Her Majesty the Queen - v. -, 2015 SKPC 65

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 065 Date: May 25, 2015 Information: 90004998 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ricardo Rodriguez Appearing: Mr. Colton Fehr For the Crown Ms. Sharon Fox For the Accused JUDGMENT C.C. TOTH , J I INTRODUCTION [ 1 ] The accused Ricardo Rodriguez has pled not guilty to one count that he failed or refused to provide a breath sample contrary to s. 254(5) of the Criminal Code .

On September 25, 2014 and November 18, 2014, evidence was heard as to whether he could be found guilty beyond a reasonable doubt. The Crown called Constable Cory Elek, who was involved in the arrest. The defence called the accused, Mr. Rodriguez.

[ 2 ] For the reasons below, I find that Mr. Rodriguez is guilty. II FACTS [ 3 ] The facts of this case are not in serious dispute. [ 4 ] The accused is a 38 year-old permanent resident of Canada, having arrived here in 2001. Most of his employment in Canada has been at restaurants. His first language is Spanish. He was assisted by a translator at trial, but most of his testimony was in English. He learned English largely from immersion in Canada, though had some limited training in English while he was in Argentina.

He has had little contact with the police, either in Canada or Argentina. [ 5 ] On December 22, 2013, Constable Elek observed the accused skidding to a stop at an intersection, and pulled him over at 4:49 a.m. for traffic safety purposes. Cst.

Elek formed a reasonable suspicion that the accused had alcohol in his body, based on the fact that the accused admitted to consuming one beer, that the officer smelled liquor, and that the accused’s eyes were red and glassy. [ 6 ] As a result of this suspicion, the officer asked the accused to shut off his vehicle, go to the police cruiser, and sit in the back seat of the cruiser. The accused did shut off his vehicle and walked to the police cruiser, sitting with his legs out of the vehicle and his feet on the ground.

He asked why he was being told to sit in the cruiser, and was informed by the officer that she wanted to get a breath sample on an ASD. The accused replied that he “wanted to go home.” The defence has conceded that the breath demand was made properly and lawfully. [ 7 ] After this initial demand, the accused and officer discussed the situation. The accused was informed that he was being detained. He continually stated that he “just wanted to go home” and for a few minutes denied that the police officers had legal authority to take the sample.

After this discussion, the officers put him in handcuffs and briefly searched him. [ 8 ] The officers next explained the ASD demand and what was required of the accused. The ASD machine was prepared, and the formal demand was read at approximately 4:56 a.m. When asked if he understood the demand, the accused said that he did. The officers also explained the difference between blowing between 0.04 and 0.08, and blowing over 0.08. [ 9 ] The accused made one attempt to blow, which was not sufficient to produce a reading.

He refused to make any further attempts, though the officers gave him at least two more opportunities to blow. [ 10 ] At trial, the accused testified that he did not understand the nature and extent of the questions being asked by Cst. Elek, and that he couldn’t make a clear decision as to whether to blow because the handcuffs made him very nervous. He also testified that the difference between 0.04 and 0.08 was confusing to him.

Finally, he stated that his understanding was that he had the ability to speak to a lawyer before blowing into the ASD. [ 11 ] At 5:03 a.m., the accused was arrested for refusal and read his rights and warnings. He stated that he did not understand them after the formal reading, and so Cst. Elek explained them in layman’s terms. The accused said “yes” after being asked if he would like to contact a lawyer. [ 12 ] Before leaving the scene, another officer, Cst. Wallace, arrived. Cst. Wallace was a social acquaintance of the accused.

They discussed the situation, but the accused still refused to provide a breath sample.

[13] At 5:13 a.m., the officers and the accused arrived at the station. The accused contacted counsel at 5:28 a.m., and spoke withthe lawyer for a few minutes. Immediately after speaking to counsel, he asked to use the ASD. He was told, likely by Cst.

