Her Majesty the Queen - v. -, 2013 SKPC 84

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 084 Date: May 14, 2013 Information: 24402633 Location: Esterhazy _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jody Christine Duchek Appearing: Barry Stricker For the Crown Self For the Accused JUDGMENT D. C. CHOW , J INTRODUCTION [ 1 ] The Accused herein, Jody Christine Duchek, stands charged that, on or about the 13 th day of December, 2011, at or near Esterhazy, Saskatchewan, she did:

a. operate a motor vehicle while her ability to do so was impaired by alcohol, contrary to sections 253(1) (

a) and 255(1) of the Criminal Code ; and b. without reasonable excuse, fail or refuse to comply with a demand made to her by a peace officer to provide samples of her breath as in the opinion of a qualified technician were necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in her blood, contrary to section 254(5) of the Criminal Code . [ 2 ] Evidence was heard, and submissions made on February 14, 2013, following which the proceedings were adjourned for decision.

On May 14 th I acquitted the Accused of both counts, and undertook to provide written reasons for my decision. EVIDENCE [ 3 ] The Crown’s first witness was Cst. James Barnett, a member of the Royal Canadian Mounted Police since 2006. Cst. Barnett testified he was on duty the morning of December 13 th , 2011.

While patrolling Highway 22 west of Esterhazy, Saskatchewan, he observed a gold truck to cross the centre line; he then observed the operator of the vehicle to signal, as if preparing to turn left, then disengage the signal light and proceed further down the highway before crossing into the shoulder and finally pulling off the highway and onto a grid road. [ 4 ] Cst. Barnett testified that he followed the vehicle onto the grid road, where it came to a stop.

At approximately 3:45 pm, he approached the driver’s side of the truck, and asked the operator and sole occupant for her license and registration. [ 5 ] The Witness testified that the Accused is personally known to him and that she was indeed the operator of the vehicle; he readily identified her in Court. [ 6 ] The Crown proposed to introduce a statement purportedly made by the Accused to the Cst. Barnett at the roadside. A voir dire was undertaken, following which it was determined that the statements were indeed voluntary and admissible as evidence in the trial proper. [ 7 ] Cst.

Barnett went on to state that upon asking the Accused for her license and registration, Ms. Duchek replied “You know who I am”. He requested her license and registration a second time, to which Ms. Duchek replied she was just headed up the road and needed to get to a pool tournament. Although he could not recall for certain, Cst. Barnett testified he believed the Accused provided her identification only after he had requested it for a third time. [ 8 ] According to the Witness, he noted an odour of alcohol on Ms. Duchek’s breath, and asked her how much alcohol she had consumed.

Initially, she denied consuming any, but when he confronted her about the smell alcohol on her breath, the Accused admitted to having consumed “one earlier in the evening”. [ 9 ] Cst. Barnett testified that he is, and was at the material time qualified to administer the Approved Screening Devise (ASD) test, that he had an ASD with him that evening – a Dreger Alcotest 7410 GLC - and that the same had been properly calibrated. Based upon his observations as to the manner of driving, coupled with the smell of alcohol on her breath, the Witness suspected Ms.

Duchek of operating a motor vehicle while impaired, and asked her to exit her vehicle and accompany him for the purposes of performing an ASD test. [ 10 ] Ms. Duchek accompanied him as requested and took a seat in the rear, driver’s side of his police vehicle. Upon entering the vehicle, Cst. Barnett observed her to be speaking to an unknown individual on her cell phone. That conversation lasted approximately a minute, and at 3:51 pm he began reading her the ASD demand verbatim from the card he had been issued. According to Cst.

Barnett, the Accused acknowledged she understood the demand, and acknowledged further that she had provided an ASD sample in the past. [ 11 ] Cst. Barnett then activated the ASD, inserted the mouthpiece and presented it to the Accused, who in turn, provided a sufficient sample without difficulty. The ASD test resulted in an “F” reading, a result which indicated, according to his training, a blood

alcohol level in excess of 100 millilitres percent. [ 12 ] As a result, Cst. Barnett placed the Accused under arrest for impaired operation at 3:57 pm and advised her of her Charter rights, again by reading the same verbatim from his card. According to the Witness, Ms. Duchek confirmed she understood, and confirmed she wished to exercise her right to speak with a lawyer. At 4:01 pm he read the standard breath demand and police warning, and Ms. Duchek again confirmed she understood. [ 13 ] Cst.

Barnett and the Accused then departed the scene at approximately 4:05 pm and arrived at the Esterhazy detachment shortly thereafter, at approximately 4:11 pm. [ 14 ] At the detachment, the Accused expressed a desire to speak with a particular lawyer. Attempts were made, unsuccessfully to contact counsel by phone and so a voicemail message was ultimately left at the lawyer’s cell phone number. At this point, Cst. Barnett advised the Accused he had made reasonable attempts to contact counsel of choice, and asked her if she wished to speak with someone else. When Ms.

Duchek advised she did not know any other lawyers, the Witness testified he provided her with a counsel list, at which point she expressed a desire to speak with Legal Aid. When the accused had finished speaking with Legal Aid, Cst. Barnett confirmed with her that she was satisfied. [ 15 ] He then sat with Ms. Duchek and observed her while another Member, Cst. Langdon, readied the Approved Instrument, and thereafter during repeated failed attempts to provide a sufficient sample into the same.

