R. v. Tikhonov 2014 ONCJ 347 – just after 3:00 a.m. on July 29, 2013, a police officer in a marked OPP cruiser observed a vehicle weaving in its lane and straddling the left and right sides of the lane on the 401 highway westbound at Keele Street. The vehicle was stopped by the officer and in the course of communications at the roadside, the officer detected an odour of alcohol on the breath of the defendant and after further investigation, he formed the grounds for a demand for an A.S.D. breath sample. Subsequently, the defendant accompanied the officer to the cruiser and was placed in the locked back seat area and the A.S.D. procedure was explained and administered through a sliding window in the barrier between the front and back seats. In the officer’s opinion, the defendant failed to comply with the demand for a breath sample.
The entire A.S.D. administration took place in the space of five minutes between 3:12 a.m. and 3:17 a.m., at which time the defendant was arrested. The officer testified that he first self-tested the A.S.D. instrument and obtained a reading of zero, satisfying himself that the device was working properly. He then demonstrated the operation of the device for the defendant by blowing into it and explaining what the defendant was expected to do. Over the course of five minutes, he provided the defendant with six opportunities to produce a suitable sample, but at no time did he obtain a reading on the device. He was asked what he observed during the first opportunity and he testified that the defendant was putting his tongue on the mouthpiece resulting in the absence of a tone and an unsuccessful attempt. On the second attempt, the officer gave evidence that the defendant was still not blowing as there was no audible tone produced. He then had the defendant blow through the mouthpiece to ensure that it was not obstructed in any way. He stated he demonstrated the proper way to produce a suitable sample and warned him that he faced a criminal charge if he failed to provide a breath sample.
The officer testified that an individual would have to blow into the device for five seconds to obtain a reading. He stated that on the third and fifth attempts, he heard an audible tone for about two seconds, but the defendant did not blow long enough to produce a suitable sample. On the fourth and sixth attempts, there was no audible tone, and in the officer’s opinion the defendant was still not blowing long enough. The officer reported that the defendant said to him: “Please, I need to work, I have a family.” Later the defendant said: “Please give me a ticket and follow me off the highway. I need my car for work.” The officer stated that the defendant seemed very nervous about providing a sample. After his arrest and a recitation of his rights to counsel, the defendant was released at the scene on an appearance notice and he was transported from the side of the highway in the front seat of the tow truck that had been ordered for the removal of his vehicle.
In cross-examination, the officer stated that his only training on the Draeger Alcotest 7410 instrument was at the police college before he began working for Toronto Police Services in 2006. He gave evidence it was his understanding that the instrument had to be calibrated every seven days. He agreed that the calibration date on the device was outside of the seven-day range and that he would not have used that device if he had realized it had not been calibrated within the previous seven days. He testified he was not sure of the meaning of the various “error messages” that could be received while using the device. He was not able to say whether he checked to see that the green light was on meaning that the device was ready to accept a sample before each opportunity to blow into the instrument although he said that it was his practice to do so. The officer agreed that he noted that the defendant had been given 10 opportunities to provide a sample in the synopsis he prepared for the Crown brief. He stated that this was a mistake and that he had been given 6 opportunities. The officer agreed that he was giving an opinion about the defendant’s tongue blocking the mouthpiece: that was not something that he had actually observed. He agreed he warned the defendant that if he failed to provide a sample the consequences “would be the same as impaired driving.” He agreed that was all he said about the consequences of a failure to provide a sample. In contradiction to the latter statement, the officer later testified that even though there was no reference in his notes, he always explained the warning for failure to provide a sample by “explaining the charge, the 90 day suspension and the seven-day vehicle impoundment.” The officer was then asked why he did not offer a final opportunity to provide a breath sample and he stated: “He already had six attempts in five minutes.” “I didn’t want to stay on the side of the highway to continue to give him opportunities.” “It was dangerous.”
The Honourable Justice Peter A. J. Harris said there are at least four Ontario Superior Court decisions (all summary conviction appeals) that have adjudicated on the particular state of mind to be proven by the Crown on the s. 254(5) offence. Two decisions have concluded that the mental element enacted in s. 254(5) is knowledge or awareness of the prohibited act: see R. v. Porter  O.J. No. 2841 (Ont. S.C.J.); R. v. Pletsas  O.J. No. 1136 (Ont. S.C.J.) while two decisions have held that Crown must prove that the defendant intended to produce that failure: R. v. Campbell  O.J. No. 47, 2008 CanLII 203 (Ont. S.C.J.); R. v. Stanley  O.J. No. 2076, 42 M.V.R. (4th) 95 (Ont. S.C.J.).
Justice Harris said there is no definitive jurisprudential rule as to when the mens rea element of a Criminal Code offence is relegated to “knowledge” as opposed to “intention” and he determined that the Crown must prove that the defendant intended to produce the failure to provide a suitable breath sample, following R. v. Campbell, R. v. Stanley, supra. Justice Harris said Mr. Tikhonov gave his evidence thoughtfully and in a forthright and straightforward manner. Essentially, he testified that he thought he did what he was asked to do. He gave evidence he tried to blow into the machine, and stated: “then I tried to blow harder. I didn’t try to fake it.” Mr. Tikhonov’s evidence was not shaken or seriously impugned in any way in cross-examination according to the justice.
The justice was apprehensive about whether the device was in good working order and operated properly in accordance with the evidentiary requirements in fail to provide breath sample cases: see R. v. Danychuk  O.J. 615 (Ont.C.A.).
(1) The officer’s only training on the device was at the police college before he joined the force, some 7 years before his contact with the defendant. (2) The officer testified that he would not have used the A.S.D. if he had known the calibration was out of date; (3) The officer was not familiar with the error message codes and did not know whether he made sure the green “ready” light was displayed before every test (although it was his practice to do so); (4) The officer did not seem confident about how long an individual would have to “blow” to obtain a reading and had not timed the defendant’s efforts and could only hazard a guess as to how long he heard the tone on two occasions (about 2 seconds). Like all disputed police/civilian interaction, a video depiction of the entire A.S.D. administration process would have greatly assisted in the determination of these issues.
While the justice found that the officer was generally credible, there were a few nagging concerns about his administration of the A.S.D. testing. When asked what he observed, he stated that the defendant was putting his tongue on the mouthpiece – an assertion he later admitted was just an assumption. Secondly, the justice was troubled about whether the consequences of failure were adequately explained and without any police notebook entries on this subject, the justice said he had no ability to assess the officer’s evidence. Thirdly, the brevity of the testing process (5 minutes in duration) seemed to have been driven by extraneous considerations, such as the danger of remaining in a parked vehicle on the shoulder of the highway (“I didn’t want to stay on the side of the highway.” “It was dangerous.”). Fourthly, while not a statutory precondition, one additional factor considered by the justice was that there was no helpful pause in the opportunities to “blow” offered and a concluding well-documented “last chance” extended with a final warning about the consequences of a failure.
In the end, Justice Harris acquitted Tikhonov. The justice found that the Crown did not prove that Tikhonov intended to fail to provide a suitable breath sample. There were concerns with respect to the administration of the testing process. The officer might not have adequately explained the consequences of a failure. The brevity of the process seemed to be driven by extraneous considerations such as the danger of remaining in a parked vehicle on the shoulder of the highway. There was no “last chance”. The ASD might not have been in good working order and properly operated. The calibration was out of date, the officer was not familiar with the error codes, he did not know whether he made sure that the green “ready” light was displayed before every test, he was not confident as to how long someone would have to blow to obtain a reading, and he did not time Tikhonov’s efforts. Tikhonov’s evidence that he tried to provide a suitable breath sample was accepted by the justice.