Her Majesty the Queen - v. -, 2015 SKPC 127

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 127 Date: August 25, 2015 Information: 44407882 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dane Patrick Young Appearing: M. Pilon For the Crown R. Piché For the Accused JUDGMENT B.G. MORGAN , J Introduction and Issues [ 1 ] Mr. Young is charged with two offences from the events of May 20, 2014, in Saskatoon, Saskatchewan, commonly known as impaired driving and failing or refusing to comply with a s. 254(2) ASD demand.

The case proceeded on a blended voir dire , as there was a Charter issue that was raised by the defence, although ultimately abandoned. However, during the hearing of that Charter voir dire , it came to light that the mouthpieces used on the refusal charge were discarded by the investigating officer on the night of these charges, leading to a second Charter application, alleging a breach of Mr. Young’s s. 7 Charter rights. The defence seeks the remedy exclusion of any evidence that would support an allegation that Mr. Young failed to comply with the demand.

[ 2 ] By agreement, all the evidence from the voir dire was applied to the trial proper, that evidence consisting exclusively of that of the arresting officer. On the trial proper, Mr. Young testified, as did Dr. David Henry, Mr. Young’s family physician, as a defence was raised based on Mr. Young’s medical condition. [ 3 ] At this point then, all evidence, whether voir dire or trial evidence, has been heard, and evidence from one proceeding applied to the other. That therefore leaves the following issues to decide: 1. Has there been a s. 7 Charter breach, and if so, what remedy should be granted? 2.

Has the Crown proven the elements of the s. 254(2) charge and, if so, has the defence raised a reasonable excuse for failing to comply with the ASD demand (count #2)? 3. Has the impaired operation charge been proven (count #1)? [ 4 ] I will deal firstly with the facts, as the contextual background is necessary to properly address these issues. The Facts [ 5 ] What initially brought Mr.

Young to the attention of Constable Mitchell was that while she was proceeding southbound on Idylwyld Drive in Saskatoon, a main north south thoroughfare, she noted headlights coming towards her in the same southbound lane, albeit some distance ahead of her. [ 6 ] She pursued this vehicle, pulling it over very shortly after it had executed a turn off of Idylwyld Drive, and dealt with Mr. Young, the sole occupant of the vehicle. He indicated to her that he had consumed some alcohol the “previous night” which she took to mean some time after 6:00 p.m. the day before, as this was approximately 1:00 a.m.

She noted some saliva on the corner of his mouth, which she took as a sign of a dry mouth perhaps caused by drinking, that his eyes were slightly bloodshot, and that when he turned to speak to her she could smell a little bit of alcohol.

Putting that altogether, and relying as well on the admission of prior consumption of alcohol, Constable Mitchell decided to administer an Approved Screening Device (ASD) test. [ 7 ] I am satisfied that the officer possessed the requisite subjective belief to make the demand, and I am also satisfied that this subjective belief was objectively reasonable. [ 8 ] Jumping ahead briefly to the formal demand, I am also satisfied that the officer made a valid and clear ASD demand upon Mr. Young. [ 9 ] I also find that each of the officer and Mr. Young were polite to each other, although I did note that Mr.

Young had a tendency to ask a question, and almost immediately interfere with Constable Mitchell when she tried to explain what was occurring. Cst. Mitchell handled these interruptions in a professional and appropriate manner. As the police video and audio camera recorded what occurred in the police vehicle (Exhibit P-1), I will now review what it revealed, returning later to the trial evidence of the witnesses. [ 10 ] I find that the officer gave clear instructions as to how she wanted Mr. Young to provide a sample.

