Her Majesty the Queen - v. -, 2015 SKPC 14

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 014 Date: January 27, 2015 Information: 24507820 Location: Outlook _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kenneth Howells Appearing: Gary Parker For the Crown Michael Owens For the Accused JUDGMENT D.E. LABACH , J INTRODUCTION [ 1 ] The accused appeared before me for trial in Outlook Provincial Court on December 11, 2014 on a charge that he, without lawful excuse, failed to provide a breath sample into an approved screening device contrary to section 254(2) (

b) of the Criminal Code . [ 2 ] At the outset of the trial, Defence made an application that the accused’s

section 9 Charter right to be free from arbitrary detention had been violated. It was his view that the officer had no lawful reason to stop the accused and further, that he failed to

operate the approved screening device properly. If these breaches were proven, Defence wanted the accused’s failure to provide a breath sample into the roadside device excluded from evidence pursuant to section 24(2) of the Charter . [ 3 ] By way of procedure, I began the case with a voir dire on these Charter issues. The Crown called Constable Lakinger and the Defence did not call any witnesses.

At the conclusion of the voir dire , counsel reserved their closing arguments and I continued on with the trial. [ 4 ] It was agreed by both Crown and Defence that Constable Lakinger’s testimony from the voir dire would become evidence on the trial proper, subject only to my ruling on the Charter issues. That being the agreement, the Crown had no futher witnesses to call on the trial proper and they closed their case. The Defence called three witnesses on the trial. After all the evidence had been called the parties made closing argument on all of the outstanding issues. [ 5 ] The issues on the voir dire are:

a) Was there a breach of the accused’s

section 9 Charter right to be free from arbitrary detention?

b) If there was a breach, should the evidence resulting from the breach be excluded pursuant to section 24(2) of the Charter ? [ 6 ] The issue on the trial proper is:

a) Has the Crown proven beyond a reasonable doubt the mens rea of the offence of refusal to provide a breath sample into an approved screening device? [ 7 ] Given the way the trial proceeded, the first part of this judgment will deal with my decision on the issues on the voir dire and the second part, my decision on the trial issue. FACTS ON THE VOIR DIRE [ 8 ] In the early morning hours of November 30, 2013, R.C.M.P. Constable Lakinger was patrolling in the Town of Hawarden, Saskatchewan when he noticed a white car leave the Hawarden Bar.

He followed this vehicle out of town and observed it turn westbound onto a grid road. All of a sudden, the car stopped in the middle of the grid road and started backing up. The officer activated his emergency lights to stop the car as it pulled into a farmyard. It was 3:29 a.m. [ 9 ] Constable Lakinger pulled in behind the car, got out of his police cruiser and went to the driver’s door. There were three people in the car. The accused was driving and there was a male and female passenger.

The officer told the accused that he was stopping him to check his driver’s licence, vehicle registration and sobriety. [ 10 ] Constable Lakinger asked the accused if he had been drinking and the accused responded that he had had two drinks. He asked the accused when his last drink was and the accused said “twenty minutes ago”. He asked the accused for his identification but the accused did not have it with him. He asked the accused his name and date of birth and the accused provided it. As he was speaking to the accused, the officer could smell beverage alcohol on the accused’s breath.

He also noticed that the accused’s voice was quiet and his speech a bit slurred but he could still understand him. [ 11 ] The officer did not feel that he had the grounds to arrest the accused for impaired driving or make a breath demand on him but based on the accused’s admission and what he had observed, he had a suspicion that the accused had alcohol in his body. As such, he told the accused to come back to his police car because he was going to make an approved screening device demand on him.

[ 12 ] The officer had an Alcotest 7410 with him and once back at the police cruiser, he made a formal demand on the accused to provide a breath sample into this approved device. The accused acknowledged that he understood the demand. Constable Lakinger then explained how to provide a proper sample. [ 13 ] The accused’s first attempt to blow into the approved screening device was not successful. He did not provide a steady stream of air for the required period of time. Following the unsuccessful attempt, the accused told the officer that he only had half a lung.

