Her Majesty the Queen - v. -, 2015 SKPC 170

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 170 Date: December 4, 2015 Information: 33386284 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kristyn Insley Appearing: M. Pilon For the Crown B. Pfefferle For the Accused JUDGMENT M.L. GRAY , J Background [ 1 ] On June 25, 2014, the accused was charged with operating a motor vehicle while her ability to do so was impaired by alcohol and also with refusing to provide a sample of her breath pursuant to a demand made under s. 254(3) of the Criminal Code .

At the outset of the trial, counsel for the accused admitted identity and jurisdiction. Counsel further indicated that there was no dispute with respect to the voluntariness of statements made by the accused or the authenticity of the in-car video that would be marked as a Crown exhibit. No Charter issues were raised.

[ 2 ] The accused was arrested after her vehicle came to rest across a northbound lane on Warman Road during a relatively heavy traffic period. When a civilian checked on her, she was found behind the wheel of her SUV, which had stalled. The witness believed that the accused was intoxicated because her words were slurred, there was a smell of hard liquor coming both from the vehicle and her breath and there appeared to be fresh vomit on her clothing and in the SUV. As a result of these observations and the fact that her vehicle could not be moved, the police were called.

When they arrived, the accused was in a service station washroom. Constable McLane spoke to her, formed the opinion that her ability to operate a motor vehicle was impaired by alcohol and placed her under arrest. A breath demand pursuant to s. 254(3) of the Criminal Code was made and the accused was given several opportunities to provide a sample. None were successful. In the opinion of the technician, the accused was able to blow into the instrument but, on each attempt, simply stopped blowing before a suitable sample was obtained.

The accused says that the Botox injections that she regularly administers around her lips has weakened the muscles rendering her incapable of blowing up a balloon and this prevented her from providing a sample. She testified that she was doing her best, but would “run out of air” and was simply unable to do as requested by the breath technician. [ 3 ] The issues are straightforward: (

i) Has impaired driving been proven beyond a reasonable doubt? (ii) Did the accused wilfully fail to provide a breath sample suitable for analysis? and (iii) Does the evidence demonstrate a reasonable excuse for failing to provide a suitable sample? (

i) Has impaired driving been proven beyond a reasonable doubt? [ 4 ] Defence counsel argues that the accused must be acquitted of impaired driving since she consumed very little alcohol and there is no driving evidence.

Counsel for the Crown submits that the totality of the evidence supports a conviction. [ 5 ] The evidence on the question of impairment comes from several sources: Matthew Denny, one of the first to approach the accused, Allen Whynott, the service station attendant, Constable McLane and Constable Wutzke, who attended the scene, Constable Hartery, the breath technician, the in-car video, marked as Exhibit P-3, the accused and Ellen McKenzie. The accused testified that she had one and one-half glasses of wine in the two hours before driving and did not feel impaired.

She acknowledged that she was tired and upset because a relationship had recently ended. Her vehicle ran out of gas as she was turning off Warman Road, causing her to lose the power steering and go into the curb. She became very upset by this and vomited, which is a common response for her when she is under stress. In cross-examination, she agreed that she sat in her vehicle for eight minutes after it came to rest. During that time, she sent a text to Ms. McKenzie and used her smart phone to try to find a phone number for a tow truck.

When she left her vehicle, it was to go to the service station rest room to clean the vomit from herself. She had done so, but was still feeling sick when the officers knocked on the door. [ 6 ] Ms. McKenzie confirmed that she and the accused each consumed eight or nine ounces of wine and some food between 5:15 p.m. and 7:30 p.m. The accused was stressed about her personal circumstances which was why they had met. After they parted ways, she went to a friend’s house where she discovered five missed calls from the accused; when she called back, she did not receive a response.

