Her Majesty the Queen - v. -, 2013 SKPC 60

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 060 Date: April 4, 2013 Information: 43212361 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Barry W. Chamryk Appearing: Ms. M. Calvert For the Crown Mr. J. Reimer For the Accused TRIAL DECISION M.J. HINDS , J Introduction [ 1 ] A trial took place before me regarding Barry W. Chamryk who is charged that on or about the 30 th day of June A.D. 2012 at or near Regina, Saskatchewan, he did:

1. While his ability to operate a motor vehicle was impaired by alcohol operate a motor vehicle contrary to sections 255(1) and 253 (

a) of the Criminal Code . 2. Without reasonable excuse, refuse or fail to comply with a demand made to him by a peace officer pursuant to section 254(3) (

a) of the Criminal Code requiring him to provide samples of his breath for analysis, contrary to section 254(5) of the Criminal Code . 3.

Being at large on his undertaking given to a justice or a judge and being bound to comply with a condition thereof, to wit, that the accused shall refrain from the possession or consumption of alcohol and non-prescription drugs and do not enter any premises where the primary function is the sale or consumption of alcohol fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code . [ 2 ] The Crown called two witnesses to testify at the trial: Constables Corey Patron and Rick Kullman. Mr.

Chamryk testified in his defence, as did his friend Jason Davis and his general physician, Dr. Ian Cowan. [ 3 ] The charges arise as a result of a police investigation of a speeding motor vehicle driven by the accused, which occurred on Dewdney Avenue in the City of Regina on June 30, 2012. At approximately 12:15 a.m., Constables Patron and Kullman stopped the vehicle driven by the accused. He was accompanied by a passenger, Jason Davis. [ 4 ] Constable Patron had the accused exit his vehicle and get into the back of a marked patrol car.

Constable Patron observed that the accused had: red glassy eyes, difficulty retrieving his licence, smell of alcohol coming from him and that he swayed or staggered as he walked to the patrol car. As a result of these observations Constable Patron arrested the accused for impaired driving, read him his Charter rights and a police warning and made a demand for the accused to provide a sample of his breath into an approved screening device (ASD). [ 5 ] The accused blew into the ASD four times in the back of the patrol car.

Constable Patron testified that a person has to blow into an ASD for a minimum of 7 to 10 seconds, in order to provide a sufficient sample. The first three breaths resulted in an error message which appeared on the ASD. Constable Patron observed that during each of the first three breath samples, the accused coughed for three to four seconds. He described the cough as a “deep lung cough”. The accused provided a suitable sample of his breath into the ASD on his fourth attempt. This breath sample registered a fail message on the ASD.

Constable Patron subsequently demanded that the accused provide samples of his breath into an approved instrument at the police station. [ 6 ] The officers took the accused to the police station. Constable Kullman acted as the breath technician. The accused blew into the Intoxilyzer EC IR II a total of nine times. Separate mouth pieces were used for three sets of three breath attempts.

None of the breath attempts were of sufficient duration to obtain a suitable sample. [ 7 ] The accused told the officers he had asthma during the ASD and Intoxilyzer process. [ 8 ] The Crown stayed the charge of impaired driving during closing arguments. In addition, the defence admitted that the charge of breach of undertaking had been proven by the Crown. Issue [ 9 ] The sole issue to be dealt with is as follows: Did the accused have an asthmatic condition on June 30, 2012, which prevented him from providing suitable samples of his breath?

If so, does the accused’s asthmatic condition constitute a "reasonable excuse" for refusing to provide samples of breath within the meaning of that phrase in section 254(5) of the Criminal Code ? [ 10 ] The accused testified that he and his friend went to Casino Regina on the evening of June 29, 2012, where they watched a

football game. Afterwards the two went to a few nightclubs. The accused testified that as he was driving his vehicle that night, he had one beer with his supper and one beer later on in the evening. He denied that he was intoxicated that evening. [ 11 ] Jason Davis testified that he observed the accused drink two beers during the evening of June 29, 2012. The Accused ’ s Medical Condition [ 12 ] The accused testified that he has been an asthmatic for thirty years, since he was five years of age . In June of 2012, he used a blue inhaler for his asthma.

