2011 QCCQ 7515, 2011 QCCQ 7515

R. c. Fenske 2011 QCCQ 7515 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF TEMISCAMINGUE TOWN OF VILLE-MARIE « Criminal and Penal Division » N° : 610-01-004824-094 DATE : June 6, 2011 ______________________________________________________________________ BY THE HONOURABLE DANIEL BÉDARD, J.C.Q. ______________________________________________________________________ the queen Prosecutor c.

JEFFREY-BOBY FENSKE Accused ______________________________________________________________________ JUGEMENT ______________________________________________________________________ I - INTRODUCTION [ 1 ] Jeffrey-Boby Fenske stands trial on the following accusation : [ 2 ] "On or about May 31, 2009, in Temiscaming, district of Temiscamingue, did fail or refuse to comply with a demand made to him by a peace officer under subsection (2)

b) of the

article 254 of the Criminal code , committing thereby the offence punishable on

summary conviction provided by section 254(5) and 255(1) of the Criminal code." [ 3 ] Two police officers testify for the crown and the accused does not take the stand. II - ISSUE TO RESOLVE [ 4 ] Did the crown prove beyond a reasonable doubt, a valid order given under section 254(2) of the Criminal code ? III - FACTS AND ANALYSIS [ 5 ] On May 31, 2009, the police officer Mélanie Dumont is on duty from 19H00 to 07H00, with her colleague Marie-Pierre Matte. They are patrolling.

She takes place in the passenger seat. [ 6 ] At 02H29, while in the patrol car, a call is received and the anonymous caller states that very intoxicated persons are entering and exiting a Chevrolet Silverado vehicle, near the Canadian Legion building in Temiscaming. The caller also provides the plate number. [ 7 ] The police officers, following the anonymous call, locate the vehicle at 02H37. It is parked, facing a restaurant bar known as " Brassette Timrose". [ 8 ] They park their patrol car, in the parking space of the M&M, permitting them to observe what is going on.

They see many persons gathered around the vehicle. At one point, the vehicle is motioned in reverse and leaves the parking area towards the road, heading in direction of Kipawa. [ 9 ] The suspect vehicle comes towards them, facing them, in the opposite lane. The police officer Dumont notices the presence of passengers in the car but does not notice the driver. Twice the vehicle touches the middle lane. They follow the car over a distance of 500 meters and she makes the following observations : the signal to turn is on, then off, followed by the braking lights on and off.

Finally, the car enters the parking lot of the Subway restaurant. [ 10 ] Once both vehicles are immobilized, she directs herself to the passenger's side of the suspect vehicle. She asks the passenger his identification papers and he answers that he does not have them. The ceiling light of the car is on and she notices three passengers. Visual contact is always maintained. Finally, the person in the passenger seat finds his identification papers and states that he is the

owner of the car. [ 11 ] The door window is opened and there is a strong odor of alcohol. According to her, it is evident that the three passengers are intoxicated. They all react slowly. [ 12 ] She recognizes the driver and the passenger seated in the back, following a police intervention made the day before. She witnesses an argument with the driver, whose eyes are vitreous, and her colleague. Consequently, she directs herself on the other side. The driver, who is an English person, is impatient and uncooperative. He gets out of the car and states that he was not the one driving.

According to him, the driver ran away and threw the keys. She tries to control the situation. When he speaks, she smells the odor of alcohol and advises him that he will have to blow. She repeats, mentions to the accused that he will have to blow and makes the corresponding gesture. She mentions the word "breathalyzer". She repeats a second time and he answers "No, no, no". The third time she asks him to follow her and he answers that he will not come.

Spontaneously he stated that he was drunk and not the driver. [ 13 ] The peace officers of Eagle Village are called for assistance, considering the tense situation. She heard the peace officer of Eagle village mentions that the keys had been found in the car. [ 14 ] The accused refuses to receive the summons to appear in court and the other documents. The first time she advises him that he will have to blow is at 03H45. [ 15 ] Cross-examined, the police officer confirms that it is not written in her report that the accused touched the middle line, twice.

As for the signal light put on to turn and the breaks, she maintains that it was the "on and off" process that was noted. She confirms the odor of alcohol coming from the vehicle and the vitreous eyes. It is written in her notebook that she had intervened the day before with the accused.

Three quarters of the intervention was done in English and the order was given in English. [ 16 ] The accused had no identification paper and she took the necessary steps to obtain his picture that she saw on June 19, 2009. [ 17 ] Marie-Pierre Matte, police officer, is the second witness called by the crown. [ 18 ] She did not note the time the vehicle was located but noted the time it left the parking space of the restaurant bar : 03H37. She circulated around the vehicle for prevention purposes then immobilized the patrol car. During the whole operation, she maintained visual contact.

