R. v. Kowalyk, 2013 MBPC 33

Citation: R. v. Kowalyk Citation No: 2013 MBPC 33 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Keri K. Anderson, ) ) for the Crown - and – ) ) Rudy Kowalyk ) B. Scott Newman, ) for the Accused ) ) Judgment delivered: ) June 24, 2013 MOAR, KELLY, P.J. Introduction [ 1 ] Rudy Kowalyk stands charged that on April 10, 2011 he did fail or refuse to comply with a demand to provide a breath sample into an approved screening device, contrary to section 254(4) of the Criminal Code of Canada . [ 2 ] The Crown elected

summary conviction proceedings and the matter proceeded to trial in the Teulon Provincial Court. At the outset, counsel for the accused conceded the issues of identity and jurisdiction. Constable Andrew Imrie [ 3 ] The Crown called Constable Andrew Imrie as its sole witness in this matter. The officer testified that he had been a member of the Royal Canadian Mounted Police for about three years, of which the first two years were spent deployed at the Stonewall detachment. [ 4 ] On April 10, 2011, the officer was off-duty and attending a two-week collision analyst training course in Gimli, Manitoba.

At approximately 21:50 hours, he was operating a “slick top” car, which is a police vehicle that does not have a roof top emergency light bar. He was in the company of a second off-duty officer and they were proceeding southbound on highway #7 going towards Teulon. The officers were on their way to Constable Imrie’s residence in order to retrieve something that he had neglected to bring with him when he had gone up to Gimli. [ 5 ] As he was proceeding southbound, he came upon a dark colored Ford F150 pick-up truck that was driving in the same direction.

From a distance of about two car lengths behind, he observed the truck to go towards the yellow dividing line and then swerve back towards the shoulder area of the lane before straightening out. The officer continued behind this vehicle and minutes later again observed the F150 truck to again swerve in the same manner at which point in time he made a decision to initiate a traffic stop. The emergency lights were activated and the truck came to a stop on PR 229 just off of highway #7. [ 6 ] Constable Imrie radioed in the stop and then approached the driver of the Ford F150.

At this time, Constable Imrie was wearing civilian attire but did have his gun and badge in his possession. He produced the badge for the driver and asked him for his driver license and registration. The driver immediately produced his driver license but not the vehicle registration.

The officer observed the accused to be searching his wallet for the registration and despite the suggestion that it may be located in the glove box, the accused asserted that he believed it to be in his wallet and continued on with his search. [ 7 ] A conversation with the accused revealed that he was on his way back to Lockport from Poplar Field.

He had gone up to Poplar Field to check on a home that he owned and afterwards had dinner at a relative’s house, during which time he consumed two beers. [ 8 ] Based on that admission by the accused at 22:00 hours, Constable Imrie made an approved screening device demand of the accused. That demand was accepted by the accused and he agreed to accompany the officer back to the cruiser car for that purpose. The accused was noted to have difficulty walking back to the cruiser car and that continued as he was being placed into the back seat. He

later told the officer that he had a bad knee. [ 9 ] At 22:15 hours the accused was advised of the reason for his detention and at that time Constable Imrie contacted the Teulon RCMP to request that an approved screening device (“ASD”) be brought to the roadside.

Constable Imrie outlined for the court that the Stonewall detachment, where he was then stationed, only had two such devices for their members to use and given that he was on a two- week long course, he did not take one of those devices with him. [ 10 ] At 22:24 hours, Constable Pank of the Teulon detachment arrived on scene with a screening device and at 22:27 hours, Constable Imrie read the official screening device demand to Mr. Kowalyk. [ 11 ] With respect to the device itself, Constable Imrie confirmed that it was an approved screening device.

He noted upon turning it on that the internal test was done and he was satisfied that the device was properly working. [ 12 ] At this point Constable Imrie gave Mr. Kowalyk instructions on how the machine worked and what type of sample would be required from him. More specifically, the accused was told that he would have to blow into the mouth piece and that would be like trying to blow bubbles into a glass of milk thorough a straw.

He was told to provide a nice long and continuous breath until told to stop and while doing so was not to handle the machine himself. [ 13 ] With respect to any health related concerns noted, Constable Imrie testified that the accused appeared fine and the only concern he noted was the difficulty with the knee.

