2018 QCCQ 1072, 2018 QCCQ 1072

R. c. Cameron 2018 QCCQ 1072 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal Division” No.: 550-01-088446-150 DATE: February 23, 2018 ______________________________________________________________________ PRESIDING: THE HONOURABLE RICHARD LAFLAMME, J.C.Q ______________________________________________________________________ THE QUEEN Prosecutrix v. DUNCAN CAMERON Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Cameron is being tried on the

summary charge of having refused to provide a breath sample into an approved screening device (hereinafter ASD) in accordance with a demand made by a peace officer. [ 2 ] The officer attempted four times to obtain a sufficient sample, but in vain. The breath samples were insufficient. [ 3 ] The prosecution argues that the police officer made several demonstrations for the defendant on how to provide a breath sample. The defendant suffers from no health problems that could have prevented him from providing the requested sample. Nervousness is not a defence or valid explanation.

Furthermore, he understood the officer’s instructions correctly. [ 4 ] The defendant argues that he blew into the device and never refused to provide the requested samples. His counsel argues that it is unclear whether the ASD was checked first because the police officer makes no mention of it in his notes. Furthermore, the officer’s description of the insufficiency of the samples or the way of blowing is vague.

Finally, counsel is of the view that the prosecution failed to prove, beyond a reasonable doubt, that the defendant wilfully refused to comply with the officer’s demand. [ 5 ] Thus, the Court must determine whether the prosecution has proved beyond a reasonable doubt that the defendant intentionally refused to provide the requested breath sample. In the alternative, did the defendant establish on a balance of probabilities that he had a reasonable excuse? I. BACKGROUND [ 6 ] Officers Dave Beaudoin and Marika Lachance-Turcotte were driving on Buckingham Avenue in Gatineau, near a construction zone.

There, traffic alternating in direction is controlled by a stop light. The officers entered the restricted road when the light turned green. They came face to face with a vehicle that was driving slowly in the opposite direction. They had to pull over to the side of the road to avoid a collision. Once the vehicle had passed, they turned around to intercept the driver, who had obviously run the red light. [ 7 ] At 12:24 a.m., the vehicle driven by the defendant was intercepted. It promptly came to a stop. When told of the offence, Mr. Cameron immediately handed over his driver’s licence.

He searched for proof of the vehicle’s registration and insurance. He had trouble finding it because the vehicle belongs to his father. The conversations took place in French even though the defendant asked that he be spoken to in English. [ 8 ] Officer Beaudoin noted that the driver’s eyes were glassy and red. Also, his breath smelled of alcohol. The officer asked him where he was coming from. Mr. Cameron indicated that he was driving the passenger home and that before that he had been at a bar. When asked by the officer, he claimed to have drunk one beer there.

Later, when asked, he specified that it was a large-sized beer. [ 9 ] The officer asked him to step out of the vehicle to take a test with the screening device. Without any trouble, Mr. Cameron followed the officer between the two vehicles. The officer gave him the usual explanations. Because he did not appear to understand, he asked him

whether he had previously taken this type of test. Faced with a negative answer and the fact that Mr. Cameron has an Ontario driver’s licence, the officer spoke to him in English. [ 10 ] At 12:35 a.m., Officer Beaudoin demanded that he provide a breath sample into the ASD by reading the French version of the card prepared to this end. He nevertheless explained it all in English to ensure that Mr. Cameron understood. Mr. Cameron was concerned about the vehicle possibly being seized.

The officer explained that if he refused to provide a sample or failed the test, the vehicle would be seized for a period of 30 days and criminal charges would be laid against him. When asked by the officer whether he understood, he responded that he did and added: [ translation ] “This isn’t going to go well for me.” Mr. Cameron denies having said this. [ 11 ] At 12:36 a.m., the ASD was ready. Officer Beaudoin showed the defendant the mouthpiece, adding that the packet was sealed and that the part had never been used. He shook the mouthpiece to ensure that the

part inside was working. The officer added that, first, he verified the device’s calibration and that everything was in good order. [ 12 ] Nervous about his first encounter with police officers, Mr. Cameron blew for the first time at 12:37 a.m. The officer had the impression that Mr. Cameron inhaled rather than exhaled. The device indicated “NO GO”, which means that no air went in. When air goes into the device, the sign “+” appears, and when the breath is sufficient, a second “+” appears and then a click is heard. The officer told Mr.

Cameron that he had to breathe out, not in, and the breath should be long and steady. [ 13 ] For the second try, the breath was insufficient. A single “+” lit up and a second “NO GO” appeared. [ 14 ] Officer Beaudoin withdrew the connector and temporarily put it in his pant pocket, without taking any particular precautions. He once again explained to Mr. Cameron how to provide a satisfactory breath. He offered the analogy of inflating a balloon. He demonstrated using his thumb as a stand-in for the mouthpiece.

