Her Majesty the Queen - v. -, 2014 SKPC 146

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 146 Date: September 9, 2014 Information: 31733039 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Barry Donald Borley Appearing: Rob Parker For the Crown Ajit Kapoor For the Accused JUDGMENT M. GORDON , J [ 1 ] Barry Donald Borley is charged with two counts that on or about the 29 th day of March 2014, at or near Moose Jaw, Saskatchewan did: Count 1 - while his ability to operate a motor vehicle was impaired by alcohol or a drug have the care or control of a motor vehicle contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code ; and Count 2 - without reasonable excuse fail or refuse to comply with a demand made to him by a peace officer pursuant to s. 254(3) (

a) of the Criminal Code to provide samples of his breath for analysis contrary to s. 254(5) of the Criminal Code .

[ 2 ] The Crown proceeded summarily and the trial was heard June 16, 2014. [ 3 ] Mr. Kapoor filed a copy of a letter to Moose Jaw Prosecutions dated April 29, 2014, which he submitted was sufficient notice for a Charter application. A copy of the letter was filed with the Court. [ 4 ] The Crown acknowledged it had received the letter and in this particular case was prepared to accept it as proper Charter notice to allow the trial to proceed today.

The Crown indicated it understood that the alleged Charter breach was the informational component of s. 10(b), being the rights to counsel. [ 5 ] By agreement the trial proceeded by way of a voir dire with all admissible evidence being applied to the trial proper. There were two Crown witnesses, Cst. Mercer and Cst. Clement. [ 6 ] Cst. Mercer was on duty the evening shift of March 29, 2014 along with Cst. Clement who was a police officer whom he was mentoring. Cst. Clement was driving the marked police vehicle.

They were on routine patrol by the Husky gas station in Moose Jaw and proceeding south on the service road adjacent to Main Street. They drove by a person who appeared to be sleeping in a vehicle that was stationary. Cst. Clement pulled the police vehicle in behind the suspect vehicle. Cst. Mercer noticed a man in the driver’s seat of the vehicle sitting upright but his head was bent forward. Cst. Clement went to the driver’s side and Cst. Mercer heard her call out to the individual and heard her tap on the window. It appeared to him that Cst. Clement awakened the driver. Cst.

Mercer could see the keys in the ignition but the vehicle was not running. Cst. Clement dealt directly with the driver. [ 7 ] Cst. Clement placed Mr. Borley in the rear of the police vehicle. Cst. Mercer got into the driver’s seat. Cst. Clement is now in the passenger seat. Cst. Mercer is present and heard Cst. Clement make the ASD demand. He was aware there was a fail and at 3:14 he heard Cst. Clement arrest Mr. Borley for driving while impaired and read him his rights to counsel under the Charter . He heard Mr. Borley say he understood. Cst. Mercer advised Cst. Clement that she should clarify to Mr.

Borley that he was under arrest for care and control of a motor vehicle while impaired. He heard Cst. Clement make this correction at about 3:14. He heard Mr. Borley again say he understood. They departed and drove directly to the police station in Moose Jaw. At the police station Cst. Mercer observed Mr. Borley to have bloodshot eyes, a strong smell of alcohol and drawn out slower speech. [ 8 ] After Cst. Clement booked Mr. Borley in at the police station, Cst. Mercer heard Cst. Elder ask Mr. Borley if he was going to provide a sample of his breath. Mr. Borley said “I am not going to blow”. Cst.

Mercer also asked Mr. Borley three times if he was going to blow and also advised Mr. Borley he could call a lawyer and that if he did not blow he would be charged with refusal. Each time Mr. Borley said “no”. Cst. Mercer heard Cst. Clement reread Mr. Borley his rights to counsel for care and control of a motor vehicle while impaired and refusal to provide a breath sample. Again he heard Mr. Borley say he understood by responding “ya” and indicated that he did not want to contact a lawyer. [ 9 ] On cross-examination, Cst.

