Her Majesty the Queen - v. -, 2015 SKPC 180

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 180 Date: December 22, 2015 Information: 31224643 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Chantelle R. Poisson Appearing: Elizabeth Addabor For the Crown Peter A. Abrametz For the Accused DECISION H.M. HARRADENCE, J [ 1 ] Chantelle Poisson, a 19 year old nursing student, while operating a vehicle in Prince Albert in the early morning hours of May 1, 2015, was stopped by Constable Horace Ratt.

Constable Ratt, a member of the Prince Albert Police Service since 1999, had been following Ms. Poisson’s vehicle eastbound on 28 th Street starting from a distance of approximately 2 city blocks. Constable Ratt observed the Poisson vehicle moving from side to side within its lane, making a slow wide turn on Sherman Drive and also driving close to the curb as it proceeded through a curve on Sherman Drive. [ 2 ] As a result of these observations, Constable Ratt activated his emergency lights and siren and the vehicle stopped.

[ 3 ] Constable Ratt observed the driver of the vehicle, who was Chantelle Poisson, to have bloodshot droopy eyes and he said she was slow to respond to his questions. He also noted that there was an odour of alcohol. The passenger in Ms. Poisson’s vehicle was intoxicated. As a result of these observations, Constable Ratt arrested Ms. Poisson for impaired driving. He read her the breath demand, police warning and her rights to counsel. Ms. Poisson responded that she wished to speak to a lawyer. [ 4 ] Constable Ratt testified that he detained Ms. Poisson for approximately 40 minutes at the roadside.

Although he waited for Constable Glynn to arrive to assist the passenger, Constable Ratt’s primary reason for this delay was his understanding of the requirement to wait until a tow truck arrived in accordance with SGI policy. [ 5 ] After arriving at the Police Station, Ms. Poisson was provided with an opportunity to consult with counsel. She spoke with Peter Abrametz, who was her trial counsel. After an observation period she was taken to the breath testing room by Constable Glynn. Constable Glynn testified that he is a qualified operator of the intoxometer. [ 6 ] Ms.

Poisson was in the breath testing room for, as Constable Glynn estimated, approximately five to seven minutes. Constable Glynn follows a routine procedure. He gave Ms. Poisson six attempts. The instrument appeared to be working properly and in fact after Ms. Poisson’s attempts, Constable Glynn was able to successfully test his own breath. However, Ms. Poisson was unable to provide a sample that the instrument was able to analyze. [ 7 ] While acknowledging a lack of medical expertise, Constable Glynn, who has conducted in excess of 120 breath tests, indicated that either Ms.

Poisson would not or could not provide an adequate sample. He testified that she appeared excitable and had a hard time breathing in the breath testing room. Neither he nor Constable Ratt felt medical attention was necessary. Constable Glynn indicated that this was the first time he had ever encountered this type of situation. [ 8 ] As a result, Chantelle Poisson was charged with impaired driving and refusing to provide a breath sample. She pleaded not guilty. Prior to trial, her lawyer filed a Notice of Charter Argument. This notice contains a myriad of arguments including:

(1) Lack of reasonable and probable grounds;

(2) Failure to comply with section 258(1)(c);

(3) Breach of s. 10(

b) by refusing to permit the accused to speak with her lawyer of choice, her uncle, a Crown Prosecutor in Saskatoon;

(4) The loss of relevant video and audio evidence; and

(5) An allegation that the accused suffered a panic attack as a result of the arrest without grounds, the unreasonable delay and the refusal of the police to permit her to phone the lawyer of her choice. [ 9 ] In argument, Mr. Abrametz conceded that in the circumstances of this case, a remedy for any one of the arguments enumerated in his Charter notice was not being pursued.

He did maintain that the cumulative effect of the evidence supporting these arguments aggravated the accused’s medical condition and cast doubt on her ability to provide a breath sample. [ 10 ] Both counsel agreed that the only viable issues were whether the Crown had proven that Ms. Poisson was driving a motor vehicle while impaired and whether she wilfully failed or refused to provide a breath sample. ANALYSIS a. The Impaired Charge [ 11 ] Constable Ratt’s evidence was balanced and straightforward. His interactions with Ms.

