Her Majesty the Queen - v. -, 2013 SKPC 146

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 146 Date: August 30, 2013 Information: 24408651 Location: Humboldt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dustin Houle Appearing: P. Goldstein For the Crown M. Nidesh, Q.C. For the Accused JUDGMENT R.D. JACKSON , J I.

INTRODUCTION [ 1 ] The accused was charged on August 27, 2011, in the Burr District that he did, without reasonable excuse, fail or refuse to provide a sample of his breath on an approved screening device (ASD), contrary to s. 254(5) of the Criminal Code . [ 2 ] The trial was held April 29, 2013, in Humboldt, proceeding by way of a voir dire with the evidence being applied to the trial proper.

[ 3 ] The Crown called the investigating officer, Cst. Lanoie. The defence called the accused as well as his wife, Leah Doepker, who with their infant child, were passengers in the accused’s vehicle at the time of the stop. II. ISSUES [ 4 ] The issues for determination as raised by counsel include:

a) authority of Cst. Lanoie to effect the traffic stop, failing which the accused was arbitrarily detained pursuant to s. 9 of the Charter ;

b) grounds to make the ASD demand; and

c) whether or not the accused refused to blow and if so, whether he had a reasonable excuse for so doing. [ 5 ] Although Charter issues were raised regarding the grounds to make the ASD demand, no Charter application is required as this is a lawful requirement of s. 254(2) of the Criminal Code that the Crown must prove beyond a reasonable doubt. [1] III. DETERMINATION

a) authority of Cst. Lanoie to effect the traffic stop, failing which the accused was arbitrarily detained pursuant to s. 9 of the Charter [ 6 ] Cst. Lanoie testified he witnessed the accused’s vehicle travelling on Highway No. 20 near Burr shortly after midnight. He observed the vehicle to be tapping or applying its brakes three times for no apparent reason.

He thought this somewhat unusual and decided to effect a traffic stop to do a driver’s licence, registration and sobriety check. [ 7 ] Upon advising the accused as to why he had been stopped, the accused explained that the road condition was “terrible” with numerous potholes. At trial, Cst.

Lanoie stated he was travelling at highway speed and was not cross-examined as to the road condition. [ 8 ] Regardless, the officer testified he was making the stop for driver’s licence, registration and sobriety check which, if acting in the scope of his duties, he is entitled to do pursuant to s. 209.1(1) of The Traffic Safety Act [2] which reads, inter alia : 209.1

(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (

a) is readily identifiable as a peace officer; and (

b) is in the lawful execution of his or her duties and responsibilities.

(2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1): (

a) require the driver to give his or her name, date of birth and address;

(

b) request information from the driver about whether and to what extent the driver consumed, before or while driving, alcohol or any drug or other substance that causes the driver to be unable to safely operate a vehicle; [ 9 ] Cst. Lanoie was in full uniform operating a marked patrol car. He was alerted to a vehicle travelling on a secondary highway near midnight which appeared to be riding or tapping its brakes for no discernible reason. He was entitled to investigate once so alerted and statutorily empowered to check driver’s licence, registration and sobriety of the driver. In all respects therefore he was acting in the lawful execution of his duty when he initiated the traffic stop.

b) grounds to make the ASD demand [ 10 ] Section 254(2) of the Criminal Code reads: 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 ... whether it was in motion or not, 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. [ 11 ] The requirement that the officer have a suspicion of alcohol in the body must be reasonable both on the subjective (honest belief) and objective (rationally sustainable) basis. [3] [ 12 ] Nothing in the evidence suggested that Cst. Lanoie did not hold an honest belief that the accused had alcohol in his body.

Can his belief be objectively supported on the fact scenario as presented to Cst. Lanoie? [ 13 ] The threshold is low to support an officer’s honest belief regarding an ASD demand since it involves only a suspicion of alcohol in the body, not impairment. However, it must be evidence-based and relate to the present. In R. v. Beechinor [4] , this Court held at para. 23: [23] Although the threshold is low, there nonetheless must be evidence capable of demonstrating that the officer had reasonable suspicion that the driver has alcohol in his or her body in order to make the ASD demand.

This does not mean simply that alcohol has been consumed at some point that day or the officer could detect alcohol in the vehicle or even on the person. The suspicion must be that the accused had alcohol in the body at that time and there must be objective evidence to support this conclusion. [ 14 ] When Cst.

Lanoie approached the driver’s window and requested driver’s licence and registration, he was immediately met by protestations and queries by the driver as to why he was stopped and why he had to produce any documentation, even going so far as demanding to see a business card of the officer, which he produced. Cst. Lanoie explained he had observed the vehicle to be riding its brakes and that he had the authority to stop and check for this documentation as well as to check sobriety of the driver. At this point Cst. Lanoie was very close to the driver and could detect the smell of alcohol from within the vehicle.

