Her Majesty the Queen - v. -, 2017 SKPC 064

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 064 Date: July 13, 2017 Information: 90104976 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Quinton Drew Cole Appearing: M. Calvert For the Crown M. J. Schmeling For the Accused DECISION B. TOMKINS , J [ 1 ] Mr.

Cole is charged with the offence of failing or refusing to comply with a demand that he provide a breath sample for analysis by an approved screening device contrary to section 254(5) of the Criminal Code . [ 2 ] The trial proceeded as a blended voir dire and trial. The Crown called all of its evidence in a Charter voir dire , as did the defence. All evidence received on the voir dire was then applied to the trial. This, therefore, is my decision on both the voir dire issues and on the trial itself.

FACTS [ 3 ] In the early morning hours of January 8, 2017, Cst. Breen, in full uniform and operating a marked police vehicle, was parked in a gas station parking lot observing the traffic in Milestone, Saskatchewan. Shortly after midnight, she saw a vehicle approach an intersection and stop at the stop sign. It then turned, crossed the tracks and proceeded a short distance to an intersection with a four-way stop. The vehicle stopped appropriately, signaled and proceeded. As it left the intersection, Cst.

Breen activated her emergency lights; she said she decided to stop the vehicle to check licence, registration and driver sobriety. Shortly thereafter, the driver stopped. [ 4 ] Cst. Breen went to the driver's door. She noted a strong smell of alcohol from the vehicle and that the driver's eyes were bloodshot, red and slightly droopy. In addition, he repeatedly smacked his lips and tongue as though, she thought, his mouth was dry. As she spoke to him, she noticed his speech was slurred. [ 5 ] Cst. Breen requested licence and registration and asked whether the driver had had anything to drink that evening.

He replied that he had not. He produced his licence, though he had some trouble trying to get it out of his wallet. [ 6 ] The driver was Mr. Cole. [ 7 ] Based on her observations, Cst. Breen said she believed Mr. Cole had consumed alcohol and was operating a vehicle. She decided to require him to provide a breath sample into an approved screening device (ASD) at the roadside. She asked him to exit his vehicle for this purpose, and then noticed that Mr. Cole was somewhat unsteady on his feet, although she admitted the area where he was walking was snow-covered and icy. [ 8 ] At the police vehicle, Cst.

Breen sat in the front and Mr. Cole in the back. There was a screen between them but the screen had small openings. Cst. Breen made some notes and asked how much Mr. Cole had had to drink, noting that she could smell alcohol coming from him. At that point, Mr. Cole admitted that he drank one beer about five minutes prior to being stopped. [ 9 ] At that point, Cst. Breen made an approved screening device demand, reading it verbatim from the card police officers are provided. Because Mr.

Cole said he had consumed alcohol within five minutes, the officer was required to wait 15 minutes before taking a sample to allow any remaining mouth alcohol to dissipate; she advised Mr. Cole of this. She asked Mr. Cole if he had anything in his mouth and then checked his mouth to confirm his denial. She did not see anything there. [ 10 ] During the 15 minute wait, Cst. Breen went back to Mr. Cole's car and attended to his passenger. She also advised the Milestone RCMP members that she might have an impaired driving case and might require their assistance. [ 11 ] When Cst.

Breen returned to her vehicle, she noticed that Mr. Cole was chewing gum. When she challenged him about his earlier denial, he said he did not think it was "a big deal". She made him spit it out. [ 12 ] Cst. Breen was able to proceed with the testing notwithstanding Mr. Cole's gum because, she said, gum will not affect the test results. The concern is that it might impede - intentionally or not - airflow into the ASD. [ 13 ] She prepared the ASD and provided instructions to Mr. Cole. She told him it required a "deep, long blow” and that he needed to keep blowing until she told him to stop.

