R. v. Khandakar, 2024 ONCA 620
[12] There are two different Criminal Code breath demand powers. It is a criminal offence under s. 320.15(1) to refuse or fail to comply with either form of demand.
[13] The first breath demand power, now situated in s. 320.27, authorizes the police to demand that the subject blow into an “approved screening device” (“ASD”).[1] I will refer to this as an “ASD demand”. In this case, PC Bannister relied on s. 320.27(1)(b), which required her to have “reasonable grounds to suspect” that the respondent had alcohol in his body.[2] It is undisputed that she had sufficient grounds to make this demand, although the respondent maintains that her demand was nevertheless unlawful because she waited too long to make it after forming her grounds.
[14] Assuming that PC Bannister’s ASD demand was lawful, once she made it, the respondent became obliged to provide a breath sample “immediately”: s. 320.27(1)(b). The analogous provision in previous versions of the Criminal Code used the term “forthwith”, but it is common ground that “forthwith” and “immediately” mean the same thing: Breault, at para. 29.
[15] The second breath demand power, now found in s. 320.28 of the Criminal Code, authorizes the police to demand the production of breath samples for analysis by an “approved instrument”.[3] I will refer to these as “intoxilyzer demands”, after the trade name of the approved instrument most commonly used in Ontario. Section 320.28(1)(a)(i) requires that both the making of the demand, and compliance with the demand once it is made, must occur “as soon as practicable”.
[16] Persons subjected to both types of breath demands are “detained” within the meaning of s. 10 of the Charter. However, the ASD demand power has been interpreted as implicitly suspending detainees’ s. 10(b) Charter rights in a manner that is justified under s. 1: see e.g., R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640. As a consequence, persons subjected to ASD demands generally cannot obtain legal advice before deciding whether or not to comply. In contrast, the intoxilyzer demand power does not implicitly suspend s. 10(b) Charter rights. Persons subjected to intoxilyzer demands must be advised of their right to counsel and, if they choose to exercise this right, are entitled to speak with a lawyer before they decide whether to provide breath samples.
(2) The offence of failing or refusing to comply with a demand
[17] Section 320.15(1) of the Criminal Code states:
320.15(1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.
[18] To establish the actus reus of the offence, the Crown must prove that the police made a lawful demand under either s. 320.27 or 320.28, and that the accused either “fail[ed]” or “refus[ed]” to comply. In cases involving the refusal branch of the offence, the accused must be proved to have refused “unequivocally”: R. v. Degiorgio, 2011 ONCA 527, 275 C.C.C. (3d) 1, at para. 42.[4]
[19] There is disagreement in the case law about the mental elements of the refusal offence: specifically, over whether the Crown must prove that the accused intentionally failed or refused to provide a breath sample, or whether it is enough for the Crown to prove that the accused knew that their conduct would have this result: see e.g., R. v. Porter, 2012 ONSC 3504; R. v. Lewko, 2002 SKCA 121, 169 C.C.C. (3d) 359; R. v. Soucy, 2014 ONCJ 497, 316 C.C.C. (3d) 153; R. v. Slater, 2016 ONSC 2161, 94 M.V.R. (6th) 224; R. v. Mtonga, 2021 ONSC 1482. We are not called on to resolve this question here, since there is no dispute that the respondent was intentionally refusing to comply with PC Bannister’s ASD demand.
(5) Summary of conclusions
[61] In summary, I would hold that the Domik “same transaction” principle applies in all refusal cases, both those involving ASD demands and those involving intoxilyzer demands. However, the maximum duration of the “same transaction” is context-specific. In ASD demand cases, the Domik “same transaction” window should be understood as co-extensive with the maximum time that the police have in the circumstances of a particular case to obtain a breath sample “immediately”.
[62] Accordingly, a trial court applying Domik in an ASD demand refusal case must consider whether the accused’s change of mind occurred at a time where the police could still have lawfully obtained a breath sample, having regard both to the operational time required to collect a sample “immediately”, and the presence of any “unusual circumstances”: Breault, at paras. 32, 51-60. If a trial judge determines that the accused’s change of mind occurred sufficiently soon after the initial refusal to form part of the “same transaction”, such that the police could still have lawfully obtained the breath sample, this will lead to the conclusion that the actus reus of the refusal offence has not been established. This will be so even if the initial refusal was expressed unequivocally. The timing of the police decision to arrest the accused for the refusal offence may be a relevant factor when considering whether the accused’s change of mind occurred within the co-extensive bounds of the statutory immediacy requirement and the Domik “same transaction” window, but it will not be determinative.
[63] However, if the court concludes that the accused’s change of mind occurred too late to have been part of the “same transaction” as the initial refusal, taking into account the statutory immediacy requirement, the court must still consider whether the evidence as a whole, including the evidence of the accused’s subsequent conduct, gives rise to a reasonable doubt about whether the initial refusal was unequivocal.
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