CITATION: R. v. Borde, 2011
          ONCA 534

DATE: 20110728

DOCKET: C49685

COURT OF APPEAL FOR ONTARIO

Goudge, Juriansz and MacFarland JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Quinn Borde

Appellant

Clayton C. Ruby and Gerald J. Chan, for the appellant

James Stewart, for the respondent

Heard: June 21 & 22, 2011

On
    appeal from the conviction entered on June 22, 2007 and the sentence imposed on
    May 9, 2008 by Justice Bonnie L. Croll of the Superior Court of Justice,
    sitting with a jury.

Juriansz J.A.
:

OVERVIEW

[1]

The appellant appeals
    against his convictions for robbery, attempted murder while using a firearm,
    aggravated assault by discharging a firearm, using a firearm in the commission
    of an indictable offence, and discharging a firearm with intent to prevent his
    arrest or detention.

[2]

At trial, his position
    was that he was not properly identified as the perpetrator and that he was at
    his mothers home when the crimes were committed. On appeal, he alleges
    ineffective assistance of counsel and that the trial judge made several errors
    in her instructions to the jury.

[3]

For the reasons that
    follow, I would dismiss the appeal.

FACTS

[4]

On June 29, 2006, two
    young women  Natasha Kulgawetz and Tenicka Webster  were at a party drinking
    and decided to go find marijuana from a girl that Ms. Webster knew in Regent
    Park. On their way, they encountered a black male wearing a plain black
    pullover hood jacket, a bandana and a baseball cap. According to Ms. Webster
    and Ms. Kulgawetz, the man forced Ms. Webster to take her chain off and hand it
    to him and he forced Ms. Kulgawetz to give him the money in her pocket. The man
    then told the two women that they would be staying with him for the rest of the
    night.

[5]

The three of them
    headed to an apartment to find marijuana and when they arrived, Cedric Wade
    answered the door. According to the testimony of Cedric and the two women, the
    man pulled out a gun. As Cedric slammed the door shut, he was shot in the
    elbow. The shooter then pulled the two women away and they walked towards Queen
    St. and Parliament St.

[6]

At about 4:30 a.m.,
    several police accosted them. The two women dove to the right into a staircase
    and the man drew a gun and began shooting at the police. The police and the
    shooter then exchanged shots. The shooter ran down a laneway, climbed over a
    high fence and slipped through the perimeter the police had set up. As he made
    good his escape, the shooter fired two shots at the ambulance arriving at Mr.
    Wades apartment.

[7]

The police arrested the
    two women and took them to the police station. Ms. Kulgawetz did not identify
    anyone when shown a photo lineup containing the appellants photo. However,
    when shown the photo lineup, Ms. Webster identified the appellant as the
    shooter. One of the police officers, Constable Austin, also picked the
    appellant out of the photo lineup.

[8]

The appellant was
    arraigned on a 19-count indictment. He entered a plea of not guilty to all
    counts:  counts 1 and 2 concerned the
    robbery of Ms. Webster and Ms. Kulgawetz; counts 3 to 5 concerned the shooting
    of Cedric Wade; counts 6 to 15 concerned the shootout between the police and
    the shooter; and counts 16 to 19 concerned the attempted shooting of the
    ambulance driver, Mr. Toshoff.

[9]

Ms. Webster went
    missing. The police found and brought her back from Jamaica just as the
    appellants trial began. At trial, she identified the appellant as the shooter.
    She testified she had been acquainted with the shooter previously. His street
    name was
Body. She had met him a few days earlier in Moss Park. Ms. Kulgawetz was also
    there and Ms. Webster saw her kiss the shooter. She testified that two
    assailants had approached the shooter in the park and shot him twice. He went
    to the hospital, but Ms. Webster saw him later that night at a party in
    undershorts.

[10]

Constable Austin
    identified the appellant as the shooter. The Crown led evidence that on June
    24, five days before the offences, the appellant had been treated for gunshot
    wounds at St. Michaels Hospital and had left the hospital in undershorts
    before he was released.

[11]

The Crown also led
    circumstantial evidence of identity. In the vicinity of shell casings ejected
    from the shooters gun and on the route used by the shooter to escape, the
    police also found a baseball hat and black jacket. The black jacket had gunshot
    residue on it and the hat contained the appellants DNA.

[12]

The defence originally
    planned that the appellant would not testify and defence counsel did not serve
    a notice of alibi on the Crown. After Ms. Webster proved to be a formidable
    witness, the appellant decided to testify. In cross-examination he said that at
    the time of the shootings he was at his mothers home where he had gone to
    recover from the gunshot wounds suffered on June 24. He admitted that the hat
    and jacket recovered by the police at the scene were his, but he claimed that
    the assailants who shot him on June 24 had stolen them.

[13]

The appellants mother
    was not called to testify. The trial judge denied the appellants attempt to
    testify in re-examination that the reason his mother was not called to testify
    was because she suffers from panic attacks.

[14]

The jury acquitted the
    appellant of all counts in relation to the ambulance driver and convicted him
    of the offences listed above. The trial judge sentenced him to an aggregate
    sentence of 25 years with no eligibility for parole for 10 years.

ISSUES

[15]

The appellant submits that
    he is entitled to a new trial because:

i.

the
    trial judge should not have instructed the jury that it could draw an adverse
    inference from the failure to make timely disclosure of the alibi defence, in
    the absence of evidence that more effective police investigation would have
    been possible had the alibi been disclosed earlier;

ii.

the
    failure of defence counsel to serve a notice of alibi on the Crown constituted
    ineffective assistance of counsel;

iii.

the
    trial judge erred in failing to instruct the jury that the defence did not need
    to prove the alibi but only raise a reasonable doubt;

iv.

the
    trial judge erred in telling the jury that it could draw an adverse inference
    from the appellants failure to call his mother as an alibi witness;

v.

the
    trial judge erred in refusing to allow the appellant to explain why he did not
    call his mother as a witness; and

vi.

the
    trial judge failed to give an unsavory witness instruction in regard to Ms.
    Webster.