She explained that the ASD would emit a tone once the air entered and that he had to "keep a tone going the whole time". [ 14 ] Mr. Cole's first attempts to provide a sample were conducted with the officer seated in front, holding the ASD with the mouthpiece through the hole in the screen to Mr. Cole in the back seat. [ 15 ] Mr. Cole started blowing but stopped almost immediately. The officer explained again that she required a long, steady blow and that he needed to keep the tone going the entire time until she told him to stop. He tried again but did the same thing, stopping

almost immediately. This happened, at this point, three times. The ASD showed a "Low Flow" error on each of the first two attempts and "Void" after the third. This is because the machine will accept only three failed attempts before shutting itself down. [ 16 ] At that point, it is necessary to restart the instrument; Cst. Breen did this. She also installed a new mouthpiece. [ 17 ] Mr. Cole made one or two further attempts with the same result. Cst. Breen thought he might find it easier if the screen was not between them so she went to the back door where Mr.

Cole was sitting and administered further tests from that location. Mr. Cole, in the backseat, faced outside and the officer stood outside the door. In this manner, the ASD was closer to Mr. Cole. [ 18 ] From that position, nothing changed. Mr. Cole made further attempts that registered as "low flow" and then the ASD registered "Void". [ 19 ] Cst. Breen restarted the ASD and Mr. Cole attempted three more times to provide samples. The result was the same on each attempt. [ 20 ] Throughout this time, Cst.

Breen had explained several times how to provide a proper sample, using the act of blowing bubbles in milk or blowing up a balloon to assist him in understanding. She also explained that if he did not provide a suitable sample, he would be charged with refusing to do so. She explained this consequence multiple times and had Mr. Cole explain refusal in his own words to be certain that he understood. He was able to do so. This occurred before Mr. Cole made his final two attempts. [ 21 ] Cst. Breen, therefore, allowed Mr.

Cole a total of nine opportunities to provide a sample over a period of about six minutes and obtained the same result on each occasion. She said that, in each case, "It wasn't even an almost there, it was almost within -- within a second or two, as soon as you would hear the tone starting, the flow of air would stop." After the ninth attempt failed, Cst. Breen advised Mr. Cole that he was under arrest for refusal. She returned to the front seat and provided his rights and warnings. After contacting counsel at the detachment and receiving his documents, Cst. Breen drove Mr. Cole to his parents' home. [ 22 ] Cst.

Breen then returned to the Weyburn detachment. While there, she tested the ASD by providing a sample herself to ensure it was capable of receiving a sample. She had no difficulty providing a sample that the ASD accepted and she was also able to recreate what she observed when Mr. Cole was attempting to provide samples. [ 23 ] Cst. Breen said that the manual for the ASD she used indicates that the officer is to check all mouthpieces used to ensure that there are no blockages or obstructions and to retain them. However, she said it is not RCMP policy to do so.

In any event, she neglected to test or retain the mouthpieces that Mr. Cole used. [ 24 ] Cst. Breen said this ASD, a newer model, is easier to provide a sample into than older models, in that it has a larger mouthpiece. She has blown into it herself and found it quite easy to provide a suitable sample, as, she said, have people of all ages who she has tested in the course of her work. [ 25 ] Cst. Breen testified that the ASD used in Mr. Cole's case is checked for calibration monthly and will not operate if it is not checked within that time period.

When the machine is turned on, it self-administers internal testing to ensure that it is able to operate properly. If it finds an internal problem, it will provide a message to the operator; this ASD did not provide a message. The mouthpieces are packaged in plastic in a manner that allows them to be opened and inserted into the ASD without the officer touching them. [ 26 ] The Court was not provided video evidence of the events in Cst. Breen's patrol car. While the vehicle she was driving has video equipment installed, RCMP Headquarters in Ottawa has not yet authorized its officers to use it.

