CITATION: R. v.

Brown, 2018 ONCJ 47

DATE: January 24, 2018

O N T A R I O C O U R T O F J U S TI C E

2018 ONCJ 47 (CanLII)

Old City Hall - Toronto

BETWEEN: )
)
)
HER MAJESTY THE QUEEN ) B. Janzen
) For the Crown
)
— AND — )
)
)
)
PAMELA BROWN Self-Represented
)
)
)
)
)
) Heard: October 30, November 9
and December 1, 2017

REASONS for JUDGEMENT

MELVYN GREEN, J.:

A. INTRODUCTION
[1] Pamela Brown and her boyfriend went to a bar on the evening of August 19,
2016. Brown, a diabetic, says she does not drink alcohol. Her erstwhile
boyfriend, Anthony Williams does, and did on the night in question.

[2] Brown lost sight of Williams at the bar. She suspected he had left with another
woman and drove to some familiar haunts to seek him out. She eventually
spotted him at a bus stop at Dundas Street West and Jane Street in Toronto – a
busy, multi-lane intersection even at midnight. Williams tried to evade Brown by
running through live traffic. She attempted to pursue him by making an abrupt
 R. v. Pamela Brown
Reasons for Judgement

U-turn through the same traffic. The somewhat bizarre behaviour did not escape
the attention of two officers waiting for the light to change as they sat, facing
east, in their marked scout directly across the very same intersection.

[3] The officers immediately launched an investigation. Both claimed to detect an

odour of alcohol on Brown’s breath. An approved screening device was

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requested and, following its arrival, demands were made of Brown that she
provide adequate samples of her breath for both roadside screening and an
approved instrument testing. It is the Crown’s position that the defendant failed
or refused to comply with the roadside screening demand, the single charge she
faces at this trial.

[4] Apart from the two officers, the only testimonial witness to the events was
Brown, the defendant. She denied willfully refusing or otherwise failing to
comply with the demand. The Crown, of course, bears the burden of establishing
otherwise on a standard of proof beyond reasonable doubt.

[5] Brown represented herself through her trial. As is hardly foreign to prosecutions
of this nature, the police conduct raises questions respecting their compliance
with the defendant’s rights under ss. 8, 9 and 10 of the Charter. Crown counsel
substantively addressed these issues in response to my inquiries on behalf of the
self-represented defendant’s otherwise unprotected constitutional interests.

B. EVIDENCE

(a) Introduction

[6] There is no issue regarding the front end of the forensic narrative: The two
members of the Toronto Police Service (TPS), PCs Lembo and Christou,
activated the emergency equipment, parked their marked scout and quickly left it
to investigate the occurrence. It was 12:06am. After completing the U-turn
through heavy traffic, the defendant, now eastbound, made a left turn into the
driveway of a scrapyard on the north side of Dundas, about 25 to 50 metres to
east of its intersection with James. She parked her Mazda at the entrance to the
driveway. The officers meantime corralled an intoxicated Anthony Williams, the
errant boyfriend, close to the same intersection.

[7] The testimonial accounts begin to diverge at the point of the police interaction
with the defendant. There are differences between the police and defendant’s
recall. There are also material inconsistencies between the accounts of the two
officers. I begin with a survey of the police evidence relevant to the disposition
of the matter before me.

(b) The Police Accounts

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(i) PC Lembo

[8] PC Lembo approached the defendant’s vehicle. Despite his instructions to

remain in her car, the defendant began to walk in Lembo’s direction. The officer
described her as irate, angry and short of breath. Only when they began to speak
did he notice an odour of alcohol. As to the strength of the odour, Lembo

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adopted his notebook entry that it was no more than a “hint”. Asked in re-
examination to rank the odour on a scale of 1 to 10, Lembo assigned a 5 to
“hint”. The defendant’s speech was not slurred. She did not stumble or otherwise
display any unsteadiness. She was co-operative. In Lembo’s opinion, there was
no basis to charge the defendant with impaired driving.

