R v Tomshak, 2016 ABQB 718

Court of Queen ’ s Bench of Alberta Citation: R v Tomshak, 2016 ABQB 718 Date: 20161219 Docket: 121480800S1 Registry: Calgary Between: Kerrie Ann Tomshak Appellant - and - Her Majesty the Queen Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M.

David Gates _______________________________________________________ Introduction and Overview [ 1 ] The Appellant, Kerrie Ann Tomshak, appeals from a conviction imposed by the Honourable Judge Dinkel on October 8, 2013, at Strathmore, Alberta, for refusing to provide a breath sample, contrary to s. 254(5) of the Criminal Code . She was subject to a fine of $1,000 and a one-year driving prohibition.

[ 2 ] The hearing of this appeal was originally set for April 30, 2015. At the request of counsel for both parties, I granted an adjournment to permit the Crown to consider a new issue raised by the Appellant. Before the new hearing date, both parties filed supplementary written memoranda. The hearing of this appeal ultimately took place on September 9, 2015. At the conclusion of oral argument, I reserved my decision. For the reasons that follow, the appeal is dismissed.

Facts [ 3 ] On November 4, 2012, at approximately 1:00 a.m., the Appellant was stopped on Highway 22X by Constable Fulton of the RCMP for speeding in a construction zone. She was the sole occupant of the vehicle. She told Constable Fulton that she was coming from a wedding and had consumed one glass of alcohol at 9 p.m. She later told him that she had consumed three glasses of wine.

Constable Fulton noted she had considerable difficulty getting her driver’s licence and vehicle documents from her purse when he asked her to produce them. [ 4 ] Given the Appellant’s admission of drinking, the fact that she was coming from a wedding, and her difficulty getting her driving documents, Constable Fulton demanded a breath sample into an approved screening device.

Specifically, the officer read the ASD card and told her: “[s]o I demand that you provide a sample to determine the concentration, if any, of alcohol in your blood.” He explained the demand in layman’s terms while holding in his hand a 400 D Intoximeter. Transcript, p. 12, l. 30-31. [ 5 ] The Appellant refused, asked repeatedly if “we really have to do this”, and mentioned that she had friends who were police officers in Chestermere. The Intoximeter timed out on two separate occasions while the Appellant debated on whether or not she should take the test.

At one point, she indicated that she needed to get home to her kids and strongly refused to comply with the demand. At another point, she indicated that she was going to blow over the legal limit anyway. Transcript, p. 10,1. 19-21; p. 15,1. 12-14. [ 6 ] The Appellant then rolled up the window of her vehicle and locked the door. Constable Fulton arrested her for failing to provide a breath sample, and called for backup.

He advised the Appellant through the closed window of her right to retain and instruct counsel without delay, and provided her with the standard police caution. [ 7 ] Constable Fulton made a second demand to provide a breath sample into the 400 D Intoximeter while the Appellant was seated in the back of the police vehicle. She refused again and continued saying “no, no, no”. Constable Fulton shut off the Intoximeter and told her again she was under arrest for refusal. According to Constable Fulton, the Appellant was asked to provide a breath sample on several occasions by himself and Constable White.

Transcript, 15, l. 31-33. [ 8 ] The Appellant was taken back to the police station, where Constable White gave her an opportunity to speak to counsel.

The Appellant was then released from custody and given a ride to her residence. [ 9 ] The Appellant was charged as follows: “on or about the fourth day of November, A.D. 2012, at or near Strathmore, in the Province of Alberta, without reasonable excuse did unlawfully refuse to comply with the demand made to her by a peace office to provide then, or as soon thereafter as was practicable, samples of her breath as were necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in her blood, contrary to section 254(5) of the Criminal Code ”. [ 10 ] The issue at trial was whether or not the Appellant unequivocally refused to provide a breath sample into an approved screening device, and whether she intended to refuse.

The Appellant conceded at trial that the demand had been lawfully made. [ 11 ] The Appellant did not give evidence at trial. She was represented by counsel throughout, who advanced a vigorous defence to the charge. [ 12 ] In finding the Appellant guilty, the trial judge found that the demand was lawful and that the Appellant refused the demand several times. He concluded that there was nothing equivocal in the Appellant’s numerous expressions of refusal. Grounds of Appeal [ 13 ] The Appellant raises two grounds of appeal.

