Crown: B. Kelneck, Office of the Crown Attorney, Cobourg
Defence: Craig Penney, Toronto Driving Offence Lawyer, Cobourg
¶ 1 THE COURT: I am aware that Mr. G.V. is presumed to be innocent of this charge. The onus is on the Crown to satisfy me beyond a reasonable doubt that all essential elements of this offence have been proved.
¶ 2 The position of the Crown is that all essential elements have been proved, that between 1:00 and 1:07 on July 4, 2009, the officer stopped Mr. H. for a proper reason, a lawful reason, that he detected an odour of alcohol on his breath, he made a proper demand, the device that came into his possession was an approved screening device. This officer was not a first time rookie, he had had prior experience. He said this was an approved screening device. He gave the calibration date and was familiar with its operation.
¶ 3 Between 1:00 and 1:07 a.m. there were seven attempts by Mr. H.. The first attempt, looking at the evidence of Officer McCurdy at line 20, the first attempt by Mr. H., "He didn't appear to blow hard into the approved instrument. It actually appeared that he was putting his tongue in the mouthpiece to obstruct the sample. No sound came from the approved instrument." The Crown said, "What sounds do you expect to hear?" You expect to hear a steady beep, "a steady beep sound." "Was there any sound whatsoever?" "There was no sound whatsoever." "The second sample was the exact same result, and the same thing was explained to him again." No sounds on the second sample. "...no reading obtained." Officer said, "No audio sound, explained the same thing to him again, what was expected from him." "Any questions asked by Mr. H.?" "No, he was docile and calm. He appeared cooperative." "Three more attempts were made with the same result." "...no audio tone from the approved instrument. It didn't appear that he was blowing hard." "No readings." "What do you expect to see on the instrument if, in fact, a suitable sample has been obtained?" "Three options if a proper suitable sample is obtained." "01 to 05." "05 to .1." And then over .1. That is over 100 milligrams per cent , which is a fail.
¶ 4 The next three attempts the same. Fifth attempt, the approved instrument — this is the evidence of Officer McCurdy at page 17. "With the sixth attempt the approved instrument made two very quick audio tones." "I kept telling him keep on going, keep on going." "There's maybe just two little beeps where he's blown and then it registers a beep and then it stops and then it came on again." Officer McCurdy said that that tone should be steady for approximately seven seconds. If one was blowing steadily into the mouthpiece that is what you would hear, a steady beep sound. What Officer McCurdy noted at the end of the sixth reading was an "EO," an "E" for error , the actual reading on the device was "EO ". Page 18, "Basically means Error, breath sample not long enough, it's not long enough to give a proper reading." He was cautioned again, as he was before the sixth reading , cautioned again before the seventh reading. "Did he have any questions?" asked the Crown when he was cautioned. Answer, "Well, at that time he actually stated, 'Well, then, just arrest me'."
¶ 5 I find that statement by Mr. H. a spontaneous statement not made as a result of any threats or inducements, was a statement as to his attitude. In other words, he was not going to provide a suitable sample: "just arrest me." The officer wanted to give him a last chance, a seventh attempt. "Just two little audiotones, the reading of 'E' for Error was shown on the approved instrument again." Then he was arrested.
¶ 6 In my respectful view, having considered all of the evidence, it was apparent that Mr. H. was feigning an attempt to blow and when he did blow at all he was still, in essence, feigning the attempt because he blew a little harder, knowing that he had to blow a little harder for a longer period of time, up to seven seconds, and he refused to do it. He basically told the officer that he was prepared to be arrested and be charged with refusal, which, in my view, reflects his attitude of consciousness of guilt. In other words, he was not going to provide a proper sample.
¶ 7 There will be a find of guilt, conviction recorded.
Crown: B. Kelneck, Office of the Crown Attorney, Cobourg
Defence: C. Biscoe, Criminal Defence Lawyer, Toronto
¶ 1 THE COURT: Mr. H. appeals his conviction before the Honourable Justice Graydon of the Ontario Court of Justice on the 12th of March 2010, having been convicted that he did, without reasonable excuse, failed or refused to comply with the demand made to him by a peace officer, under subsection 24(2) of the Criminal Code, in the circumstances therein mentioned, to provide forthwith a sample of his breath as in the opinion of the police officer was necessary to enable a proper analysis of his breath to be made by means of an approved screening device.
