Her Majesty the Queen - v. -, 2014 SKPC 104

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 104 Date: July 22, 2014 Information: 25123410 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - David Joseph Gieni Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh, Q.C. For the Accused JUDGMENT M. GORDON , J [ 1 ] David Joseph Gieni is charged on or about the 1 st day of February A.D. 2013, at or near Moose Jaw, Saskatchewan did without reasonable excuse fail or refuse to comply with a demand made to him by a peace officer pursuant to s. 254(3) (

a) of the Criminal Code to provide samples of his breath for analysis contrary to s. 254(5) of the Criminal Code . [ 2 ] After hearing the evidence and submissions by counsel, I noted that Mr. Gieni was charged with refusal pursuant to s. 254(3) of the Criminal Code . All of the evidence and submissions by counsel were with respect to a refusal of the approved screening device demand pursuant to s. 254(2) of the Criminal Code . I raised this issue with counsel and the Crown immediately applied for an amendment of the

section number to conform to the evidence pursuant to s. 601 of the Criminal Code .

[ 3 ] The Crown argued that this Court is bound by the recent decision from the Court of Queen’s Bench, namely R. v. Fuller , 431 Sask. R. 232 . In paragraphs 21 through 25, Mr. Justice Elson in the identical situation, discussed and decided that the accused had not been misled or suffered any prejudice and therefore overturned the trial judge’s decision and allowed the amendment. The Crown suggested in the within case that the defendant’s opposition to this amendment is a matter of convenience. The Crown noted all of the evidence centred on the refusal of the approved screening device.

The accused would not have conducted his case any differently. If the accused had been confused or misled, the Crown was prepared to reopen its case and recall the investigating officer. The Crown says that the charge of refusal can be committed in one of two ways. Therefore this application would result in amending a particular rather than creating a new offence. [ 4 ] The defence relies on the case from the Provincial Court of Nova Scotia, namely R. v. Lombard , 2013 NSPC 133 . The defence argued that the amendment would result in a totally new charge.

The defence notes that the grounds for a breathalyzer test and as well the Charter requirement of right to counsel makes s. 254(3) of the Code an entirely new offence. The defence argues that there would be prejudice to his client in that any amendment would result in an abuse of process and the defendant would have to appeal. [ 5 ] The first issue I need to decide is whether an amendment to the charge is in order pursuant to s. 601 of the Criminal Code . It is noted that the Information as it stands now reads in part “fail or refuse to comply with a demand made to him by a peace officer pursuant to s. 254(3) (

a) of the Criminal Code ”.

Section 601 applies to

summary proceedings as well pursuant to s. 795 of the Criminal Code . The relevant portion of s. 601(2) reads as follows:

(2) Subject to this section, a court may, on the trial of an indictment, amend the indictment or a count therein or a particular that is furnished under

section 587, to make the indictment, count or particular conform to the evidence, where there is a variance between the evidence and (

a) a count in the indictment as preferred; or (

b) a count in the indictment (

i) as amended, or (ii) as it would have been if it had been amended in conformity with any particular that has been furnished pursuant to

section 587.

(3) Subject to this section, a court shall, at any stage of the proceedings, amend the indictment or a count therein as may be necessary where it appears (

a) that the indictment has been preferred under a particular Act of Parliament instead of another Act of Parliament; (

b) that the indictment or a count thereof (

i) fails to state or states defectively anything that is requisite to constitute the offence, (ii) does not negative an exception that should be negatived, (iii) is in any way defective in substance, and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the preliminary inquiry or on the trial; or (

c) that the indictment or a count thereof is in any way defective in form.

(4) The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider (

a) the matters disclosed by the evidence taken on the preliminary inquiry; (

b) the evidence taken on the trial, if any; (

c) the circumstances of the case; (

d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and (

e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done.

(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to (

a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or (

b) the place where the subject-matter of the proceedings is alleged to have arisen, if it is proved that it arose within the territorial jurisdiction of the court.