The first ground of appeal is that she was convicted of an offence she was never charged with. The Appellant contends that the Crown decided to particularize in the information that she refused to comply with a demand under s. 254(3) of the Criminal Code . Since the demand was made under s. 254(2) (

b) of the Criminal Code , she could have not been found guilty. As a result, the trial judge erred in law in finding that the Crown had proven beyond a reasonable doubt the particulars as charged in the information. [ 14 ] The second ground of appeal concerns the validity of the officer’s demand for a breath sample. At trial, the Appellant conceded there were no issues with it, and is raising this argument for the first time on appeal. According to the Appellant, she is not bound by the concession made at trial because the issue of whether the officer’s demand was valid is a question of law.

The Appellant contends that this concession was an error made by trial counsel, and the trial judge had an obligation to ensure that the evidence established a valid demand. The Law Section 254(2) of the Criminal Code allows a peace officer to demand a breath sample by way of an approved screening device . The

relevant portions of this

section read as follows: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or drug in their body and that the person has, withinthe preceding three hours, operated a motor vehicle... or had the care or control of a motor vehicle….whether it was in motion or not, thepeace officer may, by demand, require the person to comply with (a), in the case of a drug, or with either or both of paragraphs (

a) and(b), in the case of alcohol: (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [15] Section 254(3) of the Criminal Code authorizes a peace officer to demand a breath sample for analysis by way of abreathalyzer instrument: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soonas practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood [16] Finally, s. 254(5) of the Criminal Code creates an offence of non-compliance with any demand made under

section 254: 254(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. Analysis 1) Did the Trial Judge Err in Finding that the Crown HadProved the Particulars in the Information? [17] It is clear that the Crown must prove beyond a reasonable doubt all of the essential elements of the offence as particularized oralleged in the charge. If the Crown does not prove all the essential particulars, the charge must be dismissed for fatal variance betweenthe charge and the evidence.

However, non-essential particulars, or those elements that are incidental to the offence, need not be provedwith precision and may be deemed to be surplusage: R v B(G), (SCC), [1990] 2 SCR 30; R v Rosen, (SCC), [1985] 1 SCR 83. [18] A reference in the information to the wrong

section of the Criminal Code is not fatal. The

section number of the CriminalCode does not need to be stated and is considered surplusage: R v Jazewsky, (No. 1) (1944), (SK KB), 85 CCC 175,[1945] 1 WWR 195 (Sask Dist Ct); R v Deslauriers (1974), (AB KB), 20 CCC 293 (Alta SC. [19] Similarly, the reference to a subsection of the Criminal Code constitutes a “non-essential particular” that the Crown is notrequired to prove: R v D (A), 2003 BCCA 106, at para 30. [20] Each count in an indictment must meet the requirements under s. 581 of the Criminal Code to be legally sufficient.

Thisprovision reads as follows: 581(1) Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that theaccused or defendant committed an indictable offence therein specified.

(2) The statement referred to in subsection (1) may be

a) in popular language without technical averments or allegations of matters that are not essential to be proved;

b) in the words of the enactment that describes the offence or declares the matters charged to be an indictable offense; or

c) in words that are sufficient to give to the accused notice of the offence with which he is charged. [21] The primary purpose of an information is “to describe the offence with such particularity as will inform the accused of thespecific act or omission which he is called upon to answer, and to define the issues to be proved by the Crown”: Ewaschuk J, CriminalPleadings and Practice in Canada [2nd ed.] at 9-2.

What constitutes reasonable or adequate information with respect to the act oromission to be proven against the accused varies in each case: R v B(G), (SCC), [1990] 2 SCR 3). [22] It is common ground that the language set out in the information correctly identified s. 254(5) as the charging

section of theCriminal Code. There is also no dispute that the charge correctly specified the date, time and location of the offence, as well as theidentity of the Appellant as the person driving. However, as fairly conceded by the Crown, the charge includes wording seeminglydrawn from the related subsection, section 254(3) of the Criminal Code, that deals with breathalyzer demands. Similarly, the languageused by Constable Fulton in making the initial breath demand seems more consistent with a s. 254(3) demand.