He described her demeanor by this point as agitated and argumentative, and recalled the Accused complaining she was suffering from a cold, and protesting that she had consumed only 1 beer. [ 16 ] Eventually, after numerous unsuccessful attempts, the Accused was charged with refusal. Cst. Barnett prepared the necessary documentation and served it on her, before releasing Ms. Duchek to a sober third party who had attended at the detachment. [ 17 ] Under cross examination, Cst. Barnett conceded that he had observed nothing out of the ordinary about Ms.

Duchek’s motor skills, speech, or eyes, and that the only indicia of impairment he noted was the manner of driving, and the smell of alcohol he detected on the Accused’s breath. [ 18 ] He confirmed Ms. Duchek had indeed complained that she was not feeling well, but he did not recall any discussion of specifics, nor could he recall her having any difficulty breathing. He not offered the Accused the option of providing blood samples, because he was of the opinion she was capable of providing a sample. [ 19 ] The Crown’s second and final witness was Cst. Kevin Langdon. [ 20 ] Cst.

Langdon testified that he is now, and was at the material time, a qualified technician, in accordance with the provisions of the Criminal Code . He testified as to the workings of the approved instrument, and estimated having administered between 100 and 150 breath tests, including instances where the test subject had suffered from asthma, pneumonia, colds and coughs. [ 21 ] It was Cst.

Langdon’s evidence that the Accused attempted, unsuccessfully to provide a sample of her breath 12 times, and that a new mouthpiece was used for each attempt; these 12 mouthpieces were filed collectively as Exhibit P-1 in these proceedings. Also filed, as Exhibit P-2, was the mouthpiece employed by the Witness himself in readying and testing the approved instrument that afternoon. [ 22 ] The Crown also filed, as Exhibits P-3 and P-4 respectively, the subject test results for each of the 12 failed attempts, and Exhibit P-5, being the control test result performed, and initialed by Cst. Langdon. [ 23 ] Cst.

Langdon testified that, after the 12 th failed attempt, it was his opinion that the Accused had failed or refused to provide a suitable sample as required.

[ 24 ] In the course of his testimony, the Crown also introduced, with the consent of the Accused, a video and audio recording of what transpired at the detachment. [ 25 ] Under cross examination, the Witness conceded that Ms. Duchek had no difficulty understanding his instructions, and had indicated a willingness to provide a sample, and further, that in his opinion she might well have succeeded in doing so had she only continued to blow for another half to one and a half seconds; however, it was also his opinion that Ms. Duchek was intentionally failing to do so. [ 26 ] The Accused, Ms.

Duchek, elected to give evidence in her own defence. She acknowledged having initially engaged her left turn signal, but explained she had elected not to turn because the police vehicle was following too closely. She could not recall pulling onto the shoulder of the highway, as her attention was focused on the police vehicle in her rear-view mirror at the time. Ms.

Duchek advised she had consumed only a tablespoon of cough medicine in the morning, and one, non-alcoholic beer prior to being stopped, at approximately 1 pm. [ 27 ] She testified that she had done her best to comply with the demand, and to provide adequate samples of her breath, however, at the time of the incident, she was physically incapable of doing so by virtue of a medical condition. [ 28 ] According to the Accused, she had initially consulted her physician the preceding November, and then again shortly after the within incident, in January, 2013.

She testified that, on the latter occasion, her physician referred her for tests to detect Chronic Obstructive Pulmonary Disease (COPD), which tests confirmed that she suffered from diminished lung capacity. Following the diagnosis, she had been prescribed three separate inhalers to address her respiratory problems, and it was her experience that the condition was aggravated by stress. [ 29 ] Ms.

Duchek explained that, notwithstanding that she had successfully provided an approved screening devise sample at the roadside earlier that evening, she had been physically unable to provide adequate samples at the detachment because by this point, she had become more agitated and stressed, and there was little opportunity afforded between attempts for her to recover.

She advised she had been suffering from anxiety for a year or two by that time, and further opined that her efforts had been made that much more difficult by the fact she had been a heavy smoker, and by the humidity in the air that day. [ 30 ] Under cross examination, Ms. Duchek, advised that at the time of the incident, she was smoking approximately a pack of cigarettes per day, that she had not used her inhaler at all that day, and conceded she never suggested to investigators that she required the same.

Notably, she also acknowledged that she had, within in the year preceding this incident, successfully provided breath samples in a separate investigation. ANALYSIS [ 31 ] The relevant sections of the Criminal Code provide as follows: 253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood 254(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. [ 32 ] For the reasons set forth below, I am unable to conclude, on the evidence before me, that the Crown has established the offence of impaired driving to the requisite criminal standard of proof beyond a reasonable doubt.

[33] While the Criminal Code does not prescribe any special test to determine impairment, it has long been settled that the Crownneed not prove a marked departure from the norm; rather, evidence which establishes any degree of impairment of the ability to operate amotor vehicle will suffice. R. v. Stellato, (SCC), [1994] S.C.J. No. 51, affg (ON CA), [1993] O.J. No.18 (C.A.). [34] A slight degree of impairment per se is not however, synonymous with a slight degree of impairment of one’s ability tooperate a motor vehicle, and evidence of slight impairment is not to be confused with slight evidence of impairment.

Speaking for themajority in R. v. Andrews 1996 ABCA 23 , [1996] A.J. No. 8 (C.A.) leave refused [1996] S.C.C.A. No. 115, Conrad J.A.writes: 16 Stellato approves the principle that a conviction on a charge of impaired driving can be founded on proof beyond a reasonabledoubt of slight impairment of the ability to drive.

