A Sudbury driver who told police ‘no thanks’ and rolled up his window when asked to provide a breath sample had to be restrained by four officers when he was pulled out of his vehicle.
As a result, Mark Baskcomb has been found guilty of impaired driving and refusing a breath sample. Baskcomb, 29, was fined $2,250 and issued a one-year licence suspension.
“Under the present circumstances, I have already made a finding that Mr. Baskcomb did commit an offence by not stopping at a red light,” Ontario Court Justice Pierre Bradley said in his ruling. “I have also made a finding that while Cst. (John) Coluzzi conversed with Mr. Baskcomb, Cst. Coluzzi noted an odour of alcohol emanating from the defendant’s breath. I accept Cst. Coluzzi’s evidence that upon asking the defendant for his ownership, he noticed the defendant fumbling with the ownership of the vehicle.
“Upon making the ASD (approved screening device) demand, I have also accepted Cst. Coluzzi’s evidence that the defendant’s behaviour changed from being calm and co-operative to having a ‘resistant’ behaviour. The defendant continually obstructed the police investigation by not following Cst. Coluzzi’s simple instructions to turn off the engine, to stop rolling up the driver’s side window and to get out of his vehicle.
“By examining the totality of the evidence, I am satisfied that Cst. Coluzzi subjectively and objectively had reasonable and probable grounds to believe that the accused’s ability to drive was impaired by alcohol consumption. The evidence relevant to impairment to drive was neither frail nor wanting. As a result, the Crown has proven beyond a reasonable doubt all of the said essential elements of the offence which would indicate the defendant’s ability to operate a motor vehicle was impaired by alcohol at the material time.”
Bradley, however, also found Baskcomb not guilty of resisting arrest.
“It was obvious that the defendant was obstructing the investigation, yet during this interaction, Mr. Baskcomb could have been confused as to whether or not he was actually detained or under arrest at the time that he was resisting with the police by not following their directions and getting out of the vehicle,” ruled the judge. “As a result, Mr. Baskcomb’s unco-operative behaviour cannot be looked upon as resisting arrest under the circumstances. The Crown has not proven all of the essential elements of the offence in question and for this reason I find the defendant not guilty of the said charge.”
In his 11-page decision, Bradley also dismissed a number of Canadian Charter of Rights and Freedoms challenges defence lawyer Berk Keaney filed. They related to issues such as access to a lawyer without delay and having counsel of choice.
Coluzzi testified he saw a vehicle going through two highway traffic red lights near the intersection of Lorne and Regent streets about 2:40 a.m. Dec. 3, 2016.
After stopping the vehicle, Coluzzi asked the driver – Baskcomb – how much alcohol he had consumed and the reply was “not much.”
When Coluzzi asked “what’s not much?”, Baskcomb replied “zero.”
Later, Baskcomb told Coluzzi had had consumed one beer.
When Coluzzi asked for a breath sample for a roadside test, Baskcomb refused and asked that he be permitted to make a call. Coluzzi told Baskcomb he could not do so at the moment and that if he was arrested, he could make such a call. Coluzzi explained the consequences of refusing to provide a breath sample, but Baskcomb was of the opinion that the officer was mistaken and that he had the right to make such a call.
A short time later, Baskcomb became defiant, started to repeat that “if he was under arrest” and began to roll up the driver’s side window. Baskcomb did not comply with a request by Coluzzi to stop rolling up the window, turn off the engine and to get out of the vehicle.
Coluzzi, with the assistance of three other officers, removed Baskcomb from the vehicle, put him on his stomach on the ground and handcuffed him.
At Greater Sudbury Police headquarters, Baskcomb became agitated and started to yell at everyone when asked to take off his jacket. Baskcomb had to be physically restrained again.
Baskcomb did not provide an Intoxilyzer sample for police.
Another officer then assisted Baskcomb with obtaining counsel.
After Baskcomb was able to talk to a second lawyer (Keaney was his first choice, but he was unavailable), and about one hour later, Baskcomb apologized for his behaviour and was released from custody.
Source: The Sudbury Star