She also received a text message saying, “my car broke down can you help?” She has seen the accused impaired as well as intoxicated by alcohol and did not believe that the accused was impaired when she left the restaurant. She could not recall a specific time that she had seen the accused vomit because of alcohol and opined that the accused handled her alcohol well. She was aware that the accused gets an upset stomach when anxious. [ 7 ] Matthew Denny was at the service station adjacent to Warman Road when his attention was drawn to a vehicle that was stopped across a lane.

He went to check and saw that a woman, who I am satisfied was the accused, was the only person in or around the vehicle. In his opinion, she appeared “pretty intoxicated”. He noted the odour of hard liquor both from her breath and her vehicle. He saw vomit inside the vehicle as well as on the door and on her. He noted that her speech was slurred and that she seemed nervous, scared, embarrassed and on the verge of tears. He did not notice her balance or coordination. She told him that her car had run out of gas as she was going around the corner and that she lost the steering.

As the vehicle was posing a hazard to other traffic, Mr. Denny tried to move it and discovered that he could not turn the steering wheel, nor could he start the engine. As a result, pylons were placed around it to warn motorists of the danger.

[8] Mr. Whynott was operating the cash register at the service station when he noticed that a vehicle appeared to have becomestuck on the curb. After it had been there some three to five minutes, he asked Mr. Denny to try to get the SUV moved. Mr. Denny leftwith a couple of his friends however, one of them returned and asked that the police be called because the operator of the SUV wasdrunk. Before the police arrived, the woman who had been in the vehicle came into the service station. He saw her walk from about 10feet outside the store and thought that she looked “wobbly”.

Her movements were slow; it looked “like her body wanted to move faster,but could not.” He noticed the smell of liquor about her and saw vomit on the front of her clothing. She was quiet and calm but lookedconfused and lost. She went into the bathroom, then came out again. From the appearance of her eyes and hair, he thought that she waseither tired or intoxicated. As there is a licenced premise near to the service station, he frequently deals with drunks and people underthe influence. Shortly after the police arrived on the scene, the accused returned to the bathroom where the officer found her.

When shecame out at the request of the police, she had a stunned look on her face. He did not see her again once she left the business with theofficers. [9] Constable McLane has been a peace officer for six and one half years and a qualified breath technician since 2011. On June25, 2014, at 7:30 p.m., he and his partner were dispatched to the intersection of Warman Road and Assiniboine Drive. They arrived at7:41. As they drove north, they spotted a blue SUV straddling the centre and right hand lanes for northbound traffic.

It appeared thatthe vehicle had been travelling southbound, turned left but missed the turn. This was in fact verified by the surveillance video (P-2). When they approached, they spoke to three males who identified themselves as witnesses and advised that the female driver had goneinto the service station. Inside the business, the officers were directed to the washroom. Constable McLane knocked on the door, andwhen the accused opened it, he noticed that she had glassy eyes, a faraway stare, was unsteady on her feet, swayed as she stood and hadpoor balance and coordination.

He also noted fresh vomit on her pants which he described as purple, with bits of food in it. He formedthe opinion that she had been operating a motor vehicle while her ability to do so was impaired by alcohol and placed her under arrest.As she walked ahead of him to the patrol car, he saw that she swayed as she walked. She was seated in the rear of the patrol car where abreath demand was read to her at 7:46 p.m. It was at this point that he first noticed a strong odour of alcohol. In the police vehicle, theaccused was emotionally labile, crying one moment and angry at the officer for arresting her, the next.

At 8:04 p.m. she spontaneouslycommented, “I’m such an idiot. I know better.” A few minutes later, she said, “thanks for caught. . .catching real criminals, yes, youshould catch real criminals” followed by “my lawyer will get me off, you guys should catch real criminals.” [10] As time went on, the symptoms of impairment dissipated. He noted that her dexterity improved and her speech was normalby the end of his dealings with her some two and one half hours later. In cross-examination, he disagreed that he considered the presenceof vomit as a significant factor in concluding that the accused was impaired by alcohol.

