2013 QCCQ 9978, 2013 QCCQ 9978

R. c. Sutherland White 2013 QCCQ 9978 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ST-FRANÇOIS LOCALITY OF SHERBROOKE "Criminal and Penal Division" N° : 450-01-072529-113 DATE : August 21 st 2013 ______________________________________________________________________ PRESIDING: THE HONORABLE ÉRICK VANCHESTEIN, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. WINONA L.

SUTHERLAND WHITE Defendant ______________________________________________________________________ JUDGEMENT ______________________________________________________________________ [ 1 ] The night before her arrest, the defendant worked at a restaurant in North Hatley, between 4PM and 11PM. After work, she went to meet a friend in Magog. She arrived there around 11:30PM. They met in a bar and she drank two American light beers. At half past midnight, they decided to play pool and they went to a pool hall located on the main street. For the rest of the evening, the defendant only drank bottled water.

They decided to leave the place around 2AM because she had to wake up early the next morning since her children were going sailing. [ 2 ] On their way back, they decided to stop at the Union Hotel because there was an art exhibit of pictures showing the old Magog and they wanted to see the change between the time she was living there 10 years ago and now. At the hotel, she only used the washroom and had nothing to drink. [ 3 ] As soon as she exited the parking lot, she immediately noticed that a police car was following her.

This situation made her very nervous, as she never had a police officer following her like that before. She had also heard a lot of negative comments about the police in Magog, which made her more and more nervous because they were tailgating her. [ 4 ] Officer Jérôme Boily was driving the patrol car that night. His partner was officer Kevin Richard. Around 2:45 – 2:50AM, he noticed a Ford Escape exiting the parking lot of Place du Commerce, downtown.

When he passed nearby, he immediately recognised the woman who was driving, because he had seen her earlier that night at the Union bar while they were inspecting it. He adds that he noticed her black and white sweater. Officer Richard, however places the intervention at about 2:30 – 2:40AM. [ 5 ] Officer Richard testified that officer Boily explained his decision to follow this car because he recognised the driver who he had seen while she was exiting a bar earlier that night.

Officer Richard can't confirm that they went inside the bar to inspect it on that specific night. [ 6 ] They followed the Ford Escape for a certain number of streets with no more than 2 cars between them. What first attracted their attention was that the driver made abnormally long stops, each stop lasting between 3 and 4 seconds. For them, the driver was travelling abnormally slowly. Finally, she parked the Ford Escape in the back of an apartment building parking lot.

They simply parked their vehicle behind the Escape and went to verify if the driver was impaired. [ 7 ] It was officer Boily who interacted with the driver that night and officer Richard assisted him and was nearby, on the street, for the entire intervention. As soon as officer Boily noticed that the defendant spoke English, he addressed her in English. [ 8 ] When he approached her, he asked for her documentation and she gave her driver's licence, insurance certificate and car registration. He didn't testify that he noticed anything specific when she gave him the documents.

But she was very argumentative from the beginning because she didn't understand why they were following her, why they stopped her. She told them that they were harassing her and she wanted to speak to a lawyer.

[ 9 ] Officer Boily noticed that she had glassy eyes and that she smelled of alcohol. He decided to use an alcohol screening device (ASD) and asked her to get out of the car and come to the back of her car in order to take this test. [ 10 ] The defendant did as she was asked, and at a certain point, she went back to her car, in the driver's position and started searching papers in her wallet.

Officer Boily testified that he stayed there for 3 or 4 minutes watching her and then he asked her to take the ASD test again, otherwise he would consider it a refusal. [ 11 ] She stepped out of the car a second time; she stumbled while she was walking towards the officer. It is noted that the parking lot was in gravel; the defendant explained that, on the night in question, she was wearing cowboy boots that gave her some problems because she had a blister so she had some issues walking.

When officer Boily saw this, he decided that he had sufficient grounds to place the defendant under arrest for impaired driving. [ 12 ] The officers placed her under arrest and, because she was resisting her arrest and was still very argumentative, they handcuffed her and immobilised her. [ 13 ] Officer Boily searched her in the presence of officer Richard and they took her in the patrol car.

There was still a strong smell of alcohol inside the patrol vehicle. [ 14 ] On the way to the station, she was still argumentative, even threatening verbally, stating that her father knows the chief officer of the police in Magog and they will be in trouble, and so forth. [ 15 ] Officer Boily testified that when they arrived at the station, she was walking slowly with a calculated step. They brought her to room 235, a custody room, for her to speak with her attorney. She tried to reach two attorneys before she decided to call legal aid.

She spoke with a legal aid attorney between 3:42 and 3:51AM. [ 16 ] At one point they noticed that the line was not lit and that she was not speaking with anyone. They went in and brought her back to the custody room while they were waiting to perform the breathalyser test. [ 17 ] The certified technician that night was officer Bourdeau. He went in room 235 and with the assistance of officer Richard, explained the process and how to blow in the machine to the defendant.

