Her Majesty the Queen - v. -, 2021 SKPC 12

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 12 Date: January 26, 2021 Information: 90191066 Location: Kindersley _____________________________________________________________________________ Between: Her Majesty the Queen - and - Darcy Lynn Sweet Appearing: Janyne Laing For the Crown Ian Mokuruk For the Defendant Decision M.F. MARTINEZ , J INTRODUCTION [ 1 ] Darcy Sweet is charged with refusing or failing to provide a breath sample into a roadside alcohol screening device [ ASD ] contrary to s. 320.15(1) of the Criminal Code [ Code ]. The Crown proceeded by

summary conviction. [ 2 ] Her trial began as a voir dire because she alleged that the police had infringed certain of her rights protected under the Canadian Charter of Rights and Freedoms [ Charter ]. Ultimately, she abandoned her application under the Charter . Consequently, the voir dire evidence became evidence in her trial proper.

[ 3 ] After the Crown closed its case, and after the defendant testified, she submitted that I should dismiss the charge against her for the following reasons: 1) She was not legally compelled to provide a sample of her breath because the police officer’s demand such a sample [ breath demand ] was not lawful as it did not comply with the immediacy requirements of s. 320.27(b). 2) Alternatively, if I conclude that the breath demand was lawful:

a) the Crown has not proven beyond a reasonable doubt that she intentionally refused or failed to supply a breath sample, or

b) she had a reasonable excuse for failing to provide a breath sample. FACTS AND TIMELINE [ 4 ] The Crown’s case consisted of the testimony of R.C.M.P. Constables Dunlop and Wilson, and the audio/video recording from Cst. Dunlop’s police vehicle [the recording ]. [ 5 ] Cst. Dunlop was about two months out of training and posted to the R.C.M.P. detachment in Kindersley, Saskatchewan. Her encounter with Ms. Sweet would be only the second impaired driving investigation of her nascent law enforcement career. The following is how her investigation unfolded. [ 6 ] In the early morning hours of May 19, 2019, Cst.

Dunlop was patrolling alone in her police vehicle, in the town of Kindersley. She saw a vehicle coming from the direction of a local bar and decided to check the driver for licensing, registration, and sobriety. [ 7 ] According to Cst. Dunlop’s testimony, the vehicle pulled over at about 1 a.m. Below, I summarize what happened next using the clock runtime shown on the recording: 00:34 Target vehicle pulls over. Cst. Dunlop checks the vehicle’s registration on her onboard computer. 01:21 Cst. Dunlop approaches the vehicle. She notes a strong odour of marijuana coming from inside the vehicle. Ms.

Sweet is the driver. She has a passenger with her. The officer asks for Ms. Sweet’s driver’s license and vehicle registration. Ms. Sweet says that she forgot them at home and becomes somewhat flustered. Cst. Dunlop asks where she is coming from, where she is going, and whether she had anything to drink. Ms. Sweet replies that she and her friend are coming from the Red Lion (a local bar) and they are on their way back to Ms. Sweet’s home in the nearby town of Coleville. Ms.

Sweet claims that she and her friend were at the bar for a very short time and that she did not drink anything there, but she admits to having one drink earlier in the evening. At this point, Cst. Dunlop formed the reasonable suspicion that Ms. Sweet has alcohol in her body and decides to detain her in order to have her provide a sample of her breath into an ASD. However, Cst. Dunlop simply tells Ms. Sweet to “stay here” and says “I’ll be right back.”

03:13 Cst. Dunlop returns to her police vehicle. She calls Cst. Wilson. She asks some questions about Ms. Sweet and tells him that she wants to “ASD” her. As Cst. Dunlop was not trained to use an ASD, she asked Cst. Wilson to bring an ASD and administer the breath test. 05:22 Cst. Dunlop returns to Ms. Sweet’s vehicle. She tells her that she is detaining Ms. Sweet for impaired operation of a motor vehicle. Cst. Wilson arrives. 06:12 Cst. Dunlop tells Ms. Sweet: “I’m going to read you a demand – a breath demand. I’m going to get you to blow in the ASD”. 06:48 After some initial hesitation on Ms. Sweet’s part, Cst.