(5) Where, in the opinion of the court, the accused has been misled or prejudiced in his defence by a variance, error or omission in an indictment or a count therein, the court may, if it is of the opinion that the misleading or prejudice may be removed by an adjournment, adjourn the proceedings to a specified day or sittings of the court and may make such an order with respect to the payment of costs resulting from the necessity for amendment as it considers desirable. [ 6 ] Section 581(3) of the Criminal Code states: A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count. [ 7 ] In R. v.

Daoust , 2004 SCC 6 , the Crown sought to amend the wording of the charge from “transfer of possession” to “laundering the proceeds of crime”. There was a disparity between the French and English sections of the Criminal Code and the Court engaged in an exercise of statutory

interpretation. The Court found that the accused was not guilty of transferring possession as defined at s. 462.3(1) of the Criminal Code and found that the proposed amendment was not appropriate in this case stating: While pursuant to s. 601(3) of the Code , a court may amend a count in an indictment at any stage of the proceedings provided it is a particular of the offence that is amended, the change requested in this case would amount to laying a different charge from the one originally brought.

To allow the Crown to make out a different offence would infringe on the accused’s right to be reasonably informed of the transaction alleged against him. [ 8 ] Refusals, whether it is refusal of a breath demand or an ASD demand, are charged under s. 254 of the Criminal Code . In several cases Courts have allowed the amendment from an allegation of refusing to comply with a breathalyzer demand to refusing to comply with an ASD demand without clearly addressing whether the two refusal allegations can be categorized as different offences. For example, see R. v. Cameron , 2009 ONCJ 381 and R. v. Fuller, supra .

Instead the Courts observed that there was no prejudice suffered by the accused and the accused was not confused by the error in the indictment. The Courts in these cases implicitly decided that the charges were sufficiently related for the amendments to be viewed as amendment to the particulars of the charge. The strongest position or argument of the defence is that these other cases where the amendment was allowed concentrated more on the fact there was no prejudice demonstrated to the accused, rather on considering whether the amendment would create a different charge.

The defence then would rely on the Nova Scotia Provincial Court case of Lombard which does address the issue of whether the two refusals are separate offences. At paragraph 39 in Lombard , the Provincial Court Judge states: Obviously, a breath demand under the auspices of section 254(3) (a)(

i) has components which distinguish it from an ASD demand given pursuant to section 254(2) (b). These differences are both important and obvious. The Crown bears the onus of proof with respect to all of the elements of the offence charged and it must prove each beyond a reasonable doubt. One of the components of a charge of refusal under section 254(5) is that a demand commensurate with the specific refusal alleged must be proven to have been made upon the accused. The Crown closed its case, having proved that an ASD demand under section 254(2) (

b) was made (and refused by the accused), but without proving that a demand in accordance with section 254(3) (a)(

i) was ever made. The defence elected to call no evidence. Therefore, the charge (as framed) alleges that the accused refused or failed to comply with a demand that was never proven to have been made of him. [ 9 ] While the reasoning in Lombard is persuasive, I am bound and in any event prefer the approach of Mr. Justice Elson in R. v. Fuller, supra . When I look at the facts of this case, it is clear that an amendment of the

section number is in order. In Fuller , Mr. Justice Elson notes at paragraph 15 as follows: The authority of a trial judge to amend an information or an indictment has gone through considerable change in the past 120 years. At

common law the ability to amend an information or an indictment during the trial was quite limited. These limitations have largelydisappeared through various statutory amendments since the first Criminal Code was enacted in 1892 culminating in s. 601 of theCriminal Code and its predecessor provisions. It would be fair to say there is now relatively broad authority for a trial court to amend aninformation or indictment subject to the factors a court is obliged to consider under s. 601(4) of the Criminal Code. [10] Mr. Justice Elson refers to R. v. Moore, (SCC), [1988] 1 S.C.R. 1097 where Mr.