[9] In answer to his questions, the defendant described the events of that evening.
Lembo also asked the defendant if she’d had anything to drink. He recalls her
saying one glass of wine at around 7 to 8pm. Christou was not then present. Nor
is there any audio record of this exchange as both officers neglected to attach
their microphones when they left their scout or at any other time during the
course of their interface with the defendant.

[10] At his request, the defendant accompanied Lembo to the intersection where his
partner, Christou, was speaking with Williams. Lembo, although present, could
not recall any of Christou’s conversation with the defendant. He did recall
Christou reading a roadside breath demand from the back of his memo-book. He
did not note the time. As the officers did not have an approved screening device
(ASD) with them, Christou radioed for one at 12:21am. Two officers delivered
the ASD some eight minutes later. Lembo was “100% sure” that one of the
attending officers conducted the ASD self-test. Christou conducted the
defendant’s roadside screening. Despite putting the device in her mouth and
being afforded several opportunities, the defendant, in Lembo’s opinion, did not
appear to properly exhale. Christou charged her with failing to provide an
adequate sample of her breath, cuffed her, and then read her rights to counsel.
Other than saying she understood, Lembo could not recall the defendant’s
response.

[11] Lembo acknowledged that TPS policy required all police officers to take their
mobile microphones with them when leaving police vehicles to interact with
members of the public. He had not turned his mind to this protocol until after
completion of the roadside testing.

(ii) PC Christou

[12] PC Christou first conversed with the defendant at a bus shelter on the northeast
corner of Dundas and Jane as she walked to the intersection from her Mazda. He
characterized the defendant as evasive and uncooperative. Unlike Lembo, he
could detect a “strong” odour of alcohol as they spoke. Also contrary to

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Lembo’s recall, he described the defendant as unsteady on her feet and, at times,
incoherent and slurring her words. Christou formed the belief that the defendant
was “drunk” and that her ability to operate an automobile was impaired by
alcohol.

[13] Christou then called for an ASD, at 1:21am. He did not make any breath-testing

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demand of the defendant at that time. He could not remember if he made the call
from his hand-held device or from his parked scout. Christou first testified that
he could also not recall if he advised the defendant that he had requested the
device before its arrival. He later acknowledged he had not.

[14] In answer to his questions, the defendant explained that she and Williams had
been at bar where she had had one drink. Christou recalled the defendant’s
admission of a prior drink when he testified, some 15 months after the event; he
had not recorded this exchange in his notebook.

[15] Christou could not recall any conversation with the defendant in the eight
minutes between his call for an ASD and its arrival with a second police unit at
12:29am. In the interim, he did not tell the defendant she was detained; he would
have, he testified, had she tried to leave. He knew the defendant possessed a cell
phone, but he never advised her of her legal rights until after he arrested her for
failing to provide an adequate breath sample. It never occurred to him to do so.
In Christou’s recall, nothing about the defendant’s condition or demeanour
changed in the eight-minute interval before the ASD arrived.

[16] Although aware that his notes indicate that he had conducted a self-test on the
ASD, Christou, like Lembo, insisted that the test was performed by one of the
officers who delivered the ASD. Later, on watching an in-car video of the
procedure, the officer corrected himself; he had indeed conducted the
preliminary self-test.

[17] At 12:32am (at least eleven minutes after his suspicion first crystallized),
Christou made two statutory demands of the defendant: first, an approved
instrument demand and then, immediately following, a roadside, or ASD,
demand. The defendant, he testified, appeared to understand the demands.
Christou instructed the defendant on the proper testing procedure before she
commenced the roadside testing; he did not repeat, refine or otherwise revisit the
instructions at any point. The defendant, he testified, “seemed like” she was
attempting to provide a sample: her lips tightly gripped the tube; her cheeks were
puffy; and no air was escaping the mouthpiece or tube. In Christou’s opinion,
however, her efforts were not genuine. Christou cautioned the defendant after
her second and third tests as to the potential penal consequences of refusing to
provide an adequate sample. In total, the defendant was afforded four
opportunities to provide an adequate sample over the course of approximately
one and half minutes stretching from 12:35:20am to 12:36:50am. Approximately

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a minute later, at 12:38am, Christou arrested, charged and cuffed the defendant,
and then read her rights to counsel. He recalled asking her if she wanted to call a
lawyer but could not recall, nor had he noted, her response.