Discussion

Need for evidence that an earlier investigation would
    have been more meaningful

[16]

The appellant submits that a trial
    judge should instruct a jury that it may draw an adverse inference from failure
    of the accused to make timely disclosure of an alibi defence only where the Crown
    establishes by evidence that the police could have conducted a more meaningful
    investigation had the alibi been disclosed earlier. To advance this proposition,
    the appellant relies on the comments of Doherty J.A. in
R. v. Wright
(2009), 247 C.C.C. (3d) 1 (Ont. C.A.), at paras. 18-20,
    that the adverse inference instruction is a qualification on constitutionally
    enshrined principles, which can be justified only where the rationale for that
    qualification actually operates. Doherty J.A. said, Thus, if the alibi defence
    is disclosed in time to permit meaningful investigation of the defence, there
    can be no justification for the instruction.

[17]

In my view, the appellant takes these
    comments out of context. In
Wright
,
    Doherty J.A. found that the trial judge was wrong to characterize the appellants
    position as an alibi defence. Rather, it should have been characterized as an
    admission of some involvement in the events coupled with a denial of any
    involvement in the crimes. In
Wright
the
    Crown did not require any disclosure in order to effectively investigate and
    respond to the defence actually advanced by the appellant.

[18]

The rule is one of expediency intended to guard against
    surprise alibis fabricated in the witness box that the prosecution is almost
    powerless to challenge:
R. v. Cleghorn
,
    [1995] 3 S.C.R. 175 per Iacobucci J., at para. 4. Requiring the Crown to
    request an adjournment to attempt to investigate a late claim of alibi or requiring
    it to prove that meaningful investigation would have been fruitful but is no
    longer possible before an adverse inference instruction is appropriate, would
    undermine the rationale of the rule. It would also create logistical problem
    for the trial and place an impossible burden on the Crown to show what the
    investigation it was unable to do would have yielded. In the circumstances of
    this case, the late disclosure of the alibi defence fell squarely within the
    rule; it could not be expected that the police could effectively investigate
    the appellants claim when the alibi was disclosed.

[19]

I would not give effect to this ground of appeal.

Failure to serve a notice of alibi constituting
    ineffective assistance of counsel?

[20]

Defence counsel examined both the appellants mother and
    brother regarding his claim of alibi and concluded that the jury was unlikely
    to believe them. Counsel for the appellant accepts that it was reasonable for
    defence counsel to make this judgment initially and to advise the appellant not
    to testify. Counsel for the appellant points out that circumstances change, as
    they did in this case, and because the accused always has the right to decide
    to testify, defence counsel must serve a notice of alibi in all cases. The only
    exception this rule that counsel for the appellant would recognize is where
    defence counsel knows the claim of alibi is fabricated.

[21]

I find the proposition too unequivocal. Certainly, having the
    case go to the jury with an adverse inference instruction is always undesirable
    for the defence. Every effort should be made to avoid that happening. However,
    sometimes the defence must choose between the devil and the deep blue sea, as
    counsel for the Crown put it. Here, defence counsel considered that the
    appellants alibi defence would be disbelieved, and that having the police
    investigate the claimed alibi would harm the defence by exposing its weakness
    or possibly establishing it was concocted. The appellant was prepared to accept
    that advice. In the unlikely event that the appellant changed his mind, going
    to the jury with a failed or concocted alibi would have been worse for the
    defence in defence counsels judgment. This was a competent, professional
    tactical decision that I would not second guess.

[22]

I would not give effect to this ground of appeal.

The trial judges
    failure to instruct the jury that the defence did not need to prove the alibi
    but only raise a reasonable doubt

[23]

The appellant complains that the
    trial judge did not explicitly link her instructions about reasonable doubt to
    the appellants alibi defence. The complaint has no merit.

[24]

The trial judge instructed the jury
    on the presumption of innocence, the burden of proof on the Crown and the
    concept of reasonable doubt. She charged the jury in relation to
W.D.
on two occasions, once relating
    those instructions to the appellants testimony that he was at his mothers
    home, though she did not use the word alibi. The jury would have understood
    that the Crown has to disprove the appellants claim of alibi in the course of
    establishing his guilt beyond a reasonable doubt.

[25]

I would not give effect to this
    ground of appeal.

Adverse inference from the appellants failure to call
    his mother as an alibi witness

[26]

The appellant submits that an adverse
    inference from the failure to call his mother was not justified in this case
    and that the trial judge should have corrected, rather than endorsed, Crown
    counsels suggestion that the jury should turn a critical eye to the fact that
    the person who could support his alibi was never called by the defence, though
    she sat in the courtroom while he gave that evidence.

[27]

The trial judge gave the jury the
    following instruction:

Ladies and
    gentlemen, in assessing the weight to be given to Mr. Bordes whereabouts on
    June 29, 2006, you are entitled to consider that this information was not
    disclosed at a sufficiently early time to permit its investigation by the
    police. You may also consider that Mr. Bordes mother was not called as a
    witness, but you must understand that there is no obligation on the defence to
    call Mr. Bordes mother, and there may, indeed, be a perfectly good reason why
    she was not called. As well, the only possible inference you may draw from the
    failure to call Mr. Bordes mother is that had she been called as a witness,
    her evidence would have been unfavourable to Mr. Borde. You may or may not draw
    this inference; that is up to you, but you must not use the failure to call his
    mother to draw the inference of guilt of Mr. Borde.

[28]

While the appellant is correct that the Crown could have
    called the appellants mother, it was logical to expect the defence to call her,
    given the appellants relationship with her and his testimony that she could
    confirm he was at home at the time of the crimes. The trial judges instruction
    was both justified and fair. It made clear that the appellant was under no
    obligation to call his mother as a witness, that there might be a perfectly
    good reason why she had not been called, that it was up to the jury to decide
    whether to draw or not to draw an adverse inference, and, importantly, that the
    jury should not draw an inference of guilt from the appellants failure to call
    his mother.

[29]

I would not give effect to this ground of appeal.