While he was explaining, officer Richard was translating what Bourdeau said and Bourdeau was demonstrating with the device how to blow in it. [ 18 ] The defendant asked Bourdeau for his qualifications and he showed her his card to prove that he is a qualified technician. In his opinion, she was trying everything she could to buy some time. [ 19 ] For the first test, she was staying too far from the mouthpiece to blow and Bourdeau asked her to come closer to the machine.

While she was doing that, Bourdeau testified that she hit her teeth on the mouthpiece twice, and that she had some difficulty with her perception. She finally blew, but according to Bourdeau, she was partially blowing next to the mouthpiece of the machine because he could feel air on his hand. He printed the results, but he refused it because, according to him, she was not blowing correctly, and not long enough to give a valid sample. The first test took place at 3:59AM. [ 20 ] At 4:10AM, they performed a second test.

Constable Bourdeau testified that she was again blowing next to the mouthpiece, or stopped before they told her to stop and the sample was not sufficient. The print out of this second test stated "échantillon insuffisant" (insufficient sample). [ 21 ] At 4:24AM, they performed a third test after explaining to her the consequences of a refusal or a failure to comply correctly with the demand. The officer also explained that between the first and second test he repeatedly instructed her how to blow and which way to blow.

For the third test, she approached the machine very slowly, took a very good breath and she was breathing very hard but, according to Bourdeau, she was still blowing next to the mouthpiece because he felt air on his hand and even spit. Her cheeks were full of air, but according to him, she was not blowing sufficiently.

He pressed her cheeks to show her how to blow and finally, a result arrived that he also refused considering the way she was blowing. [ 22 ] In cross-examination, officer Bourdeau explained that the defendant had two demonstrations of how to blow in this machine in room 235 and also maybe in front of the machine. [ 23 ] The first and third results showed no warning on the printout that the sample was insufficient and the reason why there is this type of warning on the second test is because she stopped blowing before the prescribed time to blow.

For the first and third tests, officer Bourdeau determined that they were insufficient samples even though the machine doesn't state this. [ 24 ] The explanation he gave in English was using the word blow, but he never stated a complete sentence or never coached her directly to explain that the air has to come from very deep within the lungs. [ 25 ] In her testimony, the defendant explained that apart from the fact that she was upset about being arrested, since from her perspective, there was no reason to arrest her and the fact that she was quite nervous in the presence of the officers at the beginning, she had no reason not to give a good breath sample.

She was positive that she would pass the test since on that specific night, she only had two light beers between 11:30 and 12:30, after that, she only drank water because she knew she was driving and she is very careful not to drink and drive. [ 26 ] So she had no issues giving a breathalyser sample, and for the first test, after she received the explanation from officer Richard, she understood that she was not close enough to the device, but she denies that she hit her teeth with the mouthpiece. For the second test, she filled her cheeks with air, because that's what she understood she was supposed to do.

During the third test, she blew as hard as she could and she didn't understand why the sample would not be good. [ 27 ] The explanation she received was to take a deep breath and blow. So from her perspective and her understanding, she didn't

know the air had to come from the lungs and that's why she was blowing very hard with her cheeks full of air. The third time, she was very determined to do a really good job. She blew as hard as she could and she was still blowing when the officer stopped her. She saw the result and from what she understood, the result was good as it was not over the legal limit. [ 28 ] She admits that she was very argumentative and that in the patrol car, she made some stupid threats about having her father contact the chief of police to get them in trouble.

But again, she repeats that she did not understand why they arrested her and this is the first time in her life that she was arrested by police in this type of situation. [ 29 ] She used to work in a police station for the last ten years before this. Regarding her driving slowly, she said that she didn't know Magog very well, and that the directions were given by her friend who was a passenger in the car.

When she just passed through a stop sign, or she missed a stop sign, it's because she was nervous going by a patrol car and the indication from her friend was not very clear. [ 30 ] She admits that she should have been nicer from the beginning, but she was very upset with officer Boily's attitude who was very forward from the beginning. She also really wanted to blow correctly, since after the first test, she asked Bourdeau what she was doing wrong, he explained to her that she has to fill up her cheeks with air which she did afterwards.

She denies blowing next to the device and she really denies that when she blew, there was spit coming out of her mouth. The reason why she asked to go to the hospital after that was because she wanted to have a blood test to show that she was really not impaired that night. Positions of the parties [ 31 ] On the first count, counsel for the defendant mentions that there is no proof beyond a reasonable doubt that she was impaired on that specific night while she was driving her car.