Justice Lamer (as he thenwas) discusses in detail the application of s. 601 (then s. 529). Mr. Justice Lamer emphasizes the wide power to cure any defect in acharge by amending as long as the accused is not prejudiced in his defence. The Court notes that any prejudice could sometimes bealleviated by an adjournment. Mr. Justice Elson also notes the decision from the Ontario Court of Justice in R. v. Cameron, 2009 ONCJ381, which involved facts very similar to this case. The Ontario Court of Justice noted the Ontario Court of Appeal case of R. v.

Irwin(1998), (ON CA), 123 CCC (3d) 316 (ONCA), where a similar amendment was allowed after a review of theauthorities when the accused had not been misled or prejudiced in his defence. [11] Based on the evidence and applying section 601(4)(

b) and (

d) in particular, I am prepared to amend the Information to statethe

section number to be 254(2) of the Criminal Code. Both counsel conducted the trial and made their submissions on the basis that thecharge was a refusal of the approved screening device pursuant to s. 254(2) of the Code. When I look at the evidence and in particularthe cross-examination of the investigating officer by defence counsel, it is clear that the defence knew the case it had to meet. I amsatisfied if the charge had been laid as amended or amended earlier, the defence would not have done anything different. In my viewthere is clearly no prejudice to the accused to allow this amendment.

Defence counsel conducted the trial in reference to a charge unders. 254(2), a different offence within the same transaction. Therefore the amendment is allowed. As an aside, I can say in an appropriatecase where the defence shows prejudice then my decision and I would venture to say, the other decisions of the Court, may well bedifferent. That is for another day. [12] There is little dispute as to what occurred February 1, 2013 with respect to this matter. Most of the evidence was recorded onthe in-car camera in Cst. Elder’s police vehicle. There was a problem with the sound recording but the video is clear.

It was marked as afull exhibit, P-1 by consent of counsel. [13] The date, time, place and identity of the accused were admitted by the defence. Cst. Elder was the only Crown witness. Theevidence was heard on a voir dire with all admissible evidence to be applied by consent to the trial proper. [14] Cst. Elder was on the night shift. He first observed Mr. Gieni driving a white quarter-ton truck. He almost hit the centremedian and then turned north onto Main Street. This vehicle was straddling both northbound lanes.

The vehicle turned west onto HallStreet and before turning, it swerved into the right-hand lane and then made a wide left turn. The streets were snow covered and icy. Asa result of the driving actions the officer observed and the time of night, the officer decided to stop this vehicle to check for the driver’ssobriety. The officer spoke to the driver and requested his registration and driver’s licence. The officer testified he could smell beveragealcohol coming from Mr. Gieni and observed Mr. Gieni to have glassy eyes and a thousand mile stare which he described as a blankstare. The officer noted Mr.

Gieni swayed slightly when he walked to the police car. The officer asked the driver to step out and cometo the police vehicle. He explained to Mr. Gieni that he was going to do a quick or simple test to determine Mr. Gieni’s level ofsobriety. Cst. Elder had an ASD unit with him. [15] Mr. Gieni denied drinking and said he had nothing to drink for 24 hours. Mr. Gieni said he was not consenting to anybreathalyzer test. Mr. Gieni refused the ASD demand immediately and became argumentative. Mr. Gieni asked repeatedly why theofficer was asking him for a breath sample when he had not had anything to drink for 24 hours.

Cst. Elder told Mr. Gieni he did notbelieve him. Cst. Elder explained that refusing to blow was also a criminal charge and the penalties are the same as impaired driving. Mr. Gieni asked about travelling and a criminal record. Again Cst. Elder tells Mr. Gieni that he suspects he has been drinking and as aresult of the driving actions observed, his watery eyes, the smell of alcohol and the sway in his walk that he had a reasonable suspicionthat he had alcohol in his body. The officer clearly tells Mr.

Gieni he is being detained and if he refused to provide an ASD sample, hewill be arrested and taken to the police station, booked in, fingerprinted and placed in cells until he sobered up or released to someonewho was sober. At 2:22 a.m., the officer read the ASD demand from his issued police card and the final clear refusal was at 2:30 a.m. The officer did have an ASD unit with him. At 2:36 a.m., he was charged for impaired driving. At 2:37 a.m. he was given his Charterright to counsel and police warning. [16] Cst. Elder clearly repeats that upon arrest Mr.

