Her Majesty the Queen - v. -, 2014 SKPC 4

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 004 Date: January 15, 2014 Information: 31732890 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kevin Lawrence Pole Appearing: Mr. Rob Parker For the Crown Mr. Michael Tochor, Q.C. For the Accused JUDGMENT D.

KOVATCH , J BACKGROUND [ 1 ] The accused, Kevin Lawrence Pole is charged that on August 17, 2012, at Moose Jaw, he did without reasonable excuse fail or refuse to comply with a demand to provide a sample of his breath to enable analysis to be made in an approved screening device. The trial was held on September 19, 2013. At the beginning of the trial, counsel jointly advised that the issue in the trial was whether the accused had a reasonable excuse when he was unable to provide a breath sample. Further, that the defence admitted the Crown case. I take that to mean and make the following findings of fact.

[ 2 ] On September 19, 2013, the accused was operating a Ford half-ton truck in the City of Moose Jaw. Cst. Anderson of the Moose Jaw City Police saw the truck and noticed that it did not have its lights on. Cst. Anderson activated his emergency equipment at which time the truck pulled over. The accused was the driver. In discussion with the officer, Mr. Pole admitted that he had a couple of drinks, and on that basis Cst. Anderson properly concluded that Mr. Pole had alcohol in his body. Cst. Anderson made the usual ASD demand. Mr.

Pole was taken to the police car and placed in the back seat of the police vehicle. He made a number of attempts to provide a suitable sample in the ASD, but was unable to do so. Having made these admissions, counsel then played the video made by the in-car camera. THE VIDEO [ 3 ] When Cst. Anderson first approached the truck and the accused, he advised that the truck’s lights weren’t on. Mr. Pole immediately explained that he thought the lights were automatic, and that this was not his truck. Cst. Anderson asked Mr. Pole if he had been drinking. Mr. Pole said he had a couple.

He said one was awhile ago, and one was more recently. Cst. Anderson read the usual ASD demand, and Mr. Pole said he would comply. Cst. Anderson and Mr. Pole then walked to the police car, and Mr. Pole was lodged in the back seat. [ 4 ] I would observe that at this point, Mr. Pole’s speech was not slurred, and sounded quite normal. In addition, his walk to the police car also appeared quite normal. I would not conclude on this basis that there were no indicia of impairment. I would however, conclude that Mr. Pole was not “obviously impaired”. [ 5 ] In the police vehicle, Cst.

Anderson explained how to blow into the machine, and Mr. Pole then made his first attempt. As he ceased blowing, he began coughing. Cst. Anderson stated “just at the very end, you kind of stopped”. Mr. Pole then told the officer “I have to let you know I have asthma”. [ 6 ] The accused tried again. Once again, as he stopped, he immediately began coughing. Cst. Anderson commented that he “stopped near the end”. Mr. Pole tried again, but was unsuccessful. [ 7 ] The two of them got out of the car and Cst. Anderson gave Mr. Pole some time to catch his breath. He then tried again, and began coughing. Cst.

Anderson made the comment that he could charge Mr. Pole, “but I think you’re actually trying”. [ 8 ] The two men then talk about how much the accused had to drink, and he says he had three beer in two hours. The officer commented that Mr. Pole was “real red in the face when blowing”. [ 9 ] Cst. Anderson then asked Mr. Pole if he would like to try again. Mr. Pole wasn’t sure. The two men then have a fairly lengthy discussion about refusal and/or failure, and whether refusal results in an automatic conviction for impaired. Mr. Pole says he didn’t wish to go any further.

After some further discussion he was charged with refusal. THE ARGUMENTS [ 10 ] Both counsel seemed to agree and concede that I should not convict Mr. Pole of refusal on the basis of the first three or four failed attempts. Mr. Parker advanced no argument that Mr. Pole should be convicted on the basis of the first four failed attempts, and that events thereafter were irrelevant. His argument was that Mr. Pole was obligated to make further attempts and provide a suitable sample. Further that Mr. Pole was able to provide a suitable sample, but after discussing the implications, Mr.