The symptoms noticed by the officer are not sufficient to prove beyond a reasonable doubt that the defendant was impaired on that night. [ 32 ] On the second count, the defendant had reasons to become very nervous considering the attitude of the officers from the beginning, following her car and what occurred on the premises when they arrested her. But the main point here is that she never had any intention not to blow in the machine. She filled her cheeks with air, from her lungs, and she did the best she could with her understanding of the explanations given.

From her perspective, she said that she did exactly what she was told to do. The fact that she didn't give sufficient breaths is a question of perception. Also here, the defendant gave a very frank version of what occurred that night, and she must be acquitted of this accusation because she never had the intention to refuse or to fail to comply with the demand of giving a sample on the breathalyser. [ 33 ] For the Crown, counsel explained that we have to consider all the symptoms, not one by one, but as a whole.

The entire situation including the attitude of the defendant who was not listening to the information the officers were giving her, that she was very argumentative, in addition to all the other symptoms: the smell of alcohol, the glassy eyes, the fact that she walked slowly, stumbling while walking, all these factors have to be considered as a whole and the crown met their burden that the defendant was impaired that specific night. [ 34 ] Regarding the second count, the defendant had plenty of opportunities to give a good sample.

All the officers present that night gave her all the necessary explanations, more than once, more than is necessary to show her how to use and to blow in the breathalyser machine. There was a physical demonstration by officer Bourdeau and translation of all the explanations by officer Richard. The fact that during the second test she blew next to the mouthpiece shows that the defendant tried to avoid having a valid test. Why would she ask for a last chance after the third test while she had plenty of opportunities to do it properly beforehand?

From the crown's perspective, there was clearly an intention from the defendant not to comply with the demands made by officer Bourdeau and she must be found guilty of that count as well. Analysis The charge of impaired driving [ 35 ] On the first count, the crown has the onus to prove beyond a reasonable doubt that the defendant's ability to drive is impaired to some degree by alcohol or a drug. There must be an impairment of the ability to drive and this impairment must be caused by the consumption of alcohol or a drug.

The court has to analyse all the symptoms put into evidence in the file: the observations of the officers and the defendant's version, to determine if the crown met their burden for this count. [ 36 ] The first thing that the officer noticed is the way she was doing her stop, taking an abnormal length of time (i.e. 3 or 4 seconds). They also noticed that she was travelling abnormally slowly on the road. [ 37 ] The court is not very impressed by those factors.

Concerning the fact that normally, in the daytime, when someone does a stop too quickly, this driver will most probably be arrested because of not properly stopping his vehicle – there is no difference in night time. Doing a stop means that the vehicle has to decelerate to 0 and has to start again. Even though there was not much traffic, or no traffic at all on the street, taking 3 or 4 seconds to do a stop does not seem abnormal for the Court. Also, the fact that she was driving slowly is very easy to explain when you have a patrol car following you or tailgating you like the defendant said.

This could get anyone nervous especially at that time of night while you know that they were probably investigating the license plate and you don't know what will be

the next step. [ 38 ] The defendant also explained that she was not familiar with the area and the passengers guiding her were giving last minute directions.

So from what the witness said, the court fails to see something abnormal in the defendant's driving that night. [ 39 ] The other symptoms noticed by the officers rely mainly on the smell of alcohol, which is not an impairment factor by itself and is not sufficient to determine in this specific case, considering the lack of weight of the other symptoms observed by the officers, that she was impaired. [ 40 ] The other physical symptoms observed concern only the glassy eyes, which could also be caused by many factors other than impairment.

We are not speaking here of any flushed face, slurred speech, to the contrary, officer Richard said that her speech was fine. When officer Boily mentioned that she was unsteady at one point in the parking lot, even if we cast aside the explanation from the defendant that she was wearing boots and she had a blister on her foot, we still have to remember that there was gravel on the ground. Also, this only happened the second time she was called to step out of her car.

So they noticed this unsteadiness only once. [ 41 ] At the station, the officer said that when she exited the car, she was walking calculated steps or slowly. But we can't forget that, first, she was handcuffed and it's not a normal way of walking with cuffs on your hands.

There was no remark on the way she walked back and forth between room 235 and the breathalyser room many times on that specific night and no one noticed anything else about her way of walking. [ 42 ] Considering all the symptoms and the observations noticed by the officers. [ 43 ] Considering the version of the defendant on her alcohol consumption that night, and the other remarks she made on the way she stood. [ 44 ] Taking all the evidence as a whole, the court doesn't find that the Crown met its burden to show that the defendant was impaired by alcohol while she was driving on that specific night of October 9 th and accordingly, she should be acquitted on this count.

The charge of failing or refusing the breathalyser [ 45 ] The infraction of refusal or failing to comply with the breathalyser test is mentioned at section 254(5) of the criminal code and reads as follows: «Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section.» [1] [ 46 ] What the crown has to prove to succeed in obtaining a conviction for this infraction was very clearly established in Lewko [2] of the Saskatchewan Court of Appeal : « 9 The elements of the offence that the Crown must prove beyond a reasonable doubt are three.

