Her Majesty the Queen - v. -, 2014 SKPC 138

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 138 Date: June 26, 2014 Information: 30572576 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Richard Brian Beattie Appearing: Mr. C. Davison For the Crown Mr. B. Banilevic Q.C. For the Accused TRIAL DECISION M.J. HINDS , J INTRODUCTION [ 1 ] A trial took place before me regarding Richard Brian Beattie who is charged that on or about the 21st day of August A.D. 2013 at or near Regina, Saskatchewan, he did:

1. Without reasonable excuse, fail to comply with a demand made to him by Dean Onyskevitch, a peace officer, under subsection 254(2) (

b) of the Criminal Code to provide forthwith a sample of his breath as in the opinion of Dean Onyskevitch was necessary to enable a proper analysis of his breath to be made by means of an approved screening device, contrary to section 254(5) of the Criminal Code . 2. While his ability to operate a motor vehicle was impaired by alcohol operate a motor vehicle contrary to section 253(1) (

a) of the Criminal Code [ 2 ] This prosecution began on August 23, 2013 with Information No. 24157861 charging Mr. Beattie with refusing to provide a breath sample into an approved screening device (ASD) contrary to section 254(2) (

b) of the Criminal Code . On December 12, 2013 Information No. 30572576 replaced Information No. 24157861 which added an impaired driving charge. [ 3 ] Prior to trial the defence served and filed a Charter Notice and a Notice of Expert Witness. When the trial commenced the defence advised the Court that it was not proceeding with a Charter Application. The Crown called one witness to testify at the trial: Corporal Dean Onyskevitch. Mr. Beattie testified in his defence, as did his general physician, Dr.

Albertus Benardus Lotz. [ 4 ] The charges arise as a result of a police investigation of a motor vehicle driven by the accused during the evening of August 21, 2013. Corporal Onyskevitch had completed his work shift at 10:00 p.m. and was proceeding to his home in northwest Regina driving a fully marked SUV police vehicle. As Corporal Onyskevitch drove over the Albert Street overpass onto Highway 11 north of the City of Regina, a vehicle ahead of him caught his attention. This vehicle started to exit Highway 11 at the Pasqua Street off-ramp.

Corporal Onyskevitch followed and stopped the vehicle at approximately 11:00 p.m. on the Pasqua Street off-ramp. [ 5 ] Mr. Beattie produced his driver’s licence and registration to Corporal Onyskevitch. The officer asked him if he had been drinking alcohol. Mr. Beattie told him that “he had a few” at the Tor Hill golf course. The officer asked him to come back to his police vehicle for testing to make sure he was safe to be driving. After Mr. Beattie got into the back of the police vehicle Corporal Onyskevitch read an ASD demand to him at 11:05 p.m. Mr. Beattie made a number of attempts to blow into the ASD.

None of the attempts resulted in a reading on the ASD. Corporal Onyskevitch charged Mr. Beattie with refusing to comply with an ASD demand, as set out in count number one, above. [ 6 ] I have determined that the Crown has not proved beyond a reasonable doubt that Mr. Beattie ’ s ability to operate a motor vehicle was impaired by alcohol or that he intentionally failed to provide a sample of his breath into the ASD. In the alternative, I would have found that the accused had a reasonable excuse for failing to provide a breath sample.

FACTS [ 7 ] Corporal Onyskevitch is a member of the Royal Canadian Mounted Police. He works out of White City, Saskatchewan which is a community located east of Regina. After completing an eight hour work shift, Corporal Onyskevitch was driving his police vehicle to his home located in northwest Regina. While travelling northwest on the Highway 11 Albert Street overpass he noted a vehicle ahead of him going 100 kilometres per hour. This caught his attention as the posted speed in this area goes from 70 kph to 110 kph. He also noted that the vehicle weaved slightly in its own lane.

Based on these observations Corporal Onyskevitch decided to pull this vehicle over. He followed the vehicle about 100 to 150 metres and activated the police emergency lights as the vehicle left Highway 11 and went onto the Pasqua Street exit ramp. [ 8 ] The vehicle driven by Mr. Beattie pulled over to the side of the exit ramp in a normal fashion. When Corporal Onyskevitch approached the vehicle on foot he observed Mr. Beattie had his driver’s licence in his left hand and was rummaging around the vehicle looking for the vehicle registration.

