Her Majesty the Queen - v. -, 2012 SKPC 174

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 174 Date: November 21, 2012 Information: 45562419 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jonathan C.M. O ’Connor Appearing: Dana J. Brule For the Crown Louis A. Browne For the Accused DECISION C.C. TOTH , ACJ Cases Considered

[1] I have considered the following cases: R. v. Allchurch, 2004 SKPC 62 R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 R. v. Brouillette, 2009 SKQB 422 R. v. Collins, (SCC), [1987] 1 S.C.R. 265 R. v. Dolezsar, 2010 SKPC 142 R. v. Gunn, 2012 SKCA 80 R. v. Kowalchuk (1999), (SK KB), 179 Sask. R. 31 (Q.B.) R. v. Langan, 2000 SKQB 67 R. v. Leedahl, 2002 SKCA 5 R. v. Lewko, [2002] S.J. No. 622, 2002 SKCA 121 R. v. Menkerios, 2011 SKQB 128 R. v. Niles, 2000 SKQB 63 R. v. Pearce, 2003 SKQB 105 R. v. Reinhardt, 2008 SKPC 72 R. v. Scott, 1999 CarswellAlta 76 R. v.

Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, aff’d (SCC), [1994] 2 S.C.R. 478 R. v. Svennes, 2011 SKQB 137 R. v. Tardij, 2010 SKPC 74 R. v. Tremblay, (SCC), [1987] 2 SCR 435 R. v. Vigoren, 2009 SKPC 136 R. v. Willier, 2010 SCC 37 [2] Legislation referred to: Criminal Code of Canada, R.S.C. 1985, c. C-34, s. 254(2). 254(5) Charter of Rights and Freedoms, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 BACKGROUND [3] A blended trial and voir dire took place before me regarding Jonathan C.M. O’Connor who is charged that on or about the 8th day of March 2011, at or near Regina, Saskatchewan, he did: 1. Operate a motor vehicle while his ability to do so was impaired by alcohol contrary to section 253(1)(

a) of the Criminal Code. 2. Without reasonable excuse, fail to comply or refuse to comply with a demand made to a peace officer pursuant to section 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, contraryto section 254(5) of the Criminal Code. [4] The trial proceeded with a voir dire on the Charter issues. Both counsel agreed that all admissible evidence heard on thevoir dire was to be applied to the trial proper.

During the voir dire the Crown called the arresting officer, Constable Tanner Maurice andthe officer who administered the Intoxilyzer, Constable Tyler Bacon. The defence called the accused, Jonathan O’Connor, as well as hisparents, Donald O’Connor and Linda O’Connor, and his girlfriend Andrea Stengler. Defence also called an expert witness, Ms. MaryEllen Scott.

[ 5 ] Counsel for the defence advised the Court that he would be arguing that the accused’s sections 8 , 9 , and 10(

b) Charter rights were breached. [ 6 ] The accused argues that he was arbitrarily detained, violating his

section 9 right. He questions the validity of the arrest, claiming that the officer did not have requisite reasonable and probable grounds. He further argues that, flowing from this initial breach, requiring him to provide a sample of his breath for analysis was a breach of his right to be free from unreasonable search and seizure pursuant to

section 8 of the Charter . [ 7 ] The accused made a third Charter argument, claiming that his

section 10(

b) rights were violated when he was not permitted to contact his parents to obtain information for his family’s lawyer. [ 8 ] The accused also asserts that there was not sufficient evidence to prove beyond a reasonable doubt that he was driving while impaired by alcohol. [ 9 ] Finally, the accused submits that he has a reasonable excuse for his refusal to provide a breath sample for analysis. ISSUES [ 10 ] The issues to be resolved are: 1. Did the arresting officer have sufficient grounds to arrest the accused for impaired driving and the subsequent breath demand? 2. Was the accused’s right to counsel of choice under

section 10(

b) of the Charter violated when he was not permitted to contact his parents to obtain his lawyer’s information? 3. If one or more Charter breaches are found, what is the appropriate remedy? 4. Has the Crown proven beyond a reasonable doubt that the accused operated a motor vehicle while impaired by alcohol? 5. Has the Crown proven beyond a reasonable doubt that the accused failed, without reasonable excuse, to comply with the officer’s breath demand? EVIDENCE Constable Tanner Maurice [ 11 ] At the time of trial, Constable Tanner Maurice was a four year veteran of the Regina Police Service.

He stated that he personally dealt with people under the influence of alcohol at least once per shift. [ 12 ] Constable Maurice was on duty on March 8, 2011, working as a “one man” patrol unit in the Central District of Regina. He testified that just before 10:00 p.m. he observed a truck pull out of the parking lot of the Press Box sports bar onto Albert Street. He observed the vehicle to be partially blocking the northbound lanes of Albert Street as it waited to turn south on the same street.

The officer could discern no reason for this as he observed no oncoming traffic which would have prevented the driver from immediately making the turn. Constable Maurice also observed a northbound vehicle swerve to avoid the truck as it was attempting to make the turn. [ 13 ] At this point Constable Maurice executed a U-turn and began following the vehicle. He noted that the truck was travelling in

the left-hand lane at approximately 30-40 kilometres per hour. After following the vehicle for a number of blocks, he observed it to proceed into the turn lane at 7 th Avenue in order to make a left-hand turn. The vehicle appeared to have some difficulty moving into the lane, only entering halfway into the turn lane. The officer then watched as the vehicle made a “diagonal and shallow” left turn. [ 14 ] Having completed the turn, the truck then proceeded immediately to turn right, into an alley, continuing down the alley, crossing 8 th Avenue. Constable Maurice followed a similar path down a parallel street.

He then turned onto 8 th Avenue, turning immediately left and followed the vehicle as it continued down the alley. [ 15 ] After proceeding down the alley, the truck then turned right onto Dewdney Avenue, and proceeded into the left-hand turning lane to once again travel south on Albert Street.

As the vehicle turned onto Albert Street, the constable again observed a very shallow left turn, with the tail of the vehicle coming extremely close to, and nearly striking, the dividing meridian. [ 16 ] Constable Maurice stated that he followed the vehicle for in excess of five minutes and that at no point during this time did the vehicle violate any traffic laws, nor was it observed to be operated in any other abnormal fashion. [ 17 ] Constable Maurice stated that it was at this time he decided to initiate a traffic stop for the purposes of checking the driver’s sobriety.

He activated his emergency equipment and continued following the vehicle. The truck, having remained in the left-hand lane, signalled a left turn and eventually pulled into a parking lot, coming to a stop. [ 18 ] Constable Maurice exited his vehicle, approached the truck and took the licence and vehicle registration from the driver. Through this he was able to confirm that the driver of the truck was not the registered owner. At trial, Constable Maurice positively identified the accused, Jonathan O’Connor, as the same person he pulled over on March 8, 2011. [ 19 ] While investigating Mr.