If the ability to operate a motor vehicle is impaired (even slightly) by alcohol or drugs,it is not necessary that the degree of that impairment be marked. 17 The courts must not fail to recognize the fine but crucial distinction between "slight impairment" generally, and "slight impairmentof one's ability to operate a motor vehicle". Every time a person has a drink, his or her ability to drive is not necessarily impaired. It maywell be that one drink would impair one's ability to do brain surgery, or one's ability to thread a needle.

The question is not whether theindividual's functional ability is impaired to any degree. The question is whether the person's ability to drive is impaired to any degree byalcohol or a drug. In considering this question, judges must be careful not to assume that, where a person's functional ability is affected insome respects by consumption of alcohol, his or her ability to drive is also automatically impaired. 18 Stellato, admittedly, is not entirely clear on this distinction.

The inference that Stellato will sustain a conviction if the impairmentproved is slight, rather than if the impairment of the ability to drive is slight, stems from the penultimate paragraph of Labrosse J.A.'sjudgment where he says: Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused'sability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as toleave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted.

If the evidence ofimpairment establishes any degree of impairment ranging from slight to great, the offence has been made out. (Emphasis added) In my view, that paragraph must be read in the context of the whole judgment and in particular the sentence commencing "...Accordingly ..." I am satisfied that the subsequent references to the word "impairment" in the paragraph really mean "that impairment"referring to the earlier described impairment of the ability to drive. Otherwise, the pronouncement is not in harmony with the reasons ofMitchell J.A. in R. v.

Campbell quoted with approval by His Lordship which I set out for convenience: The Criminal Code does not prescribe any special test for determining impairment. It is an issue of fact which the trialJudge must decide on the evidence. The standard of proof is neither more nor less than that required for any otherelement of a criminal offence. Before he can convict, a trial judge must receive sufficient evidence to satisfy himselfbeyond a reasonable doubt that the accused's ability to operate a motor vehicle was impaired by alcohol.

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired theability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of anoffence regardless of whether his ability to drive is greatly or only slightly impaired. Courts must therefore take carewhen determining the issue not to apply tests which assume or imply a tolerance that does not exist in law. Trialjudges constantly have to keep in mind that it is an offence to operate a motor vehicle while the ability to do so isimpaired by alcohol.

If there is sufficient evidence before the Court to prove that the accused's ability to drive waseven slightly impaired by alcohol, the Judge must find him guilty. ... 29 In my view the following general principles emerge in an impaired driving charge: (1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt; (2) there must be impairment of the ability to drive of the individual; (3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug; (4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and (5) proof can take many forms.

Where it is necessary to prove impairment of ability to drive by observation of the accused and hisconduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof bemet. To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessing

the evidence and arriving at the required standard of proof that the ability to drive is actually impaired. [35] The applicability of Andrews in Saskatchewan was subsequently canvassed at length by Baynton J. (as he then was) in R. v.MacDonald, (SK KB), [1996] S.J. No. 442. Beginning at paragraph 4 of the judgment, he writes: 4 The Supreme Court of Canada provided a final answer to the conflicting legal decisions in various provincial courts ofappeal when it dismissed the appeal against conviction and approved the reasons of the Ontario Court of Appeal in R. v.

Stellato, supra.The appellant relies however on R. v. Andrews (unreported January 8, 1996), a decision in the Alberta Court of Appeal in which aconviction for impaired driving was overturned and a new trial ordered. In my view, Andrews interprets the Stellato decision in a mannerthat is inconsistent with the reasons given by the Ontario Court of Appeal, reasons that were specifically adopted by the Supreme Courtwhen it dismissed the appeal. At the time the appeal before me was argued, the Crown had applied to the Supreme Court for leave toappeal Andrews.

Leave, however, was subsequently dismissed on June 13, 1996 without reasons. 5 The ratio decidendi of the majority decision of the Alberta Court of Appeal in Andrews is set out in the first threeparagraphs following the heading "Analysis." It was that the trial judge applied the wrong test in that he understood Stellato to mean that"slight impairment by the accused at the particular time" was sufficient for a conviction.

The appeal court states its view of the propertest as follows: Stellato approves the principle that a conviction on a charge of impaired driving can be founded on proof beyond areasonable doubt of slight impairment of the ability to drive.

If the ability to operate a motor vehicle is impaired (evenslightly) by alcohol or drugs, it is not necessary that the degree of that impairment be marked. 6 The court went on to observe that even though Labrosse J.A. had not made this distinction clear in his reasons in Stellato,it was evident from a reading of his reasons in the context of the whole judgment that he was referring to the ability to drive beingimpaired, not just being impaired. In stating the general principles that emerge in an impaired driving charge, the court stated: ... proof can take many forms.

Where it is necessary to prove impairment of ability to drive by observation of theaccused and his conduct, those observations must indicate behaviour that deviates from normal behaviour to a degreethat the required onus of proof be met. To that extent the degree of deviation from normal conduct is a useful tool inthe appropriate circumstances to utilize in assessing the evidence and arriving at the required standard of proof thatthe ability to drive is actually impaired. 7 Had the Alberta Court of Appeal left the matter at this point, there would be no apparent conflict with Stellato.

But itwent on to set out how a trial judge is to assess whether a person's ability to drive is impaired by alcohol and to revisit R. v. McKenzie(1955), (AB KB), 111 C.C.C. 317 (Alta. Dist. Ct.). This case used the phrase "marked departure" of conduct, and wasinterpreted later by the Alberta Court of Appeal in R. v. Smith (1992), 1992 ABCA 159 , 73 C.C.C. (3d) 285. The court inAndrews states that Stellato and the cases it refers to do not overrule McKenzie but rather explain it, and that the two cases arecompatible.