Constable Imrie testified that he did not note any shortness of breath issues nor was he advised of any other potential issues by the accused. [ 14 ] At 22:27 hours the official ASD demand was read to the accused at which time the officer opened up the package containing a new mouth piece and placed it onto the ASD device. The accused then placed his lips onto the mouth piece and according to the officer’s observations tried to make it look like he was blowing.

The breath sample provided was described as a weak blow that was insufficient to make the device work and was therefore not a proper sample of breath. [ 15 ] Constable Imrie told the accused that he was not blowing properly and again explained to him what was required. He also verbally cautioned Mr. Kowalyk about a refusal and the need to blow hard and continuous. [ 16 ] A new mouth piece was again introduced and attached to the device. The accused was again asked to provide a suitable sample and began to blow but according to Constable Imrie, the accused did not blow properly.

He described the sample as being a weak blow in which there was not enough air to obtain a reading. The machine itself is designed to quickly indicate if a proper sample is received or not. [ 17 ] As in the previous case, the accused was again warned about the providing of an improper sample and Constable Imrie now read the official warning from a pre-printed card. [ 18 ] Constable Imrie opened a third package, obtained a third new mouthpiece and placed it on the end of the ASD device. This time the accused blew once real hard but for a very short period of time, perhaps a second or two before stopping.

At this point in time the accused told Constable Imrie that he had a heart condition and could not blow. [ 19 ] The mouthpieces, each individually wrapped, were examined and there were no obstructions noted by the officer. [ 20 ] At 22:30 hours the accused was verbally advised that he was under arrest for refusing to provide a breath sample.

He was transported to the Teulon detachment, processed and was later released by way of a promise to appear. [ 21 ] The officer testified that other than the knee related issues, he did not note any shortness of breath from the accused nor was there ever a complaint of chest pains made by the accused. [ 22 ] In cross-examination, the officer confirmed that the two swerves made by the F150 pick-up on the highway were the sole basis for the traffic stop.

When the suspect vehicle was signalled to come to a stop, the accused brought his vehicle to an immediate stop and thereafter produced his driver license. [ 23 ] The officer indicated that he did not observe bloodshot or watery eyes, did not note a loss of fine motor skills nor did he note any fumbling of documents by the accused. When asked about additional observations concerning the eyes of the accused and the ability to focus, the officer testified that he was not trained in those methods of detection.

In that respect, the officer confirmed that he did not note a flush face or any other signs of impairment that he was trained to look for as a part of his investigation. [ 24 ] With that, the officer agreed that at the time of the stop he lacked any reasonable and probable grounds to arrest the accused for the offence of impaired driving. In fact, it was agreed by the officer that absent the admission of alcohol consumption by Mr.

Kowalyk, he did not note any other grounds sufficient to make an approved screening device demand. [ 25 ] When asked to get out of his vehicle, the accused did not appear to have any difficulty doing so but definitely did have difficulties walking to the cruiser car and ultimately getting into the back seat of that car. [ 26 ] Throughout their interaction together, the officer indicated that he did not have any concerns about the health of the accused nor did he ask the accused if he had any other difficulties beside that of his knee.

In this regard, he agreed that an individual could have health issues and just not tell anyone. [ 27 ] As for the tests, the officer confirmed that he told the accused that the blowing required was like blowing bubbles in milk through a straw. Counsel suggested to the officer that blowing into a machine would be more difficult, an assertion that was not accepted. In that regard the officer testified that he has previously blown into the machine and it was not very difficult.

It was then suggested to the officer that it would certainly be harder than blowing into a liquid to which he responded “I guess it could be.”

[ 28 ] With respect to the first attempt to provide a sample, the officer agreed that it was not that the accused did not blow into the machine, as air did enter it, but rather that it was not a proper sample. The officer was asked how he would know if an improper sample is received? The officer indicated that through his training he is aware that if air is entering the machine there will be a beeping noise noted. The absence of this beeping sound indicates that there is insufficient air entering the machine.

In that case the machine will stop accepting samples, produce a solid beep and then an error code will appear on the screen. [ 29 ] Although the officer could not recall if he received a solid beep from the first sample, he did indicate that it was an improper sample. [ 30 ] In terms of the second sample, the accused was again told to blow hard and continuous. The officer confirmed that air did enter the machine and that attempt was longer than the first attempt.