O’Connor at the roadside, Constable Maurice inquired if he had consumed any alcohol that evening. Mr. O’Connor admitted both to having some drinks at home as well as a drink at the Press Box. [ 20 ] The officer testified that Mr. O’Connor’s speech mannerisms were odd in that he was focussing very carefully on what he was saying, speaking very slowly and deliberately. He further stated that he observed the driver to have a “glassy” or “watery” look to his eyes. [ 21 ] Constable Maurice then asked the accused to step out of the truck and accompany him to the passenger’s side of the police car.

The officer did not observe anything unusual with Mr. O’Connor descending from the vehicle, nor with his gait or stride. [ 22 ] After having seated Mr. O’Connor in the back of the police car, Constable Maurice was able to discern what he described as a “faint odour” of beverage alcohol. [ 23 ] At this time another officer, Constable Diebert, attended the scene to provide Constable Maurice with an Approved Screening Device (ASD). At 10:05 p.m., Constable Maurice read the ASD demand to Mr. O’Connor. [ 24 ] It was from this point that the accused began to assert his desire to have a lawyer involved.

Constable Maurice replied to the accused that he was not under arrest but that he was required to comply with the ASD demand. The constable also took note of the fact that the accused did not appear to understand what was being asked of him, requiring him to present the ASD demand to Mr. O’Connor in more simplistic terms. [ 25 ] Also at this time, while seated in the back of the police vehicle, after the ASD demand but prior to providing samples, Mr. O’Connor’s telephone rang. He spoke with the caller briefly, telling them that he had been picked up for “DUI” and asked the caller to come and pick him up.

Constable Maurice insisted that the accused discontinue this phone call as he was conducting an investigation.

[ 26 ] Having received a full explanation and demonstration of the ASD, Mr. O’Connor provided a breath sample into the mouthpiece. The sample provided was insufficient such that the ASD registered an error. Constable Maurice, being trained in the device, was of the opinion that the machine was working properly. He did not observe any air leakage or lack of seal on the mouthpiece. [ 27 ] Constable Maurice testified that the accused made five further attempts to provide an ASD sample, none of which resulted in a successful test. [ 28 ] At 10:17 p.m.

Constable Maurice concluded that he had sufficient grounds to arrest Mr. O’Connor for impaired driving. He stated his grounds to be the unusual driving pattern and route, the admission of consumption, the smell of alcohol, the accused’s speech, the failure of the accused to understand the directions with respect to the ASD, and his inability to control his breathing when attempting to provide a sample. [ 29 ] Mr. O’Connor was read his right to counsel and when asked if he wished to contact counsel, answered affirmatively, requesting that the officer wait 45 minutes.

Constable Maurice admitted to not knowing the reason for this request. The accused was placed in handcuffs and transported to the Regina Police Service. [ 30 ] Upon arriving at the detachment, Mr. O’Connor was placed in a telephone room to contact a lawyer. The room was equipped with a telephone which would put the detained person in contact with an operator whose job would be to dial the requested number.

Also in the telephone room was a list of all lawyers and legal counsel copied from the telephone book. [ 31 ] Constable Maurice stated that the accused then became difficult to deal with and that he wished to contact his father. The officer asked whether Mr. O’Connor’s father was a lawyer to which the accused replied in the negative but reasserted his demand to speak with his father nonetheless. The constable informed the accused that he was not permitted to contact his parents unless they were lawyers. The constable further informed Mr.

O’Connor that he was permitted to speak with any lawyer he wished, or Legal Aid counsel. Constable Maurice asserted that he did not tell Mr. O’Connor that he had to contact a lawyer from the list. [ 32 ] Constable Maurice then queried whether the accused wished to speak with his father to obtain information with respect to a family lawyer. Mr. O’Connor agreed that this was the case. The officer stated that this conversation continued for 10 to 15 minutes at which point it was agreed that Constable Maurice would contact Mr.

O’Connor’s father to get the family’s lawyer’s information. [ 33 ] The officer stated that he then attempted to reach Mr. O’Connor’s family, attempting phone calls to both his mother and father’s cell number as well as the family home phone number. Constable Maurice explained that these numbers were either obtained from Mr. O’Connor personally or from his cell phone. The constable testified that he called some of the numbers multiple times. These phone calls were made from the constable’s work station in the cells area. [ 34 ] Constable Maurice informed Mr.

O’Connor that he was unable to make contact with his family and once again provided him an opportunity to contact other counsel. Mr. O’Connor continued to demand that he speak with his father. This conversation continued for another three to five minutes. At this time it became clear to the constable that the accused would not cooperate and that he would not give up the idea of contacting his father. [ 35 ] Concluding that the accused was not making any efforts to contact a lawyer, he proceeded with the accused to the “breath room”.

The constable says that he concluded the accused declined his right to contact a lawyer as he had refused to pick a lawyer. He said that he was satisfied that a “very reasonable opportunity” had been permitted to the accused to contact counsel. He admitted that he could have permitted the accused to contact his father directly, but was satisfied that there was no answer at that phone number. [ 36 ] Mr. O’Connor was then brought into the “breath room” where Constable Bacon had been preparing to administer the Intoxilyzer. Upon being presented with the mouthpiece, he did not provide a sufficient sample.

Constable Maurice thought that he was intentionally not blowing hard enough. Also, after the first attempt, Mr. O’Connor removed a small piece of chewing tobacco from his mouth. After this was found, the accused’s mouth was inspected for further material. He was then removed from the breath room.

[ 37 ] Mr. O’Connor once again began to argue that he be allowed to contact his parents, complaining that he had already complied with all of the officer’s demands. Constable Maurice then explained to him the consequences of failing to provide two suitable breath samples. To this the accused once more responded with his argument. [ 38 ] At approximately 11:20 p.m. Constable Maurice concluded that Mr. O’Connor was not going to cooperate and provide suitable breath samples. The accused was then read his rights and warnings and once again asked if he wished to contact a lawyer. Mr.

O’Connor restated his desire to speak with his parents. Having been charged with refusal, he was booked into cells. Constable Tyler Bacon [ 39 ] As of March 8, 2011, Constable Bacon had been employed by the Regina Police Service for approximately 3 ½ years. He is qualified in the operation of Intoxilyzer equipment. [ 40 ] At 10:30 p.m. on that date he was requested to attend the cells area of the police detachment for the purpose of administering a breath test. [ 41 ] Constable Bacon stated that Jonathan O’Connor was accompanied to the breath room by Constable Maurice.

At this point he began preparations to initiate the breath test sequence. [ 42 ] He was then advised by Constable Maurice that Mr. O’Connor had requested to speak with counsel. [ 43 ] Upon Mr. O’Connor’s return, Constable Bacon once again prepared to administer the breath test. He initiated the machine and began the testing sequence on the instrument. He stated that the machine was an Intoxilyzer 5000C, an instrument for which he was qualified, and that the machine was in good working order at the time. [ 44 ] When initial procedures were completed, Mr.