The former speaks to the degree of impairment of the ability to drive necessary to sustain a conviction (marked degree ofimpairment not required), while the latter speaks to the manner of proof of that impairment (conduct that exhibits a marked departurefrom the norm). 8 With the greatest respect I cannot agree with this characterization of McKenzie and Stellato. Labrosse J.A. in Stellato atpp. 382-4, clearly rejected the Smith

interpretation of McKenzie and preferred the approach taken in R. v. Campbell (1991), (PE SCAD), 26 M.V.R. (2d) 319 (P.E.I. C.A.). He stated that this latter case "rejected the requirement of a markeddeparture from normal behaviour." The following is in part his quote from p. 320 of Campbell: The Criminal Code does not prescribe any special test for determining impairment. It is an issue of fact which the trialJudge must decide on the evidence. The standard of proof is neither more nor less than that required for any otherelement of a criminal offence ...

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired theability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of anoffence regardless of whether his ability to drive is greatly or only slightly impaired. Courts must therefore take carewhen determining the issue not to apply tests which assume or imply a tolerance that does not exist in law. 9 Labrosse J.A. in rejecting the Smith

interpretation of McKenzie at p. 384 restates his opinion that the

interpretation of s.253(

a) which was advanced in R. v. Winlaw (1988), 13 M.V.R. (2d) 112, R. v. Bruhjell (unreported decision of B.C.C.A. datedSeptember 18, 1986) and the Campbell case is the correct one.

He repeats in his own words what is set out in the preceding quote fromCampbell, making it abundantly clear that he rejects any notion that the court must find a "marked departure" of conduct as a thresholdfor a conviction for impaired driving. 10 It is now common knowledge that a person's judgment, perception, and reaction time can be detrimentally affected by alevel of alcohol consumption that may not be manifested in observable conduct such as the manner of walking or talking.

Such a personmay well be able to walk in a straight line or speak without a slur, but is a danger behind the wheel of an automobile where judgment andreaction time is critical to the safety of others on the road. By the time a person has had enough to drink that his or her observableconduct exhibits a marked departure from the norm ( such as staggering or slurred speech) that person's judgment and reaction time (andthus the ability to drive a motor vehicle) is substantially impaired.

As a matter of common sense, if the McKenzie threshold of evidenceis still the law, then a conviction for impaired driving could never be made unless the degree of impairment was great. This is clearlyinconsistent with the decision and reasoning in Stellato.

11 I take comfort in this conclusion in the reasons given by our Court of Appeal in three recent unanimous decisions thatinterpret Stellato. These cases unfortunately were not referred to in Andrews and in my view it is inconsistent with them. I haveconcluded that despite the dismissal by the Supreme Court of leave to appeal Andrews, it stands only on its narrow ratio and itsobservations respecting the McKenzie threshold of proof is obiter. I am bound by and prefer the decisions in our own Court of Appealthat interpret Stellato. 12 In R. v. Hall (S.J.) (1994), (SK CA), 125 Sask.

R. 62 at pp. 64-5, Jackson J.A. observes that Stellatorepresents a significant change to the McKenzie approach: The Supreme Court of Canada's decision approving Mr. Justice Labrosse's reasoning effectively overrules theCanadian jurisprudence following and expanding R. v. McKenzie (1955), (AB KB), 111 C.C.C. 317(Alta. Dist. Ct.), where it was said (at p. 319) a finding of impairment should not be made on a "slight variation fromthe normal." Subsequent case law had interpreted that standard as requiring in all cases behaviour or physicalattributes which represented "a marked departure from the norm" ... ...

The essence of Stellato (and the cases referred to therein, e.g., R. v. Campbell (W.S.) (1991), ... (PE SCAD), 26 M.V.R (2d) 319 ... is to avoid the application of some rigid standard which might deprive the trier offact of determining on all the facts whether an accused was indeed impaired. The trier of fact no longer asks thequestion: does the accused's behaviour or physical characteristics represent a marked departure from the norm.

A trierof 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 ... (emphasis added) 13 Sherstobitoff J.A. in R. v. McCallum (H.) (1994), (SK CA), 125 Sask. R. 77 quoted Hall withapproval and also characterized Stellato as representing a departure from the law as stated in McKenzie and Smith.

At pp. 78-9 he puts itthis way: The main issue in both of the courts below was the nature of the proof required to establish impairment of ability todrive: whether it was necessary to prove a "marked departure from what is usually considered to be the normal" as setout in [McKenzie and Smith] or whether proof of any degree of impairment from slight to great was sufficient as setout in [Winlaw, Campbell, and Stellato] ... the issue has been conclusively determined by the Supreme Court ofCanada in [Stellato]. (emphasis added) 14 The Court of Appeal in McCallum overruled the decision in the Queen's Bench relied on by the appellant in this appeal,and ordered a new trial on the basis that neither the trial judge nor the

summary conviction appeal judge had used the correct test. 15 The third case in our Court of Appeal is R. v. Pelletier (J.G.) (1995), (SK CA), 128 Sask. R. 214.

Anew trial was ordered, one of the grounds being an error of the trial judge in articulating the required degree of culpable impairment as"whether or not [there] was a marked departure from what is acceptable norm in the circumstances." Tallis J.A. quoting from p. 384 ofStellato states the proper test as follows: In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before aconviction can be registered.

Accordingly, before convicting an accused of impaired driving, the trial judge must besatisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence ofimpairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must beacquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offencehas been made out. 16 In my view this is a clear and concise statement of the current law.