¶ 2 At trial, Police Constable McCurdy was the only witness. He testified that on the 4th of July 2009 while in his police cruiser, he observed a Toyota Camry travelling on King Street West in Cobourg with a front headlight out. He pulled the vehicle over, the driver of which was Mr. H.
¶ 3 After a brief conversation, the officer formed the opinion that Mr. H. had consumed alcohol, and made a demand under section 254(2) of the Criminal Code, which Mr. H. stated he understood.
¶ 4 Constable McCurdy arranged for a screening device to be brought to his location. Constable McCurdy identified the device as a "Drager Alcotest 7410." Later in his testimony, he referred to it as a "Drager Alcotest, which is an approved instrument."
¶ 5 At page 14 of the trial transcript the constable is asked:
Q: And what, if anything, can you tell us about your belief as to whether or not it was operating properly in accordance with your training, if any, with that instrument?
A: Just by the calibration date, and by turning the device on. Once the light turns off on the ready symbol, it just lets you know that it's ready to go.
Q: Okay, but with respect to whether it seemed to be operating properly, in your opinion, and I think you have given us the basis.
A: Yeah; it appeared to be working properly.
¶ 6 The officer is then questioned about instructions he provides when obtaining a sample:
Q: Okay. And you have indicated the first attempt. Had you given any description, sir, to Mr. H. of what was required in order to provide a suitable sample?
A: Yeah. Every time I'm attempting to obtain a breath sample, it's the same thing every time. I just explain to that person, in this case, Mr. H., that I don't need a hard blow but it just needs to be a strong, steady blow. And when he makes that blow, the approved instrument will give an audio tone, and that tone needs to be steady. And I'll keep on telling him to keep on blowing until I say stop.
¶ 7 The officer was of the view that Mr. H. understood those instructions, and then proceeded to describe the attempts he made to obtain a sample from Mr. H..
Q: All right. So with respect, sir, to the first attempt, perhaps you could describe that to us?
A: The first attempt he didn't appear to blow hard into the approved instrument. It actually appeared that he was putting his tongue in the mouthpiece to obstruct the sample. No sound came from the approved instrument.
Q: Now, I'm just going to slow you down there. If, in fact, a breath sample is going directly into the instrument, what, if any, sounds do you expect to hear?
A: It's just like a steady beep; a steady sound.
¶ 8 The officer explained that there was no sound that he heard from the device, and that it was not providing a reading. He instructed Mr. H. to blow harder and, again, on the second occasion the device produced no sound, and no reading was obtained.
¶ 9 The officer was asked if Mr. H. asked any questions. He answered there was no questions; he was very docile and calm, and appeared cooperative. Three more attempts were made, with the same result. There was no audio tone from the approved instrument. It did not appear that he was blowing hard.
¶ 10 The officer described the fifth attempt which was, again, unsuccessful. The officer stated: "Well, after the fifth attempt was when I explained to him that failure to provide a suitable sample — suitable breath sample is equivalent to actually failing, and that holds the same weight in court. And on the — at the scene there, that if he does not provide a suitable sample of breath, it's the same as if he would blow an 'F' and failed it. With the sixth attempt, the approved instrument made two very quick audio tones."
¶ 11 And he explained that he encouraged him to keep on going on the sixth attempt. The seventh attempt was also unsuccessful.
¶ 12 On the sixth attempt the device registered an error.
¶ 13 Before attempting the seventh sample, the officer stated: "And, once again I explained to him that failing to provide a suitable sample was the same punishment as failing it. I told him this was going to be the last time that he was going to have an opportunity to provide a breath sample, and if he wasn't able to do that, he was going to be arrested for refusal."
Q: And did he have any questions about what was said to him, at this point?
A: Well, at that time he actually stated, "Well, then just arrest me." And I told him he was going to be given one last attempt, which was the seventh attempt, which was not a suitable sample. It was similar to the sixth sample; just two little audio tones and then — and the reading of 'E' for error was shown on the approved instrument, again. After this, Mr. H. was arrested."