[18] Christou several times testified that the defendant was “always giving excuses”
during the testing procedure. He had not recorded nor could he recall any of

2018 ONCJ 47 (CanLII)

these “excuses”. In cross-examination, Christou conceded that following her
final effort he “may” have told the defendant that senior citizens or the elderly
could blow better than she had.

[19] Like Lembo, Christou had not worn his chest microphone through the course of
his interaction with the defendant. He understood that TPS protocol required him
to be equipped with an audio mike when engaged with the public but, he
explained, the sudden occurrence and volatile nature of the events eclipsed
compliance with his procedural obligations. He conceded that the incident had
stabilized by 12:21am, when he called for an ASD. He offered no further
explanation for not then or later retrieving his audio mike other than that he did
not think of it.

[20] The defendant was not charged with a driving-related offence under the
Highway Traffic Act or with impaired operation of a motor vehicle. Christou
testified that he did not know why he did not charge her with the latter offence.

(c) The Defendant’s Account

[21] The defendant is 53. She is a diabetic, having first been diagnosed about twenty
years ago. She had not consumed alcohol, she testified, since her 30s because of
her diabetes and the medication she uses to manage the condition. More
specifically, she did not have an alcoholic drink on August 19, 2016.

[22] She and Williams would typically go out on Friday nights. She served as the
designated driver. She testified that PC Christou never asked her if she had had
anything to drink. In response to his questions, she told PC Lembo that she had
been at a bar with Williams that evening but denied saying she had drunk any
wine or other alcohol. She favours a non-alcoholic, tropical beverage made of
sorrel and ginger (a bottle of which she produced for inspection) and speculated
that her consumption of the drink that evening may have been responsible for
what the officers identified as an odour of alcohol. She may have told Lembo
that she was diabetic, but she was not sure she had done so.

[23] Given her driving behaviour, her admission regarding being in a bar and her
emotional state, she agreed in cross-examination that it was not unreasonable for
the police to think she had been drinking.

[24] The defendant did not know that Christou had called for second police unit to
attend. She did not feel free to go as she was under investigation. She understood

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that she had to provide a breath sample and Christou did caution her that she
could be charged with refusing to blow if she failed to comply with his demand.
She had never previously had a breath demand made of her, but she followed the
instructions as best she could. She did not, she testified, refuse to blow. Rather,
she tried to exert enough air to produce a proper sample. She “tried”, she said,
“my hardest”. She “want[ed] to do it” but was not able to generate a sufficient

2018 ONCJ 47 (CanLII)

exhalation. It was, she explained, like having to hold her breath under water for
two to three seconds, a feat she says she is incapable of accomplishing. The
defendant characterized the shaking of her head on the final attempt, as captured
on video, as an expression of her frustration at not being able to complete the
assignment. She denied ever intentionally failing to comply with the breath
demand.

[25] The defendant had no recall of being advised of her right to counsel and, in
particular, of ever being informed that she could speak with a “free” lawyer. It
may, she conceded, have gone “in one ear and out the other”. On the police
evidence, she was not advised of these rights until after she was arrested and
cuffed.

(d) The Video Evidence

[26] The defendant’s ASD testing at the hood of the officers’ scout is captured by a
camera mounted inside the police car and directed to the front of the vehicle.
There are no close-ups, the resolution is poor, and the video image is interrupted
by roadside illumination, the lights of passing vehicles, and constantly flashing
presence of the second unit’s scout. Unlike the surrounding white officers, the
defendant’s dark skin renders it particularly difficult to reliably read her
expression or facial demeanour. As already noted, neither officer carried his
police issued microphone and, as a result, the video is not accompanied by an
audio track.