O’Connor was asked to step into the breath room to provide a sample. Constable Bacon testified that he explained the test procedure to Mr. O’Connor and then asked him to blow into the instrument. He says that the accused blew very lightly. He observed air moving through the mouthpiece, noting that the mouthpiece fogged up slightly, but it was insufficient to generate a tone from the machine. [ 45 ] Constable Bacon then took the mouthpiece away and once again explained to the accused how to blow properly. The accused again proceeded to blow into the mouthpiece.

During this second attempt the constable noticed air flowing over his hand from the mouthpiece. He testified that he could not ascertain if the mouthpiece was defective or if Mr. O’Connor failed to make a proper seal around the mouthpiece. [ 46 ] Constable Bacon selected a second mouthpiece and continued to have Mr. O’Connor provide a sample. On the third attempt, sufficient air pressure passed through the machine to generate a tone for about three seconds but was insufficient to obtain a suitable sample.

Constable Bacon stated that when the instrument ceased emitting a tone due to insufficient air pressure passing through the machine, the accused stopped blowing. [ 47 ] At this time Constable Bacon noticed chewing tobacco in Mr. O’Connor’s mouth. He had him remove the tobacco and, as he was concerned that chewing tobacco could have contained mouth alcohol, he had Mr. O’Connor wait outside for 15 minutes to allow any such alcohol to clear. [ 48 ] During this time period Mr. O’Connor was seated in the hallway. Constable Bacon testified that Mr. O’Connor was speaking

with Constable Maurice about contacting his parents. Constable Bacon also stated that he went through the Intoxilyzer check sheet with Mr. O’Connor. [ 49 ] On his check sheet Constable Bacon noted Mr. O’Connor’s coordination and balance as “fair” and noted that the accused had bloodshot and glassy eyes, his breath smelled moderately of liquor, he was smacking his lips and slurring his words, and had a dry mouth and a poor attitude.

On cross-examination Constable Bacon admitted that “fair” could mean the same thing as good with respect to describing the accused’s balance and coordination. [ 50 ] Constable Bacon stated that his observation of the accused’s poor attitude was based on the “lengthy” argument with Constable Maurice in regards to contacting his parents. He overheard this discussion and could tell that the accused was getting frustrated. He does not recall that the accused spoke directly with him in regards to contacting the lawyer.

The constable’s notes recorded only the fact that the accused was “adamant” about speaking to his parents, not the fact that he wished to speak to a family lawyer. [ 51 ] Constable Bacon also proceeded with a standard list of 10 questions. While the accused only responded to three of those questions, when asked if he had been given an opportunity to contact a lawyer, he replied in the affirmative. He also stated that he had consumed four drinks, consisting of beer. [ 52 ] After approximately 15 minutes had passed, Mr. O’Connor was once again requested to provide a sample. At this time, he declined to do so.

Constable Bacon stated that Constable Maurice encouraged Mr. O’Connor to provide the sample to which the accused once again declined. It was at this time that Constable Bacon observed Constable Maurice read the accused his rights and warnings for the refusal. Jonathan O ’Connor [ 53 ] Mr. O’Connor was 31 years old at the date of the alleged offence. He testified that when he finished work at the Co-op Refinery that day, he decided to have a few drinks at home with his friend Kinsey who also worked at the refinery. [ 54 ] Mr.

O’Connor stated that they arrived at his home around 4:00 p.m. and that he had a vodka and coke. He stated that he had four such drinks between 4:00 p.m. and 9:00 p.m. with the amount of alcohol in each being a “finger” per cup. [ 55 ] Mr. O’Connor stated that at around 9:30 p.m. he and Kinsey arrived at the Press Box sports bar. He testified that while there he consumed one vodka and coke. He also testified that he spoke with his girlfriend on the phone and agreed to meet at her home shortly thereafter. He stated that he and his friend departed the Press Box at around 9:45 or 9:50 p.m. Mr.

O’Connor explained that they were using Kinsey’s vehicle as it was a newer truck and he wanted to drive it. [ 56 ] Mr. O’Connor gave evidence with respect to his manner of driving, asserting that he had been looking for the Cree Land Mini-Mart to purchase fuel and that, as he had been unsure of the location, he was driving slowly. [ 57 ] Mr. O’Connor explained the vehicle’s difficulty in making turns as a consequence of a power steering malfunction which had been earlier pointed out to him by Kinsey. However, when further examined on this point, Mr.

O’Connor admitted that such a malfunction would cause a vehicle to make wider turns. [ 58 ] Mr. O’Connor testified that his choice of driving route was due to a concern that his friend had consumed too much alcohol and was feeling sick. He stated that he turned down the alley because his friend looked like he was going to “puke”. [ 59 ] Upon being stopped by Constable Maurice, Mr. O’Connor said that he was being careful with his speech as he curses a great

deal and he was attempting to avoid doing so in his dealings with the officer. [ 60 ] Mr. O’Connor stated that he attempted to provide an ASD sample at least twice and that he thought he was doing fine in his attempts. He also stated that, during this time, he had chewing tobacco in his mouth. [ 61 ] Mr. O’Connor also testified that he telephoned his parents from the roadside as he was growing concerned about his situation. He said that he spoke with his father about the possibility of a roadside suspension.

He further testified that his father had promised to attend the scene. [ 62 ] Upon his arrival at the Regina Police Services detachment, Mr. O’Connor testified that he was placed in a phone room. He stated that this was the first time he had been provided with his right to counsel and that he had not been provided with such when he was arrested. [ 63 ] Mr. O’Connor further testified that he would not be permitted to contact his parents to get a lawyer’s number and that he was told to use a list of court-appointed lawyers. He stated that he did not see any lawyer list. Mr.

O’Connor recalls that he was asked about five times if he wanted to contact a lawyer to which he responded with a request to contact his parents. [ 64 ] Mr. O’Connor said that he was told the officer would contact his parents for him. He observed an officer in the background using his cell phone. Mr. O’Connor stated that when the officer returned, he was told that his parents could not be reached. He further stated that he did not see the officer speaking on the phone. [ 65 ] At this time Mr. O’Connor claimed that he was once again directed to a list of court-appointed lawyers.

He stated he again insisted that he be permitted to contact his parents in order to obtain information for his family’s lawyer. [ 66 ] Mr. O’Connor explained that he was then taken to the breath room where he was asked to provide a breath sample. He said he took the chewing tobacco out of his mouth, attempted to blow and put the tobacco back in. He stated that he was then directed to remove the tobacco from his mouth and provide a further sample. On the second attempt he heard a tone from the machine.