The officer reminded him of the consequences of refusing. [ 15 ] The officer put the mouthpiece back on without any other verification. A third test was attempted at 12:40 a.m. Once again, the air intake was insufficient to yield a result. The officer once again stated the consequences of refusing and told Mr. Cameron that the next attempt would be the last. [ 16 ] The defendant testified that he received instructions on how to blow only after the third try. He simulated the test by twice drawing breath and exhaling outside the device.

He was told that this was how he had to blow. [ 17 ] According to the officer, the breath was irregular on the fourth try. The indicator showed “NO GO”. The defendant denies having blown irregularly, claiming instead that he blew strongly and continuously. [ 18 ] At 12:43 a.m., the defendant was arrested for refusing to comply with a demand to provide a breath sample. Mr. Cameron offered to perform the sobriety tests, an idea that did not resonate with the police officer. [ 19 ] He was released at 2:15 a.m. II.

ANALYSIS [ 20 ] The prosecution must prove, beyond a reasonable doubt, the elements of the offence set out in s. 254(5) of the Criminal Code , as established in R v. Lewko , [1] that is: (

i) a proper demand made by a peace officer to provide a breath sample; (ii) the failure or refusal on the part of the accused to provide a sufficient breath sample; and (iii) an intent on the part of the accused to fail or refuse to provide a sufficient breath sample. [ 21 ] For the demand to be valid, the peace office must have reasonable grounds to suspect that a person has alcohol or a drug in their body.

The prosecution must prove that the inferences drawn by the officer are rational and reliable and that, as a whole, they and the facts known to the officer reasonably justify a suspicion that the accused had alcohol in his or her body. [ 22 ] In this case, the grounds to suspect that there was alcohol in the defendant’s system are indisputable. The evidence reveals that during the stop following the offence under the Highway Safety Code , Officer Beaudoin smelled the odour of alcohol on Mr. Cameron’s breath. He also noted that his eyes were red and glassy.

It is admitted that the defendant had come from a bar where he drank beer. Consequently, the police officer could subject the defendant to an alcohol screening test. [ 23 ] There is no doubt that Mr. Cameron was informed of his rights. Even if the evidence is unclear as to how the demand was made and in what language, there is no doubt that Mr. Cameron understood it. He knew that he had to provide a breath sample. Officer Lachance-Turcotte testified that they had to explain more than once to Mr.

Cameron how to blow since he did not appear to properly understand. [ 24 ] The evidence is inconsistent as to the instructions given by the police officer concerning the sampling. First, the conversation was in French, then in English at Mr. Cameron’s request. While the notes taken by the officers are silent as to the explanations given to Mr. Cameron, Officer Beaudoin nevertheless described them in minute detail. The defendant’s memory is not the best in this respect.

He does not remember whether the officer imitated the way to blow by using a finger or whether it was suggested that he blow as if he were inflating a balloon. It is established that the defendant was nervous and that this was his first experience with an ASD. The officer asked the defendant if he had ever taken this type of test before. Mr. Cameron confirmed that this was the first time. It would be odd to say the least if the officer gave no explanation at all, as the defendant claims, if this was a first experience. The Court believes the police officer’s testimony in this respect.

[ 25 ] Certainly, on the face of it, the defendant cooperated with the officer by attempting to provide the breath samples. No specific subterfuge could be discerned. On the contrary, Officer Beaudoin testified that Mr. Cameron really tried to provide the requested samples. He was unequivocal about this, especially with respect to the first test. On the fourth try, the breath was almost sufficient according to the officer. He nevertheless chose to put an end to the ordeal. This situation is very different from the one analyzed in Paradis c. R . [2] submitted by the prosecution.

Indeed, in that case, the appellant’s conduct clearly showed his intention of not blowing. [ 26 ] Every time, the device indicated an insufficient air intake. The defendant claims that he blew. Thus, we are in the situation described by Michel Pennou J. of the Superior Court sitting on appeal in Boucher c. R. : [3] [ translation ] [10] In such situations, there are two main possibilities: the failed analysis is due to either the ASD or the accused. Proof of the ASD’s proper functioning thus plays a central role.

If the proper functioning of the ASD and its accessories is proved, absent a reasonable excuse, [ translation ] “it will be difficult to entertain a reasonable doubt” that the failed analysis is not the result of the accused’s behaviour. [ 27 ] In a quite well-reasoned analysis - cited with approval by the Superior Court [4] and our Court of Appeal [5] - Marco Labrie J. of this Court, in R c.

Tremblay , [6] concluded: [ translation ] 38 However, once the prosecution has proved that the ASD and its accessories were in good working order, and not blocked, it will be difficult to entertain a reasonable doubt as to the guilty act without the accused presenting evidence that raises a reasonable doubt in this respect. 39 Furthermore, it is always open to the defence to present evidence that casts doubt on the proper functioning of the ASD 41 or mouthpiece, or still yet, that casts doubt on the qualifications or proficiency of the operating officer.

