Her Majesty the Queen - v. -, 2014 SKPC 63

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 063 Date: April 22, 2014 Information: 43374556 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - John Gordon Kot Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Self-Represented For the Accused JUDGMENT M. GORDON , J [ 1 ] John Gordon Kot is charged with on or about the 20 th day of May A.D. 2013 at or near Moose Jaw, Saskatchewan did: Count 1 - while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code . Count 2 - without reasonable excuse fail or refuse to comply with a demand made to him by a peace officer pursuant to s. 254(2) of the Criminal Code to provide a sample of his breath to enable analysis to be made by means of an approved screening device contrary to s. 254(5) of the Criminal Code .

[ 2 ] The Crown proceeded summarily and the trial was held January 28, 2014. INTRODUCTION [ 3 ] At the conclusion of trial on January 28, 2014, I found Mr. Kot not guilty of count #1. Based on the oft-quoted and well- known decision of R. v. Stellato, the Crown conceded that the evidence fell short of proving impairment beyond a reasonable doubt. Therefore Mr. Kot was found not guilty on count #1. [ 4 ] Mr. Kot argues that at no time did he refuse to provide a sample into the approved screening device.

He stated he was confused and needed more time to decide his response to the demand of the police officer and whether he was going to comply. Mr. Kot also argues that the delay in the arrival of the ASD device gives him a legal excuse to refuse the ASD. It is to be noted that Mr. Kot did not file any Charter notice. [ 5 ] The Crown says there are two issues; one being whether the “forthwith” requirement under s. 254(2) has been met and secondly that this refusal or delay is equivalent of Mr. Kot saying “no” and not taking the test. Finally the Crown notes that Mr.

Kot mentioned the fact that he was not released immediately from the police station and that no inquiries were made as to a possible release. The Crown was prepared and did agree that this may be a case of over holding as it appears that the officer was following police policy and no efforts were made to determine if Mr. Kot was releasable. However the Crown noted that Mr. Kot, from the police officer’s evidence, was certainly under the influence, was argumentative and difficult to deal with and any over holding was of a minor nature. Therefore the Crown argues a stay of proceedings is not in order.

The Crown is prepared to concede that a minimum fine on a finding of guilt on this charge would be the appropriate remedy. THE EVIDENCE [ 6 ] Cst. Crain, a member of the Moose Jaw Police Department, received a call at 22:50 on May 20, 2013, to go to Chiller’s Bar in Moose Jaw in regards to a fight. Cst. Crain arrived at 22:55 and was told that an intoxicated male had left in a black truck. At 23:00 hours, he returned to his police vehicle and noted a black truck about a block away. He observed this truck and turned and followed the truck.

He lost sight of the truck for a few seconds but then observed the truck enter the southwest corner of the Chiller’s Bar parking lot. Cst. Crain observed the male driver exit the vehicle and enter the off-sale area of Chiller’s. He noted this male was unsteady on his feet and swaying as he walked. As a result of his query, he learned that John Kot was the registered owner of this black truck. Cst. Crain went into Chiller’s and saw Mr. Kot standing at the bar. It was conceded that identity is not an issue in this case. Cst. Crain approached Mr. Kot and told him he had concerns about his sobriety. Mr.

Kot stated he had four beer. The officer smelled a strong odour of beverage alcohol on Mr. Kot’s breath. The officer requested Mr. Kot to step outside and accompany the officer to his vehicle for an ASD test. Mr. Kot immediately disagreed with this request and started arguing with the police officer and saying there was no way that the officer saw him driving. At this point he did not raise his voice. The police officer told Mr. Kot he was in the parking lot and saw him driving. While walking back to the police vehicle, two other officers were noted in the area, namely Cst. Mercer and Cst.

Binaris, who were dealing with the original complaint at the bar. The officer was able to handcuff Mr. Kot and get him in the back seat of the police vehicle. He advised Mr. Kot again he was going to be detained for an approved screening device test. [ 7 ] At 23:09, he read from his standard issue card the ASD demand. It should be noted the officer testified that Mr. Kot was belligerent and initially refused to sit in the back of the police vehicle. Cst. Crain was just about to call for back-up but once Mr. Kot was handcuffed, he decided that it was unnecessary. [ 8 ] After the ASD demand was read, Mr.

Kot said he did not understand. Cst. Crain asked Mr. Kot to be specific and read the ASD demand again. Cst. Crain then radioed Sgt. Purdy to bring him an ASD unit and understood that it would be available immediately. It is noted that Sgt. Purdy had also been at Chiller’s around the same time or just prior to Cst. Crain’s attendance. Cst. Crain admitted he did not note in his notebook the time he called for the ASD and its arrival.

However, the officer was aware that time was of the essence and looked at his watch and he was quite certain it was under 10 minutes from the time he asked for the ASD unit to its arrival. [ 9 ] On cross-examination he stated that he had made the ASD demand first and then requested the unit. As soon as Cst. Crain

received the ASD unit he prepared it for the test by checking to ensure it was in proper working order. Cst. Crain is a qualified operator and the device brought to him was an approved instrument. Cst. Crain provided instructions to Mr. Kot on how to blow into the mouthpiece. Mr. Kot refused to blow. He said he was confused again and required more time. He kept repeating these words. Cst. Crain advised Mr. Kot there were three possible outcomes, namely Mr.