Wilson and Cst. Dunlop escort her to Cst. Dunlop’s police vehicle. On the way to Cst. Dunlop’s vehicle, Ms. Sweet declares “Oh my God! Let me blow in it right now”. 07:19 Cst. Dunlops reads the formal demand for an ASD breath sample and Ms. Sweet indicates that she understands. Cst. Wilson then explains what Ms. Sweet needs to do and answers her questions about the process and the consequences if she does not provide a breath sample. 08:40 Cst. Wilson realizes that his ASD has expired and says that he must go to the R.C.M.P. detachment to get another one. 13:30 Cst. Wilson returns with replacement ASD.

He tells Ms. Sweet that she needs to take a deep breath and blow into the ASD until he tells her to stop. He explains that she must blow like she is blowing up a balloon. 14:25 ASD presented to Ms. Sweet. Cst. Wilson testified that she did not blow at all on her first attempt, and he can be heard saying just that in the recording. On her second attempt, he tells her that her breath is not even registering. Cst. Wilson then uses a separate mouthpiece to demonstrate what Ms. Sweet needs to do. He does not insert it in the ASD for his demonstration. Cst. Wilson explains everything to Ms. Sweet again. Cst.

Wilson gave Ms. Sweet five more opportunities to blow into the ASD. He testified that on each of those attempts the machine’s screen displayed the letters “INS” indicating an insufficient breath sample. On the recording, Cst. Wilson can be heard repeating his instructions to Ms. Sweet and asking her whether there is anything she does not understand. Throughout this process, Ms. Sweet can be heard insisting that she is trying her best, that she is blowing into “that thing”, and that she is not “fucking” with the police. In the recording, it is clear that Ms.

Sweet is growing frustrated and more anxious as the process wears on. Her protestations of innocence become more and more adamant, to the point that she begins crying while insisting that she is trying her best to provide a suitable breath sample. 19:17 Cst. Wilson arrests Ms. Sweet for refusing or failing to provide a breath sample. LAWFULNESS OF BREATH DEMAND Argument [ 8 ] The defendant submits that Cst. Dunlop’s demand for a breath sample was not prompt and the defendant’s opportunity to provide a breath sample was delayed unnecessarily.

Consequently, the demand was not a lawful demand. [ 9 ] Specifically, the defendant submits that the first unnecessary delay occurred when Cst. Dunlop, having formed her reasonable suspicion that Ms. Sweet had alcohol in her body, waited about four minutes before formally demanding a breath sample from her. In addition, the defendant contends that Cst. Wilson caused a second inexcusable delay of about five minutes, by failing to bring a functioning ASD to the scene in the first place.

[10] As the breath demand was not lawful, Ms. Sweet was not obligated to comply with it. [11] The Crown submits that the delay between Cst. Dunlop forming her reasonable suspicion and her demand was half the periodthat the defendant suggests. The Crown’s argument is that by telling Ms. Sweet that she was being detained for impaired driving and thatshe would have to “blow in the ASD” was demand enough. The Crown went on to argue that the ASD breath demand was lawful as theperiods of delay were short and either unavoidable or justified in all the circumstances.

Timing of the Breath Demand [12] Before turning to the question of the effect of the delays identified by the defendant on the lawfulness of Cst. Dunlop’s breathdemand, I must resolve the dispute about when she demanded that Ms. Sweet provide an ASD breath sample. [13] A formal ASD demand is one that a police officer reads out loud from a card they carry with them. The wording of the formaldemand echoes much of the precise wording used in s. 320.27(1)(b). However, a formal breath demand does not contain any magicwords.

A less formal, plain language demand is equally effective so long as it conveys the correct information to the person upon whomthe demand is made: R v Ackerman, at para 7 (SKCA). [14] I find that Cst. Dunlop formed a reasonable suspicion that Ms. Sweet had alcohol in her body at about the 3:12 mark in thetimeline described above. At the 5:22 mark, while Ms. Sweet still was in her vehicle, Cst. Dunlop told the defendant that she was beingdetained for impaired driving. At the 6:12 mark, Cst. Dunlop informed the defendant that she would be given a breath demand and shewould have to blow in an ASD. Cst.

