Her Majesty the Queen - v. -, 2012 SKPC 163

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 163 Date: October 17, 2012 Information: 24435348 Location: Weyburn _____________________________________________________________________________ Between: Her Majesty the Queen - and - Laurie J. Giroux Appearing: Mr. Mitchell Miller For the Crown Mr. Chris MacLeod For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] Laurie J. Giroux is charged that on December 5, 2010, he failed or refused to comply with a demand that he provide a suitable sample of breath in an approved screening device.

Prior to trial, the defence served a Charter notice and prepared to argue several defences. During the course of the trial however, all but two very directly related defences were abandoned. It is very clear that the police officer properly made an ASD demand. Thereafter, Mr. Giroux was given 14 opportunities to provide a suitable sample, and failed and/or refused to provide a suitable sample. The issues are whether Mr. Giroux had the necessary intent to refuse, and/or whether he has a reasonable excuse for failing to provide a sample.

THE EVIDENCE [ 2 ] Cst. Chris Lamontagne was the sole witness for the Crown. He testified that at approximately 1:14 a.m. on December 5, 2010, he stopped the accused’s vehicle to check on his sobriety. The accused was the driver, and he had one passenger. The officer testified that as soon as the accused opened the driver’s door, he detected the smell of alcohol. He asked the accused for his licence and registration. The officer testified that the accused fumbled somewhat attempting to get these out of his wallet. He asked the accused how much he had to drink to which the accused replied “six beer”.

The officer immediately asked the accused to come back to the police car, to make sure that he was okay to drive. The officer had already formed the opinion that the accused had alcohol in his body and was intent on making an ASD demand. [ 3 ] The officer testified that he wanted to get the accused out of his vehicle and away from the passenger, to make sure that the smell of alcohol was coming from the accused. He noticed that the accused’s face was very red, and that he was wearing big work boots.

Further, that the accused walked very slowly and deliberately to the police car, and had some difficulty getting into the back seat. Once in the back seat, and in the enclosed vehicle, the officer could clearly smell alcohol. The officer again asked the accused how much he had to drink and the accused this time replied “eight beer”. They had a discussion about when the accused had his last drink. The officer formed the opinion, and quite justifiably, that the accused had alcohol in his body. The officer made the ASD demand.

The accused clearly understood that he was required to blow in the ASD machine, and asked, “what if I don’t?” The officer advised that the accused could be charged with refusal. [ 4 ] I pause to mention that the in-car video system was operative. The video of what took place in the car was played for the Court, and the DVD was entered as an exhibit. [ 5 ] During these initial stages, the accused indicates that he is on an anti-cancer drug, methotrexate. The officer put a mouthpiece on the machine and explained how it worked. There is a discussion about whether the accused should blow and consequences of refusal.

There is also a discussion about how accurate the machine is. The accused is then given approximately nine opportunities to provide a sample. During most of these opportunities, the police officer is urging, “keep going, keep going ...”. Most of these opportunities end when the accused stops blowing, prior to a suitable sample of breath being blown into the machine. The accused offered an explanation that he couldn’t do it. He explained he couldn’t blow for that long. At one point in time, he stated, “it’s all about the cancer.

It takes your breath away.” [ 6 ] After these first nine opportunities, the officer changed mouthpieces and demonstrated what kind of blow was required and that the machine was operative. He then installed a new mouthpiece, and gave the accused further opportunities to blow. The accused is given another five opportunities. These opportunities also end with the officer saying the accused was stopping too early. The accused again indicated that this was because of his condition for psoriasis and that he was on medication.

Finally the accused stated: “Whatever you want me to do, I’ll do, but I can’t blow.” [ 7 ] After all of these opportunities, the police officer determined that the accused appeared to be in good health, and did not appear to be having any difficulty catching his breath. The police officer determined that the accused was wilfully stopping to blow too early in the process so that a suitable sample could not be obtained. He charged the accused with failure or refusal to provide a suitable sample. [ 8 ] The accused, Laurie Giroux testified.

He advised as to what he did that day with his friend, and that over the course of the day he had six to eight beer. He testified that he did not believe he was intoxicated. [ 9 ] He testified that he had a severe condition of psoriasis. For this, he was prescribed methotrexate. This same drug is used for treatment of cancer, but with much higher doses. This drug has caused him some further problems. In particular, he has been much more susceptible to infections which resulted in further prescriptions for antibiotics.