Kot could blow and pass the test and be on his way, he could blow and fail and then a further demand, being an Intoxilyzer demand, would be made and he would be taken to the police station, or he could refuse and he would be charged with refusal. The officer indicated that the penalties were the same for each of the charges if convicted. Again Mr. Kot requested more time to consider his options. Cst. Crain placed the approved screening device on the silent patrol opening and indicated it was ready for Mr. Kot. He asked Mr. Kot to lean forward and blow. Mr. Kot kept repeating he needed more time. Mr.

Kot did not mention any physical or medical problems. Mr. Kot appeared to the police officer to understand what was being said to him. After 15 minutes, Cst. Crain decided to charge Mr. Kot with refusal. [ 10 ] Cst. Crain placed Mr. Kot under arrest for refusing the approved screening device and also for impaired driving. Mr. Kot was read his rights to counsel and the police warning. Mr. Kot said he understood the police warning but was “fucking confused about the rights to counsel”. Mr. Kot was taken directly to the police station in Moose Jaw and booked in.

He declined to contact a lawyer when given an opportunity. He was released at 6:00 a.m., as it is police policy to serve release documents and other documentation on an accused once they have sobered up. [ 11 ] It is noted that Cst. Crain turned on the in-car video after Mr. Kot was in the rear seat of the police vehicle. The officer was not aware until about a month later that the audio feature of the video camera was not in working order. [ 12 ] John Kot testified. He stated there was no reason he should have been handcuffed, nor handcuffed for so long and treated so unfairly.

He said he was not released until 6:30 a.m. in the morning. The police did not make any inquiries as to whether there was someone sober to come and give him a ride home. [ 13 ] On cross-examination, Mr. Kot agreed he was at Chiller’s and that he had consumed four beer. It is noted there were also empties in his vehicle. Mr. Kot testified he did not know what an ASD was but he had heard of “the blow box”. As Mr. Kot accompanied the officer out of Chiller’s toward the police cruiser, he knew the police officer wanted a sample of his breath. It is curious, he said this twice in cross-examination.

However it is clear Mr. Kot did not like and objected to being handcuffed because in his mind, that is being found guilty. While he was sitting in the back of the police vehicle, Cst. Crain got in and out of the vehicle. At one point Cst. Mercer stuck his head in. Mr. Kot said this was a first time experience and a real shock to him. He said he was confused and upset. His feelings escalated. He admitted to the officer presenting him with the ASD demand that he understood what the officer was asking and telling him to do. He understood that Cst. Crain was saying don’t refuse and he replied he wasn’t refusing.

He just needed time to clear his head. [ 14 ] It is Mr. Kot’s evidence that Cst. Crain did not request the ASD until 23:09. He recalled Sgt. Purdy bringing the device. However it was Mr. Kot’s evidence and he was adamant on this point that he sat and waited, handcuffed in the back of the police vehicle, for much longer than the 10 minutes as testified to by Cst. Crain. Mr. Kot admits he did not have a watch. Mr. Kot recalls Cst. Crain telling him and he also noticed that the in-car video had been activated. [ 15 ] Cst. Jason Mercer was called by the Crown but mainly for the benefit of Mr.

Kot who wanted to cross-examine him. Cst. Mercer is a police officer who was on general duty May 20, 2013 in Moose Jaw. He was called to assist Cst. Crain who had a possible impaired driver. On cross-examination he testified that at 23:27 he was at Chiller’s and noted that Cst. Crain had someone in his vehicle. He said it is possible that Sgt. Purdy was there, but he can’t recall. However, he does recall Mr. Kot being in the back of the police vehicle. Cst. Mercer searched the Kot vehicle and found a beer bottle in the middle of the two front seats on the floor about an eighth full.

He found a beer box within arm’s reach in the back and six Budweiser sealed beer and four open and empty beer. He said he was not called by Cst. Crain but likely by dispatch. ANALYSIS [ 16 ] The issue of over holding was raised during the trial although as I have indicated previously, Mr. Kot did not serve the Crown with any Charter notice. The Crown conceded that there was over holding but submitted that a stay of proceedings was not warranted. The evidence is that Mr. Kot was released at 6:00 a.m.

The officer decided to keep him in cells because he smelled strongly of beverage alcohol and the officer had formed the opinion that Mr. Kot was intoxicated. Given Mr. Kot’s conduct, there was some basis to hold him. The officer said he wanted to serve the documents on Mr. Kot when he had sobered up. The difficulty I have with the situation is

that the practice appears to be that the Moose Jaw City Police hold everyone overnight without making any inquiries as to whether theaccused could be released to someone who was sober. However since the Crown is prepared to concede this is a case of over holding, Ifind that there was over holding although the circumstances are not as serious as in some situations. Since I have found Mr. Kot guilty ofcount 2 on the Information, I will consider the over holding when I am considering the appropriate sentence. [17] The main issue in my view is whether the Crown has proved beyond a reasonable doubt that Mr.