Dunlop formally demanded an ASD breath sample approximately at the 7:19 mark. [15] I find that Cst. Dunlop’s conversation with Ms. Sweet at the roadside qualified as a demand for a breath sample under s.320.27(1)(b), as it conveyed the essence of the information she needed to know at that time. Consequently, the delay between Cst.Dunlop forming her reasonable suspicion and making her demand for a breath sample was about two to three minutes. Legal Framework and Analysis: Delays [16] The

section of the Criminal Code governing the demand Ms. Sweet is accused of refusing or failing to comply with is s.320.27(1)(b). The relevant portions of s. 320.27(1)(

b) are:

(1) If a peace officer has reasonable grounds to suspect that a person has alcohol … in their body, and that the person has, within thepreceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements ofparagraph (b): (

b) to immediately provide samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made bymeans of an approved screening device and to accompany the peace officer for that purpose. [17] When a person is detained for the purpose of providing an ASD breath sample, their Charter-protected right to consult alawyer is suspended.

For this reason, the police officer’s demand for a breath sample must be prompt, and the person’s opportunity torespond to that demand must be as immediate as the exigencies of the use of the ASD may allow: R v Woods, 2005 SCC 42 at paras 43and 44, 197 CCC (3d) 353. [18] In R v Anderson, 2014 SKCA 32, 433 Sask R 255 [Anderson], the Court of Appeal of Saskatchewan tackled the meaning offorthwith in the real-world context of s. 254(2) of the Criminal Code – the predecessor to s. 327(1)(b).

The Court of Appeal held that, inthe context of the immediacy requirements of breath demands, forthwith or immediate mean without unreasonable or unjustified delay:Anderson at para. 30. The Court also endorsed the flexible approach for assessing delays in investigations involving breath demands aspropounded by the Court of Appeal of Ontario in R v Quansah, 2012 ONCA 123 at paras. 45 to 49, 286 CCC (3d) 307 [Quansah].

Thisflexible approach can be summarized as follows: 1) The analysis of the immediacy requirement must always be done contextually, bearing in mind Parliament’s intention tostrike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

2) The demand must be made promptly once the police officer forms the reasonable suspicion that the driver has alcohol intheir body. 3) The immediacy requirement connotes a prompt demand followed by an immediate response. In unusual circumstances amore flexible

interpretation may be applied, where any delay is no more than is reasonably necessary for the police officer to dischargehis or her duty. 4) The immediacy requirement considers all the circumstances, including delays caused because an ASD is not immediatelyavailable, or a short delay needed to ensure an accurate reading, or a short delay due to articulated and legitimate officer safety concerns. 5) Whether the delay was such that the police realistically could have afforded the detainee their right to consult counselbefore being required to provide a breath sample. [19] The focus of most ASD breath demand cases is on whether the delay between the demand and the detainee’s opportunity torespond to the demand unreasonably infringed their Charter-protected right to consult counsel.

In this context, in Saskatchewan, a 16-minute delay to allow an ASD to warm up and become operational was found to be reasonable: Anderson at para 40. Similarly, a 15-minute delay because an ASD was not immediately on-hand was found acceptable: R v Schnurr, 2016 SKQB 207. [20] In Ms. Sweet’s case, Cst. Wilson’s failure to bring a functioning ASD to the scene caused a delay of about five minutes. Thelength of the delay is only one issue. Even a short delay may not be acceptable if the reason for the delay cannot be justified. [21] At trial, Cst.

Wilson testified that it is his usual practice to check the functionality of an ASD before taking it with him onpatrol. However, he could not specifically recall doing so with the ASD he first brought to the scene. [22] In the absence of any evidence that, had he checked the first ASD before taking it with him on patrol, he would have beenalerted to the fact that it was about to expire, I cannot fault Cst. Wilson for what happened at the scene.

For this reason, I find that theneed to retrieve a functioning ASD in order to get an accurate breath sample reading falls within the “exigencies of the equipment”exception to the immediacy requirement of ASD breath demands. [23] The remaining question is whether Cst. Dunlop’s ASD breath demand was unlawful because she did not make the demanduntil two to three minutes after she had formed the reasonable suspicion that Ms. Sweet had alcohol in her body. [24] As I noted earlier, the bulk of the relevant case law focuses on the delay from the breath demand to the opportunity to respondto the demand.

I could not find any Saskatchewan cases where the issue was about a police officer delaying a breath demand. However,this issue has arisen in other jurisdictions and the decisions cut both ways. [25] In New Brunswick, the fact that a police officer waited 10 to 12 minutes for an ASD to arrive before demanding a breathsample from the suspect driver, did not make her breath demand unlawful: R v Jamieson, 2020 NBQB 194.