In his opinion, her glassy eyes that seemed to bestaring into the distance were a clear indicator of significant alcohol consumption. He did not accept that the glassy appearance of hereyes could have been caused by contact lenses but did agree that eyes might tear from vomiting. [11] Constable Wutzke attended the scene with Constable McLane and was present when the accused came out of the bathroom. When the door opened, she smelled alcohol and vomit. She noted that the accused had vomit on her shirt, her eyes were glassy, herwords were slurred, and there was a smell of alcohol from her breath.

Once the accused was placed under arrest, Constable Wutzkeconducted a cursory search of her and then went to the SUV that was still on the roadway. She noted that the keys were in the ignitionand in the “on” position. There was the same colour vomit on the driver’s door, seat and running board of the vehicle. She seized acoffee mug containing alcohol from the SUV. As the vehicle could not be started, she called a tow truck. [12] Constable Hartery testified that, as the breath technician, his primary focus was the instrument and getting a suitable sample.

However, he did note that when he introduced himself to the accused, she had vomit on her clothing, she smelled of alcohol and vomit,her eyes were glassy or watery in appearance and looked glazed over. He did not notice any problem with her dexterity or walk. [13] In determining whether there has been proof of impairment by alcohol, the Court is bound by the test set out in R v Stellato(1993), (ON CA), 78 CCC (3d) 380 (Ont CA) affd (SCC), [1994] 2 SCR 478 [Stellato].

That testrequires that the Court assess the evidence of the driving and the physical comportment of the accused to determine whether her abilityto operate a vehicle was impaired, even slightly, by alcohol. Slight impairment to drive is related to a reduced ability to perform acomplex task and may be the result of perception or field of vision, reaction or response time, judgment, regard for rules of the road, andthe like being compromised by alcohol consumption: R v Censoni and R v MacDonald (1996), (SK KB), 146 Sask R306 (Sask QB) at para 10.

In other words, the Court must be satisfied beyond a reasonable doubt that the evidence leads to no otherreasonable conclusion but that the accused’s ability to operate a vehicle was impaired to some degree by the consumption of alcohol. [14] In R v Hall, (SK CA), 125 Sask R 62, the Saskatchewan Court of Appeal, referring to R v Morin, (SCC), [1988] 2 SCR 345 said at para 13: “. . .the trial judge was entitled, and indeed required, to look at all of the evidenceand not use the piecemeal analysis advocated on behalf of Mr. Hall.” That is, it is not for the Court to determine whether each

explanation offered by the accused might reasonably be true, but rather, the Court is obliged to consider the whole of the evidence and determine whether or not it proves the offence beyond a reasonable doubt. [ 15 ] In the case at hand, the accused says that she was tired and had consumed some alcohol, but was not affected by it. Ms. McKenzie confirms that assessment. However, the Court must also weigh the evidence of Mr. Denny, Mr. Whynott, Constable McLane, Constable Wutzke and Constable Hartery.

All of these witnesses described clear symptoms of impairment in the speech, appearance and physical actions of the accused. Her manner of speech and slow movements are confirmed by the in-car video (P-3). The video also confirms, in part, the lack of judgment demonstrated by the accused. It depicts her sitting in her vehicle, blocking an entire lane of oncoming traffic on a major Saskatoon artery for eight minutes, apparently oblivious to the danger that she posed to herself and others on the roadway.

She explained that she was using her smart phone to look up tow trucks even though she was sitting adjacent to a service station where help was readily available.

This, too, demonstrates an inability to respond appropriately to the predicament in which she found herself, bearing in mind that through her own testimony, she had vomited and was sitting in a vehicle that smelled of vomit, and was wearing clothing that had been soiled by it. [ 16 ] Although there is no driving evidence, I am satisfied, after carefully considering and weighing all of the evidence, that the accused was operating a motor vehicle while her ability to do so was impaired by alcohol. I accept the evidence of the civilian witnesses and the officers who dealt with the accused.