He testified that he stopped blowing into the machine when he ran out of breath. [ 67 ] He was then asked to step outside the breath room and wait. At this point he was again asked if he wished to speak with a lawyer. He stated that he again insisted that he be permitted to contact his parents and that he was once more directed to the list of court- appointed lawyers. [ 68 ] Mr.

O’Connor testified that by this time he was feeling frustrated and that when he was next requested to provide a sample, he informed the officer that he was “done with this”, feeling that he had cooperated sufficiently but was not getting “what he needed in return”. [ 69 ] At trial Mr. O’Connor claimed that he did not drink and drive. However, having made such a statement, evidence was adduced as to a previous conviction for impaired driving, stemming from an incident ten years previously. [ 70 ] Mr. O’Connor also adduced an expired inhaler at trial as evidence demonstrating his breathing problems.

He admitted that he does not take care of his health problems and that he had been smoking throughout the day prior to being stopped by police. Donald “Chuck ” O ’Connor

[ 71 ] Donald O’Connor is the father of Jonathan O’Connor. On March 8, 2011, Donald O’Connor was sitting at home watching television. [ 72 ] Donald recalled receiving a phone call from his son Jonathan at approximately 10:05 or 10:10 p.m. He stated that he and his son discussed the possibility of a roadside suspension. He said that he did not note any speech problems with his son. [ 73 ] Donald testified that he and his wife Linda O’Connor proceeded to leave the house in their vehicle to attend the scene where their son had been stopped. They arrived at the parking lot at approximately 10:25 or 10:30 p.m.

Donald stated that he observed a police car and a tow truck. Linda got out of the vehicle and spoke with the officer on the scene for one or two minutes. [ 74 ] Following this, Donald and Linda proceeded to Regina Police Services. Donald stated that upon arriving, Linda attended the detachment and spoke with someone via telephone. She then returned to the car and said that she was told that Jonathan was not at the detachment. They decided to return to the parking lot to follow up in their attempts to locate Jonathan.

Upon returning to the parking lot, they found nobody. [ 75 ] Donald testified that at this time he attempted to reach his son by telephone and that there was no answer. He said that he also checked his home phone for messages. There were none. [ 76 ] They then decided to return to the police detachment once more where Donald placed a call to the switchboard. During this call, it was confirmed that Jonathan was present at the detachment.

He was told that as his son was not a minor, he would not be permitted to speak with him or leave a message. [ 77 ] At this point Donald and Linda went to the home of Joanthan’s girlfriend, Andrea Stengler. Donald testified that he once again attempted to call Jonathan and checked for messages at home. He was again unsuccessful in reaching his son and there were no messages. [ 78 ] Upon arriving at home, Donald confirmed that nobody had called his home phone during the time that he and his wife had been out. [ 79 ] Donald confirmed both his cell phone and home phone number for the Court.

Both of these numbers are identical to those used by Constable Maurice on the night of the arrest. The number identified by Constable Maurice as belonging to Donald was identified as actually belonging to the accused’s grandmother. The number identified by Constable Maurice as belonging to the accused’s mother was identified by Donald as belonging to his personal cell phone.

Both Donald and Constable Maurice were in agreement on the home phone number. [ 80 ] Donald also stated that their family has had a lawyer for about thirty years and that they had the contact information for that lawyer’s home and office at the time of Jonathan’s arrest. Donald also confirmed that one of the numbers used that evening by Constable Maurice was that of Jonathan’s grandmother. [ 81 ] With respect to Jonathan, Donald O’Connor stated that his son had strong allergies and that he always had glossy eyes. Linda O ’Connor [ 82 ] Linda O’Connor is the mother of Jonathan O’Connor. Mrs.

O’Connor’s evidence is substantially similar to that which was provided by Donald O’Connor with respect to the happenings of March 8, 2011.

[83] Mrs. O’Connor stated that when she arrived at the parking lot the first time, she was told by the officer on scene that Jonathanhad been taken to the police station. She also stated that the first time she attended the Regina Police Service detachment she wasinformed that her son was not present at the station. [84] Mrs. O’Connor further testified that she did not have any contact with her son that evening. [85] She also confirmed that the family had only one cell phone at the time and that she was unfamiliar with the number which hadbeen identified by Donald as belonging to Jonathan’s grandmother.

Andrea Stengler [86] Ms. Stengler was the girlfriend of Jonathan O’Connor on March 8, 2011. She confirmed that she spoke with Jonathan ataround 9:30 p.m. and was told that he was at the Press Box. She stated that he sounded normal on the phone and that she would havebeen able to tell if he had been drinking. Mary Ellen Scott [87] Ms. Scott works full-time as a pharmacist.

She was qualified to give evidence on alcohol absorption and elimination,sampling techniques of both approved screening devices and Intoxilyzer machines, the effects of asthma on the ability to providesamples, as well as in the area of allergies and allergens. [88] Ms. Scott gave evidence to the effect that, if Mr. O’Connor has consumed the amount of alcohol to which he attested, hisblood alcohol content would have ranged from less than 10 milligrams percent to as high as 53 milligrams percent. [89] Ms.

Scott testified that, all indicia reported as well as those indicia not noted by Constable Maurice and Constable Bacon,pointed to a person who was not impaired by alcohol. [90] As regards an ability to provide samples, Ms. Scott stated that a person with asthma having an asthma attack would not beable to provide a sample into an ASD or Intoxilyzer. She also stated that a significant allergic reaction would create a tendency for areduced ability to provide such a sample.

ANALYSIS Did the arresting officer have reasonable and probable grounds to arrest the accused for impaired driving, and make asubsequent breath demand? [91] In a Charter application the onus rests on the accused to prove, on a balance of probabilities, that the breaches alleged havebeen made out: R. v. Collins, (SCC), [1987] 1 S.C.R. 265 at para. 30. [92] In this case the accused alleges that Constable Maurice did not have reasonable and probable grounds to arrest him forimpaired operation of a motor vehicle.

He contends that this arrest and the subsequent breath samples constituted a breach of his right tobe free from arbitrary detention under

section 9 of the Charter and unreasonable search and seizure under

section 8 of the Charter. [93] In order to make a lawful breathalyzer demand, an officer must believe on reasonable and probable grounds that the personhas committed the offence. The officer must subjectively have an honest belief that the suspect has committed the offence and there

must exist reasonable objective grounds for this belief: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at para. 48. [94] Where an accused challenges the validity of the breath demand on the basis that the officer’s belief was not reasonable, thetrial judge must consider whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officer wouldhave believed the individual’s ability to operate a motor vehicle was impaired: Gunn, supra, at para. 8. [95] Constable Maurice relied on the following factors to support his belief that Mr.

