Her Majesty the Queen - v. -, 2017 SKPC 73

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 073 Date: September 11, 2017 Information: 35708987 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Renée Driscoll Appearing: Evan Thompson For the Crown Tanis Talbot For the Accused JUDGMENT M.L. GRAY , J [ 1 ] Ms. Driscoll was charged on May 13, 2016 with refusing to comply with a demand made upon her pursuant to s. 254(2).

No Charter issues were raised and the matter proceeded to trial with counsel for the accused admitting both jurisdiction and the identity of the accused. [ 2 ] Luke Acton testified that on May 13, 2016, he was working as a bartender at Rock Creek, an establishment in the Stonebridge area of Saskatoon. He saw the accused in the lounge and, at about 8:00 p.m., she came up to the bar with a regular customer. She ordered an alcoholic cocktail, a “big glass of wine” and one other drink. She poured out half of the wine. As she walked

to the bathroom, Mr. Acton noticed that she stumbled forward as she walked down the hall; he considered this a “red flag” for intoxication. Because she had been in the bar earlier in the day, he thought it best that she not drive and said he could call a cab for her; she responded that he “had no jurisdiction”, a comment that he did not understand. He also heard the other patron offer to drive her to work. He did not see her having any medical issues and she did not appear to have any difficulty speaking to him. He noticed that she went to the bathroom again and he next heard that she had left the bar.

The supervisor of the bar offered to get her licence number and call the police. [ 3 ] In cross-examination, Mr. Acton recalled that the accused had been sitting at a table in the upper area of the lounge for a couple of hours before sitting at the bar top which accommodates 12 people. He was certain that she ordered two drinks, and possibly a third. She was talking to another patron and seemed upset when she went to the bathroom. [ 4 ] Brett Cowden testified that he has been an advanced care paramedic since 2005.

In relation to the incident before the Court, he was dispatched to assist the police in dealing with the accused who was complaining of abdominal pain. On his initial contact with her, she demanded Rolaids, an over the counter antacid. She was very demanding, insisting that she needed a “scope” and that she had a hernia. After walking to the ambulance and seating herself on the bench inside, she was taken to St. Paul’s Hospital. There, she walked into the hospital.

While the paramedic registered her at the triage desk, the accused sat down on the floor next to the chair that she had been provided and cried out in pain. The witness described her as agitated, anxious and not acting in an age appropriate fashion. He had ruled out diabetes, abnormal blood sugar levels and head injury. Her only complaint was the hernia. When asked, she denied having taken any drugs, but acknowledged that she had consumed alcohol; he could not recall if she specified the amount. Ms. Driscoll said that she was on her way to work. [ 5 ] In the opinion of Mr.

Cowden, the accused was intoxicated by alcohol or under the influence of something else. Her behaviour was inappropriate: rolling on the ground, demanding Rolaids, and then “a scope.” He asked her several times why she was behaving like a child. He dealt with the accused for less than an hour and explained to her that a scope would not be done on an emergency basis. Mr. Cowden saw nothing to suggest that Ms. Driscoll had any difficulty moving, breathing or speaking.

He did not recall her coughing. [ 6 ] In cross-examination, the witness agreed that the accused was complaining of abdominal pain, that she mentioned a hernia but he did not recall her clutching her stomach. When dispatched, he expected someone in medical distress, not a drunken person although the police may have told him that the accused had been at the bar. He estimated that 40% of the calls to which he responds involve alcohol. He was sceptical of the accused’s complaint and believed that she did not want to deal with the police.

He acknowledged that she might have been in pain but, in his view, there is a difference between crying in pain and crying in anxiety. [ 7 ] Constable Levi Davies had four months experience on patrol at the time of the incident before the Court. At 9:50 p.m. on May 13, 2016, he and his partner, Constable Ward, received a call about a possible impaired driver leaving the Rock Creek bar. They went to the area and found a vehicle that matched the description including the licence plate number that was reported. They followed the vehicle west on Circle Drive from Preston Avenue.

As they followed, he noted that the speed of the vehicle was constant and the only abnormality was that it crossed the centre line for a brief moment. A traffic stop on the south circle bridge was conducted at 10:03 p.m. to determine whether the driver was the person about whom the Rock Creek staff were concerned and, if it was, to check her sobriety. The vehicle pulled to the right immediately after the first blast of the siren, but it continued on until a second blast was sounded, whereupon the vehicle came to a stop. [ 8 ] When Constable Davies approached the driver, she immediately asked for a Rolaids tablet.