Pole made a calculated decision that he was better off not providing a suitable sample, and refused further attempts. To make this argument, Mr. Parker urged me to focus my attention upon the latter part of the video. [ 11 ] Mr. Tochor pointed out that an accused person is not entitled to consult counsel prior to determining whether he should

provide a suitable sample in the ASD. As a result, the officer’s explanation of the demand and consequences of refusal are of great importance when dealing with a charge of refusing the ASD. He pointed to the case of R. v. Lewko , 2002 SKCA 121 , and said that the Crown must prove that the accused intended to refuse. He argued that because Cst.

Anderson failed to provide a clear and adequate explanation to the accused, the accused did not have an unequivocal refusal and did not have the requisite intent to refuse. [ 12 ] I have reviewed the various decisions cited to me by counsel and have determined that I must find the accused not guilty. My reasons, that I will set forth, are based upon some of the decisions cited by counsel, although the decision is a little bit different than as had been argued by counsel. [ 13 ] Two of the decisions cited to me by counsel are R. v. Tavangari , [2002] O.J. No. 3173 and R. v. Furtado , [2004] O.J.

No. 6189 . [ 14 ] In the Tavangari case, at paragraphs 15 to 18, inclusive, the Court stated: 15 In considering whether the Crown has proved beyond a reasonable doubt that the accused has refused or wilfully failed to comply with a screening device demand, the court must look at all of the circumstances of the entire transaction between the police officer and the accused. See: R. v. Domik , [1979] O.J. No. 1050 (Ont. H.C.J.) at paras. 4 and 5 , affirmed [1980] O.J. No. 642 (Ont. C.A.) , R. v. Taylor , [1998] O.J. No. 2167 (Ont.

S.C.) . 16 Some of the factors that courts have considered in assessing whether there has been a refusal or wilful failure to provide a screening sample include: - the explanation given to the accused about testing procedure, R. v. Chance , [1997] O.J. No. 4939 (Ont. C.J.) , - evidence of language difficulties or other problems that might interfere with the accused’s understanding of instructions or warnings by the officer, R. v. Kuczak (1997), 24 M.V.R. (3d) 89 (Ont. Gen. Div.) , - evidence or lack of evidence of the accused’s efforts to provide a sample, R. v. Frianchi (1999), 49 M.V.R. (3d) 48 Ont.

S.C.J.), - the amount of time during which testing was conducted, R. v. Tynkaluk , [1989] O.J. No. 957 (Ont. Dist. Ct.) 10 minutes, R. v. Brown , [2002] O.J. No. 2821 (Ont. C.J.) - seven minutes, - the number of tests attempted, R. v. Tynkaluk, supra, 8 attempts, R. v. Chance, supra, 4 attempts, - whether the accused was warned it was a criminal offence to refuse, R. v. Tynkaluk, supra , - whether the accused was told of the consequences of refusal, R. v. Fontaine (1990), 25 M.V.R. (2d) 308 (Alta. Q.B.) , R. v.

Chance, supra , - whether the accused had been warned that he was being given a final chance to provide a suitable sample, R. v. Tynkaluk, supra , R. v. Cameron , [1997] O.J. No. 587 (O.C.J.) , - where there is a direct refusal, the words spoken and whether they were equivocal, R. v. Taylor , [1998] O.J. No. 2167 (Ont. S.C.) , - where the Crown alleges a failure to provide a sample, the reasons given by the police constable for terminating the testing, R. v. Taylor, supra , - where there is a request to take a further test post arrest, whether the equipment and operator were still available, R. v.

Tynkaluk, supra , and, the ease of setup and operation of a screening device (to take a further test), R. v. Chance, supra, - the time delay, if any, between the arrest for failure or refuse and the request for another chance to provide a sample, R. v. Hines , [1998] O.J. No. 5831 (Ont. Gen. Div.) 8 minutes, R. v. Frianchi, supra immediate, - the reasons given by the police constable for not providing a further opportunity post-arrest if requested, R. v.