Gieni is entitled to call a lawyer and also explained the Legal Aid plan. Mr.Gieni says he now understands but clearly refuses to provide the ASD sample. Mr. Gieni indicates he is interested in talking to LegalAid. Cst. Elder also read the police caution and ascertains from Mr. Gieni there are no valuables in the truck. On the way to the policestation, Mr. Gieni becomes more agitated and speaks in a louder voice. This can clearly be seen on the in-car video which was filed as

Exhibit P-1. Mr. Gieni says he will lose his girlfriend because he will have a criminal record and then says to the officer “we are in thistogether. You think you are better than me”. Cst. Elder reminds Mr. Gieni that he has not been convicted yet. [17] The main argument advanced by defence counsel was that there was a breach of Mr. Gieni’s rights under s. 10(

a) of theCharter. The defence relies on the Supreme Court of Canada case of R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460, as wellas various cases from Alberta. The defence argues if there is no compliance with s. 10(a), this leads to a s. 10(

b) breach and ultimatelythe detention is arbitrary and results in a s. 9 Charter breach. In addition the defence suggests the wording of the ASD demand ismisleading and defective. The police should use the appropriate wording so a detainee is not misled. The wording of the demandcontemplates the demand being made prior to the detainee leaving his vehicle and accompanying the officer to the police vehicle. Thedefence concluded his argument that the Crown had not established beyond a reasonable doubt that Mr.

Gieni refused to supply a sampleof his breath. [18] The Crown referred to three cases of this Court, namely R. v. Binetruy, 2013 SKPC 118; R. v. Glass, 2013 SKPC 31 and R. v.Carriere, 2010 SKPC 118. The Crown noted Mr. Nidesh was involved as counsel in the above noted decisions and made similararguments which were not successful. The Crown submits that the police officer had the required reasonable suspicion to make the ASDdemand based on the driving actions of Mr. Gieni, the smell of alcohol coming from Mr. Gieni and the physical observations of Mr.Gieni.

The Crown submits that the police officer provided sufficient information in such circumstances where the reason should havebeen obvious to the detainee of why he was being stopped and asked to come back to the police car. The form of the demand read fromthe standard police card was sufficient for this purpose. Finally the Crown submitted that there was no s. 10(

b) Charter breach as theofficer was making and did make a lawful approved screening device demand. After some discussion with the officer and the officerattempting to explain to Mr. Gieni, Mr. Gieni clearly refused. ANALYSIS Has the Crown proven beyond a reasonable doubt the actus reus and mens rea of the offence of failing or refusing to provide a breathsample for analysis in an approved screening device? [19] Section 254(2)(

b) of the Criminal Code states as follows:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol ... in their body and that the person has, within thepreceding three hours, operated a motor vehicle ... or had the care or control of a motor vehicle ... the peace officer may, by demand,require the person ... (

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 anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [20] In R. v. Luider-Grebnev, 2013 SKPC 22, Judge Labach puts it this way at paragraph 13: Unless a demand made by a police officer falls within this section, the person upon whom the demand is made is under no obligation tocomply with the demand and does not commit an offence under section 254(5) by refusing to provide the requested sample.

To put itanother way, where an accused is charged with refusing to provide a sample of his breath for analysis in an approved screening deviceand the officer making the demand did not comply with the requirements of section 254(2)(b), then that constitutes an absolute defenceto 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. [21] Paragraph 14 states: In order for a demand under section 254(2)(

b) to be lawful, the Crown must prove beyond a reasonable doubt that (1) the officer whomade the demand had a reasonable suspicion that an accused person had alcohol in his body, (2) that the accused person was operatingor in care and control of a motor vehicle within the preceding three hours, and (3) that the sample was provided “forthwith”.