She started out by noting that she would put in a “brand new mouthpiece so no one has ever used this before”, and as she gave her instructions, she again reiterated, “like I said, going to put on a new mouthpiece for you”. One can clearly hear the cellophane being taken off the mouthpiece. She then instructed Mr. Young as follows: . . . all you do is put your lips onto this mouthpiece, just before it gets wider and that you blow one long continuous breath in . . . sort of

. . . all you do is put your lips onto this mouthpiece, just before it gets wider and that you blow one long continuous breath in . . . sort of like blowing up a balloon . . . it’s just one long breath . . . it will make a tone when you are blowing hard enough, and when it stops making a tone, then I will let you know you can stop blowing . . . it usually takes about 6 or 7 seconds . . . you will probably be out of breath when you are done. . . do you have any questions? Mr.

Young replied that he did not have any questions. [ 11 ] The first sample was taken at 1:10:35, and you can hear the officer saying “blow harder. . . harder. . . okay you started blowing hard enough and then kind of stopped”. The officer explained again how the tone worked, and I would estimate that Mr. Young blew for approximately four seconds. [ 12 ] The second sample was at 1:11:06, and again the sample appeared to be of about four seconds in duration. The officer again told Mr.

Young he had to blow harder. [ 13 ] The third attempt was at 1:12:12, took about three seconds, to which the officer responded “maybe close your mouth tighter on the mouthpiece . . . looks like there was air escaping”. [ 14 ] At this point, she politely advised Mr. Young she thought he should try harder. He had been professing to want to be cooperative, and was saying he was trying.

However, the officer obviously viewed this statement with some skepticism, as she noted that this is what she does for a living, and politely steered him towards trying to blow harder. [ 15 ] The fourth sample was at 1:13:40, and lasted about four seconds, following which Constable Mitchell told him to “keep his lips tight”. [ 16 ] The fifth attempt was at 1:14:44, lasted about three seconds, and prompted a discussion between the two of them. Mr.

Young noted that “I’ve done this three times”, to which the officer replied correctly, “actually, you’ve done it five”. [ 17 ] The general tenor of the conversation was that Mr. Young was continuing to profess that he was nervous, that he wanted to cooperate fully, that he was doing everything he could to provide a sample, and the officer was equally adamant in politely telling him that she was of a different view. [ 18 ] The sixth sample attempt was at 1:17:37, lasted about two seconds, to which the officer said “I can tell you were barely blowing any air out of your mouth. . .

I am going to give you one more opportunity.” Before proceeding with that, she stated “I will show you it’s working just fine today . . . I am putting a different mouthpiece on for me . . .”. You can then hear her blowing into the unit (the video portion of the camera is focussed only on the back seat). She then states “zero”, obviously referring to the reading, then tells Mr. Young she’s going to put a new mouthpiece on, which she does. [ 19 ] To recap, Mr.

Young would have had the same mouthpiece for the first six samples, a second mouthpiece would have been used by the officer to demonstrate the machine was working, following which she put on a third mouthpiece for the next samples. [ 20 ] The seventh attempt was at 1:21:48, lasted about five seconds, to which the officer replied that Mr. Young “just about had it . . . had a user error . . .

I’ll give you one more chance.” [ 21 ] The eighth attempt was at 1:22:20, lasted about two seconds, to which the officer responded “that wasn’t as good as the one before that”. [ 22 ] The ninth attempt was at 1:23:50 to which Mr. Young said “did I lose it or what?”, to which the officer asked if he wanted to try once more.

[23] The tenth attempt was at 1:24:20, lasted about two seconds, following which the officer advised Mr. Young that she was ofthe opinion that he was deliberately not providing a sample, and that he would be charged. That elicited from Mr. Young a number ofcomments respecting this being ridiculous, and general comments of that nature. [24] Returning to my earlier observation, Mr. Young’s voice and mood throughout were initially quite calm, although his attitudedid start to deteriorate a bit as the attempts to obtain a sample went on.

I also noted that almost every time the officer started to explainthings, he would butt in. He would ask her a question for clarification, despite having said he had no questions, and despite the officerclearly indicating at each attempt what she wanted him to do. When she tried to respond to Mr. Young’s comments or questions, hewould start trying to talk over her. [25] I will now make other findings of fact based on the evidence in these proceedings. As there is both Crown and defenceevidence, I will apply the rules in R v W.D., [1991] 1 SCR 742, . [26] I will start with Cst. Mitchell.

