Her Majesty the Queen - v. -, 2014 SKPC 135

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 135 Date: June 19, 2014 Information: 24485000 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Derek Elstad Appearing: Ms. B. Herder For the Crown Mr. M. Owens For the Accused JUDGMENT B.G. MORGAN , J [ 1 ] Mr.

Elstad is charged with failing or refusing to comply with a demand to provide a s. 254(2) breath sample for analysis by means of an approved screening device, contrary to s. 254(5) of the Criminal Code . [ 2 ] The Defence takes issue with the validity of the demand for two main reasons. The first is that the officer at no time told Mr. Elstad that the sample was to be provided “forthwith”, and the second is that the officer, when reading the demand to Mr. Elstad, who was at that time in the back of the police car, used the phrase that Mr. Elstad was to “accompany me”.

Thus, there are three questions to be decided:

1. Was there a valid s. 254(2) demand? 2. If there was, has the actus reus and the mens rea for the offence been established? 3. If the offence has been established, does Mr. Elstad have a reasonable excuse? [ 3 ] The facts are as follows. I start by noting that this was an otherwise routine stop. Constable Doucette of the RCMP was on patrol at approximately 10:10 p.m. on November 13, 2012 near Zealandia when he passed by a vehicle being driven by Mr. Elstad and determined to do a traffic stop for reasons of checking the driver’s registration, licence, and sobriety. Although the officer was not sure of the exact

section of The Highway Traffic Act under which he was proceeding, I have no doubt and I accept fully that his purpose in making the stop was for the purposes set out in s. 209.1 of The Highway Traffic Act , which allows an officer to make a stop for precisely those purposes. [ 4 ] Upon approaching the vehicle, Constable Doucette smelled what he referred to as “a strong odour of beverage alcohol”, and asked Mr. Elstad if he had been drinking liquor that night, to which the latter replied that he had been drinking at supper time. Adding that response to his observations of an odour of beverage alcohol on Mr.

Elstad’s breath, Mr. Elstad’s glassy eyes, and the fact that Mr. Elstad’s cheeks were a little red, the officer testified that he “suspected he had alcohol in his body and had been driving in the preceding three hours”. Based on that, Constable Doucette asked Mr. Elstad to step out of his car so that the officer “could do a roadside approved screening device test to see if he was safe to drive home”. [ 5 ] Mr. Elstad was promptly seated in the back of the police car, with Constable Doucette in the front.

Constable Doucette read the following demand from a card he had with him: I have reasonable grounds to suspect that you have alcohol in your body. In accordance with the Criminal Code , I demand you provide a sample of your breath suitable for analysis in an approved screening device and that you accompany me for the purpose of providing such sample. Do you understand? [ 6 ] Mr. Elstad’s reply was either “yes, and I refuse” or “yes I refuse”.

I can’t determine after listening to the evidence whether or not the word “and” was being added by Constable Doucette, but in any event, this was a clear and unequivocal refusal. [ 7 ] Constable Doucette, being surprised at that response, stated the following in the form of a query: “You refuse to give a sample of your breath?” [ 8 ] Mr. Elstad’s response was “yes”. [ 9 ] Constable Doucette then said “well, if you refuse to give a sample of your breath, you will be charged with refusal. Do you understand?” [ 10 ] The exact answer from Mr.

Elstad was again either “yes and I refuse” or “yes I refuse”. [ 11 ] The officer arrested him for “refusal”, and when he asked Mr. Elstad if he understood, Mr. Elstad said “yes”. [ 12 ] Rights to counsel were read and when Mr. Elstad was asked if he understood, he stated “yes”, and when he was asked whether he wanted to contact a lawyer now, he stated “not right at this moment . . . I’ll contact one on Monday.” I am not sure from the audio tape if he actually said “not right at this time . . . all the same I will contact one on Monday”. His obvious intent was not to contact

a lawyer at that time. [ 13 ] In cross-examination, much was made of whether or not the officer actually used the words “approved screening device” when explaining what he wanted from Mr. Elstad. The officer checked his notes, which had recorded “driver asked to come with police and give an ASD test”. [ 14 ] The officer also stated “I don’t believe I ever fully explained what ASD meant”, a response that quite frankly is puzzling. The clear wording of the demand that was read to Mr.

