R. v. Connor Esipu, 2017 ONSC 3439

CITATION : R. v. Connor Esipu, 2017 ONSC 3439 COURT FILE NO.: 128/16 DATE: 20170602 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Her Majesty the Queen, Respondent and Connor Esipu, Appellant BEFORE: Justice J. N. Morissette COUNSEL: David A. Nicol, for the Crown Glen S. Donald, for the appellant HEARD: June 2, 2017 ENDORSEMENT On Appeal from the Decision of the Honourable Justice G. A.

Pockele on September 30, 2016 [ 1 ] The trial judge convicted the appellant of refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code . [ 2 ] The appellant submits the trial judge misapprehended the evidence of the appellant, thereby leading him into an impermissible analysis of the evidence contrary to W(

D) principles, resulting in an unreasonable verdict. [ 3 ] The crown submits that the trial judge did not misapprehend the evidence; nor did he misapply the W(

D) analysis and thirdly that the errors, if any, were immaterial to the decision. [ 4 ] At issue for the trial judge was whether the appellant outright refused to provide a sample or was it a wilful refusal? There was contradictory evidence from the appellant and the officer who laid the charge. [ 5 ] There was a lack of notation by the officer of the exact words spoken by the appellant.

The officer testified that the appellant said after the third and fourth attempt that “he was not doing this” or words to that effect. [ 6 ] The appellant did tell the officer that he had a medical condition but did not explain what it was nor did he offer this condition as an explanation at the road side or at trial. [ 7 ] The appellant argues that the fact that the officer failed to record specifically the words of the refusal by the appellant, during the four failed attempts at providing a sample, ought to have caused the court to find sufficient reasonable doubt as to validity of the refusal or lack thereof. [ 8 ] The crown argues that even if the officer did not note one of the most important elements of the charge, that is the language provided to the officer in refusing or not to provide a sample, it was open to the trial judge to assess the credibility of the appellant on the whole of the evidence and find that it was illogical and unreasonable that the appellant would not have requested additional time to provide a suitable sample. [ 9 ] The trial judge did explain why he was accepting the evidence of the officer despite not having recorded the words.

The officer was cross examined extensively on his lack of notes on the exact words of refusal. The trial judge’s explanation is reasonable when assessing credibility. In my view, the trial judge did not choose between the Crown’s evidence over the evidence of the appellant, but rather assessed the credibility of the witnesses on the whole of the evidence. [ 10 ] In the W(

D) analysis, even if the trial judge was not left with a reasonable doubt by the appellant’s evidence, he could not convict unless on the totality of the evidence that he did accept, he was satisfied beyond a reasonable doubt the crown has proven each elements of the offence. [ 11 ] Even if there were inconsistencies in the officer’s testimony, the verdict on the whole of the evidence is reasonable.

A valid request for a sample was made, and that ultimately the appellant failed to produce a sample after four failed attempts. [ 12 ] The mens rea enacted in s. 254(5) is knowledge or awareness of the prohibited act. [1] As said by Justice Nordheimer in R. v.

Slater, 2016 ONSC 2161 at para. 9 : “if the evidence led by the Crown establishes that the accused did not provide a proper breath sample, and the accused knows that s/he has not provided a proper breath sample, then, absent other circumstances being present that might explain the failure, the inescapable inference is that the accused intended to cause the result.”

[ 13 ] It was open to the trial judge to find that the elements of the charge was proven beyond a reasonable doubt. I see no reason on the whole of the evidence to find that the verdict was unreasonable. [ 14 ] The appeal is dismissed. Justice J. N. Morissette Date: June 2, 2017