I found her to be a very clear and professional witness on the stand, which was an attitude shealso exhibited on the in-car video. I accepted her evidence as being credible and reliable, and an accurate assessment of the situation. [27] During cross-examination on the voir dire, when the officer was asked about the location of the mouthpieces, she said theywould have been thrown out in the early morning hours. Speaking specifically in response to a question about the first mouthpiece, herevidence was that she did not preserve it because she thought it was fine.

She then spoke about the other two mouthpieces, and I amsatisfied all three mouthpieces suffered the same fate for the same reason. [28] She did say that she was not aware that they had been requested, although that would not have mattered, as there would havebeen no opportunity for counsel to make such a request before the mouthpieces were discarded.

I am satisfied that there was nothingmalicious guiding the officer’s actions; she simply did not seem to put her mind to the question of whether she should or should not keepthe mouthpieces. [29] She testified she was a qualified operator, and that she deemed that the ASD was working properly. She based this on the factthat she had used it, and that the lights, tone, etc., were all normal. [30] She noted the date stamp for calibration was good to the 15th of the month, this stop occurring on the 10th day of the month.

She went on to note if there is a good sample, the steady tone continues while the ASD is on; if it starts beeping, that means an error. [31] She testified that the process is that one takes a deep breath in, and that she could hear what sounded like air escaping out ofthe sides of Mr. Young’s mouth. She said that sometimes he took a deep breath, but let little air out, and then a couple of times, itseemed he was providing sufficient pressure when blowing, but he simply did not blow long enough. She was clear that if the instrumentstarts beeping, the problem is with how the person is providing the sample.

She testified there was no explanation from Mr. Young as towhy he could not provide a sample, and in fact, he said he was trying as hard as he could. She reiterated that she saw no problem withanything, and that he raised none, leading her to the conclusion that he was deliberately thwarting any attempt to provide a proper sampleinto the ASD. [32] The defence called Dr. David Henry, a general physician, who has been licenced since 1970 and practices medicine in FortErie, Ontario (he testified by phone, by agreement). I note that Dr.

Henry was not qualified as an expert; rather, he is an expert in thesense that he has a medical degree, although his role was to provide evidence as to what he knew respecting Mr. Young’s medicalsituation. I raise this because Dr. Henry did start to touch upon his view of how asthma may affect a person, a not uncommon tendencyin a situation like this. However, Dr. Young was very fair in being clear that he had no knowledge of how an ASD works, and that hehad no personal knowledge of Mr. Young’s medical condition at the relevant time.

He was a fair and candid witness, polite to bothcounsel, and provided useful evidence in a professional manner. I have no hesitation in accepting his evidence.

[ 33 ] Dr. Henry testified that Mr. Young was a patient of his from infancy, that he had asthma as a child, and that he had been treating him with inhalers “over the years”, and referred specifically to treating him through his teenage years. [ 34 ] Dr. Henry testified that he hadn’t seen Dane Young professionally since he moved, obviously referring to the latter’s move west, and did not recall when that occurred. His evidence was that he last saw him as a patient when Mr. Young was 20 or 25, and Mr. Young testified that he is now 33, so it has to be at least eight years. [ 35 ] He did not have Mr.

Young’s records any longer, for perfectly valid reasons, although he had some recall of Mr. Young’s situation, as Dr. Henry is a close family friend of Mr. Young’s father, and so would have a closer relationship to Mr. Young than the usual doctor-patient relationship. Having said that, Dr. Henry’s evidence was in no way impaired by that relationship: I raise it only as an explanation as to why he would have a recollection of Mr. Young’s medical history. [ 36 ] Dr. Henry referred to Mr. Young mostly being prescribed Ventolin, which is a short acting agent.