Elstad would, on any rational reading, certainly explain that an “approved screening device” was intended to receive “a sample of your breath suitable for analysis”. The point that was made in cross-examination was that, in conversation before the formal reading of the demand, it may be that the officer only said “ASD”. His evidence in-chief, as indicated earlier, was that he conveyed information to Mr. Elstad that he wanted to do a “roadside approved screening device test”, but that may be the officer’s

interpretation of what he said. [ 15 ] Another point that was drawn out in cross-examination was that at no time did Constable Doucette use the word “forthwith”, which is a word that does appear in the Criminal Code under s. 254(2) (b), in which it states that, assuming a peace officer has “reasonable grounds to suspect that a person has alcohol or a drug in their body” . . . he or she can require that person “to provide forthwith a sample of breath. . .”. [ 16 ] The third point elicited during cross-examination was that the officer did use the words “accompany me” while Mr.

Elstad was physically in the police vehicle. Mr. Owens’ suggestion to the police officer was that such an expression was redundant, as, if the officer knew he wasn’t going anywhere, it was unnecessary to use the words “accompany me”. Cst. Doucette’s explanation was that he meant the police car, that is, he intended to take the test there. [ 17 ] Mr. Elstad testified, and he said he had consumed a draught beer at supper time. He further said the officer told him that he had been pulled over to check for licence, registration and sobriety.

He said the officer did not explain what was going on, basically telling him that he wanted Mr. Elstad to go with him to “see if I was able to drive”, which I conclude would have been stated to Mr. Elstad while he was still in his own vehicle, and that there was no mention of any type of device until they were in the police car. [ 18 ] Mr. Elstad said that he thought what was being requested “was the instrument downtown” and that when he was told he was required to “accompany” the officer, “I thought I was under arrest”, and therefore would shortly be going to the station.

On this point, there is no dispute that Zealandia is very close to Rosetown, the detachment that Constable Doucette was stationed at, and obviously the reference to “downtown”, meant “downtown Rosetown”, that is, the Rosetown detachment of the RCMP. [ 19 ] Mr. Elstad’s explanation as to his comments respecting a lawyer was that he thought that at that time, it was too late for him to call, as he had been charged, and he would therefore call a lawyer at some point. He did say he would have liked to have spoken with a lawyer before he gave his sample at the Rosetown detachment.

When asked what he was refusing, he stated “I was refusing to go to Rosetown for the test”, again reiterating that, in his mind, “the test” was what I am satisfied would be the instrument used to determine the concentration, if any, of alcohol in his blood, as opposed to an approved screening device. He said that he had no prior experience with an approved screening device. [ 20 ] In cross-examination, Mr. Elstad agreed that the officer said he was checking him to see if the former was okay to drive, and the officer never said where they were going.

He acknowledged that, when asked if he understood, after the demand was read, he did say yes, although he understood that to mean it was a sample of his breath that would be taken later at the detachment. He did state that he knew the officer was asking for a sample of his breath, and that he did refuse, and that he was informed that he would be charged if he didn’t provide the sample. [ 21 ] The Defence argues that s. 254(2) (

b) of the Criminal Code does use the word “forthwith”, and that the card that the officer read from did not state it required a sample to be “forthwith”, adding that the officer did not say anything to that effect in any other words. This view would arguably support Mr. Elstad’s

interpretation of what was expected of him.

