Jacob Alexander Strang Appellant v. Her Majesty the Queen Respondent Decision Judge: The Honourable Justice Glen McDougall, 2020 NSSC 4

SUPREME COURT OF Nova Scotia Citation: R. v. Strang , 2020 NSSC 4 Date: 20200107 Docket: 482705 Registry: Halifax Between: Jacob Alexander Strang Appellant v. Her Majesty the Queen Respondent Decision Judge: The Honourable Justice Glen McDougall Heard: April 12, 2019, in Halifax, Nova Scotia Counsel: Nicholaus Fitch, for the Appellant Katrina Trask, for the Respondent By the Court: Introduction [ 1 ] Jacob Alexander Strang (the “Appellant”) was charged with: 1. Having the care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or drug, contrary to Section 253(1) (

a) of the Criminal Code (the “ Code ”); and 2. That he did, without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer to provide forthwith such a sample of his breath necessary to enable a proper analysis of the breath to be made by means of an approved screening device, contrary to Section 254(5) of the Code . [ 2 ] After trial before Nova Scotia Provincial Court Judge, the Honourable Michael B. Sherar, the Appellant was acquitted of the impaired driving charge but found guilty of refusing to comply with a lawful demand made under

Section 253 , subsection (2) of the Code . [ 3 ] The conviction was entered after a defence motion for a directed verdict was denied by the Learned Trial Judge. The defence elected not to call evidence relying solely on the results of the motion for a directed verdict to determine the outcome of the case. [ 4 ] The motion asking for a directed verdict was based on the defence argument that the Crown had failed to prove an essential element of the charge. Defence counsel articulated it this way:

“I would make a Motion for directed verdict on the basis that in a case like this the Crown has to prove the device was approved.” [see page 58, line 11-13, of the trial transcript for August 2, 2018.] [ 5 ] Counsel went on to add: “They can do that in one of a couple ways. If the device’s actual name is not used, then by saying it’s approved, that will do it. But when the device is actually listed, they have to – it has to be one of the devices that are approved by

Section 254.” [ 6 ] After hearing oral arguments from Crown counsel, the Learned Trial Judge asked for written briefs and adjourned his decision to a date in October, 2018. [ 7 ] In giving his decision Judge Sherar first reviewed the evidence presented at trial. He then went on to refer to some of the existing jurisprudence before arriving at the following decision: “Thus, in a charge under

Section 254 Subsection 5, the question of whether the device used was an Approved Screening Device only becomes an issue if the Defendant raises the defence that he refused to comply with the demand because the instrument proffered to him was not an approved screening device and he in fact proved that it was not an Approved Screening Device. Here, the accused, Mr. Strang, did not raise that issue as a reasonable excuse for allegedly non compliance with the demand to provide a sample of his breath in an Approved Screening Device.

So the Crown need not prove that the device presented by Constable Turner and Upshaw was an Approved Screening Device.

So ordered.” [See p. 15, lines 6-21, of the Trial Transcript for October 22, 2018.] Grounds of Appeal [ 8 ] This decision was appealed on the following ground: “Did the learned Provincial Court Judge Sherar [err-sic] by finding that the crown need not prove the device was an approved screening device and therefore an essential element of the offence under s. 254(2)?” Brief Overview of the Facts [ 9 ] The evidence at trial was laid out by the trial judge in giving his ruling, as follows: Briefly, the evidence of the arresting officer, Constable Turner, was that the accused, Mr.

Strang, was operating a VW Jetta motor vehicle. And at 11:00 p.m. on May 13 th , 2018 the – the officer observed the vehicle make an illegal left turn at an intersection in the north end of Halifax, Nova Scotia. The officer pursued the vehicle and – and a stop resulted at 23:05 hours; the officer identified the accused as the driver. After requesting documentation from the driver, Constable Turner detected the smell of alcohol coming from the driver’s breath.