The accused located a green plastic wallet which contained several vehicle registrations. The accused pulled one of the vehicle registrations out of the plastic wallet, stared at it intently and placed it on his thigh. Corporal Onyskevitch observed that this registration was the valid “continuous” registration to the vehicle driven by the accused, however, he noted that the accused continued looking at the various vehicle registrations. [ 9 ] Corporal Onyskevitch testified that usually when people find the vehicle registration they give it to him. In this case, he told

Mr. Beattie that the vehicle registration on his thigh was the correct one. He also observed Mr. Beattie to be wearing golfing attire. Based on the time of day, being 11:00 p.m., the slow deliberate actions of the accused with respect to the vehicle registration and the accused’s golfing attire he thought the accused might have consumed some alcohol. Corporal Onyskevitch asked Mr. Beattie if he had been drinking. He replied, “I had a few at Tor Hill”. [ 10 ] Corporal Onyskevitch asked Mr. Beattie to accompany him back to the police vehicle “to test you to make sure you are safe to be driving.” Mr.

Beattie walked without difficulty to the police vehicle and got into the back seat. Once inside the vehicle, Corporal Onyskevitch observed Mr. Beattie had stale beverage alcohol on his breath. The officer read the ASD demand to Mr. Beattie at 11:05 p.m. Mr. Beattie said he understood. [ 11 ] Corporal Onyskevitch got the ASD ready and told Mr. Beattie that he would have to blow hard enough into the device. He added that when a person blew hard enough into the device it will make a “tone” or sound which had to be maintained. The officer also asked Mr.

Beattie if he had any medical condition that would affect his ability to provide a breath sample. Mr. Beattie responded “No”. [ 12 ] The officer presented the ASD to Mr. Beattie through the silent patrolman. Mr. Beattie leaned forward from the back seat of the vehicle in order to blow into the ASD. Corporal Onyskevitch testified that Mr. Beattie made nine attempts to blow into the ASD over a span of seven minutes between 11:05 and 11:12 p.m. [ 13 ] The first attempt to blow into the device resulted in an error code E.O., meaning that the breath was either of insufficient time or insufficient flow (volume).

Corporal Onyskevitch instructed the accused to blow harder and longer. The second attempt also resulted in the error code E.O. A third attempt to obtain a sample occurred after the device reset. The officer observed that when the accused blew a third time, the breath sample was not overly forceful. The E.O. code registered again on the device. Once again the accused was told to blow harder and longer.

A fourth and fifth attempt also resulted in the E.O. code registering on the device. [ 14 ] The officer testified that when someone blows hard enough into the mouthpiece, one can observe water droplets form on the inside of the plastic mouthpiece. He did not observe water droplets form on the inside of the accused’s mouthpiece. [ 15 ] After the fifth attempt, the officer asked the accused if there was anything he was not being clear about. The accused said he understood. The officer advised the accused that he can’t vary how hard he blew into the mouthpiece.

He explained that it had to be a steady exhalation of air. [ 16 ] During the sixth attempt to blow into the device, the officer testified that within a few seconds the E.O. code came up and the device reset itself while the accused was still blowing into it. The E.O. code appeared a seventh time, however, Corporal Onyskevitch testified that the seventh attempt was invalid, as he did not remove the accused from the device after it reset. [ 17 ] Prior to attempting to give an eighth sample, the officer told the accused to listen to his commands regarding blowing into the device.

The officer told the accused that if he did not listen to his commands, he would be charged with refusing the ASD demand. The accused did not respond to these words. The officer testified that the accused seemed to have a “laisse faire attitude”. The officer elaborated on this statement and testified that the accused did not appear to be excited or to be nervous. [ 18 ] The eighth attempt also resulted in the E.O. code registering on the device. The accused asked the officer if the device was malfunctioning. The officer removed the mouthpiece and put a new mouthpiece on the device.

The officer blew into the device without difficulty. The officer then put a new mouthpiece into the device and had the accused attempt to blow into the device a ninth time. Once again the E.O. code registered on the device. The officer charged the accused with refusing to comply with the ASD demand. [ 19 ] On cross-examination Corporal Onyskevitch was shown 11 photographs (Exhibit D-1) which accurately depict portions of the roadway which the accused travelled on August 21, 2013.