If one is having an asthma attack, one would use that in a crisis. The other drug Mr. Young was being treated with was Symbiatort, which is used as a preventative measure, and is used twice a day on an ongoing basis, to reduce inflammation caused by asthma. [ 37 ] In cross-examination, Dr. Henry acknowledged that he did not diagnose the asthma, that a pediatrician did, and that he did no tests at all. He relied on the symptoms described by Mr. Young in formulating a treatment plan. He did testify that stress or anxiety can trigger an asthma attack, and he stated that asthmatics have difficulty in exhaling.

He could say that if Mr. Young’s asthma was active at the time, he would have trouble “blowing up a balloon”, and he further noted that if one were profoundly asthmatic, there would be shortness of breath, and if one was impaired, he would expect coughing or wheezing, and trouble with breath generally. [ 38 ] Mr. Young testified, and stated he was 8 or 9 years old when he first went to see Dr. Henry, and he believes he had been diagnosed when he was approximately 4 years old with asthma. [ 39 ] He is now 33, and states that he suffers everyday with shortness of breath.

He says he takes his medications three or four times a day and that he has snow mould and other allergies, although that by mid-June or July, his symptoms generally improve. [ 40 ] With respect to the night this occurred, he went through his drinking pattern, stating he had dinner with his sister-in-law, at which point he had consumed two 12.5 ounce cans of Coors Light or Bud Light, those having been consumed between approximately 6:00 and 8:00 p.m. He says he then fell asleep watching televison, and was phoned to meet some friends. [ 41 ] He did tell the police officer that he had been drinking earlier.

He testified that in the vehicle, her “explanation was very clear”, and that he did give it “my very best efforts”. He said that between four to six seconds was the longest he could provide a sample, and then “I felt like I was out of breath”. [ 42 ] He does recall the officer stating that there was air seeping out of the side of the tube, but he denied that in fact occurred.

He says he was nervous and surprised to be pulled over for his driving behaviour and was nervous about the ASD. [ 43 ] When asked why he did not say that he had asthma, or that he was nervous, he said he “just did not put two and two together”. [ 44 ] With respect to his remark about having provided ASD samples before, which he made in the vehicle, he testified that he was never required to blow into an ASD.

Rather, one had been at a house party that he attended a few years prior to this night. [ 45 ] He said that he could not remember using an inhaler prior to the stop and that his smoking pattern was approximately 15 to 20 cigarettes a day at the time.

[ 46 ] In cross-examination, he testified that he was trying and that he was not having an active attack at the time of the samples being requested. [ 47 ] In assessing Mr. Young’s credibility, I start by noting that he did present well on the witness stand. This was in contrast, however, to how he appeared on the video at certain times, as touched on earlier. As noted then, although Mr. Young was polite, he was constantly interrupting the officer.

He did not do so in a threatening or belligerent attitude at first, although I found it telling that he would ask the officer for an explanation on some point, and when she tried to give it, would immediately interrupt her and start trying to debate issues with her. [ 48 ] I accept that he said in the video that he was trying as hard as he could, as of course he said he did in his trial evidence as well, although I simply do not accept that as being accurate for a number of reasons. [ 49 ] First, I accept the officer’s evidence that she could discern air escaping from the side, and I also note from the video evidence that it is patently clear that Mr.

Young is taking short breaths at times, and not blowing for very long. On two occasions, however, he did: the seventh and ninth attempts, both which appear to be a little over five seconds, but both of which fell short of providing a valid sample. [ 50 ] The fact that he could provide long samples on two occasions, being the seventh and ninth, makes me question why he could not provide them on six previous attempts, all of which were very short attempts.

Put another way, it is pretty clear that he could blow longer if he chose to, as evidenced by the fact that he did so twice, and it is pretty clear that he could provide sufficient air pressure, as he did so on those two occasions as well. [ 51 ] Second, to expand on the above comments as to his demeanour in the police vehicle, at one point, he referred to feeling “bullied”, although there was nothing in the attitude or treatment he was receiving from Constable Mitchell that could possibly allow him to feel so.

