Her Majesty the Queen - v. -, 2015 SKPC 73

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 073 Date: May 13, 2015 Information: 43175563 Location: Saskatoon __________________________________________________________________ Between: Her Majesty the Queen - and - Breanne Baron Appearing: Tom Macnab For the Crown George Coombe For the Accused JUDGMENT S.L. METIVIER , J I INTRODUCTION [ 1 ] The accused, Breanne Baron, is charged that on or about October 10, 2014, she did, without reasonable excuse, fail or refuse to provide a sample of her breath suitable for analysis by means of an approved screening device contrary to s. 254(5) of the Criminal Code .

[ 2 ] Section 254(5) of the Criminal Code provides that: 254(5) Everyone 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. [ 3 ] The Crown called three witnesses: Cst. Mann, Sgt. Amyotte and Cst. Adrian. The accused testified in her defence. [ 4 ] The accused was involved in a single vehicle accident in Saskatoon, Saskatchewan.

Sometime around midnight, she took the exit off Circle Drive southbound onto College Drive too fast, lost control of her vehicle and collided with a concrete median under the Circle Drive overpass. [ 5 ] Police arrived at the scene of the accident at 12:13 a.m. After speaking with the accused, Cst. Adrian made an Approved Screening Device (ASD) demand.

Following numerous failed attempts to obtain a sufficient sample, the accused was placed under arrest for failure or refusal to comply with a breath demand. [ 6 ] The accused argues that she was willing to provide a breath sample, but was unable to do so due to her emotional state at the time and a rib injury caused by the accident. [ 7 ] The elements of the offence that the Crown must prove beyond a reasonable doubt are: 1) a lawful or proper demand by the police officer; 2) a failure or refusal to provide a breath sample (the actus reus ); and 3) the intention to refuse (the mens rea ).

See: R v Lewko , 2002 SKCA 12 , at para 9 [ Lewko ] . [ 8 ] Once the Crown is successful in establishing the above noted elements, then the accused is presumed guilty unless he or she raises the defence of a “ reasonable excuse ” not to provide a sample. See: Lewko , at para. 10 . [ 9 ] In the present case, there is no dispute that the accused failed to provide a suitable breath sample for analysis (the actus reus). The issues in this case are: 1. Did the police officer have the lawful grounds to make the ASD demand? 2.

Did the accused intentionally fail to provide an adequate sample of her breath for analysis (the mens rea )? 3. Does the accused’s anxiety combined with rib pain constitute a reasonable excuse? ANALYSIS 1. Did the police officer have the lawful grounds to make the ASD demand? [ 10 ] Section 254(2) (

b) of the Criminal Code provides that: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has,

within the preceding three hours, operated a motor vehicle … the peace officer may, by demand, require the person to comply withparagraph (a) … and (b), in the case of alcohol: … (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [11] The requirements for a valid s. 254(2)(

b) demand are that: (

i) the police officer must subjectively (or honestly) suspect the detained driver has alcohol in their body; and (ii) the police officer’s subjective suspicion must be based on a constellation of objectively verifiable circumstances, whichcollectively indicate that the suspicion that the detained driver has alcohol in their body is reasonable. See: R v Yates, 2014 SKCA 52, atpara 33 [Yates]. [12] When Cst. Adrian first arrived at the scene, the accused was sitting on a concrete barricade undergoing medical assessment bythe fire department and MD Ambulance.

He looked at the scene and observed that the vehicle had incurred extensive damage to itsfront end, there were fluids leaking underneath, damage to the front windshield and the driver’s side air bag had deployed. The weatherand road conditions were good. [13] Cst. Adrian spoke to the accused after she was done with the medical assessment. He observed that her finger wasbandaged, there was a small injury near her right ear, and she had glossy eyes. The accused stated that she had two glasses of wine withsupper around 5:30 p.m. Cst.

