R. v. James Michael Young 2014 NBPC 45, 2014 NBPC 45

R. v. James Michael Young 2014 NBPC 45 PROVINCE OF NEW BRUNSWICK File No.: 04519111 PROVINCIAL COURT HER MAJESTY THE QUEEN v. JAMES MICHAEL YOUNG Decision rendered by the Honourable Ronald LeBlanc, Judge of the Provincial Court, at Bathurst, New Brunswick, on October 30, 2014. Mr. Young is charged under s. 254(5) and s. 253(1) (

a) of the Criminal Code of Canada. Counsel: Yves Duguay, for the Crown Jean-Guy Henry, for the defendant [TRANSLATION] 1 . LEBLANC, P.C.J. — This matter addresses the following two points: Firstly, should the defendant adduce confirmatory or corroborating evidence of a medical condition to support his testimony that his medical condition prevented him from providing a sample of his breath suitable for analysis? Secondly, were there reasonably conceivable circumstances whereby the defendant could pose a risk of danger in attempting to free his vehicle from a parking lot curbstone?

The facts that gave rise to this matter are as follows: THE FACTS 2 . At around 7 p.m. on November 15, 2013, Mr. Kevin Arseneau, his spouse and their two sons drove into the parking lot of the Apollo Cinemas on St. Anne Street in Bathurst, New Brunswick. Mrs. Arseneau was going to see a movie while Mr. Arseneau and his two sons were going to a hockey game at the nearby arena, across the street. They were planning to walk over to the arena. As they arrived in the private entrance of the movie theatre, Mr. Arseneau noticed a black Ford F-150 truck that was stuck on a parking lot curbstone.

The curbstone separated the private entrance from the parking lot. The truck was operated by the defendant. While they were passing by the truck, the front wheels of the truck were turning in reverse and stones were thrown on Mr. Arseneau’s vehicle. 3 . Mr. Young’s truck was stuck on the curbstone, the front wheels on one side and the rear wheels on the other side. The curbstone was about 12 to 18 inches high. However, the four tires were touching the ground.

4 . Mr. Arseneau and his two sons had to walk in front of the defendant’s truck to get to the arena. 5 . Mr. Young was attempting to get out of this predicament. The tires were turning in an attempt to back up. Black smoke was coming from the tires. Mr. Arseneau decided that it was not safe to walk in front of this vehicle. He was afraid. He thought he and his children might be run over by the truck. He stopped next to the truck. Mr. Young got out of the vehicle. He stumbled on the curbstone as he was getting out of his vehicle. Mr. Arseneau asked him if he was drunk. He answered that he was. Mr.

Young asked if he would help him. Mr. Arseneau replied: [TRANSLATION] “What do you expect me to do, push the truck?” Mr. Arseneau walked over to the sidewalk and called 911. He did not want to get into an argument with the drunk driver. He stated that he had called 911 because he was concerned for the public’s safety. He said that the driver of the truck kept trying to get out of his predicament and, in his opinion, had he succeeded, he would have posed a danger. 6 . Constable Julie Daigle of the Bathurst City Police was the first to answer the emergency call, arriving on the scene at 7:08 p.m. Mr.

Arseneau’s call was received at 7:03 p.m. When she arrived she saw that Mr. Young’s vehicle was stuck on the curbstone. Mr. Young was at the wheel and the vehicle was in reverse; when he stepped on the accelerator, the rear tires gave off a great deal of black smoke. She walked over to the vehicle but Mr. Young did not acknowledge her presence. She then decided to return to the police cruiser, turn on the flashing lights and sound the horn to capture his attention. It worked. She walked over to the vehicle a second time; the motor was still running. 7 . Constable Daigle told him to get out of the vehicle.

She had to help him open the door; he was having a hard time opening it. A very strong smell of alcohol was emanating from his breath. In addition, his face was very red. His eyes were red and watery. His pupils were contracted. His speech was slurred and very slow. While walking towards the police cruiser he was losing his balance and had trouble walking in a straight line. He was swaying from side to side. Constable Daigle concluded that Mr. Young was in an advanced state of intoxication. Constable Jeff Chiasson, the qualified technician who was also on site, came to the same conclusion. 8 .