In fact, the equipment is not yet connected or operational; it cannot be activated. [ 27 ] Cst. Breen said the RCMP has delayed implementation until it develops a policy respecting storage and trains members on the policy once it becomes effective. Some older vehicles do have working video equipment that records onto memory sticks which require physical handling; the force intends, with the new equipment, to create a system where information will be automatically downloaded through the Cloud. This has taken some time. In fact, Cst. Breen said the equipment was in her vehicle when she started using it two

years ago but the anticipated policy and training is not yet available. [ 28 ] During the time Cst. Breen was waiting to take samples from Mr. Cole, she had called for assistance from other RCMP members and, in response to that call, Cst. Bjorklund attended. He arrived during the time that Mr. Cole was attempting to provide samples while Cst. Breen was outside the back door. Therefore, he observed some of Mr. Cole's later attempts. While his role was primarily to deal with Mr. Cole's passenger and with his vehicle, Cst. Bjorklund heard Cst.

Breen's instructions about how to give a successful sample and her explanation of the implications of a conviction for refusal. He heard Mr. Cole repeat the information back to Cst. Breen. [ 29 ] Cst. Bjorklund observed Mr. Cole attempting to provide a sample. He said that Mr. Cole did not make "any effort" to put any volume of air into the ASD. Nor did he see Mr. Cole's chest rise as one would expect when one takes a deep breath prior to blowing. He also observed on one test that Mr.

Cole had what he described as "fish lips" where his lips were curled inward rather than clamping tightly to the mouthpiece. [ 30 ] Mr. Cole testified. He said he had been at a hockey game at the rink near where he was stopped by Cst. Breen. While there, he had "several" beer. He said when Cst. Breen stopped him, she asked first where he had been and where he was going. He admitted to denying alcohol consumption but said he does not think this answer was dishonest. He gave various similar explanations for this.

First, he thought he "hadn't had enough to warrant mentioning" and that he had not had enough to be over the limit. Indeed, he said, he thought it possible that he would not have any alcohol in his system. [ 31 ] Mr. Cole insisted that he was trying to follow the officer's instructions and provide a suitable sample. He does not have health or breathing problems that might compromise his ability to blow properly. He simply does not know or understand why he was not able to provide a suitable sample. In fact, he said, he asked the officer if he was doing something wrong and she replied "Just blow".

ISSUES [ 32 ] On this evidence, Mr. Cole has raised three issues, two under the Charter and one in the trial itself. They are as follows: 1. Mr. Cole's

section 7 Charter right to a fair trial was breached by the RCMP's failure to activate and operate video equipment installed in the officer's vehicle. 2. Mr. Cole's

section 9 Charter right against arbitrary detention was breached because the officer stopped Mr. Cole primarily for the purpose of gathering information about activities in the neighbourhood and to reduce impaired driving and not, as she testified, for purposes of checking licence, registration and sobriety. 3. While Mr. Cole was unable to provide a suitable sample into the ASD, he did not intend this result and did not, therefore, have the mens rea necessary to commit the offence of refusal. ANALYSIS

Section 7- Failure to Video Record the Incident [ 33 ] The vehicle Cst. Breen was operating was equipped with video recording equipment when she received it two years ago but the RCMP has made an intentional decision not to activate it. Mr. Cole argued that this decision constitutes, in effect, an intentional suppression of evidence or, at least, a deliberate decision not to record relevant evidence; either would have the effect of frustrating the Crown's disclosure obligation and breach

section 7 by limiting Mr. Cole's ability to make full answer and defence. Mr. Cole seeks a stay of proceedings. [ 34 ] The majority of cases dealing with video recording relate to situations where recording equipment was available but was not

turned on, either intentionally or by oversight. I was not provided and did not locate any cases where the basis of the alleged Charter breach was that such equipment was not installed or workable. [ 35 ] However, one somewhat parallel case was referenced in R v McCoy . [1] In that case, the Court made reference to the decision of the Alberta Provincial Court in R v Peters where the audio-visual equipment in some police vehicles was not operating properly, to the knowledge of those who dispatched the vehicles.