He had asked, immediately after the demand was read, if he had a choice in the mater, to which the officer politely replied that he did not. That is the closest thing I could interpret as bullying behaviour, and it was not in any way so. The “bullying” was the calm repetition of instructions, when Mr. Young started to act in a peevish manner. [ 52 ] With respect to his evidence about asthma, to his credit, he did not claim to be having an active attack.

That he was in no distress whatsoever at the time of providing the samples is evident from a review of the video. [ 53 ] I do not accept his evidence at trial that he just “did not put two and two together”; that being his explanation as to why he did not mention having any problems in providing a sample. It was clear to me that he was not having any problems. In fact, as the officer pointed out, he was stating, untruthfully I find, that he was trying his very best. [ 54 ] The fact that Mr.

Young had asthma as a child, and the fact that he may have been using an inhaler at the time of the offence, does not mean a lot in these circumstances, as, asthma or not, he was simply not blowing hard enough. That action on his part was deliberate, and completely unimpeded in any way by any alleged medical condition he may have had. [ 55 ] Turning to the mouthpiece, I have no reason to believe any of the three that were used were not working properly.

Obviously, the second one, the test one used by Constable Mitchell, was working properly; Constable Mitchell obtained a valid reading, confirming as well her view that the instrument was in proper working order. [ 56 ] With respect to the first and third mouthpieces, I find that air was being pushed into the machine, so clearly the mouthpieces were not obstructed. The reason the instrument was not recording a reading had nothing to do with a faulty mouthpiece; rather, it had everything to do with the deliberate actions on the part of Mr. Young to intentionally fail to provide a sufficient sample.

[ 57 ] Against that factual background, I will deal with the various issues: 1. Has there been a s. 7 Charter breach, and if so, what remedy should be granted? [ 58 ] This question has been directly considered in Saskatchewan in the case of R v Goosen , 2014 SKQB 135 [ Goosen ], a case cited by Mr. Pilon. In that case, Mr. Justice Tholl of the Court of Queen’s Bench dealt specifically with that issue in para 46 onward.

He reviewed a number of cases from outside Saskatchewan that have dealt with this issue, referred specifically to the Saskatchewan Court of Appeal decision in R v Anderson , 2013 SKCA 92 , and states at para 54 of Goosen : As noted in para. 107 of R v Anderson (T) , whether the loss of a piece of evidence will result in irreparable harm to the accused’s ability to make full answer and defence depends upon the nature of the evidence lost and the circumstances of the case. [ 59 ] In this case, I find specifically that Constable Mitchell was not acting with any improper motive or malice in throwing out the mouthpieces.

In my view, it was not a particularly good idea for Constable Mitchell to assume those mouthpieces would not be requested. In Goosen , Mr. Justice Tholl refers to the case of R v Lee , ONSC 4117, in which that Court determined that the mouthpiece was “no different from the myriad of other items that are not preserved such as, beakers, test tubes and many other items used to analyse samples in criminal matters” (see para 51).

I would not be prepared to agree with the Ontario court that an ASD mouthpiece is necessarily in the same category as, for example, a beaker: I can conceive of cases in which it may be relevant whether or not a mouthpiece used in a testing device was faulty, in certain circumstances. However, this is not one of those cases: I am totally satisfied that the mouthpieces were all working, for the reasons I gave. Even if they were not working, it would not matter: Mr.

Young intended to produce a failure, rendering the point moot. [ 60 ] I would only add that the Goosen decision made reference to a mouthpiece being lost due to “an intentional act to destroy evidence or the unacceptably negligent loss of critical evidence”, at para 47. There is no doubt that in this case, unlike in Goosen , the officer intended to destroy the evidence; she threw the mouthpieces away. However, she did not do so with any malicious intent, and I find that the mouthpieces were not in any sense “critical” to anything; they were all operable, the failure to provide a sample resting solely with Mr.