For this sample, the officer did tell the accused to stop at some point as the sample being provided was still an insufficient sample. [ 31 ] The officer again confirmed that another discussion occurred with the accused and on this occasion he was issued with a refusal warning and told to blow harder. The accused appeared to fill his lungs on this occasion and did blow harder, for about one second.

It was at this point in time that the accused told the officer that he had a heart condition and could not blow. [ 32 ] The officer agreed that the accused never either stated that he was refusing to blow or that he was not going to give a breath sample. However, that was the impression of the officer when the accused said he could not blow. It was after this third attempt that the accused was advised he had his last chance. He was then arrested and during this period of time remained cooperative. Rudy Kowalyk [ 33 ] Mr. Kowalyk chose to testify in his own defence and was sworn in.

At the time of the incident he was sixty-eight years of age and had been retired since 2005 from his occupation as a mechanic and shop foreman. [ 34 ] At the outset of his testimony the accused outlined a series of health related issues that he has had or continues to deal with that includes high blood pressure; arthritis in his knee and elbows; a left knee replacement in 2005; a right knee that was operated on in June 2012; surgery for bunions in 2003 that still requires him to take a daily pain killer. [ 35 ] A further issue identified by the accused was the need to be careful not to over-exert himself as it could lead him to get winded and cause shortness of breath. [ 36 ] On the date in question the accused testified that he had gone to the Poplar Field area in order to check on a house that he still owned in that area.

He had been up there earlier in the year and found that the locks to the house had been broken off. His intention on this trip was to replace those broken locks, however, when he tried to do so he found that he had bought the wrong locks. [ 37 ] Later that day he went over to his nephew’s home where he had a couple of drinks and stayed for supper. Somewhere between 2130 to 2145 hours he left his nephews home and began to drive back home.

Other than the two drinks of rye he had with his supper, the accused denied consuming any other alcohol. [ 38 ] He recalls seeing the police following him for about two to three miles before he was pulled over. When the officer approached his car, the accused did ask why he was pulled over and was told that he might have weaved once or twice. He was asked for a breath sample by the officer and did go to the police cruiser for that purpose.

Once in the car the officer did explain to him what was going to be required. [ 39 ] At the time he was providing the breath samples, the accused indicated that he did not feel that he was drunk and did try to blow as he was asked to do. After his first sample he felt a pain that began in his back and went to the front of his chest. He did not tell the officer of this pain as he did not feel like saying anything. [ 40 ] He tried a second time and in his mind felt that he could not provide a breath sample.

However, it was not a situation where he was not trying to provide a sample. [ 41 ] The accused indicated that he did have a 1992 conviction for impaired driving that occurred near Poplar Field. At that time there was a roadside stop that occurred and he was able to provide a breath sample when he was asked to do so by police. [ 42 ] Shortly after his arrest on this matter, the accused fell ill with a cold and the symptoms for this were noticeable a few days later.

Although his memory is not the clearest, given this matter occurred over a year prior, he did not ever tell police he was not going to provide a sample. [ 43 ] In cross-examination, the accused acknowledged being asked to provide a breath sample and agreed to do so. He was shown the device and told how to blow into it by the officer.

He agreed that the instructions given were that he was to provide a long continuous breath and continue doing so until told to stop by the officer. [ 44 ] At the time of the test, the accused agreed that the officer held the device and during that first test the officer never told him to stop blowing at any point in time. When asked why he stopped he indicated that he could not blow any longer. [ 45 ] As for the issue of chest pains, the accused advised that he had them for part of the day and felt those pains coming on at the time of the stop.

He acknowledged that he did not say anything to the officer about those pains and did not think it would have any effect on his providing a breath sample. When the pain did come he knew it was affecting him but did not want to say anything, even after

being warned. [ 46 ] The accused felt those chest pains after his first sample and went on to say that he gets tensed up anytime he is stopped by police. On the first sample he blew normally and tried to blow hard but it did not seem like anything was coming out. At this time he gave a light blow but that blow was harder than when he breathes out normally and hard enough to feel something in his chest. The blow itself was for a couple of seconds and it was the pain that stopped him from continuing on.

He did not say anything to the officer about this pain he was feeling. [ 47 ] In terms of the second attempt, he felt the pain coming on when he was asked for this sample. He knew from previous experience that if he over-exerted himself, he would get a pain. He therefore stopped blowing during this second attempt to avoid the pain. He indicated that he could feel the pain coming on but did not feel the extent of it as he did not blow that hard. [ 48 ] On the third sample he began to get frustrated as the chest pain showed up.