First, the Crown must prove the existence of a demand having the requirements of one of the three types mentioned in ss. (2) and (3). Second, the Crown must prove a failure or refusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus).

Third, the Crown must prove that the defendant intended to produce that failure (the mens rea). 10 The proof by the Crown of the three elements (and the defendant's questioning of that proof by combatting the allegations of the prosecution without introducing any further issue) may be looked upon as the first stage of the proceedings. Once the Crown has established the three elements of the offence in question, the defendant is presumed guilty and must be so found unless the defendant raises a defence.

That brings us to what may be looked upon as the second stage in the proceedings, namely, the presentation by the defendant of his/her justifications or excuses - his/her defences. (I use the term "defence" in the narrow sense - for the distinction between the broad and the narrow senses see Glanville Williams, Textbook of Criminal Law (London: Stevens & Sons, 1983) (2d ed.) at 50-51.) In the case of the subject offence, a defendant is able to present not only a defence ordinarily cognizable by law, but a defence constituted by any excuse that is "reasonable".

This is the effect of the use of the phrase "without reasonable excuse" in the context of s. 254(5).» [ 47 ] In

summary, the elements that the Crown has to prove are: 1) that a lawful demand was made; 2) that the accused either refused or failed to comply with the demand; 3) that the refusal or failure was intentional; Once this is established beyond a reasonable doubt, the defendant is guilty unless he/she raises a reasonable excuse. [ 48 ] In the matter under study, we can say that there was a lawful demand because the defendant didn't contest that, the officer had motive to make such demand. [ 49 ] Secondly, it is proven that, the accused failed to comply with the demand on the three times the test was administered. [ 50 ] Third and this is the main point in this case, was this failure intentional?

This third element is the mens rea of the infraction and the Crown still has the burden to prove beyond a reasonable doubt the mens rea of the infraction. [ 51 ] In Sheehan [3] , the court summarised the infractions this way:

«In my view, the actus reus of this offence is the failure or refusal to comply with the demand. 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.» [ 52 ] Recently, in R . v.

Westerman [4] , Justice Duncan in a factual situation similar to the one under analysis in this file, where the defendant testified that he was trying to provide a sample, but wasn't able to do so and couldn't explain why, determined that: «There is no disagreement in the case law that an inability to provide a sample will provide an answer to a refusal charge.» [ 53 ] After analysis, the court in Westerman came to the conclusion that this is part of the mens rea of the refusal offence and not part of a reasonable excuse to be provided by the defendant. [ 54 ] Looking at the facts in this case, from the police officers’ perspective, in their testimony, they tried to establish that she was prolonging the time and by her attitude, while she was upset and in some way aggressive, she did everything in her power not to properly give the necessary sample.

Bourdeau explained that she was blowing next to the mouthpiece and in an inappropriate manner even though, she received the necessary explanations many times. [ 55 ] From the defendant's perspective, she explained clearly that she had no problem taking the breathalyser test because she was positive that she would succeed, considering the fact that she only had 2 light beers at least three hours before. She explained that she tried as hard as she could to blow and she can't explain why the officer refused the test.

Even though Bourdeau, in his testimony concerning the third test confirmed that she was blowing very hard, even if he is claiming it was partially next to the machine's mouthpiece. He is the one who made the decision to stop the test before the machine gave any kind of warning and stopped the defendant from blowing. [ 56 ] The defendant doesn't have to give an explanation as to why the test was refused, and why it was not working that night.

What the court has to determine is: Did the Crown prove the necessary mens rea of this infraction which is an intention to fail or refuse to comply with a demand of the officer to take the breathalyser test. [ 57 ] The court has no reason to reject the defendant's testimony or to not believe that she genuinely tried to give the sample requested. She testified very calmly and explained everything that happened on that night.

She admits her wrongs, and that she shouldn't have acted the way she did that night but she was very upset about the entire situation. [ 58 ] What is important for this charge, is what happened between 3:59 and 4:24 that night while she was trying to give a good sample. [ 59 ] Considering all the evidence as a whole; [ 60 ] Considering the fact that the explanation she received may not have been the best one; [ 61 ] Considering that she tried and the Court believes that she had the intention to give a good sample; [ 62 ] All this raises a reasonable doubt in the mind of the Court and this doubt has to benefit the defendant. [ 63 ] Consequently, the defendant is acquitted on this charge also.

FOR ALL THESE REASONS, THE COURT: [ 64 ] ACQUITS the defendant on both counts. __________________________________ ÉRICK VANCHESTEIN, J.C.Q. Me Jessyca Bergeron Counsel for the prosecutrix Me Mia Manocchio Counsel for the accused Hearing dates : May 21 st and June 3 rd 2013