In Ontario, a six minute delaybetween suspicion and breath demand was found to be acceptable where the police officer used that time to check the driver’s identityand the status of their driver’s license: R v Cheng, 2020 ONSC 6881. [26] On the other side of the argument are at least three Ontario cases: R v Vinoharan, [2009] (Ont Sup Ct)[Vinoharan]; R v Kerr, 2010 ONCJ 189 affirmed [2011] OJ No 6142 (Ont Sup Ct) [Kerr]; R v Nithiyananthaselvan, 2016 ONCJ 426[Nithiyananthaselvan]. [27] In Vinoharan, a police officer was found not to have complied with the immediacy requirements of an ASD demand when theofficer delayed the demand for an unspecified period of less than six or seven minutes while waiting for another officer to bring an ASDto the scene.

In Kerr, the delay was six minutes for “officer safety” reasons that the court did not accept as being objectively reasonablein the circumstances. In Nithiyananthaselvan, the delay was nine minutes while officers waited for an ASD to arrive.

[ 28 ] In my opinion, in Saskatchewan, there is no debate. Here, an ASD breath demand “must be made as soon as the police officer forms the reasonable suspicion that the driver has alcohol in his or her body”: Anderson at para. 33 . A breath demand made two to three minutes after a police officer forms her reasonable suspicion that a driver has alcohol in their body is not made “as soon as” the officer formed her suspicion. As such, Cst. Dunlop’s breath demand ran afoul of the immediacy requirements of s. 320.27(1)(b). [ 29 ] Even if my

interpretation of our Court of Appeal’s meaning is incorrect, on the facts before me, I would have come to the same conclusion by applying the more flexible, contextual approach recommended in Quansah . [ 30 ] What caused Cst. Dunlop to suspect that Ms. Sweet had alcohol in her body was not her manner of driving, or obvious physical signs that her ability to drive was impaired, it was that the defendant admitted coming from a nearby bar and having had an alcoholic beverage at some point before going to the bar. I also note that, despite their lengthy close-quarters interactions with Ms. Sweet, neither Cst.

Dunlop or Cst. Wilson testified that either of them detected the odour of alcohol on her breath. [ 31 ] Ms. Sweet is not charged with impaired driving and there is no evidence that her ability to drive was impaired by alcohol. For this reason, the balance between the public interest in eradicating driver impairment and safeguarding individual Charter rights does not really play a

part in her case. [ 32 ] Instead of immediately informing Ms. Sweet that she was detained for an impaired driving investigation and demanding that she provide a breath sample, Cst. Dunlop waited two to three minutes after forming her reasonable suspicion that Ms. Sweet had alcohol in her body in order to chat with Cst. Wilson about Ms. Sweet and to ask him to bring an ASD to her location. As it is acceptable to wait a reasonable period for an ASD to arrive on scene after making an ASD breath demand, no part of Cst. Dunlop’s conversation with Cst. Wilson justifies her delay in demanding a breath sample from Ms.

Sweet. [ 33 ] Finally, as this is an ASD “refusal” case, and as Ms. Sweet abandoned her application under the Charter , the question whether the police could have, or should have, informed her of her right to consult counsel does not arise. [ 34 ] Having found that Cst. Dunlop’s breath demand was not lawful, I cannot convict Ms. Sweet of refusing or failing to comply with it. [ 35 ] Although my ruling in relation to Cst.

Dunlop’s breath demand dispenses with the charge against the defendant, I will address the other defences she advanced at trial in case my conclusion about the lawfulness of the breath demand is incorrect. REFUSING OR FAILING TO PROVIDE A BREATH SAMPLE Basic Legal Framework [ 36 ]

Section 320.15(1) of the Criminal Code , the

section of the Code under which Ms. Sweet is charged, reads as follows: Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under

section 320.27 or 320.28 [ 37 ] The predecessor

section of the Criminal Code dealing with refusing or failing to provide ASD breath samples was s. 254(5). It read as follows: Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. [ 38 ] In my opinion, although the language and grammar in s. 320.15(1) and s. 254(5) differ somewhat, their meaning is the same.