[27] As time-stamped on the DVD of the video, the defendant’s first effort begins at
12:35:20am and lasts approximately nine seconds. PC Christou holds the device
to the defendant’s mouth throughout. To the degree that the image on a video
monitor is of assistance, it does not appear that the defendant is doing other than
consistently endeavouring to produce a sample of her breath. There is some
unrecorded conversation between Christou and the defendant following the test.

[28] The defendant’s second opportunity begins fifteen seconds after the first, at
12:35:45am. Again, Christou holds the device to the defendant’s mouth. He
removes it after approximately seven seconds. Although no words are audible,
the defendant’s expression, like Christou’s, suggests acknowledgement that her
effort on this occasion was inadequate to generate a suitable sample. Christou
appears to do most of the inaudible or unrecorded talking before the next test.
Both he and he defendant gesticulate broadly but, it appears, without rancor.

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[29] The third attempt begins at 12:36:15, some 23 seconds after the second
concludes. The defendant leans in to accept the device as Christou moves it to
her mouth. Her effort again lasts only six or seven seconds before Christou
removes the mouthpiece. Again, Christou appears to do most of the talking
during the 23 or so seconds before the next ASD opportunity, most of it directed
at another officer.

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[30] The defendant appears to request manual control of the device and Christou
passes it to her before she steadies herself, takes a practice breath or two, and
places it at her mouth for her fourth and, as it happens, final test at 12:36:45am.
She seems to experience difficulty maintaining an exhalation and Christou
retrieves the devise within five or six seconds. The defendant shakes her head in
apparent exasperation at the conclusion of the test. She is not afforded a further
opportunity to provide a suitable sample. Following an again unrecorded
exchange, she turns around and Christou cuffs her from behind.

[31] It is clear, if only from the denouement of each testing opportunity, that no
adequate ASD sample was generated. However, the video record alone of the
entire procedure leaves ambiguous the sincerity of each of the defendant’s
efforts. Again, the absence of an audio track only complicates such
determination.

C. ANALYSIS

(a) Introduction

[32] In Crown counsel’s resourceful submissions, the factual issue of whether the
defendant did or did not consume alcohol on August 19, 2016 is, in effect, a red
herring. The defendant is not charged with any offence that requires proof of
intoxication, impairment or having alcohol in her blood system. Evidence of the
consumption of alcohol is, says the Crown, here relevant only to the requisite
“suspicion” for a lawful ASD demand pursuant to s. 254(2)(b). An odour of
alcohol, or the immediate presence of liquor or an admission of alcohol
consumption is often probative of the requisite suspicion, but none of these
indicia are essential to crystallization of the statutory threshold to the making of
a roadside demand. As PC Christou subjectively believed the defendant had
alcohol in her body and as even the defendant agreed (as detailed earlier) that
such belief was “reasonable” on the basis of considerations independent of any
evidence of her actually having consumed alcohol, the statutory requirements for
a lawful ASD demand are, in the Crown’s argument, made out. Given the
propriety of the demand, the only remaining issue is whether the defendant
failed to comply with it. In the Crown’s theory, the evidence of the two officers,

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coupled with that displayed on the video, afford proof beyond any reasonable
doubt of the defendant’s non-compliance and, accordingly, her guilt.

[33] For all its practical ingenuity, the approach advanced by the Crown ignores, if
deliberately, a number of Charter-hinged uncertainties. As canvassed earlier,
there is an evidentiary basis to query police compliance with the defendant’s

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constitutionally protected interests, particularly in regard to their duties arising
from her arguable detention and the informational and implementational
components of her right to counsel. The concurrent multiple breath test demands
are also troubling, as is the impact of any delay in the making of the roadside
demand on the defendant’s obligation to honour that demand. Had the defendant
been represented, these questions may well have been further mined at trial and
pursued in closing submissions. In view of the limited record pertaining to these
matters and my determination that this prosecution can be properly resolved on
the merits without resort to constitutional or related argument, I do not intend to
further explore these issues.