With respect, the attempt in Andrews to reactivate anartificial threshold of proof imposed over forty years ago by McKenzie, is inconsistent with the more modern and enlightened view ofimpairment by alcohol consumption and its impact on the ability to drive a motor vehicle. [36] MacDonald is oft cited with approval. See for example R. v. Landes, (SK KB), [1997] S.J. No. 785 andmore recently, R. v. Bonter, [2013] S.J. No. 47. [37] Notably however, R. v.

A.L.E., 2009 SKCA 65, a recent decision of the Saskatchewan Court of Appeal contains no referencewhatsoever to MacDonald or the authorities which have adopted it; indeed, the decision draws heavily upon Andrews. Speaking for aunanimous Court Wilkinson J.A. writes, commencing at paragraph 39: [39] Confusion regarding the appropriate test and the required standard of proof is the very issue addressed in R. v. Andrews. There,Conrad J.A., for the majority, stated: … The trial judge felt that the Stellato decision meant that “slight impairment by the accused at the particular time” was

sufficient for a conviction. In applying this as the legal test, he made a critical error. He failed to focus the issue upon the question ofwhether Mr. Andrews’ ability to operate a motor vehicle was impaired. Stellato approves the principle that a conviction on a charge of impaired driving can be founded on proof beyond a reasonable doubtof slight impairment of the ability to drive. If the ability to operate a motor vehicle is impaired (even slightly) by alcohol or drugs, it isnot necessary that the degree of that impairment be marked.

The courts must not fail to recognize the fine but crucial distinction between “slight impairment” generally, and “slightimpairment of one’s ability to operate a motor vehicle”. Every time a person has a drink, his or her ability to drive is not necessarilyimpaired. It may well be that one drink would impair one’s ability to do brain surgery, or one’s ability to thread a needle. The questionis not whether the individual’s functional ability is impaired to any degree. The question is whether the person’s ability to drive isimpaired to any degree by alcohol or a drug.

In considering this question, judges must be careful not to assume that, where a person’sfunctional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired. [40] Conrad, J.A. then proceeded to lay down the guiding precepts, saying: In my view, the following general principles emerge in an impaired driving charge: (1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt; (2) there must be impairment of the ability to drive of the individual; (3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug; (4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and (5) proof can take many forms.

Where it is necessary to prove impairment of ability to drive by observation of the accused and hisconduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof bemet. To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessingthe evidence and arriving at the required standard of proof that the ability to drive is actually impaired. [38] In the present case, the Crown submits that Ms. Duchek was mistaken as to Cst.

Barnett’s identity at the roadside andmistaken further as to whether she was seated in her vehicle when the officer first approached her door. This confusion, coupled withCst. Barnett’s observations as to her manner of driving, and the smell of alcohol on her breath is, in the Crown’s submission, sufficientevidence of impairment. [39] As Klebuc J. (as he then was) noted in R. v. Landes, (SK KB), [1997] S.J. No. 785, the smell ofalcohol on one’s breath, in and of itself is merely probative of consumption, and bears no relationship to the amount of alcohol consumedor the fact of impairment. [40] As for Ms.

Duchek’s apparent confusion, again, I find the same to be of limited probative value. Firstly, as for the fact thather recollection differs from that of Cst. Barnett with regard to whether she had in fact already exited her vehicle by the time heapproached, I note the trial of these matters took place more than a year after the incident, and while Cst. Barnett had the benefit ofreferring to his handwritten notes to aid his memory, Ms. Duchek did not. Moreover, while I accept that she was mistaken when sheinitially insisted that Cst. Barnett knew her at the roadside, it was also clear from the evidence that Ms.

Duchek had been involved in asimilar investigation in the recent past. In the circumstances, the inference, if any to be drawn from these two points is equally consistentwith the passage of time and its effects upon one’s memory, and the likely comingling of details associated with two similar incidents aswith the Accused’s impairment. [41] Ms. Duchek has offered an explanation for the investigating officer’s observations with respect to her driving. While I donot necessarily believe Ms.

Duchek’s explanation, I am satisfied that it could reasonably be true. [42] Finally, in reviewing the video recording tendered by the Crown, it is readily apparent that the Accused had no difficultycomprehending the questions put to her by Cst. Barnett, nor any difficulty enunciating or providing appropriate responses, and there wasnothing remarkable about her walk, motor skills or dexterity. [43] In the result, based upon the evidence before me, I am simply not satisfied beyond a reasonable doubt that the Accused’sability to operate a motor vehicle was impaired by alcohol, and Ms.

Duchek is found not guilty on count #1 of the information; for thereasons set forth below, I have arrived at the same conclusion with respect to count #2. [44] As regards to the allegation that Ms. Duchek failed or refused to provide adequate samples of her breath, in violation ofsection 254(5) of the Criminal Code, the Crown relies primarily upon the evidence of Cst. Langdon, who testified that the Accusedattempted 12 times, without success, to provide an adequate sample, and upon his opinion that Ms. Duchek was intentionally failing to

do so. In addition, the Crown draws the Court’s attention to the fact that she had no difficulty providing an adequate ASD sample at theroadside on this occasion, and notes she successfully provided samples of her breath on a previous occasion. Moreover, the Crownargues, Ms. Duchek can be heard in the videotaped recording arguing loudly with officers. [45] The Crown acknowledges that Ms.

