Her Majesty the Queen - v. -, 2014 SKPC 191

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 191 Date: November 3, 2014 Information: 24298437 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Preston Howard Lawson Appearing: Jennifer Hiatt For the Crown Aaron A. Fox, Q.C. For the Accused DECISION L.

WIEGERS , J Introduction [ 1 ] Preston Howard Lawson is charged with failing or refusing to comply with a police officer’s demand to provide a breath sample suitable for analysis by an approved screening device (“ASD”) contrary to section 254(5) of the Criminal Code . [ 2 ] In reply, Mr. Lawson claims he did comply with the breath demand. He adds that if I find otherwise, then he had a reasonable excuse for his non-compliance.

Background [ 3 ] During the early evening of June 6, 2013, a concerned citizen contacted the Estevan Police Service (“EPS”) to report an impaired driver. Based on the information supplied by the complainant, EPS members received a dispatch to look out for a black truck with two men inside and that one of the men was wearing a green shirt. The truck was last seen near a golf course on the southern edge of the city. [ 4 ] Cst. Landon Polk was on patrol and he responded to the dispatch by driving to the area where the truck was last seen. A few minutes later, he observed a black truck at an intersection.

The driver was wearing a green shirt, but not his seat belt. Cst. Polk engaged his emergency lights and the driver quickly pulled the truck to the side of the road. [ 5 ] Mr. Lawson was the driver and he had a male passenger with him. Cst. Polk detected an odour of alcohol on Mr. Lawson’s breath and noticed many scattered beer cans on the interior floor of the truck. He suspected Mr. Lawson was intoxicated and he was concerned it may not be safe for him to drive. As a result, he decided to demand a breath sample from Mr. Lawson for ASD analysis. [ 6 ] At the time, Cst.

Polk was fairly new to policing and was not certified to operate the ASD. Therefore, he radioed for a more senior member who possessed that qualification. A few minutes later Cst. Jeff Fry arrived on scene. [ 7 ] Cst. Polk placed Mr. Lawson in the back of his vehicle and then Cst. Polk assumed the driver’s seat. A plexi-glass barrier knows as a “silent patrolman” separated the constable from Mr. Lawson, however, the centre portion of the barrier was slid open to allow conversation between Mr. Lawson and Cst. Polk. The constable read Mr. Lawson the ASD demand from his police card and Mr. Lawson said he understood.

Cst. Fry, who had been securing Mr. Lawson’s vehicle and speaking with the passenger, then took the front passenger seat of the police vehicle. [ 8 ] The content of the conversation between the police officers and Mr. Lawson is not disputed. The interaction between police and the accused was captured by the police car’s audio-visual system and a copy of it was exhibited at trial. The recording is almost 23 minutes long and it begins with Cst. Polk’s observation of the suspect vehicle and ends with the arrival of Cst. Polk and Mr. Lawson at the EPS building. There is a roughly nine minute period in which Mr.

Lawson was in the police vehicle that is not captured on video. Cst. Polk explained the absence of relevant video during that time by saying that when he first placed Mr. Lawson in his police vehicle he forgot to switch the in-car camera from a view of the roadway in front of the police vehicle to a view of its interior. The entire time period, however, was audio-recorded. [ 9 ] The prosecution alleges that the interaction that followed culminated in Mr. Lawson’s unequivocal refusal to provide a breath sample.

In determining whether that is the case I will provide a detailed account of the evidence when I turn to that issue. For present purposes, the following brief

summary is sufficient. [ 10 ] Over the course of a few minutes, Cst. Fry made four unsuccessful attempts to obtain a sufficient sample from Mr. Lawson. Cst. Fry attributed this failure to a lack of sincere effort on Mr. Lawson’s part while Mr. Lawson claimed diligence, insisted there was a problem with the ASD, and offered to blow into an approved instrument at the EPS building instead. Cst. Fry testified that the ASD was in proper working order, but that he did not follow-up by checking its mouthpiece. Cst. Fry sought a fifth sample and based on Mr. Lawson’s words and conduct he inferred Mr. Lawson refused. Mr.

