ANDREW MOCKLER Appellant - v. –, 2023 NBKB 219

File Number: FCA-1-2023 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK JUDICIAL DISTRICT OF FREDERICTON Citation: 2023 NBKB 219 BETWEEN: ANDREW MOCKLER Appellant - and – HIS MAJESTY THE KING Respondent BEFORE: Justice William T. Grant HEARING HELD: Burton, New Brunswick DATE OF HEARING: November 15, 2023 DATE OF DECISION: November 17, 2023 COUNSEL: Thomas J. Burke, K.C. for the Appellant Malika Levesque, for the Respondent DECISION

GRANT J. (orally) [ 1 ] Andrew Earl Mockler appeals his conviction on a charge that on or about August 24 th , 2019 in Fredericton, N.B., he did, without reasonable excuse, refuse to comply with a demand made to him by a peace officer, to provide such a sample of breath that was necessary to enable a proper analysis to be made by means of an approved screening device, contrary to

Section 320.15 of the Criminal Code of Canada , R.S.C. 1985 c. C- 46 and amendments thereto. [ 2 ] The sole ground of appeal advanced by Mr. Mockler is: That the learned trial judge erred in law (or in mixed fact and law) by failing to properly apply the medical evidence tendered at trial to the Appellant’s defence of reasonable excuse. [ 3 ] On the date in question, Mr. Mockler was driving on Dundonald Street in Fredericton when his car crashed into a tree. The police were called and Cst.

Anthony Pascon gave him the breathalyzer demand which he appeared to understand. [ 4 ] The screening device was presented to Mr. Mockler who made two unsuccessful attempts to provide a sample. Cst. Pascon testified that Mr. Mockler was blowing out of the side of his mouth during the two attempts, resulting in not enough air going into the tube. [ 5 ] When he was told this Mr. Mockler told the officer that he is asthmatic, at which point an ambulance attendant gave him the same medication he uses in his puffer. Mr.

Mockler then made five more attempts but did not provide a satisfactory sample. [ 6 ] In his decision the trial Judge summarized the evidence of the seven attempts as detailed in Cst. Pascon’s testimony, and supplemented by body camera video which was in evidence, as follows: With respect to the first attempt, the video shows Mr. Mocker blow approximately one to two seconds. The officer commented that on the right side of Mr. Mockler’s face there was a gap, and his lips appeared to flutter. Consequently that consistent breath was interrupted. He advised the accused that you need to put your lips around the tube.

In preparation for the second sample, the accused advises he has severe asthma. It’s around this point, officers advise that they have found in the vehicle driven by the accused, a breath screen device. The second sample was insufficient. Mr. Mockler was told he was not blowing properly, and then warned about the consequences of refusal. At this point Mr. Mockler says he’s nervous, and tells police he has severe asthma and wants his puffer. He’s given a puffer by EMT and administers it himself. It was evidently the same medication that he was taking.

There is a wait of five minutes and at 2:58 p.m. he tries for a third sample. To be abundantly clear, although this is captured on video, most of the video footage does not show the actual unit and the mouth of the accused. Obviously the Constable can testify and clarify what he was doing and what he sees the accused doing. On that sample, the officer said that Mr. Mockler stopped the flow of his breath, and that it was cut off in intervals, resulting in an improper sample. I thought that Constable Pascon gave good evidence, detailing what he was trying to do and explaining Mr. Mockler’s response. Mr.

Mockler made a fourth attempt to provide breath, although it resulted in an insufficient sample, it appeared to be the best one to that point, as it appeared to last longer. Prior to the fifth attempt, he asked officers how to do it. He was told, you don’t have to blow hard, you just have to keep blowing, you are stopping your breath. Mr. Mockler told the officer what do you do when you run out of breath? He attempted a sixth time, and again the flow of breath wasn’t long enough, but it appeared to be the longest flow to that point. Mr. Mockler advises he has a chest cold and was taking antibiotics.

After a seventh attempt with no registerable amount and at 3:07 p.m. he’s charged with refusal to provide a sample. To this the accused replies it wasn’t refusal, it’s my inability to blow into it. The officer was cross-examined. Constable Pascon believed it would take six to eight seconds continuous breath to capture a sample, but that was what he called a guesstimate. He was not sure what the manual for the device indicated. He conceded it could be as long as ten seconds. He acknowledged that Mr. Mockler was saying to him that he wanted to do it, but that he couldn’t.