Young and his deliberate attempts to produce the failures. [ 61 ] Therefore, dealing with the Charter issue, and on the authority of Goosen , in the circumstances of this case, I do not find a Charter breach. [ 62 ] Even had I found a Charter breach, however, I would not have granted the remedy sought in this case, that being an exclusion of evidence. In my view, there is sufficient other evidence to allow me to decide this case without resorting to the mouthpieces, and even with the mouthpieces in evidence, the result would have been the same. [ 63 ] I therefore dismiss the Charter application. 2.

Has the Crown proven the elements of the s. 254(2) charge, and if so, has the defence provided a reasonable excuse for failing to comply with that demand (count #2)? [ 64 ] Turning to the refusal charge first, the guiding authority in Saskatchewan is R v Lewko, 2002 SKCA 121 . [ 65 ] The first element that the Crown must establish is a lawful demand, in this case for an ASD sample. For the reasons given, I am satisfied the Crown has done so. [ 66 ] The second element deals with the actus reus of the offence, that being a refusal or failure to produce the required sample of breath. That has been established.

[ 67 ] The third element deals with the mens rea of the offence, that being an intention on the part of the defendant to produce that failure or refusal. I am absolutely satisfied on all the facts and circumstances of this case that Mr. Young was intentionally failing or refusing to provide a sample of breath pursuant to a lawful demand. [ 68 ] Mr. Young is required to establish the factual foundation that provides the reasonable excuse on a balance of probabilities (see R v Goleski , 2015 SCC 6 ). He has failed to do so, as I do not believe him. [ 69 ] Mr.

Young is therefore guilty on count #2, the refusal charge. [ 70 ] With respect to count #1, I am left in reasonable doubt on all the evidence of the guilt of Mr. Young, and I find him not guilty on this count. The test, of course, is any degree of impairment, ranging from slight to great, of one’s ability to operate a motor vehicle, caused by the consumption of alcohol.

In this case, the evidence is not sufficient to meet that standard. [ 71 ] The intersection in question is fairly new; prior to recent road work done in Saskatoon, the portion of 25 th Street to the east of Idylwyld Drive stopped blocks short of Idylwyld Drive.

Thus, the intersection of 25 th Street West and Idylwyld Drive was a “T” intersection. [ 72 ] With the new work, the eastern portion of 25 th Street has been pushed through to Idylwyld Drive, but connects to Idylwyld Drive south of the portion of 25 th Street to the west of Idylwyld Drive, causing somewhat of an offset intersection which the officer estimated to be 50 to 75 metres. [ 73 ] The practical result of that is if one is driving northbound on Idylwyld Drive, as I understand Mr.

Young to have been doing, and wanted to proceed westbound on 25 th Street, that would require driving northbound in the southbound lane for a short period of time, which is the observation that Constable Mitchell made. However, at the time this occurred, Constable Mitchell agreed that intersection had been fairly recently changed. Mr. Young’s evidence was that as he was proceeding northbound on Idylwyld, his cell phone rang, so he took the nearest left turn to pull over to answer it. He referred as well to the intersection being new.

Whereas I find it strange that he would see the need to go left onto 25 th Street to take a call, when that took him off his planned route, I do accept it was a new intersection at the time, and may have caused some confusion to him. [ 74 ] That manoeuvre, although it attracted the police officer’s attention, does not establish the impaired operation charge, although of course that is not the only evidence I consider. However, when I look at all of these surrounding circumstances, I am simply not satisfied on the requisite proof beyond a reasonable doubt of even a slight degree of impairment.

Of some note is that Constable Mitchell noted little of what may be called the “usual signs” of impairment, and it was clear to me that had Mr. Young passed the ASD test, she was quite prepared to send him on his way. She obviously did not see enough evidence to charge Mr. Young with impaired operation of a motor vehicle at the investigation stage, and although that is not determinative, it is also a factor I have taken into account. [ 75 ] In conclusion, Mr. Young is not guilty on count #1, the impaired operation charge, but is guilty on count #2. The refusal charge. ____________________ B.G. Morgan, J