Her Majesty the Queen - v. -, 2021 SKPC 58

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 58 Date: November 24, 2021 Information: 991149235 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Albert Von Ledebur Appearing: Gennadiy Bogutskiy For the Crown Thomas Hynes For the Accused DECISION M. B EATON, J [ 1 ] Albert Von Ledebur has pleaded guilty to refusing to provide a breath sample into an approved screening device pursuant to a mandatory alcohol screening (MAS) demand made by a peace officer under

section 320.27(2) of the Criminal Code [ Code ], contrary to

section 320.15(1) of the Code . As a result, Mr. Von Ledebur faces a criminal conviction and a mandatory minimum penalty of $2,000.00. He asserts that the minimum penalty is cruel and unusual punishment violating

section 12 of the Charter . In particular, he states that the minimum penalty is grossly disproportionate to the appropriate punishment in this case, considering the circumstances of the offence and his personal circumstances. He suggests that the appropriate punishment is a discharge.

Summary of the Facts [ 2 ] On December 19, 2020, at approximately 8:45 p.m., Mr. Von Ledebur was operating a motor vehicle when he was stopped by Cst. Pence, who was taking

part in a SGI Overdrive Enforcement Project to detect impaired drivers in Regina. The officer stopped Mr. Von Ledebur because he could not read his vehicle’s dirty licence plate and he wanted to determine the registration status of the vehicle. [ 3 ] Cst. Pence approached the vehicle and advised Mr. Von Ledebur that he had been stopped due to his unreadable licence plate and that, because of the project to detect impaired drivers, the officer would be making a demand for a MAS roadside sample of Mr. Von Ledebur’s breath. Upon the demand being read, Mr. Von Ledebur became very agitated and angry.

He uttered numerous profanities, wished poor fortune on the officer and accused him of being racist. The officer advised him of the consequences of a refusal and tried to reason with him, but Mr. Von Ledebur refused to provide a sample and continued to swear and utter profanities. He was eventually arrested for refusing. Given Mr. Von Ledebur’s behavior, the officer asked for police assistance in transporting him to the police station. [ 4 ] Mr. Von Ledebur was still very agitated when Cst. Marcia arrived to assist. He continued swearing at both officers and was described as uninterruptible.

The officers still could not reason with him. Consequently, he was held in police cells for approximately 11 hours due to his extreme agitation and for his well-being. He was to be released when calm. There is no evidence that Mr. Von Ledebur had consumed alcohol that evening. [ 5 ] Mr. Von Ledebur is 29 years old and has no criminal record. His mother is of Mexican descent and is separated from Mr. Von Ledebur’s German father. Mr. Von Ledebur has obtained his Grade 12 and has taken some university classes. He has worked in the service industry, in warehouses, and as a delivery driver.

He is also involved in the music industry as a musician. He states that he had been stopped by police numerous times in 2020 with the last time being days before the offence date and he felt that police were stopping him because of his race. Following the demand to provide a sample of his breath, he questioned the legality of the demand and now states that he misunderstood or was confused about the law. Given that this was a roadside demand, Mr. Von Ledebur was not given an opportunity to speak with a lawyer to clarify the law respecting the validity of the roadside breath demand.

Position of the Parties Defence [ 6 ] Mr. Von Ledebur argues that a discharge is the appropriate sentence in this case given his lack of criminal record, his lack of impairment when he was stopped by police, his youthfulness, his belief that the demand was not valid, his belief that he was being discriminated against, and the fact he was held for approximately 11 hours at the police station prior to being released. He states that the minimum fine is grossly disproportionate in this case. [ 7 ] Mr.

Von Ledebur argues that his moral culpability is lower than that of an individual who has been drinking and refuses to provide a breath sample. In other words, he states there has to be a difference in penalty for a sober driver who is confused about the law and a drunk driver who does not want to incriminate himself and wishes to thwart a police investigation. As well, Mr. Von Ledebur states that the minimum punishment criminalizes offenders who are not drinking and driving and removes the Court’s discretion to impose a discharge.