It was after this third attempt that he got a pain but he made efforts to avoid showing that he was in pain. The chest pains he experiences occur when he gets excited, blows hard or does something that exerts a lot of pressure. [ 49 ] The accused acknowledged that he was supposed to blow but did not as he wanted to avoid the chest pain from occurring.

When it was suggested that he was worried that police might find out he had been drinking the accused replied “no”. [ 50 ] In the course of re-examination the accused expanded on his chest pains to indicate that they are caused by things with pressure such as when he gets excited. On the third sample, the accused advised that when he gave one quick hard breath he was frustrated with not being able to complete the request.

Defence Position [ 51 ] Counsel for the accused suggested that a credibility finding will have to be made in order to determine the outcome of this case. [ 52 ] In terms of the refusal itself, there is no express evidence of a refusal before the court and as such counsel suggests that the Crown must prove that not only did the accused refuse to provide a breath sample but that he did so for the express purpose to avoid providing the breath sample. Essentially, was the refusal for the purpose of thwarting the test? [ 53 ] The testimony of the accused was clear and straightforward and counsel suggests that Mr.

Kowalyk was unshaken during the course of cross-examination. [ 54 ] At the time of the traffic stop the accused looked to be sober and displayed virtually no signs of impairment. The sole basis for the officer requesting a breath sample was the admission by the accused that he had consumed some alcohol earlier that evening. [ 55 ] The officer testified that three attempts were made by the accused to provide a suitable breath sample and on each occasion air did enter the machine. In each case, counsel for the accused suggests that his client knew what was being asked of him and did blow, as is noted.

This was something that the accused successfully did some twenty years prior when he was convicted of an offence similar to that now before the court. The only difference now is that the accused is frail and suffers from a number of health related issues. [ 56 ] Counsel suggests that the accused had no reason to refuse to provide the requested breath samples and his evidence on the point can be accepted by this court.

Crown Position [ 57 ] The Crown does not dispute that the accused presents with some health related issues, but outlines that the court only has the testimony of the accused with no medical evidence to assist the court in determining how these health-related issues affected his ability to provide a suitable breath sample. [ 58 ] In the case at bar, counsel suggests that the officer gave instructions to the accused as to what was going to be required of him. [ 59 ] During the course of the first test, the accused stopped blowing prior to being told to stop by the officer.

The accused testified that he stopped blowing in order to avoid potential chest pains. [ 60 ] Crown counsel reminds the court that the accused indicated he was not yet experiencing chest pains during the initial attempt to provide a breath sample nor that he did not tell the officer of any potential health related concerns. [ 61 ] Essentially the same scenario arose during the second attempt to provide a breath sample where again the accused stopped blowing in order to avoid chest pains.

On the third attempt the accused became frustrated and only provide a big short huff that was not sufficient for testing. [ 62 ] Crown counsel suggests that the actions of the accused were deliberate and he chose not to provide a breath sample as he was demanded to do so by the arresting officer. As a result they seek that a conviction be entered on the matter now before the court. Court Raised Issue [ 63 ] At the conclusion of the Crown submission, the court raised a separate issue and asked whether there is anything to the fact that

the officer did not testify to being a qualified operator of the approved screening device. [64] Crown counsel agreed that the officer did not expressly testify to being a qualified operator. He did during the course of histestimony indicate his usual practices when using the screening device and that should be sufficient for the court to be able to rely on histestimony. [65] Crown counsel suggested that the

section of the code does not speak of any requirement of a “qualified technician” required asthat term is used in s. 254(3) of the Criminal Code of Canada. The issue as to whether the officer is a qualified technician is not amaterial element of the offence for the Crown to prove and if anything, the issue of the officer’s ability to use the screening device is amatter of weight for this court. [66] That position was echoed in a brief written submission that was forwarded to the court. Essentially counsel takes the positionthat the Crown need not prove what device was used, only that it was an approved device.

Furthermore, there is no requirement of proofthat the device was calibrated, only that the officer believed it was calibrated. [67] Defence counsel was not in a position to make a submission on this point and agreed to forward written argument at a later date. [68] In a well written reply, defence counsel reviewed the applicable law on this point and found the courts are essentially dividedon this issue.