When the suspect vehicle came towards them in the opposite direction, she noted that the driver had a bright orange t- shirt. There was also a front passenger and a person seated in the back. [ 19 ] She confirms the testimony of her colleague as for the middle line incident, the signal and brake lights pattern of on and off. She states that the suspect vehicle took the whole parking of the Subway restaurant before coming to a stop. She is the one that went to the driver's side. [ 20 ] She signals him to lower the glass window. Nothing happens. She knocks on the glass and the accused opens the door.

He tells her that the electric glasses do not function since he does not have the keys. He states that somebody else was driving, left and threw the keys away. Saying that, he points towards the rapids not far from the car. [ 21 ] She states that the person that was saying that was the same one she had seen driving. The accused had vitreous eyes and an odor of alcohol was emanating from the vehicle. [ 22 ] She spoke to the accused in English, since she is bilingual. According to her, the accused understood quite well. She required his permit and he answered that he had lost it.

She asked him his name, he answered Bob Fenske. Then he spontaneously said "It was not me driving, I was not the fucking driver." [ 23 ] She thus made a sign to her colleague to come on her side. Her colleague gave him the order to blow and the answer was, no. She repeated the order in English, while her colleague was miming the blowing procedure. The accused outside of the car was very intimidating, screaming and saying, no I am not, as an answer to their request. She received confirmation from the CRPQ with his date and name that he was Jeffrey-Boby Fenske.

Their colleague from Eagle Village were called for assistance, considering the situation with the accused. [ 24 ] She is the one that communicated with the police authorities in Sudbury for a photograph of the accused. [ 25 ] Crossed-examined, she maintains that before the suspect vehicle came to a stop in the parking area of the Subway, it was a long process. She also maintains that her colleague gave the order to blow. She further maintains visual contact during the whole intervention and that at no time did a person come out or entered the car, until interception.

The accused with the bright orange t-shirt was the one she has seen driving. She describes him as corresponding to the driver : hair, head and appearance. [ 26 ] The two witnesses identify the accused. IV - ANALYSIS OF THE FACTS AND DECISION [ 27 ] The defense does not raise any issue relative to the constitutional rights of the accused. [ 28 ] Essentially, the defense states that the identification has not been proven beyond a reasonable doubt. Furthermore, that there were no reasonable grounds to believe that the accused was the driver. Consequently and finally, the demand itself was not validly given.

V - ISSUE OF IDENTIFICATION [29] From the moment the car left the parking area of the restaurant bar Timrose, until it was immobilized in the parking space ofthe Subway restaurant, it was in movement. Visual contact was maintained during the course of the whole intervention, including theinterception phase. Nobody was observed getting in or exiting the car, except the driver after the beginning of the interception. [30] Officer Matte is formal : a person wearing a bright orange t-shirt drove the suspect vehicle coming towards them in the otherlane.

The physical description given corresponds to the driver intercepted, who was wearing a bright orange t-shirt. That same personidentified himself as Bob Fenske and with his date of birth, she confirmed identification through the CRPQ. [31] Again, the accused was formally identified during the trial.

Furthermore, officer Dumont had identified the accused, as notedin her notebook, since she had made an intervention involving the driver the day before. [32] The defense makes great case of the photograph required from the police in Sudbury and suggests that identification was not,at the time of interception, established. The analysis of the factual information establishes beyond a reasonable doubt, that the personaccused and identified at the hearing is the person identified as the driver on May 31, 2009. There is absolutely no doubt.

Therequirement after interception, of a photograph, does not add or subtract weight to the evidence given by the two officers clearlyestablishing identification. The photograph was not, in the court's opinion, necessary to establish identification. The photograph had beenrequested for the purpose of nominative information, not identification purposes. At the most, it corroborates identification made at thebeginning of the interception and identification made in court by the two officers without any doubt.

VI - ISSUE RELATIVE TO THE EXISTENCE OF REASONABLE GROUNDS TO BELIEVE THAT THE ACCUSEDWAS THE DRIVER [33] The defense further argues that the police officer did not have the reasonable grounds to order the accused to provideforthwith a sample of breath, in the approved screening device. [34] The police officers had observed the conduct of the accused from the time he had left the parking space of the restaurant barTimrose, until he came to a complete stop in the parking area of the Subway restaurant.