The trier of fact will assess this evidence with all of the other elements to draw his or her conclusion. 40 To determine whether the guilty act has been proved, it is therefore essential to assess all of the evidence.

To that end, all the elements are weighed, and once united, may perhaps convince a judge that the repeated failures were caused by the accused and consequently that the guilty act has been demonstrated beyond a reasonable doubt. 41 In most cases, the evidence will be circumstantial and consequently, it will be necessary for the guilty act to be the only reasonable conclusion that may be drawn when analyzing all of the evidence. 42 Each case turns on its own facts, and it is up to the judge to draw his or her conclusion based on all of the evidence. [ 28 ] The screening device was in good working order.

There is no evidence to contradict this fact. Police Officer Beaudoin gave specific details of his verifications. True, they do not appear in his notes, but the details given, such as the dates on which the device was calibrated and when it expires, support their veracity. The use tests were carried out without any issues. [ 29 ] However, the same cannot be said of the tip or mouthpiece. Indeed, at the start of the procedure, the police officer ensured that it was working by shaking the one-way tab.

However, this exercise was not repeated when he placed the mouthpiece back on before the third test or after the last attempt. There is more. When a driver alleges that they tried to provide the requested breath sample but the device appears to indicate the opposite, the police officer must ensure that no blockage prevents the sample from being provided. [7] That is all the more true if the officer notices that the driver does in fact appear to be trying to provide the sample. [ 30 ] In this case, there were no post-test verifications made.

After the second test, Officer Beaudoin withdrew the mouthpiece and put it in his pant pocket, where, he admits, he puts a variety of objects, some contaminated. The same mouthpiece was placed back on the device for two more tests. It is surprising that before the first test, the defendant was shown that the mouthpiece was sterile, adding that it had never been used, only to then put so little effort into keeping it that way. Yet, there were five or six extra mouthpieces in the device’s storage box.

It would have been so simple to change the mouthpiece to ensure that it was not what was preventing the device from registering the defendant’s samples. Also, it would have been easy to keep the mouthpiece to prove its good condition. The Court must deal with the evidence adduced. [ 31 ] The evidence does not exclude the possibility of a defect in the mouthpiece, to the point that a reasonable doubt is raised as to its proper functioning. [ 32 ] In addition to the proper functioning of the mouthpiece, the police officer’s description of the various breaths is perplexing.

On one occasion, the defendant gave the impression that he inhaled, then another time the breath [ translation ] “appeared” irregular. Despite this, he believed that the defendant was trying to provide the requested sample, during the first attempt in particular. During the second attempt, it is not clear that Mr. Cameron did not want to blow. He [ translation ] “appeared” to breathe irregularly, but the officer is not quite sure of this. He does not say whether he heard the tab when he blew air into the device. Officer Lachance-Turcotte did not note whether the accused was told to take a deep breath.

The fourth test was better than the other three, the officer claims. There was a greater influx of air but not enough went into the ASD. It is rather incongruous that the fourth breath is described as irregular and short during the examination in chief and that on cross-examination it was deemed to be almost a success. Despite being close to success, the police officer decided that the accused had been given enough chances. He claimed that many officers stop at three tests. [ 33 ] Two remarks are in order.

First, the least that can be said is that the description of each of these attempts to blow is minimal, even insufficient to draw a conclusion that the defendant was deliberately refusing. Mere impressions or perceptions are not proof beyond a reasonable doubt of a deliberate and wilful refusal. [ 34 ] Second, it is useful to recall that the ultimate goal of a demand to provide a breath sample into the ASD is to obtain a sample

that can be analyzed by the device to verify the state of the driver. In the end, a failed result will provide the reasonable grounds necessary to order the driver to submit to a breathalyser test. On this question, it is inadvisable to pre-establish a number of tries, as the police officer suggests, or even according to a certain established practice. It all depends on the circumstances, especially as they pertain to the subject’s cooperation.

The greater the cooperation and the more there is an impression that the driver wants to provide the requested sample, the more the officer must take reasonable means to obtain this sample. Often, this will result in additional tries, sometimes with a change in mouthpiece to eliminate the possibility that the issue stems from there. In this case, the officer clearly indicated that during the last attempt, the breath was almost enough. There was no urgency. The evidence reveals that a new attempt takes about one minute, maybe a bit more if additional explanations are given.

The defendant’s clear cooperation and desire to provide the sample weighed against the officer rushing to end the screening test. [ 35 ] Case law has previously established that sincere efforts by the driver to provide the requested samples may raise a reasonable doubt as to the refusal itself and the culpable intent. [8] That is the case here. FOR THESE REASONS, THE COURT: ACQUITS the defendant. __________________________________ RICHARD LAFLAMME, J.C.Q. Mtre Jennifer Morin Criminal and penal prosecutor Mtre Gérard Larocque Counsel for the defendant Date of hearing: December 4 and 5, 2017