[ 22 ] With respect to the phrase “accompany me”, Mr. Owens argues that a person needs to know what he or she is to comply with, and as Mr. Elstad was not advised of the “forthwith” requirement, and as he was also advised that he was going somewhere, the mens rea for the offence has not been made out. [ 23 ] Further, if the mens rea has been established, Mr. Owens argues that there is then a reasonable excuse, which would at least comprise “an honest but mistaken belief that defeats the mens rea ”. In essence, as Mr. Owens puts it, “you can’t refuse what you don’t understood”. [ 24 ] Ms.

Herder argues that the elements of the offence are set out in the case of R. v. Lewko , 2002 SKCA 121 , that there was a proper demand, and that the use of the word “forthwith” in the Criminal Code puts an onus on the officer to obtain the sample forthwith, but puts no obligation on the officer to actually use the word “forthwith”. [ 25 ] With respect to Mr.

Elstad’s intention, she argues that it was clear that he understood what was required, and that whether he was refusing to provide a sample at the station or otherwise does not really matter; he refused to provide a sample of breath. [ 26 ] She further argues that there is no air of reality to Mr. Elstad’s argument that he didn’t know what was required of him. [ 27 ] Against that background, I will resolve this case. 1. Was there a valid s. 254(2) demand? [ 28 ] In R. v.

Lewko , 2002 SKCA 121 , at para. 9 our Court of Appeal stated: The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existence of a demand having the requirements of one of the three types mentioned in (2) and (3). Second, the Crown must prove a failure or refusal by the Defendant to produce the required sample of breath or the required sample of blood (the actus reus ).

Third, the Crown must prove that the Defendant intended to produce that failure (the mens rea ). [ 29 ] The Court went on to explain that establishing those three elements “may be looked upon as the first stage of the proceedings”, the result being that if the Crown has done so, the defendant will be found guilty unless he raises a defence. That is, he can “present not only a defence ordinarily cognizable by law, but a defence constituted by any excuse that is “reasonable”.

That is the effect of the use of the phrase “without reasonable excuse” in the context of s. 254(5) ” (para. 10). [ 30 ] I find this was a lawful demand. The relevant portions of s. 254(2) read: 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, within the preceding three hours, operated a motor vehicle . . . a peace officer may, by demand, require the person to: (

b) 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. [ 31 ] The use of the word “forthwith” in the

section does not mandate the use of the word “forthwith” in the demand. This exact same argument was raised by Mr. Owens in R. v. Edwin Tesser , an unreported decision of Judge Scott, dated June 11, 2013. At paras. 21 through 24 she dealt with this specific issue. In that case, at the time the demand was read, the accused was in the rear of the patrol car. I agree totally with the result that Judge Scott arrived at, which was that:

Although the word “forthwith” appears in s. 254(2) of the Code its inclusion is not essential to a proper demand, so long as the demand is made and the sample is taken forthwith.

In short, the directive is to the police officer to get the sample “forthwith”; there is no requirement that the police officer say “forthwith”. [ 32 ] At para. 24 Judge Scott held that “the use of the words accompany me” in these circumstances did not render improper the otherwise proper demand nor could there reasonably be any confusion or doubt that the officer was asking the accused to provide a sample of his breath into an approved screening device. [ 33 ] Mr. Owens argued that, as Tesser is under appeal, it has no precedential value. I disagree with that proposition.

Unless and until that case is overturned on that point (and to my knowledge, it remains on reserve), the law is as stated by Judge Scott. Whereas it is not binding on me as it is a decision of a Court of the same level at which I sit, it is so eminently clear and reasonable that I choose to adopt it and apply it to this case. [ 34 ] Mr. Owens relies on the case of R. v.

Tornsey , 2007 ONCA 67 , in which the trial judge did dismiss a similar charge partly due to the fact that the word “forthwith” was not used in a demand. (The Court of Appeal ruled that... “the missing word “forthwith” did not render the demand invalid”.) Mr. Owens relies on the case for the proposition that: The demand need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his or her breath forthwith.