Their observations warranted the interception ofthe driver. [35] According to officer Dumont, it was evident that the persons in the vehicle were under the influence of alcohol. Not only theodor alcohol exiting the car was noted, but also the fact that all their movements were, according to her, slow.

Officer Matte maintainsthat she observed the vitreous eyes of the accused, the strong alcohol odor exiting the car and when the accused came out of the vehicle.Officer Dumont also confirms that she smelled the odor of alcohol coming from the accused when he spoke to her. [36] There is also the spontaneous declaration made by the accused, when requested to blow, who stated that he was drunk andnot the driver. That declaration made by the accused following the third request does not establish the reasonable grounds of the officers,even if an admission.

Its relevancy is that it supports the suspicions of the two officers. [37] The requirement of section 254(2) is that the demand must be supported by "reasonable grounds to suspect". [38] The behavior of the accused, once intercepted, also provided the officer reasonable grounds to suspect. Indeed, his statementthat he was not the driver and that the driver had ran away and threw the car keys was an implausible fact, considering permanent visualcontact by the two officers. [39] Added to his intimidating behavior and the other observations made, reasonable grounds to suspect existed beyondreasonable doubts.

VII - ISSUE RELATIVE TO THE DEMAND MADE [40] The defense submits that the officer did not read her card, usually utilized to make the demand. Also that the officer, insteadof utilizing the words "approved screening device" utilized the word " breathalyzer ". [41] The Court of appeal of Ontario in R. v. Torsney 2007 ONCA 67 writes at paragraph 6 : We agree with the

summary conviction appeal judge that the missing word " forthwith" did not render the demand invalid. Thedemand need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample ofhis or her breath (2). This can be accomplished through words or conduct including the "tenor (of the officer'

s) discussion withthe accused". See R. v. Horvath,

(1992) B.C.J. No. 1107 (B.C.S.C) (A.D.). What is crucial is that the words used be sufficient toconvey to the detainee the nature of the demand […] [42] Prior to the decision of the Court of appeal of Ontario, the principle explained above, had been brought forward in Laroche c.R., decision rendered by the Superior court judge Jean-Claude Chabot, j.c.s.,

(2005) J.Q. no 9117, presiding as

summary convictionappeal judge. More specifically at paragraph 48 : La loi n'exige pas une formulation sacramentelle de la demande de fournir un échantillon d'haleine, en autant que les motsutilisés et les circonstances entourant l'utilisation de ces mots indiquent à l'accusé qu'une demande lui est faite de fournir un

échantillon d'haleine et qu'à défaut de le fournir, il sera accusé de refus ( R. c. Nicholson, (1970) (NS CA), 8C.C.C. (2d) 170, Cour suprême de la Nouvelle-Écosse division d'appel; R.c. Flegel, (1972) (2d) 55, Cour d'appel deSaskatchewan; R. c. Dihel, C.M.M.,

(2000) J.Q. no 1393)." [43] In the above decision, the demand had been made in relation with section 254(3), rather than section 254(2) of the Criminalcode, but the principle remains: the Criminal code does not require a specific wording to be utilized by the police officer, whatever thewords, the gestures or the circumstances, the requirement is that the detainee understands the nature of the request. [44] In the case at bar, the Court is convinced beyond a reasonable doubt that the accused was the driver, within three hourspreceding the interception.

The same applies as for the existence of reasonable grounds to suspect the presence of alcohol. Finally, thepolice officers were in a position to require by way of demand that the accused comply forthwith. [45] Officer Dumont requested the accused to comply and mimed what was required of him; she utilized the words blow, sayingyou will have to blow in the breathalyzer while miming. Therefore, she spoke and mimed. Officer Matte, fluent in English, as noted withher testimony, explained the demand to the accused.

She repeated and very well explained the demand to the accused. [46] Consequently, the Court is convinced beyond a reasonable doubt that the demand was, in words and mime, more than once,clearly transmitted to the accused. This is confirmed with the answers given by the accused. Indeed, all the answers given to the policeofficers by the accused clearly demonstrate that he perfectly understood the nature of the demand. To infer any other

interpretationemerging from these answers would lead to inconsistency. [47] The Court is convinced beyond reasonable doubt that the accused, without reasonable excuse, refused to comply with ademand made under paragraph (2)

b) of

section 254. [48] FOR THESE MOTIVES, THE COURT: [49] DECLARES Jefferey-Boby Fenske, guilty of the offence, as written, in file 610-01-004824-094. __________________________________ DANIEL BÉDARD, J.C.Q. Me Mélissa PlanteFor the prosecutor Me Michael J. N. HaraschukFor the accused Date of hearing : March 18, 2009