Adrian noticed that her speech was slow and deliberate while she answered simple questions about hername, birthday and address. He made an ASD demand at 12:24 a.m. [14] In Yates, the Saskatchewan Court of Appeal applied the following test for assessing whether the police officer’ssuspicion is reasonable: would a reasonable person, standing in the shoes of the officer and aware of all of the objective factors hearticulated, reasonably suspect the person had alcohol in their body when the officer made the s. 254(2)(

b) demand? [15] The standard of reasonable suspicion is considerably less onerous than that of reasonable grounds. In R v Drysdale,2013 SKQB 392, the officer based her suspicion on the time of night, the location (leaving the bar), and the admission of one drink. Thetrial judge found that these circumstances were not sufficient to ground a reasonable suspicion and excluded the results of the ASD test. On appeal, the Court found that the totality of the circumstances within the knowledge of the police officer did meet the lower threshold. [16] In the present case, Cst.

Adrian based his suspicion on the time of night, glossy eyes, slow deliberate speech, anadmission of two drinks, and an avoidable collision. I am satisfied that a reasonable person, standing in the shoes of the officer, wouldreasonably suspect that the accused had alcohol in her body. I therefore conclude that the officer honestly suspected that the accused hadalcohol in her body, and that his suspicion was objectively reasonable. 2.

Did the accused intentionally fail to provide an adequate sample of her breath for analysis? [17] The accused admits that she was given numerous opportunities to comply with the breath demand. She testified thatshe tried her best, but was unable to blow long or hard enough to provide an adequate sample due to the combined effect of a rib injuryand anxiety. In determining the intention of the accused, I must remain mindful of the principles in R v W.(D.), (SCC),[1991] 1 SCR 742. [18] Sgt.

Amyotte testified that providing a suitable breath sample for the ASD requires a long steady breath for eight toten seconds; not blowing long or hard enough results in an error message.

[ 19 ] The first attempt to administer the ASD occurred at 12:26 a.m. Cst. Adrian instructed the accused to take a deep breath, seal her mouth around the mouthpiece and provide a strong steady sample of breath until she was told to stop. The first attempt resulted in an error message. [ 20 ] Cst. Adrian repeated the instructions to the accused and made a second attempt to administer the ASD at 12:26 a.m. The second attempt also registered an error message. [ 21 ] Prior to the third attempt, Cst.

Adrian changed the mouthpiece out of an abundance of caution to ensure that it was not causing any difficulty with the breath sample. The third attempt was again unsuccessful. [ 22 ] By this point, Cst. Adrian was wondering if the accused was truly trying to provide an adequate sample. At 12:30 a.m., he placed the accused in the back of the patrol car so that their interactions would be recorded. He tried the ASD himself to ensure that it was working and to demonstrate to the accused how it is done. Cst. Adrian and Sgt.

Amyotte both explained to the accused that she would be charged with refusal if she didn ’ t comply. The accused was given several more opportunities to provide an adequate breath sample. Cst. Adrian encouraged her throughout the process. While the majority of failures occurred because the accused did not blow long or hard enough, it appeared to Cst. Adrian that the accused was trying less and less. He testified that on one occasion, the accused tilted her head back and, on at least two occasions, did not seal her lips properly around the mouthpiece. [ 23 ] Cst.

Adrian did not make any observations of the accused that indicated she had any difficulty breathing. When he asked the accused if there was any medical reason why she could not provide a proper sample, she repeatedly stated that she was doing the best she could, but was feeling overwhelmed and in shock. She did not complain of any pain or discomfort. [ 24 ] At 12:38 a.m., Cst.

Adrian arrested the accused for refusal, read her the standard rights and warnings and transported her to the police station. [ 25 ] The accused testified that she was at her ex-boyfriend ’ s house prior to the accident, arriving there at around 4:30 p.m. She left his house around midnight in an emotionally distraught state due to a lengthy and heated argument. [ 26 ] The accused acknowledged that she took the ramp off of Circle Drive too fast, lost control of the car and crashed into the concrete meridian. The driver ’ s side air bag deployed, releasing dust particles into the air.