I am of the same opinion. In my view, Constable Daigle had a sincere and honest belief that Mr. Young was impaired by alcohol and an objective and unbiased examination of this belief supports this conclusion. The signs of intoxication that Mr. Young exhibited on the scene, compounded by his unsuccessful and irresponsible efforts to extricate himself from the situation, confirm Constable Daigle’s opinion. I am therefore of the opinion that at the time he was trying to free his motor vehicle, Mr. Young’s functional ability was impaired by excessive alcohol consumption.

In any event, he himself admitted, on cross-examination, that he was drunk. This aspect of the matter is not in dispute. 9 . The entire incident was captured on video. The DVD recording of the incident was received in evidence and marked as exhibit C-2. A video camera in Constable Daigle’s vehicle was recording. The device captured what the driver could see from the front windshield of the vehicle as well as what was happening in the rear seat of the vehicle where Mr. Young was seated.

The recording allows us to see through the windshield, towards the front of the vehicle, as well as towards the back of the vehicle where we can see the officer and her passenger sitting in the back seat. More specifically, the camera recorded the following: the route taken by the officer to get to the Apollo Cinemas parking lot; the truck stuck on the curbstone; Mr. Young as he exits his truck to walk towards the police cruiser and the route taken to get to the police station.

We can also see and hear Constable Daigle as she explains his rights, reads him the demand to provide samples of his breath and explains the consequences of refusing to comply. We can also observe Mr. Young’s behaviour and hear what he is saying while sitting in the back seat of the police cruiser. His actions prove to be very relevant when Constable Daigle leaves him temporarily to go and get his driver’s licence in his truck. Later, I will explain the importance I attribute to Mr. Young’s actions. I will also refer to a comment he made to Constable Daigle which I believe is relevant. 10 .

At 7:11 p.m., Constable Daigle read the demand to provide samples of breath for analysis by means of an approved instrument. Counsel for the defendant dispensed with the reading of the demand, warning and constitutional rights. He does not dispute that Constable Daigle had reasonable and probable grounds to believe that an offence under s. 253 of the Criminal Code had been committed and he agrees that Mr. Young understood the demand and his rights. Finally, Mr. Young spoke to his lawyer in private while he was at the police station and the latter advised him to provide samples of his breath.

At 7:21 p.m., they left the scene to go to the police station. They arrived there at 7:26 p.m. Mr. Young spoke to his lawyer in private between 7:30 and 7:43 p.m. At 7:43 p.m., he was introduced to Constable Jeff Chiasson, the said qualified technician. 11 . The qualified technician testified that he had to observe Mr. Young for a certain period of time before proceeding to obtain breath samples. A qualified technician cannot go ahead and obtain samples if he knows that the results obtained will not be reliable. Burping may falsify the results. 12 .

At 7:44 p.m., Constable Chiasson started his first period of observation that was supposed to last 15 minutes. At 7:54 p.m., Mr. Young burped. Constable Chiasson explained that he must not burp and that he had to restart the period of observation. At 7:59 p.m., he burped a second time. At 8:01 p.m., he burped a third time. After each burp, the officer would explain the importance of not burping,

that the results obtained would be higher due to the presence of alcohol in the mouth, and that if he kept it up he would be charged withrefusing to comply with a demand. At 8:07 p.m., he burped a fourth time. After this last burp, Constable Chiasson suspected that Mr.Young was playing games and that he did not want to provide a sample of his breath. He nevertheless continued to try to obtain asample. 13. At 8:24 p.m., Constable Chiasson obtained a sample suitable for analysis. The result was not presented in evidence.Constable Chiasson had difficulty obtaining the sample because of Mr. Young’s actions.

The officer testified that when an individualblows into the transparent plastic mouthpiece, the technician will observe some condensation in the mouthpiece. He will also hear acertain sound as the breath passes through the mouthpiece. When Mr. Young blew, there was neither condensation nor noise. Theabsence of these signs led him to believe that Mr. Young was not blowing properly into the mouthpiece. It was only when the officertold him that he suspected as much that Mr. Young provided an adequate sample. 14. At 8:24 p.m., the sample was analysed.