RCMP policy required officers to engage the audio-visual equipment in vehicles equipped with such equipment. The Court in Peters found this sufficient reason to exclude evidence. According to the

summary provided in McCoy , the judge in Peters concluded that: . . . even though there is no obligation in law or in the Charter to record the evidence, it is implicit in the policy that if it is going to be mandatory to use these devices in the cars equipped with them, the machine should be fully functioning. [2] [ 36 ] The Peters decision is generally criticized by the Court in McCoy , in part because the Peters court did not consider whether there was actual prejudice to the accused, a necessary consideration when determining an appropriate remedy. [ 37 ] The defence relies primarily on the Saskatchewan Court of Queen's Bench decision in R v Santos . [3] In that case, the investigating officer - contrary to RCMP policy which required that in-car audio-visual systems be turned on throughout an investigation - intentionally muted the microphone on the system for most of the investigation prior to arrest.

None of the officers involved had notes of the conversations that occurred during the time the audio was muted and the officer who muted the equipment did not recall all of their details. It was held that this action frustrated the Crown's disclosure obligation, breached Mr. Santos'

section 7 Charter rights and constituted an abuse of process. The Court concluded that this justified a stay of proceedings. [ 38 ] Santos is clearly distinguishable from the case before me. In that case, the officer’s vehicle had operating video recording equipment and he chose not to use it consistently and as required by policy. Prejudice to the accused was also established as the officers involved did not have notes of what was said during the time the audio was not working and the lead officer did not recall all of the details.

There was, therefore, no evidence that could substitute for the missing audio. [ 39 ] In this case, however, the officer's vehicle had audio-visual equipment which was not and had not been operational. The defence argued that by deferring development of the policy and training necessary prior to activating the equipment, the RCMP has effectively made a "concerted decision . . . to suppress the evidence which otherwise would have been recorded and made available to the Accused". [ 40 ] In my view, this argument goes further than the evidence would allow.

There is no evidence at all as to the reasons it has taken the RCMP this long to put a policy in place and conduct the training necessary before the equipment can be used. There is no evidence as to whether two years is a disproportionately long time to achieve those ends. There is no authoritative evidence, in fact, that a policy requiring data storage and training is the only matter delaying activation; this is Cst.

Breen's understanding but she is not involved in the decisions to acquire, install and activate the equipment and may not fully understand the reasons that its use has been delayed. [ 41 ] Without that evidence, it is not possible to determine whether the failure to activate the equipment is unreasonable or negligent. It is certainly not possible to conclude, as Mr.

Cole asserts, that the RCMP has made a "concerted decision to suppress evidence". [ 42 ] More importantly, there are a number of cases that have held that the Crown is not obliged to create evidence; its obligation is to preserve and provide evidence that exists. For example, R v Kurmoza [4] quotes from R v Khan [5] where the Ontario Supreme Court wrote: The Crown's disclosure obligation does not extend to material that is not in its possession or control and does not require the Crown to bring evidence into existence .

For example, both the Ontario Court of Appeal and the Supreme Court of Canada have declined to impose either a constitutional or common law requirement that the police record, videotape, or audiotape custodial interrogations. Consistent with those authorities, the law in Ontario is clear that the police are not obliged to make a videotape of the breath testing process. (Emphasis in the original; case names and citations omitted.) [6]

[ 43 ] I am satisfied that issues can arise where recording equipment is available and is not used but there is no authority for the defence's argument that the police are required to create evidence or to, in effect, speculate that their failure to do so in this case constitutes an intentional decision made for the purpose of suppressing evidence. [ 44 ] In the event that I am incorrect in my conclusion in this regard, I find that Mr. Cole has not shown that he has been prejudiced by the fact that the vehicle stop and related events were not recorded.