Lawson testified that he did not refuse and would have provided a fifth sample, but Cst. Fry did not give him the opportunity to do so. Mr. Lawson said he concluded the police officers had accepted his offer to take him to the EPS building to provide breath samples into an approved instrument. [ 11 ] Cst. Fry exited the police car and Cst. Polk placed Mr. Lawson under arrest for refusing to provide a breath sample. He

informed Mr. Lawson of his right to counsel and the police warning. He then began to drive to the EPS building. Along the way he told Mr. Lawson he would be allowed to provide a sample into the approved instrument. Once at the EPS building another officer intervened and explained to Mr. Lawson that he would not be given that opportunity. Issues [ 12 ] Two issues are raised by the evidence and the position of the parties: 1. Did Mr. Lawson refuse to provide a breath sample? 2. If Mr. Lawson refused to provide a breath sample, did he have a reasonable excuse for his refusal? Analysis Did Mr.

Lawson refuse to provide a breath sample? [ 13 ] Cst. Polk read Mr. Lawson the following demand: I have reasonable grounds to suspect that you have alcohol or a drug in your body and in accordance with the Criminal Code , I demand that you provide a sample of your breath suitable for analysis in an approved screening device and that you accompany me for the purpose of providing such sample. Do you understand? Mr. Lawson responded, “yeah”. [ 14 ] Cst. Fry then gave information and instruction to Mr. Lawson. He showed Mr. Lawson a fresh mouthpiece and the ASD. He turned the ASD on and told Mr.

Lawson it would emit a tone when it is ready to receive a sample. He told Mr. Lawson the same tone sounds when the subject provides sufficient airflow as he blows into the device. He then said, “What I need you to do is make a nice tight seal around the mouthpiece, blow hard until I tell you to stop alright.” He passed the device through the opening in the silent patrolman and while maintaining control of it he directed Mr. Lawson to lean forward. Then the following occurred: Mr. Lawson: I won’t lie to you, I am going to blow over so ... Cst. Fry: Okay I will grab all of it. Nice deep breath and blow hard.

Keep going, keep going, keep going, keep going, harder, harder, keep going, keep going, keep going. Okay. You got an error right so what happened is that your flow of air stopped. You didn’t have a deep enough, yeah you didn’t have a very big deep breath there right. Mr. Lawson: I uh, that was pretty good. [ 15 ] In Cst. Fry’s opinion the first attempt was unsuccessful because Mr. Lawson did not have a sufficiently tight seal around the mouthpiece. He came to that conclusion because he could feel breath passing along his hand as Mr. Lawson blew into the ASD.

He testified the airflow was initially adequate but then it tapered off which is consistent with someone who blows well for a short time and then stops blowing altogether. [ 16 ] With respect to the second attempt, the audio recording provides the following account:

Cst. Fry: Okay, so what we are going to need is a nice deep breath. Mr. Lawson: Yeah. Cst. Fry: Blow hard. Keep going, hard keep going, keep going. Hang on. Okay, the airflow stopped again right. So, don’t put your tongue over the hole. Mr. Lawson: I’m not. I’m really not. I just told you I’m going to blow over so just let’s go straight to the real breathalyzer alright. Cst. Fry: As soon as we get a reading on this– what if you blow an alert? Mr. Lawson: I don’t think... Cst. Fry: If its been two hours since your last drink what if you blow an alert alright? Mr. Lawson: Well, I don’t think I will.

I think– I’m not trying to fuck it up or anything– pardon my French. [ 17 ] Cst. Fry testified Mr. Lawson’s supplied breath was initially sufficient but then all airflow halted abruptly. Unlike the first sample there was no tapering. He said in his experience this occurs when a subject initially blows hard but then seals the air tube opening with his or her tongue. [ 18 ] There was a discrepancy between the evidence of Cst. Polk and Cst. Fry as to the number of breath samples that were attempted. Cst. Fry said there were four attempts and Cst. Polk said three. I find that there were four as I prefer Cst.