The officer admitted that the photographs show gouges, cracks, wear marks and potholes on a number of portions of the roadway travelled by the accused on August 21, 2013. The officer admitted that he is aware that a number of people swerve or steer their vehicles in such a way as to avoid the gouges, cracks, wear marks and potholes on this roadway. The officer also admitted that the posted speed limit on the Albert Street overpass to Highway 11 is 70 kilometres per hour. A short distance past the overpass the speed limit increases to a maximum of 110 kilometres per hour. The officer conceded that he was

actually speeding prior to the sign showing the maximum speed was 110 kph. The officer also testified that he came upon the accused driving at 100 kph in the area just past where the posted maximum speed is 110 kph and prior to the Pasqua Street exit from Highway 11 which is less than 500 metres ahead of this point. [ 20 ] On cross-examination Corporal Onyskevitch also admitted he did not charge the accused with impaired operation of a motor vehicle because he did not believe the accused was impaired. He added “that’s one of the primary reasons I made the ASD demand”. The officer also agreed that Mr.

Beattie blew into the ASD each time he was asked to and it appeared that Mr. Beattie’s mouth made a tight seal around the mouthpiece. The officer added that on each attempt to blow into the ASD he observed that Mr. Beattie continued blowing until the error message appeared and the device beeped twice. Corporal Onyskevitch also testified that after the eighth attempt Mr. Beattie may have said “I am trying”. Lastly, Corporal Onyskevitch testified that on the first four attempts he would have yelled the word “Blow” several times to Mr. Beattie.

Corporal Onyskevitch indicated that some people are distracted by him speaking loudly while they are blowing into the ASD. As a result he spoke quietly on Mr. Beattie’s next attempts to blow into the ASD. Richard Beattie [ 21 ] Richard Beattie is 60 years of age. For the past seven years he has worked with the Regina Public School Board as the Principal of Ecole Centennial Elementary. [ 22 ] During the afternoon of August 21, 2013, Mr. Beattie played golf in the men’s

section at the Tor Hill golf course. He is a member of the executive of the men’s section. He teed off at 2:00 p.m. and finished his round of golf around 6:00 p.m. He remained at the golf course after his round of golf to enjoy some fellowship and tend to his duties on the executive. Mr. Beattie testified that he drank four Pilsner beer between 6:00 p.m. and 10:15 p.m. when he left the golf course to go to his home. [ 23 ] Mr. Beattie testified that he drove his vehicle south from Tor Hill onto McDonald Street and then to the Ring Road.

He took the Albert Street exit off Ring Road and proceeded north on Highway 6 and eastbound over the Albert Street overpass. He testified that as he was driving on the Pasqua Street exit ramp he noticed a police car behind him with the lights activated. He then came to a stop on the exit ramp. [ 24 ] Mr. Beattie took the photographs set out in Exhibit D-1. He described in some detail the poor condition of the road he travelled on August 21, 2013 and how it was his habit to avoid the various potholes along the way.

He also testified that it was his habit to accelerate up to about 100 kph between the Albert Street overpass and his turn at the Pasqua Street exit. He testified that he was driving his wife’s 2005 Honda Pilot SUV that evening. [ 25 ] Mr. Beattie testified that he had his driver’s licence out when the officer came to his vehicle and that he was looking for the vehicle registration in the centre console of the vehicle. He found a green pouch which contained several documents. He wanted to make sure he gave the officer the correct registration. He recalled placing one half of a two

part vehicle registration on his lap while he continued to look for the second half of the registration. He testified the officer told him he had the “right one” on his lap. [ 26 ] Mr. Beattie complied with the officer’s request to get in the back seat of the patrol car and recalls the officer telling him that he was going to have to provide a breath sample. Mr. Beattie confirmed that the officer asked him if he thought there was any reason he couldn’t provide a breath sample. He said that he did not. Mr. Beattie testified that “at that point I didn’t think I had any health problems.” [ 27 ] Mr.

Beattie testified that he attempted to blow into the ASD a total of four times. The first time he blew until he ran out of air. An error message appeared. The officer reset the ASD and told him to blow again. During his second attempt to blow Mr. Beattie testified that the officer spoke loudly to encourage him. An error message occurred again. When he attempted to blow a third time, Mr. Beattie testified that the officer became agitated and the officer’s voice was very loud. A third error message appeared. Mr. Beattie testified that the officer then told him “fine then, I’ll just charge you with refusal.” Mr.