Constable Lakinger noted that the accused had a gravelly voice and was coughing from time to time but he did not know if the accused was being truthful about having a lung problem. [ 14 ] Constable Lakinger gave the accused another opportunity to provide a sample but again, it was not successful because the accused was not providing a steady stream of air.

The officer warned the accused after this second attempt that if he did not provide a satisfactory sample into the approved screening device he would be charged with refusal. [ 15 ] The officer gave the accused five more attempts to provide a proper sample into the device but to no avail. Each time the accused would start out blowing strong and then peter out. After each attempt, the device would display an “EO” code. The officer explained that this meant that there was an error in the breath sample.

He could tell from the tone on the roadside device that air was going into the machine so in his view, and according to his training, the accused was not providing a steady enough stream of air into the machine. Just prior to his last attempt, the officer told the accused that he would be given one more try to provide a sample and if it was unsuccessful, he would be charged with refusal. The accused offered to provide a blood sample but Constable Lakinger said no. [ 16 ] The accused’s seventh and final attempt to provide a sample was not successful either.

As a result, Constable Lakinger arrested the accused for refusal to provide a breath sample into an approved screening device and read him his right to counsel and the police warning. When asked if he wanted to call a lawyer, the accused said that he did. Before leaving for the Outlook R.C.M.P. Detachment, the accused asked if he could urinate. The officer let him relieve himself behind the police cruiser. At this time, the officer noticed that the accused was unsteady on his feet. [ 17 ] After arriving at the Outlook Detachment, the accused was given an opportunity to call a lawyer.

At the Detachment, Constable Lakinger noted that the accused had bloodshot eyes and continued to be unsteady on his feet. Not of the view that he could take the accused home or leave him in a cell at the Outlook Detachment, the officer drove the accused to the Saskatoon R.C.M.P. Detachment to spend the night. [ 18 ] En route to Saskatoon, the accused became quite angry. He was banging on the silent patrolman, swearing at the officer and at the R.C.M.P. in general. The accused was housed overnight at the Saskatoon Detachment and released later in the morning. Upon release, an officer drove him back to Hawarden.

CHARTER ANALYSIS Was there a breach of the accused ’s

section 9 Charter right to be free from arbitrary detention? [ 19 ] In his Charter notice, Defence counsel suggested that the accused’s

section 9 Charter right to be free from arbitrary detention was breached in two ways: first, that Constable Lakinger had no lawful reason to stop the car the accused was driving that night and second, that the officer did not operate the approved screening device properly. [ 20 ] In his closing argument however, Defence counsel only argued this latter point and rightly so. Constable Lakinger testified that after watching the vehicle the accused was driving leave the Hawarden Bar and shortly thereafter stop in the middle of a grid road and back up, he decided to stop the vehicle to check the driver’s sobriety, licence and vehicle registration.

Section 209.1 of The Traffic Safety Act , S.S. 2004, c.T-18.1 gives police the authority to randomly stop motor vehicles if they are readily identifiable as peace officers

and if they are in the lawful execution of their duties and responsibilities. Case law has determined that the phrase “lawful execution oftheir duties” includes checking driver’s licences and vehicle registrations, mechanical fitness of vehicles and the sobriety of the driver. The randomness allowed under

section 209.1 of the Act is a violation of

section 9 of the Charter however it is saved by

section 1. See R.v. Ladouceur, (SCC), [1990] 1 S.C.R. 1257 (S.C.C.); R. v. Houben, 2006 SKCA 129 , [2006] S.J. No. 715(Sask.C.A.); R. v. Klassen, [2013] S.J. No. 708 (Sask.Prov.Ct.). Since Constable Lakinger was exercising his power under

section 209.1of The Traffic Safety Act, the initial stopping of the car the accused was driving was lawful and the accused was not arbitrarily detained. [21] After stopping the accused, Constable Lakinger noticed a smell of beverage alcohol on the accused’s breath and that theaccused’s speech was slow and a bit slurred. The officer asked the accused if he had been drinking and the accused said that he had twodrinks. The officer asked the accused when he had his last drink and the accused answered “twenty minutes ago”.