Fry’s evidence over Cst. Polk’s testimony. Cst. Fry was responsible for the breath tests and I believe he paid more careful attention to the tests than Cst. Polk. [ 19 ] As to the third attempt the audio recording discloses the following: Cst. Fry: Okay nice deep breath and then blow hard. You’re not even making the thing make a noise. Mr. Lawson: Okay sorry buddy. Cst. Fry: Okay are you going to provide me a sample? Mr. Lawson: I will once we get to the technician. Cst. Fry: No you need to provide me a sample. You have been read the demand to provide a sample under this.

If you don’t provide a sample with this you are going to get charged with refusal alright? Mr. Lawson: Alright. I gave you what I got. I’m not trying to screw you over, I am being honest.

[ 20 ] According to Cst. Fry this attempt produced very little air and a brief tone from the ASD. [ 21 ] With regard to the fourth attempt: Cst. Fry: Come up here and try again. Nice deep breath, tight seal around there and blow. A seven year old with asthma can blow into this thing okay so don’t give me any bullshit. Let’s go. Hard, hard, hard, keep going, keep going. You’re not doing it. Mr. Lawson: Okay well take me for the breathalyzer. Cst. Polk: Do you understand what refusal is Preston? Mr. Lawson: I am not refusing. I am blowing. You saw me blow man. Cst.

Fry: Yeah, but when you stick your tongue over the hole the airflow stops. Mr. Lawson: I’m not. Cst. Fry: This thing is barely fogging up. Mr. Lawson: I’m not. Cst. Fry: It’s barely fogging up which means you are not providing me a sample. Mr. Lawson: Let’s be straight with each other here. I am not a bullshitter, you’re not a bullshitter. I am blowing. If you can’t take that take me to the station and I will blow into the real machine. Cst. Fry: Okay if you don’t provide me with a sample with this because the demand has been read you are going to be charged with refusal. Do you understand that? Mr.

Lawson: I blew three times. It’s my word against yours. Cst. Fry: Four times. Cst. Polk: Three times so far. Three times so far. We will give him six and if not ... [ 22 ] Cst. Fry opined that Mr. Lawson did not emit any air during this attempt. [ 23 ] Cst. Fry sought a fifth attempt:

Cst. Fry: So, I want you to think about this for a few seconds. Mr. Lawson: I thought about it. I blew in it. I did everything that you asked me to. Cst. Fry: Well you didn’t blow hard enough, you didn’t blow long enough and you put your tongue over the hole. Mr. Lawson: No I didn’t. Cst. Fry: No you didn’t. So how come the airflow suddenly stops then when you are still going (makes a blowing sound) past the air piece. Mr. Lawson: Maybe your machine’s wrecked. Cst. Fry: I don’t think it does. Mr. Lawson: Let’s go to the station and find out. Cst. Fry: Okay. Good enough. [ 24 ] As Cst.

Fry sought the fifth sample, Cst. Polk realized the police car’s video camera was not trained at the interior of the police vehicle and he switched its focus accordingly. The video shows Cst. Fry in the front passenger seat holding the ASD in one hand with his upper body turned to his left so he can see and talk to the accused who is seated behind Cst. Polk. Mr. Lawson is seated completely back in his seat. One cannot see if his arms are folded but Cst. Fry testified they were and I accept that observation. [ 25 ] On the video, when Cst. Fry addresses Mr.

Lawson regarding a fifth sample he holds the ASD up in his right hand and shows it to Mr. Lawson. The device is on the constable’s side of the silent patrolman. When Cst. Fry asks Mr. Lawson why the airflow suddenly stopped the accused raises his left hand in a motion that suggests a shrug– as if to say “I don’t know” -- and appears to say “maybe your machine’s wrecked.” As Cst. Fry responds “I don’t think it does”, Mr. Lawson turns his head to the left– away from Cst. Fry– looks out the rear passenger side window, and responds “Let’s go to the station and find out.” Cst.