The blue inhaler contains ventalin which is a short acting bronchial dialator. The accused testified that when he used his blue inhaler it helped him with his breathing. He added that he had his blue inhaler in the console of his vehicle that night/early morning. He currently uses a flow vent steroid inhaler (pink inhaler) three times per day. He recently attended an Asthma Clinic in Regina on January 19, 2013. [ 13 ] The accused agreed that he blew into the ASD at the roadside four times and tried to blow into the Intoxilyzer at the police station nine times.

The Accused ’s Breath Samples at the Patrol Car [ 14 ] The accused testified that after his walk from his vehicle to the patrol car he had shortness of breath, was anxious and coughing while attempting to blow into the ASD. The accused further testified that at least once after his second attempt to blow into the ASD he told the police that he was asthmatic and that he was blowing with all the air that he had into the ASD. [ 15 ] On cross-examination the accused admitted that he did not ask the police for his blue (ventalin) inhaler.

He explained that during a previous encounter with other police officers, those officers did not provide him with his inhaler when he requested it. Hence, he assumed this was a police policy. [ 16 ] The accused also testified that after he became aware that he had failed the ASD, he became more stressed, his heart rate increased and he had a harder time breathing. The Accused ’s Breath Samples at the Police Station Breath Room [ 17 ] The accused testified that at the police station his breathing difficulties increased and he experienced problems providing breath samples.

In addition, he felt it was easier for him to breath in the patrol car as one of the doors was open and he was able to take in more air. Dr. Cowan [ 18 ] Dr. Ian Cowan is a general medical practitioner. He has over twenty years of general/family practice in the Province of Saskatchewan. Dr. Cowan was qualified at trial to give expert opinion as a medical doctor regarding Mr. Chamryk’s medical condition on or about June 30, 2012. [ 19 ] Mr. Chamryk first saw Dr. Cowan sometime in May 2012 and again on July 12, 2012. In June 2012, Mr. Chamryk was being treated primarily for bronchial asthma, which Dr.

Cowan described as an inflammatory illness of the bronchial tubes caused by antibodies generated by his own immune system. Dr. Cowan testified that Mr. Chamryk’s asthma was fairly severe.

[ 20 ] Dr. Cowan testified that when he first met Mr. Chamryk his asthma was not very well controlled because Mr. Chamryk was not very compliant with his use of prescribed inhalers. Mr. Chamryk was using his blue inhaler which dispenses ventalin, a bronchial dilator. However, Mr. Chamryk was not using the more expensive pink inhaler which dispenses a steroid, cortisone, an anti- inflammatory medication. Currently Mr. Chamryk is doing very well as he is using his inhalers properly. [ 21 ] In May 2012, Dr. Cowan observed that Mr. Chamryk was wheezing and had spastity (irritability) in his lungs. Dr.

Cowan testified that Mr. Chamryk was able to talk without any problem, but as soon as he needed extra lung volume, he could not do it. Dr. Cowan opined that in May 2012 Mr. Chamryk “could not blow solidly straight for more than seven seconds”. [ 22 ] Dr. Cowan testified that Mr. Chamryk was referred to the Asthma Clinic in Regina in December 2012 where a spirometer test was done for the first time. A spirometer is an instrument for measuring the capacity of the lungs or lung volume. This involves blowing into a tube. [ 23 ] Dr. Cowan opined that in June 2012 as a result of Mr.

Chamryk’s asthmatic condition, he could not blow into a confined space with deep lung volume and sustain that breath for seven seconds. [ 24 ] Dr. Cowan was also of the opinion that if Mr. Chamryk made a deep lung blow in June 2012, this would traumatize his already inflamed and irritated lungs, likely cause coughing and reduce the diameter of his bronchial tubes thereby lessening his future ability to blow. [ 25 ] On cross-examination Dr.

Cowan conceded that he has no knowledge of experience with either the Approved Screening Device or the Intoxilyzer EC IRII, nor the pressure or time required to provide a suitable sample for each instrument. In addition he conceded that he did not see Mr. Chamryk on June 30, 2012 and as a result he cannot say directly what Mr. Chamryk’s ability to blow with deep lung volume was on June 30, 2012. He added, however that when he again saw Mr. Chamryk on July 12, 2012, his chest examination was much the same as it had been in May. [ 26 ] Dr.

Cowan also testified on cross-examination that the first attempt by a person with asthma to blow into a confined space would be their best attempt. He also testified that he would be somewhat surprised if Mr. Chamryk gave his best breath sample on his fourth attempt on the ASD which required a sustained breath of 7-10 seconds. Analysis [ 27 ] 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 peace officer under this section. [ 28 ] The defence takes the position that Mr.

