Her Majesty the Queen - v. -, 2012 SKPC 142

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 142 Date: August 29, 2012 Information: 24403455 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Clifford Jerome Buettner Appearing: L. E. Dunning For the Crown R. P. Piché For the Accused JUDGMENT Q.D. AGNEW , J [ 1 ] On April 23, 2011 Clifford Buettner had supper at about 6:00 p.m. with friends and family at his home near Prince Albert. He had a few drinks with supper.

He then made the first of what turned out to be a series of bad decisions, which eventually led to his appearance before this Court. [ 2 ] Mr. Buettner and some members of his party decided to drive to Saskatoon, to visit the casino. Mr. Buettner drove. Along the way, they stopped in the town of Duck Lake, to purchase beer. Some of the beer was then consumed by various occupants of the vehicle.

[ 3 ] Unfortunately for Mr. Buettner, near the town of Warman he happened across the path of Constable Hall, an RCMP officer on duty at the time. More unfortunately for Mr. Buettner, Constable Hall’s vehicle was equipped with a radar device to measure the speed of other vehicles. Most unfortunately for Mr. Buettner, he was at that moment accelerating from 130 to 160 km/hour in a 110 km/hour zone. [ 4 ] Constable Hall pulled Mr. Buettner’s vehicle over, and the chain of events continued which ultimately resulted in Mr.

Buettner standing before the Court accused of: (1) failure or refusal to provide a breath sample; and (2) impaired operation of a motor vehicle. [1] [ 5 ] Defence has raised a number of arguments against conviction, each of which will be dealt with in turn: A. Pursuant to the Charter , s. 9, was there an arbitrary detention? The defence contends that Constable Hall arrested the accused before he exited his own vehicle, and that at such point, the constable lacked grounds for such arrest; B.

Did the Crown prove what instrument was available for the accused to provide a breath sample into, did it prove that it was an approved instrument, and did it prove that the technician was qualified on it? If not, then the defence argues that there was no valid demand and the accused cannot be convicted of refusal; C. Was the breath sample attempted to be taken as soon as practicable? This is not a Charter issue: the defence argues that if this requirement is not met then there is no lawful breath demand and the accused cannot be convicted of refusal; D.

Did the accused actually refuse to provide a valid breath sample? E. Was the accused’s ability to operate his motor vehicle impaired by alcohol? Facts [ 6 ] On April 23, 2011, Constable Hall, an RCMP member of the Warman Detachment, was on duty in uniform, in a marked police car. He was on Highway 11 approximately one kilometre north of Warman, between the lanes of the divided highway. He was facing north, and thus looking toward traffic coming from the direction of Prince Albert and heading in the direction of Saskatoon.

He observed a vehicle approaching at a high rate of speed which he clocked on his radar gun beginning at about 130 km/hour, increasing up to “about 161”. The speed limit on the highway at that point is 110 km/hour. [ 7 ] He pulled the vehicle, a red Mustang, over and found the accused behind the wheel. There were also passengers in the car.

There was a strong odour of alcohol coming from the vehicle, and the accused exhibited slurred speech and “droopy” eyes. [ 8 ] Constable Hall testified that: he asked the accused to step out of his vehicle and told him that he was being detained for an impaired driving investigation; the accused held onto the car in exiting, and exhibited unsteady walking as he went to the police car; the accused then had to hold onto the police car; once in the police car, the accused admitted having had “a few” drinks and exhibited both slurred speech and a strong odour of alcohol from his breath.

At that point, Constable Hall arrested him for impaired driving and read him his rights. The accused indicated he did not want a lawyer. [ 9 ] The accused testified that he would “generally” assist himself in exiting his car by using the side of the vehicle. He denied having any difficulty walking to the police car. For reasons which I will outline below, I have difficulties with the evidence provided by the accused and I accept the version of events put forward by Constable Hall.