Mercer testified that the in-car video was not on and therefore there was no video footage from the time of the first encounter with Mr. Borley through to the end of the police contact with him at the police station. Cst. Mercer agreed that Mr. Borley appeared to be awakened quickly when Cst. Clement tapped on the window. Mr. Borley’s vehicle was parked in a parking lot at a gas station that was open 24 hours and there had not been any complaint from the gas station owners about this car. Cst. Mercer acknowledged that he heard Cst. Clement say to Mr. Borley “do you want to call a lawyer now”. Cst.

Mercer was not aware that Mr. Borley was from out of province, nor did the officer recall any discussion about Mr. Borley’s truck. Cst. Mercer did not recall Mr. Borley asking “what am I doing wrong”. Cst. Mercer said he could smell alcohol coming from the accused’s breath when seated in the police vehicle. Mr. Borley was placed in cells after his refusal. [ 10 ] Cst. Clement was sworn in both on the voir dire and the trial. By way of background she indicated she had attended school from August to December 2013 and graduated December 22, 2013. She had been working with Cst.

Mercer for one to two weeks and they were currently working the night shift. She said it was approximately 3:00 a.m. when she noticed a black Chev Silverado truck parked in the Boston Pizza parking lot next to the Husky gas station. Cst. Clement drove up and passed this vehicle and noticed a male sleeping in the vehicle. She pulled around and noticed this individual was slouched with his head on his chest. She identified this individual as the accused. She thought this individual may be in medical distress and walked to the driver’s side of this truck. She

observed Mr. Borley sleeping behind the wheel in the position described. The truck was not running. She did not see the keys. She knocked on the window about six times and shone her flashlight in the interior of the vehicle. After about a minute, Mr. Borley awoke. He seemed dazed and confused and wondered why the police were there. [ 11 ] Cst. Clement asked Mr. Borley to roll down his window. When he did not, she opened the driver’s door of the truck. She observed Mr. Borley to be confused, dazed and have watery eyes. Cst. Clement concluded Mr. Borley could not figure out how to roll down the window of his truck.

At first, upon being asked, Mr. Borley was not able to produce a driver’s licence and registration. Cst. Clement stood between Mr. Borley and the door. Finally Mr. Borley, after fumbling in his wallet, was able to produce his driver’s licence and registration. At this point, when speaking to Mr. Borley, Cst. Clement smelled a strong smell of beverage alcohol from Mr. Borley’s mouth. Mr. Borley’s words were slurred and she concluded he had some alcohol in his system. She asked him to come to the police vehicle. She admits she did not give him the exact reason.

He said “yes” and he tried to get out of his truck with his seat belt still on. He unfastened the belt but almost fell out of the truck and had to lean on the truck for support. [ 12 ] Mr. Borley was placed in the back of the police vehicle. Cst. Clement entered the front passenger side of the police vehicle and she again observed beverage alcohol coming from the accused. There had been no beverage alcohol smell in the police vehicle prior to this. [ 13 ] At 3:07 a.m., she read the approved screening device demand from her police issued card. Mr. Borley replied “okay”. According to Cst.

Clement, six minutes had elapsed since she pulled up behind Mr. Borley’s truck. She identified the approved screening device as an approved instrument and she was a trained operator. She had checked the calibration and it was within the range. At 3:09 a.m., Mr. Borley provided a sample into the approved screening device. The result was a fail. [ 14 ] Cst. Clement asked Mr. Borley to step out of the vehicle for a routine cursory search for officer safety. At 3:14 a.m., she placed Mr. Borley under arrest for impaired driving. After being corrected by Cst. Mercer, she clarified this to impaired care and control.

She also read Mr. Borley his Charter rights and then asked Mr. Borley if he wished to call a lawyer now. He responded “no”. [ 15 ] Cst. Clement testified the basis for the breathalyzer demand was that Mr. Borley registered a fail on the approved screening device. It was her understanding that this indicated the subject had at least 100 milligrams of alcohol per 100 millilitres of blood in his system. At 3:16 a.m. she read the police warning. All these were read from her police issued card. Mr. Borley was asked if he understood and he responded “yes”. [ 16 ] Cst. Clement noted Cst. Mercer locked Mr.