His counsel entered as an exhibit computer printouts obtained from Saskatchewan Health which detail all of the prescription drugs prescribed to and issued to the accused between January 1, 2010 and January 31, 2011. These records clearly indicate that he was prescribed methotrexate on November 22, 2010 and December 24, 2010.

[ 10 ] He also testified that methotrexate caused him to run out of breath or air much more quickly. It required him to stop what he was doing and catch his breath. He testified that he tried to blow properly, in accordance with the officer’s instructions, and attempted to provide suitable samples. However, he ran out of wind or air and simply could not blow long enough. [ 11 ] The defence also called Dr. John Richardson as a witness. Dr. Richardson has a PhD degree in pharmacology and is a professor in the Department of Pharmacology at the University of Saskatchewan.

He has given evidence in Court on many prior occasions. He was qualified to provide expert opinion evidence to the Court regarding various medications, the reasons or treatment purposes as to why a medication might be prescribed, and the effect of medications on individuals. He testified that in preparation for Court, he reviewed the prescription records for Mr. Giroux, did some library research on drugs and consulted the literature.

He had some familiarity with all of the drugs that we would discuss, but wanted to make sure he had up-to-date information on such drugs. [ 12 ] Professor Richardson advised that methotrexate blocks an enzyme needed for DNA. This reduces the body’s production of DNA and slows the reproduction of cells. As a result it can be an effective drug to treat certain conditions where rapid cell reproduction is a problem. For this reason, it is sometimes prescribed to deal with psoriasis and in larger doses is prescribed as a cancer treatment.

He advised that this drug can cause irritation of the stomach, and will frequently result in an individual feeling nauseous and experiencing flu like symptoms. He also advised that this drug will slow the reproduction of the white blood cells or immune cells making an individual subject to “opportunistic infections of the lungs, eyes and skin”. To deal with the opportunistic infections, it is often necessary to prescribe antibiotics. [ 13 ] Dr. Richardson also indicated that methotrexate can alter the function of the lungs, by causing increased fluid in the lungs and reducing lung volume.

He indicated that some of the literature speaks of methotrexate causing a thickening of the bronchial tubes, which in turn narrows those tubes and makes it more difficult to breath. He indicated that decreased lung volume would result in less air to exhale and thickening of the bronchial tubes would result in it being more difficult for an individual to maintain certain air pressure when exhaling. [ 14 ] Under cross-examination by Crown counsel, Dr. Richardson agreed that according to the studies, the incidents of lung problems resulting from methotrexate varied between three and thirty-three percent.

In other words, somewhere between three and thirty-three percent of the individuals that were prescribed methotrexate, would actually experience some form of lung problem. Dr. Richardson also agreed that he has never examined or performed any tests upon the accused Laurie Giroux. He agreed that he could not determine or say that Mr. Giroux personally experienced any lung problems as a result of methotrexate. He could only say that it is possible that Mr. Giroux suffered from some decreased lung volume as a result of his use of methotrexate. [ 15 ] The defence also called as a witness Dr.

Karen Holfeld, who also presented a written report. Dr. Holfeld is a physician and a dermatologist. Her written report reads in part as follows: I first began treating Laurie for his psoriasis at my Regina office in 2006 ... I then started on treatment with methotrexate on January 28, 2010. He was initially on 15 milligrams per week for six weeks and this dose was increased to 25 milligrams per week six weeks later. He continued on this dose until February 4 in 2011, when it was temporarily stopped due to possible drug interaction.

He had been started on new medications which included losec and diclofenac and it was felt that his elevated liver enzymes could be secondary to these drug interactions. He also complained of persistent upper respiratory tract infections and breathing difficulty. His complaints were rather vague, and I advised him that if he was having significant problems that he should consult his family physician. He restarted on methotrexate on February 22 when his psoriasis began to flare again.

However, on March 24, 2011, he again complained of what sounded like an upper respiratory tract infection for the past couple of weeks and also stated that he felt “terrible” while taking methotrexate. Again, his symptoms were very vague and sounded more like general malaise. Because of his described symptoms, the methotrexate was discontinued and consideration for treatment with a biologic was made. [ 16 ] Crown counsel, Mr. Miller, had Dr. Holfeld review her notes to look for the first mention by Mr. Giroux of respiratory problems.