She was very distraught, crying and said that she was in medical distress. As a result, he called for an ambulance. Ms. Driscoll continued to cry that she had stomach pain and that she had a hernia. She acknowledged that she was coming from the Rock Creek bar where she had consumed alcohol “a little bit not much.” Because Constable Davies had difficulty with his sense of smell, he asked his partner to come to the driver’s side of the vehicle. After Constable Ward spoke to the accused, she said there was a smell of alcohol from the accused.

Throughout, the accused kept on about her medical distress but eventually did get out of her car. She was holding her stomach, twisting from side to side and tilting her head as if she was in pain. She was told that they would continue the impaired driving investigation in the back of the patrol car and he opened the rear door for her. Instead of getting in, she lay on the ground, then got on all fours all the while complaining of hernia pain. Constable Davies asked her to stand and read to her the ASD demand at 10:13 p.m. Ms. Driscoll did not respond.

Three more times she was asked if she would provide a sample but would not answer. He then explained that a refusal carried the same penalty as impaired driving. She continued to insist that she was in medical distress. At 10:17, he again read the ASD demand to which she responded that she did not need to give a sample because she needed medical attention. Her verbatim response to the second demand was “No I don’t have to do that. I need medical attention.”

[ 9 ] At this point, the ambulance arrived and Ms. Driscoll was placed under arrest. She kept interrupting as Constable Davies tried to read her rights to counsel until the paramedic told her to listen. Once her rights were read, the paramedics took over. Constable Davies rode in the ambulance with the accused and the paramedic. He overheard her telling the medical personnel that she was en route to the Odeon Event Centre where she helps her friend Simon set up and take down for events there. He also heard her explaining her medical history and what a hernia is. She also told them that she had been drinking.

She was crying. When a medic asked her to hold her arm still so he could take her blood pressure, she pronounced, “this building is rocky.” [ 10 ] Constable Davies was not able to conclude that Ms. Driscoll’s ability to drive was impaired by alcohol but believed that he had a reasonable suspicion that the accused had alcohol in her body based on: 1. The fact that she was in a bar; 2. Her admission that she consumed some alcohol; and 3. Constable Ward’s observation that the accused smelled of alcohol. [ 11 ] He rode with her in the ambulance and continued to observe her behaviour.

They arrived at the hospital at 10:39 p.m. While waiting there, the accused asked if she could call her boss, then said “I have a law to call a lawyer.” After this, she lay on the hospital floor and complained of hernia pain. When taken to an examination room, she lay face down on the bed and cried and coughed.

After approximately an hour at the hospital, the accused was released on an appearance notice, and the officers left at 23:55 p.m. [ 12 ] In cross-examination, Constable Davies acknowledged that there was nothing abnormal in the manner in which the accused operated her vehicle and that she stopped appropriately upon being signalled.

When asked about the basis for the ASD demand, he referred to the information provided from Rock Creek, the admission of consumption from the accused and the smell of alcohol. [ 13 ] The accused testified that on May 13, she went to the Rock Creek bar at about 3:00 or 4:00 p.m. for supper. She was there for a few hours as she had to work an event in the downtown area at 11:00 p.m. She remained there for six or seven hours and had six or seven drinks. She met a woman at the bar and had a very emotional conversation about her relationship with her boyfriend.

This precipitated a very painful episode of acid reflux, which left her crying, unable to walk straight and with difficulty breathing. Ms. Driscoll was frightened as she had not experienced such an attack before and worried that she would have to go to the hospital. She went to the bathroom to attempt to regurgitate the acid. She was very anxious and felt like she was having a heart attack. She had been diagnosed with a hiatus hernia in 2013 or 2014 and had been prescribed medication.

By May of 2017, the hernia was controlled with over-the-counter antacids. [ 14 ] She left the bar, got into her car, called her boyfriend, told him that she was suffering and that if anything happened to her, he was to let her family know. The pain was so bad that she thought that she would “pass out” but, nonetheless, drove away from the area; her thought was to drive to the hospital as she could not afford an ambulance. She drove away from the bar and started off to work. She was pulled over on the Idylwyld Bridge, not far from her destination.