Poisson were recorded by an in car video and a video camera at the police station. (The video in the police car also has audio but for some unknown reason, there is no audio from the police station. There is also neither audio nor video from within the breath testing room). By agreement, portions of the videos were marked as exhibits P-1, P2, D-1 and D-4. [ 12 ] Constable Glynn testified that he did not remember any signs of impairment or smell of alcohol although he testified that recording signs of impairment was not his focus.

[13] As indicated, Constable Ratt’s evidence was an observation of weaving in the lane, a wide turn and driving close to the curbwhile navigating a curve in the road. His observations were initially from a distance of approximately two blocks. He also noted fromMs. Poisson an odour of alcohol, bloodshot droopy eyes and a slowness in responding to his questions.

Significantly, the speed of thevehicle and the driving observations of Constable Ratt are, when considered in light of the video, in my view, not unusual or necessarilyindicative of impairment. [14] In R v A.L.E., 2009 SKCA 65, Madam Justice Wilkinson referred to the Alberta Court of Appeal decision in R v Andrews(1996), 1996 ABCA 23 , 104 CCC (3d) 392, [leave to appeal to SCC refused 106 CCC (3d) vi] as follows: [39] Confusion regarding the appropriate test and the required standard of proof is the very issue addressed in R. v. Andrews. There,Conrad J.A., for the majority, stated: ...

The trial judge felt that the Stellato decision meant that “slight impairment by the accused at the particular time” was sufficient for aconviction. In applying this as the legal test, he made a critical error. He failed to focus the issue upon the question of whether Mr.Andrews’ ability to operate a motor vehicle was impaired. Stellato approves the principle that a conviction on a charge of impaired driving can be founded on proof beyond a reasonable doubt ofslight impairment of the ability to drive.

If the ability to operate a motor vehicle is impaired (even slightly) by alcohol or drugs, it is notnecessary that the degree of that impairment be marked. The courts must not fail to recognize the fine but crucial distinction between “slight impairment” generally, and “slight impairment ofone’s ability to operate a motor vehicle”. Every time a person has a drink, his or her ability to drive is not necessarily impaired. It maywell be that one drink would impair one’s ability to do brain surgery, or one’s ability to thread a needle.

The question is not whether theindividual’s functional ability is impaired to any degree. The question is whether the person’s ability to drive is impaired to any degreeby alcohol or a drug.

In considering this question, judges must be careful not to assume that, where a person’s functional ability isaffected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired. [40] Conrad, J.A. then proceeded to lay down the guiding precepts, saying: In my view, the following general principles emerge in an impaired driving charge: (1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt; (2) there must be impairment of the ability to drive of the individual; (3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug; (4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and (5) proof can take many forms.

Where it is necessary to prove impairment of ability to drive by observation of the accused and hisconduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof bemet. To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessingthe evidence and arriving at the required standard of proof that the ability to drive is actually impaired. [15] Ms. Poisson testified.

In her evidence she indicated that while she had been drinking on the night in question, she did notbelieve she was impaired. In applying the Andrews criteria to the evidence in this trial, I am not satisfied that the Crown has provenbeyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired when she was stopped by Constable Ratt. b. The Charge of Refusal [16] The seminal case in Saskatchewan in relation to a criminal charge of refusal is R v Lewko, 2002 SKCA 121 [Lewko].

In thatdecision Chief Justice Bayda (as he then was) summarized the three elements of a charge of refusal as follows: [9] The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove theexistence of a demand having the requirements of one of the three types mentioned in ss. (2) and (3). Second, the Crown must prove afailure or refusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus).

