2020 QCCQ 2553, 2020 QCCQ 2553

R. c. Wing 2020 QCCQ 2553 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF BEDFORD LOCALITY OF GRANBY “Criminal and Penal Division” No.: 455-01-016404-182 DATE: 14 July 2020 ______________________________________________________________________ PRESIDING: THE HONOURABLE ÉRICK VANCHESTEIN, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v.

SHARON WING Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused is charged with operating her vehicle while her capacity was impaired by alcohol, on September 2 nd , 2018, and refusing to comply with the police officer’s demand to provide a sample of breath for the breathalyzer, contrary to section 254(5) of the Criminal Code . [1] [ 2 ] The accused maintains that her capacity to drive was not impaired by alcohol and that it was never her intention not to comply with the demand of the police officer. [ 3 ] Has the Crown presented proof beyond a reasonable doubt that the alleged offences were committed?

RELEVANT FACTS [ 4 ] On May 2 nd , 2018, the accused went to the Brome Fair to listen to a band. She left her home alone in a Chrysler 300 vehicle and arrived at the site for the start of the show, at about 7:30 p.m. [ 5 ] At the site, she met a girlfriend and they shared a glass of vodka lemonade. She subsequently drank three more glasses of the same beverage.

She paid for her drinks. [ 6 ] She left the site at about 10 p.m. and took the same route, which runs along unpaved country roads. [ 7 ] While she was on Moffat Road, she saw a deer in the orchard and, about 300 feet further along, she saw another in the ditch, preparing to cross the road. [ 8 ] This is when she made a move to turn right and the rear of her vehicle began to skid. She lost control of the vehicle and skidded into the ditch. The vehicle was flipped onto the driver’s side.

She was thus trapped, being unable to open her door. [ 9 ] Shortly afterwards, someone she knows arrived at the scene of the accident and told her they were going for help. [ 10 ] At the time, the only way she could communicate was through the vehicle’s sunroof. [ 11 ] While she was inside the vehicle, she could not see people moving around her, as she was too deep in the ditch. [ 12 ] While she was waiting for someone to get her out of the vehicle, she sniffed her necklace containing essential oils, which helps her relax because she suffers from severe anxiety problems and ADHD. [ 13 ] At about 10:15 p.m., patrol officers Sandra Marcoux and Charrier-Filion arrived at the scene. [ 14 ] At about 10:30 p.m., the accused was removed from the vehicle and taken to the ambulance. [ 15 ] As soon as she left the vehicle, the accused fell crying into the arms of a friend who was there.

She explained that she was in a state of shock. She was greatly affected and distressed by what had just happened. She panicked upon seeing the lights and rotating beacons of all the first responders present. [ 16 ] As she had only sustained a few bruises on her arms, she declined ambulance transport at about 10:40 p.m.

[ 17 ] Officer Marcoux immediately demanded that the accused undergo an approved screening device (ASD) test, because she observed that the accused had alcohol on her breath and her eyes were red and glassy. [ 18 ] Officer Marcoux also noted that the accused was in a state of shock and was crying a lot. [ 19 ] In total, six attempts were required to obtain a result from the ASD.

The first five times, the breath provided by the accused was not sufficient and the police officer had to start over. [ 20 ] The police officer nonetheless states that the accused was cooperating and that unwillingness to provide a sample is not the reason they had to make multiple attempts. [ 21 ] At 11 p.m., the accused failed the ASD test.

She was arrested and required to go to the station to provide a breath sample in the breathalyzer. [ 22 ] As the accused was cooperating well, which was the case throughout the police intervention, she was placed in the back of the patrol car without being handcuffed. [ 23 ] The police officers left the scene of the accident at 11:09 p.m. and arrived at the police station at 11:28 p.m. [ 24 ] At the station, the accused had some difficulty unfastening her seatbelt and when she got out, the police officer noted a slow, unsteady gait.

