)) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 119

CITATION : R. v. Green, 2017 ONSC 119 COURT FILE NO.: 14/16 DATE: 20170120 SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL TORONTO REGION BETWEEN: )) HER MAJESTY THE QUEEN – and – O’NEIL GREEN Respondent )) )) )) )) ) ) Megan Petrie, for the Crown Andrew Burgess, for the Respondent HEARD: November 14, 2016 K.P. WRIGHT J. [ 1 ] On January 21, 2016, after trial in the Ontario Court of Justice, the respondent O’Neil Green was convicted on one count of impaired care and control of a motor vehicle, and acquitted on one count of refusing to provide breath samples. [ 2 ] The Crown appeals the acquittal and submits that trial judge erred by:

(1) Requiring that the respondent be presented to the breath technician “as soon as practicable” on the offence of refuse to provide breath sample; and

(2) Failing to apply the governing standard and misapprehending the evidence in relation to the issue of “as soon as practicable.” Facts [ 3 ] The police demanded that the respondent provide a sample of his breath into an approved screening device (“ASD”) after he was found drunk and asleep in the driver’s seat of a running motor vehicle in the deserted parking lot of a drinking establishment. [ 4 ] After failing the ASD, the respondent was arrested for impaired care and control of the motor vehicle and the police demanded that he provide a sample of his breath into an ASD.

The respondent provided the sample and registered a fail. He was then transported to the police station where, after putting him in touch with counsel, he was presented to the breath technician. The respondent refused to comply with the breath demand and was then charged with refuse breath demand. [ 5 ] At trial, the respondent’s only argument in defence was that, on the refusal charge, the Crown failed to establish that he had been presented to the breath technician “as soon as practicable.” [ 6 ] The total time between arrest and refusal was approximately 1 hour and 27 minutes.

The trial judge focused on what he found to be an unexplained delay in the police station after the breath demand, but before the respondent was presented to the breath technician. The trial judge found that the ambiguity in the circumstances surrounding this delay left him in a state of reasonable doubt and acquitted the respondent on the charge of refusing a breath demand. Appeal Book , Tab 4, p. 9, lines 15-28.

Relevant Statutory Provisions [ 7 ] The offence of refusing a breath demand is found in section 254(5) of the Criminal Code : Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. Criminal Code , R.S.C. 1985, c. C-46, s. 254(5). [ 8 ] There are several possible “demands” that may be made under

section 254 of the Criminal Code . Section 254(3) of the

Criminal Code sets out the demand relevant to this appeal, an approved instrument demand: If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath, that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or (

b) if necessary, to accompany the peace officer for that purpose. Criminal Code, R.S.C. 1985, c. C-46, s. 254(3). Analysis Issue #1: Was the Crown required to prove that the accused be presented to the breath technician as soon as practicable on the charge of refusing a breath demand? [ 9 ] The starting point is to examine the elements of the offence created by section 254(3) of the Criminal Code .

A charge of refusal to provide a breath sample requires the Crown to prove three things: (1) that a proper/lawful demand was made; (2) that the accused person failed or refused to comply with the demand to provide a sample of his breath; and (3) that the accused had the requisite mens rea . [ 10 ] Once the Crown has proven all three of these elements, an accused may escape liability if he or she proves, on a balance of probabilities, that he or she had a “reasonable excuse” for not complying with the demand. R. v. Degiorgio, 2011 ONCA 527 , 279 O.A.C. 386, at para. 43 ; see also R. v.

Goleski , 2015 SCC 6 , 72 M.V.R. (6th); R. v. Pletsas , 2014 ONSC 1568 , at para. 67 ; R. v. Porter , 2012 ONSC 3504 , at paras. 29-38 . [ 11 ] In this case, there is no issue with respect to elements (2) and (3), that the respondent unequivocally refused to comply with the breath demand and that he intended to do so. The issue is whether the respondent refused to comply with a valid demand. [ 12 ] In acquitting the respondent, the trial judge found that the Crown failed to satisfy him beyond a reasonable doubt that the respondent had been presented to the breath technician as soon as practicable.

The trial judge stated the following in his oral reasons: There is a point of some ambiguity in relation to the refuse charge in that at some point, and for reasons not well explained, Mr. Green was spoken to at the station by another Officer on an unrelated matter. I have no idea of the times. I have no idea how long it was.

I have no idea of the contents of the conversation, so therefore I cannot tell from this whether or not he was presented to the breath tech officer as soon as practicable, and therefore I have a reasonable doubt on that charge, and he is acquitted on that. […] Appeal Book , Tab 4, p. 9, lines 17-27. [ 13 ] The appellant argues that, by making these findings, the trial judge effectively made the presentation to a breath technician “as soon as possible” an essential element of a valid demand and, in doing so, fell into error. [ 14 ] The question on this appeal is whether the prosecution on a failure/refusal to comply with a breath demand under section 254(5) of the Criminal Code is required to prove that the accused was presented to the breath technician as soon as practicable in accordance with section 254(3) (

a) of the Criminal Code . [ 15 ] Despite the massive amount of case law considering other points of drinking and driving legislation, there is very little judicial authority on this specific point.