He queried the other adult passenger, who confirmed she had not been drinking alcohol. He did not observe any alcoholic bottles or containers in the vehicle. He then asked the driver if he had been consuming alcohol to which he replied “one Pilsner between 9:00 and 9:30 - I had like one beer in Moose Jaw”, which was several hours away from their current location. This evidence was repeated by the accused in his testimony subsequently at trial. Cst.

Lanoie then asked the accused to exit, advising that he was going to require a roadside ASD test. [ 15 ] Upon exiting the vehicle, the accused continued to inquire as to why he was stopped and what authority Cst. Lanoie had to do this. He was asked to get into the rear of the patrol car which prompted the response “I’m not getting in the back - I’m not going to feel like a caged animal”. The accused in his evidence again corroborated this.

[ 16 ] Although reluctant for safety reasons, Cst. Lanoie capitulated because he thought it might calm the driver down whose voice had elevated and who appeared to be clearly agitated. At this point he was in very close proximity to the accused and could smell alcohol on his breath. He then read the formal ASD demand to him. [ 17 ] The time for assessing whether the officer’s suspicion was objectively reasonable is the time when the formal demand is made. [5] To this point Cst.

Lanoie had a smell of alcohol from the vehicle, subsequently determined to be coming from the breath of the accused and an admission of alcohol consumption albeit several hours prior. On this point, the officer certainly did not have to accept the accused’s recounting as accurate, particularly since he could smell alcohol at that time.

One must also take notice of the accused’s somewhat odd behaviour prior to the formal demand by requiring to see a business card, continuing to protest why he was stopped and on what authority, and his refusal to get into the patrol car because he “didn’t want to feel like a caged animal”.

Although these latter observations are in themselves, somewhat innocuous, when taken in context seems strange indeed for someone who had only one beer perhaps three to three and a half hours earlier as he stated. [ 18 ] In all the circumstances, the Court is satisfied that the officer’s subjective belief that the accused had alcohol in his body can be objectively supported.

c) whether or not the accused refused to blow and if so, whether he had a reasonable excuse for so doing [ 19 ] To found a conviction for refusal or failure to provide a sample of breath (either on the ASD or Intoxilyzer) the Crown must prove several things. First, there must be grounds to make the demand and second, a lawful demand must be made upon the accused. The Crown must then establish that the subject failed or refused to provide a sample ( actus reus ) and that he or she intended such result ( mens rea ).

Subject to the accused presenting a reasonable excuse then for not complying, a conviction would enter. [6] [ 20 ] In the instant case, the Court is satisfied beyond a reasonable doubt that the officer had valid grounds for the demand, that a proper demand was made [7] and that the accused failed to provide a proper sample as demanded. [ 21 ] Turning then to the mens rea of the offence, the question to be determined on the facts is whether the accused intended to produce the failure to provide a sample. In this regard, there is nothing in the evidence to suggest an unequivocal refusal by the accused.

Rather it was a sequence of events culminating in the officer’s determination that the accused was refusing to provide a sample. Certainly this can provide the basis for establishing the charge depending on the fact scenario often referred to as a “constructive refusal” [8] . [ 22 ] Cst. Lanoie testified that after he made the formal demand outside the patrol car, the accused continuously stated he didn’t understand so Cst. Lanoie repeated the demand both formally and in lay terms several times.

The officer told the accused he believed he well understood and was in effect just being difficult (at trial the accused confirmed he did in fact understand what was being asked of him). The accused then requested that he be allowed to retrieve his cell phone from his vehicle to record what was transpiring. Cst. Lanoie declined this request and then, in his words, held the ASD to the accused’s face and repeatedly told him to blow to which the accused replied words to the effect “get that thing out of my face” [9] .

The officer testified further that the accused was warned multiple times as to the consequence of his failure to provide a sample of his breath. Following several overtures to the accused holding the ASD towards him, Cst. Lanoie testified he was satisfied that the accused was refusing and he was arrested accordingly and formally charged. [ 23 ] The accused in his evidence testified that he told the officer he would blow into the machine but that he wanted to get his cell phone first. Cst.

Lanoie stated in cross-examination that although he did want to retrieve his cell phone to record events, at no time did the accused ever indicate he would blow. [ 24 ] The Court prefers the evidence of Cst. Lanoie on this point. Cst. Lanoie had been very compliant in responding to the accused’s repetitive questioning and requests. By contrast, the accused had been argumentative and uncooperative from the outset. It is

highly unlikely in these circumstances that the accused would agree to the breath demand, conditional or otherwise. This is underscored by the following exchanges in cross-examination: Q. How many times did the officer tell you that you had to blow into the machine? A. I can’t remember exactly. Q. More than once? A. More than once. Q. Probably more than five times? A. I would say probably. I didn’t count. ... Q. But you certainly understood that you had to blow into the machine? A. I understood he was asking me to, yes. Q. And you - and you wouldn’t do it, correct? A. Pardon me. Q.

