Her Majesty the Queen - v. -, 2014 SKPC 169

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 169 Date: October 28, 2014 Information: 44739428 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Carolin O ’Brien Appearing: Kim Jones For the Crown Merv Nidesh, Q.C. For the Accused JUDGMENT C.C.

TOTH , J [ 1 ] The accused is charged with driving while impaired and refusing to provide a sample of her breath to enable analysis to be made by a roadside screening device contrary to s. 254(5) of the Criminal Code . [ 2 ] Constable Hooker testified that when he observed the accused’s vehicle it was “swerving quite badly, straddling the line and having a lot of trouble staying within its line of travel”. He added “it could cause an accident if we didn’t stop it”.

[ 3 ] After stopping the accused without incident, he approached the accused who was in the driver’s seat. He testified that she struggled to unroll her window, she had difficulty keeping her head up, he described it in his report as bobble head, she had a glazed look on her face, and there was a strong smell of alcohol emanating from the vehicle. He did not note any slurring. He formed the opinion that she was impaired. [ 4 ] Constable Bates testified that the accused’s vehicle was swerving in and out of its driving lane.

Although this officer was not involved in reading the subsequent demands, Charter warning, etc. she recalled the accused was heavily slurring her words. She noted, which Cst. Hooker did not, that the accused on the way to the police car was stumbling and her balance was very uncoordinated. She was swaying and tripping over her feet. [ 5 ] Surprisingly with those observations an alert demand, as opposed to an impaired driving demand, was made. [ 6 ] The accused testified. She maintained that she had one glass of wine at the casino and that another had been purchased for her but she did not finish it.

She had a botox treatment earlier in the day and left the casino as she was not feeling well. She had taken a couple of regular Tylenol for discomfort earlier in the day. She maintained she was not impaired. [ 7 ] The video of her walking and driving away from the casino was tendered and admitted as evidence. [ 8 ] While the accused is seen to take measured steps, she is wearing high heels. She is clearly not stumbling nor is her head bobbing. There is nothing remarkable in her driving. She is not swerving between lanes.

I find this significant because it is only a few minutes later that the accused is stopped on Albert Street. [ 9 ] The video is sufficiently contemporaneous to be highly probative of her driving that night. [ 10 ] After considering all the evidence, I find the video to be the evidence I accept. As a result, I have a reasonable doubt that the accused was driving while impaired and she is found not guilty of that charge. Evidence of the Refusal [ 11 ] Cst.

Hooker testified that, once in the cruiser, he read to the accused the following: I have reasonable grounds to suspect that you have alcohol or a drug in your body and in accordance with the Criminal Code , I demand that 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 samples. Do you understand? [ 12 ] The accused responded “I want to call a lawyer”. The officer then asked “Are you refusing to provide a sample?” The accused responded “Yes.

I’m scared of you guys”. [ 13 ] The officer then arrested her for refusing to provide a sample. [ 14 ] The officer then read to her her right to counsel. When he asked her if she understood, she said “no, I don’t”. [ 15 ] The officer was aware that the accused was in an emotional state and was crying. In his notes he recorded that she was crying uncontrollably.

[ 16 ] Cst. Hooker provided no response to her request to talk to a lawyer. He did not explain her right to counsel was suspended. He did not inform the accused of the consequences of a refusal. He made only one demand for a sample. [ 17 ] Cst. Bates was unable to recall with any certainty the particulars to the demand made by her partner. [ 18 ] She did recall the volatile emotional state of the accused which included shouting, cursing and crying and then being angry and then sad.

She recalled the accused mentioning her truck had been stolen and that she was going through some relationship problems. [ 19 ] The accused testified that she had no criminal record and was intimidated by what was happening to her. She said she did not cry until she was placed in the police cruiser. She became emotional over what was unfolding and some recent personal events. She recalled being asked to provide a sample and responded by asking for a lawyer. When she responded that she was scared it was because she was. She testified: They told me that they wanted me to provide a sample.

They never - - I never saw the device, so - - I don’t even know what one looks like, and that’s - - I - - I don’t - - they never showed it to me. I said, “I want a lawyer”, and I’ve - - I’m sure, at some point in that - - that time period I did say, “I’m scared of you guys”. I - - I believe I said that because I was - - so - - but it wasn’t in relation to - - I wasn’t refusing, I - - I was scared, I - - I wanted a lawyer.

Legal Issues Was there a Refusal? [ 20 ] In determining whether a refusal took place, the circumstances of the entire transaction must be considered. [ 21 ] The response “yes, I am scared of you guys” is certainly capable of more than one meaning. Given the emotional condition of the accused, it is not clear what she meant. [ 22 ] Was the accused refusing or stating that she was afraid?

Her answer, under all the circumstances lacked sufficient clarity to constitute a refusal. [ 23 ] The officer was in a position to make further inquiries but chose not to do so. [ 24 ] Given the emotional state of the accused, she was not in a position to instantly digest and respond to the demand. [ 25 ] The Crown must also prove the accused had the requisite mens rea to refuse. [ 26 ] The officer was aware of her emotional state.

The accused had no real opportunity to compose herself and consider her response. [ 27 ] The Crown has failed to prove beyond a reasonable doubt that there was a refusal and the Crown has failed to prove beyond a reasonable doubt that the accused had the requisite intent to refuse. She is found not guilty on count two.

C.C. Toth, J