[34] My reasons, then, are narrowly focused on whether the Crown has satisfied its
legal burden respecting the offence of refusing or failing to comply with the
roadside breath demand.

(b) The Legal Framework

[35] The defendant is charged with failing or refusing to comply with an officer’s
demand to supply a suitable sample of her breath for roadside analysis, by way
of ASD, of the alcohol content in her blood. An ASD demand is but one of
several police demands authorized by s. 254 of the Code that may be made of
drivers reasonably suspected to have consumed alcohol or reasonably believed
to be driving while impaired or “over-80”. As mandated by s. 254(2) of the
Code, a police officer who suspects on reasonable grounds that a person has
alcohol in his or her body and has operated a motor vehicle within the previous
three hours may,

by demand, require the person … to provide forthwith a sample of breath

that … will enable a proper analysis to be made by means of an approved
screening device … .

Subsection (5) of the same provision prescribes that,

Everyone commits an offence who, without reasonable excuse, fails or

refuses to comply with a demand made under this section.

[36] At simplest, a conviction for the offence set out in sub-s. (5) depends on the
Crown establishing the making of a proper demand, a failure or refusal by the
defendant to produce the required sample, and, finally, that the defendant
possessed the necessary mental state or fault element – the defined intent or

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knowledge that attracts culpability – at the time of the failure or refusal. The
legal nature or definition of this last element (what lawyers call the requisite
mens rea) has proved a source of jurisprudential controversy in the context of s.
254. While the ancillary issue of “reasonable excuse” does not arise on the
instant facts, the meaning and application of the fault or mental element are
critical to the proper resolution of this prosecution.

2018 ONCJ 47 (CanLII)

[37] I earlier canvassed the legal debate in R. v. Slater, 2015 ONCJ 155. By way of
introduction, I noted, at para. 17, that,

“[F]ailure to comply … with any of these demands [set out in s. 254] is an

offence under s. 254(5). Refusal to comply with any of the same demands is
an independent offence. Where verbally expressed in unequivocal language,
an offence of refusal is readily established. Where dependent on ambiguous
words or conduct, proof of refusal, like proof of failure to comply more
generally, is an inferential process that requires contextual consideration of
the entirety of the interaction between a defendant and the police: R. v.
Tavangari (2002) 28 M.V.R. (4th) 104 (Ont. C.J.), esp. at paras. 15, 16 and
22; R. v. Bijelic, [2008] O.J. No. 1911 (S.C.), at para. 30; R. v. Grant, [2014]
O.J. No. 1143 (S.C.), at para. 82.

[38] There is here no express or otherwise unequivocal “refusal” to participate in the

roadside testing procedure. The defendant did, however, fail to generate the
required sample. The Crown’s burden is to establish that this result conformed
with or reflected, for want of a better word, the defendant’s “will” – that is, the
required mental state. Framed in the language of the legal authorities, the
question at the time I heard Slater was whether, by way of accompanying mental
element, the Crown needed to prove, as said by the Saskatchewan Court of
Appeal in R. v. Lewko (2002), 169 C.C.C. (3d) 359, at para. 9, “that the
defendant intended to produce that failure” or, as later put by Code J. in R. v.
Porter, [2012] O.J. No. 2841 (S.C.), at para. 34, whether the offence is one “of
general intent” in which “knowledge or recklessness as to the doing of the
prohibited act is a sufficient mens rea”.