Borley’s vehicle and left it at the scene. At 3:17 a.m., they departed and drove directly to the police station where they arrived at 3:22 a.m. Mr. Borley was taken to the booking in area and Cst. Clement entered his personal information into the computer. Cst. Elder was the qualified breathalyzer technician on duty that night and was present when Mr. Borley was asked if he was going to blow. Mr. Borley said “no”. Cst. Clement was also present when Cst. Mercer asked Mr. Borley to provide breathalyzer samples. She heard Mr. Borley say “you have me hands down. I have been drinking, no need to blow”. [ 17 ] Cst.

Clement heard Cst. Mercer ask Mr. Borley four times if he was going to blow. She also heard Cst. Mercer explain the consequences of not blowing and asking Mr. Borley again if he wanted to contact a lawyer. She heard Mr. Borley each time indicate he understood and Mr. Borley declined to make any calls. Mr. Borley was lodged in cells. [ 18 ] On cross-examination Cst. Clement agreed that Mr. Borley was polite. She also agreed that he may have retrieved his registration from the glove compartment rather than his wallet. She also acknowledged it was a valid Alberta driver’s licence that was produced.

The officer did not know how long Mr. Borley’s vehicle had been at that location. [ 19 ] The Crown closed its case. The defence made a motion for non-suit arguing that there was insufficient evidence to establish that the police officer had reasonable grounds to make the breathalyzer demand. The defence argued there was no objective evidence establishing that Mr. Borley was impaired. I denied the non-suit application. The test for non-suit application was not met as there was some evidence on all the necessary elements of both offences. [ 20 ] Defence called no evidence on the voir dire or the trial proper.

Crown Submission [ 21 ] The Crown submits that Cst. Clement had the necessary reasonable suspicion to make an approved screening device demand. She smelled alcohol coming from Mr. Borley’s mouth. She and Cst. Mercer made a number of physical observations. Cst. Clement made a proper and timely ASD demand. Mr. Borley failed. This alone, but certainly along with the observations of both police officers, should be sufficient to make the Intoxilyzer demand. [ 22 ] Cst. Clement did not make the ASD demand until Mr. Borley was seated in the back of her police vehicle.

According to the officer’s evidence, this was approximately one minute later. The Crown suggests that even if that is a breach of s. 10(

a) of the Charter , no evidence was obtained and therefore the subsequent evidence should not be excluded. Once the ASD demand was made, Mr. Borley was certainly informed of the reason for his detention. [ 23 ] Cst. Clement read Mr. Borley his rights to counsel from her police issued card. This included a reference to a toll-free Legal Aid number and the availability of duty counsel without charge. The Crown referred to the following case: R. v. Shynkaruk , 2013 SKPC 155 . The case says the fact that the police did not read the actual toll-free number for Legal Aid did not amount to a breach of the accused’s rights under s. 10(

b) of the Charter . The accused was sufficiently informed of the existence and availability of legal advice without charge. The accused asked no questions and did not give any indication that he wanted to contact legal counsel. This was a case Mr. Kapoor was defence counsel on. It was also followed in R. v. Ehrmanstaut , 2013 SKPC 175 and R. v. Cook , 2007 SKPC 38 . In both the Shynkaruk and the Cook case, Mr. Kapoor was defence counsel. [ 24 ] The Crown noted that Cst. Mercer heard Mr. Borley being asked three times if he was going to blow and provide a sample. Cst. Clement heard this exchange four times. Mr.

Borley, it is said and I accept, responded no on each occasion. Once he said words to the effect of “you’ve got me”. There is no requirement that once the suspect has indicated his unequivocal refusal, to take him before the Intoxilyzer machine. In

summary, the defence says the accused has not met its burden to establish a Charter breach on the balance of probabilities and therefore there is no necessity to discuss a s. 24(2) analysis. The Impaired Care and Control Charge [ 25 ] The Crown argued it can rely on the presumption in s. 258(1)(a). The Crown asked the Court to look at the totality of the evidence with respect to impairment then applying the test in Stellato , a conviction should follow. Defence Argument [ 26 ] The defence made several arguments in a somewhat disjointed manner as to why the Court should find Mr. Borley not guilty.