However, it is of noconsequence that the information differs from the evidence, unless the Appellant was unable to identify the transaction and wasprejudiced in her defence. [23] On the record, it is clear that the parties and the trial judge prosecuted, defended, and ultimately adjudicated, on the basis that

the Appellant was charged with failing to provide a breath sample in relation to an approved screening device. As previously noted,Constable Fulton had the device, an Intoxilyzer 400 D, in his hand at the time the demand was made. The trial judge commenced hisreasons by reading the charge and then immediately stating: “the shorthand version of that is she refused the roadside - - the ASD, theapproved screening device”. Reasons, p. 72, l. 3-4. [24] Based on my review of the trial transcript, there is nothing to suggest that the Appellant was in any way unaware or uncertainof the specific charge she was facing.

In my view, she was given proper notice in the information. It was clear that she was charged withfailing to provide a breath sample in response to a demand made by a police officer. While it might have been preferable if the wordinghad not used the language typically found under s. 254(3) of the Criminal Code, I see nothing in the language that would cause prejudiceto the Appellant in terms of her understanding of the charge. [25] As defined in s. 254(1) of the Criminal Code, both an “approved instrument” and an “approved screening device” measure thequantity of alcohol in a suspect’s blood.

An approved instrument produces a numeric value. An approved screening device, such as theIntoxilyzer 400 D, is calibrated to produce a “fail” reading when the measurement of a suspect’s blood alcohol level exceeds a certainlevel.

While the measurement process may be different for an approved screening device than for an approved instrument, their purposeis the same. [26] I agree with the Crown that the Appellant was reasonably informed of the charge against her, and was thus in a position tomake full answer and defence. [27] Furthermore, at no time did the Appellant object to the information for a defect apparent on its face. Under s. 601(1) of theCriminal Code, any such motion must be brought before an Appellant enters a plea, or with leave of the court thereafter.

The mainpurpose of section 601(1) of the Criminal Code is to ensure that defects curable by amendment are attacked before plea because the defect may be waived by plea: Ewaschuk’s Criminal Pleadings and Practice in Canada (2nd Ed), at 9-7. [28] In R v Anderson, (SCC), [1977] 2 SCR 621, the Supreme Court held that an accused may not raise for thefirst time on appeal a defect apparent on the face of the indictment. In that instance, the trial proceeded on the basis of an informationvalid on its face to which no objection was made.

Laskin CJ concluded that the validity of the information was not open to considerationby the Court of Appeal in those circumstances. [29] Similarly, in R v Hollohan, (1989), 50 CCC [3d] 551, at 553, the Alberta Court of Appeal held that an objection to a defect ofan indictment must be raised before entering a plea.

On failure to object, the accused is thereafter barred from objecting unless he or shewas misled or prejudiced (see also R v LeClair (ON CA), [1956], 115 CCC 297, [1956] OWN 336, 23 CR 216(Ontario CA) and quoted by Shepherd JA in R v Breland and George, (BC CA), [1964] 3 CCC 370 at 372, 43 CR 335,47 WWR 558 [BCCA]). [30] In this case, there is no evidence suggesting that the Appellant was misled or surprised by any of the evidence adduced attrial. The Appellant did not raise any concern with the wording of the charge or the precise formulation of the roadside screeningdemand.

After hearing the evidence of Constable Fulton, the Appellant conceded the validity of the demand, and only made submissionson the sufficiency of the evidence related to the refusal. [31] For all of these reasons, I am satisfied that in this case the information was adequate, and the Appellant was not mislead orprejudiced in her defence. 2) Should the Appellant be Allowed to Challenge the Validityof the Demand on Appeal? [32] The Appellant conceded at trial that there were no issues with the officer’s demand for a breath sample, but is now seeking tochallenge this concession. [33] The Appellant contends this concession was an admission of law and “was clearly made in error” (see paragraph 30 of theAppellant’s Supplemental Memorandum).

