Her Majesty the Queen - v. -, 2011 SKPC 189

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 189 Date: December 14, 2011 Information: 32302839 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ryan Timothy Sauder Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Darin Chow, Q.C. For the Accused DECISION M.T. GORDON , J [ 1 ] Ryan Sauder is charged that on or about the 19 th day of November, A.D. 2010, at or near Moose Jaw, Saskatchewan, did, while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 255(1) and section 253 (1) (

a) of the Criminal Code ; and [ 2 ] On or about the 19 th day of November, A.D. 2010, at or near Moose Jaw, Saskatchewan did, fail or refuse to comply with a

demand made to him by a police officer pursuant to section 254(3)(

a) of the Criminal Code, to provide samples of his breath foranalysis, contrary to section 254(5) of the Criminal Code. [3] The only Crown witness was Cst. Giraudier. The peace officer was advised by his Communications Centre of an intoxicateddriver in a blue Subaru at a location in South Hill in Moose Jaw. [4] The police officer located the vehicle, followed it for some time, and stopped the vehicle at the corner of 9th Avenue Northand Caribou Street. The accused, the lone occupant, admitted to drinking and advised he was on his way home.

The police officersmelled a faint odour of alcohol coming from the vehicle. The accused’s eyes were glassy and red and his pupils were dilated. [5] The accused was placed in the rear of the police vehicle and at 2:54 a.m. an ASD demand was made to the accused by Cst.Giraudier. At 3:03 a.m. the ASD arrived and the first sample was taken. This sample was insufficient so the accused blew again and afail result was recorded. The accused was arrested for impaired driving and read his rights to counsel and the police warning. [6] Cst. Giraudier testified he was qualified to operate the approved screening device.

The device he used was brought to himby Cst. Mercer. He had no personal knowledge of this device being properly calibrated. However, he related the usual practice inMoose Jaw is that the police officer who takes out the machine at the start of the shift checks to ensure it is properly calibrated. [7] At 3:06 a.m. Cst. Giraudier made the intoxilyzer demand to the accused. The accused indicated he wanted to call Mr. DavidChow, and was given an opportunity to do so. At the accused’s request Cst. Giraudier also spoke to David Chow. Mr.

Chow stated thatthe accused wanted a glass of water, and was also concerned about his lost dog. The officer advised that the accused would have to talkto the breath technician. The accused was allowed to use the washroom at 3:58 a.m. The accused, in the presence of Cst. Kerr, thebreathalyzer technician, stated that he refused to provide samples to Cst. Kerr if he did not get a drink of water. [8] According to Cst. Giraudier, Cst. Kerr asked this accused again to provide a sample and again the response was “no”. According to Cst. Giraudier, Cst.

Kerr again asked the accused if he would provide a sample and explained if he did not he would becharged with refusal. The accused refused and walked to the washroom for a drink of water. [9] This conversation occurred in the common area, outside the room where the intoxilyzer machine is located. [10] Cst. Kerr, the breath technician, was not available to testify, as the Court had refused the Crown’s second request for anadjournment. [11] Cst. Giraudier did not observe any driving actions that would indicate impairment. [12] Cst.

Giraudier also agreed that Exhibit D-1, entitled “Recording of Observations”, indicated that the accused scored either thebest option or second best option on the check sheet. At the roadside there was no difficulty with the accused providing the appropriateinformation, and indicating he understood the process. Analysis – Count #1 [13] The Crown referred to the well-known case of R. v. Stellato, (SCC), [1994] 2 S.C.R. 478. Applying theprinciples in that case to the evidence, I find that the Crown has not proved its case beyond a reasonable doubt.

The observations of theofficer as to alcohol are minimal, being faint odour of alcohol in the vehicle, dilated pupils and eyes glassy and red. The police officertestified he deliberately followed the accused’s vehicle for some time in order to observe his driving. The officer did not observe anydifficulties with the manner of driving of the accused. Count #2 – Issue

[14] Both counsel agreed that the only issue is whether the Crown has proved beyond a reasonable doubt that a lawful demandpursuant to section 254(3)(

a) was made. [15]

Section 254(3(

a) and (

b) reads as follows:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable ofproviding a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of thequalified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood; and (

b) if necessary, to accompany the peace officer for that purpose. [16] The

section states a police officer may make the demand if reasonable grounds exist. There is no dispute that Cst. Giraudierhad grounds to make the demand, and that the demand was in the proper form. No Charter issues were raised. [17] The Defence submits that as a result of Cst. Kerr, the breathalyzer technician, not being available to testify, the requirement asset out in section 254(3)(a)(

i) has not been met. The Defence argues that the

section requires that the qualified technician be present togive evidence that the samples are such that a proper analysis can be made. [18] The Crown submitted that the Court heard the uncontradicted evidence of Cst. Giraudier that the accused clearly refused toprovide a sample. Cst. Giraudier was present when the accused told both officers that he was not going to blow until he was given aglass of water. The accused refused on three occasions.