Crown [ 8 ] Crown counsel argues that drinking and driving continues to be a leading cause of death by criminal offence in Canada and impaired driving charges continue to increase. As a result, Parliament has increased the ability to detect impaired drivers by allowing police officers to make MAS demands without having a belief that drivers have alcohol in their bodies. Crown counsel argues that this policy change would not be enforceable if drivers who are not obviously impaired or who may be sober could refuse and not face the same penalties as impaired drivers who refuse to provide a breath sample.

Crown counsel does not want this Court to send the message that those who refuse a MAS demand could obtain a discharge, thereby negatively impacting Parliament’s scheme to detect impaired drivers who refuse to provide a breath sample. [ 9 ] He further argues that driving is an inherently dangerous activity that must be regulated. It is a privilege to drive, not a right,

and drivers must be assumed to have agreed to provide a roadside sample of breath when they get behind the wheel. Analytical Framework for a Constitutional Challenge to a Mandatory Minimum Sentence [ 10 ] Provincial Court Judges do not have the power to declare that a law is of no force and effect. However, a judge can find that a law is unconstitutional and refuse to apply that law to a particular case. In other words, judges have a duty to impose sentences that are constitutional in each sentencing case that is before them.

However, in the interest of judicial economy, judges have no obligation to consider the constitutionality of a mandatory minimum sentence if the minimum sentence would have no impact on the sentence in the case at issue: R v Lloyd , 2016 SCC 13 , 334 CCC (3d) 20 at para 18 [ Lloyd ]. [ 11 ]

Section 12 of the Charter provides that “[e]veryone has the right not be subjected to any cruel and unusual treatment or punishment”. A sentence will infringe

section 12 as cruel and unusual if it is grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender before the court. As well, a law will violate

section 12 of the Charter if the law’s reasonably foreseeable applications would impose grossly disproportionate sentences on others: Lloyd at para. 22 . These reasonably foreseeable cases must be based on situations that may reasonably be expected to be caught by the mandatory minimum. As well, they cannot be far-fetched or remotely imaginable using personal features to construct the most innocent and sympathetic case imaginable. The inquiry must be grounded in common sense and experience: R v Nur , 2015 SCC 15 at paras 74 and 75 , 322 CCC (3d) 149 [ Nur ].

As well, the hypotheticals should be ones that commonly arise with a degree of generalities appropriate to the particular offence: R v Morrisey , 2000 SCC 39 , [2000] 2 SCR 90. [ 12 ] The Court in Nur expressed the problem that minimum sentences can cause when a court examines the sentencing principle of proportionality in a particular case : [44] Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing.

They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality.

They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result.

They affect the outcome of the sentence by changing the normal judicial process of sentencing. [ 13 ] If a sentencing Court decides to embark on an analysis of the constitutionality of a mandatory minimum sentence to determine whether it constitutes cruel and unusual punishment, it must follow the two steps stated in Lloyd : [23] …First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code .

The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonable hypothetical case framed at a high level of generality. But the court should consider, even implicitly, the rough scale of the appropriate sentence.

Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances… In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence that is fit and proportionate… [ 14 ] The Supreme Court of Canada has established a high bar for finding that a sentence represents a cruel and unusual punishment stating the sentence must be more than merely excessive or harsh.

The Court in Lloyd at para. 24 stated that a sentence must be one that is: …so excessive as to outrage standards of decency and abhorrent or intolerable to society….The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate. [ 15 ] As well, great deference must be given to Parliament’s sentencing scheme and valid legislative objectives. Therefore,

section 12 challenges will be successful only in the clearest of cases. The test is therefore stringent and demanding: R v Morrison , 2019 SCC 15 at para 143 , 375 CCC (3d) 153, Nur at para 39, R v Latimer , 2001 SCC 1 at paras 76 – 77 , 150 CCC (3d) 129. [ 16 ] As previously mentioned, the law’s reasonably foreseeable application or the scope of the offence is an important factor relevant to the assessment of whether a mandatory minimum sentence is grossly disproportionate. The cases of Nur , Lloyd and R v Smith

(1987), (SCC), 58 CR (3d) 193 (SCC) [Smith] demonstrate examples of extremely broad ranges of conduct and varyinglevels of moral culpability which will lead to a finding that a minimum sentence is unconstitutional. [17] In Nur, the Court held that it was reasonably foreseeable that section 95(2)(

a) of the Code, which makes possessing loadedprohibited firearms a crime, would potentially catch both serious criminality and licencing offences that involved little or no moral faultand little or no danger to the public. In Lloyd, the minimum mandatory sentence for an offender who possessed drugs for the purpose oftrafficking and who had a recent prior conviction for a similar offence was held to be unconstitutional since the minimum mandatorypenalty covered a wide range of potential conduct.