Their evidence is consistent and supported by the appearance and behaviour of the accused as shown in Exhibit P-3. On the whole, I am satisfied beyond a reasonable doubt that the ability of the accused was impaired to some degree by the alcohol that she consumed. Although her fatigue and emotional state may have contributed to the impairment demonstrated, this does not provide a defence to a charge of impaired driving: see R v Pelletier , [1989] SJ No 493 (Sask QB) .

As all other elements of the offence of driving while her ability to do so was impaired by alcohol have been established beyond a reasonable doubt, the accused is found guilty of count one. (ii) Did the accused wilfully fail to provide a breath sample suitable for analysis? [ 17 ] Constable Hartery introduced himself as the breath technician and advised the accused that she was required to provide breath samples. Further, he explained that any attempt to defeat the breath instrument would result in a refusal charge. The accused said that she would comply.

At 9:43, when the accused was brought to the instrument, he told her that he had installed a brand new mouthpiece and explained that she was to make a seal around it and blow into it continuously to maintain the tone that would sound. An adequate sample would require eight to 15 seconds of air passing through the tube, depending upon the degree of pressure exerted. Prior to inserting the mouthpiece, Constable Hartery had shaken it to ensure that the valve moved freely signifying that air could pass through it. [ 18 ] The accused expressed no concern about his instructions to her.

She placed her lips around the mouthpiece but did not blow; when he instructed her to blow, she did so for only a couple of seconds. This registered an insufficient sample. The instrument was purged and the same instructions were given to the accused. Again, she expressed no concern about the directions, started to provide a sample which properly sounded the tone, but she again stopped. This pattern was repeated on the third and fourth attempts. On the fifth, the mouthpiece was changed with the same result.

Four more opportunities were provided to the accused and on each occasion, she would start to blow but would stop before a suitable sample was obtained. In the opinion of Constable Hartery, the accused did form a proper seal around the mouthpiece because the tone sounded indicating that air was entering the instrument. It was also his view that the resistance of the instrument was less than that experienced in blowing up a balloon. He did not recall the accused offering any explanation for her inability to give an adequate sample and would normally record any such information.

He agreed that she might have said that she was trying. [ 19 ] The accused testified that she is a physician with a practice focused on cosmetic medicine, specifically Botox injections, laser treatments and fillers. She has been a Botox patient since 2008. She administers it to herself and has done so every three to four months for the last seven years. She filed a medical record, which she personally created, showing that she injected her lips and chin on June 10, 2014, as well as on dates in April, July and October of that year.

She testified that Botox weakens the muscles in the areas it is administered and that the residual effect immediately after treatment of the lips would render one incapable of blowing up a balloon. [ 20 ] She recalled the demand that was read to her and she intended to provide samples. She blew but would “run out of air”; she found the entire process very difficult and frustrating. In her opinion, the Botox treatments to her lips created the largest impediment to her ability to give a proper sample. She agreed that the officer told her to put her lips on the mouthpiece and blow hard.

She maintained that she tried but was unable. When asked if she had difficulty forming the seal around the mouthpiece, she said that she had no basis of

comparison. She believed that she could have tried 100 times and still not have been able to follow the directions correctly. She assumedthat would be the result of her weakened lip muscles. She never told the breath technician about the Botox causing weakened lipmuscles or running out of breath but did tell him that she was trying. [21] The elements of refusal which must be proven beyond a reasonable a doubt are three: (

i) the existence of a demand which complies with section 254(3) of the Criminal Code; (ii) a failure or refusal by the accused to provide the required suitable sample of breath; and (iii) an intention by the accused to produce the failure. [22] If the Crown establishes these elements, the accused is presumed guilty unless a defence as contemplated by thewords “without reasonable excuse” is raised: R v Lewko, 2002 SKCA 121 , [2002] SJ No 622 (Sask CA) and R v Bilawey,[2008] SJ No 575 (Sask QB). In the case before me, the evidence clearly establishes the first two elements beyond a reasonable doubt.

