R v Savage, 2023 MBPC 6

CITATION : R v Savage , 2023 MBPC 6 THE PROVINCIAL COURT OF MANITOBA Selkirk, Manitoba BETWEEN His Majesty the King ) A. Clark ) for the Crown – and – ) ) Braeden John Savage ) M. Cook ) for the Accused ) ) ) Delivered: ) January 23, 2023 ALLEN, P.J. INTRODUCTION [ 1 ] Braeden Savage is charged with failure to comply with a demand for a breathalyzer sample pursuant to

section 320.15(1) of the Criminal Code of Canada . The alleged offence occurred on March 13, 2021 on Highway 8 in the R.M. of St. Andrews. [ 2 ] The Crown called one witness, Royal Canadian Mounted Police (RCMP) officer Jarnail Kainth. The officer testified that he stopped a vehicle for speeding at 4:27 p.m. on March 13, 2021. The vehicle had four occupants, Braeden Savage was the driver. According to the officer’s testimony, the accused showed signs of impairment, including: glassy eyes, slurred speech, poor coordination and he did not make eye contact with the officer.

The officer testified that there was a strong odour of cannabis coming from the vehicle. The passengers were belligerent and uncooperative. The two male passengers in the back seat were arrested under The Intoxicated Persons Detention Act legislation. The accused told the officer that he had consumed two beers 50 minutes earlier. [ 3 ] An Approved Screening Device (ASD) demand was made to Mr. Savage at 4:32 p.m. The officer testified that he has been trained in the use of an ASD machine and is an approved Operator. The officer further testified that he uses the ASD literally every day in his work with the RCMP.

He also testified that before starting his shift that day, he tested the machine to verify that it was working properly. [ 4 ] The officer testified that the accused provided three inconclusive samples. The officer said that the accused was not sealing his mouth around the breath tube and as a result he was not generating enough air through the tube to register a reading. As well, the officer said that the accused was only blowing for one to two seconds, as opposed to four to five as he had been instructed.

The officer testified that one to two seconds is not long enough for the machine to register a reading. [ 5 ] After three unsuccessful attempts, the officer told the Court that the machine automatically shuts off and must be re-started. This is the way the machine is programmed, and the fact that it shut off after the three failed attempts is a further indication that it was functioning correctly at that time. [ 6 ] The officer said that he replaced the mouthpiece on the ASD, repeated the instructions as to how to blow and demonstrated by providing a sample himself.

The machine indicated a reading of zero alcohol in the officer’s breath. Another indication that the machine was working properly. Mr. Savage said that he understood the instructions but again blew three times without registering a reading. The accused told the officer that he couldn’t do it because he is a smoker. [ 7 ] At this point the officer read the refusal warning information. Mr.

Savage again blew two times, and again the officer testified that the accused did not seal his mouth around the tube or blow long enough to produce a sample. [ 8 ] The officer further testified that the accused started coughing after being told he would be arrested if he failed to provide an adequate breath sample. The officer asked if the accused had an inhaler with him or in his vehicle and he was told that he did not.

The officer also testified that at no time in his interaction with him did the accused appear to be short of breath, nor did the accused complain of feeling unwell or speak of any medical limitation as to why he couldn’t blow successfully. [ 9 ] The Crown also filed as Exhibit 2 the Prisoner Report. This report notes that the accused had slurred speech, sagging balance, and appeared to have an angry and confused state of mind. [ 10 ] The accused testified at the trial. He admitted that he was speeding when stopped by police. He disputed that his speech was slurred or his eyes were glassy.

He admitted that he had been drinking that day but said it was only two beers around noon. [ 11 ] The accused said that he couldn’t hold an outbreath longer than he did. He said he has been a heavy smoker for years and was recovering from pneumonia, although admitted that he was not under doctor’s care. He also acknowledged that he said nothing about

having pneumonia to the arresting officer. [12] As with all criminal cases in Canadian courts where credibility is at issue, the ultimate adjudication must be looked at withinthe framework set out in R v W(D), (SCC), [1991] 1 SCR 742, from the Supreme Court of Canada. That framework is: 1. If you believe the evidence of the Accused obviously you must acquit. 2. If you do not believe the testimony of the Accused but you are left in reasonable doubt by it, you must acquit. 3.