[22] Has the Crown proved beyond a reasonable doubt that Cst. Elder had a reasonable suspicion that Mr. Gieni had alcohol in hisbody? I am satisfied Cst. Elder subjectively believed that Mr. Gieni had alcohol in his body. The officer was professional and patient inhis dealings with Mr. Gieni. There was nothing in his evidence or Exhibit P-1 which would lead me to conclude he was exaggerating ornot acting in good faith in his dealings and observations of Mr. Gieni.

I am also satisfied that the police officer’s suspicion wasobjectively reasonable given the observations that the officer related which can also be seen on Exhibit P-1. [23] There is a subjective and objective component to the concept of reasonable suspicion. The time for determining whether theofficer’s suspicion was reasonable is the time the formal demand was made. [24] In R. v. Boutin, 2010 SKPC 68, Judge Kalmakoff summarises the standard for reasonable grounds to suspect and concludes itis not onerous. At paragraph 20 he states: The standard for “reasonable grounds to suspect” is not onerous.

There simply has to be an honest suspicion that the person has alcoholin his or her body, and an objectively reasonable basis for that suspicion. A “reasonable suspicion” has been said to mean somethingmore than a mere suspicion and something less than a belief based upon reasonable and probable grounds (see R. v. Kang-Brown, 2008SCC 18 , [2008] 1 S.C.R. 456, at para. 75). Reasonable grounds to suspect presence of alcohol in the body does not need toamount to reasonable grounds to believe the person is impaired by alcohol.

The smell of alcohol on a driver’s breath alone, for instance,is a sufficient basis upon which to have reasonable grounds to suspect the driver has alcohol in his or her body (see R. v. Butchko, 2004SKCA 159 and R. v. Lindsay (1999), (ON CA), 134 C.C.C. (3d) 159 (Ont. C.A.)). Even in the absence of behaviouralsymptoms or evidence of quantity, evidence of consumption is enough to base a reasonable suspicion (see R. v. Gilroy (1987), 1987ABCA 185 , 79 A.R. 318 (C.A.), leave to appeal to S.C.C. refused 85 A.R. 160n; R. v. Stauch, 2007 ABQB 85). [25] Cst. Elder described Mr.

Gieni’s driving actions which are shown in the video filed as Exhibit P-1. The only part not oncamera was just prior to Mr. Gieni turning onto Main Street. Cst. Elder testified he noticed Mr. Gieni’s vehicle and it looked like thevehicle almost hit the centre median on Manitoba Street. Exhibit P-1 is consistent with Cst. Elder’s testimony in Court and clearly showsMr. Gieni’s vehicle proceeding north on Main Street, driving in both northbound lanes, moving to the right lane before turning left ontoHall Street. The police officer stated he could smell beverage alcohol as soon as he spoke to Mr.

Gieni, the lone occupant of the truck. The officer noted Mr. Gieni swaying as he walked to the police vehicle. The police officer smelled alcohol on Mr. Gieni’s breath onceMr. Gieni was seated in the rear of the police vehicle and also noted Mr. Gieni to have glassy eyes. Mr. Gieni denied drinking. [26] The next issue is was there a violation of Mr. Gieni’s rights under s. 10(

a) of the Charter in that he was not adequatelyadvised of the reason for his detention.

Section 10(

a) of the Charter reads as follows: 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [27] I accept the officer’s evidence that he provided sufficient information to Mr. Gieni when making the request to come to thepolice vehicle. The officer told Mr. Gieni he suspected he had been drinking and the observations he had made. The officer told Mr.Gieni this device will tell Mr. Gieni’s level of sobriety. [28] When Cst. Elder asked Mr. Gieni to step out of his truck, he did not use any formal wording. However I accept that what theofficer said to Mr.