As a result, it caught not only the serious drug trafficking but also the addict who wascharged for sharing a small amount of drugs with a friend. In Smith, the mandatory seven year sentence for importing narcotics wasstruck down because it could equally apply to an international drug dealer or to a naïve student carrying a single marijuana cigarette. Analysis What is the appropriate sentence in this case? [18]

Section 320.15(1) of the Code provides a mandatory minimum penalty of $2,000.00 for refusing to provide a breath sample toa peace officer upon demand. If I find this sentence to be grossly disproportionate, I could then impose a discharge pursuant to section730(1) of the Criminal Code if it was in the best interests of the accused and it would not be contrary to the public interest. [19] A sentencing decision must be guided by the provisions of

section 718 to 718.2 of the Code. According to these provisions,the fundamental purpose of sentencing is to contribute to respect for the law and to maintain a just, peaceful and safe society by imposingjust sanctions. Just sanctions must reflect the sentencing objectives of denunciation, general and specific deterrence, separation ofoffenders, rehabilitation, reparation, promotion of a sense of responsibility in the offender and acknowledgment of the harm caused to thevictim and to the community. The relative emphasis to be placed on each of these objectives varies according to the circumstances of theoffence and the offender. [20]

Section 718.1 of the Criminal Code states that a sentence must be proportionate to the offence and the degree of responsibilityof the offender. Proportionality ensures that a sentence reflects the gravity of the offence and properly reflects and condemns theoffender’s role in the offence and the harm he caused. As well, the principle of proportionality ensures that a sentence does not exceedwhat is appropriate, given the moral blameworthiness of the offender.

The degree of responsibility of the offender refers to the offender'sculpability as reflected in the essential substantive elements of the offence, especially the fault component. [21] A just sanction is one that reflects and balances both perspectives on proportionality.

The application of the proportionalityprinciple may cause the two factors to conflict, particularly where the gravity of the offence points strongly to a sentence at one end ofthe range while the moral culpability of the offender points in the other direction. [22] A Court that imposes a sentence must also consider any relevant aggravating or mitigating circumstances relating to theoffence or the offender. The presence of aggravating or mitigating circumstances relate to either or both the gravity of the offence and thedegree of responsibility of the offender.

Although the principle of parity of sentences must also be applied, the determination of aproportionate sentence remains a highly individualized exercise. [23] The Courts have repeatedly stated that impaired driving and its potentially catastrophic consequences are a pressing socialissue in Canadian society. In order to safeguard the health and lives of people who may be in or near motor vehicles driven by impaireddrivers, Parliament has enacted a legislative scheme aimed at deterring impaired driving and catching impaired drivers before anyone isinjured.

This legislative scheme includes ways of detecting drinking drivers with roadside breath testing and mandates a criminalconviction for those who refuse to provide breath samples. [24] Mandatory minimum penalties and maximum penalties for impaired driving and refusing to provide breath samples have been increased over the years. As the Court stated in R v Lacasse, 2015 SCC 64 at para 7: [7] The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences tobe punished more harshly.

Despite countless awareness campaigns conducted over the years, impaired driving offences still cause moredeaths than any other offences in Canada: House of Commons Standing Committee on Justice and Human Rights, Ending Alcohol-

Impaired Driving: A Common Approach (2009), at p. 5. [ 25 ] The legislative scheme to deal with impaired driving offences was substantially amended by Parliament in 2018. Prior to the 2018 amendments to the Code , a police officer could only demand a breath sample at the roadside if the officer had reasonable grounds to suspect that a driver had alcohol in his body. It was an offence to refuse to provide such a sample and the minimum penalty of $1,000.00 was identical to the minimum fine for the offence of impaired driving.