Third, theCrown must prove that the defendant intended to produce that failure (the mens rea). [17] In these circumstances Mr. Abrametz does not challenge the first two elements of the Lewko test. He does argue the mens rea

of the offence has not been established. There is a distinction between the defence of a lack of intent and the defence of reasonableexcuse, as pointed out by His Honour Judge Labach (as he then was) in R v Howells, 2015 SKPC 14 , 2015 SKPC 014, at para40: [40] The Defence takes no issue with whether the first two elements have been made out. They are only arguing that the mens rea hasnot been proven beyond a reasonable doubt. In my view, the Defence, in their argument, has merged these concepts of mens rea andreasonable excuse.

There are really two questions that must be asked here: (1) was there an intent on the part of the accused not toprovide a breath sample and (2) was the accused’s medical condition and illness a reasonable excuse for not providing the requestedsamples. [18] As indicated in R v Ingleby, 2013 SKPC 127, it is appropriate to examine whether the Crown has proven the mens rea of theoffence prior to considering whether the evidence supports a reasonable excuse for a refusal to provide a breath sample.

In Inleby, HerHonour Judge Gordon indicates, at para 19: [19] I do not need to consider the question of reasonable excuse. In R. v. Keith Arthur Schwartz, 2009 ABPC 120, the Court explainswhy this issue does not need to be considered at para. 24 as follows: This issue is no longer material in view of my finding that the accused lacked the mens rea to commit the offence. In R. v. Moser, (ON CA), (1992), 71 C.C.C. (3d) 165, Doherty, J.A. observes in paragraph 33: 33 The essential elements of the offence described in s. 254(5) consist of a proper demand and a refusal or failure to comply with thatdemand.

The defence of “reasonable excuse” is not a denial of either of those essential elements but refers to “matters which standoutside of the requirements which must be met . . . before a charge can be supported”: per Laskin J. in R. v. Taraschuk, (SCC), [1977] 1 S.C.R. 385, 25 C.C.C. (2d) 108, at p. 388 S.C.R., p. 110 C.C.C. The defence of “reasonable excuse” is engaged onlyafter the Crown has proved a proper demand and a failure or refusal to comply with that demand. [19] By agreement, as part of the accused’s evidence, Mr. Abrametz filed an affidavit sworn by Ms.

Poisson dated November 9,2015, in which she stated, in part: 5. THAT at the police detachment I suffered a panic attack. I have been diagnosed with mild depression in the past, and this was a fewyears ago after my father passed away from cancer. More recently, I have been diagnosed with occasional anxiety/panic attacks, and Iwas prescribed anti-anxiety medication in September 2015. My anxiety attacks are quite infrequent, and are a reaction to external stress. For the last several years, I have had approximately two anxiety attacks per year. 6. THAT during a panic attack I am visibly distressed.

I will cry uncontrollably. I will have trouble breathing and I will hyperventilate. I am unable to think clearly and am generally overwhelmed by whatever situation has triggered the event. 7. THAT I did not refuse to provide a breath sample. I was simply unable to do so. [20] The evidence of Constable Glynn was objective and balanced. He did not say that Ms. Poisson appeared obstructionist or thatthere were any signs of her deliberately intending to defeat the testing. He did say that the device appeared to be working properly butthat Ms. Poisson was experiencing some difficulty with her breathing.

I inferred from his evidence that he would normally expect thedevice to obtain a reading in these circumstances and he could not explain why a reading was not obtained. As indicated, ConstableGlynn acknowledged that he had never encountered a situation similar to this in his experience and it appeared that Ms. Poisson eitherwould not or could not provide the required sample. [21] Ms. Poisson is young and inexperienced. She was nervous when she testified. In the five to seven minutes afforded her toprovide this sample, she says she was unable to provide a sample which was suitable to be analyzed.

In listening and watching hertestify, I found her evidence to be credible and unshaken on cross-examination. [22] In the circumstances, I find that Crown has not proven beyond a reasonable doubt that Ms. Poisson intended to fail or refuse toprovide a sample of her breath. She is found not guilty of this charge. [23] Dated this 22nd day of December, A.D. 2015, at the City of Prince Albert, in the Province of Saskatchewan. ___________________________

H.M. Harradence, J