[39] Each approach attracted its own judicial subscribers at trial and on summary
conviction review. To my subsequent chagrin, I elected to follow what I
construed as the more exacting standard prescribed by Lewko and was soon
corrected on appeal (R. v. Slater: 2016 ONSC 216) where Nordheimer J., as he
then was, discounted the purported conflict between Lewko and Porter,
reasoning that the two authorities could be read harmoniously. As he explained,
at paras. 8 to 10:

[T]o the degree that a conflict is suggested between Porter and Lewko, it
seems to have less to do with what was actually said in Lewko and in Porter,
and more to do with what some subsequent decisions have characterized as
having been said in those two cases.

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The central point made in Porter is that, 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 that
failure, the inescapable inference is that the accused intended to cause that
result. …

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In fact, this is the same approach to the issue of proof of intent that
was utilized in Lewko. [Quotations from Porter and Lewko omitted.
Emphasis added.]

[40] Nordheimer J. then concluded, at para. 12, that,

[T]he proper reading of both Lewko and Porter … is, that, absent evidence
to the contrary, or evidence that raises a reasonable doubt, proof of the
requisite mens rea for the offence will be met by the application of the
general principle that a person, who does something that has predictable
consequences, usually intends or means to cause those consequences. Put
more directly, evidence that a person who tries multiple times to provide a
breath sample, and in each instance fails to provide a sample, gives rise to an
inescapable inference that s/he is intending that result, absent some other
evidence being present that would suggest an absence of such an intent, or at
least raise a reasonable doubt about it. [Emphasis added.]

[41] Further, at paras. 14 and 15, he helpfully notes that in most reported cases in
which a reasonable doubt has been held to dispel the otherwise “natural
inference” flowing from commission of the act, “the accused had given evidence
that provided alternative explanations for the failures” or there was “other
evidence in the circumstances surrounding the attempts made to obtain a proper
breath sample” that cast doubt on the otherwise “compelling inference to be
drawn”. Put otherwise, and here using language affirmatively adopted in the
Slater appeal, at para. 11, a defendant has an evidentiary burden to lead
“sufficient evidence to lend an air of reality to the issue”.

(c) Applying the Law

[42] In my view, I am left with just such “doubt”, a reasonable doubt, on proper
application of the approach to the requisite mens rea endorsed on appeal in R. v.
Slater. I reach this conclusion on close consideration of all of the evidence,
including that of the police witnesses, the defendant, and the video record of the
roadside screening. The totality of this evidence affords an air of reality to the
defendant’s denial that she meant to bring about or was otherwise reckless to her
failure to provide an adequate sample. This evidentiary threshold having been
met, the burden returns to the Crown to refute the defendant’s claim to the
appropriate standard of proof: R. v. Cinous, [2002] 2 S.C.R. 3. As I have already
indicated, the prosecution falls short of this mark.

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[43] To begin, I have lingering qualms about the reliability of the evidence of both
officers, particularly PC Christou. Christou describes the defendant as “drunk”,
as illustrated by classic verbal and physical indicia of intoxication that he
attributes to her. PC Lembo, who was in the defendant’s immediate company for
some minutes longer than Christou, repeatedly denied that she demonstrated any
signs of alcohol consumption, let alone impairment, other than a “hint” of an

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odour of alcohol. They cannot both be right.

[44] In my assessment, Christou’s characterization of the defendant as uncooperative

and his qualified admission of speaking sarcastically to her at the conclusion of
the roadside screening betrays the negative attitude with which he approached
her presumed role in the investigation. Christou claims to have reasonably
determined that the defendant’s ability to drive was impaired by alcohol. On this
basis, he made both roadside and Breathalyzer statutory demands of the
defendant. Yet, Christou never arrested the defendant for impaired driving.
Asked why not, he could not tender an explanation. Nor could he or Lembo
explain why, contrary to their professional obligations, they had not retrieved
their microphones from their scout while they idled, waiting some ten empty
minutes for delivery of an ASD.