The 2018 amendments mandated individuals who were operating a motor vehicle to immediately provide a roadside breath sample upon a demand being made by a police officer, provided the officer had in his possession an approved screening device. In such a case, the officer was no longer required to suspect that a driver may have alcohol in his body. The minimum penalty for refusing to provide any breath sample, whether or not an officer had suspected the driver had alcohol in his body was also increased to $2,000.00.

This minimum fine is now higher than the minimum fine for driving while impaired in order to deter drivers from refusing to provide a sample. Parliament has therefore decided that refusing to provide a breath sample in response to a MAS demand is a serious matter that requires a serious sentence as a deterrent. It has also decided that a discharge would not be in the public interest. [ 26 ] The gravity of the refusal offence was examined in R v Suter , 2018 SCC 34 , [2018] 2 SCR 496 [ Suter ] which involved a refusal where the driver’s actions had caused a death.

The Court stated that a refusal in response to a lawful request deprived the police, the court, the public, and the family of the deceased of the best evidence as to the driver’s state of impairment. As well, a refusal “place(

d) a barrier in the way of the ongoing efforts and pressing objective of deterring, denouncing, and putting an end to the scourge of impaired driving.”: Suter at para. 93 . [ 27 ] The gravamen of the offence of refusing to provide a breath sample is the refusal itself. Therefore, the gravity of the offence and the moral blameworthiness of the offender stem primarily from the refusal itself: Suter at para. 81 . The gravity of the offence of refusal will rarely change based on the circumstances of the refusal.

In other words, there are no small offenders in refusal cases: either they refuse, or they do not: R v Riopelle , 1992 CarswellOnt 31 (Ont Ct J) . If drivers have a reasonable excuse for not providing a sample, they will be acquitted. Also, it should not matter whether a death has occurred since one of the purposes of a roadside demand, whether or not an officer has grounds to make a demand, is the prevention of injury and deaths.

Given the importance of the legislative scheme for the prevention of impaired driving, the offence of refusing to provide a breath sample in response to a MAS demand is not minor or technical, even if there are no outward signs of alcohol consumption. [ 28 ] Mr.

Von Ledebur states that his moral culpability is reduced as he believed that he was being discriminated against and misunderstood the law. [ 29 ] A true mistake of law will be a mitigating factor in sentencing because offenders who honestly but mistakenly believe in the lawfulness of their actions are less morally blameworthy than offenders who know that their actions are unlawful: Suter at para. 64 . A mistake of law turns on the accused's subjective belief in the legality of his or her conduct.

While a police officer's instruction that certain conduct amounts to an offence is not dispositive of that subjective belief, it may be relevant to the sincerity of the belief: Suter at para. 71 . [ 30 ] Confusion or uncertainty as to the lawfulness of one’s actions, as opposed to a true mistake of law, may also be a mitigating factor, depending on the facts of the particular case: Suter at para. 65 . [ 31 ] I have no reason to believe that Mr. Von Ledebur was deliberately trying to thwart the police investigation of an impaired driver and his moral culpability is therefore reduced somewhat.

Although the facts of this case do not establish the legal requirements for mistake of law as set out in the Suter decision, I accept that Mr. Von Ledebur felt he did not need to provide a breath sample. [ 32 ] Mr. Von Ledebur also argues that his lack of impairment should reduce his moral blameworthiness. The moral blameworthiness of a sober person who fails to provide the police with a breath sample clearly differs from that of an impaired person who deliberately refuses to provide a breath sample: Suter at para. 78 .

However, the Court also held that there are strong policy reasons for limiting the mitigating effect of non-impairment at a sentencing hearing for a refusal offence: Suter at para. 79 . First, sentencing hearings should not be turned into impaired driving trials. Second, the seriousness of the offence and the moral blameworthiness of the offenders comes primarily from the refusal itself, not from the offender’s level of impairment. Third, relying too much on non- impairment as a mitigating factor at sentencing would create an incentive to refuse: Suter at paras. 80-82 . [ 33 ] Mr.