The Court heard oral evidence from all three parties present during the events, their recall was thorough and there is little that is in conflict among them. The issues lie in the

interpretation of their evidence; it is unlikely that a video recording would assist significantly in drawing those conclusions. I am satisfied that the record before me is adequate. [ 45 ] As such, even if Mr. Cole's

section 7 Charter right was breached by the failure to activate the in-car video equipment, it is unlikely any remedy would lie.

Section 9 - Arbitrary Detention [ 46 ]

Section 209.1 of The Traffic Safety Act [7] (TSA) reads as follows:

(1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer:

a) is readily identifiable as a peace officer; and

b) is in the lawful execution of his or her duties and responsibilities.

(2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1):

a) require the driver to give his or her name, date of birth and address;

b) request information from the driver about whether and to what extent the driver consumed, before or while driving, alcohol or any drug or other substance that causes the driver to be unable to safely operate a vehicle; and

c) if the peace officer has reasonable grounds to believe that the driver has consumed alcohol or a drug or another substance that causes the driver to be unable to safely operate a vehicle, require the driver to undergo a field sobriety test. [ 47 ] The Court of Appeal, in R v Houben , [8] spoke to the authority that the

section gives a police officer in the context of section 40(8) of The Highway Traffic Act , a predecessor to the

section quoted above. The Court said that the

section authorizes what are random stops that are therefore arbitrary and contrary to

section 9 of the Charter . However, the provision is saved by

section 1 of the Charter . Thus, Mr. Cole's right against arbitrary detention will not be breached if Cst. Breen stopped his vehicle pursuant to

section 209.1 of the TSA . [ 48 ] Cst. Breen testified that she decided to stop Mr. Cole's vehicle to check licence, registration and driver sobriety, presumably pursuant to

section 209.1. Indeed, the officer said that she is assigned to the Traffic Services Unit and that: I don't usually because all of my vehicle stops, I'm in the Traffic Services Unit, that's - that's what I stop vehicles for. Every vehicle I stop is for licence, registration and sobriety check, so I didn't feel the need to put it in my notes because that's every vehicle I stop, hundreds and hundreds of them have always been for licence, registration and sobriety check. ( Emphasis mine .) [ 49 ] Mr. Cole argued that Cst.

Breen's evidence in this regard cannot be true; it is unlikely that in her years on the Force, the officer has not stopped vehicles for reasons other than to conduct licence, registration and sobriety checks. [ 50 ] Instead, Mr. Cole argued, Cst. Breen did not stop his vehicle pursuant to the powers set out in

section 209.1 of the TSA . He argued that her purpose in stopping his vehicle was to gather information and then take steps to lower the incidence of drinking and driving. This is not a legal basis to stop a vehicle but is consistent with Cst. Breen's observations that Mr. Cole operated his vehicle

entirely appropriately during the time she observed him prior to the stop. By her own evidence, therefore, he said, there was no other reason to stop Mr. Cole's vehicle. [ 51 ] In this regard, Mr. Cole testified that the officer, before asking for his licence and registration, asked him where he was going and what he was doing. Cst. Breen conceded that she might have asked these questions or similar ones. She conceded that she was curious about where Mr. Cole was going and what he was doing. She said she had stopped other vehicles that evening and had learned that there was an event at the hockey rink.

This evidence, Mr. Cole argued, supports his argument that his detention was not made pursuant to

section 209.1 of the TSA but for other reasons. [ 52 ] I believe that Mr. Cole's submission requires assumptions and inferences that are not available on the evidence; he goes too far. Nothing in the evidence suggests by inference or otherwise that Cst. Breen stopped Mr. Cole as part of an effort to gather information in order to reduce the incidence of drinking and driving. [ 53 ] To me, it suggests that she stopped Mr. Cole's vehicle in order to check his licence, registration and sobriety and approached him in a genial manner, asking a brief friendly question before attending to the legalities.