She opened the car door to let out the dust, but remained seated in her vehicle until a passerby helped her out of the vehicle and called 911. [ 27 ] The accused testified that she has battled with anxiety all her life, and that it causes her to lose hold of her emotions. She has taken Prozac in the past, but was not on any medication when these events took place. [ 28 ] The accused recalled that the fire department and MD Ambulance checked her neck and back for injury. When they asked her if she wanted to go to the hospital, she said “ no ” because she wanted to go home.

She testified that she had a few cuts, but felt the most pain in her rib cage. When asked why she didn ’ t mention that she had rib pain to MD Ambulance and the fire department, she said that she was not focussed on the pain at the time due to the “ adrenaline ” . [ 29 ] The accused testified that she was not necessarily short of breath, but had trouble producing a deep and extended breath for the ASD. She agreed that she did not mention any pain or discomfort to the police officers, but explained that the pain was not registering with her because she was feeling overwhelmed.

She says that she knew she was in pain, but thought it was “ normal pain ” and that because of her anxiety, it never occurred to her that the pain was preventing her from taking a deep extended breath necessary for the ASD. [ 30 ] The accused acknowledged that she failed to properly seal her lips around the mouthpiece and tilted her head; she was feeling lightheaded and discouraged by the last few attempts and started to give up.

[31] On October 13, 2014, the accused went to a minor emergency clinic for assessment and treatment of her injuries. She reported right side rib pain aggravated by coughing, sneezing, or taking a deep breath. The medical report entered into evidenceindicates that she likely had a rib fracture. X-rays were not obtained as it would not affect the overall management of the injury. [32] The evidence establishes that the ASD was in working order. The accused was given clear instructions andnumerous opportunities to provide a suitable sample.

In addition to not blowing long or hard enough the accused threw her head backand, on more than one occasion, failed to seal her lips around the mouthpiece. I am satisfied that the Crown has established the mensrea of the offence beyond a reasonable doubt. 3.

Does the accused’s anxiety combined with rib pain constitute a reasonable excuse? [33] In Lewko, the Saskatchewan Court of Appeal proposed a three stage process for analysing the defence of areasonable excuse: first, the defence carries an evidential burden of raising something that is capable of being a reasonable excuse;second, the “something” must be capable of being a reasonable excuse at law; third, the Crown carries the persuasive burden ofestablishing that the facts do not operate in favour of the accused. [34] The accused has met the evidential burden of raising her emotional state and rib injury as a “reasonable excuse”.

Aperson’s medical or psychological condition have previously been found capable of constituting a reasonable excuse in law. See: R vCampbell, 1978 ALTASCAD 123 , [1978] AJ No 966 (CA); R v Dolphin, 2004 MBQB 252. [35] A “reasonable excuse” is one that renders compliance with the demand either extremely difficult or likely to involve asubstantial risk to the health of the person on whom the demand has been made. See: R v Nadeau (1974), 19 CCC (2d) 199. [36] The accused’s evidence that she suffered a broken rib is consistent with the motor vehicle accident and consequent release of the driver’s side air bag.

I do not attach significant weight to the medical report given that there were no x-rays taken and thediagnosis is based on self-reporting by the accused. [37] Even if I accept the accused’s testimony regarding the rib injury, that still leaves the question whether the rib injury made itextremely difficult for the accused to provide a breath sample. In that regard, I did not find the accused to be a credible witness. I foundher reasons for not feeling the rib pain, first adrenaline, then anxiety, the product of creative afterthought.

Her testimony that she“winced in pain” yet, at the same time, failed to register that the pain was connected to her ability to blow into the ASD is inconsistentand quite frankly, unbelievable. [38] For the reasons stated above, I reject the accused’s evidence that a rib injury prevented her from blowing enough airinto the ASD and conclude that the defence of a “reasonable excuse” has no application in this case. [39] I find the accused guilty. ______________________________ S.L. Metivier, J