[ 10 ] As the accused’s passengers all indicated they were too drunk to drive the vehicle, Constable Hall called for another officer to assist with the accused’s vehicle. Thereafter, Constable Hall and the accused left for the Warman Detachment. [ 11 ] They arrived at the Warman Detachment at 23:24 hours, and the accused was put in a position to provide a breath sample at 23:45. [ 12 ] The accused was told by Constable Mehl, another RCMP officer on duty, how to provide a sample. The accused blew, and the machine indicated that he had provided an insufficient sample.

Constable Mehl advised the accused again how to provide a sample. Another failure followed. Another explanation, another attempt, another failure. After the third failure, Constable Mehl began to suspect that the accused was deliberately not providing a proper sample, and warned him of the consequences of not providing a proper sample, namely being charged for refusal to blow. Ultimately, the accused was given six opportunities to provide a breath sample, each preceded by instructions. After six failures, Constable Mehl checked the mouthpiece and found that it was not blocked.

Using a different mouthpiece, he checked the operation of the machine, and found it too to be operating normally. He then gave the accused a further opportunity to provide a sample. The accused said he was already trying, and on being given an opportunity to attempt another sample, replied that he would not do so and that the police should “charge me with refusal”. They accordingly did so, provided him with the necessary documentation and released him. A.

Arbitrary detention [ 13 ] The accused argues that he was arrested for impaired driving while still in his vehicle, at which point Constable Hall had only the accused’s “droopy” eyes, slurred speech, speed and the odour of alcohol from the car to justify the arrest.

The accused argues that these were insufficient grounds for the arrest. [ 14 ] Notwithstanding defence counsel’s recollection of the evidence, I am satisfied that Constable Hall testified that when he stopped the vehicle and asked the driver to step out, he told the driver that he was being detained, not arrested, for an impaired driving investigation. Constable Hall was quite clear on this point.

On three distinct occasions over the course of his testimony, twice in examination-in-chief and once in cross-examination, he stated that at the point the accused was asked to exit his own vehicle, Constable Hall was detaining him for an impaired driving investigation. If further confirmation is required, it can be found by virtue of the fact that elsewhere in his testimony, Constable Hall stated that it was only when he smelled alcohol on the accused’s breath, when the accused was in the police vehicle, that the constable formed the opinion that the accused was impaired and accordingly arrested him.

That is the point at which the grounds crystallized. [ 15 ] Defence did not argue that Constable Hall lacked sufficient grounds for arrest after the events in the police car; rather, the argument was focused on the grounds which existed when he asked the accused to exit his vehicle. As I have found that the arrest did not happen at that time, the defence argument fails. I note, however, that at the time of the arrest, Constable Hall had the following information available to him: (

a) the accused had been driving at a very high rate of speed, roughly half again the speed limit; (

b) the accused admitted to consuming alcohol; (

c) there was a strong odour of alcohol coming from the accused’s breath; (

d) the accused had slurred speech and droopy eyes; and (

e) the accused had to hold onto his own vehicle to exit it, wove a bit while walking and required the support of his own vehicle and the police car. [ 16 ] I therefore dismiss this argument. B. Did the Crown prove what instrument was available for the accused to provide a breath sample into, did it prove that it was an approved instrument, and did it prove that the technician was qualified on it? [ 17 ] Defence raised in argument the question of whether or not the Crown had proven that the breath technician, Constable Mehl,

[ 17 ] Defence raised in argument the question of whether or not the Crown had proven that the breath technician, Constable Mehl, was qualified to operate the instrument on which samples were attempted. Defence also argued that the Crown did not prove what instrument was in fact being used.

In essence, the defence argued that the Crown has to prove that the instrument offered for the breath sample is an approved instrument and that the technician is qualified on that instrument. [ 18 ] Constable Mehl referred to the instrument on which he attempted to obtain samples of the accused’s breath as an “Intox ECIR” on two separate occasions. The only Intox instrument with a name like that which is approved is an “Intox EC/IR II”. I would not expect someone to refer to the “/” verbally but the absence of the “II” is potentially problematic.

The fact that there is a “II” in the name suggests that there was an earlier model, to which Constable Mehl might well have been referring. Any such model is not an approved instrument. [ 19 ] Constable Mehl testified that he was a “qualified breath technician”, having been appointed March 30, 2011 after taking a “conversion course” in February, 2011 and having been qualified on the Intox 5000C in 2007. He confirmed that he continues to be requalified and reappointed.