O’Connor had been driving while impaired byalcohol: 1. The truck was observed leaving a bar. It then proceeded on an unusual course and had obvious difficulty remaining in thedriving lane and turning; 2. The driver admitted to having several drinks that day; 3. The officer discerned a smell of beverage alcohol; 4. The accused had glassy, watery eyes; 5. The accused was speaking deliberately and slowly; 6.

The accused had difficulty understanding directions he was given as well as apparent difficulty controlling his breathing whenattempting to provide an ASD sample. [96] I am therefore satisfied that Constable Maurice had a subjective belief that the accused had committed the offence and thatthis belief was objectively reasonable. A reasonable person standing in the shoes of Constable Maurice that evening would have areasonable basis to believe that Mr.

O’Connor was impaired. [97] As such, the accused has not demonstrated that Constable Maurice lacked the necessary grounds to make the arrest and thebreach of his Charter rights under sections 8 and 9 have not been demonstrated. Was the accused’s right to counsel of choice under

section 10(

b) of the Charter violated when he was not permitted to contact hisparents? [98] The accused has alleged a breach of his rights under

section 10(

b) of the Charter. He submits that this breach was a result ofhim not being permitted to speak with his parents to obtain the contact information for his family’s lawyer. Defence counsel suggeststhat the accused ought to have been permitted to dial the phone himself and that this would have ultimately furnished him with sufficientopportunity to speak with his chosen counsel. [99]

Section 10(

b) of the Charter states: 10. Everyone has the right on arrest or detention ... (

b) to retain and instruct counsel without delay and to be informed of that right [100] The onus lies on the accused to establish non-compliance with the Charter: R. v. Leedahl, 2002 SKCA 5; Collins, supra. [101] In R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 at 191-192, Chief Justice Lamer explained the three dutiesincumbent on state authorities who arrest or detain a person:

(1)​​ ​​ ​ to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of LegalAid and duty counsel; (2)​​ ​​ ​ if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3)​​ ​​ ​ to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [102] In Leedahl, supra, the Court of Appeal explained: The first duty is an​informational​one which is directly in issue here.​ The second and third duties are more in the natureof​implementational duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel.

Importantly, the right to counsel under​s. 10(

b) is not absolute.​ Unless a detainee invokes the right and is reasonably diligent in exercisingit, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in thefirst place or will be suspended: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435, at p. 439, and​R. v. Black,(SCC), [1989] 2 S.C.R. 138, at pp. 154-55 (at para. 14). [103] More recently, in R. v. Willier, 2010 SCC 37, the Supreme Court confirmed the principles in Bartle, supra, and explainedfurther: Detainees who choose to exercise their​s. 10(

b) right by contacting a lawyer trigger the implementational duties of the police.​ Theseduties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning thedetainee until that reasonable opportunity is provided.​ However, these obligations are contingent upon a detainee’s reasonable diligencein attempting to contact counsel:​​R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435;​R. v.

Black, (SCC), [1989] 2S.C.R. 138;​R.​v.​Smith, (SCC), [1989] 2 S.C.R.​368.​ What constitutes reasonable diligence in the exercise of the right tocontact counsel will depend on the context of the particular circumstances as a whole.​ As Wilson J. stated in​Black, at pp. 154-55: ​ A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counselif he wishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrainfrom questioning the accused are suspended:​ see​R. v.

Tremblay, (SCC), [1987] 2 S.C.R. 435. [34]​Such a limit on the rights of a detainee are necessary, as Lamer J., as he then was, noted in​Smith, “because without it, it would bepossible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence tobe lost, destroyed or rendered impossible to obtain.​ The rights set out in the​Charter, and in particular the right to retain and instructcounsel, are not absolute and unlimited rights.​ They must be exercised in a way that is reconcilable with the needs of society” (p. 385). [104] The right to counsel also encompasses the right to counsel of one’s choice: R. v.

Langan, 2000 SKQB 67. The Supreme Courtin Willier, supra, further explained that an accused is entitled to refuse to speak with other counsel and wait a reasonable amount of timefor their lawyer of choice to respond. In Willier, supra, the Court adopted the statement of Justice Lamer in R. v. Ross, (SCC), [1989] 1 S.C.R. 3: Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in​R. v.

Tremblay, (SCC), [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, thecorrelative duties imposed on the police and set out in​Manninen​are suspended.​​ Reasonable diligence in the exercise of the right to chooseone’s counsel depends upon the context facing the accused or detained person.​ On being arrested, for example, the detained person isfaced with an immediate need for legal advice and must exercise reasonable diligence accordingly.​ By contrast, when seeking the bestlawyer to conduct a trial, the accused person faces no such immediacy.​ Nevertheless, accused or detained persons have a right to choosetheir counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should beexpected to exercise the right to counsel by calling another lawyer. [105] The informational duty on Constable Maurice is not at issue in this matter.

It is clear that Mr. O’Connor was provided with theright to contact counsel numerous times. It is the implementational element of the duty which the accused has raised at trial. There is noquestion that Mr. O’Connor asserted his right to speak with counsel on numerous occasions throughout the investigation. It is also clearon the record that Mr. O’Connor specifically wished to speak with his family’s lawyer and that he wished to obtain the necessary contactinformation from his father. What remains to be considered, then, is whether police properly fulfilled their duties in response to this

request. The Duty of Police and Accused [106] In the recent case of R. v. Menkerios, 2011 SKQB 128, Justice Keene adopted a three-stage analysis in “right to counsel ofchoice” situations from R. v. Blackett (2006), 70 W.C.B. (2d) 212, [2006] O.J. No. 2999 (S.C.) (QL). This analysis had been previouslyapplied by Justice Foley in R. v. Ryland, 2010 SKQB 62: [29] It appears to me that the caselaw [sic] dictates this three stage analysis of these s. 10(b) “right to counsel of choice” situations: (

a) Did the police fulfill their duty to act diligently in facilitating the right of the accused to consult counsel of choice? If the trialjudge finds they fulfilled their duty then there is no breach of s. 10(b). (

b) If the police did not fulfill their duty then there are two possibilities: (

i) If the police breached their duty because they took no step to facilitate the right to counsel, then a breach of s. 10(

b) isestablished: Kumarasamy. (ii) If the police breached their duty because they made some effort but it is found not to constitute “reasonable diligence”,the trial judge must next decide whether the accused fulfilled his or her duty to act diligently to exercise the right to counsel. If theanswer is yes, then a s. 10(

b) breach is made out. If the answer is no, then this trumps the breach of duty by the police and there is nobreach of s. 10(b): Brydges; Richfield. (

c) If a breach of s. 10(

b) is established the court must then go on to consider whether or not to exclude the consequent evidenceunder s. 24(2). The conduct of the accused is a factor which the court can consider: Tremblay; Richfield. The court in Richfieldsuggested that the threshold for exclusion is higher in breathalizer [sic] cases: at para. 18. [107] I have reviewed a number of cases on what constitutes the implementational duty of police to facilitate contact with a detainedperson’s counsel of choice. [108] Defence counsel submitted the case of R. v. Niles, 2000 SKQB 63, in support of the purported breach of Mr.