Constable Chiasson did not give him the results of the analysis but told him that hehad obtained a good result. He offered to wait before proceeding with the second test, if he still wanted to burp. Mr. Young did not wantto wait. He therefore started his period of observation for the second sample, as required by law. At 8:31 p.m., Mr. Young burped. Theofficer explained the consequences of a refusal. At 8:36 p.m., he burped again. This was the sixth time he had burped between 7:54 and8:36 p.m. and the second time since he had provided an adequate sample. After his last burp, Constable Chiasson placed Mr.

Youngunder arrest for failing to comply with the demand. 15. According to the peace officers, Mr. Young never explained why he was burping. Initially, when Constable Daigle wasfilling out the forms, she asked him if he suffered from a disease of any kind. He told her that he had problems with his liver. Accordingto the two officers, at no time during the procedure to obtain breath samples did he say that he had stomach problems that made him burpor pass gas. 16. Mr. Young testified because he wanted to explain why he had not been able to comply with Constable Daigle’s demand.

Hestated that he tried his best and wanted to provide an adequate breath sample because his lawyer had told him to do so, but he could not.His inability to provide adequate breath samples is due to a physical condition over which he has no control. He has had a liver problemsince August 2013. He consulted Dr. Memiche, a specialist, on the recommendation of his family physician, Dr. Wade. He was forced tostop working from August 2013 to May 2014 because of this condition: a period during which he lost 35 pounds. He could not keepanything in his system.

He is being treated by his specialist once a month, and at the time of trial, he was still undergoing therapyconsisting of removing iron from his system. He explained that his liver produces too much iron. He always feels tired and sick. Heconstantly feels that he has to vomit. He expects that he will have to follow this therapy for the rest of his life. This high level of ironcauses gases to accumulate in his stomach. He does not have this problem every day but his condition worsens as his level of stressincreases. 17.

He testified that he did his best to take the breath test because he thought it would be in his best interest as his lawyer hadadvised. However, he could not stop burping. He was not doing it on purpose. He did not remember mentioning this to the qualifiedtechnician, but he remembers mentioning to Constable Daigle, at the beginning, that he had liver problems. 18. On cross-examination, he added that he got stuck on the curbstone before going into Joey’s Pub, a restaurant located next tothe Apollo Cinemas. He stayed in the restaurant 25 minutes.

He was hoping to find someone he knew there to come and help him get thetruck out. He admitted that he tried getting the truck out and that during his attempts the rear tires had left marks on the asphalt. Themarks in question illustrate that the truck was swerving from right to left on the asphalt. His intention, he says, was to free the truck andpark it a little further, in the back of the Apollo Cinemas parking lot, and then walk home. 19. He testified that he could not control his burping when the tests were being administered, and that he had told ConstableChiasson that he simply could not stop burping.

ANALYSIS 20. I will now address the first point raised by the parties in this case: the matter of the evidence required to establish a defencebased on a person’s physical inability to provide a breath sample. R. v. Rahn, 2012 NBQB 202 , [2012] N.B.J. No. 247, is theleading case on this point in New Brunswick. It is a decision of Justice Glennie of the Court of Queen’s Bench. He referred to a decisionof Hughes, J.A., formerly Chief Justice of the New Brunswick Court of Appeal, in R. v. Nadeau (1975), 19 C.C.C. (2d) 199, where the