The potential difficulty in this regard, of course, is that he does not testify that he is qualified on the instrument which he used: the only instrument on which he testified he was qualified was the Intox 5000C - which is not, apparently, the instrument which was used with the accused. I do not believe that I can make the assumption that his “conversion” and “requalification” necessarily relate to the instrument which he was operating that particular night. [ 20 ] Unfortunately for the accused, I do not consider either of these problems to be of assistance to him.

Section 254(5) makes it an offence not to comply with a demand made under the section. There is no reference to the Crown having to prove that the instrument offered to receive breath samples was an approved instrument, or that the person operating it was qualified so to do. Rather, as long as the demand is valid, refusal (or conduct which amounts to a refusal) constitutes the offence. [2] [ 21 ] In my view, the comments of Gratton DCJ in R. v. Guertin [3] remain a fair

summary of the requirements for a conviction for a refusal charge: The essential ingredients of the offence in my opinion are the following: 1. peace officer must have reasonable and probable grounds to 2. believe that a person is committing or at any time within the two [now three] preceding hours has committed an offence under

Section 222 [now s. 253(1)(a)]. 3. A demand must be made then or as soon as practicable. 4. Such demand must require that person

a) to provide a sample of his breath, etc., and

b) to accompany the peace officer for that purpose. 5. Failure or refusal by the person to comply with the demand made to him by a peace officer in the circumstances described in Section 223(1) [now s. 253(3)(a)(1)]. 6. Absence of reasonable excuse on the part of that person.

[ 22 ] Accordingly, I dismiss this argument. C. Was the breath sample attempted to be taken as soon as practicable? [ 23 ] The accused argued that the breath sample was not taken as soon as practicable. The evidence establishes that the accused and Constable Hall arrived at the RCMP detachment at 23:24, and the accused was put in a position to provide his first breath sample at 23:45. There was no evidence as to what occurred in the intervening 21 minutes. [ 24 ] The accused urges me to find that this unexplained delay is fatal to the charge.

It is clear that such a delay is a problem for the Crown in “over 80” cases. Unfortunately, counsel did not provide me with any authority, nor have I been able to find any, showing that the same result applies in refusal cases. There is no doubt but that this requirement exists as far as the demand is concerned; I am not aware that it exists beyond that. [ 25 ] I would again refer to R. v.

Guertin and the criteria referred to therein, which make no mention of the requirement which defence urges me to find. [ 26 ] I do not therefore find any merit in the accused’s contention that the unexplained delay between the arrival at the police detachment and the first attempt to have the accused blow, a total of 21 minutes, is fatal to the charge. D. Did the accused actually refuse to provide a valid breath sample? [ 27 ] With respect to the refusal itself, the evidence of Constable Mehl is that the accused made six attempts to provide a sample, none of which were successful.

In each case, the accused seems to have placed the mouthpiece of the machine in his mouth and given every appearance of blowing, but the machine each time indicated that it had received an insufficient sample. Constable Mehl, both before the first sample and before each subsequent attempt, told the accused how to give a proper sample. Each time the accused appeared to understand. After the third attempt, Constable Mehl warned the accused of the consequences of not providing a proper sample. The accused responded that he was attempting to do so.

At no time did the accused suggest that there was any medical reason why he could not blow, that there was a blockage in the mouthpiece, that he did not understand how to perform the test, or that there was any other specific issue. [4] After the sixth attempt, Constable Mehl checked the mouthpiece and found it was fine, and used a separate mouthpiece to check the machine and found that it too was operating properly. He then gave the accused a further opportunity to provide a sample.

The accused at no point, according to Constable Mehl, outright refused to provide a sample to Constable Mehl, but rather said that he was providing a sample. Eventually, Constable Mehl concluded that the accused was not going to give a proper sample and advised Constable Hall of that fact. Constable Hall charged the accused with refusal.