Fry then says “okay” and begins sliding the silent patrolman shut while saying “good enough”. [ 26 ] Slightly over three minutes elapsed from the time Mr. Lawson said “I won’t lie to you I am going to blow over” until Cst. Fry said “good enough”. After Cst. Fry shut the silent patrolman, Cst. Fry told Cst. Polk to arrest Mr. Lawson for refusal. Within a few seconds, Cst. Fry left the vehicle and Cst. Polk slid open the silent patrolman and told Mr. Lawson he was under arrest for refusal. He read Mr. Lawson his rights to counsel and the police warning from his police card. [ 27 ] Mr. Lawson also testified.

He did not explain his thinking during each breath attempt, but he said that throughout his interaction with Cst. Fry his attempts to comply with the demand were sincere. He said, that “obviously” the ASD was not functioning properly and that is the reason he offered to provide a sample into an approved instrument at the EPS building. When Cst. Fry left the car Mr. Lawson felt that is what was going to happen. He added that if he had known he would not have that opportunity he would have blown into the ASD again.

In cross-examination, he said he thought it might save time to go straight to the “breathalyzer” instrument.

[28] Cst. Fry testified that the ASD was in proper working order. The only errors it registered were with regard to the suitability ofthe samples provided by Mr. Lawson. He said that if there had been internal errors the device would have shut down. [29] There was little questioning of Cst. Fry regarding the mouthpiece. I infer from Cst. Fry’s exchange with Mr. Lawson that anew mouthpiece was used at the beginning of the test. Based on the second attempt it appears the device was capable of receivingsufficient airflow. Under cross-examination, Cst.

Fry explained that he does not change the mouthpiece after each attempt unlesssomething appears to be wrong with it. He said, that if he received 10 consecutive insufficient samples he would change a mouthpiecebefore pursuing another sample. Cst. Fry kept the mouthpiece in case it was required as evidence. He believes another officer checkedthe mouthpiece afterward, but he could not be certain. [30] The prosecution argues that if I consider the totality of the evidence I can safely infer from Mr. Lawson’s words and conducthe unequivocally refused to provide Cst. Fry with a fifth sample. [31] Mr.

Lawson argues that conclusion is not available on the evidence. He submits he was fully cooperative during this briefperiod of time. In support of his position he points out that he stopped his vehicle quickly and without incident, he did not expresslyrefuse to provide a sample, and in fact he provided breath samples when directed to do so. He contends that an inference he feigned thebreath samples would be unwarranted because the prosecution did not prove the mouthpiece was in working order. Further, he claims hedid not know Cst.

Fry wanted a fifth sample because the policeman did not pass the device through the silent patrolman for a fifthsample and did not clearly convey to Mr. Lawson his final conclusion when he used a vague expression: “okay, good enough.” [32] The offence of failing or refusing to comply with a breath demand creates a single offence.

Where the prosecution proves one means of committing the offence but not the other, the offence is made out; the component that is not proved is mere surplusage.[1] [33] In R v Lewko[2], the Court of Appeal identified three constituent elements of a charge of failing or refusing to comply with abreath demand: (1) a lawful demand; (2) a failure to produce the required sample or a refusal to do so (the actus rea); and (3) an intent to produce the failure or refuse (the mens rea).[3] [34] An unequivocal refusal need not be express; it may be a reasonably inferred product of an accused’s conduct or a combination of her words and conduct[4].

This type of refusal is sometimes called “constructive refusal”. To determine whether an offence has been committed on this basis the totality of the circumstances must be carefully considered.[5] A helpful expression of the required approach to evidence that may support a finding of constructive refusal was set out by the Court in R v Bleta[6], at paragraph 42: ... it must be remembered that most of these cases do not involve an outright or explicit refusal where the accused simply says “no” inresponse to a demand.

The more common case involves an ongoing course of conduct where the issue is whether a constructive refusalcan be inferred from all of the circumstances. Hill J., summarized the case law, to this effect, in R v Bjellic, supra, at paragraph 30: A “feigned attempt is the equivalent of a refusal.” R v Young 2007 OJ 1776 (CA) at paras 1-2; R v White, [2005] NSJ No 62 (CA) atpara 9; R v Weare, [2005] OJ No 2411 (CA) at para 1.