Indeed, no issue was taken with the grounds for the demand or that the demand was properly made. Similarly, it was not disputed that asuitable sample had not been received into the approved screening device. This is not a case of an outright refusal, but rather a failure toprovide a suitable sample, or, in other words, a constructive refusal. [23] After considering the evidence as a whole, I find that I cannot accept the reasons given by the accused, nor am I leftin a reasonable doubt by them, because: (

i) the evidence of the accused that her repeated Botox injections left her physically incapable of blowing into the instrument isinconsistent with the uncontradicted evidence of the breath technician that the accused was able to blow into the instrument and toproduce the tone signifying that air was entering; (ii) although the accused told the officer that she was trying, she did not offer any explanation to him for her inability to complete thetest.

Clearly, there is no obligation on an accused to give any excuse to the technician, but it is a factor to be considered in assessing thecredibility of the accused and reasonableness of the excuse: R v Ferron, (BC CA), [1989] BCJ No 1319 (BCCA), R vLewko, 2002 SKCA 121 , [2002] SJ No 622 (Sask CA) [Lewko], R v Lennox, [2003] SJ No 864 (Sask PC) and R v Kupina,[2004] OJ No 1942 (Ont CJ); and (iii) the accused testified that she “assumed” that her Botox treatments were one reason that she could not provide a sample, but did notsay affirmatively that it did prevent her from doing so.

She also said that she “ran out of air” and could not exhale for the number ofseconds required to give an adequate sample but did not offer any reason why that would be so. [24] All of this causes me to conclude that the failure to give an adequate sample was the result of the accused choosing to interrupt the flow of her breath, not for any other reason. I reject her explanation that she was physicallyunable to follow the officer’s instructions. The evidence of the officer was detailed and consistent and I find it to be credible andreliable.

I have no difficulty accepting that evidence and find that the requisite mens rea has been proven beyond a reasonable doubt. (iii) Does the evidence demonstrate a reasonable excuse for failing to provide a suitable sample? [25] In Lewko, at para. 35 and 36, Chief Justice Bayda discussed the standard of proof and said this regarding theevidentiary issues surrounding the defence of reasonable excuse: “at no stage does a trial judge considering the reasonable excusedefence need to invoke and apply the standard of proof on a balance of probability in relation to the defence of reasonable

excuse……There is simply no room for application of the standard of proof on the balance of probability in relation to the defence ofreasonable excuse…..” [26] Thus, if there is evidence which legally could constitute a reasonable excuse and that evidence is accepted by theCourt, the accused must be acquitted. To be successful, the defence need only raise evidence which, in law, is capable of being areasonable excuse. Clearly, if a person could not provide the sample required for medical reasons, this would constitute a reasonableexcuse.

This does not mean that it is utterly impossible, but that the existing medical condition makes it either extremely difficult,painful or involves some risk to the health of the accused. Not every respiratory difficulty will amount to a reasonable excuse: R vNadeau (1974), 19 CCC (2d) 199 (NBSC, App Div), R v Phinney (1979), (NS CA), 49 CCC (2d) 81 (NSSC AppDiv), R v Pederson, [1993] YJ No 72. [27] The Court is not satisfied that this accused has raised such a reasonable excuse. For reasons given above, I do not accept herevidence that she tried her best but simply could not follow the directions given.

Although the accused testified that she “assumed” theBotox around her lips inhibited her ability to provide a sample, there is no evidence that it did in fact do so. Rather, the evidence that shecould form a proper seal and provide an adequate flow of air for a few seconds suggests otherwise.

Nor is there any evidence of anymedical condition that made it extremely difficult or painful or posed some risk to her health to provide a suitable sample. [28] I therefore conclude, as a matter of law, that neither the unspoken concerns of the accused at the time or the medicalconcerns to which she alluded in her testimony can constitute a reasonable excuse. As the essential elements of the offence have beenproven beyond a reasonable doubt, the accused is found guilty of the refusal as charged. ___________________________________ M. L. Gray, J