O’Connor’s rightto counsel. In that case the accused had exercised his right to counsel of choice by making efforts to contact his chosen lawyer. It washeld that the accused’s refusal to contact Legal Aid, in the absence of some explanation as to why he could not wait to contact counsel ofhis choice, did not constitute a waiver of the right to counsel.

Justice Kovachs concluded that: If the appellant's right to consult counsel of his choice, before providing samples of his breath, is to be limited by factors such as timingor his counsel's immediate availability, he must be made aware of these limitations in order to make an informed decision respectingwaiver. The appellant was not so advised in this case and, accordingly, did not waive his right to consult counsel (para. 12). [109] The defence also relied on the case of R. v. Brouillette, 2009 SKQB 422. In that case the accused had been arrested forimpaired driving in the early hours of a Saturday morning.

He was taken to the police detachment where he requested to speak with aspecific lawyer. The police constable placed the call and then permitted the accused to listen to a recorded message indicating that theoffice was not open. The officer then asked him what he wished to do next.

On appeal the Court found that, as the officer was in totalcontrol of the telephone process, she should have taken further steps to facilitate contact with the accused’s counsel of choice instead of,in effect, asking him to choose another lawyer. [110] In Menkerios, supra, Justice Keene, relying on Willier found that a police officer had acted diligently by placing two phonecalls to law offices outside of normal business hours, followed up by offering an opportunity to call Legal Aid.

The Court also held thateven if the officer had not acted diligently, no breach could be found because the accused himself had made no efforts to contact othercounsel when his counsel of choice could not be reached. [111] In R. v. Svennes, 2011 SKQB 137, the accused argued that she had been deprived of her right to counsel because the officer didnot take further steps in assisting the accused contact a lawyer.

However it was also found in that case that the accused directed theofficer throughout the process in the attempts to make contact with the lawyer and that the officer ultimately did everything that theaccused would have done had she been making the calls herself. [112] A number of cases also provide specific guidance with respect to a detained person’s reliance on a third party, parent orotherwise, in order to obtain a lawyer’s contact information. [113] In Langan, supra, the accused stated his intention to speak with a lawyer obtained by his father, thereby designating his counselof choice.

A breach of the accused’s s. 10(

b) rights were found when the police constable ignored that request and phoned Legal Aid, ineffect making the choice of counsel himself. Like the present case, police were in total control of the telephone process. Justice Gereinheld that it was incumbent on police to contact the father or to permit the accused to do so. [114] Justice Gerein, in his decision, relied on the earlier cases of R. v. Tremblay, (SCC), [1987] 2 SCR 435 and R. v.

Kowalchuk (1999), (SK KB), 179 Sask. R. 31 (Q.B.).​ In Tremblay a violation of the s. 10(

b) right was found whenpolice permitted the accused to telephone his wife in order to have her contact a lawyer for him but did not await the outcome of thewife’s efforts: Langan, supra, at para. 34. [115] In Kowalchuk the accused person stated his intention to speak to a lawyer but did not have the number. The arresting officertelephoned Legal Aid and gave the phone to the accused.

Justice Matheson held that: [15] The evidence does not reveal that the appellant failed to exercise reasonable diligence in manifesting his intention to consult counselof his own choice; he was never given an opportunity to do so.​ The fact that, after consulting Legal Aid counsel chosen by the arrestingofficer, the appellant did not expressly request of the arresting officer the right to consult with another lawyer does not detract from thefact that the appellant was initially denied the right to consult counsel of his own choosing. [116] In R. v.

Pearce, 2003 SKQB 105, Justice McIntyre found that the accused had exercised reasonable diligence when he calledhis father, did not get through, but explained to the officer that he expected a return call shortly. The accused wished to consult his fatherabout a lawyer. It was held that, because the accused reasonably expected a call back, he should have been granted a further opportunityto contact counsel before giving samples. In that case, the accused was arrested outside of normal business hours and was not providedwith the toll-free number to Legal Aid. [117] R. v.

Allchurch, 2004 SKPC 62, was very similar to Pearce. In that case the accused reached his mother at home but she couldnot provide him with the name of a lawyer. However, the accused was told that his father would return in 10 minutes. The accusedasked officers to wait 10 minutes. They indicated that they could not. Therefore the accused spoke to Legal Aid duty counsel. A breachof s. 10(

b) was found and the evidence was excluded. [118] In R. v. Reinhardt, 2008 SKPC 72, the accused stated his desire to speak with his father’s lawyer. Judge Morgan held thatwhere an officer has taken over the process of handling the phone, there is a duty on the officer to do at least as much as the accusedwould have done. In that case the accused would have phoned his father to get the name of the lawyer. The officer did not undertake todo this or permit the accused to do so. A breach of his rights was found.

It was also relevant that the accused in Reinhardt was 19 yearsold, still living at home and inexperienced in the process. Judge Morgan held that this would have been the logical course of action for aperson in the position of the accused. [119] In R. v. Vigoren, 2009 SKPC 136, Judge Klause held that the accused's right to counsel of choice was not breached in a situationwhere the accused was provided with calls to a parent who was then going to obtain a lawyer. The accused advised the police officerthat he was making efforts to contact a lawyer, which efforts were ultimately unsuccessful.

In this case police then assisted the accusedin contacting Legal Aid. [120] Finally, in R. v. Dolezsar, 2010 SKPC 142, cited by defence counsel as an example of how an officer approached theimplementational duty, the accused was permitted to contact her father to obtain the information for the family’s lawyer, with whom shewas subsequently put in touch with. [121] As previously pointed out, there is no question that Mr. O’Connor asserted his right, vigorously and continuously, to speak withhis father to obtain the information for the family’s lawyer.

Thus I am persuaded that the accused initially fulfilled his obligation in thathe identified and pointed out to the officer the counsel with whom he wished to speak, that being his family’s lawyer. He could havedone nothing more as the police were in total control of the telephone process and had taken away his cell phone. [122] Acceding to the request of the accused, Constable Maurice agreed to make contact with Mr. O’Connor’s family. He tried all ofthe numbers provided, some more than once. There is no evidence that any messages were left at any of the numbers.

Throughout thetrial Constable Maurice was a credible and reliable witness and I wholly accept his evidence. I am satisfied the officer phoned numbersin a bona fides attempt to reach the father of the accused. The accused agreed that he was told that Constable Maurice would attempt tocontact his father, and that he was subsequently advised that these efforts were unsuccessful. [123] Donald and Linda O’Connor gave evidence that they did not receive a phone call at any time throughout the evening of March,8, 2011.