Prior to so doing, however, Constable Hall asked the accused if he wanted to try again to provide a sample, and the accused responded in the negative. [ 28 ] The accused puts forward the proposition that he was making an honest attempt to provide proper samples, and that he therefore should be found not guilty. In assessing this claim and determining whether or not it raises a reasonable doubt, the credibility of the accused is obviously of significant importance. [ 29 ] The evidence of the accused is interesting, not only for what he says but also for what he does not say.

Although he did not give the appearance of attempting to be deceitful or disingenuous, it became clear in the course of his evidence that he was listening very closely to the questions and answering them in a very precise way. His delivery often disguised the fact that his answers were not responsive or avoided the question asked. I noted in particular the following examples: (

i) in response to the question “Did you at any time have any intention of refusing to provide breath samples that night?”, the accused responded “I may have asked the officer that question directly, what options I had, but I complied with the directions of the officer.” Even in the context of the questions surrounding that question and answer, it is clear that the accused’s statement is not actually a response to the question. In essence, when asked if he had the intention to refuse to provide a breath sample, the accused responded “I complied with the directions of the officer”.

Shortly after that statement, the accused repeated that he had “complied with [the officer’s] direction” and “I followed his instructions”;

(ii) in cross-examination, the accused acknowledged that when Constable Hall stopped him, the constable indicated that he had “clocked” the accused at 153 kilometres per hour. He was asked if that wasn’t “quite a fast speed” to be travelling, particularly with passengers. The accused responded, “it may have been a spontaneous thing, and I know that the car I have is very responsive so I did not even realize it”.

When then asked if this meant that he was not paying attention to his speed, his response was “the rate of speed can fluctuate a lot in a short period of time in that vehicle.” Again, the accused did not answer the questions; (iii) when asked “what time did you have your last drink”, the accused responded, “we would have left around, prior to ten o’clock.” Even had there not been open alcohol in the vehicle, this answer is clearly not responsive; (iv) when asked if he blew into the instrument for three to four seconds, the accused responded by saying, “at the request of the officer, following his instructions, yes.” When asked if the officer had told him that he was not provided a steady stream of air, the accused responded “he indicated that I was not complying with his directions, which I was”.

Again, the answer is not actually a response to the question. When challenged about providing a sample, the accused insisted that he was “following the instructions [the officer] gave me.” When asked if he did not want to provide a sample, he insisted that he did provide a sample, that he “followed the instructions of the officer”. [ 30 ] The care with which the accused answered the questions, and the care he seems to have taken to avoid giving answers to the questions actually asked, leads me to doubt his testimony. [ 31 ] When asked how much he had to drink, the accused indicated that he had had four drinks.

That then changed to four or five, then “three, four, five, somewhere in there”. This certainly did not aid his credibility in my eyes. [ 32 ] At no time did the accused say, either to me in court or to the officers at the time, that he was doing his best to provide the sample, or give any other unequivocal statement that would allow me to conclude that there must have been something wrong with the machine. Rather, his answers and the manner in which he gave them leads me to think that he was attempting to subvert the test by following the officer’s instructions to the letter.

For example, if the officer did not say “do not plug the mouthpiece with your tongue”, a person in the position of the accused would be able to claim, as the accused has done, that he was complying with the officer’s instructions but still subvert the test by not providing any air into the instrument. I do not find that this is in fact what the accused was doing here; I simply offer this as an example of how someone in the position of the accused could honestly testify that they were following the instructions of the breath technician, and still not provide a valid sample.

Given the evidence that the mouthpiece and instrument appear to have been in proper working order, I conclude that the accused was actively taking steps to avoid giving a proper breath sample. [ 33 ] This in and of itself would be sufficient for a conviction on the refusal charge. There is an additional basis as well. [ 34 ] At the end of the procedure, when Constable Hall advised the accused that he would be charged with refusal but then gave him one additional opportunity to provide a sample, the accused outright refused.

According to the accused, this is because he had already been told that he would be charged with refusal. I have some difficulty with this suggested timing since there would be absolutely no purpose to the officer suggesting a further attempt at providing a sample if it had been definitively determined by that point that the accused was going to be charged with refusal. Rather, I find that the accused was being given one last opportunity to provide a proper sample, failing which he would be charged with refusal.