Gieni was sufficient to convey to Mr. Gieni in the circumstances the reason for the detention. Judge Kovatch dealswith this issue in R. v. Glass, 2013 SKPC 31 at paragraph 13, where he declines to follow the Klug decision (2011 ABPC 97) and ratherfollows a decision of His Honour Judge Rosborough in R. v. Gross, 2012 ABPC 286. At paragraphs 67 and 68 of that decision JudgeRosborough stated:

[67] While it is unfortunate that Det. Steil could not accurately articulate the requirements of the Charter, s. 10(a), this will not impugnhis investigation, providing he complies with it. On these facts I find that he did so. Gross’ Charter s. 10(

a) right was neither infringednor denied. [68] The cautious and diligent police officer will verbally advise detainees why they have been stopped at roadside, why they are askedto exit their motor vehicle and why they are being taken to a police vehicle. This, even when the circumstances make those reasonsobvious. The case of Klug reinforces the value of doing so. Nevertheless, the fact that this would prevent needless litigation of this issueor otherwise constitute a ‘best practice’ does not elevate it to the status of a constitutional norm.

I am satisfied on the basis of bindingauthority that, where the reasons are obvious and the detainee, as here, understands the nature of the process underway, additional verbaladvice is not constitutionally mandated. [29] At paragraph 14, Judge Kovatch refers to R. v. Carriere, 2010 SKPC 118, where His Honour Judge Kalmakoff found that theaccused was stopped at 9:00 p.m. and the police officer immediately asked him to return to the police vehicle. At 9:03, once inside thepolice vehicle, the police officer made the ASD demand.

His Honour Judge Kalmakoff concluded that the ASD demand sufficientlyinformed the accused of his reason for his detention and the demand having been made approximately three minutes after the initialstop, the accused was promptly advised as required by this section. [30] The evidence here is that Mr. Gieni was stopped at about 2:00 a.m. and at 2:32, in the police vehicle, the approved screeningdevice demand was made. Therefore for all those reasons I do not find a Charter breach. [31] The defence also argued that when Cst.

Elder read the ASD demand from his standard issued card, that he used the words“accompany me” and “drug” which were unnecessary and thus this renders the entire demand unlawful. Many cases have dealt with anddismissed this argument. In R. v. Langman, 2014 SKPC 37 , 2014 SKPC 037, at paragraph 21, I rejected this argument andfound: ... The demand need not be in any particular set of words, it must be clear to the suspect the requirement and what is expected of him. The inclusion of “drug” in the phrase “alcohol or a drug” does nothing to detract from an otherwise proper approved screening devicedemand (see R. v.

Torseny, 2007 ONCA 67 , [2007] 217 C.C.C. (3d) 571, leave to appeal S.C.C. refused; also cited withapproval in R. v. Caplette, 2010 SKPC 32 and R. v. Carriere, 2010 SKPC 118). [32] I make the same comments with the inclusion of the words “accompany me”. [33] Mr. Nidesh was counsel in many of these cases quoted. He obviously is well aware of the decisions and did not try todistinguish the present case in order for his argument to succeed. [34] The final argument advanced on behalf of the defence was whether Mr. Gieni had the necessary intent or mens rea to refuse. The defence argued that it was obvious Mr.

Gieni was confused as he kept questioning the officer and asking about rights to counsel. Itis suggested that Mr. Gieni did not realize that this was a demand to provide a sample into an approved screening device. I conclude thatthere was a refusal or failure to provide an approved screening device sample. Mr. Gieni said as much. Right at the start of hisencounter with the officer in the police vehicle, Mr. Gieni said he did not consent to the demand. From the in-car video I have thebenefit of seeing the interaction between Mr. Gieni and Cst. Elder. Mr. Gieni became more agitated and disagreeable as Cst.

Elder triedto explain the process to him. The officer explained that rights to counsel were not required at this stage. The officer advised him of theobservations relied on to make the ASD demand. The officer explained what would happen if Mr. Gieni refused to blow. The officerexplained when Mr. Gieni could call a lawyer. The police officer gave Mr. Gieni sufficient time and explanation before charging himwith refusal. I accept the officer’s evidence and along with Exhibit P-1, I am satisfied beyond a reasonable doubt that Cst. Elder made alawful approved screening device demand under s. 254(2) and that Mr.

Gieni intentionally refused to provide a sample. M. Gordon, J