For this reason, the Saskatchewan Court of Appeal’s decision in R v Lewko , 2002 SKCA 121 , 227 Sask R 77 [ Lewko ], remains the governing law in this province as to the Crown’s evidentiary burden in “refusal” cases. [ 39 ] In Lewko , Chief Justice Bayda described the three elements that the Crown must prove beyond a reasonable doubt in ASD

refusal cases. First, the Crown must prove a lawful demand. Second, the Crown must prove a failure or refusal by the defendant to produce the required breath sample. Third, the Crown must prove that the defendant intended to produce that failure: Lewko at para. 9 . [ 40 ] Once the Crown has established the three elements of the offence, the defendant is presumed guilty and must be convicted unless the defendant raises a defence: Lewko at para 10 . One of the available defences is that he or she had a reasonable excuse for failing to provide a breath sample.

When the defendant bears the burden of proof, the standard of proof is on a balance of probabilities: Lewko at para. 14 . Analysis [ 41 ] Proving that the defendant outright refused to provide a breath sample is easy enough. In this case, Ms. Sweet did not refuse to provide a breath sample. Rather, she failed to do so. [ 42 ] Proving that a person intentionally failed to provide a breath sample is more challenging than proving that they outright refused to do so.

This is especially so when the defendant made numerous attempts to blow in the ASD, and there is no direct evidence that they intentionally failed to produce an adequate breath sample by, for example, blocking the ASD’s air tube with their tongue or failing to properly seal their lips around it. [ 43 ] On the other hand, when, as in this case, a defendant receives clear instructions about what they need to do, and is given numerous opportunities to provide a breath sample into a functioning ASD, and each sample is inadequate, the Crown can rely on the reasonable inference that the defendant intended the consequences of her actions.

This is the argument the Crown advances in Ms. Sweet’s case. [ 44 ] The evidence on which the Crown relies is that: 1. the second ASD was functioning properly (Cst. Wilson testifed that he tested it on himself at the R.C.M.P. detachment after dealing with Ms. Sweet), 2. Ms. Sweet understood the formal breath demand, 3. Cst. Wilson explained, more than once, what was expected of Ms. Sweet, 4. Ms. Sweet had seven chances to produce a suitable breath sample and she failed to do so every time, 5. Cst. Wilson testified that on her first two attempts, Ms.

Sweet did not blow into the ASD, 6. he then demonstrated what she needed to do, and 7. on each of her next five attempts, the letters INS appeared on the ASD’s display, which Cst. Wilson explained meant “insufficient breath sample”. [ 45 ] This evidence comes from Cst. Wilson’s oral testimony. The recording corroborates many of the facts Cst. Wilson described. The recording also discloses other information and context relevant to the question whether the Crown has proven beyond a reasonable doubt that Ms. Sweet intentionally failed to provide an appropriate breath sample. [ 46 ] Before she enters Cst.

Dunlop’s police vehicle, Ms. Sweet says that she wants to blow in the ASD “right now”. Cst. Wilson testified that Ms. Sweet did not blow into the ASD on her first two opportunities to do so. In the recording this is precisely what he told

her. However, Cst. Dunlop did not testify that Ms. Sweet did not blow into the ASD on her final five attempts. Nor did he say so in the recording. What he did say in his testimony was that, according to the ASD’s display, her breath samples were insufficient. [ 47 ] On the recording it appears that on each of Ms. Sweet’s last five attempts to provide a breath sample, Cst. Wilson abruptly, and almost immediately, stops her from blowing. In his testimony, he did not explain why the INS reading on the ASD caused him to stop Ms.

Sweet from blowing at all, as opposed to encouraging her to keep blowing or to blow harder. [ 48 ] Throughout her latter attempts to provide a suitable breath sample, Ms.

Sweet can be heard to claim that she was trying her best and that she was not trying to deceive the police – at least that is what I believe she meant when she loudly and, increasingly distraughtly, declared, more than once, that “I am not fucking with you”. [ 49 ] In my opinion, her entreaties to the police sounded sincere. [ 50 ] When she testified before me, I found her to be a credible witness. [ 51 ] The combination of her credibility as a “live” witness, how she sounded – or the impression she gave – in the recording, and the unanswered questions I have about why Cst. Wilson stopped Ms.

Sweet from blowing into the ASD during her final five attempts to give suitable breath samples, leave me with a reasonable doubt about whether she intentionally failed to provide an ASD breath sample. As such, I do not have to address her reasonable excuse “defence”. CONCLUSION [ 52 ] For these reasons, I find Ms. Sweet not guilty of the charge against her. ___________________________ M.F. Martinez, J