Her Majesty the Queen - v. -, 2013 SKPC 216

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 216 Date: August 30, 2013 Information: 24408651 Location: Humboldt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dustin Houle Appearing: P. Goldstein For the Crown M. Nidesh, Q.C. For the Accused JUDGMENT R.D.

JACKSON , J I INTRODUCTION [ 1 ] The accused was charged on August 27, 2011 in the Burr District that he did, without reasonable excuse, fail or refuse to provide a sample of his breath on an approved screening device (ASD), contrary to s. 254(5) of the Criminal Code . [ 2 ] The trial was held April 29, 2013 in Humboldt, proceeding by way of voir dire with the evidence being applied to the trial proper.

[ 3 ] The Crown called the investigating officer, Constable Lanoie. The Defence called the accused as well as his wife, Leah Doepker, who was a passenger in the accused’s vehicle at the time of the stop. II ISSUES [ 4 ] The issues for determination as raised by counsel include:

a) Authority of Constable Lanoie to effect the traffic stop, failing which the accused was arbitrarily detained pursuant to s. 9 of the Charter;

b) Grounds to make the ASD demand;

c) Whether or not the accused refused to blow and if so, whether he had a reasonable excuse for so doing. [ 5 ] Although Charter issues were raised regarding the grounds to make the ASD demand, no Charter application is required as this is a lawful requirement of s. 254(2) that the Crown must prove beyond a reasonable doubt. [1] III DETERMINATION

a) Authority of Constable Lanoie to effect the traffic stop, failing which the accused was arbitrarily detained pursuant to s. 9 of the Charter; [ 6 ] Constable Lanoie testified he witnessed the accused’s vehicle travelling on Highway #20 near Burr shortly after midnight. He observed the vehicle to be tapping or applying its brakes three times for no apparent reason. He decided to effect a traffic stop to do a driver’s licence, registration and sobriety check. [ 7 ] Upon advising the accused as to why he was being stopped, he explained that the road condition was “terrible” with numerous potholes.

At trial Constable Lanoie testified the brake lights came on three times for no apparent reason which alerted him to the vehicle. He testified he was travelling at highway speed and was not cross-examined as to the road condition. [ 8 ] Regardless, the officer testified he was making the stop for driver’s licence, registration and sobriety check which he is entitled to do pursuant to s. 209.1(1) of The Traffic Safety Act [2] which reads: 209.1

(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.

(3) No person in charge of or operating a motor vehicle shall, when signalled or requested to stop by a peace officer pursuant to subsection (1), fail to immediately bring the vehicle to a safe stop.

(4) No person in charge of or operating a motor vehicle shall fail, when requested by a peace officer to comply with the requests of a peace officer pursuant to subsection (2). [ 9 ] Constable Lanoie was therefore acting lawfully in execution of his duty when he effected the traffic stop.

b) Grounds to make the ASD demand [ 10 ] Section 254(2) (

b) of the Criminal Code reads: 254(2)(

b) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, with the in the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (

a) in the case of a drug, or with either or both paragraphs (

a) and (b), in the case of alcohol: . . . (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [ 11 ] The requirement that the officer have a suspicion of alcohol in the body must be reasonable both on the subjective (honest belief) and objective (rationally sustainable) basis. [3] [ 12 ] Nothing in the evidence suggested that Constable Lanoie did not hold an honest belief that the accused had alcohol in his body.

Can his belief be objectively supported by a third party observer on the scenario as presented to Constable Lanoie? [ 13 ] The threshold is low to support an officer’s honest belief regarding an ASD demand since it involves only a suspicion of alcohol in the body, not impairment. However, it must be evidence-based and relate to the present. In R. v. Beechinor [4] , this Court held at para. 23:

[23] Although the threshold is low, there nonetheless must be evidence capable of demonstrating that the officer have reasonable suspicion that the driver has alcohol in his or her body in order to make the ASD demand. This does not mean simply that alcohol has been consumed at some point that day or the officer could detect alcohol in the vehicle or even on the person.

The suspicion must be that the accused had alcohol in the body at that time and there must be objective evidence to support this conclusion. [ 14 ] When Constable Lanoie approached the driver’s window and requested driver’s licence and registration he was immediately met by protestations and queries by the driver as to why he was stopped and why he had to produce any documentation, even going so far as demanding to see a business card of the officer.

Constable Lanoie explained he had observed the vehicle to be riding its brakes and that he had the authority to stop and check for this documentation as well as to check sobriety of the driver. [ 15 ] At this point Constable Lanoie was very close to the driver and could detect a smell of alcohol from within the vehicle. He queried the only other passenger (other than the infant in the car seat) who confirmed she had not been drinking alcohol. He did not observe any alcoholic bottles or containers in the vehicle.

He then asked the driver if he had been consuming alcohol to which he replied “one Pilsner between 9:00 and 9:30 - I had like one beer in Moose Jaw” which was several hours away from their current location. This evidence was repeated by the accused in his testimony subsequently at trial. Constable Lanoie then asked the accused to exit advising that he was going to require a roadside ASD test. [ 16 ] Upon exiting the vehicle, the accused continued to inquire as to why he was stopped and what authority Constable Lanoie had to do this.