Certainly nothing in the evidence suggests her purpose was to gather information or that she had in fact done so other than, in the course of earlier stops, learning that there was "an event" at the hockey rink that night. [ 54 ] In fact, she did check Mr. Cole's licence and registration and made observations and inquiries as to his sobriety. This is consistent with her stated purpose for the stop. [ 55 ] As to Cst. Breen's evidence that all of her stops are for licence, registration and sobriety checks, I agree that this is unlikely to be literally accurate.

But it is very likely correct as to her role as a Traffic Services Unit officer when her job is to make TSA stops. [ 56 ] As to Mr. Cole's argument that the vehicle stop was "a form of preventative policing", he is likely correct.

Checking to ensure drivers are properly licensed, that their vehicles that are properly registered and insured, and that the drivers are sober - and removing them from the road if they are not - might be seen as preventative policing. [ 57 ] I fail to see how approaching a driver with a genial opening question such as asking where a person is going or what they are doing can be viewed in the manner Mr. Cole suggests or can be seen to change the officer's purpose in stopping the vehicle. [ 58 ] Mr.

Cole has not established on a balance of probabilities that the vehicle stop was made for a reason other than pursuant to the officer's authority under

section 209.1 of the TSA or that his

section 9 Charter right was breached. [ 59 ] If I am incorrect in this conclusion, pursuant to Grant , I would have concluded that the breach was serious since, barring detention pursuant to

section 209.1 of the TSA , Mr. Cole would not have been stopped at all. For the same reason, the impact of the Charter -infringing conduct was serious as Mr. Cole would have been detained without lawful reason, without right to counsel, and subjected to what would then be an unlawful and incriminating search.

As to the third branch of Grant , I would have concluded that society's interest in ensuring that police officers do not infringe the liberty of citizens arbitrarily would outweigh its interest in adjudication of the case on its merits. [ 60 ] I would, therefore, have excluded all observations and evidence after the arbitrary stop occurred. 3. Refusal Charge [ 61 ] The Court of Appeal, in R v Lewko , [9] set out the elements of the offence of refusal which the Crown is required to prove beyond a reasonable doubt as: 1. a lawful demand; 2. failure or refusal to provide the required sample; and

3. the intention to fail to provide a sample. [ 62 ] Mr. Cole has not taken issue with the demand and concedes that he failed to provide a suitable sample of his breath. However, he denies that he intended that failure. He said he was trying and, quite simply, does not understand why he was not able to provide a suitable sample. He suggests that, accepting that Mr. Cole was making an honest effort to provide a sample but was unable to do so, one must consider possible explanations. Most obviously, there might be some defect in the ASD's operating condition. [ 63 ] Mr.

Cole relies, for these submissions, on the decision in R v An [10] where, sitting on appeal, Mr. Justice Barrington-Foote accepted the trial judge's conclusion that the Crown needed to prove that the ASD and mouthpiece were in working order “in these circumstances where the evidence shows that the accused made numerous unsuccessful attempts to blow into the ASD and claims he was trying to blow into the ASD ”. [ 64 ] The first question for me is whether I accept Mr.

Cole's evidence that he made unsuccessful attempts to blow but was trying to provide a suitable sample; this is a prerequisite to the requirement, in accordance with An , that the Crown prove the mouthpiece and ASD were in working order. [ 65 ] In assessing the credibility of the witnesses, I accept Cst. Breen's evidence in its entirety. Cst. Breen provided detailed and careful evidence. She admitted when she was uncertain and did not hesitate to provide evidence that might be seen as favourable to Mr. Cole. [ 66 ] Similarly, Cst.

Bjorklund's evidence was straightforward and balanced. [ 67 ] Unfortunately, I cannot say the same for Mr. Cole. In regard to credibility, I am heavily influenced by Mr. Cole's responses during his testimony when asked why he had denied consuming alcohol when, in fact, he had been drinking at the hockey game. He said his answer was not a lie or untruthful.