There are those courts that suggest the qualifications of the officer are a “condition precedent” and there have been courtsthat have held that the qualifications are a factor that goes to the weight of the opinion being offered. [69] Counsel takes the position that regardless of what view this court adopts, both inevitably lead to the conclusion that an acquittalshould be directed. The basis of such was the lack of evidence from the investigating officer as to his qualifications or experience inoperating an approved screening device.

Although there was a passing comment on the issue of training, the extent of that was neverfully explored in direct-examination by Crown counsel. The officer concluded that to the best of his knowledge a proper sample was notreceived, which is a difficult opinion to examine as the extent of the officers qualifications for the use of the instrument is not before thecourt. Standard of Proof [70] It must be remembered that this is a criminal case and as such Mr. Kowalyk is presumed in Canadian law to be innocent untilproven guilty.

It is the Crown that has the onus of proof and must prove each and every element of the offence beyond a reasonabledoubt. [71] Reasonable doubt is not absolute certainty (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). It has been describedas being “much closer to absolute certainty than to a balance of probabilities” (R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144). [72] In a case where an accused testifies, as occurred in this matter, a court must initially assess that evidence and in doing so isguided by the three-stage test set out by the Supreme Court of Canada in the case of R. v.

W.(D.), (SCC), [1991] 1S.C.R. 742 @ para. 28: 1. First, if you believe the evidence of the accused, obviously you must acquit. 2. Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit. 3.

Third, even if you are not left in doubt by the evidence of the accused you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused [73] If the evidence of the accused is not believed nor does it leave the court with a reasonable doubt, that does not automaticallylead to the conclusion that guilt is proven. The court, in the third step of the analysis, must then look to the evidence it accepts todetermine if guilt has been proven to requisite standard.

The Law [74] The case at bar revolves around a demand that was made pursuant to s. 254(2) of the Criminal Code of Canada, which reads asfollows: “Section 254(2) Testing for presence of alcohol or a drug – If a peace officer has reasonable grounds to suspect that a person hasalcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated orassisted in the operation of an aircraft or railway equipment or had care or control of a motor vehicle, a vessel, an aircraft or railwayequipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in thecase of a drug, or with either or both of paragraphs (

a) and (b), in the case of alcohol: (

a) To perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether ademand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(

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. “ [75] Section 254(5) of the Criminal Code of Canada is the charging

section and reads as follows: “Failure or refusal to comply with demand – Everyone commits an offence who, without reasonable excuse, fails or refuses to complywith a demand made under this section.” [76] The legal elements of the offence were delineated in the Saskatchewan Court of Appeal case of R. v. Lewko, 2002 SKCA 121, [2003] 2 W.W.R. 197, and are as follows: “(

a) A proper demand; (

b) A failure or refusal by the accused to produce the required sample; (

c) The intention of the accused to produce a failure or refusal; and, (

d) Once raised by the evidence, the absence of a reasonable excuse.” [77] The first requirement is that of a proper demand. This aspect is fairly straightforward and requires the officer to reasonablysuspect that the accused person has alcohol or a drug in their body and has operated a motor vehicle within the preceding three hours.The existence of these two facts will permit a proper and valid demand to be made. [78] The second and third elements of the offence are what have been referenced as the actus reus and mens rea components of thecharge before the court. [79] In the case of R. v.

Dolphin, 2004 MBQB 252 , [2004] M.J. No. 433 (Q.B.), the late Mr. Justice Scurfield explainedthe two modes of the actus reus at paragraph 10: “Refusal to provide an adequate sample is proven where the accused declines to blow into the device.

Failure to provide an adequatesample may be proven from the inference to be drawn from proof that the accused appeared to blow into a device that was in goodworking order and failed to register an adequate sample.” [80] At paragraph 11 the court described the source of the evidence in this step of the analysis as follows: “Refusal’ cases are normally proven by direct evidence from the attending police officers. ‘Failure’ cases are often based on acombination of inferences and direct observations of the attending officers.” [81] It is a generally accepted principal that a court may rely upon the opinion of the police officer as it relates to the quality of thesample provided if there is a foundation established for that opinion.

In those scenarios it essentially becomes a weight issue for the courtto consider. [82] This was highlighted by the court in the Dolphin, supra, case at paragraph 12: “In failure cases, the inference from the failure to register an adequate sample by a device is difficult to overcome if the Crown provesthat the device was in good working order. In contrast, direct evidence from the police officers that an accused appeared not to beblowing properly is inherently less reliable.” [83] Mr. Justice Hill in the case of R. v.