Beattie testified that he told the officer that he was blowing and asked if there was anything wrong with the ASD machine. Mr. Beattie testified that the officer then changed the mouthpiece on the machine, blew into the machine himself and advised Mr. Beattie that it worked fine. A new mouthpiece was put in place. During the fourth attempt the officer told him to blow harder and longer. The error message came up again. Mr. Beattie testified that he told the officer he was trying to blow properly. The officer then told him he was going to charge him with refusal.

[ 28 ] Mr. Beattie testified that he did not stop blowing into the machine at any time and that he was blowing as long and as hard as he could. He also testified that the officer was yelling at him when he was blowing and that he was annoyed that someone would deal with him in that manner. [ 29 ] Mr. Beattie testified that he was served with some documentation that night and had his wife pick him up and take him home. [ 30 ] Mr. Beattie successfully pursued an appeal of his 90 day driving suspension with the Highway Traffic Board.

He testified that during the hearing before the Highway Traffic Board someone suggested that he contact his own doctor regarding a lung capacity test. Mr. Beattie went to Dr. Lotz who arranged for a lung capacity test. Dr. Lotz subsequently referred Mr. Beattie to a respiratory specialist, Dr. Belac and to Dr. O’Grady, an ears, nose and throat specialist. Mr. Beattie testified that Dr. O’Grady advised him that he had a deviated septum and a perforated septum. He currently uses a nasal spray. Dr. Albert Lotz [ 31 ] Dr. Lotz is a family physician from Regina. He received his medical degrees in South Africa. Dr.

Lotz has been licenced to practice medicine in Saskatchewan for 14 years. Despite objections from the Crown, I qualified him as an expert witness respecting the human lung, breathing, lung capacity and restrictions, including testing procedures involving the use of the spirometer and what reduced lung capacity or restrictions mean to a person’s ability to inhale and exhale. [ 32 ] Dr. Lotz has seen Mr. Beattie every second year for the past 13 years. He testified that prior to September 10, 2013, Mr. Beattie had a history of normal lungs. Dr. Lotz saw Mr. Beattie on September 10, 2013. Dr. Lotz testified that Mr.

Beattie reported that he was unable to blow into a breath machine, was anxious and had insomnia. After speaking to Mr. Beattie and listening to his lungs, Dr. Lotz diagnosed Mr. Beattie as having anxiety, prescribed a sleep aide, and placed Mr. Beattie on sick leave for two weeks. In addition, Dr. Lotz arranged for Mr. Beattie to undergo a spirometry test. [ 33 ] A spirometer is an instrument which measures a person’s lung volume, that is the ability of a person to inhale and exhale. Mr. Beattie’s spirometry testing occurred on September 29, 2013. A Pulmonary Function Report [Exhibit D-2] on Mr.

Beattie was generated as a result of this testing and was reviewed and interpreted by Dr. Lotz. [ 34 ] Dr. Lotz testified that testing revealed that Mr. Beattie’s Forced Vital Capacity (FVC) was 3.19 litres which was 69.3% of the predicted value for a male of Mr. Beattie’s age. Dr. Lotz explained that the FVC represents Mr. Beattie’s best ability to blow a volume of air (exhale) into the spirometer before using a vasodilator. Dr. Lotz testified there was no significant improvement in Mr. Beattie’s FVC (3.13 litres) after he used a vasodilator. The results also showed Mr.

Beattie’s Forced Expiratory Volume in one second (FEV1) was 2.55 litres which is 73.1% of the predicted value for a male of Mr. Beattie’s age. Dr. Lotz explained that these lung volumes would be consistent with a lung age of 80 years, not 60 years. Based on the Pulmonary Function results, Dr. Lotz diagnosed Mr. Beattie with restricted lung capacity on September 23, 2013. Dr. Lotz explained that individuals with lung restrictions have difficulties inflating their lungs with air and as a result have less volume to exhale. Dr. Lotz referred Mr.

Beattie to another specialist to determine the cause of the restricted lung capacity. Dr. Lotz testified that no specific cause could be found to explain Mr. Beattie’s lung restriction. [ 35 ] Dr. Lotz also testified that anxiety can affect a person’s ability to expand their lungs or breathe in. He added that since Mr. Beattie was treated for anxiety his FVC improved from 69% to 73%. ISSUES 1. Has the Crown proved beyond a reasonable doubt that Mr. Beattie ’ s ability to operate a motor vehicle was impaired by alcohol at the relevant time? 2. Has the Crown proved beyond a reasonable doubt that Mr.