Von Ledebur’s moral culpability is less than that of an impaired driver or one who had been drinking and who wanted to impede an impaired driving investigation. He believed that he did not need to provide a breath sample. However, he refused to even entertain the advice from the officers about the legality of his refusal. He was rude, obnoxious, and lacked self-control. His moral

culpability is greater than a driver who refused to provide a breath sample because of ill-informed and incorrect legal advice as in the Suter case. [ 34 ] Although Mr. Von Ledebur was held for 11 hours overnight at police cells due to his extreme agitation, I was not presented with facts that would justify an 11 hour detention. Therefore, even without deciding whether Mr.

Von Ledebur was arbitrarily detained, and assuming there was no mandatory minimum sentence, I would still take this detention into account in determining a fit sentence given that he was not impaired. [ 35 ] In conclusion, given the gravity of the offence of refusing to provide a breath sample in response to an MAS demand, Mr.

Von Ledebur’s slightly reduced moral culpability and the length of time he was held at the police station prior to release, I would still impose a fine as I do not believe that a discharge would be in the public interest given the importance of the legislative scheme to combat drinking and driving. I find that a fine of $1,000.00 would be a fit sentence in this case.

Is the Mandatory Minimum Sentence Grossly Disproportionate? [ 36 ] Given that I have found that a fine and criminal conviction is warranted in this case, I will be brief in my analysis as to whether the mandatory minimum sentence is grossly disproportionate. The scope of the offence of refusing to provide an MAS sample does not capture a broad range of conduct and varying levels of moral culpability as seen in cases such as Smith , Nur and Lloyd .

The minimum sentence of $2,000.00 constitutes a proportionate sentence for the offence of refusing a MAS demand having regard to the objectives and principles of sentencing. Although the mandatory minimum fine is greater than the fine I would have imposed, it is far from grossly disproportionate. The mandatory minimum fine would also not be a grossly disproportionate sentence in a reasonably foreseeable case. Mr. Von Ledebur argues that the mandatory minimum penalty would be grossly disproportionate in the following hypotheticals which are quoted from his Charter notice: a.

A young Indigenous person without a criminal history is stopped by the police while driving at night. The driver is sober, but the police make a MAS demand of the driver. The police officer’s decision to make the MAS demand is based, whether in whole or in part, on stereotypes and racial prejudices. The driver refused to comply with the demand because the driver is reasonably mistaken about the legal authority for the demand and the driver’s distrust of police because of the impact of colonization and integrational trauma.

The police officer takes the driver to the police station, and the driver is arbitrarily kept in police cells overnight because of the police officer’s

interpretation of police policy for detaining individuals charged with impaired driving related offences. The driver enters an early guilty plea upon receiving legal advice. b. The circumstances of the offence and the circumstances of the overholding are similar as hypothetical (a), but the offender is a foreign national or permanent resident. The driver refuses to comply with the demand because the driver is reasonably mistaken about the relevant Canadian law. The driver is similarly held in police cells overnight.

Under the Immigration and Refugee Protection Act , the driver would be rendered inadmissible on grounds of serious criminality as a result of a criminal conviction for refusal to provide a breath sample and subject to deportation. The driver nonetheless enters an early guilty plea. [ 37 ] In my view, these hypothetical fact scenarios can be characterized as extreme or remote and “use personal features to construct the most innocent and sympathetic case imaginable”: Nur at para 75 . They are not general hypotheticals of the type found in Smith , Nur and Lloyd .

Therefore, they should not be treated as reasonably foreseeable cases that the law might capture. Conclusion [ 38 ] The mandatory minimum punishment for refusing a MAS demand has not been demonstrated to be "grossly disproportionate", for the purpose of

section 12 of the Charter, in the particular circumstances of Mr. Von Ledebur and the offence which he committed or for other persons in reasonably foreseeable cases. [ 39 ] I therefore impose the mandatory fine of $2,000.00. I also prohibit Mr. Von Ledebur from driving on any street, road, or other public highway for a period of one year.

______________________ Beaton, J