His outright refusal at that point, therefore, constitutes a separate act of refusal, which by itself would be sufficient to ground a conviction. [ 35 ] I therefore find the accused guilty of the charge of refusal to comply with a demand for a breath sample, count one of the Information.

[36] I wish to mention in passing our Court of Appeal’s decision in R. v. Armbruster[5], as it was referred to by counsel. The Court of Appeal makes specific reference[6] to the parties having agreed that it would require the opinion of a qualified technician to establishwhether or not the breath sample provided by Mr. Armbruster had been inadequate. As a result of that agreement between the parties,whether or not the officer involved was a qualified technician became significant. The same issue was raised in the Nova Scotia Provincial Court in R. v.

Zinck[7]. [37] That issue was not raised before me, nor were those cases cited in support of that proposition. In my view, the Court ofAppeal in Armbruster, as a result of the agreement between counsel, did not consider whether or not the agreement was correct, and thecase should not be taken as authority for that proposition.

Rather, the ratio of the decision concerns the manner in which the Crown may prove a person to be a qualified technician[8], which was not in issue in the present case. [38] There is a certain irony in the fact that had the accused not attempted to circumvent the test by only pretending to blow, eitherof the issues raised by his counsel on his behalf might have resulted in an acquittal on a charge of driving over .08.

That is, the failure ofthe Crown to prove that the machine used was an approved instrument, and that the technician was duly qualified, as well as the Crown’sfailure to explain the delay before the first sample was attempted, could very well have resulted in the accused being found not guiltyhad he cooperated with the police, provided proper samples and been found to have a blood-alcohol level over the legal limit. By tryingto be clever, by trying to deceive, the accused managed to deprive himself of two potentially-valid defences. E.

Was the accused’s ability to operate his motor vehicle impaired by alcohol? [39] With respect to the impaired charge, although I recognize that the Stellato[9] decision sets a low bar for the degree ofimpairment, nonetheless the indicia of impairment here are extremely sparse. According to the Crown’s argument, they constitute theaccused’s inability to recall how many drinks he had, and him exhibiting poor judgment by speeding at night.

In light of the accused’sevidence with respect to his gait, namely that he has some difficulty as a result of surgery, I find that it is not useful evidence tending toshow that he was impaired by alcohol. Otherwise, there was the accused’s slurred speech and droopy eyes. [40] The evidence does not satisfy me beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impairedby alcohol, and accordingly I find him not guilty of that charge. ___________________ Q.D.

Agnew, J [1]The Information alleges that the accused, on or about April 23, 2011, at Warman, Saskatchewan, did: (1) without reasonable excuse,fail or refuse to comply with a demand made to him by a peace officer pursuant to section 254(3)(

a) of the criminal code [sic], to providesamples of his breath for analysis, contrary to section 254(5) of the criminal code [sic]; (2) while his ability to operate a motor vehiclewas impaired by alcohol, operate a motor vehicle, contrary to section 253(1)(

a) of the criminal code [sic]. [2]See R. v. Weare,[2005] O.J. No. 2411 (C.A.); R. v. Anthonypillai, [2007] O.J. No. 1254, 2007 ONCJ 140, 46 M.V.R. (5th) 68, 73W.C.B. (2d) 321 (CJ). [3] (ON SC), 3 C.C.C.(2d) 135, [1971] 2 O.R. 505 (D.C.) at 508. [4]I mention the lack of these facts not because it is in any way incumbent on the accused to offer any explanation, but simply as asummary of the evidence. [5][2010] S.J. No. 107, 2010 SKCA 25, [2010] 4 W.W.R. 575, 346 Sask.R. 197, 92 M.V.R. (5th) 12, 2010 CarswellSask 107, 73 C.R.(6th) 343. [6]See paragraph 17.

[7][2003] N.S.J. No. 98, 2003 NSPC 6, 214 N.S.R. (2d) 328, 57 W.C.B. (2d) 63. [8]See paragraphs 42 to 50. [9] (1993), (ON CA), 78 C.C.C. (3d) 380, 18 C.R. (4th) 127 (Ont. C.A.)