[45] Both Christou and Lembo were insistent that one of the officers who delivered
the ASD conducted the self-test on the device. Both were patently wrong.
Indeed, until corrected by the video, Christou’s testimonial insistence took
precedence over his own notebook reference to having performed the test
himself. On the other hand, he recalled at trial, some 15 months after the event,
the defendant having told him she had had a drink in a bar when, despite the
incriminatory salience of such admission, he had failed to make any reference of
this assertion in his notebook. And while Christou several times claimed that the
defendant was repeatedly “making excuses” for her failure to provide a suitable
sample, he neither recorded nor recalled a single one of them.

[46] I am left with doubts as to reliability of Christou’s characterization of the

defendant’s efforts to provide a sample as deceitful or insincere. I note that, even
on the police evidence, there is no suggestion that the defendant verbally refused
to participate in the testing, nor did she push the ASD away or otherwise
physically rebuff an invitation to exhale into the device. There are, of course, no
regulations, judicial guidelines or even standard practice governing the number
of opportunities that the subject of a s. 254 demand may or should be afforded.
That said, having presided over many dozen, if not well more than a hundred
drinking-and-driving-related prosecutions over many years, I cannot recall a
case in which, as here, a subject who does not expressly refuse to participate was
allowed only four occasions to perform the test or where the entire process was
truncated by the police after a mere 90 seconds.

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[47] The defendant’s own evidence was far from impeccable. She was sometimes
vague. She admitted that she had forgotten parts of her interface with the police.
She acknowledged her displeasure with PC Christou. But she did testify and she
did deny doing anything other than making her best effort to follow Christou’s
instructions and provide a proper sample: she “tried”, as she said, her “hardest”.
She was materially consistent and struck me as candid and natural, as opposed to

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cunning or rehearsed. She also offered, by way of explanation for her inability to
adequately exhale, an anecdotal account of the difficulty she experienced
holding her breath under water. On the defendant’s evidence alone, I am left
with a palpable doubt as to whether she did other than try to provide the roadside
sample demanded by the police.

[48] I find some confirmation of the defendant’s position in the video evidence.
Given the poor resolution and absence of any audio recording, some of the
imagery is admittedly ambiguous. Nonetheless, after repeated viewings, I am
content that the defendant did not hesitate to accept the device each time it was
handed to her. She requested an opportunity to self-administer the machine on
the last occasion. She was never, on my read of the video, re-instructed, or not
fully so, on the appropriate procedure or given an opportunity to collect herself.
Nor, even on the police evidence, was she ever cautioned that the fourth attempt
was her “final chance”. Further, I accept the defendant’s uncontradicted
testimony that this was her first exposure to a roadside screening procedure.

[49] The police failure to utilize their microphones is particularly frustrating. (The
requirement is dictated by the TPS Policy & Procedure Manual, 15-17, “In-Car
Camera System”, R.O. 2009.01.29-0097.) The best evidence of the defendant’s
exchanges with PC Christou, the content of his instructions and cautions, the
reasons he expressed, if any, for curtailing the testing after less than two minutes
are lost to the evidentiary calculus. The explanations or justifications, if any,
advanced by the defendant for her futile performance are equally unrecorded.

[50] To the degree that the totality of the evidence, direct and circumstantial, leaves a
doubt that the defendant’s intent was anything other than to meet the statutory
demand, the lack of an audio record does not assist the Crown in meeting its
burden. Were it available, an audio track could, at least hypothetically, allay my
concerns respecting the reliability of the police accounts, particularly that of PC
Christou. It could also serve to confirm or belie portions of the defendant’s
account of the procedure. As said by a unanimous Supreme Court more than 20
years ago in R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39, a reasonable doubt
“is logically derived from the evidence or absence of evidence”. Both here
contribute to my doubt as to the defendant’s guilt.

D. CONCLUSION

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 R. v. Pamela Brown
Reasons for Judgement

[51] Consistent with these reasons, I find the defendant not guilty.

Released on January 24, 2018

Justice Melvyn Green

2018 ONCJ 47 (CanLII)

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