Chief Justice explained that the reasonable excuse under s. 254(5) must consist in circumstances rendering compliance with the demand extremely difficult or dangerous to the health of the person to whom the demand is made. Rahn confirms that the onus is on the Crown to show on a preponderance of evidence that the accused has wilfully failed or refused to comply with the demand. At paragraph 24, Glennie, J., states as follows: 24 [...] In my opinion, an accused charged with an offence under section 254(5) of the Criminal Code cannot adequately establish a reasonable excuse (based on a medical condition) for failing to provide a breath sample pursuant to a demand under section 254(2) (

b) of the Criminal Code solely by their own testimony. There must be some form of corroborating or confirmatory evidence provided to the Court when a medical condition or affliction is advanced as the excuse or justification for failure to provide a breath sample pursuant to a demand. He repeats the same principle with even more emphasis at paragraph 26: 26 […] The case law is clear: in order to establish a reasonable excuse (based on a medical condition) for failing to provide a breath sample pursuant to section 254(2) (

b) of the Criminal Code , there is an absolute need for an accused to advance some form of confirmatory or corroborating evidence of the medical condition of the accused and how such condition would result in such accused not being able to provide a sample of his or her breath in order to establish a ‘reasonable excuse’ for not doing so. 21 . I am obviously bound by the principle set out in that case. In my opinion, Mr. Young presented no evidence in support of his testimony to corroborate his medical condition. He was the only witness to testify on the question of his medical condition.

Rahn required him to present evidence other than his own testimony on this point. Contrary to the position taken by defence counsel, I am of the opinion that the words “ an accused […] cannot adequately establish a reasonable excuse […] solely by their own testimony ” require evidence of a third party, evidence that does not come from the defendant. I do not have to question the merits of such a proposition. I am bound by the decision. 22 .

Based on the principle established by Rahn in New Brunswick, I am of the opinion that this is not a situation where the Court must decide on the merits of a reasonable excuse to justify a refusal, but rather a situation where it must decide whether there is evidence of the accused’s mens rea , i.e., the intention not to provide an adequate sample of his breath. The prosecution must prove that the accused had the intention to commit the offence.

This is really not a case where the Court must examine the matter in the context of a group of individuals who, due to a medical condition, are unable to provide a breath sample. Mr. Young did provide a breath sample. His medical condition did not prevent him from providing breath samples. Consequently, the principle in question simply does not apply to Mr. Young. The Crown had to prove that Mr. Young intentionally failed or refused to comply with the demand. Once the Crown had established the intention in question, Mr. Young was then free to present evidence of reasonable excuse. 23 .

The principle was explained by Pidgeon, J.A., Associate Chief Justice of the Court of Appeal of Quebec, in Dubois v. R., [2006] QCCS 3692: [TRANSLATION] […] Proof of guilty intent should not be confused with proof of reasonable excuse: Where there is refusal to submit to the test, guilty intent is presumed and the next step is for the judge to determine if the accused has established on a preponderance of evidence a reasonable excuse justifying his or her refusal.

As for the individual who does not adequately blow into the machine, the judge must first determine if a reasonable doubt remains, given the evidence as a whole, as to the presence of the third essential element of the offence: intention. If such doubt exists, he must acquit, if not, he goes on to examine the reasonable explanation, in a case where such a defence is raised […] 24 . In my opinion the prosecution has established that Mr. Young had the intention to refuse to submit to the demand to provide breath samples for analysis. I will explain by referring to the three different methods used by Mr.

Young in his attempt not to provide the required samples. 25 . First, the evidence shows that the only time Mr. Young burped during the entire period he was under the control of the peace officers was when he was supposed to blow in the device. At no other time did he suffer from this medical condition that made him burp.

The evidence does not show that he was burping before he was brought before the qualified technician or after he was arrested for refusing. Yet, he must have been under as much stress as when he was with Constable Chiasson. He testified that he had no control over his burping, but I cannot accept this explanation. I do not doubt that Mr. Young has a liver problem and that at times he has stomach gases, but I am also satisfied that such was not the case during his interactions with Constable Chiasson. 26 .

Secondly, I am satisfied that he was simply not blowing into the transparent mouthpiece the first time that the technician gave him the device. There was no accumulation of condensation and no sound heard during the test. He was simply not blowing in the mouthpiece. In my opinion, this was an attempt on his part not to provide a sample of his breath. 27 . Thirdly, video C-2 clearly shows that at least four times when he was left alone in the back seat of the police cruiser, Mr. Young inserted his fingers in his mouth to try to make himself vomit.

