r v. PAUL COON, 2023 QCCQ 2848

R. c. Coon 2023 QCCQ 2848 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF CHIBOUGAMAU "Criminal and Penal Division" No.: 170-01-000010-222 DATE: March 21, 2023 ______________________________________________________________________ PRESIDING: THE HONOURABLE JEAN-FRANÇOIS POIRIER, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v.

PAUL COON Respondent ______________________________________________________________________ VERDICT ______________________________________________________________________ [ 1 ] Adventure lay in each puff of wind [1] . [ 2 ] The accused was stopped by the Sûreté du Québec between Mistissini and Chibougamau after the Mistissini police received a call describing the accused's vehicle and alleging that he was driving while impaired. [ 3 ] After five failed attempts to provide a sample of breath, he was arrested for refusing to comply and for operating his vehicle while impaired. [ 4 ] The identity of the accused is admitted.

ISSUES ➢ Did the accuse refuse to produce a sample of breath? ➢ Did the accused operate his vehicle while impaired? ANALYSIS [ 5 ] The essential elements of the offence of refusing to comply are the existence of a validly made demand by a peace officer, the defendant's failure or refusal to produce the sample of breath required ( actus reus or culpable act), and proof that the defendant intended to produce that failure ( mens rea or culpable intent). [2] [ 6 ] The first element involves proving the existence of a valid demand meeting the requirements of

section 320.27 of the Criminal Code . The evidence must therefore establish the prescribed elements: - a peace officer; - with reasonable grounds to suspect that a person has alcohol in their body; - and that the person has, within the preceding three hours, this person operated a conveyance; - has made a demand; - to immediately provide samples of breath; - that, in the peace officer's opinion, will enable a proper analysis to be made;

- by means of an approved screening device. [ 7 ] Here, these criteria have been met. Officer Jean-Luc Haché testified candidly, clearly, and competently. [ 8 ] The demand was made by Officer Haché, who used the Sûreté du Québec card that clearly indicates that the sample must be given immediately and that it is required to perform a proper analysis. [ 9 ] Officer Haché had reasonable grounds to suspect that the accused had alcohol in his body when he was stopped.

He had received a call from the Mistissini police that the accused was driving while impaired. [ 10 ] The accused drove over 700 metres before stopping when the cruiser’s flashing lights came on. The accused handed over his health insurance card instead of his driver's licence.

Officer Haché noticed that he was moving slowly and that it took time to find the vehicle's proof of registration. [ 11 ] Officer Haché noticed that the accused had slurred speech and red eyes, and that he smelled of alcohol. [ 12 ] Given the above, the first element, that is, proof that a valid demand was made, has been made beyond a reasonable doubt. [ 13 ] The second element is the accused's failure or refusal to produce the required sample of breath ( actus reus or culpable act). [ 14 ] The analysis of the evidence as a whole involves weighing the relevant elements. R. c.

Tremblay [3] states the factors to consider: [ translation ] None of the following factors is indispensable or mandatory, but the various factors can be grouped into three sub-categories: First category of factors – related to the operator of the ASD: 1- The qualifications of the operator; 2- The experience of the operator; 3- The explanations given to the accused concerning the procedure; 4- The explanations given concerning the consequences of a refusal or failure; 5- The warning to the accused when a last chance was given to produce a sample; 6- The reasons of the ASD operator for stopping the attempts; 7- The operator’s opinion of the quality of the samples; 8- When the accused asked for another chance after the arrest, the answer and the reasons given, the time between the arrest and the request, and finally, whether it could easily be done.

Second category of factors – related to the screening device: 1- Identification of the approved screening device; 2- Verification that the ASD and its mouthpiece were functioning properly, and that they could react and receive an appropriate amount of blown air; 3- Proof that the ASD had been calibrated in the 15 days before it was used; 4- The noises made by the ASD during the attempts and their meaning; 5- The messages displayed on the ASD and their meaning; 6- Any other relevant element relating to the workings of the device.

Third category of elements – related to the accused: 1- The accused's understanding of the instructions; 2- The accused's conduct; 3- The accused's statements; 4- The accused's efforts; 5- The number of attempts and their duration; 6- Any other relevant factor. [ 15 ] I reiterate that no single factor is mandatory and that each case turns on its own facts. It consequently falls to the trial judge to give the appropriate weight to each factor.