However, it was not necessary to hold her arm or help her walk. [ 25 ] At the station, the accused declined to contact a lawyer. [ 26 ] At 11:34 p.m., a qualified technician (the technician) met with the accused to give her the usual instructions. He observed that she was crying. [ 27 ] Officer Marcoux says that the accused clearly understood all the instructions; they did not need to be repeated for her. [ 28 ] At 11:35 p.m., before administering the first test, Officer Marcoux completed the drinking scenario with the accused.

Her language was correct and the officer clearly understood all of the accused’s responses, which were in English, although the police officer does not speak perfect English. The police officer noted slurred speech (“ bouche pâteuse ”), without further detail. [ 29 ] At 11:45 p.m., the accused was taken into the breathalyzer room to begin the first test.

Two attempts were required to obtain a suitable sample, as the accused was blowing very weakly. [ 30 ] The device nonetheless accepted the sample and the result revealed a concentration of 164 mg/100 ml of blood. [ 31 ] The second sequence began at 00:10 a.m. and the technician was unable to obtain a result, given that the accused provided insufficient breath. [ 32 ] There were two attempts in this second sequence, which lasted 120 seconds. At one point, she blew, stopped and started again. Another time, she inhaled very hard between the two breaths and started again.

She stopped voluntarily at the hundredth second. [ 33 ] The technician perceived that the accused was not exhaling fully. However, immediately after this second test, the accused began breathing very hard and wanted a paper bag so that she could inhale and exhale to catch her breath. [ 34 ] The accused was given a bag and breathed into it, while remaining in the breathalyzer room. [ 35 ] As the second test had not worked, a 15-minute wait was not required.

Thus, 7 minutes later, after allowing the accused time to breathe and re-explaining the consequences of refusal to her, the technician began the third sequence. [ 36 ] This sequence started at 12:21 a.m. and the technician told the accused that this was her last chance. The accused tells him that he did not understand the nature of her respiratory troubles. She has difficulty breathing because of her anxiety problems and ADHD.

She wanted to provide a suitable sample. [ 37 ] According to the technician, at the third sequence, the accused was curled up on the chair, crying. [ 38 ] After 35 seconds had elapsed since the sequence began, she blew for the first time, strongly but not steadily, stopped and started again. [ 39 ] He reminded her that she must blow continuously and steadily. [ 40 ] Although she tried again, the sample was not sufficient for analysis.

It was at this point that the technician told her she would be accused of refusing to provide a sample. [ 41 ] In the technician’s view, it was clear that he had given her a chance and that it was over; even had she requested to blow again, he would have refused. [ 42 ] Officer Marcoux, who was present while the tests were administered, states that in the second sequence, the accused had a “kind of anxiety attack”, said she was short of air and requested a brown paper bag. Even with the bag, she spoke when she removed it but had trouble breathing at the same time.

Thus, according to Officer Marcoux, it wasn’t really working and was not helping to calm her breathing. [ 43 ] Moreover, as soon as the accused was placed in the room next to the breathalyzer room, she curled up on the floor in the corner

of the room and began mutilating herself with her nails, then mentioned wanting to die. [ 44 ] The police officers had to call the ambulance workers to come and get the accused at the police station. [ 45 ] The accused explained that she was taking medication for her anxiety and had needed readjustments in mid-August 2018. [ 46 ] She told the technician that her anxiety was affecting her breathing, as even under normal circumstances she cannot blow hard, because she gets dizzy and feels like she is about to pass out. [ 47 ] When the police officer suggested she was faking, she replied that that was not the case, because she has severe anxiety problems.

The technician got angry at her and when he told her she was refusing, she began to cry. [ 48 ] Subsequently, when she was in the small adjoining room, the anxiety attack became very severe and she was crying. She was afraid and began scratching her forearms and wrists with her long nails. [ 49 ] During ambulance transport to the hospital, her blood pressure was very high. [ 50 ] At no time was it her wish to refuse to blow properly. However, even under normal circumstances she is unable to blow into a balloon.