Charter arguments were intermingled with arguments that the Crown had not proved its case beyond a reasonable doubt. The following is a

summary in point form of the defence submissions: - Mr. Borley should have been presented to the Intoxilyzer machine. - The police officer framed the request (after the initial demand read from the police issued card) “do you wish to give me a sample?” The defence submits Mr. Borley would not have understood he was under any legal compulsion to provide a sample. - There was no evidence that an offence was being committed. Mr. Borley could have been sleeping in his vehicle. - There was no evidence from the breath technician, Cst. Elder, about the demand and refusal. - There was a breach under s. 10(

b) of the Charter . Mr. Borley should have had his Charter rights repeated at the detachment. Cst.

Clement should have taken Mr. Borley and placed him in front of the telephone and said “here is the toll-free number”. - Mr. Borley could have been confused. He is from Alberta. He blew in the ASD and perhaps he thought that was all that was required. - The Crown cannot rely on the presumption in s. 258(1)(

c) as Mr. Borley was obviously sleeping. The vehicle was not running and Mr.Borley had no intention to drive. [27] The defence argued that regardless of the Charter, the trial was unfair. There is no evidence that supports a conviction. Mr.Borley was polite and cooperative throughout and did everything asked of him. The defence filed the following cases: - R. v. Taraschuk, (SCC), [1977] 1 SCR 385 - R. v. Friesen, 2012 SKQB 488 , 407 Sask. R. 282 (SKQB) - R. v. Shuparski, 2003 SKCA 22 - R. v.

Rezansoff, 2013 SKQB 384 - Wingerter and Her Majesty the Queen, October 30, 1998, Allbright J. (QB) Analysis Impaired Care and Control Charge [28] The presumption in s. 258 reads in part as follows: 258(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings under any of subsections 255(2) to (3.2), (

a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, ... theaccused shall be deemed to have had the care or control of the vehicle, ... as the case may be, unless the accused establishes that theaccused did not occupy that seat or position for the purpose of setting the vehicle, ... in motion or assisting in the operation of the aircraftor railway equipment, as the case may be; ... [29] The presumption as noted above can be rebutted. In this case there was no evidence to rebut the presumption.

The accuseddid not testify and no one testified for the defence. Therefore while Mr. Kapoor suggested that Mr. Borley had no intention to drive,there was no evidence of that and therefore I find that the presumption applies. In cases such as this, the officer observed Mr. Borleyslouched, head down on his chest but not on the steering wheel of his vehicle. The vehicle was stationary in a parking lot of a 24 hourHusky service station. The vehicle was not running. The officer could see into the vehicle and the keys were in the ignition.

Thevehicle’s windows were not frosted over as the police could see into the vehicle. Given it was March 29, I am prepared to infer thevehicle had not been stopped long. As well, Mr. Borley was still wearing his seat belt. It took about six taps on the driver’s sidewindow by Cst. Clement to awaken Mr. Borley. [30] Once Cst. Clement got Mr. Borley’s attention, she had to open the door for him as he could not seem to figure out how to rollthe window down. He appeared confused, dazed, eyes watery and he fumbled to produce the required documents.

There was a strongsmell of beverage alcohol from his mouth when she spoke to him and his speech appeared slurred. He tried to exit the vehicle with hisseat belt on and almost fell out of the truck and had to lean on the truck for support. [31] From the evidence, I accept the following that support Mr. Borley being in care and control of this vehicle: (1) the slumped position of the driver;

(2) seat belt on; (3) keys in the ignition; (4) windows not fogged (5) vehicle registered to Mr. Borley; (6) vehicle in a public parking lot;

(7) Mr. Borley was the registered owner of the vehicle (Alberta registration); and (8) the strong smell of alcohol coming from Mr. Borley’s breath. [ 32 ] Applying the presumption and coupled with the observations of the officer, I have no hesitation in finding that the Crown has proven beyond a reasonable doubt that Mr. Borley was in care and control of his vehicle while impaired. Therefore I find him guilty of count #1.

Approved Screening Device Demand [ 33 ] Section 254(2) of the Code reads as follows: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle ... or had the care or control of a motor vehicle, ... the peace officer may, by demand, require the person ... (

b) to provide forthwith a sample of breath that, in the peace officer ’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [ 34 ] There was no issue taken that Cst. Clement was qualified to operate the ASD and the instrument was calibrated and in proper working order. Cst.