It is easy to see his efforts at 11 minutes and 4 seconds after the video starts, at 12 minutes and 1 second, at 12 minutes and 48 seconds, and at 13 minutes and 52 seconds. This was just after Constable Daigle had made the demand to provide breath samples. During a period of approximately two minutes, Mr. Young was trying to falsify the results of the breathalyser test that was going to take place later at the police station. This was very deliberate on his part. It is obvious that Mr.

Young only put his fingers in his mouth once Constable Daigle was gone and had left him alone in the police cruiser to go and get his driver’s licence in his truck. In my view, he wanted to bring up the alcohol in his stomach so that he would not provide adequate samples or in the belief that the peace officers would be unable to obtain a sample in the circumstances. We note also that several times Mr. Young can be heard retching in the back seat during these attempts. 28 . I have also noted another attempt at falsification on Mr. Young’s part.

At trial, he testified that his intention was to free his vehicle from the curbstone and drive a very short distance to the back of the Apollo Cinemas parking lot, park the vehicle and walk home. At 13 minutes and 52 seconds on the video, while he is being driven to the police station, he clearly says to Constable Daigle: “ I was trying to get home. ” In my opinion, Mr. Young was trying to mitigate his guilt by saying he wanted to park his vehicle nearby and walk. This was not his approach with Constable Daigle. While he was being detained, he told Constable Daigle that he wanted to get home. 29 .

On the evidence as a whole, I am satisfied that the prosecution has established that Mr. Young intentionally refused or failed to comply with Constable Daigle’s demand to provide samples of his breath as he was required by law to do. 30 . For the same reasons, I am of the opinion that Mr. Young had no reasonable excuse not to provide samples of his breath. His medical condition did not prevent him from providing breath samples. In any event, he did not present any additional information to substantiate the existence of this medical condition as is required in New Brunswick, as per the Rahn decision. 31 .

I will now turn to the second point raised by the parties: Did Mr. Young have the care or control of his motor vehicle? CARE OR CONTROL 32 . This question must be decided by applying the principles set out in R. v. Boudreault , 2012 SCC 56 ; [2012] 3 S.C.R. 157, a decision of the Supreme Court of Canada.

I will quote a few excerpts: 9 For the reasons that follow, I have concluded that “care or control”, within the meaning of s. 253(1) of the Criminal Code , signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk , as opposed to a remote possibility , of danger to persons or property. 12 I recognize, as the trial judge did, that a conviction will normally ensue where the accused, as in this case, was found inebriated behind the wheel of a motor vehicle with nothing to stop the accused from setting it in motion, either intentionally or accidentally. 34 The risk of danger must be realistic and not just theoretically possible : Smits , at para. 60.

But nor need the risk be probable , or even serious or substantial .

35 To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention to prevent a danger topublic safety. To require only that the risk be “theoretically possible” is to adopt too low a threshold since it would criminalizeunnecessarily a broad range of benign and inconsequential conduct. 36 It is settled law that an intention to set the vehicle in motion is not an essential element of the offence: Ford v. The Queen, (SCC), [1982] 1 S.C.R. 231. […] 41 A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger.

Accordingly, an intention to setthe vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. […] 49 The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of itslocation or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. […] 33. It should be noted that a motor vehicle that is embedded in a ditch and cannot move under its own power until it is extricatedby a tow truck is still a “motor vehicle” as defined in s. 2 of the Criminal Code: Saunders v.

The Queen, (SCC), [1967] 3C.C.C. 278; [1967] S.C.R. 284 (S.C.C.). The Supreme Court of Canada maintained the individual’s conviction for impaired driving inthe circumstances, but actually did not address the issue of whether the driver had in fact care or control of the vehicle in question. Thecourt simply decided that a motor vehicle embedded in a ditch is still a motor vehicle as defined in the Criminal Code. 34.

So the question to be answered in this case is as follows: Were there reasonably conceivable circumstances whereby thedefendant could pose a risk of danger in attempting to free his vehicle from the parking lot curbstone? The risk of danger must berealistic and not only theoretically possible. 35.