Based on thisinformation, Constable Lakinger felt he had a sufficient basis to demand that the accused provide a sample of his breath into an approvedscreening device. And that is what he did. [22] The officer made a formal approved screening device demand on the accused, he told the accused how to blow into thedevice to provide a proper sample and then he administered the test not once, but seven times. And each time the accused blew into thedevice, it displayed an “EO” code meaning there was a problem with the breath sample.

He could tell that air was going into the deviceso the problem was that the accused was not blowing a steady stream of air into the device for as long as required. [23] I see nothing wrong in how the officer performed the roadside test or operated the approved screening device. He observedthe accused driving, stopped the accused and the accused admitted that he had had a couple of drinks, his last being some twentyminutes earlier. This gave the officer reasonable grounds to suspect that the accused had alcohol in his body and was operating a motorvehicle within the preceding three hours.

Thus the demand was lawful. [24] He had an approved screening device with him and immediately after making the demand, the officer explained how toprovide a proper sample. As soon as he did that, he had the accused blow into the machine. The attempt was unsuccessful so the officeragain showed him what to do to provide a proper sample. Again the accused did not blow hard enough for the length of time required toregister a result. This continued five more times.

There is no evidence that Constable Lakinger did anything improper in operating theapproved screening device on each of these attempts. [25] Defence counsel urged me to find that Constable Lakinger could not have been satisfied that the accused last consumedalcohol at least fifteen minutes prior to providing his breath samples as required by the approved screening device manual. He pointedout that the officer asked the accused when he had had his last drink and the accused said twenty minutes ago.

In his view this questiononly established when the accused had his last drink, not when he finished consuming his last drink. It was his view that the officershould have asked the accused, “When did you last consume beverage alcohol?”. Only by asking the question in this fashion could theofficer have determined whether he had to wait a few more minutes for mouth alcohol to dissipate or whether he could proceed with thetest. [26] With all due respect to Defence counsel, he is splitting the proverbial hair.

An ordinary person stopped by a police officer andasked, “When did you have your last drink?” would take that question as meaning when did you finish your last drink not when did youstart your last drink.

Whether the question was asked the way the officer asked it or the way Defence counsel suggested it should havebeen asked, the question is the same and the answer would be the same. [27] The accused did not testify on the voir dire thus there is no evidence before me on the voir dire as to what the accusedthought he was being asked in terms of when he had his last drink or what he meant when he answered that his last drink was twentyminutes ago.

Common sense convinces me that the accused’s answer was an admission that his last drink was twenty minutes prior tothe officer stopping the accused’s vehicle and that as a result, there was no reason for the officer to believe that there was still alcohol inthe accused’s mouth that could have skewed the results. [28] Considering all the evidence on the Charter voir dire, I am satisfied that Constable Lakinger had a lawful reason to stop theaccused that night and further, that he operated the approved screening device properly. As such, I am not satisfied on a balance ofprobabilities that the accused’s

section 9 Charter right to be free from arbitrary detention was violated in this case.

If there was a breach, should the evidence resulting from the breach be excluded pursuant to section 24(2) of the Charter ? [ 29 ] Since I have concluded that the accused’s

section 9 Charter right was not breached in this case, there is no need for me to consider whether any evidence should be excluded pursuant to section 24(2) of the Charter and I decline to do so. All of Constable Lakinger’s evidence on the Charter voir dire will become evidence on the trial proper at the request of the Crown and with the consent of the Defence. FACTS ON THE TRIAL PROPER [ 30 ] In addition to Constable Lakinger’s evidence, three other witnesses testified in the trial - the accused, Jack Gordon and Anita Yelich.

Based on the testimony that I accept, I am satisfied that on the evening of November 29, 2013, the accused was at the Hawarden Bar with Dave Osachuk. At some point in the evening, Jack Gordon joined them for a drink. While there, the accused had a hot gin toddy. [ 31 ] The accused, Mr. Osachuk and Mr. Gordon left somewhere between 8:30 p.m. and 9:00 p.m. and went to Mr. Gordon’s residence. They remained at Mr. Gordon’s residence for approximately an hour. There is no evidence that the accused was drinking while he was there, but Mr.