She stated that she was going to work but “knew (she) wasn’t going to make it so was going to the hospital – the closest one (she) could think of.” [ 15 ] Ms. Driscoll saw the flashing lights of the police vehicle and stopped. When the officer came to her car, she asked for a Tums or a Rolaids (over-the-counter antacids). Her first thought was that staff from Rock Creek had reported her because the “server gave the bartender a lot of information.” She told the officer that she needed medical attention because she was having a hernia attack.

She was crying “a lot.” The officer asked her to get out of her car and, in response to his query, she admitted that she had been drinking. He asked her if she “could blow.” She could not remember if she refused, but felt that she was unable to comply. She understood that the officer wanted to confirm her “state.” She acknowledged that she did not provide a sample of her breath and did not try to do so. While she was on the road, she told the officer that she was vomiting acid and would pass out if she did provide a sample. An ambulance arrived and she was taken to St.

Paul’s hospital where she saw a doctor who examined her. The doctor told her that she was “perfectly fine”; she was given no medication and no treatment. The police took her licence and left her at the hospital after giving her documents requiring that she go to court. [ 16 ] When asked why she did not provide a sample, she gave two reasons. The first was that she had too much acid reflux and knew how much pressure was required to provide a sample from a previous experience. Second, she said that she was afraid for her health; that is, if she blew into the instrument, she would pass out and not wake up again.

[ 17 ] In cross-examination, Ms. Driscoll said that her work involved setting up and taking down a stage for performers at events at a local business. She worked with a crew of six or seven people and had set up that morning. She finished about 1:00 p.m. and went shopping for a while before going to Rock Creek. Although she had six or seven drinks, she only recalled two glasses of wine, a beer and a cocktail. When asked if she was counting her drinks, she said she was.

When asked if she could say with certainty how many drinks she had, she said that she counted eight or nine the next day; this is in contrast to her evidence in-chief that she had six or seven. [ 18 ] Ms. Driscoll did not have any health issues in the days leading up to this incident. Although she was experiencing symptoms and was having trouble walking while at Rock Creek, these symptoms started when there was no one around and only 15 to 20 minutes before she left the bar. A friend that she met at the bar that night offered her a ride after she started experiencing problems.

Despite her health issues, she decided to drive and was planning to go to work. She did not feel that her ability to drive or do her work would be affected. Later, she said that she was half way to the Odeon when she realized that she would be unable to work. She described having trouble speaking to the police and the medics because she was “almost” coughing up acid.

She acknowledged that she spoke loudly when the officers “pushed” her to blow as she was getting upset. [ 19 ] When asked about her call to her boyfriend, she said that she was not experiencing symptoms when she got in her car; she drove over to Shopper’s Drug Store and called her boyfriend because of something that had happened that night. In the minute that she was in the car, she became anxious and scared and thought about the pain that she had in the bar.

When it was put to her that she called her boyfriend to say that she might not make it home, and then set off for work, she replied that she was driving, had nothing to take and realized that the pain was getting worse. She agreed that she could have gone into the drug store for some over the counter medication.

Further, she agreed that she did not accept the offer of a ride, did not call a taxi, did not accept her boyfriend’s offer to pick her up, did not call her boss to say she was ill and did not drive to hospital. [ 20 ] When asked to elaborate on what she meant when she said that someone from Rock Creek must have called the police, she said that the server told her to sneak out when no one was looking and then told the bartender to make the call. She did not specify whether this was the same server who passed information to the bartender.

She agreed that the bartender told her not to drive because he thought she was drunk. She denied that she told him he had no jurisdiction. [ 21 ] Ms. Driscoll acknowledged that she was aware that the officer wanted her to provide a breath sample into a roadside screening device. Although she had never done so before, she speculated that it would require more than she was capable of doing. When asked why she was lying on the ground at roadside and on the floor at the hospital, she said “it was taking so long...coughing a lot...having trouble standing up...hurting so bad...I lay on the ground.” [ 22 ] Ms.

Driscoll agreed that she might have told the officer that she had been in pain for seven days and admitted that she said that she was going to die without medication. She agreed that she did not have surgery at the hospital, did not have a scope to examine her, did not receive any medication and did not follow up with her physician.