Kot refused to provide asample pursuant to a demand under s. 254(2), namely the approved screening device. [18] Cst. Crain had to radio for an ASD unit. He testified it arrived in under 10 minutes as Sgt. Purdy had been in the area andadvised Cst. Crain he could get a device to him right away with no problem. Unfortunately, Cst. Crain did not record the time of therequest or arrival of the ASD. However he testified he knew that time was important and that it was under 10 minutes. Mr. Kot’sevidence on this point is self-serving and vague.

He admitted he did not have a watch but to him the time handcuffed in the back of thepolice vehicle was much longer than 10 minutes. From his perspective that is understandable especially coupled with the alcoholconsumption, however I am prepared to accept the only reliable evidence which is Cst. Crain’s on this point. Cst. Crain was mindful ofthe importance of administering the test forthwith. The ASD device was present and ready for use within 10 minutes of the demand. There is no unexplained delay or unreasonable delay. In R. v. Ritchie, 2004 SKCA 9 , 241 Sask.

R. 155, the Court found thatthe 11 minutes between the time of the ASD demand and arrival was acceptable. In R. v. Janzen, 2006 SKCA 111, forthwith meanswithout delay or without unreasonable or unjustifiable delay. In R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, forthwithis subject to a flexible

interpretation. In R. v. Goertzen, 2013 SKPC 211, Judge Morgan found as follows: Further, the officer was aware of the requirement to get an ASD test administered promptly, and in my view, he took all reasonable stepsto do so. This is not a case in which the officer was sitting idly at the roadside without considering relevant matters. [19] The second branch of the test is does Mr. Kot have a lawful excuse to refuse the test? [20] In R. v. Dustin Houle, 2013 SKPC 216, Judge Jackson dealt with very similar circumstances as this case.

At paragraph 20,Judge Jackson states: Nowhere in the evidence can it be found that the accused explicitly refused to blow into the ASD (this being the crux of the charge sincethere was no “fail to comply” in the sense of attempting inadequately to give proper samples).

This however does not end the mattersince the accused’s conduct can evidence the requisite mens rea and actus reus of the offence, commonly referred to as constructiverefusal. [21] He goes on to say at paragraph 21: In order to found a conviction for explicitly or constructively refusing to blow into the ASD or Intoxilyzer, in the Court’s view thefollowing must be present:

a) grounds to make the demand;

b) lawful demand;

c) clear understanding of what was required;

d) reasonable opportunity to comply;

e) words and/or actions demonstrating that the accused is not going to comply; and

f) no reasonable excuse not to do so. [22] Considering the requirements noted above, I find that there were grounds for the police officer to make the approvedscreening device demand. The demand was lawful and on Mr. Kot’s own evidence, he knew what was required of him. It is noted thatMr. Kot initially protested leaving the bar and accompanying Cst. Crain to his police vehicle. He initially refused to sit in the rear seat of

the police vehicle. He was handcuffed for officer safety and Cst. Crain was going to call for assistance if there was any further problems. In fact Sgt. Purdy came over to see if everything was alright and Cst. Crain told him there was no need for his assistance at that time. Cst. Crain testified that while waiting for the ASD his only conversation with Mr. Kot was Mr. Kot being argumentative. [ 23 ] Mr. Kot testified and on cross-examination admitted that he knew what the police officer wanted; it was a breath sample.

He admitted to talking loud and asking why he was being handcuffed and then held in the back of the police vehicle for such a long time. He admitted to talking louder. Again Mr. Kot said he knew he was going to be asked for a breath sample. On the other hand, Mr. Kot said this was a first time experience for him and it was a real shock. He was confused and upset when he was handcuffed and placed in the back of the police vehicle and he admits to these feelings escalating. When presented with the ASD device, he states he understood what the police officer asked and was telling him.

However, he had never provided a sample of his breath before and he was confused about the whole situation. Again Mr. Kot said he understood the police officer and that he was not refusing, he just wanted more time to assess the situation. [ 24 ] According to Cst. Crain’s evidence, he gave Mr. Kot more time to consider his options. In fact he said he gave him approximately 15 minutes. He explained clearly to Mr. Kot the three possible outcomes once the ASD sample had been concluded. He also explained the consequences of not providing a sample. Finally Cst. Crain arrested Mr.

Kot for impaired driving and refusing the ASD and gave him his Charter rights and police warning. Mr. Kot, at that point, said he did not understand his rights but he understood the police warning. On cross-examination Mr. Kot testified he clearly indicated that he knew what was going on. [ 25 ] It is a question of fact whether Mr. Kot, given the opportunity to blow as a result of a lawful demand, refused to provide a sample into the approved screening device. When I consider all of the evidence, I am satisfied Mr. Kot refused to provide a sample. I do not find Mr.

Kot’s explanation that he needed more “time” or was confused to be a reasonable excuse in these circumstances. Therefore, I find John Gordon Kot guilty of count #2. M. Gordon, J