R. v. Poirier, 2014 NSPC 28

PROVINCIAL COURT OF NOVA SCOTIA Cite as: R. v. Poirier, 2014 NSPC 28 Date: May 29, 2014 Docket: 2602415 Registry : Halifax HER MAJESTY THE QUEEN Versus JOSEPH JEAN MARIE POIRIER DECISION _____________________________________________________________________________________ Revised Decision: A citation has been corrected. This decision replaces the previously released decision. JUDGE: The Honourable Judge Marc. C.

Chisholm HEARD: May 29, 2014 CHARGE: On or about the 11 th day of May, 2013 at or near CFB Halifax, Halifax, Nova Scotia, did without reasonable excuse, fail to comply with a demand made to him by a Peace Officer to provide forthwith a sample of his breath in the opinion of the peace officer, was necessary to enable a proper analysis of his breath to be made by means of an approved screening device contrary to CC Section 254(2)(

b) COUNSEL: Brian Cox appearing for Stephen Scott , for the Crown Joseph Poirier, self-represented, for the Defence DECISION BEGINS (TIME: 09:46:53 a.m.) THE COURT : This is the matter of Her Majesty the Queen and Joseph John Marie Poirier. Court heard evidence two days ago and adjourned to consider the matter. Mr.

Joseph Poirier is charged that he on or about the 11 th day of May 2013 at or near CFB Halifax Nova Scotia, did without reasonable excuse fail to comply with a demand to him by a peace officer to provide forthwith the sample of his breath in the opinion of the peace officer was necessary to enable the proper analysis of his breath to be made by means of an Approved Screening Device, contrary to Section 254(2) (

b) of the Criminal Code . The evidence established that the accused was driving a motor vehicle on CFB Stadicona base around 2:40 in the morning of May 11, 2013. The accused drove off the base onto Gottingen Street and then Young Street, Halifax, Nova Scotia where he was the subject of a traffic stop. He was stopped by two military police officers who had observed his driving on the base. They both testified to observing the accused not signal for a turn on 2 or 3 occasions while on and leaving the base that early morning. At the traffic stop, the senior military police officer, M. Cpl.

Parkin, approached the driver’s window. He made a request for the accused’s driver’s license, registration and insurance. He stated the accused gave him his military ID not his driver’s license and had trouble with dexterity replacing his military ID in his wallet and removing his driver’s license. He stated he smelled alcohol from the vehicle and asked the accused to step out. The accused complied. With the accused out of the vehicle the officer still noted a smell of alcohol from the accused. M. Cpl. Parkin was acting in a training capacity that evening and asked Cpl. Sorenson to take over.

He testified that Cpl. Sorenson appeared to determine that there were grounds for an Approved Screening Demand. Cpl. Sorenson gave an Approved Screening Device Demand and the accused agreed to take the test. Before Cpl. Sorenson started the test, Cpl. Parkin noted the accused had gum in his mouth. He asked the accused to remove

the gum and directed Cpl. Sorenson to wait 5 minutes before proceeding. Then the testing began. Cpl. Sorenson explained how to provide a sample. M. Cpl. Parkin and Cpl. Sorenson described 4attempts to obtain a proper sample of the accused’s breath. M. Cpl. Parkin stated that on each attempt, there was barely any sound fromthe instrument and it was inconsistent, not continuous. He said each sample was insufficient. He specified that after the 2nd attempt, the accused was told that a failure to provide a proper sample could result in a refusalcharge. After the 3rd attempt, M. Cpl.

Parkin demonstrated how to provide a proper sample. On the 4th attempt the accused did not provide a proper sample according to the officer who stated that his breathing startedstrong but was not continuous. Cpl. Sorenson arrested the accused and charged with him with refusal. On cross examination, M. Cpl. Parkin acknowledged that the accused, after the fourth sample, asked to try again but his requestwas denied and he was arrested and charged. As to who made the decision to deny that fifth attempt, the evidence was unclear. Neitherofficer specified. M. Cpl.

Parkin did indicate that he had never provided anyone more than three attempts in the past, which suggestedthat perhaps it was his decision to stop the testing. M. Cpl. Parkin testified that he was trained to use an Approved Screening Device. An Approved Screening Device is defined inSection 254 of the Criminal Code. He testified that he was qualified and had a certificate of qualification. Cpl. Sorenson’s evidence was very consistent to that of M. Cpl. Parkin. He testified that once the accused was outside of hisvehicle, he detected a smell of alcohol coming from the accused’s facial area.