Even if you are not left in reasonable doubt by the evidence of the Accused you must ask yourself whether on the basis of the evidencewhich you do accept you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [13] As set out in W(D), the determination as to whether the accused is believed and/or whether the accused has raised doubt tomeet the second criteria from that case, must be made within the context of all the evidence heard in the case. [14] It is settled law in Canada that the elements of this office include: 1) a valid breath demand; 2) a refusal or failure by the accused to produce the required sample; 3) the intention by the accused to produce a failure or a refusal; and, 4) once raised by the evidence, the absence of a reasonable excuse. (R v Lewko, 2002 SKCA 121 at paras 9-10) [15] In this case, the issue of whether a valid demand was made was not in dispute.

I am satisfied that given the evidence of OfficerKainth, that a valid breath demand was made. I am also satisfied that the mechanics of providing a breath sample were adequatelyexplained and demonstrated to Mr. Savage. As Mr. Savage did not refuse to provide a sample but did actually attempt to blow, this is nota case of refusal to blow.

Rather, this is a case wherein the Crown alleges a failure to provide a sample, resulting from an inadequateattempt, and the accused says he was physically unable to provide a sample. [16] As stated in R v Dolphin, 2004 MBQB 252 at paragraph 10, “Failure to provide an adequate sample may be proven from theinference to be drawn from proof that the accused appeared to blow into a device that was in good working order and failed to register anadequate sample.” [17] In this case, I am satisfied that the evidence of the Crown established that the ASD being employed had been tested that dayand was in working order.

I am also satisfied from the evidence of the officer that he personally blew into the ASD to show the accusedhow to obtain a sample and that adequate extended breath would produce a reading. [18] Given that eight attempts were made without the ASD recording a result, it is clear that those attempts failed to meet themachines requirements. Accordingly, the second element of the offence is established. [19] As stated by J. Moar in R v Kowalyk, 2013 MBPC 33, at paragraphs 84 and 85: The third prong of the test essentially deals with what may be considered to be the mens rea component of the offence.

As was noted byMr. Justice Scurfield, where there is an outright or overt refusal to provide the breath sample pursuant to a valid demand, the mens reamay be presumed. In cases involving the failure to provide an adequate sample, the landscape becomes much more complicated. One begins with theconcept that a person intends the ordinary consequences of their actions.

Here the court must look to the entirety of the evidence put forthin determining whether to draw the inference that the accused wilfully or deliberately intended not to provide the requested sample. [20] In the Ontario case of R v Soucy, 2014 ONCJ 497, J.

Paciocco said at paragraph 57: Although the Crown must prove the mens rea of an intentional failure of the test, as a matter of common sense if a device was shown tobe in good working order, the accused was given a clear explanation of its operation, and a sufficient opportunity to provide a samplewas furnished, it can generally be inferred in the absence of evidence raising some question about the ability of the accused to complythat the accused intended to avoid furnishing a suitable sample. [21] This issue was also looked at in R v Slater, 2016 ONSC 2161, which said at paragraph 12: [A]bsent evidence to the contrary, or evidence that raises a reasonable doubt, proof of the requisite mens rea for the offence will be metby the application of the general principle that a person, who does something that has predictable consequences, usually intends or meansto cause those consequences.

Put more directly, evidence that a person who tries multiple times to provide a breath sample, and in eachinstance fails to provide a sample, gives rise to an inescapable inference that s/he is intending that result, absent some other evidencebeing present that would suggest an absence of such an intent, or at least raise a reasonable doubt about it.

[ 22 ] The question in this case is whether the evidence established a failure to provide a breath sample pursuant to the ASD demand. [ 23 ] The evidence provided by the officer was that the machine was in good working order. He testified that he fully explained to the accused how the machine worked and the details of how to blow, with lips enclosing the provided tube and to sustain the flow of air for four to five seconds. The officer testified that the accused – a relatively young man – did not appear to be physically disabled or unhealthy in any obvious way.

The accused did not appear to be short of breath, nor did he complain of any illness other than that he was a heavy smoker. The officer acknowledged that the accused, at some point after being told he may be arrested for refusal, started coughing. [ 24 ] The officer, at one point after multiple unsuccessful attempts, took the test himself to demonstrate. The accused was given eight attempts to obtain a reading on the ASD. For each of these samples the officer testified that Mr. Savage did not seal his mouth on the breath tube and did not adequately sustain the breath. [ 25 ] Mr.

Savage testified that he had consumed alcohol on the day in question and conceded that he was speeding when stopped by the RCMP. He said that his ability to blow was impeded by his years of cigarette smoking and a recent bout of pneumonia. When asked to provide a doctor’s name as to treatment, he said that he hadn’t sought medical help. The accused appeared before the Court as a relatively young man in apparently good health. He is employed on a full-time operation as a well driller on a horizontal well drilling crew.