[ 16 ] The Court will therefore analyze all these factors. [ 17 ] With respect to the qualifications and experience of the operator, Officer Haché has 11 years’ experience as a military police officer and has been a patrol officer in Chibougamau for 6 months. He uses an ASD or assists a colleague in this type of interception on a weekly basis.

The operator therefore has all the qualifications and experience required. [ 18 ] With respect to the explanations given on the procedure and the consequences of refusing or failing, Officer Haché read the Sûreté du Québec card, which is unambiguous, before starting the first test. The explanations of the procedure and consequences were repeated before each test. Each time, the accused said that he understood. The explanations were therefore more than sufficient. [ 19 ] After the third failed test, Officer Haché strongly emphasized the consequences of refusing to blow continuously.

After the fourth failed test, he clearly told the accused that the next test would be the last and that if it failed, the accused would be arrested for refusal. The accused understood. [ 20 ] As for the reasons for stopping to the attempts and the operator's opinion of the quality of the samples, Officer Haché explained that the accused's breath was very weak and interrupted when he blew into the device. [ 21 ] Officer Haché described the ASD as compliant and functional.

The Court is aware that there is no legal presumption that an ASD is functioning properly. [4] However, there is nothing in the evidence or testimony that calls the functioning and compliance of the ASD into question. [ 22 ] Finally, for the third category of factors, those concerning the accused, the Court concludes that the accused understood the procedure and consequences of refusing to blow before each of the five tests. [ 23 ] Considering the above, the second element, that is, the accused's failure or refusal to produce the sample of breath required, which is the actus reus or culpable act, has been proved beyond a reasonable doubt. [ 24 ] The third element that must be proved beyond a reasonable doubt is the defendant’s intention to produce this result, that is, the mens rea or culpable intent. [ 25 ] Nolet , rendered by our Court of Appeal, specifies that the intent characterizing the offence under section 254(5) of the Criminal Code , which applied at the time, is simply the wish to refuse to take the test.

Failure must therefore be voluntary, intentional, and deliberate. [5] [ 26 ] According to Tremblay , attempts that are merely unsuccessful are not sufficient. [6] [ 27 ] The Court believes the accused, whose version raises at least a reasonable doubt. He appeared to be reliable, credible, precise, and calm. He did not try to embellish the situation. He testified that he has a health issue that prevents him from blowing properly. He had a throat operation and has hypothyroidism. [ 28 ] His medical file D-1, from the McGill University Health Centre confirms his claim and indicates that his breathing is abnormal.

The accused testified that his condition makes him move slowly and that he cannot exhale continuously.

He told this to the officer, who did not believe him. [ 29 ] He intended to blow properly, but the state of his health prevented him from doing so. [ 30 ] The prosecution has not met its burden of proving that the accused voluntarily, intentionally, and deliberately failed to take the test. [ 31 ] In any event, his health troubles, which are documented, would have been a reasonable excuse because they constitute serious health reasons. [7] [ 32 ] Concerning the charge of impaired driving, the versions of both the accused and Officer Haché raise a reasonable doubt in the Court's mind, for the following reasons. [ 33 ] The accused drank six beers the previous evening.

He got up around 11 a.m., felt hungover, made breakfast, showered, put gas in his truck, and left for Chibougamau. [ 34 ] It is true that Officer Haché noted a strong smell of alcohol in the room where the accused was put in the station. However, he did not note any erratic behaviour. He stopped him at about 2 p.m. because his vehicle corresponded to the description given by the Mistissini police. [ 35 ] He admits that he does not know the accused, so his slurred speech and his slow movements and walk could be personal characteristics.

In fact, the gum the accused was chewing could have contributed to his excess saliva. [ 36 ] The fact that the accused drank alcohol the previous evening could also have contributed to the smell and red eyes.

The accused did not lose his balance when exiting the vehicle. [ 37 ] Even though the indicators of impairment need not be a marked departure from what is usual, [8] and even though the symptoms should be considered as a whole and the accused's explanations for each of them not be unconditionally accepted, [9] the testimony of the accused and the officer created a reasonable doubt in the Court's mind that must benefit the accused. The presumption of innocence requires nothing less. FOR THESE REASONS, THE COURT:

[ 38 ] ACQUITS the accused on both counts. ____________________________ JEAN-FRANÇOIS POIRIER, J.C.Q. Mtre Marie-Philippe Charron For the prosecution Mtre Fanny Wylde For the defence Date of hearing: December 1, 2022