Although there are a few cases that suggest presenting an accused to the breath technician as soon as practicable is not a precondition to a lawful demand, none of those cases are binding on this Court. [1] Similarly, there are two cases suggesting it is a precondition to a valid demand, also not binding on this Court. [2] [ 16 ] The respondent argues that an accused must be presented to the breath technician as soon as practicable and that this must be proven by the prosecution before a demand can be deemed valid and that the trial judge was not in error when he made such a finding. [ 17 ] I disagree, and here is why. [ 18 ] What constitutes a valid or lawful demand was recently affirmed by the Ontario Court of Appeal in R. v Wylie , where the Court stated: All that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable.

There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the “who, what, where and when” of the demand. R. v. Wylie , 2013 ONCA 673 , 51 M.V.R. (5th) 1, at para. 10 .

[19] In setting out the requirements of section 254(3), the Court of Appeal made no reference to any requirement that the accusedbe given the opportunity to provide his or her breath sample as soon as practicable for the demand itself to be deemed valid. [20] On a plain reading of the section, it is clear that the two references to the phrase “as soon as practicable” found in s. 254(3) arereferring to two very distinct branches of the investigation. The first reference of s. 254(3) refers to the requirements for a valid demand,and the second reference in s. 253(3)(

a) speaks to the requirements of implementation of the valid demand. [21] In attempting to decipher this complicated piece of legislation, I am guided by the well-settled principle of statutoryinterpretation that words within a statute are to be read “in their entire context and in their grammatical and ordinary sense harmoniouslywith the scheme of Act, the object of Act, and the intention of Parliament.” Rizzo v. Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27, at para. 21, citing Elmer Driedger [Construction of Statutes] 2ded (Toronto: Butterworths, 1983) at 87. [22] To that end, the purpose of section 254(3)(

a) can only be understood when read together and in conjunction with section258(1). When read as a whole, it becomes clear that section 254(3)(

a) was not intended to be an element of a valid demand. Rather, itforms part of the requirements necessary for the prosecution to get the benefit of a statutory presumption found in section 258(1). [23] Section 258(1) provides the prosecution with an evidentiary short cut of sorts.

It allows the prosecution to rely upon thebreathalyzer test results as proof of an accused’s blood-alcohol level at the time of the offence, without the burden of calling furtherevidence on the point if the following preconditions are met: • the breath samples were taken pursuant to a valid demand and in accordance with section 254(3); • each breath sample was taken “as soon as practicable” after the time when the offence was alleged to have been committed; • the first sample was not taken more than two hours after the time when the offence was alleged to have been committed; • an interval of at least 15 minutes between samples; • each sample was received directly into an approved instrument operated by a qualified technician; • the analysis of each sample was made using an approved instrument operated by a qualified technician; and • that there is an absence of evidence to the contrary. [24] The purpose of requiring an accused to provide a breath sample as soon as practicable is so that the Crown can rely on thepresumption that the certificate of analysis is proof of the accused’s blood alcohol level at the time of the offence, provided that all otherpreconditions are fulfilled.

If the prosecution fails to prove any of these factual requirements, the statutory presumption fails to apply. [25] In the context of a refusal to provide breath sample case, the presumption is always irrelevant. There is no breath sample andno certificate of analysis. The prosecution will never be relying upon it, thereby eliminating any consideration of whether the accusedprovided breath a sample as soon as practicable pursuant to section 254(3)(a). [26] I am mindful that the majority of refusals happen only after an accused is presented to the breath technician.

However, anaccused can unequivocally refuse to provide a breath sample at any point during an investigation. There is no requirement that a policeofficer must wait until an accused is brought before the breath technician to charge an individual with refusal. It would, therefore, makeno sense that an accused would have to be brought before a breath technician as soon as practicable in every refusal case to ensure avalid demand.

Summary [27] For the aforementioned reasons, I find that presenting an accused to a breath technician as soon as practicable does not formpart of a valid demand pursuant to section 254(3). [28] I was reminded, as I navigated my way through this complex piece of legislation, of the difficult position Judges in theOntario Court of Justice confront on a daily basis. It is a fast paced environment where judges are often called upon to make quickdecisions without the benefit of fulsome submissions supported by the case law.

It is clear to me that was the situation for the trial judgein this case. [29] Regrettably, the learned trial judge fell into error when he found that the Crown had not satisfied him that the accused wasbrought before a breath technician as soon as practicable. It is clear that this finding was the sole basis for the acquittal. Accordingly,the appeal will be allowed, the acquittal set aside, a conviction entered and the matter will be sent back to the trial judge for sentence. [30] As a result of the above findings, it is unnecessary to consider the second ground of appeal. K.P. Wright J.

Released: January 20, 2017 CITATION : R. v. Green, 2017 ONSC 119 COURT FILE NO.: 14/16 DATE: 20170120 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – O’NEIL GREEN Respondent REASONS FOR JUDGMENT K.P. Wright, J. Released: January 20, 2017