Now or Never

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Just after midnight in late October 2014 police came across Pociurko standing about 3 metres from his motor vehicle which had obviously just been in an accident. Mrs Pociurko and the couple’s child were also on scene and standing some 10-15meters from the car.

When police spoke with Pociurko he admitted to drinking but denied driving. Mrs Pociurko gave lots of different answers to the question of who was driving. Sometimes she said she was driving, other times her husband, sometimes she said both were driving. Finally she asserted that the accident was as a result of a mechanical failure. None of these versions had any impact on the officer’s legally authority to demand a sample of Pociurko’s breath.

The officer made just such a breath demand of Pociurko who asserted that because he was not the driver he would not blow. The officer let Pociurko know the consequence for refusing to provide a sample. Pociurko again refused and pulled out his cell phone. He told the officer he was calling his lawyer. The officer took the cell phone and placed Pociurko under arrest.

He was convicted at trial of refusing to provide a breath sample. He appealed, unsuccessfully: 2016 ONSC 6691

On appeal Pociurko argued that his refusal was equivocal because he was confused about his obligations. He further argued that his confusion and equivocation was apparent as he was trying to call his lawyer when he was so rudely interrupted by the police. The summary conviction appeal judge disagreed.

Richetti J held that the evidence did not support the defence assertion of confusion. In fact, to the contrary Richetti J found that there was “no confusion about the demand for a breath sample and there was no confusion about Mr Pociurko’s refusal to provide it promptly.” [@24]

Moreover, there is no obligation on police to explain the law. In other words, police did not have to explain to Pociurko that neither his claim of not being the driver nor his desire to speak with a lawyer were reasonable excuses for refusing . The summary conviction appeal judge gave short shrift to the defence assertion that such an obligation exists, instead finding that:

Mr. Pociurko took it upon himself to refuse to do so based on a basis which is not a reasonable excuse for the refusal. Essentially, he now blames the police officer for not explaining the law in much greater detail [@25]

In short, any version of ‘maybe I will later’ in response to a breath demand “constitutes a refusal since it is not providing a breath sample promptly” [@21]

LT

New & Notable: When is a Refusal Really a Refusal

In the recent case of R v Degiorgio, 2011 ONCA 527 the Ontario Court of Appeal upheld the conviction as found by Justice David Cole. In doing so, the court shed some light on when a refusal is really just that, a refusal.

At 7:32 am a passerby noticed that there was a female slumped over the steering wheel of a car which was running and parked in front of driveway; the passerby alerted the police and officer Fielding attended. Upon arrival the officer found Tammy Degiorgio in the driver’s seat of the vehicle alert; upon speaking with the appellant the officer noted glassy eyes and a strong odour of alcoholic beverage coming from the area of her mouth [para 4].

The appellant denied have consumed any alcohol that day but was confused about where she was [para 5]. At 7:39 am Officer Fielding concluded he had a reasonable suspicion that the appellant had alcohol in her body and made a demand under section 254(2). The appellant responded, indicating she understood but that she was “not blowing into anything” [paras 6-7]. The officer asked the appellant if she understood and she again indicated she did and again indicated that she was “not blowing into anything” [para 7]. After advising the appellant of the circumstances of failing to provide a sample the officer again made the demand and a third time the appellant indicated she understood and was “not blowing into anything” [para 9]. The appellant was then arrested for refusal.

At trial the central issue became whether or not the Crown had to prove that sample could have been obtained “forthwith”. The trial judge convicted the appellant and an appeal was launched, ultimately reaching the Court of Appeal.

LaForme JA, on behalf of a unanimous court began by noting that the trial judge did not make any findings surrounding the issue of the unavailability of the ASD, however, the evidentiary record “supports a finding that an ASD was never available at the scene” [para 15]. The appellant argued, LaForme JA noted, that a section 254(2) demand is not valid where there is no evidence that an ASD could be available “forthwith” [para 22].

Turning to consider this position, LaForme JA noted that the appellant clearly understood the demand yet “immediately” and “unequivocally” refused on three occasions to provide a sample [para 45]. LaForme JA held that if the “demand is otherwise proper and the outright refusal occurs during the ‘forthwith’ timeframe, the accused’s 10(b) rights are not engaged and cannot affect the accused’s liability under s. 254(5)” [para 50]. In so holding, LaForme JA noted a distinction between the present case and R v Grant, 1991 CanLII 38 (SCC) and R v Cote, 1992 CanLII 2778 (SCC) as in those cases the “refusals did not immediately follow the demand; instead, the drivers refused only when presented with the ASD” [para 51].

Put simply, LaForme JA held that there is no requirement that an officer have a “reasonable belief that he or she could ‘make the demand good’ at the time it is made” nor is the Crown required to prove same where the refusal is immediate and unequivocal [para 54].

DG Mack