He further conceded that it appeared like Mr. Mockler was trying to practice in advance to give a sample. With respect to the inhaler, he acknowledged that he waited five minutes after the puffer was administered before Mr. Mockler was asked to provide a third sample. He conceded as well he should have taken more specific and better notes about each individual attempt and that specifically he did not have good attempts = = good notes, pardon, about the attempts that were made from three to seven. Constable Pascon conceded that Mr.

Mockler was arrested because of his actions, that is, specifically the officers believe he was intentionally non-compliant, not because he for example, said he wasn’t going to provide a sample, specifically he was arrested because the officer indicated of the inconsistent air flow that even after taking a puffer medication, he still wasn’t providing a sample and he was blowing from the side of his mouth for the first two sample attempts.

[ 7 ] At the trial Mr. Mockler called his family doctor, Dr. Scott Robertson, to testify about his asthma. He was declared an expert and entitled to give opinion evidence as a family physician providing primary care of acute and chronic disease management. Mr. Mockler had been his patient since 2012 and he’d seen him twenty times before the 2019 incident with asthma problems. He testified that a person would need to wait fifteen minutes after using the puffer given to Mr. Mockler at the scene in order to get full relief. He was shown the video from the scene and agreed that Mr.

Mockler was not exhibiting the typical traits of an asthma attack including rapid breathing, use of short words and short sentences. [ 8 ] He also testified that in 2021 Mr. Mockler was diagnosed with tracheomalacia which he described as a collapse of the trachea in the windpipe making it weak and floppy. He further testified that there was no evidence as to when this condition first developed and that he was not aware of it in Mr. Mockler by 2019. He further testified that a healthy trachea is required to bring air in and out of the lungs. [ 9 ] On cross-examination Dr. Robertson confirmed that before 2019 Mr.

Mockler did not require hospitalization and agreed that the severity of his tracheomalacia as of 2019 was uncertain. [ 10 ] He further testified that after watching the video the ambulance attendant did not properly administer the medication to Mr. Mockler and that for the puffer to have full effect would take fifteen minutes. ISSUE [ 11 ] The sole issue in this appeal is whether the trial judge erred in law (or mixed fact and law) by failing to properly consider and apply the medical evidence tendered at trial to the Appellant’s defence of reasonable excuse.

LAW [ 12 ] The parties agree that the accused had the burden of establishing the defence of reasonable excuse on a balance of probabilities. They also agree that the issue raised in this appeal is one of mixed fact and law. The Appellant submits that the standard of review for a question of mixed fact and law is correctness, but I agree with the Crown that it is not that simple. [ 13 ] Rather I adopt the statement of the law cited in the Crown’s brief from R. v.

McIntyre 2016 NBCA 5 para 11 as follows: … Questions of mixed fact and law are nuanced and will be subject to the standard of palpable and overriding error, unless there is an extricable question of law, in which case that question is reviewable on the correctness standard. See Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 , at paras. 31 to 36 , recently applied by the Supreme Court in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 , [2014] 2 S.C.R. 633 . [ 14 ] In R. v.

Baisley 2015 NBQB 33 Morrison J. stated at para 8: … In cases involving a question of mixed law and fact, then the standard of review lies along a spectrum. Where the legal principle or standard is extricable then the standard of correctness will apply. Where such discernment is not possible then deference should be accorded and the standard of review is that of “palpable and overriding error”. ( Housen v. Nikolaisen , supra ., at para. 36 [ 15 ] I find that in this appeal the central issue - whether or not Mr.

Mockler met the burden of proving that he had a reasonable excuse for failing to provide an adequate sample - turns on findings of fact by the trial Judge, including whether or not Mr. Mockler’s asthma affected his ability to do so at the time and whether or not his subsequently diagnosed tracheomalacia was, more likely than not, a cause of his failure to provide an adequate sample. I further find that there is no extricable question of law raised in this appeal and therefore the decision of the trial Judge is owed deference.