Duchek has offered an explanation for her failure to provide adequate samples, butargues that the diagnosis of COPD is not, by itself sufficient, in that the Accused is unable to quantify what her lung capacity was, and todemonstrate it would have be insufficient to provide adequate samples. With respect, I do not agree. [46] Speaking for a unanimous Court in R. v. Lewko, 2002 SKCA 121 , [2002] S.J. No. 622, Bayda C.J.S. (as he thenwas), writes, beginning 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 theexistence of a demand having the requirements of one of the three types mentioned in ss. (2) and (3). Second, the Crown must prove afailure or refusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus).

Third, theCrown must prove that the defendant intended to produce that failure (the mens rea). 10 The proof by the Crown of the three elements (and the defendant's questioning of that proof by combatting the allegations of theprosecution without introducing any further issue) may be looked upon as the first stage of the proceedings. Once the Crown hasestablished the three elements of the offence in question, the defendant is presumed guilty and must be so found unless the defendantraises 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). 11 In Brownridge v. The Queen, (SCC), [1972] S.C.R. 926, Laskin J. at p. 950 in a judgment supporting the majoritysaid: ... I regard the phrase "without reasonable excuse" as adding a defence or a bar to successful prosecution which would not beavailable without those words, but not as encompassing defences or bars that would exist without them. See also Taraschuk v.

The Queen, (SCC), [1977] 1 S.C.R. 385 and Glanville Williams, Textbook of Criminal Law,supra at p. 599. 12 If the defendant chooses to raise the defence of reasonable excuse, a number of evidentiary questions arise. Does this choiceimpose upon the defendant an evidential burden or a persuasive (legal) burden? In either case, what is the extent of that burden? Howdoes the defendant discharge that burden? What questions of law, if any, does this defence raise? 13 It is first necessary to remove any doubt about what the terms "evidential" and "persuasive" burdens mean.

For that meaning I cando no better than refer to an excerpt from the judgment of Dickson C.J.S. in R. v. Schwartz, (SCC), [1988] 2 S.C.R. 443at 466. (While he wrote in dissent, the definition of these terms was not a contentious issue and was not addressed by the majority.) Judges and academics have used a variety of terms to try to capture the distinction between the two types of burdens.

Theburden of establishing a case has been referred to as the "major burden," the "primary burden," the "legal burden" and the "persuasiveburden." The burden of putting an issue in play has been called the "minor burden," the "secondary burden," the "evidential burden," the"burden of going forward," and the "burden of adducing evidence." While any combination of phrases has its advantages and drawbacks,I prefer to use the terms "persuasive burden" to refer to the requirement of proving a case or disproving defences, and "evidential burden"to mean the requirement of putting an issue into play by reference to evidence before the court.

The party who has the persuasive burdenis required to persuade the trier of fact, to convince the trier of fact that a certain set of facts existed. Failure to persuade means that theparty loses. The party with an evidential burden is not required to convince the trier of fact of anything, only to point out evidence whichsuggests that certain facts existed. The phrase "onus of proof" should be restricted to the persuasive burden, since an issue can be put intoplay without being proven.

The phrases "burden of going forward" and "burden of adducing evidence" should not be used, as they implythat the party is required to produce his or her own evidence on an issue. As we have seen, in a criminal case the accused can rely onevidence produced by the Crown to argue for a reasonable doubt. 14 A persuasive burden when imposed on the Crown always consists of a standard of proof beyond a reasonable doubt (see Schwartz atp. 466) and when imposed on a defendant, a standard of proof on the balance of probabilities (see: The Queen v.

Appleby, (SCC), [1972] S.C.R. 303 at 310). 15 Where the Crown proceeds by way of

summary conviction, as it did in the present case, whether the burden s. 254(5) places on thedefendant is evidential or persuasive is in large measure answered by reference to s. 794(2) of the Code. It provides: 794(2) The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in

favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception,exemption, proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information.[Emphasis added] 16 I agree with P.K.

McWilliams, Q.C., author of Canadian Criminal Evidence (3d ed., vol. 2) (Aurora, Ontario: Canada Law Book Inc.,2002), ch. 25:10120, where he states: The addition of the words "except by way of rebuttal implies" that the persuasive burden is ultimately on the prosecutionand that only an evidentiary burden is imposed on the defence. 17 The second branch of this subsection in effect provides that the prosecutor is "not required to prove that an . . . excuse . . . does notoperate in favour of the defendant . . .", but when put into a "rebuttal" situation "the prosecutor . . . is required . . . to prove that theexcuse . . . does not operate in favour of the defendant." [Emphasis added] When put in that situation, the prosecutor bears a persuasiveburden and the extent of that burden, as it always is when the Crown bears it, is proof beyond a reasonable doubt.

The pertinent questionthen becomes: when does a rebuttal situation arise? If the first branch of the subsection is interpreted in a way that imposes a persuasiveburden on the defendant, then no rebuttal situation can ever arise: If the defendant satisfies the burden of proof on the balance ofprobabilities, that is the end of the matter, and there is nothing to rebut. That

interpretation of the first branch renders the second branchredundant and meaningless. On the other hand, if the first branch is interpreted in a way that imposes an evidential burden on thedefendant, then a rebuttal situation can arise and does arise if the defendant meets that burden. That

interpretation renders the secondbranch meaningful.

Another way of looking at the matter is simply that you cannot have two contradictory persuasive burdens in relationto the same set of facts. 18 To interpret s. 794(2) in a manner that imposes an evidential rather than a persuasive burden on the defendant in relation to thedefence of reasonable excuse - a defence that admits of excuses not otherwise recognized by law - accords with the way the law treatsthose defences that are ordinarily recognized by law (e.g. honest but mistaken belief in consent in sexual assault cases; intoxication;necessity, duress, provocation and self-defence).