Donald O’Connor also testified that his home phone had a message capability and that he had checked, and did not receive, anymessages throughout the evening. [124] Expert evidence on this point was not tendered. I do not know whether a call so placed to the father’s number is alwaysrecorded. I am not prepared to conclude that Constable Maurice pretended to phone or deliberately called numbers that were wrong.

Todo so would be to engage in unproven and unfair speculation. [125] I therefore find that multiple phone calls were placed by Constable Maurice and that these phone calls were not received by anyof the intended recipients. Defence counsel, in his brief advanced the proposition that an officer, when in control of the telephoneprocess, ought to do as much as the accused would have initially done which, in this case, would be to contact the accused’s parents. Indeed this position is supported by case law.

On that point, the evidence is clear that this is the very course of action taken byConstable Maurice. [126] The onus lies with the accused to establish, on a balance of probabilities, a breach of his Charter rights. I find that this onus hasnot been discharged. Constable Maurice fulfilled his obligation and was not required to do anything further. The failure to leave a phone

message was not a breach of Mr. O’Connor’s rights. The accused failed to provide any evidence on what other course of action he wouldhave taken to contact his father, nor did he provide any evidence which may have assisted the Court in explaining why these matterstranspired as they did. [127] This is not a case where the phone calls were placed to a third party and the accused was reasonably expecting a return call inshort order. Nor was this a case where phone calls to the third party were not permitted.

This is a case where the calls were placed, noanswer was received, no messages were left and no return phone call was reasonably anticipated. Furthermore, unlike Reinhardt wherethe accused very clearly required greater assistance due to youth and inexperience, Mr. O’Connor was not such a person.

He was 31years old and worked at a full-time responsible job. [128] I conclude therefore, that the first stage of the analysis in Menkerios, is satisfied and that Constable Maurice did fulfill his dutyto assist the accused in obtaining counsel of his choice. [129] I am also persuaded that there was no breach of the accused’s rights when I turn to the second branch of that analysis.

AsConstable Maurice clearly took some steps to facilitate the accused’s request, I consider the second alternative, where an officer may nothave undertaken sufficient efforts to facilitate the accused’s right to contact counsel of their choice. [130] In this respect, Constable Maurice’s efforts might be said to be deficient in that he did not leave a message at any of the phonenumbers provided by the accused. Donald O’Connor stated that there was an answering machine at home and that he checked it anumber of times. Constable Maurice did not leave any messages.

Thus, I draw the inference that the phone calls were made, wentunanswered and no messages were subsequently left. However, it is also of note that Donald O’Connor stated that his telephoneequipment would have provided information with respect to who, if anybody, had called his home phone. As his equipment did notregister any such information, I am once again left with the earlier conclusion; calls were made but were not received.

In such an event,it may not have been possible to leave a message and, it seems, such a message would likely have not been received. [131] Even if it were to be concluded that the constable’s actions were deficient, Menkerios requires that we consider whether theaccused was diligent in exercising his right to counsel. Both Menkerios and Vigoren, supra, illustrate that such diligence is demonstratedwhere an accused, when efforts to contact counsel of choice have failed, avails themselves of other options such as alternate counsel orLegal Aid.

This is especially so where circumstances such as the time of day or repeated failed phone calls dictate that counsel of choiceis not expected to become available or accessible within a reasonable period of time. Certainly this is a reasonable conclusion when thestatement of the Supreme Court in Willier is taken into consideration. [132] In this case it is very apparent that the accused did not make the effort required of him to contact counsel when he was informedthat Constable Maurice had been unable to reach his family at any of the numbers provided.

The accused, faced with such a dilemma,would have acted diligently in making efforts to contact other counsel either by consulting the telephone directory which was provided orLegal Aid. He did not. Mr. O’Connor repeatedly, and I might add, unreasonably, demanded to speak with his father when his father wasnot available. It was very clear to Constable Maurice that the accused would not relent in his demands and as such, the accused wastaken to provide a sample.

It is also telling that when Constable Bacon asked the accused if he had been provided the opportunity tocontact counsel he replied in the affirmative. [133] I find, therefore, that Mr. O’Connor was not denied his right to counsel and as such he has not demonstrated any such Charterbreach occurred. If one or more Charter breaches are found, what is the appropriate remedy? [134] Given my conclusions on the previous issues, it is not necessary to consider this question. Has the Crown proven beyond a reasonable doubt that the accused operated a motor vehicle while impaired by alcohol, contraryto section 253(1)(

a) of the Criminal Code? [135] In order to convict a person accused of impaired driving, a trial judge must be satisfied, beyond a reasonable doubt, that theaccused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment demonstrates any degreeof impairment, ranging from slight to great, the offence has been made out. Conversely, if the evidence is such as to leave a reasonabledoubt as to impairment, the accused must be acquitted: R. v. Stellato, (ON CA), [1993] O.J.

No. 18 (C.A.), affd. (SCC), [1994] 2 S.C.R. 478. [136] At trial, the accused adduced expert evidence to establish that he was not, in fact, impaired in any way. This expert testimony,however, was based on the accused’s own evidence with respect to alcohol consumption. As such, the expert evidence as to alcoholconsumption and related conclusions as regards impairment, are contingent on the credibility of the accused. [137] I have grave concerns about the credibility of the accused on this point. During his testimony, Mr.

O’Connor’s manner anddemeanour did not impress me as being that of a forthright and credible witness. Thus, I do not accept the accused’s evidence on hisalcohol consumption and consequently, cannot accept the expert evidence which was adduced in regards to impairment based on thatconsumption. [138] Notwithstanding my conclusion on the accused’s credibility, I am yet left with a reasonable doubt that the accused wasoperating a motor vehicle while impaired by alcohol. [139] Crown relied on R. v. Tardij, 2010 SKPC 74, as support for his position that the accused was, within the meaning of Stellato,

[139] Crown relied on R. v. Tardij, 2010 SKPC 74, as support for his position that the accused was, within the meaning of Stellato,supra, impaired by alcohol. In that case, the driver of a vehicle was observed to be following the police vehicle very closely, and thenproceeded to lead officers on a dangerous chase through parking lots and streets. When the accused was finally detained, he was notedto smell of beverage alcohol, have red, bloodshot eyes, and have slurred speech. [140] Defence counsel submitted the Alberta case of R. v.

Scott, 1999 CarswellAlta 76, as support for his position that the accusedwas not impaired. In that case, it was found that although the accused was heavily under the influence of alcohol at the time, the trialjudge was left with a doubt as to whether the accused’s ability to drive was impaired. [141] In the immediate matter, the accused’s vehicle was observed leaving the parking lot of a drinking establishment and thenfollowing an unusual route. The vehicle was observed to have difficulties completing left turns, nearly striking the median at least once.