Clement articulated several observations as the basis of her ASD demand, namely the strong odour of alcohol, the fumbling for the driver’s licence and registration, the stumbling, the trying to get out of the vehicle when the seat belt was on, and not being able to operate the fixtures in the car. She had a subjective belief that Mr. Borley had consumed alcohol and this was supported by her objective observations. A reasonable suspicion that the suspect has alcohol in his or her body is more than a hunch but less than reasonable and probable grounds.

Reasonable suspicion of the presence of alcohol in the body does not need to amount to reasonable grounds to believe a person is impaired by alcohol (see R. v. Carriere , 2010 SKPC 118 ). The peace officer must honestly suspect that the person has alcohol in his body and there must be reasonable grounds for that suspicion (see R. v. Gunn , 2012 SKCA 80 ). The smell of alcohol on the driver’s breath is a sufficient basis upon which to have a reasonable suspicion that the person has alcohol in his body (see R. v. Butchko , 2004 SKCA 159 ). [ 35 ] Cst. Clement had Mr.

Borley isolated in the rear of the police vehicle. She testified there was no smell of beverage alcohol in the police vehicle prior to Mr. Borley’s presence. She again smelled beverage alcohol. In R. v. Nahorniak , 2010 SKCA 210 and R. v. Usher , 2011 BCCA 271 , the Courts have stated when the suspect is the sole person in the back seat of a police vehicle and it is obvious to the officer that the odour of liquor is coming from the suspect, that is sufficient grounds. Breach of s. 10(

a) of Charter [ 36 ] Cst. Clement admits she decided to have Mr. Borley go to her police vehicle so she could make the ASD demand and administer the test. She asked Mr. Borley to come to her police vehicle but did not tell him the specific reason. He complied. This is a breach of s. 10(

a) of the Charter but it is such a very minor breach that there is no Charter relief required. The time frame was approximately one minute and once Mr. Borley was read the approved screening device from the officer’s card, he was well aware of the reason for his detention.

[37] It is acknowledged the better practice for the police officer is to tell the suspect immediately the reason for asking him toreturn to the police vehicle. In R. v. Carriere, 2010 SKPC 118, Judge Kalmakoff found that the approved screening device demandmade by the police officer in the police vehicle three minutes after the stop sufficiently informed the suspect of the reason for hisdetention. [38] As Judge Kalmakoff noted in Carriere, if the peace officer had made the demand while standing at Mr.

Borley’s truck, shestill would have had to go back to her police vehicle, get the ASD, let it warm up before the test could be administered. This was March29, 2014 and this clearly would not have been the most appropriate course of action. I conclude that the officer quite promptly made theIntoxilyzer demand and again that would inform the accused the reason for his detention. [39] As Judge Kovatch stated in R. v. Glass, 2013 SKPC 31, and I have followed in other cases, even if this is an incorrectconclusion there was no evidence obtained by the police officer by reason of this failure.

Constable Clement dealt with Mr. Borley in aprofessional and polite fashion and did not compel him to submit to any sobriety tests or to incriminate himself. If I applied a Grantanalysis, the evidence would not be excluded. Informational Component of s. 10(

b) of Charter [40] This

section of the Charter reads as follows: Everyone has the right on arrest or detention: ... (

b) to retain and instruct counsel without delay and to be informed of that right. [41] The defence submitted that the failure by the officer to provide Mr. Borley with a toll-free number for Legal Aid constituted abreach of this section. In addition defence counsel submitted because Mr. Borley was from Alberta and had been found sleeping, he wasperhaps somewhat confused and dazed and did not unequivocally decline to give up his right to speak to a lawyer. As a result, thedefence says Mr. Borley’s s. 10(

b) rights were breached. [42] In R. v. Bartle, (SCC), [1994] 3 SCR 173, Lamer C.J. summarised the duties on the state authorities imposedby s. 10(

b) as follows at paragraph 17: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aidand 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). [43] I am satisfied here that Cst. Clement told Mr.