Constable Turner suspected that the accused had alcohol in his body and at 23:10 made a demand of the accused to provide a sample of his breath in a roadside screening device. Constable Turner has been a police officer since 2006 and has been trained to operate the roadside screening device. Constable Turner stated that Constable Upshaw was on scene and had a device, he described as an Alcotester 0086. The officer explained to the accused that he required a long continuous breath to provide an accurate sample.

The accused agreed to take the test and attempted to blow into the machine at 23:16, 23:17, 23:18, 23:20, and 23:21. At that point, the officer felt that the accused was not taking the test seriously and he warned the accused if he didn’t comply he would be charged, and he offered hi one last attempt. Finally, at 23:23 hours the accused blew insufficient air, in the opinion of the officer. The officer testified that the accused would blow quickly from one to three seconds each time and not the seven continuous seconds required to provide a valid sample.

He purported – the purported efforts were described as being more like giving a puff rather than a continue – required continuous breath sample. Constable Turner said it only took three minutes from the time that he made the demand upon the accused until the accused was presented with an Approved Screening Device; which he once again descried as an Alcotest 0086. Constable Tuner agreed that the accused never said that he was refusing to provide a sample. The officer also did not record or note the error codes on the machine after each aborted attempt by the accused.

Constable Upshaw testified that he was on scene between 23:10 and 23:11 hours with the Approved Screening Device. He overheard Constable Turner make the demand on the Defendant and observed the Defendant – the Defendant’s several attempts. And each time the accused, in his opinion, did not provide a proper sample for analysis. Constable Upshaw also indicated that Constable Turner had initially blown into the ASD and produced a zero zero result – he heard – that which he heard.

Constable Turner explained to the Defendant what was required and Constable Turner put a new mouthpiece into the machine before introducing the machine to the accused. Constable Upshaw also observed that the accused blew shorter breaths than the machine required for a proper sample to be obtained. [ 10 ] I accept the foregoing as a proper

summary of the evidence presented at trial. Standard of Review

[11] On appeal, questions of law are reviewed on a standard of correctness. Findings of fact are shown deference unless the trier offact made a palpable and overriding error. Where there are questions of mixed fact and law, the standard of review remains palpable andoverriding error except where such a question includes an error in principle that is properly characterized as an error of law. [Forreference, see Housen v.

Nikolaisen, 2002 SCC 33, 2002 CSC 33, at paras 8, 10 and paras. 36 and 37] Appellant’s Argument [12] Counsel for the Appellant referred to a number of previously decided cases that found there was a requirement for “the Crownto prove beyond a reasonable doubt that the device into which the defendant allegedly failed to provide a sample was in fact an approveddevice.” [See R. v. Bond, [2006] N.S.J. No. 142, at para. 14; see also R. v. LeBlanc, [1987] N.S.J. No. 568, at para. 7] [13] The Appellant also relies on case decisions, such as R. v. Kosa, [1992] O.J. No. 2594 (Ont.

C.A.) (“Kosa”), which can be easilydistinguished on the facts but which, nonetheless, says: “… The Appeal Court judge made a finding that the onus was on the Crown to prove that the device was an approved one. Althoughsuch an onus might exist in certain circumstances [emphasis added] where a failure to comply with the demand under s. 254(2) ischarged, it is not relevant in this case.” [14] I do not think it necessary to review all the cases cited by counsel for the Appellant.

They do, however, represent a line ofauthority that contrasts with the cases cited by counsel for the Respondent. [15] On the facts of the case under appeal and for the reasons that follow, I am not persuaded as to the merits of the Appellant’sarguments. I will now look at some of the cases offered in support of the Respondent’s arguments. Respondent’s Arguments [16] Crown Counsel has cited a number of case authorities which suggest that proof the device used was an “approved screeningdevice” is not an essential element of the offence under Sections 254(2)(

b) and 254(5). Although, as indicated previously, Kosarecognizes that there might be instances where the Crown has to prove that the device was an approved one it is not an imperative inevery case. In restoring the decision of the Trial Judge, the Ontario Court of Appeal stated: “It is clear from the evidence that the constable was of the opinion that the screening device used by him was an approved screeningdevice and that, the demand having been made by him and complied with by the respondent, the device registered a “failure”.