The Appellant relies on R v Lefthand, 2007 ABCA 206 for the proposition that on appeal aparty can withdraw an admission of law that was made at trial. The Appellant also relies on several cases for the proposition that amistake of legal counsel does not relieve the judge from the duty of ensuring that an accused is charged only on the basis of proper andadmissible evidence.

The Appellant tries to minimize the significance of defence counsel’s alleged error by pointing to alleged errorsmade by both the trial judge and Crown counsel in failing to appreciate the problems with the wording of either the demand or theinformation. Supplemental Memorandum of the Appellant, at para 26-28, [34] The Crown takes the position that the Appellant should not be permitted to raise this issue for the first time on appeal. TheCrown relies on R v Brown, (SCC), [1993] 2 SCR 918, where the court held that new arguments on appeal will onlybe permitted if three conditions are met: (

i) there is a sufficient evidentiary foundation to resolve the issue; (ii) it is not an instance wherethe accused failed to raise the issue at trial for tactical reasons; and (iii) no miscarriage of justice will result from the refusal to raise suchnew issue on appeal. [35] In this case, I am not persuaded that the Appellant should be permitted to challenge the validity of the demand on appeal, afterhaving conceded its validity at trial.

[36] The Appellant relies on cases that mostly deal with inadmissible evidence placed before the trier of fact as a result of amistake made by counsel. I accept without hesitation the general proposition that a judge has a duty to ensure that the trier of fact,particularly in cases involving a jury, only receives admissible evidence. Determinations around the admissibility of evidence are madeon the basis of a well-established body of law. However, in this case the alleged error concerns the concession that Constable Fulton’sdemand for a breath sample was valid.

Therefore, the analogy to counsel making an error on the admissibility of evidence does not seemeither appropriate or compelling under the circumstances. [37] I also agree that a court is not bound by all concessions or admissions. A concession or admission of law by the Crown ordefence does not bind the court to accepting the concession as correct because “admissions of law can have an impact far beyond theparticular case”: R v Silveira, (SCC), [1995] 2 SCR 297; M v H, (SCC), [1999] 2 SCR 3; R v Sappier;R v Gray, 2006 SCC 54; R v Lefthand, 2007 ABCA 206 at para 6.

Where a concession “interferes with a proper analysis of the law and,indeed, would lead to a result that may be inconsistent with the law, it is incumbent on the court to reject the concession”: R v Chaisson,2005 NLCA 55. Similarly, a court is not bound where the concession or admission of law relates to a question of jurisdiction: W (

V) v S(D), (SCC), [1996] 2 SCR 108 or the constitutional validity of a statutory provision: R v H (P), . [38] The Appellant fails to articulate how counsel’s concession on the validity of the officer’s demand was an error of law. Rather,the argument seems to suggest that appellate counsel would have taken a different tactical approach to this issue than the approach takenby trial counsel. The trial record suggests that trial counsel advanced a defence based on having a reasonable excuse for refusing theofficer’s breath sample demand.

That defence was not successful, but it is clear that conceding the validity of the demand was part of atrial strategy. [39] I do not accept the Appellant’s contention that a court’s duty extends to the scrutiny of all concessions, admissions oragreements made by counsel during the course of a trial. For example, admissions of facts are permissible under s. 655 of the CriminalCode.

The concessions or admissions of trial counsel dispensing with proof of a particular fact, as well as agreements reached betweencounsel, may be made for tactical reasons; tactics that properly lie within the purview of counsel conducting a case. In my view, it wouldnot be appropriate for a trial judge to go behind counsel’s tactical decisions, including agreements reached between counsel, save,perhaps, in exceptional circumstances.

To suggest otherwise, would require trial judges to scrutinize each and every tactical decisionmade by counsel during the course of a proceeding, and to be satisfied of the correctness or efficacy of that decision. Concessions,admissions, or agreements should not, generally speaking, be subject to judicial scrutiny or review. Disposition [40] The appeal is dismissed. Heard on the 9th day of September, 2015. Dated at the City of Calgary, Alberta this 19th day of December, 2016 M. David Gates J.C.Q.B.A. Appearances: K. Perrin for the Appellant Meagan Blake for the Respondent