He acknowledged that as part of his job he loads, unloads and sets up drilling equipment in the field. He also acknowledged that he often works between 10 to 15-hour days, averaging 12 hours five to six days a week. Clearly this is a physically taxing job, if only for the long hours outdoors utilizing machinery. [ 26 ] The accused also admitted on cross-examination that he did not have an inhaler with him or in his vehicle.

When asked by the Crown as to what he would do if he had difficulty breathing while out on Lake Winnipeg ice fishing (which is where he and his friends had spent that afternoon) he said, “I would call 9-1-1.” [ 27 ] I must ask myself whether the accused’s evidence constitutes a reasonable excuse to his failure to provide a breath sample. [ 28 ] To that end, the Crown cited two cases from the Saskatchewan Provincial Court. R v Hicton , 2009 SKPC 15 referred to several cases where health issues were raised as an explanation for failing to provide a sample.

One case quoted (at para 57) was from paragraph 9 of R v Collicutt , [1971] NSJ No 191 : In my view, what is contemplated here in the way of reasonable excuse is some factor that makes it impossible or dangerous or unhealthy for the defendant to comply with the demand.

For example, his lungs or his heart might be in such a condition that he could not perform the necessary exertion of blowing safely. [ 29 ] Also quoted from Hicton was R v Nadeau , [1974] NBJ No 77 (at para 58 ) from the New Brunswick Court of Appeal, which said “a reasonable excuse requires some circumstance which renders compliance with the demand either extremely difficult or likely to involve a substantial risk to the health of the person on whom the demand has been made.” [ 30 ] Further, R v Bonnell , [1987] NBJ No 73 (QB) , wherein an accused’s asthma was found to be a reasonable excuse, but in that case the police involved corroborated that the accused was experiencing difficulty breathing. [ 31 ] In R v Piotrovich , 2004 SKPC 58 , the accused testified that he could not provide an adequate sample due to severe asthma and allergies.

He was nevertheless convicted, because he did not appear to follow police instructions as to blowing, but also because he did not provide any medical evidence as to his breathing limitations. [ 32 ] Similarly in the case at bar no medical evidence supports Mr. Savage’s contention that his lungs were compromised. [ 33 ] As paragraph 63 of the Hicton case, Judge Hinds said: I find Mr. Hicton failed to follow the instructions of Constable LeClair for blowing into the Intoxilyzer instrument.

I am unable to conclude that on May 26, 2006 it was physically impossible, extremely difficult or likely to involve substantial risk to the health of Mr. Hicton to provide a suitable breath samples. While I accept that Mr. Hicton had an asthmatic condition prior to May 26, 2006 there is no independent medical evidence before me as to the exact nature and extent of that condition on May 26, 2006. In particular there is no independent medical evidence before me suggesting that it would have been physically impossible, extremely difficult or risky for Mr.

Hicton to provide a breath sample in the Intoxilyzer instrument. The medical evidence provided by Dr. Tasneen confirms that as of June 12, 2006 he diagnosed Mr. Hicton as having asthma and prescribed an inhaler for him. Dr. Tasneen was unable to comment upon whether or not Mr.

Hicton’s asthma prevented him from providing a breath sample on May 26, 2006. [ 34 ] As well, in the other Saskatchewan case mentioned above, R v Valliere , 2012 SKPC 185 , wherein the accused claimed that his asthma made compliance impossible, the Court again referenced a lack of supportive medical evidence, saying “there is no independent evidence that this panic attack made it ‘physically impossible, extremely difficult or likely to involve substantial risk to the health’ of Mr.

Valliere by providing the breath samples” (para 24). [ 35 ] In my view, based on all of the evidence heard at trial, I find that I do not believe the accused’s explanation for failing to provide a breath sample. Nor am I left with a reasonable doubt as to the accused’s actus reus and mens rea to have committed this office. [ 36 ] There is significant evidence that on the day in question the accused showed multiple indications of impairment. There is also

direct evidence from the officer that Mr. Savage never closed his mouth around the breathalyzer tube and never blew long enough to produce a reading. [ 37 ] The officer testified that Mr. Savage did not complain nor evidence shortness of breath. He also did not say to him that he had recently had pneumonia. Mr. Savage is employed in a job involving physical labour. No evidence was provided to corroborate his having had pneumonia or having lung problems. I do not accept the evidence of the accused as to his explanation for not providing a suitable breath sample.

His explanation does not raise a doubt in my mind and I am satisfied that the Crown has proven the offence of refusing to provide a breath sample beyond a reasonable doubt. As a result a conviction for this charge will be entered. H. L. ALLEN, P.J.