On thesefacts the trial judge was entitled to make the findings of reasonable and probably grounds as aforesaid.” [17] The Appeal Court went on to say: “In our view there was no basis in the evidence for the

Summary Conviction Appeal Court judge to reverse the trial judge on that findingof fact.” [18] The Crown’s position, as set out in para. 25 of her Brief, is as follows: 25.

As such, it is the Crown’s position that there are three, and sometimes four, essential elements to an offence under s. 254(5);namely; 1. a proper demand – in this case pursuant to s. 254(2)(b)); *** mistake 2. a refusal or failure to comply with said demand; 3. an intention to refuse or fail to comply with the demand; and, 4. and absence of a reasonable excuse for the refusal or the failure to comply, if the same has been establish, on a balance ofprobabilities, by an accused. [19] And, while recognizing that there may be cases where the Crown might be required to prove that a device is in fact an approvedscreening device, this is not such a case.

As support for her position she cites the case of R. v. Lewko, 2002 SKCA 121, where at para. 9,Bayda, C.J.S., said this: “The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existenceof a demand having the requirements of one of the three types mentioned in ss. 92) and (3). Second, the Crown must prove a failure orrefusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus).

Third, the Crownmust prove that the defendant intended to produce that failure (the mens rea).” [20] As further support for the her position, Crown Counsel pointed out that the British Columbia Court of Appeal, in R. v. Goleski,2014 BCCA 80, at para. 71, cited the above with approval and added: “As discussed in Lewko at para. 9, the elements of the offence that the Crown must prove are: (

i) a proper demand; (ii) a failure orrefusal to provide the required breath sample; and (iii) an intention to fail or refuse to provide the required sample. In R. v. Moser(1992), (ON CA), 71 C.C.C. (3d) 165 (Ont. C.A.), at 176, Mr. Justice Doherty said this:

The essential elements of the offence described in s. 254(5) consist of a proper demand and a refusal or failure to comply with thatdemand. The defence of “reasonable excuse” is not a denial of either of those essential elements but refers to “matters which standoutside the requirements which must be met…before a charge can be supported”: per Laskin J. in Taraschuk v. The Queen (1975), (SCC), 25 C.C.C. (2d) 108 at p. 110, 62 D.L.R. (3d) 84, [1975] 1 S.C.R. 385.

The defence of “reasonable excuse” is engagedonly after the Crown has proved a proper demand and a failure or refusal to comply with that demand.” [21] The BCCA decision goes on to quote from a decision of The Honourable Wayne Gorman of the Newfoundland and Labrador Provincial Court in R. v. Sheehan (2003), 35 M.V.R. (4th) 61 where, at para. 42, he wrote: [42] In my view, the actus reus of this offence is the failure or refusal to comply with the demand. The mens rea element requiresthat the failure or refusal to comply be intentional.

Therefore, a person who fails to provide an appropriate sample despite genuinelyattempting 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 withwhether or not the accused had a reasonable excuse. [22] I will look at another decision of Judge Gorman, R. v. Oram, 2015 CarswellNfld 346, later in my decision. The factual scenarioin that case is essentially identical to the facts as found by Judge Sherar in this case. [23] Another case advanced by the Crown to support its position is the case of R. v. Delorey, [1981] N.S.J.

No. 58, a decision of theNova Scotia Supreme Court – Appeal Division. The unanimous decision authored by Coffin, J.A., and concurred in by MacKeigan,C.J.N.S., and Pace, J.A. adopted the reasoning of Hughes, J. in the case of R. v. Reimer (1980), (SK KB), 4 M.V.R.270 (Sask. Q.B.), where, at pp. 271, the Learned Trial Judge stated: “On a charge of refusing to comply with a demand to submit to a test using a roadside screening device contrary to s. 234.1 of Cr.