He provided a number of rationalizations, all of similar effect: he did not think he had consumed enough to be over the limit; that he did not think he had consumed enough to matter; and that he was not sure that there was any alcohol in his body at that time. [ 68 ] It is not at all uncommon, in the experience of the Court, that people stopped by the police will deny or minimize when asked about alcohol consumption. What is uncommon is, when faced with that falsehood at trail, to deny that the answer was dishonest. Mr.

Cole did and persisted in that position during cross-examination. [ 69 ] In fact, the answer Mr. Cole provided to the officer was false; he was lying when he said he had not had anything to drink that evening. His explanations do not address the question the officer asked him and he must know this. Further, he told the officer that he had last consumed alcohol about five minutes before he was stopped, yet testified that he thought it possible that there was not any alcohol in his system at the time.

These two statements are incompatible as it is virtually impossible to have no alcohol in one's body five minutes after consuming what he later said was one beer. At best, Mr. Cole's evidence on this matter was disingenuous. [ 70 ] This evidence and the position he took is in keeping with the incident involving chewing gum. After making her demand, Cst. Breen asked Mr. Cole if he had anything in his mouth. He said he did not but Cst. Breen conducted a visual check to be certain. Yet when she returned a few minutes later after checking Mr. Cole's passenger, she found him chewing gum.

While chewing gum, once discarded, will not affect the ASD results, there is nothing in the evidence suggesting Mr. Cole knew this. What he did know was that it was important to the officer that he not have anything in his mouth yet, at his first opportunity while he was unobserved, he chewed gum. I am not certain from the evidence whether the gum was in his mouth at the time Cst. Breen inquired and he concealed it when she checked or whether he put the gum in his mouth after she left. If the former, Mr.

Cole was again dishonest with the officer; if the latter, his actions show a level of cunning and subterfuge. [ 71 ] These two matters alone cast doubt on Mr. Cole's honesty and I am not persuaded by his evidence that he was trying and did not understand why he was unable to provide a suitable sample. That being the case, the Crown's obligation to prove that the ASD and mouthpiece were in working order does not arise. [ 72 ] In any event, I am not satisfied that either the ASD or its mouthpiece malfunctioned during the time Mr. Cole was being

tested. Cst. Breen testified that she had used the ASD in question earlier that evening and it functioned properly. After she returned to the Weyburn detachment office, she attached a new mouthpiece and tested the machine; it worked properly. It "passed" its own internal tests three times when it was used for Mr. Cole. Therefore, if the ASD's operation was defective, that defect must lie with the mouthpieces used. [ 73 ] It is unfortunate that Cst. Breen discarded the mouthpieces. While this is contrary to instructions in the manual, the fact that they were discarded does not affect the operation of the ASD.

The officer's uncontradicted evidence is that she could hear air "blowing" through them and the tone sounded briefly on each occasion that Mr. Cole attempted to provide a sample; this indicates that air was passing through the mouthpiece and into the device. Further, had there been an obstruction, it would have been apparent to Mr. Cole that his blowing was being impeded. One can assume he would have mentioned this to the officer. He did not. [ 74 ] On the other hand, Cst. Bjorklund observed the final few of Mr.

Cole's attempts and saw that on at least one attempt, he was curling his lips inward on the straw, contrary to Cst. Breen's instruction to blow as if making milk bubbles or blowing up a balloon. Cst. Bjorklund further testified that he did not see Mr. Cole's chest rise as one would if taking a deep breath before blowing. [ 75 ] Taking the evidence of the three witnesses together, I am not satisfied that Mr. Cole was making an honest attempt to provide breath samples and believe he may, in fact, have been attempting to deceive or bluff the device or the officer.

Or both. [ 76 ] I am satisfied that the device was operating properly and I am satisfied that Mr. Cole intended to fail to provide a suitable sample. CONCLUSION [ 77 ] Those being my conclusions, I find Mr. Cole guilty of refusing to provide a sample of his breath for analysis by an approved screening device. DATED at Regina, Saskatchewan, this 13 th day of July, 2017. _________________________ B. Tomkins, J