Whether the motorist’s conduct can be said to be the result of faking or feigningan attempt to comply with the police demand the actus reus of the offence depends on the totality of the circumstances: R v Cunningham(1989) ABCA 163, 1989 ABCA 163 , 49 CCC (3d) 521 at 533. Evidence of a refusal may arise from the conduct of thedetained motorist, his or her statements to the officer in the course of the ASD testing process, or from a combination of conduct and statements.

Refusal to comply may be quite express or may logically be inferred from the totality of the detained driver’s behaviour...[7] [35] Non-verbal evidence that establishes unequivocal refusal does not have to speak loudly to meet the criminal standard of proof; it may be as subtle as silence and the avoidance of eye contact.[8] [36] With one exception, Mr. Lawson agrees with the prosecution that the totality of the evidence should be considered. Hecontends Cst. Fry’s evidence of feigned breath attempts is unreliable because Cst. Fry did not check the mouthpiece to ensure it was in

working order. Put another way, Mr.

Lawson claims that where, as here, the subject of an ASD demand provides breath samples there is some form of onus on the prosecution to prove the ASD was working properly before such evidence may attract weight. [ 37 ] Some Courts have viewed the proper functioning of the ASD as an essential element of the prosecution case whenever the accused provides samples that the prosecution alleges were intentionally inadequate. [9] Generally, these Courts reason that since the inadequate breath sample may be the result of an ASD malfunction (including mouthpiece blockage) then a burden ought to fall to the body that has control of the device to prove– to the criminal standard of proof– that the device was functioning properly at the material time. [ 38 ] Other Courts have approached the same question differently.

They treat the issue as an important evidential consideration, but a question of fact that must be resolved in light of all the relevant evidence. [10] [ 39 ] The facts of this case do not call on me to decide whether the prosecution must prove beyond a reasonable doubt the device was in proper working order. The prosecution is not alleging an offence on the basis of feigned breath samples. Rather, it asserts the offence was committed when Mr.

Lawson refused to provide a fifth sample of breath. [ 40 ] What makes this point more interesting, however, is that the prosecution relies on the totality of the circumstances-- including evidence Mr. Lawson feigned breath samples-- to support an inference he intentionally refused to provide the fifth breath sample. In my view, I must consider the entirety of the circumstances that surround this transaction. Further, I must consider the individual pieces of evidence collectively in arriving at my decision.

To apply the criminal standard of proof to a non-essential item of evidence or to consider that item independently of other relevant evidence would be to err. [11] [ 41 ] Returning to the essential elements of refusal as set out in Lewko , there is no question Cst. Polk’s breath demand was proper. The issue is whether the prosecution has proved beyond a reasonable doubt that Mr. Lawson refused to provide a fifth breath sample and meant to do so. [ 42 ] The breath demand that Cst. Polk read to Mr. Lawson was clear and simple. He was required to provide a breath sample that was suitable for analysis by the ASD. Mr.

Lawson told Cst. Polk he understood. Under cross-examination he confirmed that at the time he understood. Despite understanding what was required of him he expressed a reluctance to comply well before the fifth attempted sample. Before the first sample was taken he told Cst. Fry that he would fail. After the second attempt he asked to go straight to the breathalyzer. Following the third attempt, Cst. Fry asked him if he was going to supply a sample and Mr. Lawson said he would once he is taken to a technician. After the fourth attempt, he and Cst. Fry had this exchange: Cst.

Fry: Okay if you don’t provide me with a sample with this because the demand has been read you are going to be charged with refusal. Do you understand that? Mr. Lawson: I blew three times. It’s my word against yours. [ 43 ] Mr. Lawson’s final response to Cst. Fry must be interpreted in light of his earlier responses and Cst. Fry’s warnings after the third and fourth attempts that he would be charged with refusal if he did not provide a suitable sample. The following exchange then occurred: Cst. Fry: So, I want you to think about this for a few seconds. Mr. Lawson: I thought about it. I blew in it.

I did everything that you asked me to.