Bijelic (2008), (ON SC), 77 W.C.B. (2d) 118 at paragraph 30 spoke ofthe actus reus of the offence as follows: “A ‘feigned attempt is the equivalent of a refusal’...Whether the motorists conduct can be said to amount to behavior of faking orfeigning an attempt to comply with the police demand, the actus reus of refusal, depends on the totality of the circumstances…Evidenceof refusal may arise from the conduct of the detained motorist, his or her statements to the officer in the course of the ASD testingprocess, or from a combination of conduct and statements.

Refusal to comply may be quite express or may logically be inferred from thetotality of the detained driver’s behaviour.” [84] The third prong of the test essentially deals with what may be considered to be the mens rea component of the offence. As wasnoted by Mr. Justice Scurfield, where there is an outright or overt refusal to provide the breath sample pursuant to a valid demand, themens rea may be presumed.

[85] In cases involving the failure to provide an adequate sample, the landscape becomes much more complicated. One begins withthe concept that a person intends the ordinary consequences of their actions. Here the court must look to the entirety of the evidence putforth in determining whether to draw the inference that the accused wilfully or deliberately intended not to provide the requested sample.[Note the recent conflicting viewpoint of Mr. Justice Code in the Ontario Superior Court of Justice case of R. v. Porter, 2012 ONSC3504 , [2012] O.J.

No. 2841 where the court declines to follow the Dolphin analogy and concludes that “the mens rea enacted ins. 254(5) is knowledge or awareness of the prohibited act.”] [86] Even if is found that an accused refused or failed to provide a breath sample pursuant to a valid demand, the court still mustconsider whether there is a reasonable excuse for the failure to provide the breath sample. The origin of the evidence supporting theinference of a reasonable excuse may come from the Crown’s own witnesses or from defence led evidence, and is inconsequential interms of this courts consideration.

Whatever the evidence may be, there must be an “air of reality” before it may be considered by thecourt. Analysis [87] The evidence before the court, as it relates to the traffic stop and subsequent demand that the accused provide a breath sampleinto an approved screening device was not argued upon by counsel. [88] Briefly speaking, the accused was observed by the officer to be operating a Ford pick-up truck southbound on highway #7 andon two occasions the officer noted the vehicle to swerve and then quickly correct itself.

Although the officer was off-duty, he initiated atraffic stop and spoke with the accused who was the driver.

During their brief conversation, the accused admitted to having consumedalcohol and with that admission the officer concluded he had a sufficient basis to make an approved screening device demand. [89] Based on this uncontested evidence, I have no difficulty in finding that the officer had the requisite grounds to make an ASDdemand pursuant to s. 254(2) of the Criminal Code of Canada. [90] As for the testing process itself, the evidence of the officer and the accused are not really at odds with one another.

At no timeduring the course of their interaction did the accused overtly state that he was refusing to provide a breath sample.

The officer was candidthat after the third attempt by the accused to provide a sample, he took the words of the accused that he had a heart condition and couldnot blow as meaning that he would not blow. [91] As a result, I find that there was no overt refusal by the accused to provide a sample. [92] With that, we must then look to whether the accused failed to provide a proper sample and if so, whether he intended to do so. [93] With respect to the device itself, the officer was not asked nor offered whether he was a qualified or certified operator of theapproved screening device.

However, with that he did proceed to outline his use and experience with the instrument. [94] With the actual device itself, the officer turned it on and noted that an internal test was completed, based on which he concludedthe device was in proper working order. [95] Constable Imrie then provided the accused with instructions as to what was going to be required of him in terms of supplying abreath sample. The officer tried to explain to the accused what the test would be like when he used the straw analogy and blowingbubbles in milk.

Of note is that he advised the accused that he would need to provide a long continuous breath sample and was tocontinue to blow until told to stop. The evidence of the officer on this point was not challenged in cross-examination nor was itchallenged by the evidence of the accused during his testimony. [96] For each of the test attempts, the officer testified that he opened a new package containing a new mouthpiece and placed it ontothe device for the accused. For each attempt, the officer held the device and would then observe the accused providing his breathsample.