In the latter case, the air of reality test is invoked. And as stated by McLachlin C.J.C.and Bastarache J., writing for the majority in R. v. Cinous (2002), 2002 SCC 29 , 162 C.C.C. (3d) 129 at para. 52: "It is trite lawthat the air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive." They go on to say that "[t]heair of reality test is concerned only with whether or not a putative defence should be 'put in play'. . .". Those are the words used byDickson C.J.S. in Schwartz, supra, to describe an evidential burden.

For our purposes, the application of an air of reality test and theimposition of an evidential burden mean the same thing. It is my opinion that, generally speaking, there is no reason in logic or in policyto treat the defence of reasonable excuse differently from the defences ordinarily recognized by law. Situations however will occur whereParliament deems it in the public interest to impose a persuasive burden on a defendant. It did so in respect of the burden of rebutting thepresumption contained in s. 224A(1)(

a) of the Criminal Code, 1953-54 (Can.), c. 51, later s. 237(1)(

a) of the Criminal Code, R.S.C.1970, c. C-34 (see The Queen v. Appleby, supra; and R. v. Whyte, (SCC), [1988] 2 S.C.R. 3.) Both of these cases aredistinguishable from the present case in that not only is the wording of the statutory provision there under consideration different fromthat in the present case, but the cases involve the rebuttal of a statutory presumption, a circumstance not existent in the present case. 19 To interpret s. 794(2) in a manner that imposes an evidential burden also accords with the law in England as stated by Lord ParkerC.J. (concurred in by Cooke and Fisher JJ.) in Rowland v.

Thorpe, [1970] 3 All E.R. 195 (Q.B.): Of course, once the defence is raised of reasonable excuse, it is for the prosecution in every case to negative it, and reallythe question one asks oneself in the present case is this: had the prosecution on the evidence negatived the possibility of reasonableexcuse?

In all the circumstances here, bearing in mind the conduct of the respondent, the fact that she never gave any explanation of herrefusal, her behaviour in the police station, the evidence she gave as regards embarrassment, there was nothing, as it seems to me,sufficient to raise in the court any reasonable doubt; in other words, it inevitably followed that the prosecution had discharged the burdenon them of satisfying the court that there was no reasonable excuse. [at p. 197] (See also: Law v. Stephens, [1971] R.T.R. 358 per Lord Parker C.J. at 361 and R. v.

John, [1974] 2 All E.R. 561 at 563 (C.A.), quotedinfra.) 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, he need only put the "issue into play." How does he do that? He produces sufficientevidence of something that is capable of being a reasonable excuse. And how does he do that?

McLachlin C.J.C. and Bastarache J.answer that question in relation to the air of reality test in this way: [53] In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence reliedupon by the accused to 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 the accused, of defence witnesses, or of Crown witnesses.

It can also rest upon the factual circumstances of the case orfrom any other evidential 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]. The same answer holds true for that question in relation to the evidential burden.

That producing of the necessary evidence to meet theevidential burden may be regarded as the first stage in the process of establishing the defence of reasonable excuse. 21 The second stage in the process involves determining the sufficiency of the evidence of the "something" that is capable of being areasonable excuse. That determination is a question of law for the same reasons that the question whether there is an air of reality to adefence is a question of law (see Cinous, supra, at para. 55). There is another question of law that needs to be determined in this secondstage.

Because we are dealing here with the defence of "reasonable excuse" which as noted above admits of excuses not otherwise

recognized by law, it is important to determine whether that "something" that is advanced as a reasonable excuse is capable, in law, of constituting a "reasonable excuse." To put it another way - using the language of s. 794(2) of the Code - it is necessary to determine if the "excuse . . . is prescribed by law." That, of course, is a question of law. 22 In R. v. John, supra, the Court of Appeal had before it s. 3(3) of the Road Safety Act 1967 which provides: A person who, without reasonable excuse, fails to provide a specimen for a laboratory test in pursuance of a requirement imposed under this

section shall be guilty of an offence . . . The sole question for the Court was whether or not the appellant had reasonable excuse. Roskill L.J. for the Court observed that the first question the Court needed to ask itself was whether or not "a particular excuse is capable in law of being a reasonable excuse." At p. 563 he approved the holding of Lord Parker C.J. in Law v.

Stephens, supra where the latter said: In that connection I think it is only right to say that it is a question of law in the first instance whether something put forward is capable of being a reasonable excuse; if it is capable of being one, then it becomes a matter of fact and degree as to whether or not it amounts to a reasonable excuse, and the burden of course then is on the prosecution to negative it. 23 The many cases over the years (see any one of the annotated Codes for a good overview) emanating from the courts of appeal in the various jurisdictions in Canada, including the Supreme Court of Canada, where the issue whether a particular set of circumstances constitutes a reasonable excuse was the sole question for decision, attest to and buttress the view that that issue is a question of law.

Were it not a question of law, the issue could not have been entertained by those courts as they were statutorily competent to hear the appeals only on a question of law. 24 As will be more fully discussed below, there is no question of "burden" attached to questions of law. 25 Lord Parker C.J. in Law v.

Stephens, supra, held that once "the something" put forward is found capable, in law, of being a reasonable excuse, it then becomes "a matter of fact and degree as to whether or not it amounts to a reasonable excuse." At this stage (the third) in the process, the judge, if necessary, will make determinations about the credibility of witnesses, weigh the evidence, and settle questions of primary fact and inferential fact, all geared to deciding the substantive merits of the defence.