Refusal to allow the appellant to explain why he did
    not call his mother as a witness

[30]

The trial judge refused to allow the appellant
    to explain in re-examination that he did not call his mother to testify because
    she suffered from panic attacks. The trial judge ruled this proposed testimony
    inadmissible on the basis that it was hearsay or opinion evidence. She added
    that it was open to the defence to call other more reliable evidence as to any
    problems with having [the mother] testify.

[31]

The appellant submits that his
    observations of his mother were direct and therefore did not constitute
    hearsay, and that his own observation that she experienced panic attacks was
    permissible lay opinion. That may be so, but the trial judge took the view that
    the appellant was not qualified to offer the opinion that the panic attacks
    that his mother suffered prevented her from testifying. While the trial judge,
    perhaps, could have admitted the testimony as lay opinion, the evidentiary
    ruling she made had a basis in reason and does not constitute reversible error.

Failure to give an unsavory witness instruction

[32]

The appellant submits that the trial
    judge erred by failing to caution the jury to be careful in accepting the
    evidence of Ms. Webster, an unsavory witness. Ms. Webster, the appellant points
    out, admitted to selling crack cocaine; she had a motive to lie because of her
    connection to the crime; she was suspected of involvement in the offences at
    the time she first gave her statements to the police; she was subjected to
    intimidating treatment by the police and interrogated in a hard interview room
    until she urinated herself; she had provided different accounts on different occasions;
    she delayed in coming forward with information; and she lied under oath.

[33]

Despite these factors, it was open to
    the trial judge, who had the advantage of seeing Ms. Webster testify and
    assessing her testimony in the context of the whole trial, to find that an
    unsavory witness instruction was not required to ensure a fair trial. The trial
    judges instructions would have alerted the jury to the danger of accepting Ms.
    Websters testimony without careful scrutiny. Had the trial judge given an
    unsavory witness caution, she would have had to review the independent evidence
    supporting Ms. Websters testimony. For example, the appellants street name was
    Body, he had been shot a few days earlier, and he had left the hospital
    wearing nothing but boxer shorts, as Ms. Webster said. The trial judges
    exercise of discretion deserves deference. I would not give effect to this
    ground of appeal.

CONCLUSION

[34]

We did not call upon the Crown to respond to a number of additional
    issues raised by the appellant and I see no need to discuss them. I would
    dismiss the appeal.

R.G. Juriansz J.A.

I agree S.T. Goudge J.A.

I agree J. MacFarland J.A.

RELEASED:  July 28, 2011


CITATION: R. v. Carvalho, 2011 ONCA 529

DATE: 20110720

DOCKET: C52040

COURT OF APPEAL FOR ONTARIO

Rosenberg, Cronk and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Antonio Carvalho

Appellant

Gavin S. MacKenzie, for the appellant Antonio Carvalho

John Patton, for the respondent

Heard and released orally:  June 30, 2011

On appeal from the conviction entered by Justice Wilson of the
          Ontario Court of Justice, dated November 25, 2009.

ENDORSEMENT

[1]

The appellant was convicted of aggravated assault after a trial before a
    judge sitting without a jury.  He seeks a new trial on two grounds.  We would
    give effect to neither.

[2]

First, the appellant complains that the trial judges reasons are
    inadequate because they fail to disclose that the trial judge gave any
    meaningful scrutiny to the testimony of the complainants sister before relying
    upon it to establish the appellants guilt. We do not agree.

[3]

The central issue before the trial judge was the identity of the person
    who struck the complainant on the head with a bottle of beer and caused
    significant head and facial injuries. The blow was inflicted in a crowded bar
    that was dimly lit. Although the accounts provided by those present, both
    patrons and servers, were not entirely uniform, the circumstantial evidence
    that implicated the appellant was formidable. The blow was struck immediately
    after a confrontation between the appellant and the complainant who had a rich
    history of mutual dislike and physical combat. The incident took place when the
    appellant and complainant were standing very close together and within a second
    or two of the complainants insult of the appellant. There was no evidence that
    anyone else present bore any equivalent animus towards the complainant.

[4]

The complainants sister was not at the bar during the altercation.  She
    saw and spoke to the appellant at another bar several miles away after she had
    learned that the complainant had been taken to hospital. She gave evidence of a
    conversation she had with the appellant that could be viewed as an
    acknowledgement by him of his responsibility for the complainants injuries.

[5]

In his consideration of all the evidence, the trial judge accurately
    recounted the testimony of the complainants sister. What is more, the trial
    judge scrutinized at least some of the frailties alleged to attach to her
    evidence. As we read the reasons for judgment as a whole, he did not assign her
    evidence a place of prominence in reaching his conclusion that the appellants
    guilt had been established.

[6]

Accordingly, we would not give effect to this complaint of error.

[7]

The second error alleged by the appellant also relates to the trial
    judges treatment of the evidence of the complainants sister. The appellant
    says that the trial judge misapprehened the evidence about the appellants
    alleged use of the word scuffle in his conversation with the complainants
    sister. Once again, we disagree.

[8]

Taken in their entirety, the reasons for judgment reflect a
    consideration of the evidence of the complainants sister as a whole.  In the
    end, it was open to the trial judge to conclude that the words spoken amounted
    to an acknowledgement by the appellant of his presence at and his involvement
    in an event that led to the complainants injuries.  This ground of appeal
    fails.

[9]

The appeal from conviction is dismissed.

M. Rosenberg J.A.

E.A. Cronk J.A.

David
    Watt J.A.


CITATION: R. v. Degiorgio, 2011 ONCA 527

DATE:  20110720

DOCKET: C51942

COURT OF APPEAL FOR ONTARIO

Doherty, LaForme and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tammy Degiorgio

Appellant

Adam Little, for the appellant

Greg Skerkowski, for the respondent

Heard: March 24, 2011

On appeal from the judgment of Summary
          Conviction Appeal Judge Nancy Backhouse of the Superior Court of Justice
          dated March 11, 2010, dismissing the appeal from the conviction entered by Justice
          David Cole of the Ontario Court of Justice dated January 27, 2009.

