On July 15, a RIDE program was set up in the Sheppard/Keele area of Toronto.
The drinking and driving operation had moved to Keele Street south of Steeles when a vehicle driven by the accused approached the area manned by Police Constable Conlan of the Toronto Police Service.
Police Constable Conlan asked the usual question about alcohol consumption that evening and the accused replied “not really” which aroused the officer’s suspicion. The officer questioned the driver further and detected an odour of alcohol coming from the vehicle.
A roadside breathalyzer demand for a breath test was made to the driver, the accused before the court.
The accused was asked to leave his vehicle and walk towards the police car. Officer Conlan observed that the accused did not appear to have any difficulty walking to the police car.
The police officer instructed Mr. M on how to blow into the Approved Screening Device and demonstrated by doing a self test on the roadside breathalyzer. He told the accused to take a deep breath as if he was blowing up a balloon. Police Constable Conlan is shown on a video played for the court making the following statements to Mr. M.
“Take one long breath, take a deep breath, and one long breath. You can’t stop blowing. It has to be continuous breath. You’re stopping. Are you putting your tongue on it or something? Do not obstruct with your tongue. Blow as hard as you can. It’s easy to do. If you don’t blow for me it’s the same as refusing to blow. Blow, blow, blow, you’re stopping. Just relax, take a deep breath. When you hear the tone it means that you’re not blowing into it anymore.”
Police Constable Conlan observed that the accused’s cheeks were blown up “like he was restricting the air. It was as if he was containing all his breath in his mouth”. At 1:02:42 Police Constable Conlan spoke to Sgt. George who was also part of the RIDE operation and told him what was happening, and that the accused was not providing a breath test.
Police Constable Conlan is then heard on the video saying, “you’re blowing at first, but you’re sealing with your tongue or something. We tried five times for you to do the test. Okay, I’ll get you a new one and we will try once more”, referring to a new mouthpiece. “Do you want to stand up, would that be better? If you don’t provide a sample of your breath you will be charged with refusing to provide a breath test. The penalty for refuse breath test is the same as if you fail the test”.
The police officer is heard saying “we want you to pass”. Mr. M at one point says, “I’m trying my best here. I’m going to pass. Let me try again”. Police Constable Conlan continues, … “you’re blowing and you’re stopping. You can talk. It doesn’t take a lot of air for this machine to work.
The encouragement continues and Mr. M is heard stating “that’s as far as I can go. When I blow that’s it”. He is asked “what’s wrong with you sir”? He replies, “I’m a diabetic and I have a problem with sleep apnea”.
The officer replies “You’re not providing a sufficient sample of breath, it’s not hard to do. You just have to blow until I tell you to stop. The last couple of of tries you were close. Blow, blow, blow, blow, blow, no you stopped. Try it again. You’re going to have to provide a sample here or you’re going to be charged with refusing the test. We’re trying to give you as many chances as we can. This must be chance #9.
Police Constable Conlan told the accused that he should not be able to stand, walk or talk if he could not blow for three seconds. Finally an exasperated Police Constable Conlan indicated that there had been eleven tries and that he was going to charge Mr. M with fail to provide a sample.
As it turned out even though Police Constable Conlan indicated on the video that Mr. M had been given eleven opportunities the actual number was sixteen.
During his testimony, Police Constable Conlan indicated that Mr. M did not show any signs of impairment. He recalled having asked the accused to blow through the first mouthpiece tip before it was taken off and he was able to blow through it and it was clear. On cross examination he recalled that on at least five attempts the accused stated “I’m trying my best”. Officer Conlan told the court that if he had believed that the accused was really trying he would not have arrested him for failing to provide a sample.
The accused is a 51 year old gentleman who lists his height at 5’ 5” and weight at 230 lbs. He testified that his job requires a certain amount of bending and lifting. He stated that he puffed his cheeks up to get more air to go into the machine. He told the court that he was trying to cooperate with the police even though he felt that he should not have to do the test.