Indeed she only saw her doctor a month before she testified – some 13 months after the date of the alleged offence. [ 23 ] There is no dispute that the officer had grounds to form the requisite suspicion for a demand pursuant to s. 254(2) of the Criminal Code and that the accused did not comply with the demand. Based on all of the evidence, I am satisfied that grounds for a reasonable suspicion existed and that the demand was lawfully made. Further, I am satisfied that the accused did not supply a sample of her breath in accordance with that demand.

I accept the evidence of the officer that she said that she would not provide a sample and therefore, am also satisfied beyond a reasonable doubt that she intended to refuse. The only issue left for determination by the Court is whether she is entitled to an acquittal by virtue of a reasonable excuse. [ 24 ] Section 254(5) of the Criminal Code states: Everyone commits an offence who, without reasonable excuse , fails or refuses to comply with a demand made under this section. (Emphasis mine).

[ 25 ] Section 794(2) states: The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information. [ 26 ] The Saskatchewan Court of Appeal considered s. 794(2) in the context of a refusal in R v Lewko, 2002 SKCA 121 [ Lewko ].

In Lewko , at para 20 , Chief Justice Bayda held that an accused need only “ raise the question of the possibility of a reasonable excuse...by producing evidence of something that is capable of being a reasonable excuse.” Once the issue is raised, the burden is on the Crown to prove beyond a reasonable doubt that the accused did not have a reasonable excuse.

At para 35, the Court went on to state: As the foregoing analysis respecting the evidentiary issues surrounding the defence of “reasonable excuse” illustrates, at no stage does a trial judge considering this defence need to invoke and apply the standard of proof on a balance of probabilities. The standard does not apply at the first stage where the defendant carries the evidential burden of producing sufficient evidence of something that is capable of being a reasonable excuse.

As noted, were it a persuasive burden, the standard of balance of probabilities would apply, but it is not a persuasive burden. [ 27 ] In R v Goleski, 2014 BCCA 80 , the British Columbia Court of Appeal also considered s. 794(2) in the context of a refusal case. After a lengthy review and consideration of the history of s. 794 and similar provisions, as well as the common law upon which those provisions were based, the British Columbia Court of Appeal found that Lewko , which they specifically considered, was wrongly decided.

On further appeal, the Supreme Court of Canada stated: In our view, the British Columbia Court of Appeal correctly concluded that s. 794(2) of the Criminal Code, R.S.C. 1985, c.

C-46 , properly interpreted, imposes a persuasive burden on the accused to prove an “exception, exemption, proviso, excuse or qualification prescribed by law”: see R v Goleski , 2015 SCC 6 at para 1 . [ 28 ] Thus, while the Crown is required to prove all of the elements of the offence charged beyond a reasonable doubt, it falls to the accused to establish, on a balance of probabilities, that by reason of a statutory exception, he or she is not guilty of the offence charged.

In other words, the burden of establishing a reasonable excuse falls upon the accused. [ 29 ] While medical reasons can provide a reasonable excuse for failing to comply with a demand, case law suggests that there must be some circumstance which renders compliance with the demand extremely difficult or likely to involve a substantial risk to the health of the accused: see R v Nadeau (1974), 19 CCC (2d) 199 (NBCA). [ 30 ] In the case at hand, I have no hesitation in finding that the accused has not established, on a balance of probabilities that she had a reasonable excuse for not providing a breath sample.

Although she claims to have been in excruciating pain, even she had to acknowledge that she was cleared medically, was not treated in any way, was not provided any medication and, most telling, did not follow up with her physician until 13 months later. This seems paradoxical given her testimony that she thought she was going to die that night. I do not accept that she genuinely feared for her safety, nor has a reasonable basis for such a fear been established. Indeed, the evidence of Ms.

Driscoll on the whole was illogical, internally inconsistent, utterly fantastical and incapable of belief. [ 31 ] Counsel for the accused relies on R v One Spot , 2013 ABPC 25 where an acquittal registered. In that case, the accused had very recently had surgery, was in pain and feared that he would rip the stitches of his incision with the exertion of providing a sample.

Unlike the case at hand, the Court accepted the evidence of the accused that he subjectively feared for his safety and that his fear was based on reasonable grounds. [ 32 ] In conclusion, the Court is satisfied that all of the elements of the offence have been proven beyond a reasonable doubt. As no

reasonable excuse for the failure to provide the sample has been established on a balance of probabilities, the accused is found guilty as charged. _______________________ M.L. Gray, J