The vehicle, upon being alerted by the police emergency lights, executed a left turn into a parking lot, instead of coming to a stop on theright side of the road. The accused smelled slightly of alcohol, had bloodshot, glassy eyes, was speaking deliberately and slowly, andhad apparent trouble providing a breath sample both at the roadside and later, at the police station. [142] Constable Bacon later noted that the accused smelled of alcohol, had bloodshot, glassy eyes, had white pasty lips, and wasslurring his speech. Constable Bacon also discovered the chewing tobacco in the accused’s mouth. [143] Mr.

O’Connor gave evidence on the manner of driving, explaining that the vehicle was not his own, that he was unfamiliar withit, and that he had been told by the owner (who was also his passenger at the time of the stop) that the vehicle had difficulties with powersteering. He further explained that his manner of speech was a result of his efforts to avoid using inappropriate language with the policeofficer. [144] I accept the accused’s evidence on the driving issue as such an explanation is consistent with the observations of ConstableMaurice.

The steering issue was consistent and apparent throughout the time period during which Constable Maurice followed the truck,a period of nearly five minutes. Constable Maurice did not note any other driving behaviours which would have indicated impaireddriving other than the persistent and recurring issue with making left turns. This gives credence to Mr. O’Connor’s explanation that thevehicle suffered from a steering defect. [145] I further accept the evidence of the accused with respect to his manner of speaking.

At trial the accused appeared to have apeculiar manner of speaking and was given frequently to the use of what would be considered by many as inappropriate language. [146] Finally, the accused’s pasty lips and smacking are consistent with the finding of chewing tobacco by Constable Bacon. While,as attested to by the constable, this is also indicative of dehydration due to alcohol consumption, I am not convinced that this is clearly soin this case. [147] This leaves the Court with the remaining constellation of indicia in determining whether or not the accused was impaired at thetime.

Certainly the indicia are consistent with alcohol consumption but what is lacking are any signs of impairment. Mr. O’Connorbrought his vehicle to a stop in a safe place and manner. He had no difficulty with coordination or balance, he attempted to follow theofficer’s instructions to provide a sample on a number of occasions and was cooperative on all matters not related to speaking to counsel. In his brief, Crown counsel suggested that the attitude of the accused was further indicia of impairment.

However, on both the evidenceof Constable Bacon and the accused, it is clear that he was frustrated and upset at the time due to not being permitted to speak with hisparents. While such a request may not have been appropriate, it is not unusual that a person would be frustrated by the denial of such arequest. [148] Furthermore, the opinion of Ms. Scott is of assistance in this determination. Ms.

Scott was of the opinion that the noted indiciadid not point to a person who was impaired by alcohol. [149] I am, therefore, left with a reasonable doubt that the accused’s ability to operate the vehicle was impaired on the date inquestion. This case is one which falls somewhere between the cases of Scott and Tardij, supra, as submitted by counsel. Certainly theaccused was under some influence of alcohol but his behaviour in no way demonstrates, beyond a reasonable doubt, that he was impairedby alcohol.

Did the accused fail, without a reasonable excuse, to provide a sample of his breath? [150] The next issue that I must address is whether Mr. O’Connor failed to comply with the demand for a sample of his breathand if so, whether he had a reasonable excuse for such refusal. [151] Section 254(5) of the Criminal Code states as follows: 254(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peaceofficer under this section. [152] In R. v. Lewko, 2002 SKCA 121 , [2002] S.J.

No. 622, 2002 SKCA121, Bayda C.J.S. set out the elements of theoffence of refusal in relation to a breath demand as follows at paragraph 9: The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existenceof a demand having the requirements of one of the three types mentioned in ss. (2) and (3). Second, the Crown must prove a failure orrefusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus). Third, the Crown

must prove that the defendant intended to produce that failure (the mens rea). [153] The Court went on to discuss the burden of proof when the question of a reasonable excuse arises at paragraphs 10 and20: 10 The proof by the Crown of the three elements (and the defendant's questioning of that proof by combatting the allegations of theprosecution without introducing any further issue) may be looked upon as the first stage of the proceedings. Once the Crown hasestablished the three elements of the offence in question, the defendant is presumed guilty and must be so found unless the defendantraises a defence.

That brings us to what may be looked upon as the second stage in the proceedings, namely, the presentation by thedefendant of his/her justifications or excuses - his/her defences. (I use the term "defence" in the narrow sense - for the distinctionbetween the broad and the narrow senses see Glanville Williams, Textbook of Criminal Law (London: Stevens & Sons, 1983) (2d ed.) at50-51.) In the case of the subject offence, a defendant is able to present not only a defence ordinarily cognizable by law, but a defenceconstituted by any excuse that is "reasonable".

This is the effect of the use of the phrase "without reasonable excuse" in the context of s.254(5). 20 What is the extent of the evidential burden? The defendant need only raise the question of the possibility of a reasonable excuse. Inthe words of Dickson C.J.C. in Schwartz, supra, (SCC), [1988] 2 S.C.R. 443, he need only put the "issue into play". How does he do that? He produces sufficient evidence of something that is capable of being a reasonable excuse. And how does he dothat?

McLachlin C.J.C. and Bastarache J. answer that question in relation to the air of reality test in this way: [53] In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by theaccused to be true. See Osolin, supra, (SCC), [1993] 4 S.C.R. 595; Park, supra, (SCC), [1995] 2S.C.R. 836. The evidential foundation can be indicated by evidence emanating from the examination-in-chief or cross-examination ofthe accused, of defence witnesses, or of Crown witnesses.

It can also rest upon the factual circumstances of the case or from any otherevidential source on the record. There is no requirement that the evidence be adduced by the accused. See Osolin, supra; Park, supra;Davis, supra, (SCC), [1999] 3 S.C.R. 759. [154] In the case at hand, I am satisfied that the Crown has established beyond a reasonable doubt the three elements of theoffence of refusal. As was discussed earlier, the officer had requisite grounds and a valid demand was made. Secondly, the samplerequired of Mr. O’Connor was not provided, despite several failed attempts.

Finally, the evidence was clear that Mr. O’Connor intendedhis refusal. At trial Mr. O’Connor stated that on the night of March 8, 2011, he finally reached the point where he was “done” with theprocess and refused to cooperate further. [155] The elements of the refusal are thus met and I must next consider whether the accused has raised a valid lawful excuse for hisrefusal. I conclude that he did not. The only argument advanced on this point was that the breach of Mr. O’Connor’s s. 10(

b) rightsresulted in his failure to comply with the breath demand. As I have found there to be no breach of the accused’s rights, this argumentcannot be advanced. CONCLUSION [156] Based on the foregoing, I find the accused, Jonathan O’Connor guilty of failing, without lawful excuse, to comply witha breath demand, pursuant to section 254(5) of the Criminal Code. [157] The accused is acquitted on the charge of impaired operation. C.C. Toth, ACJ