a statutory time period nor minimum number of opportunities that haveto be permitted. See: Tavangari, R. v. McIntyre, (ON SC), [2005] O.T.C. 597, R. v.

Brown, [2004] O.T.C. 967.What has to be determined is whether in all the circumstances of the particular case, there has been a refusal or a failure to providesuitable samples. [77] Kenkel J. put it this way in R. v. Tavangari (2002), 28 M.V.R. (4th) 104 (Ont. C.J.) at para. 15, 16 and 22: 15 In considering whether the Crown has proved beyond a reasonable doubt that the accused has refused or wilfully failed to complywith a screening device demand, the court must look at all of the circumstances of the entire transaction between the police officer andthe accused. See: R. v. Domik [1979] O.J. No. 1050 (Ont.

H.C.J.) at paras. 4 and 5, affirmed [1980] O.J. No. 642 (Ont. C.A.), R. v.Taylor [1998] O.J. No. 2167 (Ont. S.C.). … 22 These cases typically involve conversation between the parties that is likely to be unique, as well as a variety of circumstanceswhich tend to combine in ways that again are particular to the case. There can be no specific rules isolating one factor, such as thenumber of tests to be conducted, from the other circumstances of a transaction to determine whether there has been a failure to provide asample.

Each case must be individually assessed, looking at all of the circumstances of the transaction between the officer and theaccused as a whole, to determine whether the Crown has proved a refusal or failure within the meaning of s. 254(5). [78] At paragraph 16 in Tavangari, His Honour sets out a list of considerations including the length of time that hadelapsed and the number of attempts as factors to be taken into consideration.

There are others including the explanation given to theaccused, language comprehension difficulties, the evidence of or absence of efforts to provide samples, any warning given, includingwarnings of the potential consequences, whether there was a final chance warning, whether there was a direct verbal refusal or whetherthe comments were equivocal, the reasons why the test was terminated, whether there was a request from the accused for anotheropportunity to provide a sample, the ease of set up and operation of the device, the time between the arrest and refusal and the officer’sreasons for not providing another opportunity. [79] On this record, there was ample evidence upon which the trial judge could consider the offence was completed andthat the officer had not arbitrarily determined the appellant had five minutes within which to provide the sample.

The officer was neverasked whether the time-out factor alone determined the time of arrest. While His Honour might have reached the conclusion that it did,

he was not required to do so. It was never suggested to the officer that the only reasons he charged at that time was the time-out and itdoes not appear to have been argued that that was the only reason he was charged when he was. [80] By the time-out the appellant had had seven opportunities to provide a sample, he was cautioned about his refusal inthe midst of the opportunities, while he agreed to provide a sample part way through, he continued to stop breathing when given themouthpiece, there was no request for a further opportunity after he was arrested and the machine timed out after five minutes.

While theofficer appears to have relied in part on the machine timing out, there was nothing on this record to suggest that the appellant would nothave continued with the same conduct if given the mouthpiece again. Did the trial judge err in convicting when the technician failed to provide the appellant with one last chance to provide suitablesamples? [81] The appellant next submits the trial judge erred in convicting the appellant when he was not given a “last chance” toprovide a suitable sample before being charged. There are many authorities dealing with the “last chance” in refusal cases.

Thedifference between this case and most of the others is that those persons asked for another opportunity. R. v. Domik (1979), 2 M.V.R.301 (Ont. H.C.) at 307, affirmed March 13, 1980; R. v. Bowman (N.S.C.A.) at p. 528-9; R. v. Chance (Ont. C.J.) at p. 74-79. That neveroccurred here. [82] In addition, there is no requirement that an officer give an accused one last opportunity. R. v. Gentile, 2012 ONSC4898, at para. 48. It is a factor to be considered, but is neither mandatory nor is the failure to give the one last chance determinative.