Her notes indicated that the first complaint of respiratory problems was made on February 4, 2011. She indicated that the complaints were vague and did not sound urgent. As a result, she recommended that he speak with his family physician about the matter. She also indicated that in February 2011, Mr. Giroux made no mention of this charge. ANALYSIS

[ 17 ] Both counsel referred to the case of R. v. Lewko , 2002 SKCA 121 , as setting out the law in this area. At paragraphs 9 and 10 of that decision, the Court of Appeal stated as follows: [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 demand having the requirements of one of the three types mentioned in subsection 2 and subsection 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 narrow senses; see Glanville Williams ’ Textbook of Criminal Law (London: Stevens & Sons, 1983) (2 nd edition) 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 section 254(5). [ 18 ] At paragraphs 19 and 20 of that case, the Court goes on to say that the defence has an evidentiary burden to raise the reasonable excuse. It indicates that this evidential burden is simply to raise a reasonable doubt. At paragraph 20, the Court indicates that the defence must raise evidence either through examination-in-chief or cross-examination that meets the air of reality test, and raises a reasonable doubt. [ 19 ] As mentioned, both counsel referred to the Lewko decision.

Crown counsel also referred to R. v. Piotrovich , 2004 SKPC 58 , as an example where her Honour Judge Whelan applied the air of reality test, determined that the defence evidence did not meet this standard, and accordingly a conviction ensued. [ 20 ] I begin by noting that no one single fact is determinative of whether a Court will decide that defence evidence has or has not an air of reality.

To the contrary, the Courts consider the totality of the evidence in reaching this determination. [ 21 ] Having said this, however, there are various cases where the Court noted that an accused had employed various different excuses or tactics to avoid providing a sample. For example, would not seal his lips on the mouthpiece and would blow around the mouthpiece, and on other occasions would simply stop blowing or come up with other excuses. In such cases, the Courts have often seized upon the use of various reasons as indicating there was no air of reality to the defence evidence.

In this case however, it must be noted that the accused was quite consistent in saying that he ran out of air and did not have sufficient breath to blow. His evidence in this respect is consistent with the police officer’s evidence that the accused repeatedly stopped prior to a sufficient sample being obtained. [ 22 ] In other cases, such as in the Piotrovich case, the accused failed or refused to blow, but did not indicate there was any impairment to his breathing and did not assert any medical condition.

In the Piotrovich case, where no mention of these factors was made during the incident, but the accused testified to these factors, her Honour Judge Whelan determined that the defence evidence did not have an air of reality. In this case, the accused repeatedly indicated that he did not have sufficient air or breath and mentioned that he was on medication.

He got into the witness box and testified to these same facts. [ 23 ] In other cases, there is a bald assertion by the accused as to a medical problem impairing his ability to provide a suitable sample, but no indication that the accused has ever sought medical attention for this condition, and no medical evidence of any medical condition which could affect his ability to provide a suitable sample. In this case there is expert evidence which confirms that the accused was on methotrexate and that in some cases this drug has caused respiratory problems.

Crown counsel did a very effective job in this cross-examination of the expert witnesses. The experts clearly admitted that not in all cases does a recipient of this drug suffer a respiratory problem. Rather, respiratory problems seem to occur somewhere between three and thirty-three percent of the time. The doctors also admitted that they had not specifically examined Mr. Giroux for respiratory problems, and could not say that he suffered from any particular respiratory problem. Mr.

Miller argues that this evidence is not sufficient to establish a reasonable excuse and provide this accused with a defence to the charge.

[ 24 ] I am not sure how any medical professional could testify that Mr. Giroux suffered from a respiratory problem on the date of the offence, unless there was evidence of some residual damage to the respiratory system. This fact and the above quoted passages from the Lewko decision cause me to conclude that the Crown is attempting to set the burden upon the defence much too high. In my view, the defence is not required to establish as fact that there was a respiratory problem that prevented Mr. Giroux from providing an adequate sample.

The defence was only required to raise a reasonable doubt. [ 25 ] I cannot conclude that the accused was not able to provide a suitable sample because of a respiratory problem. I also cannot conclude that the accused did not have any respiratory problem, affecting his ability to blow. What I can conclude and do conclude is that the evidence of Mr. Giroux to the effect that he had a respiratory problem preventing him from providing an adequate sample of breath, could reasonably be true.

This means I have a reasonable doubt about the matter, and must find the accused not guilty of the charge. [ 26 ] Dated at Weyburn, Saskatchewan this 17 th day of October, 2012. D. Kovatch, J