Beattie failed to comply with a demand made to him by the peace officer to provide forthwith a sample of his breath as in the opinion of the officer was necessary to enable a proper analysis of his breath to be

made by means of an approved screening device, contrary to section 254(5) of the Criminal Code? ANALYSIS Credibility [36] Corporal Onyskevitch and Mr. Beattie both presented as professional, intelligent individuals. I watched and listenedto the evidence they gave carefully. There was nothing in their demeanour that would lead me to believe that they were not beingtruthful. Each gave his evidence in a forthright manner. Neither was evasive. Both were responsive to all questions put to them bycounsel. Both were credible.

The major discrepancy in their evidence pertained to their recollection of the number of times Mr. Beattieattempted to blow into the ASD. In this case I prefer the evidence of Corporal Onyskevitch over that of Mr. Beattie respecting howmany attempts were made to blow into the ASD. Unlike Mr. Beattie he had nothing to drink prior to their encounter. In addition, Mr.Beattie appeared to have been surprised by his encounter with the officer and was naturally anxious, all of which would have affected hisrecollection on this point. Otherwise, I found both witnesses to be credible and reliable. 1.

Has the Crown proved beyond a reasonable doubt that Mr. Beattie’s ability to operate a motor vehicle was impaired byalcohol at the relevant time? [37] R. v. Stellato, (ON CA), [1993] 78 C.C.C. (3d) 380, affd. (SCC), [1994] 2 S.C.R. 478(SCC), provides the test to be applied in determining whether the offence of impaired driving has been established. In R. v.

Stellato,supra, the Supreme Court adopted the reasoning of Labrosse J.A. of the Ontario Court of Appeal who stated as follows at page 384: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [38] The Stellato standard was adopted by the Saskatchewan Court of Appeal in R. v. Hall, (SK CA), [1994]S.J. No. 527, where Madam Justice Jackson J.A. stated as follows at paragraph 8: . . . The trier of fact no longer asks the question: does the accused’s behaviour or physical characteristics represent a marked departurefrom the norm.

A trier of fact may be able to infer impairment from behaviour which is far outside the norm, but if such behaviour is notpresent, impairment may be inferred, in the appropriate case, from something less. The trier of fact must, of course, be satisfied beyonda reasonable doubt that the accused’s ability to operate a motor vehicle was impaired. [39] Corporal Onyskevitch is an experienced police officer. He made various observations while testifying in-chief respecting Mr.Beattie’s behaviour on August 21, 2013 from which impairment could be inferred.

However, looking at all of the evidence, includingthe cross-examination of the officer and the testimony of Mr. Beattie, the officer’s observations were considerably weakened. Forinstance: 1. While he observed that Mr. Beattie weaved slightly in his driving lane, he acknowledged on cross-examination that portions of theroadway travelled by Mr. Beattie were in rough shape and that he is aware that a number of people swerve or steer their vehicles in such away as to avoid the gouges, cracks, wear marks and potholes on this roadway. In addition, Mr.

Beattie testified that it was his practice toavoid potholes on this roadway. 2. While he observed that Mr. Beattie was travelling 100 kph on Highway 11 where the maximum speed limit is 110 kph, he concededon cross-examination that the Pasqua Street exit which Mr. Beattie used was a relatively short distance away. In addition, Mr. Beattietestified it was his practice to accelerate up to approximately 100 kph after driving past the Albert Street overpass, prior to exiting the

highway at the Pasqua Street exit ramp. There is of course no legal requirement to travel at the maximum posted speed on a highway. 3. While he observed that the accused’s eyes were red, he readily acknowledged this could be explained by the fact that Mr. Beattie had been outdoors golfing. 4. While he observed that Mr. Beattie produced his driver’s licence and continued to search for the vehicle registration after placing it on his thigh, he acknowledged that once he pointed this out to Mr. Beattie, he stopped further attempts to retrieve additional documentation. In addition, Mr. Beattie testified that he was driving his wife’s vehicle and was looking for the valid two

part vehicle registration which was contained in a green pouch he retrieved from the console which contained several documents. [ 40 ] Significantly, Corporal Onyskevitch also admitted he did not charge the accused with impaired operation of a motor vehicle because he did not believe the accused was impaired. [ 41 ] After considering the evidence as a whole, I find myself left with a reasonable doubt as to whether Mr. Beattie’s ability to drive was impaired. Hence, I acquit Mr. Beattie of operating a motor vehicle while impaired by alcohol. 2. Has the Crown proved beyond a reasonable doubt that Mr.