Cst. Fry: Well you didn’t blow hard enough, you didn’t blow long enough and you put your tongue over the hole. Mr. Lawson: No I didn’t. Cst. Fry: No you didn’t. So how come the airflow suddenly stops then when you are still going (makes a blowing sound) past the air piece. Mr. Lawson: Maybe your machine ’s wrecked. Cst. Fry: I don ’t think it does. Mr. Lawson: Let ’s go to the station and find out. Cst. Fry: Okay. Good enough. As Cst. Fry said “I don’t think it does”, Mr. Lawson turned his head away from Cst.

Fry to look out the left passenger side window and with folded arms said “let’s go to the station and find out.” Taking into account all of the evidence– including Mr. Lawson’s assertions that he was compliant– I conclude that when Mr. Lawson said “let’s go to the station and find out” he was intentionally refusing to provide another breath sample into the ASD. [ 44 ] Mr. Lawson submits that Cst. Fry did not make his expectation of a fifth attempt clear to him. Put another way, he argues he would have complied if Cst.

Fry had been sufficiently clear and since he was not then he did not actually refuse the direction for a fifth breath sample. Mr. Lawson claims his uncertainty was compounded by Cst. Fry’s failure to present the ASD to him by passing it through the opening in the silent patrolman on the fifth occasion. [ 45 ] I appreciate that under cross-examination, Cst. Polk agreed with a suggestion that the ASD was not “presented” a fifth time, however, Mr. Lawson’s argument must fail. Cst. Fry’s expectations were abundantly clear to Mr. Lawson. Including Cst. Polk’s breath demand, by the time Cst.

Fry sought the fifth sample from Mr. Lawson he had been told five times in short order and in various ways that he must provide an adequate sample into the ASD and four times that he had not yet provided one. He was twice warned that if he refused he may be charged. Mr. Lawson knew Cst. Fry expected a fifth sample. He also knew where the ASD was and how to access it. If he had wanted to provide a fifth sample he would have done so. [ 46 ] Obviously Mr. Lawson’s testimony runs contrary to my findings. I have considered his testimony in light of the whole of the evidence and I reject it.

I do not believe him and I am not left in doubt by his evidence. I am satisfied beyond a reasonable doubt that he intentionally refused to provide a fifth breath sample. [ 47 ] I would have come to this conclusion even without reliance on Cst. Fry’s evidence of Mr. Lawson’s feigned compliance. That said, when I take into account the evidence I have cited in favour of a finding of refusal along with Cst. Fry’s evidence concerning the mouthpiece [12] and balance that against Mr. Lawson’s claim he was compliant and the fact the mouthpiece was not subsequently tested, I am persuaded Mr.

Lawson did feign his breath attempts. Did Mr. Lawson have a reasonable excuse for his refusal?

[ 48 ] In Lewko , the Court of Appeal determined that if the Crown proves the three essential elements of the refusal offence then the accused will be convicted unless he raises a successful defence such as reasonable excuse. In this jurisdiction, the accused’s burden is simply to raise the defence; it falls to the prosecution to negative the defence beyond a reasonable doubt.

In other words, the accused bears an evidential burden to put the issue in play and the Crown maintains the persuasive burden throughout the trial. [13] [ 49 ] Most forms of reasonable excuse rest upon a claim it would be extremely difficult or dangerous to the health of the subject to comply with the breath demand. [14] There are exceptions to this general approach. [ 50 ] Turning to the present circumstances, it is noteworthy that authorities have held the following will not constitute a reasonable excuse for refusing a breath demand: (1) a belief the breath testing instrument is unreliable; [15] (2) an offer to blow into an approved instrument rather than an ASD; [16] and, (3) an offer to provide a blood sample instead of a breath sample. [17] [ 51 ] Yet, the offer of a blood sample in place of a breath sample has been held to be a reasonable excuse if the police investigators accept the subject ’s offer .

