) ) HER MAJESTY THE QUEEN ) D. Dvorak ) for the Crown - v. - ), 2013 MBPC 7

2013 MBPC 7 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) D. Dvorak ) for the Crown - and - ) ) CAROL MARIE DUTCHAK ) C. Swanton ) for the Accused Accused. ) ) ) ) Judgment Delivered: ) January 22, 2013 SLOUGH, P.J. INTRODUCTION [ 1 ] A staggering walk brought the accused to the attention of the police. Subsequent investigation revealed a number of the classic signs of impairment including the smell of alcohol on her breath, glossy eyes and slurred speech. Ultimately, the accused failed to provide a proper breath sample.

In her defense it is asserted that having suffered a blow to the head just before her arrest she was suffering from concussion like symptoms a condition giving rise to a reasonable excuse for not providing a breath sample. THE EVIDENCE [ 2 ] The arresting officer, Constable McIntyre, testified that on October 28, 2010 at approximately 2:45 a.m. he was on duty in Swan River Manitoba. As he was approaching the accused’s vehicle he saw her leave the Valley Hotel and noted that her walk consisted of a slow stagger. The accused entered her vehicle and drove away with the police a short distance behind.

Constable McIntyre followed the accused for a short distance and stopped her vehicle. After calling for assistance Constable McIntyre spoke to the accused and noted the smell of liquor and perfume on her person. He asked her if she had been drinking and she advised she had consumed one beer and a shot prior to leaving the Valley Hotel. During the conversation the officer noted that the accused’s eyes were glossy and her speech was somewhat slurred. Constable McIntyre asked the accused to step out of the vehicle and walk to the sidewalk.

As she walked along her vehicle he described her as falling into her vehicle and needing to use her hand to stabilize herself. Instead of walking to the sidewalk she walked to the police vehicle contrary to Constable McIntyre's instructions. At this point the accused was arrested for impaired operation of a motor vehicle. By this time Constable Martin had arrived at the scene.

His observation as to the accused’s walking was somewhat different than Constable McIntyre's in that Constable Martin described the stumbling as a slight stumbling although he did confirm the presence of slurred speech. [ 3 ] Upon being arrested the accused was taken to the Swan River detachment. Once there she was brought before an experienced breath technician Constable Rink. Constable Rink made a number of observations with respect to the accused’s condition. She described the accused as having a very strong odour of liquor on her breath. Speech was described as slow and deliberate.

Constable Rink indicated that she provided detailed instructions to the accused as to how to provide a proper breath sample. She then described the accused’s conduct while blowing into the breath analyzer: contrary to instructions taking small breaths; not blowing; briefly providing a

good sample but not blowing long enough to provide a proper sample; and ultimately pulling away from the mouthpiece. Due to the delay in providing a breath sample the machine “timed out”. The accused was given a second opportunity to provide a sample. Again she was instructed to provide a steady breath sample. On this occasion, Constable Rink noted when the accused placed the mouthpiece in her mouth she observed no signs of any exertion in terms of providing a breath sample. The accused did not blow and ultimately pulled away from the mouthpiece.

Constable Rink also noted that at one point the accused was blowing out the corners of her mouth. In Constable Rink’s opinion the accused was clearly faking her efforts to provide a sample. [ 4 ] Constable Rink testified that normally it takes 2 to 8 seconds for an individual to provide a sample. The machine allows up to 2 minutes to collect a breath sample. Accordingly, during the four minutes that were available to the accused to provide a sample she failed to do so.

When the second sample “timed out” Constable Rink testified that the accused threw up her hands and stated that she was “not fucking doing it again” and walked out of the room. Shortly thereafter she was charged with failing to provide a proper breath sample. She was subsequently released to a friend Wayne Ames. [ 5 ] The accused testified that she has no recollection of the events at the R.C.M.P. detachment. It was only when she spoke to Wayne Ames that she became aware that she been rendered unconscious the previous evening. The accused and Ames both worked in the bar at the Valley Hotel.

Ames testified that when he and the accused went outside to deal with some rowdy customers an altercation broke out. Ames testified that he was attacked and while retreating to the hotel he saw the accused on the ground, unconscious. The accused was dragged back into the hotel where she regained consciousness. Ames testified that shortly thereafter, the accused disappeared when she should have remained at the hotel in order to cash out. Ames testified that the accused was working throughout what he described as a busy evening and as far as he was aware she had not consumed any alcohol.

This is contrary to the accused’s evidence that due to a lack of work she had booked herself off an hour or so prior to hotel closing and that during this period of time she consumed one beer. She also indicated that prior to her shift she had a beer while playing the slots. [ 6 ] The accused testified that on her way to her residence in the company of Ames she was confused as to her location and was “out of it”. Once home she was nauseous and had to lie down. These symptoms persisted over a number of days. This description of the accused’s condition was confirmed by the accused’s son.