Beattie failed to comply with a demand made to him by the peace officer to provide forthwith a sample of his breath as in the opinion of the officer was necessary to enable a proper analysis of his breath to be made by means of an approved screening device, contrary to section 254(5) of the Criminal Code ? [ 42 ] In this case Corporal Onyskevitch made a demand upon Mr. Beattie pursuant to section 254(2) (

b) of the Criminal Code to provide a sample of breath that would enable a proper analysis to be made by means of an approved screening device. Section 254(2)(

b) of the Criminal Code reads as follows: 254(2)(

b) 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 . . . or had control of a motor vehicle . . . whether in motion or not, the peace officer may, by demand, require the person to . . . in the case of alcohol: (

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 an approved screening device, and, if necessary, to accompany the peace officer for that purpose. [ 43 ] Mr. Beattie is charged under section 254(5) of the Criminal Code which states as follows: 254(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section. [ 44 ] In R. v.

Lewko , 2002 SKCA 121 , Bayda C.J.S. set out the three elements of the offence of refusal/failure to provide a breath sample in relation to a roadside screening device as follows at paragraph 9: 9 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 ss. (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 ). The Court went on to discuss the burden of proof when the question of a reasonable excuse arises at paragraphs 10 and 20: 10 The proof by the Crown of the three elements (and the defendant’s questioning of that proof by combatting the allegations of the prosecution without introducing any further issue) may be looked upon as the first stage of the proceedings. Once the Crown has established the three elements of the offence in question, the defendant is presumed guilty and must be so found unless the defendant

raises a defence. That brings us to what may be looked upon as the second stage in the proceedings, namely, the presentation by thedefendant of his/her justifications or excuses - his/her defences. (I use the term “defence” in the narrow sense - for the distinctionbetween the broad and the narrow senses see Glanville Williams, Textbook of Criminal Law (London: Stevens & Sons, 1983) (2d ed.) at50-51.) In the case of the subject offence, a defendant is able to present not only a defence ordinarily cognizable by law, but a defenceconstituted by any excuse that is “reasonable”.

This is the effect of the use of the phrase “without reasonable excuse” in the context of s.254(5). . . . 20 What is the extent of the evidential burden? The defendant need only raise the question of the possibility of a reasonable excuse. Inthe words of Dickson C.J.C. in Schwartz, supra, (SCC), [1988] 2 S.C.R. 443, he need only put the “issue into play”. How does he do that? He produces sufficient evidence of something that is capable of being a reasonable excuse. And how does he dothat?

McLachlin C.J.C. and Bastarache J. answer that question in relation to the air of reality test in this way: In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accusedto be true. See Osolin, supra [ (SCC), [1993] 4 S.C.R. 595]; Park, supra [ (SCC), [1995] 2 S.C.R.836]. The evidential foundation can be indicated by evidence emanating from the examination-in-chief or cross-examination of theaccused, of defence witnesses, or of Crown witnesses.

It can also rest upon the factual circumstances of the case or from any otherevidential source on the record. There is no requirement that the evidence be adduced by the accused. See Osolin, supra; Park, supra;Davis, supra, (SCC), [1999] 3 S.C.R. 759. [45] The defence advanced the following positions: 1. Corporal Onyskevitch did not make the ASD demand forthwith and hence it was unlawful. 2. Mr. Beattie attempted to provide the required sample of his breath and that his failure to do so was not intentional.

As a result,the defence contends that the mens rea of the offence has not been proved beyond a reasonable doubt. 3. Mr. Beattie had a lung restriction and he had a reasonable excuse for not providing the required sample of his breath. [46] I am satisfied the Crown has established beyond a reasonable doubt the first two elements of the offence (the actus reus). [47] I am of the view that Corporal Onyskevitch had a reasonable suspicion to make the ASD demand upon Mr. Beattie. I alsofind that the ASD demand was made forthwith pursuant to subsection 254(2)(b).

In this case the time from the initial vehicle stop to theASD demand was five minutes. [48] The evidence clearly reveals that Mr. Beattie failed to produce a suitable sample of breath into the ASD. I find CorporalOnyskevitch gave Mr. Beattie clear instructions as to how to blow into the ASD and that the ASD was working properly. I also find thatMr. Beattie was given nine opportunities to provide a suitable sample of his breath. [49] In R. v.