In order to decide this matter, I have taken the following factors into consideration: the driver’s level of intoxication; thelength of time he tried to extricate himself from his predicament; his intention to drive; the location of the vehicle; the fact that he drovethe vehicle up to the place where he got stuck on the parking lot curbstone and other plans he might have made to avoid the offence. Letme explain. 36. First, his level of intoxication was very high, which can seriously hinder the exercise of good judgment.

This lack ofjudgment is evidenced by the very fact of having driven his truck over a yellow cement block that is at least twelve inches high. Thevideo shows this. 37. Mr. Young attempted to extricate himself from this predicament for a relatively long period of time. According to histestimony, he had become stuck before he entered the restaurant, where he stayed for 25 minutes. We do not know how long he had beenthere. Then, Mr. Arseneau observed him trying to extricate himself for some time before calling the emergency services. The officerarrived 5 minutes after receiving the call and Mr.

Young was still trying to free his vehicle. He was certainly persistent and stubborn inhis efforts. He persevered probably due to his lack of good judgment caused by his level of intoxication. He demonstrated, by hissustained and persistent efforts, his intention to continue trying until he had extricated himself from his predicament. 38. Mr. Young testified that he intended to drive his truck once he had succeeded in freeing it. This is not a case where a driverhas given up on his intention to drive and made other plans.

His intention was clear and unequivocal: he was going to drive his truckonce he was able to free it. 39. It matters not where he intended to drive to, his intention to continue and persist in his efforts to free the vehicle arenevertheless very obvious. He testified that his home was not far from where the incident occurred. We must recall that he was already inthe theatre parking lot. He could have abandoned his efforts, left his truck where it was and simply walked home. Again, his advancedstate of intoxication seems to have played an important role in his inability to make the right decisions. 40.

I note that Mr. Young testified that he was the one who drove his truck to the place where he became stuck. On the issue ofthe risk of danger, this is a case of a continuation or chain of events in the operation of the vehicle in question. There is no break orfragmentation in his intentions or in his operation of the vehicle in question. He was moving right along with his plan.

41 . Finally, according to Constable Daigle’s testimony, Mr. Young could have freed the truck from the curbstone had he had some help. She testified that two or three men would have been able to get him free by pushing the vehicle. The facts seem to support this opinion: all four wheels of the truck were touching the ground; the rear tires had swung from right to left leaving tire marks on the asphalt (this is evident on the photographs) and Mr. Young himself must have thought that a good push would get him free since he had asked Mr.

Arseneau to help him and he had gone to the restaurant to try and find someone he knew who might be able to help him. It should be noted that this was a four-wheel drive vehicle, a truck with more power and better equipped to get out of this kind of predicament. 42 . Considering the factors as a whole, I am of the opinion that there were reasonably conceivable circumstances whereby the defendant could pose a risk of danger in attempting to free his vehicle. He wanted to get free: he had been trying to do so for quite some time. He intended to drive once he had freed the vehicle.

He was highly intoxicated and could not appreciate the danger. He was trying to find help to extricate himself and had he found someone to push the vehicle he would have succeeded. His truck was equipped with tools that made it easier to get it free. 43 . In my view, his truck was not stationary in the sense that it was no longer capable of moving; rather, it was anchored and therefore capable of moving provided he could find someone to assist him. 44 . The risk of danger in this case was realistic and not only theoretically possible.

His success depended on the help he could have received from others, and he was in a place where he could have obtained help. He was in a public place: a parking lot for a theatre and restaurant located near an arena and a main thoroughfare in Bathurst. 45 . Prevention was Parliament’s goal when it passed the provision pertaining to the care or control of a motor vehicle. Mr. Arseneau sensed a danger to himself, to his children and to the public in general as a result of Mr. Young’s actions. I am of the opinion that these fears were well founded. In my view, Mr.

Young’s behaviour posed a realistic risk of danger. 46 . I therefore find him guilty of the offence of refusal under s. 254(5) of the Criminal Code as well as guilty of the offence of having the care or control of a motor vehicle while his ability to drive was impaired by alcohol, contrary to s. 253(1)

a) of the Criminal Code . Dated at Bathurst, New Brunswick this 30 th day of October 2014. Ronald LeBlanc Judge of the Provincial Court