H.S. LaForme J.A.:

INTRODUCTION

[1]

Blair J.A. granted leave to the appellant to appeal to this
    court.  In doing so, he described the issue for appeal as: whether [the police
    officers] demand was valid, given the [summary conviction appeal judges]
    finding that there was no evidence an approved screening device could be
    available forthwith.

[2]

Thus, the question of law in this appeal focuses on the
    interpretation of the offence of refusing to provide a breath sample pursuant
    to s. 254(5) of the
Criminal Code
and the interpretation of the
    forthwith requirement in s. 254(2).  Specifically, the question is whether
    the demand made by the police officer pursuant to s. 254(2) was valid in the
    absence of evidence that an approved screening device (ASD) could be made
    available forthwith.

BACKGROUND

[3]

The facts at trial were straightforward.  Two witnesses testified:
    the police officer and the appellant.  Given the focus on this appeal, only the
    evidence that has some bearing on the issues will be recited.

[4]

This case began with P.C. Fieldings receiving information at
    7:32 a.m. on September 23, 2007 that someone was slumped over the steering
    wheel of a motor vehicle in front of a driveway; the lights of the vehicle were
    on and its motor was running.  At 7:37 a.m. P.C. Fielding arrived on the scene
    and approached the vehicle.  He observed that the window was down and the
    appellant was sitting in the drivers seat, alert.  Her eyes were glassy and
    there was a strong odour of alcoholic beverage coming from the area of her
    mouth.

[5]

The appellant denied having consumed alcohol that day.  She said
    she was tired, and that she came from her friends house.  She seemed confused
    about where she was.

[6]

At 7:39 a.m. P.C. Fielding concluded that he had reasonable
    grounds to suspect that there was alcohol in the appellants body, and made the
    demand that she provide a sample of her breath into an ASD pursuant to s.
    254(2).  The language used in his demand was as follows:

I demand that you provide a suitable sample of your
    breath directly into an approved screening device forthwith to enable a proper
    analysis of your breath to be made and that you accompany me for the purpose of
    enabling a sample to be taken.  Do you understand?

[7]

The appellants response was, Yes, but I am not blowing into
    anything.  After requesting that she step out of the vehicle, P.C. Fielding
    asked her if she understood his ASD demand.  She stated a second time, Yes,
    Im not blowing into anything.

[8]

At this point, P.C. Fielding advised her that refusing to comply
    with the demand was a criminal charge with the same penalty as impaired driving
    or driving over the legal limit, and that it would result in an automatic 90-day
    drivers license suspension.  He made it very clear that, by law, she had to
    provide a sample of her breath. He advised her that if she provided a sample
    and passed, she would be free to go.  If she provided a sample and failed, she
    would be charged with over 80.
[1]

[9]

P.C. Fielding then re-read the demand as set out above, and asked
    the appellant if she understood.  She stated a third time, Yes, but Im not
    blowing into anything.

[10]

At 7:42 a.m. P.C. Fielding arrested the appellant for refusing to
    provide a sample of breath into an ASD.  He advised of her right to counsel.
    When he asked the appellant if she understood, the appellant stated, Yes,
    whatever.  Dont you have better things to do?  I only had three glasses of
    wine at midnight.  Come on.

[11]

At 8:00 a.m. the appellant was released on an appearance
    notice.  She left the scene of the arrest at 8:20 a.m. in a taxi.  Throughout
    this entire time period, P.C. Fielding did not have an ASD with him.  The
    appellant was charged with refusing to provide a sample breath pursuant to s. 254(5).

The evidence

[12]

In examination-in-chief, P.C. Fielding testified that during the
    events surrounding the appellants being charged, he did not have an ASD in his
    possession or in his vehicle.  Nor did P.C. Fielding take steps to locate an
    ASD after the appellant was arrested.  However, he also testified that during
    his brief interaction with the appellant, he was aware that another officer, P.C.
    Vanderhart, had been dispatched to the scene, and that he had observed an ASD
    in the front seat of P.C. Vanderharts vehicle prior to leaving the police
    station earlier, but he did not know whether P.C. Vanderhart was one of the
    officers who attended the scene.

[13]

The other officers who were at the scene did not testify.  As a
    result, there was no evidence that any police officer had an ASD at the scene;
    whether an ASD was immediately available; or if not, how long it would have
    taken for one to be made available.

The trial decision

[14]

The trial judge found that the appellant did not have a
    reasonable excuse for refusing to comply with the ASD demand and found her
    guilty of the offence of refusing to provide a breath sample pursuant to s.
    254(5).  The issue of the validity of the demand, however, was never directly
    argued before him, although in his reasons for judgment he did observe:

So he made a demand that she provide samples into a
    road-side testing device, which he did not presently have with him (although [defence
    counsel] has not made anything of that).

[15]

While the trial judge did not make any findings surrounding the
    issue of the unavailability of the ASD, the evidentiary record supports a
    finding that an ASD was never available at the scene.  Indeed, the Crown fairly
    concedes this.

The summary conviction appeal
    decision

[16]

At the summary conviction appeal, the appellant conceded that the
    trial judge did not commit an error in finding that the appellant did not have
    a reasonable excuse for failing to comply with the ASD demand made to her by
    P.C. Fielding.  However, the appellant argued that, nevertheless, the trial judge
    was in error when he convicted her because the demand itself was invalid as it
    was non-compliant with s. 254(2) of the
Criminal Code
.

[17]

The appellant argued that she was under no legal obligation to
    comply with the demand and, therefore, did not commit an offence contrary to s.
    254(5) by refusing.  Essentially, the appellant argued that although she
    refused to comply with the demand, there was no evidence that P.C. Fielding was
in a position to administer the ASD test forthwith
as
    he did not have access to an ASD.

[18]

While the issue of the availability of the ASD was not raised at
    trial, the Crown did not object to it being raised on the summary conviction
    appeal.   As I said, the Crown conceded that at no time was an ASD available at
    the scene.