Codethere is no requirement that the Crown prove that the roadside screening device that would have been used had the accused agreed to thedemand was an approved device – To hold otherwise would be to require the Crown to cross a barrier without any useful purpose beingthereby served.” [24] In granting the appeal and restoring the conviction that had been overturned at the first level of appeal, Coffin, J.A., at para. 22,stated: 22 In my view the reasoning of Mr. Justice Hughes is common sense, and the trial judge in the present case was right in convictingunder the facts before him.

Here the respondent knew he was being asked to take and A.L.E.R.T. test. He requested to see the machineand it was handed to him. If he had happened to know that the machine was not in fact one approved for use in a roadside test, and if heso proved that at the trial, he might, as suggested in Reimer, have established a “reasonable excuse” for refusing to take the test. Again,if the thing presented to him had not looked like a breath sampling machine at all, he might, depending on the facts, be able to establish a“reasonable excuse” for refusing.

No such excuse was raised or proved by the accused in this case. [25] The decision in Delorey, supra, was referred to by former Chief Judge of the Nova Scotia Provincial Court, the HonourablePatrick Curran, in R. v. LeBlanc, [1987] N.S.J. no. 568, however he distinguished that case in acquitting Mr. LeBlanc. At paras. 6 and 7,Judge Curran, said the following: 6 I am aware of the case of R. v. Delorey (1981), (NS CA), 9 M.V.R. 94. That was another case in which therewas an actual refusal. Mr.

Justice Coffin referred to the absence of proof that the device in question was an approved one and seemed tosay that the only significance of that was in relation to arguments that there was a reasonable excuse for refusing. Such an argumentwould arise if it were shown that the accused person was familiar with the devices and knew the one presented to him was not approved. 7 I do not believe that the Delorey case is applicable to a situation in which there was an actual attempt to provide a sample.

Whenthere is some sample provided or attempted to be provided, it is part of the Crown’s case to show that the device into which the samplewas received was one capable of measuring the sample. There must be some way of knowing just how much of a sample is required tomake any particular device work. I cannot take judicial notice of the fact that all of these machines require six to eight seconds, or anyother particular length, of breath to be introduced in them before they are properly activated.

It is part of the Crown’s case to show thatthe device used has been approved and that is requires a certain amount of breath for a certain length of time before it is capable ofproviding an analysis. Disposition [26] Given the clear findings made by Judge Sherar in the case now under appeal, wherein he determined that “the accused (now theappellant) did not fully comply and he was feigning (sic) an attempt”, he, rightfully in my opinion, relied on the Delorey decision.

Assuch, he concluded there was no need to prove that the device used was an approved screening device. [27] While there were other cases relied on by both the appellant’s counsel and counsel for the responding Crown, I do not think itnecessary to review each and every one of them. [28] Earlier in my decision I referred to a decision of Newfoundland & Labrador Provincial Court Judge Wayne Gorman. Thatdecision cited as R. v.

Oram, 2015 CarswellNfld 346 provides a very succinct review of the jurisprudence which led the Learned TrialJudge to “conclude that proof that an approved screening device was utilized is not an element of an offence pursuant to sections 254(2)(b) – 254(5) of the Criminal Code.” [Reference to para. 46 decision denying a defence motion for a directed verdict.] I agree with JudgeGorman’s

interpretation of the law and his reasons for reaching the decision he made in that case. [29] In the instant case, Judge Sherar quite properly concluded that the evidence of the police officer who pulled over the appellantfor making an illegal left turn had made a lawful demand and he and another police officer who showed up within minutes of the stopestablished that, despite the six chances afforded the appellant to provide a proper breath sample, he was clearly, to use the words of thetrial judge, “feigning”. In my view, this failure to comply is equivalent to a refusal. It amounts to an offence.

And since no evidencewas led by the defence to prove, on the balance of probabilities, that he had a reasonable excuse for his failure or refusal to comply with

the demand, the verdict by the trial judge was appropriate. As such, the appeal is dismissed. McDougall, J.