ANALYSIS [ 51 ] Concerning the first charge of driving while impaired by alcohol, the Court deems it has received evidence that the accused had alcohol in her body, but nothing proving beyond a reasonable doubt that her driving was impaired by alcohol. [ 52 ] The Crown emphasizes certain symptoms noted: red eyes, consumption of alcohol, failure on the ASD test, slow and halting gait and slurred speech; as well as the accident, which the Crown sees as notably unexplained. [ 53 ] As the case law stipulates, the Court must analyze these symptoms in context, taking all factors into consideration. [ 54 ] In this case, there is no evidence regarding the accused’s driving prior to the accident, which occurred at night on an unpaved, dirt-and-gravel country road. [ 55 ] There is nothing vague about the accused’s explanation.

Quite understandably, someone wouldn’t necessarily be able to explain a manoeuvre that lasted a few seconds and caused them a severe shock. [ 56 ] The accused mentions trying to avoid a deer and made a false move that caused her to lose control of her vehicle and end up in the ditch.

There is nothing in the evidence that contradicts this version and the Court has no basis on which to reject it. [ 57 ] Regarding symptoms associated with impaired driving, aside from the smell of alcohol, the other items are not necessarily linked to impairment. [ 58 ] Officer Marcoux herself acknowledges that red, glassy eyes may be caused by the accused’s crying a great deal, which was the case in this instance.

Moreover, the police officers observed the state of anxiety and shock of the accused, who had just spent 30 minutes trapped in her vehicle. [ 59 ] Concerning her gait, this was noted upon her arrival at the station and not before. Moreover, the description was very concise and relative.

The Court cannot associate this fact with alcohol impairment of driving capacity. [ 60 ] Moreover, these observations of gait and slurred speech were not noted by the technician, who does not mention them in his testimony. [ 61 ] Concerning language, the police officer admits that she clearly understood the accused’s words throughout the intervention.

In addition, the accused cooperated very well and did not ask to have the instructions she was given repeated. [ 62 ] Based on all the evidence, the Court has a reasonable doubt regarding the alcohol impairment of driving capacity which must be to the accused’s benefit, and she is therefore acquitted on the first charge. [ 63 ] Regarding the second charge, the Crown argues, as observed by Honourable Michel Pennou in Boucher c.

R ., [2] that “ (I)l n’y a pas unanimité sur la manière de définir l’élément moral qui doit accompagner le refus ou l’omission d’obtempérer . “ [3] . [ 64 ] Indeed, the Crown advances that the applicable mens rea is knowing that an order has been given, and that the burden then lies with the accused to present a reasonable excuse, which has not been demonstrated in this case. [ 65 ] This trend expressed in Québec by Justice Pennou refers to certain Ontario judgments that differ from the principles set forth on this issue by the Lewko [4] decision. [ 66 ] Defense argues instead for the position taken in Lewko [5] and in Degiorgio , [6] which highlight an intention on the part of the accused to refuse to provide the sample. [ 67 ] The position put forward in Québec by Justice Pennou is not shared by all his colleagues: Justice Grenier in Bourque c.

R . [7] formulates the legal situation as follows, basing his argument, inter alia , on Lewko [8] : [20] L'actus reus de cette infraction est le fait de ne pas se conformer à la demande, pour établir la mens rea, la poursuite doit, de plus, faire la preuve que le défaut de se conformer à la sommation est intentionnel. Conséquemment, celui qui échoue le test de dépistage, pour

le motif qu'il ne souffle pas adéquatement, ne commettra pas l'infraction qu'on lui reproche, s'il n'a pas l'intention coupable, bien que cette intention puisse souvent découler de l'ensemble des faits mis en preuve. [21] Il faut, par ailleurs, éviter de confondre la preuve de l'intention coupable et l'excuse raisonnable dont la preuve incombe à l'accusé, R. c. Sheehan, [2003] N.J. No 57 . [9] [ 68 ] In the Court’s opinion, this position is in accordance with the principles established by the Appeal Court of Québec in R. c.