He was asked to get into the rear of the patrol car which prompted the response “I’m not getting in the back - I’m not going to feel like a caged animal.” The accused in his evidence again corroborated this. [ 17 ] Although reluctant for safety reasons, Constable Lanoie capitulated because he thought it might calm the driver down. At this point he was in very close proximity to the accused and could smell alcohol on his breath.

He then read the formal ASD demand to him. [ 18 ] The time for assessing whether the officer’s suspicion was objectively reasonable is the time when the formal demand is made. [5] To this point Constable Lanoie had a smell of alcohol from the vehicle, subsequently determined to be coming from the breath of the accused and an admission of alcohol consumption albeit several hours prior. On this point, the officer certainly didn’t have to accept the accused’s recounting as accurate, particularly since he could smell alcohol at that time.

One must also take notice of the accused’s somewhat strange behaviour prior to the formal demand by requiring to see a business card, continuing to protest why he was stopped and on what authority, and his refusal to get into the patrol car because he “didn’t want to feel like a caged animal”.

Although these latter observations are in themselves, somewhat innocuous, when taken in context seems strange indeed for someone who had only one beer perhaps two to three hours earlier as he stated. [ 19 ] In all of the circumstances, the Court is satisfied that the officer’s subjective belief that the accused had alcohol in his body can be objectively supported.

c) Whether or not the accused refused to blow and if so, whether he had a reasonable excuse for so doing. [ 20 ] Nowhere in the evidence can it be found that the accused explicitly refused to blow into the ASD (this being the crux of the charge since there was no “fail to comply” in the sense of attempting inadequately to give proper samples). This however does not end the matter since the accused’s conduct can evidence the requisite mens rea and actus reus of the offence, commonly referred to as constructive refusal. [ 21 ] In order to found a conviction for explicitly or constructively refusing to blow into the ASD or Intoxilyzer, in the Court’s view the following must be present:

a) grounds to make the demand;

b) lawful demand;

c) clear understanding of what was required;

d) reasonable opportunity to comply;

e) words and/or actions demonstrating that the accused is not going to comply;

f) no reasonable excuse not to do so. [ 22 ] Constable Lanoie testified that the accused was argumentative from the outset continually asking the reason for his stop and the authority which he had to do so. This continued notwithstanding that he was advised of this several times. The accused was then read the formal demand to which he responded “no, he didn’t understand”.

The demand was read again eliciting the same response “no, I don’t understand” followed by “why are you demanding this from me?”. [ 23 ] Constable Lanoie then explained the demand in lay terms as well as the consequences for not providing a sample. At this point the accused demanded to see the calibration sheet for the ASD. The demand was read again breaking it down for him explaining that he needed to provide a suitable sample.

The accused then responded “no, I don’t understand - how do I know it was calibrated properly?”. [ 24 ] The accused then wanted to record everything on his cell phone which was in his vehicle. Constable Lanoie refused to permit this holding the ASD to the accused’s face repeatedly asking him to blow. The accused responded “get that thing out of my face”. [ 25 ] At this point the accused was arrested for refusal, handcuffed and placed into the patrol car. [ 26 ] He was then read his rights to counsel to which he repeated the familiar refrain “no, I don’t understand any jargon you speak.

Is it another charge if I don’t understand? Put it this way I won’t understand anything you have to say.” [ 27 ] The accused testified that he was an aerial tower technician having taken a business course at SIAST which included such classes as macro- and micro-economics, finance and accounting. Further, he drank only one beer several hours earlier.

It is difficult for the Court to comprehend why an educated, articulate and apparently sober individual would indeed have such trouble understanding what was being said to him at the roadside. [ 28 ] This conundrum appeared to unravel in cross-examination at trial when it was revealed that the accused simply chose to take such an obstreperous tack, although why he did so is still a mystery to the Court: [ 29 ] The accused testified he was going to comply as soon as he got his cell phone to record everything however, this is not a reasonable excuse in fact or in law not to blow.

IV RESULT [ 30 ] The evidence is overwhelming that the accused by his actions irrespective of his full knowledge of what was required and the consequences of not doing so, was not going to provide a sample of his breath into the ASD and that he had no reasonable excuse for not doing so. [ 31 ] In the result the Crown has proven all the requisite elements beyond a reasonable doubt and the accused is found guilty accordingly of refusing to provide a sample of his breath into the ASD. _________________________

R.D. Jackson, J [1] In R. v. Yaroslav Luider-Grebner 2013 SKPC 22 , 2013 SKPC 022 Labach, J stated at para. 13: [13] Unless a demand made by a police officer falls within this section, the person upon whom the demand is made is under noobligation to comply with the demand and does not commit an offence under section 254(5) by refusing to provide the requested sample.

To put it another way, where an accused is charged with refusing to provide a sample of his breath for analysis in an approved screeningdevice and the officer making the demand did not comply with the requirements of section 254(2)(b), then that constitutes an absolutedefence to the charge. See R. v. Grant, (SCC), [1991] 3 S.C.R. 139 (S.C.C.) at paragraphs 17 to 21; R. v. Lytle, [2008]S.J. No. 770 (Sask. Prov. Ct.) at paragraph 18. In such a case, no Charter application is required. [2] c. T-18.1 R.S.S. Statutes of Saskatchewan [3] R. v. Anderson, 2010 SKQB 70 [4] [2004] S.J. No. 187 [5] See R. v.

Nahorniak 2010 SKCA 68 , [2010] S.J. No. 300 (Sask. C.A.) at para. 23.