Elek, that“it’s too late for that.” He was detained until the next morning. [14] The officer testified that at the time of the arrest, she did not notice that the accused had much of a language barrier, thoughthey did notice that he spoke with an accent. [15] The only point of some contention between the officer’s evidence and the accused’s is in terms of what words were usedwhen the accused was pulled over. For example, the accused says that the officers did not use the word “must” when they told him thathe was required to blow.

Where there is a distinction between the evidence of the accused and that of the officer, I accept that of theofficer. III. ISSUES [16] There are two major issues in this case. They are:

a) Did the accused wilfully fail to provide a breath sample suitable for analysis?

b) Does the evidence demonstrate a reasonable excuse for failing to provide a suitable sample? IV. ANALYSIS [17] The decision in R v Lewko, 2002 SKCA 121, 227 Sask R 77, is the leading case in Saskatchewan on s. 254(5) of the Code. According to this decision, the Crown must prove that:

(1) There was a proper demand;

(2) That the accused failed or refused to produce the required sample of breath; and

(3) That the accused intended to produce the failure. [18] As stated above, it is conceded that the demand was properly made. As such, the first element of this offence is made out. Itis also clear that the accused failed to provide a proper sample of breath in the first attempt and refused to make any other furtherattempts. As such, the second element of the offence is also made out. [19] The main question in this case is whether the accused intended to produce the failure.

The defence’s argument is that theaccused did not understand what was being said, and that it is virtually impossible that the officers involved did not realize that there wasa language barrier.

Their submission is that his language barriers, combined with the information provided to him by the police and theterminology involved, created confusion and an understanding that he had an opportunity to speak to counsel before determining what heshould do. [20] The defence does acknowledge that there are previous cases (such as R v Lightfoot, 2006 ABQB 735; R v Bilawey, 2008SKQB 371, [2008] 12 WWR 472; and R v Thomsen, (SCC), [1988] 1 SCR 640) which state that the accused cannotpostpone their decision until after speaking to counsel.

They submit that in this case, the accused was not simply postponing a decision,but understanding that he could postpone it. [21] Refusal is a crime of general intent. This means that the mens rea requirement is met by “proving an intention to refuse or fail

to provide a suitable sample as called for by the R v Lewko line of cases” ( R v Soucy, 2014 ONCJ 497 , 116 WCB (2d) 234) at para 34). [ 22 ] There are relatively few cases where the defence raises a language barrier as a reason for the accused to fail to comply with a breath demand. One can glean some understanding of the considerations that should be used in these situations from the informational component of s. 10(b). To be clear, there is no s. 10(

b) right in this case, but the cases which discuss the informational component of this right may have some value in determining when officers need to go beyond reading from a card in order to make a demand that the accused will understand. [ 23 ] R v Oliva Baca, 2009 ONCJ 194 , contains a useful overview of factors to consider in determining whether the accused understood their rights and what is required of them: 1.

The mere fact that an accused speaks with an accent is not, in and of itself, sufficient to result in special circumstances which require the police to ensure the accused understands his rights to counsel. 2. Special circumstances may be obviated if the police ask the accused if he has language difficulties; advise duty counsel of a possible language issue; or offer an accused the opportunity to speak to duty counsel who speaks the accused's language. 3.

When it is clear that an accused has difficulty understanding the language, especially when he states he has difficulty understanding, special circumstances may arise. 4. The fact that an accused does not specifically ask for an interpreter or duty counsel with a specific language facility is not determinate of the issue of special circumstances. An accused may not be aware such accommodations exist. 5. Whether or not the police believed the accused understood his rights is not determinative of the issues. 6.

When the accused speaks to English speaking duty counsel, this fact alone is not sufficient to indicate he exercised his rights to counsel. This is the case even when the accused does not complain with respect to the advice given. [ 24 ] There are a few cases where an accused failed to provide a sample into an ASD, and argued that this was due to language difficulties. [ 25 ] In R v Bleta, 2012 ONSC 1235 , 285 CCC (3d) 261, the accused had failed to provide a breath sample. They argued that they were genuinely attempting to comply, but that the failure to provide a sample was due to language difficulties.