That was the ruling of the Saskatchewan Court of Appeal in R v Chrun , [18] where, when faced with such an offer, the police investigators responded promptly by providing the accused with an approved container and transporting him to the hospital where his blood was drawn. [ 52 ] Mr. Lawson argues he had a reasonable excuse for his refusal because the constables accepted his offer to provide breath samples into an approved instrument at the EPS building rather than provide a fifth ASD sample.

According to Chrun , that may be a reasonable excuse but first I must determine whether that claim is supported by the evidence. [ 53 ] Since a reasonable excuse is the reason for refusing it must be coexistent with the refusal. Therefore, it is important to pinpoint the time of Mr. Lawson’s refusal while bearing in mind that a valid excuse must be both honestly held and reasonable in the circumstances. I have found that Mr. Lawson’s refusal occurred when he looked away from Cst. Fry and said, “Let’s go to the station and find out.” No evidence prior to that point in time could lead Mr.

Lawson to honestly and reasonably believe his offer to provide approved instrument samples had been accepted by the investigators. In fact, the evidence promotes the opposite conclusion. Prior to his refusal, Mr. Lawson offered to blow into an approved instrument following his second, third and fourth attempts and each time Cst. Fry responded by saying he must blow into the ASD. Further, with respect to the third and fourth attempt, Cst. Fry advised Mr. Lawson he would be charged with refusal if he did not comply with the ASD demand. I conclude that Mr.

Lawson’s excuse was neither honestly held nor reasonable. [ 54 ] Mr. Lawson argues Cst. Fry’s response to his refusal– “Okay, good enough”– indicates Cst. Fry accepted his offer. I have found this comment occurred after his refusal but as it occurred only a moment later I will consider its possible implications. The words “Okay, good enough” must be balanced against the rest of the relevant evidence. Taking into account all that Cst. Fry had said to Mr. Lawson to that point in time, the video evidence that clearly shows Cst. Fry was displeased with Mr. Lawson when he last spoke to him, and Cst.

Polk’s arrest of Mr. Lawson for refusal a few seconds after Cst. Fry spoke those words, I conclude it would not be reasonable for Mr. Lawson to consider the words “Okay good enough” as an acceptance of his offer to provide samples into an approved instrument. [ 55 ] After he was arrested for refusal, Mr. Lawson acknowledged his rights to counsel and the police warning and was silent until Cst. Polk, who by this time was driving to the EPS building, raised the topic of refusal again. At this point in time, Mr.

Lawson’s refusal was complete so I consider what followed during the drive to the EPS building to be a separate transaction between Mr. Lawson and Cst. Polk. Having said that, the conversation bears mention because Mr. Lawson cites his conversation with Cst. Polk as proof of the reasonableness of his excuse. [ 56 ] From the conversation it appears that Cst. Polk believed Mr. Lawson had feigned compliance with the ASD. Nonetheless, he expressly told Mr. Lawson he would have a chance to blow into the approved instrument and he would have to be diligent or he would be charged with refusal.

At the EPS building he helped Mr. Lawson contact duty counsel who told Mr. Lawson to provide breath samples. It was only then that another officer intervened and told Mr. Lawson he would not be given an opportunity to blow into the approved

instrument. Under cross-examination, Cst. Polk was asked twice whether he thought Mr. Lawson’s offer to provide samples into theapproved instrument had been accepted. In his first response he said “that might have been my thought at the time.” Later his responsewas “like that was my thought of the process.” Mr. Lawson argues that if a police officer thought an offer had been made and accepted,then a lay person certainly is entitled to the same conclusion. [57] Cst. Polk’s actions are puzzling. Shortly after arresting Mr.

Lawson for refusing to provide an ASD sample, he offered him anopportunity to provide a breath sample into the approved instrument. He did this despite the fact Mr. Lawson’s refusal was complete andnotwithstanding he lacked the necessary grounds to obtain such samples without an ASD sample that produced a fail result. When hetestified, he candidly admitted that he was confused during the investigation because he was a relatively new officer who had not beentrained in procedures concerning the ASD and the approved instrument.