After each unsuccessful attempt, the mouthpiece was be removed and examined for any obstructions. In each instance there wereno obstructions noted by the officer. [97] The officer was asked how he would know if an improper sample is received and responded that through his training he isaware whether air is entering the machine. In those cases there will be a beeping noise, which in this case was missing. When there areinsufficient air samples entering the instrument, it will stop taking any further samples on its own.

In addition there will be a solid beepfrom the instrument and an error code will then appear on the screen. Although he could not specifically recall hearing the solid beep, hewas sure that the instrument received an improper sample. [98] For each of the remaining samples the officer testified that the accused never provided a long enough breath sample or blow in acontinuous fashion until being told to stop. [99] The accused indicated that he had provided a valid sample a number of years prior that resulted in a conviction being enteredfor a similar offence.

In his own testimony, the accused never asserted that he did provide a long continuous sample and during his firstattempt stated that although blowing, it was for a very short duration of time and it did not seem like anything was coming out.

For thesecond and third attempts the accused testified that he stopped blowing on his own. [100] At no time during this process did the officer ever note the accused to be in any form of distress nor did the accused ever raise anyhealth related concerns with the officer. [101] Based on this, the evidence is clear that the accused failed to provide a proper breath sample during any of the three attempts thathe made.

[ 102 ] As for the explanation provided by the accused as to why he could not provide a suitable sample, I find the explanations provided to be internally inconsistent. The accused asserted during examination in chief that at times he felt pains in his chest or pains coming. In fact he felt those pains initially coming on when the traffic stop was being made by the officer. [ 103 ] During the second and third attempts the accused testified that he stopped blowing in order to avoid the pain he had previously experienced when he over-exerted himself.

However later in his cross-examination the accused testified that he knew he was to provide a breath sample but did not as he wanted to avoid the chest pain from occurring. [ 104 ] Although the accused continually asserted that he was in pain or about to experience pain, he at no time exhibited any signs of pain that were noted by the officer nor did he tell the officer of any difficulties he either felt or was trying to avoid feeling. [ 105 ] There is no evidence indicating that the accused did not understand the instructions given to him by the officer and those were clear as to the requirement that he blow until being told to stop.

When he did make an effort to provide a breath sample, the accused chose to stop providing his sample in order to avoid the potential pain he indicated he could feel coming on. [ 106 ] Having provided a valid breath sample a number of years previous, it cannot be said that the accused has never had the capacity to comply with a valid breath demand.

I accept that he is now some twenty years older, however, there is nothing before the court that would indicate to me that he has since experienced any health related issues that could have resulted in a reduced lung capacity or created an inability to comply with a valid demand. [ 107 ] There is nothing before the court that would support an inference that the accused’s health or life would have been placed in peril had he provided a continuous sample of his breath as had been demanded by the officer.

The decision to stop was a conscious choice by the accused, for the reasons he articulated in the course of his time on the witness stand. [ 108 ] There is ample evidence before the court from the officer that the ASD device was in proper working order and that he had utilized the instrument on prior occasions.

A new mouthpiece was introduced for each of the attempts and those mouthpieces were examined afterwards and found to be free of any obstructions. [ 109 ] In my view, on the totality of the evidence before this court, I have no difficulty in concluding that the accused’s explanation for failing to provide a valid breath sample cannot be accepted nor does it raise a reasonable doubt for this court.

I am prepared to accept the evidence of the sole police witness that the accused understood the demand made of him and his subsequent failure to comply with that demand is in my view one that is intentional and done with the intent to thwart the approved screening device test. [ 110 ] As for any suggestion that the medical condition of the accused was of such a nature that it affords a reasonable excuse, as that term is used within s. 254(5) of the Criminal Code , I find that suggestion is without merit. [ 111 ] The officer was clear in his testimony that he noted no signs of ill health being exhibited by the accused nor did the accused raise any concerns of the court to consider.

There is absolutely no evidence before the court that shows a connection or correlation between any health-related issues being experienced by the accused and his failure to provide a proper sample of breath. [ 112 ] I do not accept the evidence of the accused as it relates to his explanation for not providing a valid breath sample. I am not prepared to speculate on how, if any, his health issues may have impacted on his ability to provide a valid sample of his breath.

In my view, the accused deliberately chose not to provide a sample of his breath and I am satisfied that the Crown has proven the offence of refusing to provide a breath sample beyond a reasonable doubt. As a result a conviction will be entered. “ORIGINAL SIGNED BY:” MOAR, KELLY, P.J.