They were nonetheless convicted (unsuccessful appeal on other grounds). [ 26 ] In R v Deol, [2011] OJ No 3274 (ONCJ) , the accused refused to provide a breath sample and the defence position was that the accused’s lack of facility in English raised a reasonable doubt about whether they understood that they were required to give a breath sample. This was rejected (at para 74) by the trial judge, who found that the fact that previous conversations occurred in English without translation assistance demonstrated that the accused understood that they were required to provide samples.

In addition, the fact that he told the officer in clear terms that they understood the demand was evidence of understanding. [ 27 ] In this case, the accused was passively resistant through the encounter with the police. He argued with the officer from the outset as to the scope of her authority. He made one halfhearted attempt to provide a sample, and then began to refuse. He initially misled the officers as to how much liquor he had consumed. [ 28 ] Further, there is little evidence that the accused’s language barrier prevented him from understanding what was required of him.

The officers testified that he, at most, spoke with an accent. He responded to the police that he understood the formal ASD demand. While he stated that he did not understand his rights upon arrest, there is no evidence that he did not understand it when it was repeated in layman’s terms. [ 29 ] Finally, the officers in this case appear to have acted in very good faith. After the accused was arrested, he was given one last chance to blow after speaking to an officer who he knew socially.

[ 30 ] As such, I find that the accused, after being given a valid demand which he understood, intentionally failed to comply with the demand made by Cst. Elek. [ 31 ] The next question is whether the accused had a reasonable excuse. The defence submission is that there was a misunderstanding regarding the right to contact counsel when the accused was speaking to Cst. Elek.

The defence argues that the accused was left with the impression that he could contact counsel and then make a decision as to whether or not to blow into the ASD. [ 32 ] Although a police error cannot create rights under the Charter which would not otherwise exist, misinformation can give rise to a reasonable excuse for failing to comply with a breath demand (see R v Boutin, 2010 SKPC 68 , 97 MVR (5 th ) 135 at para 40 ). [ 33 ] There has been some judicial debate as to whether a reasonable excuse under s. 254(5) imposes a persuasive burden or an evidentiary burden on the accused.

In R v Goleski, 2015 SCC 6 , the Supreme Court ruled that s. 794(2) (and by extension, s. 254(5)) imposes a persuasive burden on the accused. [ 34 ] I have already concluded that the accused understood the instructions of the officers. I am not persuaded that the officers misdirected the accused either intentionally or inadvertently. As such, I do not find that there was a reasonable excuse. [ 35 ] Had I found otherwise, the question would be whether it is reasonable to rely on a misunderstanding. In this case, the misunderstanding is allegedly based on a language barrier.

This barrier was not identified by the officers at the time, and was not communicated to them by the accused. [ 36 ] In R v Grichko, 2006 ONCJ 233 , 70 WCB (2d) 8, an accused failed an ASD test and told duty counsel that his first language was not English. He did not communicate that he needed an interpreter. As such, he was not able to claim that his rights to counsel were violated. Similarly, in R v Alilovic (2004), 4 MVR (5 th ) 184 (ONSC) , the accused argued their right to counsel wasn’t complied with because they did not understand the nature of the rights.

He had stated that he didn’t understand them when they were read to him, and so the officer communicated in layman’s terms. He said at the time that he understood, but later that he had not understood. He never requested an interpreter, and was convicted. [ 37 ] These cases demonstrate that it is not enough for an accused to state that they did not understand their rights to counsel when they were being arrested. For such a claim to succeed there must be more.

Generally, the accused would need to tell the police that they do not understand, or their language barrier must be great enough that it is very clear to the police that more is needed. Neither is present in this case. [ 38 ] As such, even had I found that the accused genuinely did believe that he was not required to obey the ASD demand, such an excuse would not have been reasonable under these circumstances. V. CONCLUSION [ 39 ] I have found that, based on Lewko , the accused intentionally failed to produce a sample and refused subsequent demands. I have also found that he did so without a reasonable excuse.

As such, I find that he is guilty under s. 254(5) of the Criminal Code .

C.C. Toth, J