¶ 14 At trial, Judge Graydon reviewed the samples the attempts at obtaining that I have just reviewed. He considered the statement of Mr. H., "Well, then just arrest me" and concludes: "I find that the statement by Mr. H., a spontaneous statement not made as a result of any threats or inducements, was a statement as to his attitude. In other words, he was not going to provide a suitable sample, 'Just arrest me'. The officer wanted to give him a last chance, a seventh attempt 'just two little audio tones. The reading of 'E' for error was shown on the approved instrument, again. Then he was arrested."
¶ 15 "In my respectful view, having considered all the evidence, it was apparent that Mr. H. was feigning an attempt to blow, and when he did blow at all, he was still, in essence, feigning the attempt because he blew a little harder, knowing that he had to blow a little harder for a longer period of time; up to seven seconds, and he refused to do it. He basically told the officer that he was prepared to be arrested and be charged with refusal which, in my view, reflects his attitude of consciousness of guilt. In other words, he was not going to provide a proper sample."
¶ 16 The Crown submits that this is a simple case of a refusal to provide a sample of breath and, accordingly, is governed by the decision of the Court of Appeal in R. v. Lemieux 24 M.V.R. (2d) 157.
¶ 17 In that case, a demand was made per the Respondent to provide a sample of his breath for a road side screening device, and the respondent refused to blow into the device.
¶ 18 The refusal involved the respondent providing no sample, making no contact with the device, and not blowing into it. Accordingly, the Court of Appeal was of the view that the Crown need not establish the device was an approved screening device, quoting with approval the decision of R. v. Reimer a decision of the Saskatchewan Queen's Bench in (1980), 54 C.C.C. (2d) 127 and 4 M.V.R. 270.
¶ 19 Simply put, if an accused has refused to provide a sample of his breath, and a machine is never used, the approval of such a device is never put at issue.
¶ 20 The appellant submits that this is not a case of outright refusal as was the case in Lemieux; rather, this is similar to the fact situation considered in R. v. Gutierrez [2001] O.J. No. 3659, a decision of this court. At paragraph two Justice Howden states: "In this case, there is no evidence of any outright refusal to blow into the roadside screening device; therefore, the decision of the Ontario Court of Appeal in R. v. Lemieux (1990), 24 M.V.R. (2d) 157 is no answer to the appellant's position of a charge of failing to comply based on alleged insufficiency of the attempt made by the accused calls into question the type and manner of operation of the screening device as an outright refusal does not. ..."
¶ 21 On the facts of this case, it is clear that the officer formed his opinion, based upon the results he was obtaining from the appellant's attempts to blow into the device. At each attempt the officer notes that there was no signal recorded on the device, no sound came from the "approved instrument".
¶ 22 On the sixth and seventh samples there was a sound, but the instrument registered "E" for error. Again, in every instance, the officer was clearly relying upon the machine to form his opinion that the appellant was not providing a sample.
¶ 23 I understand that he may have relied upon other observations to form this opinion, but it is clear that he was relying upon the device. Accordingly, I think that this matter is similar to the case of R. v. Gutierrez. There is no evidence of an outright refusal, but, rather, this is a case of the appellant failing to provide a sufficient sample.
¶ 24 While Justice Graydon uses the words "refusal", it would appear to be, that he is relying upon the conclusions of the officer based on the machine in reaching that conclusion, and in as much as he relies upon that, and relies also upon the words of the accused "just arrest me" I am of the view that he erred in concluding that Mr. H. was refusing. Mr. H.'s comment to the officer that he just arrest him arose out of the officer advising him that he would be given one more opportunity to provide a sample, and if he wasn't able to do that, he was going to be arrested for refusal. This is equally consistent with his failing to provide an adequate sample to the device.
¶ 25 The appellant submits that in a situation where the court is considering the failure to provide a sufficient sample, the requirements for satisfying this court beyond a reasonable doubt are set out by Justice Howden in Gutierrez at paragraph 15; I agree.