He was warned that if he did not blow he would be charged with refusal. [19] The only issue is whether the opinion of the qualified technician is required to prove the offence. [20] The facts are not in dispute. Up to the point of proceeding into the intoxilyzer room, the accused had been polite andcooperative. The accused spoke to counsel. All indications were that the accused understood the process. The Defence is notsuggesting the accused had a reasonable excuse. Rather, the Defence says the Court needed to hear from Cst. Kerr, the qualifiedtechnician. However, I do not know what else Cst.

Kerr would have told the Court. This is not a case where the accused is attempting toblow but cannot or will not provide an adequate sample. In those situations, the qualified technician needs to testify and explain why anadequate sample was not able to be obtained. [21] In R. v. Minter, 2004 ABQB 748, the Court stated at paragraph seven the following: Is the opinion of a qualified technician required in order to prove the offence?

It is where the accused blows into the instrument becauseof the requirement of an opinion from a qualified technician to determine whether the person’s breath is sufficient to “enable properanalysis”. In the case of an express refusal, this is the accused does not attempt to blow into the instrument, I would not think it wouldbe necessary to have an expert opinion or a qualified technician’s opinion.

That issue is factual and does not require an expert opinion.Where, however, an accused person blows into the instrument and adequacy or sufficiency is an issue, the opinion of a qualifiedtechnician is necessary. [22] In R. v. Sawicki, (SK CA), [1972] 6 W.W.R. 755 (Sask. C.A.), the Saskatchewan Court of Appeal held atparagraph ten:

Under s. 253(1) the peace officer, when the circumstances as set out therein exist, has a right to demand from the person a sample of hisbreath and to demand that he accompany him for the purpose of enabling such a sample to be taken. A failure or refusal to comply witheither of these demands without excuse constitutes an offence under s. 235(2). The demand provided for in s. 235(1) can be made anyplace. To suggest that it could be made only at the place where the approved machine is located is contrary to the clear intent of thesection. If this were the correct

interpretation, there would be no need for the right given to the peace officer to demand that the personaccompany him for the purpose of enabling the sample to be taken. [23] In R. v. Kitchemonia, (SK CA), [1973] 5 W.W.R. 669 (SKCA), the Court stated that the breathalyzerdemand can be made anywhere and need not be made at the place where the approved machine is located. [24] Likewise, in R. v.

Rousseau, 2009 ABPC 22, in obiter dicta, at paragraph fifty-eight, the Provincial Court Judge concluded: I do note that the demand referred to under s. 253(3) of the Criminal Code includes the right to demand from the person, a sample of hisbreath, and to demand that he accompany the officer for the purpose of enabling such a sample to be taken. On a plain reading, the firstdemand is permitted to be made at any place and specifically it does not have to be made in the presence of the machine or the qualifiedtechnician.

If this were not the case, there would be no need to give the officer the right to compel the person to accompany him for thepurpose of enabling the samples to be given. If an unequivocal refusal to provide a breath sample is given, the offence has been madeout and there is nothing further for the officer to do. I therefore conclude that it was not necessary in the case at bar to bring the accusedbefore a qualified technician. [25] As well, in R. v. Ealey, (SK KB), 101 Sask.

R. 199 (Q.B.), the Court held it was immaterial in a refusalcase, whether or not the breathalyzer was functioning properly. [26] In some cases, the accused clearly refuses to provide a sample while still in the police vehicle. If the police officer is satisfiedthat the refusal is clear and unequivocal, surely the fact that the accused has not been presented to the qualified technician, does not offera defence. The demand pursuant to section 254(3) must be a lawful demand. The elements of a lawful demand are as follows. Thedemand must be made by a police officer.

The police officer making the demand must have reasonable grounds to believe that a personis committing or at anytime within the preceding three hours has committed an offence under

section 253 as a result of the consumptionof alcohol. The police officer must subjectively believe he or she has grounds and that belief must be objectively reasonable. Thedemand must be made “as soon as practicable”. The demand is a continuing demand and need not be repeated by the breath technician(R. v. Dhaliwa, 2005 O.J. No. 1129 S.C.J. at paragraph 26). [27] In the within case, I find that the accused clearly refused to provide a sample. The intent of the accused was plain. He hadbeen given an opportunity to consult counsel.

The Defence is not arguing that the accused had a reasonable excuse to refuse until he gota drink of water. The only reasonable inference despite the accused’s initial cooperation is that he had decided intentionally not toprovide a sample. He did not waver in his refusal. [28] Therefore, I found that the Crown has proved the refusal charge beyond a reasonable doubt. Dated at Moose Jaw, Saskatchewan, this 14th day of December, 2011. _____________________________________ M.T. Gordon, J