Dolphin, 2004 MBQB 252, the Court discussed the necessary proof for this type of case as follows: There is clearly an overlap in the proof that is required to prove both the actus reus and the mens rea in “failure” cases. Whenever therehas been an outright refusal, mens rea can be presumed. However, where a failure is alleged, more proof is required. Usually, that proofwill flow from the inference that a person intends the natural consequences of his/her acts.

The inference is often drawn from proof thatan adequate sample was not provided after a clear explanation was given as to how to blow into the device and after the accused wasgiven an adequate opportunity to blow into a device that was in good working order. Having said that, often is not always.Consequently, whenever the defence argues that the accused did not intentionally refuse to provide a sample, the court must analyze theevidence to determine if mens rea has been proved beyond a reasonable doubt. Trial judges must be cautious not to merge the concepts of mens rea and reasonable excuse.

The evidence appropriate to each of theseelements of the charge is often similar, but it is not always identical. Consequently, a trial judge is obliged to identify and adjudicate theissue of mens rea separately. [50] Mr. Beattie blew into the ASD nine times over the course of seven minutes. The evidence reveals Mr. Beattie blew into the

ASD each time he was asked to and continued blowing until the error message appeared. The evidence also reveals Mr. Beattie’s mouth made a tight seal around the mouthpiece. While Corporal Onyskevitch may have had a suspicion that Mr. Beattie was not blowing as hard or as long as he could, the officer did not testify that he believed Mr. Beattie was faking or intentionally failing to provide a breath sample. [ 51 ] Mr. Beattie testified that he was trying to blow into the ASD. I believe him. As a result, I have a reasonable doubt that the accused intentionally failed to provide a sample of his breath.

The Crown has failed to prove the mens rea of this offence. I hereby acquit him on count 1. [ 52 ] Having made this finding on mens rea , I need not consider the question of reasonable excuse (see R. v. Ingleby , 2013 SKPC 127 , at paragraph 19 ). [ 53 ] If I have erred on my finding on mens rea , I note that I would have accepted the defence of “reasonable excuse”. [ 54 ] In this case I find that the defence has raised the possibility of a reasonable excuse as a result of the evidence of Mr. Beattie and his physcian Dr. Lotz. While Mr.

Beattie was not aware of any medical condition that would have affected his ability to provide a sample of his breath on August 21, 2013, he decided to make an appointment with Dr. Lotz 20 days later. Dr. Lotz took his history and examined Mr. Beattie on September 13, 2013. Dr. Lotz had Mr. Beattie undergo a spirometry test on September 23, 2013 which produced a Pulmonary Function Report. After examining the Pulmonary Function results, Dr. Lotz diagnosed Mr. Beattie with restricted lung capacity on September 23, 2013. Dr.

Lotz explained that individuals with lung restrictions have difficulties inflating their lungs with air and as a result have less volume to exhale. While Dr. Lotz testified that no specific cause could be found to explain Mr. Beattie’s lung restriction he noted that anxiety can affect a person’s ability to expand their lungs or breathe in. He added that Mr. Beattie’s lung capacity can fluctuate. [ 55 ] I accept Mr. Beattie’s evidence that he was anxious during his encounter with Corporal Onyskevitch. While I am not being critical of Corporal Onyskevitch’s actions, it appears that his commands to Mr.

Beattie during the first four breath attempts were loud and produced further anxiety in Mr. Beattie. This further anxiety appears to have given rise to a lung restriction. [ 56 ] Corporal Onyskevitch observed that there was air going into the ASD, however, the pressure or flow rate was not sufficient. This testimony coupled with Mr. Beattie’s assertion that he was trying to blow lends an air of reality to the possibility that Mr. Beattie had a lung restriction on August 21, 2013. I find that Mr. Beattie had a reasonable excuse for failing to provide a breath sample on August 21, 2013.

Accordingly, I would acquit him on count 1.

SUMMARY [ 57 ] I have determined that the Crown has not proved beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol. I have a reasonable doubt that the accused intended not to provide a sample of his breath into the ASD. In the alternative, I would have found that the accused had a reasonable excuse for failing to provide a breath sample. I hereby acquit the accused on both counts. __________________________ M. Hinds, J