Chamryk had a reasonable excuse for failing to provide a breath sample on the basis that he suffered from asthma which negatively affected his breathing. [ 29 ] In R. v. Lewko , 2002 SKCA 121 , Bayda C.J.S. set out the elements of the offence of the similar offence of refusal in relation to a roadside screening device as follows at paragraph 9: 9 The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existence of a demand having the requirements of one of the three types mentioned in ss. (2) and (3). Second, the Crown must prove a

failure or refusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus). Third, theCrown must prove that the defendant intended to produce that failure (the mens rea). [30] The Court went on to discuss the burden of proof when the question of a reasonable excuse arises at paragraphs 10and 20: 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: In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accusedto be true. See Osolin, supra [ (SCC), [1993] 4 S.C.R. 595]; Park, supra [ (SCC), [1995] 2 S.C.R. 836]. The evidential foundation can be indicated by evidence emanating from the examination-in-chief or cross-examination of the accused,of defence witnesses, or of Crown witnesses.

It can also rest upon the factual circumstances of the case or from any other evidentialsource 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. [31] In the present case I am satisfied the Crown has established beyond a reasonable doubt the three elements of the offence ofrefusal. I am also of the view that Mr. Chamryk has put the issue of his medical condition into play. [32] R. v. Hicton, 2009 SKPC 15, also involved a charge of refusing to provide breath samples in the Intoxilyzer.

The accusedadvanced his asthmatic condition as a reasonable excuse. In R. v. Hicton, I reviewed various authorities and concluded at paragraph 66as follows: In cases involving medical reasons for refusal, the courts have absolved the accused from complying with the demand in situationswhere it was physically impossible, extremely difficult or likely to involve substantial risk to the health of the accused. [33] In the present case the accused testified that he was physically unable to provide an adequate breath sample in the Intoxilyzerowing to his asthmatic condition.

The accused testified after he blew a fail into the ASD in the patrol car, where he was short of breathand coughing, he experienced more difficulty breathing and coughing at the police station. He added that each time he blew into theIntoxilyzer he would blow with all the air he had. [34] Constable Patron conducted the ASD tests. Although Constable Patron testified that Mr. Chamryk did not appear to be in anydistress while providing breath samples into the ASD, he did observe Mr.

Chamryk to cough, “what seemed like a deep lung cough” forseveral seconds during each of the first three attempts. [35] Constable Kullman conducted the Intoxilyzer breath tests. Constable Kullman testified that the accused blew forapproximately four seconds on his first of nine attempts. He believed this was the accused’s longest breath attempt. Although ConstableKullman testified that Mr. Chamryk did not appear to be in any distress after each breath attempt, he did acknowledge that at one point heobserved Mr. Chamryk was coughing. He could not say how long the coughing lasted.

The nine breath tests took place in the space ofseven minutes.

[ 36 ] Dr. Cowan’s evidence was helpful. He examined Mr. Chamryk in May of 2012 and began treating him for bronchial asthma. Dr. Cowan testified that Mr. Chamryk’s asthma was fairly severe at that time. While he did not see Mr. Chamryk on June 30, 2012, he examined Mr. Chamryk twelve days later on July 12, 2012 and determined that his chest condition was much the same as it had been in May. Contrary to Dr. Cowan ’ s opinion, it appears on June 30, 2012 Mr. Chamryk was able to sustain a breath sample into the ASD for seven or more seconds. However, I accept the opinion of Dr. Cowan that if Mr.

Chamryk made a deep lung blow on June 30, 2012 (which I find he did on his fourth breath sample in the ASD), this would traumatize his already inflamed and irritated lungs, likely cause coughing and reduce the diameter of his bronchial tubes thereby lessening his future ability to blow. It appears this is what happened. [ 37 ] I am convinced on the balance of probabilities that Mr. Chamryk suffered from a bronchial asthma medical condition on June 30, 2012 that rendered his compliance with the breath demand either physically impossible, extremely difficult or likely to involve a substantial risk to his health.

Moreover, I find that Mr. Chamryk’s asthmatic condition on June 30, 2012 constitutes a reasonable excuse pursuant to section 254(5) of the Criminal Code . As a result I find the accused not guilty of the charge of refusal. ____________________________ M.J. Hinds, J