[19]

The Summary Conviction Appeal Judge disagreed with the
    appellants arguments and held that the offence was complete when she refused
    to comply with the demand.  The appeal judges reasons are brief and are set
    out in full:

The appellant submits that the trial judge erred in
    entering a conviction for breach of s. 254(2)(b)
[2]
of the
Criminal Code
because, although the appellant refused to comply
    with the demand, the arresting officer did not have an approved screening
    device (ASD) with him.  There was no evidence that an ASD could be available
    forthwith, i.e., without delay. (
R. v. Woods
[2005], 2 S.C.R. 205).

In my respectful opinion, the offence is complete
    once the demand, which conforms with the conditions in s. 254(2) - reasonable
    grounds to suspect that a person has alcohol or drugs in their body and has
    operated a motor vehicle or had its care or control within the preceding three
    hours - is not complied with.

If an accused agreed to provide a sample and one is
    not taken forthwith, the sample cannot be used in evidence.

To require the Crown to prove that a sample can be
    taken forthwith whenever an accused has refused to provide a sample engages a
    theoretical exercise; whereas, if the accused complies with the demand and a
    sample is not taken forthwith, the Court adjudicates the actual facts.

Although a pre-Charter decision, I agree with the
    reasons in
R. v. Matthews
(1974), 14 C.C.C. (2d) 1 (Man. C.A.).

The appeal is dismissed.

[20]

On this appeal the appellant submits that the appeal judge erred
    in law when she reasoned that the forthwith requirement mandated by s. 254(2)
    does not arise in the context of an outright refusal.

ARGUMENT

[21]

The issue was described by counsel in the form of a question.

[22]

The appellant frames the question as: is a police demand valid
    where there is no evidence that an ASD could be available forthwith as
    expressed in s. 254(2)?  The appellant argues that if the appeal judge was
    correct, the following would occur:

[W]here a police officer makes a demand under s.
    254(2), but does not have an ASD, calls for one to be brought to the scene, an
    outright refusal ensues, the officer could then cancel the request for an ASD
    and the accused would be charged and convicted under s. 254(5).

[23]

Moreover, the appellant contends that the reasoning of the appeal
    judge is not supported by the prior jurisprudence of this court, other
    provincial appellate courts and the Supreme Court of Canada.

[24]

The Crown puts it this way.  Were the police required, even after
    the appellant had unequivocally refused to provide a sample, to continue with
    the process of locating or deploying an ASD to the scene?  The Crown says that
    the appellants refusal to provide an ASD sample was immediate and unequivocal;
    that the time between the demand and the refusal was only three minutes, which
    is sufficient to constitute the offence.  And, although no ASD was presented to
    the appellant  or even at the scene during this three minute period  the time
    is well within the guidelines of this court regarding whether a sample has been
    taken forthwith.

DISCUSSION

[25]

The appellant submits that case law has
    consistently interpreted the forthwith requirement in s. 254(2) as imposing a
    duty on the police to be in a position to administer the test forthwith.  She
    says that if they are not, then the demand is not within the scope of what the
    subsection contemplates and is not valid.  If the demand is not valid under
    254(2), she argues that she cannot be convicted under s. 254(5).

[26]

In support of her arguments, the appellant
    relies primarily on
R. v. Grant
,
[1991] 3 S.C.R. 139
and numerous authorities from this court:
see, for example,
R.
    v. Cote
(1992),

6 O.R. (3d) 667 (C.A.);
R. v. Latour
(1997), 34
    O.R. (3d) 150 (C.A.); and
R. v. George
(2004), 187 C.C.C. (3d) 289 (Ont.
    C.A.).
Factually, she says that an ASD never arrived during
    the 41 minutes the appellant was at the scene, which is clearly outside the
    time range of forthwith established by the jurisprudence.

[27]

The key statements in the authorities the appellant relies on
    have been cited many times.  They are, first, that where ... the demand is
    made by a police officer who is without an [ASD] and the unit does not, in
    fact, arrive for a half hour, the provisions of s. [254](2) will not be
    satisfied:
Grant
at p. 150.  Second, this court in
Cote
at p. 671
    held that, if the police officer is not in a position to require that a breath
    sample be provided by the accused before any realistic opportunity to consult
    counsel, then the officers demand is not a demand made under s. [254](2).

[28]

Indeed, these statements of law and their
    application are the foundation of this appeal.  Again, the appellant asserts
    that a valid demand only exists where the police are in a position to
    administer the ASD test forthwith.

[29]

I disagree with the appellants submissions.  As
    I will explain, I believe that her counsel misapprehends the authorities and
    the law that flows from them in terms of their application to the circumstances
    of her case.  The appellants position is unsustainable and I would dismiss her
    appeal.

Section 254 of the
Criminal
    Code

[30]

Before turning to the text of ss. 254(2) and (5), it will be
    useful to consider s. 254 as a whole.  The most recent examination of how s.
    254 operates is found in the Supreme Court of Canadas decision in
R. v.
    Woods,
[2005] 2 S.C.R. 205
.  In
Woods
,
    Fish J. restates the purpose of the legislation, examines some of the more
    significant authorities that have interpreted it, and provides guidance on how
    any analysis of these provisions should be undertaken.

[31]

At paras. 30 and 31, Fish J. observes that in s. 254, Parliament
    created a two-step detection and enforcement procedure that necessarily
    interferes with rights and freedoms guaranteed by the
Charter
, but only
    in a manner that is reasonably necessary to protect the publics interest in
    keeping impaired drivers off the road.  First, s. 254(2) authorizes peace
    officers, on reasonable suspicion of alcohol consumption, to require drivers to
    provide breath samples for testing on an ASD. These screening tests, at or near
    the roadside, determine whether more conclusive testing is warranted.

[32]

Second, s. 254(3) allows peace officers who have the requisite
    reasonable and probable grounds to demand breath samples for a more conclusive
    breathalyzer analysis.  And as Fish J. notes, breathalyzers determine
    precisely the alcohol concentration in a persons blood and thus permit peace
    officers to ascertain whether the alcohol level of the detained driver exceeds
    the limit prescribed by law.

[33]

The breathalyser results then provide the police with the
    evidence to charge the motorist with driving offences such as s. 253(b)
    operating a motor vehicle with more alcohol in ones blood than the law permits.