Taylor, supra , - other circumstances which tend to show whether or not there was a wilful failure or refusal by the accused to provide a suitable sample. 17 In cases where the accused asserts a “reasonable excuse” such as medical or other difficulty, further considerations apply. 18 In this case the following circumstances must be assessed: - that the accused was given a detailed explanation of the testing procedure, a demonstration, and a further explanation and demonstration of the mouthpiece after insufficient samples had been provided,

- that there is no evidence of any physical or other difficulty that might interfere with the accused’s understanding of the instructions or warning by the officer, - the evidence that in providing samples the accused displayed cheeks filled with air, “puffy cheeks” but did not blow air into the machine, or when he did blow air into the machine stopped short before a suitable sample was provided, - that the tests were conducted over a period of 29 minutes, - that 13 tests were attempted using two approved screening devices, - that the accused was warned that it was a criminal offence to refuse and then was given 7 further attempts to comply, - that the accused was told in detail of the consequences of a refuse or failure, - that the accused was warned that the 10 th test would be his final test, and then was given 3 further attempts to comply, - the evidence of P.C.

DeSousa that he terminated testing because he had concluded that the accused had been given ample opportunity to comply, - the fact that there were two devices available for a 14 th test and that the accused requested a further test after his arrest. [ 15 ] In the Furtado case, the Court quotes from Tavangari , and lists some of the many factors that the Court should consider. [ 16 ] On the basis of these passages, I believe I would be in error by focusing on the events that occurred after the four failed attempts. [ 17 ] In watching the video, it is apparent that Mr. Pole made a number of attempts.

On each occasion he immediately started coughing, and could not provide an adequate sample. He indicated that he suffered from asthma. I believe he may have been suffering from an asthma attack which is why he was coughing. The officer clearly stated that he believed Mr. Pole was trying and that he was turning red as he made these attempts. In argument, Mr. Tochor stated that each attempt made by Mr. Pole became shorter and shorter and there was more coughing. I believe he was correct in that assessment. I would conclude that while Mr.

Pole failed in these initial attempts to provide an adequate sample, he did so because of an asthma attack and coughing. In short, he was simply unable to provide that adequate sample. [ 18 ] In the case of R. v. Duchek , 2013 SKPC 84 , at paras. 48-50 , His Honour Judge Chow stated: [48] In the present case, the Accused submits she was willing throughout to provide samples, and that she attempted to comply with the demand, but was unable to do so due to a medical excuse. I am satisfied that she has met the evidential burden in that her testimony gives rise to the possibility of a reasonable excuse. [49] Ms.

Duchek testified that she was suffering from breathing problems at the time of the alleged offence, and further, that she attended upon a physician shortly thereafter and was diagnosed with COPD, a diminished lung capacity, and was prescribed medication. [50] Her evidence is corroborated somewhat by the evidence of Cst. Barnett, who recalled Ms. Duchek to complain she was not feeling well, and more importantly, by the video recording tendered by the Crown, wherein Ms.

Duchek can be clearly heard to cough and to advise the investigators she was unable to provide a sample, as she had been without her voice for weeks .

As for the fact that she had, earlier that evening provided an adequate ASD sample, I accept her explanation, that her medical condition was further aggravated by stress at the detachment, could reasonably be true. [ 19 ] It is clear that Judge Chow relied, at least in part, on the video and the accused’s coughing in determining that he had a reasonable doubt on the refusal charge. [ 20 ] Viewed against this backdrop, I ask what may be concluded from the officer’s request for further attempts and Mr. Pole’s statement that he did not wish to go any further. Can I conclude from this that Mr.

Pole was refusing to provide a sample? Mr. Pole may have been refusing, but I cannot reach this conclusion beyond a reasonable doubt. It seems to me that Mr. Pole may have been attempting to say something to the effect of “I gave it my best shot. That wasn’t adequate. I wasn’t able to provide a suitable sample. I don’t wish to go any further or try again.”

[ 21 ] I have a reasonable doubt about the matter, and as a result find Mr. Pole not guilty of the charge. [ 22 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan this 15 th day of January, 2014. D. Kovatch, J