The standard of review then is that of palpable and overriding error. [ 16 ] Turning now to the decision of the trial Judge and his assessment of the medical evidence, the appellant firstly submits that the trial Judge failed to reconcile the evidence on the video that Mr. Mockler did not exhibit the typical traits of an asthma flare-up - shortness of breath, use of short sentences, distress, weakness or shaking - with Dr. Robinson’s evidence that these traits would not necessarily always be present during an asthma attack. He refers to the trial Judge’s statement at page 24 of the transcript as follows:

… Dr. Robertson had the opportunity to view the video detailing the interaction between police and Mr. Mockler and the seven attempts to obtain breath samples. Without reservation he confirmed that on August 24, 2019 Mr. Mockler did not appear to be short of breath, did not appear to be using short sentences, did not appear to be either weak or shaking, and did not appear to be in any distress. Put bluntly, medical evidence proffered by the accused in this matter confirms without question that as of the day of the event, Mr.

Mockler, although a serious asthmatic, was not displaying any of the typical characteristics of someone having an asthmatic event. [ 17 ] While there was, as pointed out by the appellant, evidence from Dr. Robertson that these typical traits are not always present in a flare-up, it is also clear from the trial Judge’s decision that Mr. Mockler’s medical condition was clearly not relevant to his initial attempts to provide a sample. He stated at pages 22-23 of the transcript: … The officer observed that two of the first three samples given by Mr. Mockler were improper because of an improper lip seal.

Specifically, Mr. Mockler was observed by the officer blowing out of the right side of his mouth. The subsequent attempts show brief inputs of breath into the tube resulting in an insufficient sample. These are audible. The testing is interrupted as police provide additional explanation and demonstrate to the accused how it is done. Additional tests are attempted by the accused, each result in an insufficient sample. Context, of course, is everything. The officer acknowledged that some of the attempts made after the third one, although unsuccessful, were better than the previous one.

There is some improvement so to speak. However, the observations by Constable Pascon are immediate and obvious and he comments on the video. Despite instructions on how to provide a sample, two or the first three are insufficient because he sees that Mr. Mockler is not blowing properly. His lips do (sic) make a proper seal. Breath’s escaping out the side and not going into the tube. As it relates to these sample attempts, there is no proposition that they could not be obtained because of a reasonable excuse, such as a medical impediment.

No asthmatic condition or presence of tracheomalacia would impact an accused person causing his lips to not make a seal with a tube. Those attempts were unsuccessful because he blew around the tube, on the right side of his mouth. Although he may not have repeated the same action again, I must put that in context to what happens subsequently. He’s given multiple chances and exhales an insufficient registrable amount. [ 18 ] The appellant submits that the trial Judge did not apply the medical evidence properly and thereby erred in law. I disagree.

He reviewed that evidence and did so in the entire context of the interaction between Mr. Mockler and the police - as he should have. While the medical evidence was important, it couldn’t and shouldn’t have been dealt with in insolation. As he said, context is important. [ 19 ] I therefore find that the trial Judge considered, as he should have, the entire context of what occurred on the date and time in question in reaching his decision and concluded that, regardless of Mr. Mockler’s medical condition and behaviour at the time, he did not have a reasonable excuse for those failures to provide a sample.

In doing so I find that he made no palpable and overriding error. [ 20 ] As for the trial Judge’s consideration of the evidence of tracheomalacia, the same comments concerning context apply. Additionally, the trial Judge stated at page 24: … The presence of tracheomalacia is verified in 2021. It could have been a preexisting condition present in August 2019, but there is no way to verify the same.

That excuse, considered on the balance of probabilities, namely whether it is more likely to have occurred or not is not made out. [ 21 ] Balance of probabilities was the correct standard to apply to the defence of reasonable excuse and based on the evidence before him he applied that standard, correctly in my view as it was clear from Dr. Robertson’s evidence that he could not determine when Mr. Mockler developed tracheomalacia.

As the Crown noted, another Judge could have reached a different conclusion, but it’s not the role of this Court to second guess the trial Judge’s findings of fact in the absence of a palpable and overriding error. I find the trial Judge made no such error and that his finding was not unreasonable when considered in the context of all the evidence before him. Disposition [ 22 ] In

summary, I find that in rejecting the defence of reasonable excuse the trial Judge made no palpable and overriding error. This appeal is therefore dismissed. ________________________________________________

William T. Grant Judge of the Court of King’s Bench of New Brunswick