Borley that he could contact a lawyer and Legal Aid was available withoutcharge and that she could provide a toll-free number. This was told to Mr. Borley in the police vehicle after the Intoxilyzer demand. Mr. Borley asked no questions. He said he understood and back at the detachment he did not ask any further questions. The onus is onMr. Borley to convince the Court on a balance of probabilities that there has been a Charter breach. There is no indication in any of theevidence from the police officers that Mr.

Borley had any questions with respect to contacting a lawyer or any indication that he wantedto contact a lawyer. Mr. Borley did not testify on the voir dire so I am left with the officer’s evidence and I accept it.

[44] Cst. Clement advised Mr. Borley that he could call any lawyer he wished, that Legal Aid duty counsel was available to himimmediately and without cost. She told him there was a toll-free number that she could provide to him when they got back to the policestation. In R. v. Wingerter, (SK KB), [1998] 174 Sask. R. 48 (Q.B.), Mr. Justice Allbright considered the SupremeCourt decisions in Bartle and R. v. Pozniak, (SCC), [1994] 3 SCR 310 and set out the following standard at paragraph23 with respect to providing rights to counsel: I am of the view that in the jurisdiction of Saskatchewan, if an accused is arrested during normal business hours, then the informationalcomponent of s. 10(

b) does not require that the warning consist of the toll-free number. However, if the accused is arrested outside ofnormal business hours, then the informational component of s. 10(

b) is accurately set out in R. v. Bartle, supra, and R. v. Pozniak,supra,and the accused must be informed of the existence of a toll-free number and of the availability of duty counsel. [45] This is exactly what Cst. Clement did in this case. I note again that this was a case in which Mr. Kapoor was defencecounsel. [46] As I had mentioned, the defence also asks that the Court consider the fact that Mr. Borley was an Alberta resident and whenhe was not provided with the actual phone number or phone that perhaps he thought there was no use in doing anything. Mr.

Borley mayhave thought that but the Court does not know that. There was no evidence from him to even raise those possibilities. All the evidencepoints to the fact that he realized that he was “caught” and did not wish to call a lawyer. The Court cannot speculate. I find no s. 10(b)breach. [47] The evidence I accept is that Mr. Borley was asked if he would provide breath samples on a number of occasions. Each timehe said no. On one occasion near the last time, he said “no, you’ve got me”. There was more than one officer that asked him if he wasgoing to blow. At 3:15 when Mr.

Borley was still in the police vehicle and had failed the approved screening device, he was read theIntoxilyzer demand and said “yes” to complying. He was also read the police warning and asked if he understood and he said “yes”. At3:17, the officers left and went directly to the police station where he was booked in at 3:22 and the breath technician was called and at3:41 approximately Mr. Borley was asked to blow and he said “no”. Cst. Mercer asked Mr. Borley and the reply was “you have mehands down, I have been drinking, no need to blow”. He was asked at least four times to blow and advised by Cst.

Mercer theconsequences of not blowing. He was asked again if he wanted to provide a sample. I am satisfied Mr. Borley had been provided hisrights under s. 10(

b) of the Charter as I have said and he had replied yes he understood and no to calling. Therefore this is not a casewhere there was any conversation or attempts by Mr. Borley to blow into the instrument. On the evidence the Court heard Mr. Borleyasked no questions, he only made the one comment that indicated he felt his fate was sealed. [48] I conclude that the officer had reasonable grounds for the breathalyzer demand pursuant to s. 254(3)(

a) of the Criminal Code. The defence did not present any excuse, reasonable or not, for failing to provide a breathalyzer sample. As a result, I conclude that theCrown has proved all the requisite elements to establish the offence of refusal. This is the approach that was taken in R. v. Taraschuk, (SCC), [1977] 1 SCR 385, and of course I must follow it. I have also concluded there was no Charter breach. [49] Finally in response to Mr. Kapoor’s suggestion that this entire process was just not fair to his client, I adopt the words ofJudge Kovatch in R. v.

Hanson, 2014 SKPC 147, quoting in part as follows: There is no authority or jurisdiction to dismiss a charge simply because counsel argues that conviction would operate unfortunately orunfairly to the accused. [50] On all of the evidence I find Mr. Borley guilty of the charge of refusing to provide suitable samples of his breath pursuant tos. 254(3) of the Criminal Code. M. Gordon, J