These are all questions of fact and the burden respecting them, as Lord Parker C.J. points out and the last branch of s. 794(2) provides, is on the Crown to negative them as working in favour of the defendant. 26 The final stage in the process involves settling a question of evaluative fact.

Glanville Williams, supra, describes evaluative facts (and in so doing distinguishes them from questions of primary fact, questions of inferential fact and questions of denotative fact) in these words at p. 61: These principally concern the legal assessment of the facts as reasonable or negligent (if the defendant had to brake hard, does that mean that he was driving too fast, and therefore negligently?).

All value-judgments relating to matters of reasonableness, such as "reasonable excuse" under statute, or whether a person who made an arrest had "reasonable cause to suspect an offence," are left to the jury, provided that there is sufficient evidence to support a positive finding.

They are not really questions of fact, but the equation of jury questions and questions of fact means that they have to be pushed into this category. [Emphasis added] Earlier, at p. 49 (s. 2.2), he refers to questions of reasonableness and to value-judgments as "decisions on law": But some questions, such as the question of reasonableness, are in an intermediate position.

They are value-judgments marking the boundary between criminal and non-criminal conduct, and therefore are really decisions on law; yet they are made by the jury, except that there must be evidence that, in the view of the trial judge, would justify the jury in finding that there has been reasonableness or unreasonableness or whatever. For example, an allegation of negligence is not left to the jury unless there is evidence of negligence sufficient to support a conviction. [Emphasis added] 27 An evaluative fact involves a decision.

It is a decision that one obtains when one applies a legal standard of "reasonableness" to a set of facts. Professor Williams finds that to be a "decision on law." I agree, at least in the context of this case. It follows that because evaluative facts are essentially decisions on law, there is no question of "burden" attached to them, when that evaluation is made by a judge (as opposed to a jury).

This issue is more fully discussed below. (para. 35) [47] The Learned Chief Justice (as he then was) goes on to write, at paragraphs 35 and 36 of the decision: 35 As the foregoing analysis respecting the evidentiary issues surrounding the defence of "reasonable excuse" illustrates, at no stage does a trial judge considering this defence need to invoke and apply the standard of proof on the balance of probabilities. The standard does not apply at the first stage where the defendant carries the evidential burden of producing sufficient evidence of something that is capable of being a reasonable excuse.

As noted, were it a persuasive burden, the standard of balance of probabilities would apply, but it is not a persuasive burden. At the second stage where the judge is deciding the two questions of law, (namely, whether the evidential burden was discharged, and whether the "something" put forward is capable of being a reasonable excuse) the standard does not apply.

As Glanville Williams in his text, supra, points out (at p. 49) "Burdens are in respect of facts; questions of law are decided by the judge, without any question of burden." At the third stage - should the matter reach that stage, - the issue becomes one of fact. But, as noted earlier, at this stage the prosecutor is in "rebuttal" and carries the persuasive burden of negativing that the facts do not operate in favour

of the defendant. (As pointed out by Lord Parker C.J. and as provided by the second branch of s. 794(2)).

In the final stage of the process (the evaluative fact stage) because the evaluative facts are - in Glanville Williams's words - "not really questions of fact," but "really decisions on law," there is no question of burden as "burdens are in respect of facts." To the extent that there is a burden, it is on the prosecutor for the reasons that I outlined when dealing with stage three. 36 It is obvious from the above that there is simply no room for the application of the standard of proof on the balance of probability in relation to the defence of reasonable excuse.

This is reflected in and in a manner of speaking, is confirmed by the trial judge's reasons, for nowhere in those reasons is there any mention of the standard on the balance of probability. [48] In the present case, the Accused submits she was willing throughout to provide samples, and that she attempted to comply with the demand, but was unable to do so due to a medical excuse. I am satisfied that she has met the evidential burden in that her testimony gives rise to the possibility of a reasonable excuse. [49] Ms.

Duchek testified that she was suffering from breathing problems at the time of the alleged offence, and further, that she attended upon a physician shortly thereafter and was diagnosed with COPD, a diminished lung capacity, and was prescribed medication. [50] Her evidence is corroborated somewhat by the evidence of Cst. Barnett, who recalled Ms. Duchek to complain she was not feeling well, and more importantly, by the video recording tendered by the Crown, wherein Ms.

Duchek can be clearly heard to cough and to advise the investigators she was unable to provide a sample, as she had been without her voice for weeks . As for the fact that she had, earlier that evening provided an adequate ASD sample, I accept her explanation, that her medical condition was further aggravated by stress at the detachment, could reasonably be true. [51] While she has presented no independent medical evidence in support of the excuse advanced, I am satisfied, given the reasoning in Lewko , that no such obligation exists. See also: R. v. Sokulski , [2012] S.J. No. 717 and R. v.

Giroux , 2012 SKPC 163 . [52] I am further satisfied, from the express wording of Bayda C.J.S. (as he then was), that there is no persuasive burden on an accused who purports to rely upon a reasonable excuse to prove the same, even on a balance of probabilities. On the contrary, provided the court concludes, as I have done in this case, that an accused has met the evidentiary burden of raising something that is capable of being a reasonable excuse, the persuasive burden remains with the Crown to establish, beyond a reasonable doubt, that the facts do not operate in favour of that accused. See also: R. v.

Goleski , [2011] B.C.J. No. 1310 . [53] On the evidence before me, I am not satisfied that the Crown has met this burden. While I may not believe the Accused, I am left with a reasonable doubt, and I therefore find Ms. Duchek not guilty of the allegation contained in count #2 of the Information. ________________________ D. C. Chow, J