Did the trial judge err in considering the appellant’s refusal to provide urine or blood samples in assessing his credibility and infinding he had the requisite mens rea? [83] The appellant submits the trial judge erred in relying on the appellant’s refusal to provide blood or urine samples atthe hospital in assessing his credibility. He particularly relies on the refusal to provide a urine sample that occurred after the appellantwas charged with refusing to provide suitable samples. Mr.

Buchanan submits it is an error in law to rely on post-offence conduct whenassessing the mental state of an accused person at the time of the commission of the offence relying on R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519 The appellant concedes trial counsel (not Mr. Buchanan) did not object to the admissibility of thisevidence. [84] His Honour held as follows: Further, the defendant’s credibility is undoubtedly affected by, what I find to be, his obvious attempt to avoid providing blood or urinesamples for medical purposes. Mr. Butler was in the hospital at his request, after having had a car accident.

The attending doctor ordered blood and urine analysis andthe defendant was, he said, in terrible pain but, in fact, he declined to cooperate with the medical treatment he himself sought. Why? Hesays because they were only going to check his blood sugar and after all, he wasn’t a diabetic, therefore they didn’t need any of his bloodor urine. This is just not credible.

The real reason he declined the samples, I conclude, is because he was not as sanguine as to his fearedblood alcohol concentration as he would have me believe, and feared that any blood or urine sample might be used against him later. [85] There is no doubt the trial judge relied upon the refusal to provide a urine sample after the appellant’s refusal toprovide a breath sample in assessing the appellant’s credibility and in determining whether the offence was committed. Because theurine sample refusal was after the offence was completed, subject to the caveat below, the trial judge erred.

However, the erroroccasioned no substantial wrong or miscarriage of justice on the facts of this case for the following reasons. [86] First, the trial judge was entitled to reject the appellant’s explanation and find the refusal to provide a blood sampleadversely impacted on his evidence that he tried to provide a breath sample. There is no reason His Honour could not rely on the pre-testing refusal in assessing the appellant’s credibility. Second, the Crown’s evidence was strong. Third, the appellant’s evidence on thiscount was vague and unimpressive.

For these reasons alone, I would dismiss this ground of appeal. [87] There is an additional reason that arose during submissions. While it is not necessary to determine the issue, theappellant’s refusal to provide a urine sample may very well have been admissible as post-offence conduct. On this issue, I am notpersuaded Turcotte is determinative. Turcotte examined the use, if any, to be made on the accused person exercising his right to remainsilence after the offence alleged. The Supreme Court of Canada held that post-offence conduct is a legal term of art.

It is not meant toembrace all behaviour by an accused after a crime has been committed. It relates only to conduct that is probative of guilt. By its nature,it is circumstantial evidence. [88] I do not read as Turcotte as precluding the use of all post-offence conduct in assessing whether the accusedpossessed the requisite mental state. Turcotte testified he found the three bodies and had not killed them. The issue was not his intentionat the time of the commission of the offence.

Turcotte was a “who done it?” The Supreme Court held that his silence was not relevant towhether he committed the murder, not his intention at the time of the offence. [89] While there are cases finding post-offence conduct is not relevant to the mental state at the time of the offence, theygenerally deal with trials where the issue is whether or not the accused killed the deceased with the specific intent for murder as opposedto whether or not they committed the offence.

Generally, post-offence conduct is not of assistance to triers of fact in determining thestate of mind of the accused when the accused has either admitted causing the death of the deceased or that the jury has determined

caused the death. See: R. v. White, [2011] 1 S.C.R. 430 at para. 31 ; R. v. Angelis, 2013 ONCA 70 at para. 58 . That is not the case here. Conclusion [ 90 ] The appeal is dismissed. ___________________________ DURNO, J. Released: April 30, 2013 CITATION : R. v. Butler, 2013 ONSC 2403 ORANGEVILLE COURT FILE NO.: 46/11 DATE: 20130430

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – CHARLES BUTLER Appellant REASONS FOR JUDGMENT [On appeal from the conviction of the Honourable Mr. Justice B. Pugsley, dated November 8, 2011] DURNO, J. Released: April 30, 2013