Beyond that he was unable to articulate with precision what hewas thinking during his post-refusal conversation with Mr. Lawson. It is not clear to me whether his “thought of the process” at the timewas that Mr. Lawson had successfully bargained for a chance with the approved instrument or whether every subject who is notsuccessful in providing ASD samples also has an opportunity to blow into an approved instrument. [58] At the time Cst. Polk arrested Mr. Lawson for refusal, Mr. Lawson understood why he was being arrested and did notmention the issue again until Cst. Polk raised it. Cst.

Polk’s subsequent offer of another chance was a welcome but unexpecteddevelopment for Mr. Lawson. Cst. Polk’s own confusion does not disturb my conclusion that Mr. Lawson did not honestly believe hisoffer had been accepted and that such a belief would be unreasonable in the circumstances. [59] On the evidence, the defence of reasonable excuse does not operate in favour of Mr. Lawson. In so finding, I am cognizantthat the prosecution bears the burden to negative the defence beyond a reasonable doubt. Conclusion [60] I conclude that the prosecution has proven beyond a reasonable doubt Mr.

Lawson intentionally failed to comply with thebreath demand and that he did not have a reasonable excuse for his refusal. In the result, I find him guilty as charged. L. Wiegers, J [1] R v Kitchemonia (1973), (SK CA), 12 CCC (2d) 225 (Sask CA) at para 7 ; R v Angrignon, 2002SKQB 477 at para 7, SJ No 679 [Angrignon]; R v MacNeil, [1978] OJ No 653 (CA) at paras 6-7 (QL) [2] 2002 SKCA 121, 227 Sask R 77 [Lewko] [3] Lewko, para 8 [4] R v Adam, [1988] SJ No 692 (QB).

Also see: R v Melanson, (NB CA), [1973] NBJ No 78 (CA) at paras 4-5(QL); R v Musselman, [1987] SJ No 101 (QB) (QL) [5] R v Houle, 2013 SKPC 216 para 20, SJ No 796; R v Kot, 2014 SKPC 63, SJ No 274; R v Olivier-Williams, [2005] OJ No 2967(SCJ) at para 8 (QL); R v Nagy, 2003 ABQB 690 at paras 32-33, 336 AR 124

[6] 2012 ONSC 1235, OJ No 944 [7] See also Lewko, note 2, at paras 30-32 [8] R v Page, 1982 ABCA 230 paras 8-12, 41 AR 429; R v Lawson, 2011 BCSC 876, [2012] BCJ No 1262 [9] R v Lumley, [1988] OJ No 2521 (CJ); R v Farkas, (ON CJ), [2002] OJ No 4682 (CJ) [10] R v Leveque, (BC CA), [1985] BCJ No 1949 (CA); R v D’Alphonso, 2012 BCSC 1051, BCJ No 1486; R vGutierrez, [2001] OJ No 3659 (ONSC) [11] R v Morin, (SCC), [1988] 2 SCR 345; R v Mclachlan, 2012 SKCA 74 at para 44, SJ No 446; R v Bouvier (1984), (ON CA), 11 CCC (3d) 257 at 265, (Ont CA) (QL), affirmed (SCC), [1985] 2 SCR 485; Stewart v R, (SCC), [1977] 2 SCR 748 at 759-61 (QL) [12] At para 29 above [13] Lewko, at note 2, paras 13-17 [14] R v Frohwerk, [1979] MJ No 19 (CA) para 13, (QL) [Frohwerk]; Angrignon, at note 1, paras 15-17 [15] R v Moldenhauer, [1980] SJ No 361 (QB) [Moldenhauer]; Frohwerk, at note 15 [16] Moldenhauer, at note 17 [17] R v Wall, (SK CA), [1974] 5 WWR 634 (Sask CA); R v Richardson (1993), 42 MVR (2d) 261 (CA); R vWilson, [1996] BCJ No 887 (CA); R v Weir (1993), 42 MVR (2d) 1 (NSCA); R v Taylor (1993), 43 MVR (2d) 240 (BCCA) [18] [1973] SJ No 378 (CA); Also see: R v Downey, [1981] AJ No 609; R v Chapman, [1979] MJ No 20 (Co Ct)