He stated that he gave the accused a s. 254(2) demandbecause “he realized the accused was drinking”. He testified that the accused made four attempts to provide a sample. Cpl. Sorenson did not refer to the machine which he usedas an Approved Screening Device, nor did he specify the name or model number. On each of the attempts he said the accused’s blowwasn’t steady nor long enough and that a proper sample was not received. He did not describe how he operated the device. He did notstate whether the device appeared to be operating properly. Cpl.

Sorenson gave no evidence of having completed any training on the operation of an Approved Screening Device, norhaving completed any courses, nor having any prior experience using such a device. The Crown position, when queried by the Court, was that Cpl. Sorenson was operating an Approved Screening Device underthe direction and supervision of M. Cpl. Parkin who was qualified. It was on that point that the Court adjourned to consider the matter.

Section 254(2) states: 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 thepreceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or hadthe care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may,by demand, require the person to comply with paragraph (b), in the case of alcohol: • (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made bymeans of an approved screening device and, if necessary, to accompany the peace officer for that purpose. In R. v. Shea (1979), (PE SCTD), 49 CCC (2d) 497 (PEISC) held that the demand officer must also be theofficer to formulate an opinion as to the adequacy of the sample(

s) provided by the motorist. That is consistent with the wording of theprovision. Other than in relation to common place matters such as speed of a car, etc., an opinion may only be provided by a person with specialknowledge, expertise or experience. In that regard, the court refers to the decision of the Supreme Court of Canada in R v. Mohan, (SCC), [1994] 2 SCR 9; and R. v. D.D. 2000 SCC 43 , [2000] 2 SCR 275. I do not interpret s. 254(2) as intending to change the law regarding expert opinion evidence. On the facts before this Court, Cpl.

Sorenson had no special knowledge, expertise, or experience in the operation of anApproved Screening Device. For that reason, I find his opinion evidence regarding the adequacy of samples provided by Mr. Poirier,inadmissible. M. Cpl. Parkin’s opinion, in the Court’s view, may bolster but cannot replace the lack of an opinion from the demandofficer. Although not specifically argued by the Crown, the court has considered whether M. Cpl. Parkin may delegate his authorityunder this provision. M. Cpl.

Parkin possessed special expertise and training in the use of an Approved Screening Device, but he did notmake the demand, nor did he personally perform the tests. But, may he do so by directing his delegate Cpl. Sorenson to do so? In myview, the answer to that question is clearly no. I am not persuaded that the law provides for such delegation of the duty of the demand officer. This is a criminal lawprovision. There is nothing in the wording of the provision, s. 254, to indicate a delegation of duties is permissible.

By contrast, Section258(d)(iii) provides for a delegation, for samples to be taken by a qualified technician under the direction of a qualified medicalpractitioner. Clearly therefore, if the legislature wished to authorize a delegation, they would have done so in Section 254(2). Furthermore, even if the law permitted a delegation, on the evidence, M. Cpl. Parkin made it clear that Cpl. Sorenson formed his owngrounds, gave the demand on his own, and made his own assessment.

So on the facts of the case, the delegation of authority was notproven, though as I’ve indicated, in my view, it is not permissible to do so to start with.

In my view, the procedure followed by the military police officers in this case was ill considered. Only a peace officer with special training/expertise may give a s. 254 demand. Only an officer with proper expertise may assess the adequacy of a motorist’s sample of breath. That is so, in my view, because these actions by a peace officer impact the liberty of the citizen and ought not be done by anyone who does not have special training and qualifications to make a proper assessment and offer a proper opinion to the Court.

In addition to the failure on this point, the Crown evidence failed to establish beyond a reasonable doubt that the instrument used for the testing was an Approved Screening Device. Further, the evidence did not prove beyond a reasonable doubt that, if an Approved Screening Device was used, that it was operating properly, nor that Cpl. Sorenson was operating it properly as, M. Cpl. Parkin did not offer any comment on the manner in which Cpl. Sorenson operated the device. The Crown evidence failed to establish these elements of the offence beyond a reasonable doubt as is required by law.

I therefore need not comment on the credibility of the accused’s evidence that he was trying to provide a proper sample on each attempt as it is unnecessary to do so. The accused is found not guilty for those reasons and he is free to go.