Ames, who has some training in first aid, confirmed this evidence and expressed the opinion that the accused appeared to be suffering from the symptoms of a concussion. A letter from a physician was filed but only to show the accused had sought medical attention for her condition. (The letter was inconclusive as to the concussion issue.) ANALYSIS [ 7 ] The accused faces two charges: 1. Driving while impaired 2. Failure to provide a proper breath sample. [ 8 ] With respect to the driving while impaired charge the onus is on the Crown to prove that charge beyond a reasonable doubt.

The symptoms of impairment consist of the accused’s manner of walking, the smell of alcohol on her breath, slurred speech and glossy eyes. As previously noted the police evidence with respect to her manner of walking was inconsistent as between the officers with Constable McIntyre describing staggering and significant imbalance whereas Constable Martin described a slight stumble. [ 9 ] A number of comments can be made about the evidence of impairment, first of all there is no evidence of bad or unusual driving during the brief time the accused was observed operating her vehicle.

The strong smell of alcohol is not particularly surprising considering the accused spent almost 11 hours in a bar prior to her arrest although, I do note the evidence of Constable Rink that she smelt a strong smell of alcohol on the accused’s breath. The other symptoms: the slurred speech, glossy eyes and the evidence as to poor balance even if one accepts Constable Martin’s more muted account of the accused’s walking, are consistent with impairment by alcohol. Looking at the evidence of impairment in its totality without some other explanation I would not have a reasonable doubt as to the accused’s guilt.

However, the evidence of the blow to the head was not challenged to any great extent on cross examination and provides some explanation for the accused’s difficulties with balance and perhaps even her speech.

I appreciate the evidence from Ames as to the accused having a concussion is opinion evidence but I find it admissible after applying the relevant criteria as set out in The Law of Evidence (5 th Edition) Paciocco and Stuesser ; Irwin Law Publishing at page 185 where the authors state: “Lay witnesses may present the relevant observations in the form of opinions where: 1. they are in a better position than the trier of fact to form the conclusion; 2. the conclusion is one that persons of ordinary experience are able to make; 3. the witness, although not expert, has the experiential capacity to make the conclusion; and 4. the opinions being expressed are merely a compendious mode of stating facts that are too subtle or complicated to be narrated as

effectively without resort to conclusions.” See also R. v. Graat (SCC), [1982] S.C.J. No. 102 at pages 12-15. [10] I find Mr. Ames’s observations with respect to the accused’s condition as a conclusion that a person of ordinary experience isable to make in the same way the Court would accept opinion evidence as to a person being impaired by alcohol. While the weight tobe given to Mr. Ames’s opinion is not comparable to evidence from a medical doctor, given the evidence from the accused and her son itis, on the particular facts of this case, worthy of some weight.

In these circumstances I find this evidence sufficient to raise a reasonabledoubt as to whether or not the accused’s ability to drive was impaired by alcohol. [11] That being said, the accused is also charged that without reasonable excuse she failed to comply with a demand for a breathsample. The accused indicated she had no recollection of the events at the detachment. Accordingly, I am relying on the evidence of themembers of the R.C.M.P. in particular Constable Rink who provided a clear and detailed account of the accused’s “efforts” to provide abreath sample.

Constable Rink’s evidence establishes that the accused did everything possible to avoid providing a proper sampleincluding not blowing, blowing out the corner of her mouth and taking her mouth off the mouthpiece before a sample could be obtained. The accused was given two distinct opportunities to provide a sample and I find she deliberately failed to provide a sample.

There wasno evidence the accused did not understand Constable Rink’s detailed instructions and her remark upon “timing out” the second time tothe effect that she had tried twice and was not doing it again demonstrates an awareness of what was occurring and the consequences ofher actions. Although dealing with a somewhat different scenario: (an accused who was so drunk he could not understand the breathdemand), I find the comments of C.J. MacKeigan of the Nova Scotia Court of Appeal in R. v. Warnica (NS CA),[1980] N.S.J.

No. 512 at paragraph 8 instructive: “The learned judge’s conclusion must be accepted as a finding of fact that Mr. Warnica at the time of the demand did not comprehend it,notwithstanding his appearance of understanding evinced to the police officers. That finding is not open to review on this appeal, even onthe question of law as to whether any evidence of non-comprehension was before the judge. The finding was apparently basedentirely on Mr. Warnica's inability to remember some events of the evening, including the demand.

I would personally have difficulty,without expert psychiatric or medical evidence, in necessarily equating later inability to remember with inability to comprehend at thetime of the demand.” (emphasis added) [12] In my opinion the evidence clearly demonstrates the accused understood what was being asked of her and chose not to comply. The accused has not established, on a balance of probabilities, a reasonable excuse for her non-compliance and accordingly, I am findingher guilty of failing to provide a proper breath sample. ____________________ Slough, P.J.