[34]

The admissibility of breathalyzer results evidence depends on
    whether the police first had reasonable and probable grounds to make the
    breathalyzer demand.  In cases such as those in the majority of the
    authorities relied on by the appellant, the only evidence of reasonable
    and probable grounds for the breathalyzer demand is the ASD results obtained by
    the police.

[35]

There are two ways in which an ASD breath sample can be legally
    obtained: (i) by way of a valid demand under s. 254(2); and (ii) voluntarily.
    Finally, and directly related to the instant appeal, s. 254(5) provides that [e]veryone
    commits an offence who, without reasonable excuse, fails or refuses to comply
    with a demand made under this section.

[36]

Fish J. notes at para. 13 that forthwith means immediately or
    without delay and affirms, at paras. 33-36, the correctness of the statements
    from
Grant
and
Cote
set out above.

[37]

The forthwith requirement in
    s. 254(2), Fish J. reminds us, is what allows for its constitutional
    integrity.  If it were not for the immediacy requirement, s. 254(2) would
    violate ss. 8, 9 and 10 of the
Charter
.  He goes on to say  and I
    think it is of some significance  that the forthwith requirement is a corollary
    of the fact that there is no opportunity for contact with counsel prior to
    compliance with the ASD demand.  Further, both the police demand and the
    drivers response must be forthwith or immediate; the requirement is for a
    prompt demand by the peace officer, and an immediate response by the person to
    whom that demand is addressed:
Woods
at para. 44.

The text of ss. 254(2) and (5)

[38]

The argument advanced by the appellant, that in
    order for the demand to be valid there must be evidence that an ASD could be
    available forthwith, must come either from the text of ss. 254(2) or (5) or
    the cases that have considered them.  I start by examining the text of the
    provisions and the policy rationale for them, without incorporating  for the
    moment  constitutional considerations.

[39]

The relevant part of s. 254(2) reads:

If a peace officer has reasonable grounds to suspect
        that a person has alcohol ... in their body and that the person has, within the
        preceding three hours, operated a motor vehicle ...
the police officer may,
          by demand, require the person
...

(b)
to provide forthwith a sample of breath
that, in the peace officers opinion, will enable a proper analysis to be made
        by means of an approved screening device and, if necessary, to accompany the
        peace officer for that purpose.  [Emphasis added.]

[40]

Section 254(5) creates an offence in these terms:

Everyone commits an offence who, without reasonable
    excuse, fails or refuses to comply with the demand made under this section.

[41]

The meaning to be given to s. 254(5) must be informed by its
    purpose.  The section criminalizes a refusal to provide potentially
    incriminating evidence.  In doing so, it provides the police with a powerful
    tool in their efforts to curtail, investigate and prosecute drinking and
    driving related offences.  The deaths and substantial societal costs associated
    with drinking and driving fully justify the existence of this extraordinary
    criminal offence.

[42]

The conduct criminalized by s. 254(2) consists of a proper s.
    254(2) demand and an unequivocal refusal to comply with that demand.  The offence
    is completed when the refusal is given:
R. v. Woods
, [2005] 2 S.C.R. 205
    at paras. 40-42.  There is nothing in the language of s. 254(2) that would
    require the Crown to prove that had the driver not refused to provide the
    sample, the demanding police officer could have complied with his or her
    obligation to take the sample forthwith.  Nor can I understand why, as a
    matter of criminal law policy, a driver who has unequivocally refused to
    forthwith provide a breath sample should escape criminal responsibility for
    that refusal based on events subsequent and totally unrelated to the refusal.
    How is the culpability of the person who refuses to comply with a demand reduced
    because, as events may have developed, the officer may not have been able to
    take the sample forthwith?

[43]

I read the text itself of s. 254(5) as requiring the Crown to
    prove the following constituent elements of the offence:

1.      The preconditions set out in s. 254(2);

2.
         A demand that the individual provide forthwith a sample of breath;

3.
         The individual of whom the demand was made understood the demand;

4.
         The individual refused to comply with that demand; and

5.      The
    individual did not have a reasonable excuse for failing to comply with the
    demand.

[44]

I note that points 1 and 5 are not at issue on this appeal.  Neither
    can it be suggested that the appellant did not understand the demand being made
    or that the refusals were in any way conditional.  The police officer made the
    demand in the exact language of the section saying to the appellant:

I demand that you provide a sample of your breath
    directly into an approved screening device forthwith ...

[45]

The appellant immediately, unequivocally and three times refused
    to provide the demanded sample even when told of the potential penal consequences.
    The appellants immediate refusal implies that she clearly understood that she
    was being required to provide the sample then and there.  There was no
    cross-examination of the officer on the meaning of the demand as that issue did
    not develop until the first level of appeal.

Forthwith: The cases

[46]

Having outlined the text and purpose of the
    relevant provisions, I turn to the substance of this appeal: What does
    forthwith mean or require, and what are the principles regarding the
    forthwith period that flow from the cases, particularly from the statements
    above from
Grant
and
Cote
?  The forthwith period is the time in
    which
Charter
rights are justifiably infringed, i.e. the time in which a
    detained person can be required to comply with an ASD demand and the time in
    which a persons response to that demand  be it blowing and registering a
    Fail, or be it refusing or failing to blow   can incur criminal liability that
    is unaffected by the
Charter
.

[47]

As I mentioned above,
Woods
reminds us that
    what would otherwise be an impermissible violation of
Charter
rights is
    rendered justifiable because of the forthwith requirement.  In
Grant
,
    the refusal itself came 30 minutes after the demand was made; in
Cote
the refusal came 14 minutes after, where there had clearly been time for the
    driver to contact counsel.  These refusals were not made within the forthwith
    period; that is, at the time each refusal was made, the corresponding demand
    was no longer a valid one, and therefore there was no obligation to comply.

[48]

In these cases, the question to be decided was:
    were the police in a position to receive into an ASD the breath sample the
    suspect was prepared to provide  or had not refused to provide  during the
    period of time that no realistic opportunity to consult counsel existed, i.e.
    forthwith.