¶ 26 First, a demand must be made by a peace officer authorized under section 254. Second; that the screening device be of a type approved under section 254(1), and, thirdly; that the accused fails to comply with the demand, and, finally, that such compliance by the accused be intentional.
¶ 27 Was this device an approved device? It was described by the officer as a Drager Alcotest 7410. Such a device is not one of those identified on the regulations pursuant to section 254(1). There are similar devices identified: an Alcotest 7410 PA-3, and Alcotest 7410 GLC. It is impossible for this court to determine whether a Drager Alcotest 7410 is an approved device. "Drager" is not a word used in any of the descriptions of the approved devices.
¶ 28 It is true that two of the approved devices include the words "Alcotest 7410" but I am of the view that the description provided by the officer does not fall with any of the descriptions contained in any of the regulations. The question then becomes whether or not it is sufficient that the officer used those words together with the words "approved screening device" in identifying the device he was using. I am not satisfied that the words "approved screening device" combined with "Drager Alcotest 7410" is sufficient.
¶ 29 As I stated, "Drager" does not appear as a word in any of the descriptions, and combined with Alcotest 7410, it appears to be a device different from any of those described in the regulations. His description is insufficient to satisfy me beyond a reasonable doubt.
¶ 30 Although I need not go on to consider it, should I be wrong in my conclusion with respect to the officer's description of the device, I will consider whether or not he was qualified to form his opinion that the sample given was insufficient. The only reference that the constable makes to his training appears at page 14 of the transcripts:
Q: And, what, if anything, can you tell us about your belief as to whether or not it was operating properly in accordance with your training, if any, with that instrument?
A: Just by the calibration date, and by turning the device on. Once the light turns off on the ready symbol, it just lets you know that it's ready to go.
Q: Okay. But with respect to whether it seemed to be operating properly in your opinion, and I think you have given us the basis.
A: Yeah; it appeared to be working properly.
¶ 31 I appreciated that the officer gave further testimony about his experience generally as an officer, having been a constable since December of 2004, about his practice of opening the mouthpiece in front of the person from whom he's obtaining a sample, and that he does the same thing every time. However, I also am mindful of the submissions of the appellant that: A) Constable McCurdy gave no evidence about his training, qualification, and/or education with screening devices, or about his duties since becoming a peace officer December of 2004 apart from what I have referenced. B) While Constable McCurdy's evidence demonstrates that he has some familiarity with the device, it is unknown whether his familiarity resulted from his own experience, any training he has received, or through observing other officers using the machine. C) There was no evidence that the device was used successfully proximate in time to when the appellant provided his samples. D) McCurdy did not have a screening device with him, and there was no evidence that he normally carried an approved screening device. E) There was no evidence that the device McCurdy requested had accurately measured alcohol in any other person. F) There was no admissible evidence that the device had been properly calibrated. G) McCurdy described a device that is not listed in the regulations as an approved screening device. H) McCurdy incorrectly advised the appellant that failing to provide a sample was equivalent to an "F" result on the device. The former results in an criminal charge, and the latter only results in an approved instrument demand under section 254(3).
¶ 32 I accept and agree with the submission that Constable McCurdy was, under the circumstances of this case, not sufficiently qualified to provide his opinion with respect to whether the machine was in proper working order, and reliable to determine the sufficiency of the breath sample provided.
¶ 33 I do not intend to explore in detail the submissions of the appellant that the nature of the investigation by Constable McCurdy changed after obtaining the fifth sample, or attempting to obtain the fifth sample. It is submitted by the appellant that at that stage, had become a criminal investigation, and that the appellant was, at that stage, entitled to be informed of his rights to counsel under section 10(b)of the Charter.
¶ 34 I am of the view that despite the evidence of the officer, that the true nature of the investigation had not changed at all during that stage, and I agree with the Crown that to interpret it that way would be effectively to require officers to provide rights to counsel after an initial refusal, or failure to provide a sufficient sample, or to arrest persons without providing further opportunities.
¶ 35 I am of the view that the nature of the investigation for any sample sought after the first sample really remains the same, and that is simply to obtain a breath sample. A person is always at risk of being charged criminally for refusing to provide a sufficient sample.
¶ 36 For the reasons I have given, the appeal is granted.