And you would not do that, correct? A. I would - at the time, no. [ 25 ] It is abundantly clear on the evidence generally, and in particular by his own admission, that the accused had no intention of providing a breath sample thereby establishing the necessary mens rea for the offence. Why he would take this tack in these circumstances is frankly inexplicable. According to his own evidence he was “stone cold sober”, was educated (having attended SIAST studying such subjects as economics, finance, accounting and business communication), and appeared to be treated with patience and civility by the officer.

Even after his arrest he continued with his obstreperous manner requiring Cst. Lanoie to have to repeat his rights several times finally stating defiantly “put it this way - anything you tell me I’m not going to understand”. Unfortunately for the accused had he simply taken the reasonable step of compliance, he may well have passed and been on his way. [ 26 ] Having found that the Crown has proven the essential elements of the refusal charge, the Court must now consider whether, on the evidence, the accused had a reasonable excuse to not provide a sample.

At trial he stated variously that he was nervous at roadside, that he was unsure as to how recent consumption of a Red Bull drink might affect the result (although this consumption apparently was not imparted to the officer), that he didn’t know how the machine was calibrated or that it would be accurate [10] (which the officer took the time to explain), demanded to see the calibration records on the spot and that he wanted to retrieve his cell phone prior to complying, none of which would achieve the lawful requirement of a reasonable excuse not to blow.

For the most part, the cases suggest that a reasonable excuse would emanate from a physical or medical inability to provide samples [11] . Conceivably, there could be other reasons and each case must be decided on its own facts. The evidence here however, as stated, falls far short of establishing a reasonable excuse at law. IV. RESULT [ 27 ] The accused is found guilty as per the charge in the Information of refusal to provide a breath sample for analysis on the ASD. R.D. Jackson, J

[1] In R. v. Yaroslav Luider-Grebner, 2013 SKPC 22 , 2013 SKPC 022, Labach J. stated at para. 13: [13] Unless a demand made by a police officer falls within this section, the person upon whom the demand is made is under noobligation to comply with the demand and does not commit an offence under section 254(5) by refusing to provide the requested sample.

To put it another way, where an accused is charged with refusing to provide a sample of his breath for analysis in an approved screeningdevice and the officer making the demand did not comply with the requirements of section 254(2)(b), then that constitutes an absolutedefence to the charge. See R. v. Grant, (SCC), [1991] 3 S.C.R. 139 (S.C.C.) at paragraphs 17 to 21; R. v. Lytle, [2008]S.J. No. 770 (Sask. Prov. Ct.) at paragraph 18. In such a case, no Charter application is required. [2] c.T-18.1 R.S.S. Statutes of Saskatchewan [3] See R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.); R. v.

Shepherd, 2009 SCC 35 , [2009] S.C.J. No. 35 (C.A.). [4] [2004] S.J. No. 187 [5] See R. v. Nahorniak, 2010 SKCA 68 , [2010] S.J. No. 300 (C.A.) at para. 23. [6] R. v. Lewko, [2002] S.J. No. 629 (C.A.) at paras. 9-10; R. v. Dolphin, 2004 MBQB 252 , [2004] M.J. No. 433 at para. 4(Q.B.). [7] Although the accused stated at roadside that he didn’t understand the “legal jargon” of the demand, he confirmed at trial that he knewthe officer wanted him to blow into the instrument and that this device was utilized for measuring alcohol content in some fashion.

Inany event, the Crown need not prove that he subjectively understood - just that a proper demand was made to a person capable ofreceiving it. See R. v. Khun-Khun, [2007] B.C.J. No. 2902 (S.C.). [8] See R. v. Assaf (1987), 7 M.V.R. (2d) (N.S.C.A.) dealing with the Court’s ability to draw the necessary inference of intention to refusefrom the actions of the accused. [9] The accused stated in his cross-examination almost in passing that the instrument had struck him in the mouth during this process. The court puts very little stock in this however. No reference of this was made in Cst.

Lanoie’s evidence nor was he cross-examined onthis point. The accused raised it only in cross-examination and, in any event, he did not testify that this in any way inhibited him orprevented him from complying. [10] See R. v. Frohwerk, [1979] M.J. No. 19 at para. 11 (C.A.) - although dealing with refusal of a breathalyzer, the words nonetheless areapt in this circumstance “to constitute a reasonable excuse, there must be something more than concern that the test results will not beaccurate, or that the peace officer or the technician is unpleasant.

Whether the fear of the distorted result originates in the accused’s ownmind, or is prompted by some remark of the police officer (or some third party) is immaterial. The breathalyzer test should be taken ...that is not to say that the individual who does have a reasonable excuse is precluded from raising the excuse immediately and refusingthe breathalyzer. But fear that the reading may be inaccurate is not a reasonable excuse.” [11] See R. v. Nadeau, [1974] N.B.J. No. 7 (C.A.); R. v. Lay, [2005] A.J. No. 1331 at para. 29 (Q.B.).