[49]

Grant
and
Cote
shed light on the interaction
    between the right to counsel protected by s. 10(b) of the
Charter
and
    cases involving an outright refusal to provide a sample.  The right to counsel
    is triggered upon detention at the roadside.  That right is, however,
    effectively suspended by operation of s. 1 of the
Charter
for the time
    period captured by the requirement that the sample be taken forthwith.  If
    the demand is made and the sample provided within the forthwith window of time,
    the
Charter
is not breached.  If, however, the forthwith window expires,
    then the taking of a sample without first providing the detainee an opportunity
    to contact counsel is an infringement of s. 10(b) that cannot be saved by s. 1.

[50]

The analysis in refusal cases should be the same.  If the demand
    is otherwise proper and the outright refusal occurs during the forthwith
    timeframe, the accuseds 10(b) rights are not engaged and cannot affect the
    accuseds liability under s. 254(5).  In
Cote
and
Grant
, the
    refusals were made outside of the forthwith timeframe and consequently did
    engage
Charter
rights.  In this case, the appellants outright refusal
    followed immediately after the demand and within the forthwith timeframe.

[51]

To emphasize, there is a clear factual difference
    between
Grant
and
Cote
on the one hand, and our case on the other
    hand, that affects how the statements in those cases apply here.  In those
    cases, the refusals did not immediately follow the demand; instead, the drivers
    refused only when presented with the ASD.

[52]

Instead of supporting the submission of the
    appellant  that a demand is not a 254(2) demand unless the officer is in a
    position to administer the test forthwith
Cote
and
Grant
hold
    that a refusal at a time when the sample could no longer be taken forthwith
    is not a refusal to comply with a s. 254(2) demand.

[53]

There is a well-established line of authority holding that where
    an accused is charged with refusing to provide a sample, the Crown does not
    have to prove that the sample could in fact have been taken in accordance with
    the provisions of the
Criminal Code
to secure a conviction on a charge
    of refusing to comply with the demand: see
R. v. Lemieux
(1990), 41
    O.A.C. 326 (C.A.);
R. v. McCauley
(1997), 161 N.S.R. (2d) 154 (C.A.);
R.
    v. Wilson
(1999), 121 B.C.A.C. 111 (C.A.).

[54]

There is no requirement that a police officer have
    a reasonable belief that he or she could make the demand good at the time it
    is made:
Latour
at paras. 30-33.  Contrary to the submissions of the
    appellant, neither is there a requirement for the Crown to prove that the
    police
could have made
the demand good (i.e. that an ASD would have been
    available) within the forthwith period.  Such a requirement is not apparent
    from the text or purpose of the provision; neither can it be necessitated by
Charter
considerations, because during the forthwith period any such considerations
    are validly suspended under s. 1.

[55]

I turn now to this courts reasons in
Danychuk
.  While at
    first glance they appear to partially support the appellants submission, I
    will explain how they are entirely consistent with what I have set out above.

[56]

In
Danychuk
, the police officer demanded a sample
    forthwith from the driver of the vehicle.  The driver refused to provide the
    sample and was charged with refusing to provide a sample.  When the officer
    made the demand, the ASD was beside the police officer on the front seat of the
    vehicle.  The officer had not, however, tested the device and he did not
    present the device to the driver and explain the purpose of the test.  The
    trial judge convicted on the charge of refusing to provide the sample.  The
    Summary Conviction Appeal Court Judge quashed the conviction, holding that the
    Crown was obligated to prove that the device was not only present at the scene,
    but ready to be used and that the officer making the demand had presented the
    device to the driver and explained its purpose.

[57]

This court restored the conviction.  In doing so, Blair J.A.
    described the nature of the offence created by s. 254(5), at para. 22:

In
Lemieux
,
supra
, at 328 O.A.C., the
        court agreed with the Crowns submission that the gravamen of the offence
        under s. 254(2) and (5) of the
Criminal Code
is failure or refusal to
        comply with the demand of a peace officer:  see also
McCauley
,
supra
.
It is the failure or refusal to comply with the demand to provide the breath
          sample that is at the core of the infraction, not the failure or refusal to
          provide the breath sample forthwith.  The word forthwith in subsection
          254(2) does not define the substance of the offence.  Rather, it imposes on the
          person to whom the demand is made an obligation to comply in a timely fashion,
          and on the authorities an obligation to conduct the test in a timely fashion
          once the request is honoured in order that the detainees right to counsel
          under s. 10(b) of the
Charter
are minimally impaired.
[Emphasis
        added.]

[58]

I agree entirely with the language quoted above.  On that view of
    the offence created by s. 254(2), the police officers ability to actually take
    the sample in accordance with the demand is not relevant to culpability on a
    charge of refusing to provide the sample.

[59]

The subsequent observations of Blair J.A. at paras. 26 and 27
    can, however, be read as supporting the appellants position on this appeal:

A timely demand is validly made pursuant to
        subsection 254(2), in my opinion, where (a) the individual to whom the demand
        is made has been operating a motor vehicle, or has care or control of that
        vehicle, (b) the peace officer who makes the demand reasonably suspects that
        the individual to whom the demand is being made has alcohol in his or her body,
        and (c)
the police officer is ultimately in a position to require that the
          breath sample be provided before there is any realistic opportunity to consult
          counsel.
Where, as here, there has been an outright refusal to provide a
        breath sample, it is not a prerequisite to such a demand that the Crown
        establish the approved screening device was present at the scene, tested and
        ready to accept a sample, or that the police officer presented the device to
        the driver and explained the purpose of the test and the consequences of a
        failure to provide a sample.

On the facts of this case the trial judge found
        that the screening device was available forthwith for Mr. Danychuk to provide a
        sample of his breath into it.
[Emphasis added.]

[60]

Read alongside the earlier description of the nature of the
    offence of refusing to blow provided in para. 22, I do not think the
    above-quoted passage was intended to make the officers ultimate ability to
    administer the test in compliance with s. 254(5) an element of the offence of
    refusing to blow.  I think the passage responds to the specific arguments made
    in
Danychuk
.  As described above, the trial judge had found that the
    police officer had an ASD immediately available and could have taken the sample
    forthwith.  The Summary Conviction Appeal Court Judge would have required the
    officer to go much further than that to secure a conviction on the refusal
    charge.  In paras. 26 and 27 of his reasons, Blair J.A. holds that the trial
    judges findings justified the conviction.  I do not think he declares that all
    of the trial judges findings were essential to the conviction.