Nolet , [10] which makes the following observation regarding the intent required for this offence: [12] L'intention qui caractérise l'infraction prévue à l' article 254(5) C.cr . est simplement celle de vouloir refuser de se soumettre aux tests. [11] [ 69 ] Ultimately, regarding the required intent, the case law seems to agree that the court must have evidence of an intention to refuse to provide a sample: - An intention to fail or refuse to provide the required sample. [12] - The intention of the accused to produce a failure or refusal. [13] - The mens rea element requires that the failure or refusal to comply be intentional.

Therefore, a person who fails to provide an appropriate sample, despite genuinely attempting to do so, will not have committed the mens rea of this offence.

It is important to keep in mind that this has nothing to do with whether or not the accused had a reasonable excuse. [14] - Put more directly, evidence that a person who tries multiple times to provide a breath sample, and in each instance fails to provide a sample gives rise to an inescapable inference that s/he is intending that result, absent some other evidence being present that would suggest an absence of such an intent, or at least raise a reasonable doubt about it. [15] [ 70 ] What is the situation in this case? [ 71 ] First, it should be noted that the accused never refused to provide a sample; rather, it was the technician who decided to terminate the sampling prematurely, because the volume of air provided was insufficient. [ 72 ] He states that he would not have reversed his decision even if the accused had asked him to let her try again. [ 73 ] In the particular context of this case, that position is surprising.

The technician was dealing with a person who was physically and visibly undergoing a panic attack. [ 74 ] The accused asked for a paper bag so she could ventilate. She had only seven minutes to catch her breath.

Officer Marcoux noted that the accused had not calmed down and was still having difficulty breathing. [ 75 ] There was no urgency and the situation called for a bit more time and sensitivity, which the technician did not have. [ 76 ] He was not even told that the accused had had an accident and that it had taken six attempts to obtain a sufficient sample for the ASD. [ 77 ] And yet, in the event, the technician had obtained a sample which, if small, was sufficient to provide a result in the first sequence – which result was not communicated to the accused. [ 78 ] He was dealing with a person who had cooperated throughout the intervention and was attempting to explain her personal difficulties.

Moreover, these were severe, because upon leaving the breathalyzer room, her reaction was immediate: she was overcome by panic and had to be rushed to hospital. [ 79 ] The Court has no doubt of the accused’s version regarding the fact that she was having a panic attack and experiencing genuine physical problems providing the sample.

She needed to be calmed, rather than confronted as the technician did in this case. [ 80 ] The technician should have considered the unusual situation he was in, faced with a person experiencing major difficulties, who was under severe stress and unable to respond so quickly to his demands. [ 81 ] The Court thus has very serious doubts regarding the accused’s intention “of refusing to undergo the test”. FOR ALL OF THESE REASONS, THE COURT: ACQUITS the accused of both charges set out in the information. __________________________________ ÉRICK VANCHESTEIN, J.C.Q. Maître Cassandre Hamel Crown Prosecutor

Maître Alexandre Caissie Counsel for the accused Hearing dates: 4 December 2019 and 24 January 2020 [9] [ Translation ] : [20] The actus reus of this offence is non-compliance with the demand; to establish mens rea , the prosecution must further prove that failure to comply with the demand is intentional.

Consequently, someone who fails the screening test for the reason that he did not blow satisfactorily will not commit the offence he is charged with if he does not have guilty intent, although this intent can often be inferred from all of the facts presented in court.; [21] It is important, moreover, not to confuse proving guilty intent with the reasonable excuse whose proof rests with the accused, R. c. Sheehan, [2003] N.J. No 57 . [11] [ Translation ] : [12] The intent characterizing the offence enacted in Cr.C . section 254(5) is simply that of refusing to undergo the tests.