The Court went on to state that this can be accomplished through words or conduct, including the “tenor [of the officer’s] discussion with the accused” (para. 6). I am satisfied that, in looking at all the circumstances of this case, the forthwith requirement was made clear to Mr. Elstad. [ 35 ] I find that the Crown has proven a refusal by the defendant to produce the required sample of breath and that the actus reus has been made out. The demand was clearly read to him, and Mr. Elstad acknowledged that he understood, and he promptly refused.

The officer questioned him a second time on that point, eliciting the exact same response. When being told that if he continued to refuse, he would be charged with refusal, and asked if he understood, Mr. Elstad said for a third time that he both understood, and he refused. [ 36 ] I take the response “yes” to the question “do you understand” to mean exactly what it states. The officer was clear in his evidence that he had no reason to believe that Mr. Elstad lacked comprehension and I note on the facts of this case that, even if “yes” were to somehow mean something different, Mr.

Elstad chose not to share that information with the officer. The actus reus is made out. [ 37 ] I find that the mens rea has been made out in that Mr. Elstad intended to produce a refusal. The use of the words “I refuse”, leaving aside any actus reus issues, clearly conveys the intention of Mr. Elstad, that is, his intention to not provide a breath sample. All of his actions are consistent with this intention. His reason, or motive, for refusing may have been because he thought he was being asked to go to Rosetown to provide the sample (which I do not believe), but that does not change his intention.

I have no question that, in responding to the query as to whether or not he understood the ASD demand and stating that he did, and in refusing to provide that sample, Mr. Elstad was making it clear that he was not going to provide a breath sample, irrespective of where he was not going to provide that breath sample. [ 38 ] To the extent that the argument is made by Mr. Owens that there was a misunderstanding here that negates the mens rea, in that Mr. Elstad may have misunderstood what was being requested of him, I find as a fact that Mr.

Elstad completely understood at all times precisely what was happening, and that his protestations of being under some misunderstanding or misapprehension are completely untenable. Had Mr. Elstad in fact not understood, despite his clear and unequivocal acknowledgment that he did understand, he could have stated so. Further, even if he thought that he and the officer were going somewhere else for the sample, that would not provide an excuse, as Mr. Elstad was under a legal obligation to accompany the officer if that were necessary; the argument that Mr.

Elstad might have thought it was necessary, or not necessary, changes nothing. [ 39 ] I completely reject the evidence of Mr. Elstad and I accept the evidence of the officer.

[ 40 ] Although the officer finally conceded that he might not have actually used the words “approved screening device” in speaking to Mr. Elstad initially, he made it abundantly clear to him that the latter was to go with him to the police car to see if he was safe to drive home. That was followed up by the specific use of the words “approved screening device” in the vehicle. To somehow interpret the demand that was made to mean a breath demand at a police station is not tenable. Obviously, from the outset, the officer was wanting to find out if Mr. Elstad was “safe to drive home”, that being Mr.

Elstad’s stated destination when he was stopped. [ 41 ] Further, even allowing for the fact that Mr. Elstad had no prior experience with the ASD demand, it was clearly stated in the demand itself that it was to be an approved screening device. I am fully satisfied that Mr. Elstad did not believe, nor did he have any reasonable grounds to mistakenly believe, that what was being requested of him was a sample to be taken downtown. [ 42 ] Finally, the idea that Mr.

Elstad would have provided a breath sample at the station, but he would have wanted to speak to a lawyer first, is belied by his own statement to the officer at the time of receiving his Charter warning. Mr. Elstad initially stated to the officer, after he had been arrested for refusal, that he would put off speaking to a lawyer “until Monday”, which implies another day. He then gave evidence that he would have wanted to talk to a lawyer before providing an Intoxilyzer sample at the station, which could only have meant later that night, by his own account.

I found his evidence to have been tailored to fit a defence he created after the fact. [ 43 ] All of the essential elements of the offence have been established, and Mr. Elstad has failed to raise a defence “cognizable at law”. He has failed to provide a reasonable excuse. He is guilty of the offence charged. ________________________ B.G. Morgan, J