[61]

In my view, the question of whether the Crown has to lead
    evidence that a sample could be taken forthwith to secure a conviction on a
    refusal charge was not before this court in
Danychuk
.
Danychuk
decided that evidence that the sample could have been taken forthwith was
    certainly sufficient to support a conviction under s. 254(5) and rejected the
    additional requirements favoured by the Summary Conviction Appeal Court Judge.
    The description of the offence created by s. 254(5) in
Danychuk
certainly suggests that evidence that the test could in fact be administered
    forthwith is not an element of that offence.

[62]

I should also address two other cases relied on by counsel for
    the appellant:
R. v. Roy
, [1994] O.J. No. 1127 (Gen. Div.), leave to
    appeal refused, [1995] O.J. No. 1192 (C.A.) and
R. v. Matar
, [1999] O.J.
    No. 4224 (S.C.).  In both cases, Summary Conviction Appeal Court Judges held
    that a person could only be convicted of refusing to provide a sample if at the
    time of the refusal the device was at the scene and available to be used for
    the taking of the sample.  Both cases predate
Danychuk
.
Matar
was referred to in
Danychuk
at para. 18.  The analysis in
Danychuk
,
    at paras. 19-25, is a clear rejection of the holding in
Matar
.

[63]

In
Roy
, the Superior Court justice appears to have
    interpreted the
Criminal Code
provision as requiring that the ASD be
    available in order to avoid what the judge referred to as the chaos that
    would occur if the demand could be made absent the immediate availability of
    the device.  He said, at para. 14:

One can easily speculate as to the chaos which would
        develop if police officers could demand a breath sample, even though they do
        not have [an] A.L.E.R.T. machine available to them.  If the driver refuses, he
        is automatically convicted for refusing, and if he agrees he may never have to
        take the test.

[64]

I cannot see the chaos envisioned in
Roy
.  Nor do I see
    anything inherently unfair in either result contemplated in the passage quoted
    from
Roy
.
[3]
I would hold that
Roy
and
Matar
[4]
are wrongly decided.

[65]

The offence created by s. 254(2) is complete upon the refusal.
    In the face of such a refusal, the police are not obliged to carry on as if
    there had been no refusal and the court is not obliged to speculate as to what
    might have happened had the police officer carried on.  The offence is complete
    upon proof that the preconditions to the demand in s. 254(2) existed, the
    officer demanded a sample forthwith, and the appellant unequivocally refused,
    without any reasonable excuse, to provide that sample.

[66]

The appellant argues that if her position is rejected, an
    improper result could occur where a police officer who does not have an ASD makes
    a demand under s. 254(2) and calls for one to be brought to the scene, and then
    an outright refusal ensues: the officer could then cancel the request for an
    ASD and the accused would be charged and convicted under s. 254(5).  I must
    admit I do not see the police conduct post refusal as relevant to culpability
    absent abuse of process concerns, and assuming the demand was valid  if it is
    indeed an outright refusal.  The refusal ends the inquiry for the purposes of
    s. 254(5).

Conclusion: our case

[67]

From the authorities relied on in this case, there are two
    scenarios that are contemplated involving ss. 254(2) and (5).  The first is a
    demand and the legitimacy of the process thereafter of the motorists providing
    self-incriminating evidence of an offence; the second is a demand and a refusal
    or failure to comply.

[68]

In the first scenario, both the police demand and the drivers
    compliance must be accomplished forthwith or immediately.  That is to say,
    the police officer must be able to receive the breath sample, which the person
    has agreed to provide or has not refused to provide, before there is any
    realistic opportunity for the detained person to consult counsel.

[69]

In the second scenario, where there has been an
    outright refusal to provide a breath sample, the offence is made out if the
    demand was properly made.  The Crown is not required to establish that the ASD
    was present at the scene, or that it could have been present at the scene
    within the forthwith period.

[70]

The appellants immediate response of, Yes, but I am not blowing
    into anything on three occasions after demands made by P.C. Fielding are clear
    and they amount to outright refusals.  The appellants case is undeniably
    within the second scenario.  And as this court has established in
Danychuk
,
    her appeal must fail.

DISPOSITION

[71]

For these reasons, I find that after the appellant had
    categorically refused to provide a breath sample, the police were not required
    to continue with the process of locating or deploying an ASD to the scene.  The
    summary conviction appeal judge was correct in dismissing the appellants
    appeal from her conviction of the offence of refusing to provide a breath
    sample pursuant to s. 254(5) of the
Criminal Code
.  Accordingly, I would
    dismiss the appeal.

RELEASED:

JUL 20 2011                                             H.S.
    LaForme J.A.

DD                                                              I
    agree  Doherty J.A.

I
    agree G. Epstein J.A.

[1]
A contentious point at trial was whether P.C. Fielding said that she would be
    charged or said that she would be arrested.   The trial judge found that he
    said she would be charged.  He noted in his reasons that this was wrong  if
    she failed it would be premature to charge her; instead, she would be taken to
    the station for a breathalyser.

[2]
On July 2, 2008, s. 254(2) was amended to s. 254(2)(b) of the
Criminal Code
.
    The wording used by the Summary Conviction Appeal Judge was based on the
    amended version.

[3]
I am not referring to cases where an officer makes a demand never intending to
    actually take a sample, but hoping that the driver will refuse so that he can
    charge the driver with refusing to provide a sample.  That case, should it ever
    occur, would raise significant abuse of process concerns.

[4]
In
Matar
, the Summary Conviction Appeal Court Judge suggests the
    procedure that should be followed by the police in cases where a roadside
    demand is made.  In coming to the conclusion that
Matar
is wrongly
    decided in law, I do not intend any comment on the manner in which
Matar
suggests the police should proceed.