Gordon consumed 9 to 10 ½ ounces of rye whiskey and by the time the accused and Mr. Osachuk left, Mr. Gordon was feeling the alcohol and was “well on his way”. [ 32 ] After leaving Jack Gordon’s residence, the accused and Mr. Osachuk took the back roads home to Kenaston. Just before they got to Kenaston, they got a call from Treena Federik, the bartender at the Hawarden Bar, asking them to go see Rod McDonald at his residence in Hawarden. They agreed and turned around and went back to Hawarden to see Mr. McDonald. While they were at Mr. McDonald’s residence, Ms.

Federik called them again and asked if they would come to the bar and give her a ride home. [ 33 ] At 2:50 a.m., the accused and Mr. Osachuk left Mr. McDonald’s and drove to the Hawarden Bar. While they were waiting for Ms. Federik to cash out and close up the bar, the accused had another hot gin toddy. The three of them left the bar at approximately 3:20 a.m. The accused was driving. [ 34 ] At 3:29 a.m., Constable Lakinger stopped the car the accused was driving.

Rather than repeat Constable Lakinger’s evidence from the voir dire , I accept what he had to say about how he came to stop the accused and his passengers and what occurred after the stop. ANALYSIS OF THE TRIAL ISSUE Has the Crown proven beyond a reasonable doubt the mens rea of the offence of refusal to provide a breath sample into an approved screening device? [ 35 ] It was the Defence contention that the evidence, particularly the accused’s evidence, should leave me with a reasonable doubt that the accused intentionally failed to provide a sample of his breath into the roadside screening device.

The accused said that he never told Constable Lakinger that he was refusing to provide a sample. He testified that he was trying to provide a sample into the device but could not keep the pressure up. He denied trying to fake it and reiterated that he was trying as hard as he could to provide a suitable sample. At one point he offered to provide a blood test but Constable Lakinger was not interested in that.

He said that the more he tried to blow, the less he was able to blow. [ 36 ] The accused said that in 2002 he was in a serious motor vehicle accident and ended up in the hospital for nine weeks with a broken neck, a collapsed lung, spinal and trachea damage. According to the accused, since this accident he has had a reduced lung capacity. He now often gets pneumonia which results in him having a heavy chest, trouble breathing and spitting up mucous and phlegm. On this evening, he said he was coughing a lot and having chest pain. He had the gin toddies to soothe his throat.

His condition worsened throughout December and on December 28 th he was admitted to hospital and diagnosed with pneumonia and

Chronic Obstructive Pulmonary Disease (COPD). [37] Defence counsel pointed out that the other witnesses corroborated the accused’s evidence concerning his health. AnitaYelich testified that her and her husband were friends of the accused. They saw him sometime in mid-November 2013 and he lookedterrible. He was pale, tired looking, had a hacking cough and was very phlegmy. She next saw the accused in mid-December and hewas worse. His breathing was raspy and he could not catch his breath. Her and her husband eventually took him to the hospital.

Jack Gordon testified that when he saw the accused on November 29th, he had a really bad cold, was coughing up phlegm and had labouredbreathing. Even Constable Lakinger, in his testimony admitted that the accused was coughing when he was trying to administer thebreath tests. [38] In R. v. Lewko, 2002 SKCA 121 , [2002] S.J. No. 622 (Sask.C.A.), the Saskatchewan Court of Appeal discussed theanalysis a judge should go through when dealing with a section 254(2) offence. In that case, the Court was dealing with an appeal froma decision of a

summary conviction appeal judge overturning a conviction of the trial court that the accused had failed or refused,without lawful excuse, to comply with a demand to provide a sample of his breath into an approved screening device. Speaking for theCourt, Chief Justice Bayda said: [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). [39] In R v Dolphin, 2004 MBQB 252 , [2004] M.J. No. 433 (Man.Q.B.), Scurfield J. talked about the proof that isrequired to establish mens rea in a refusal case. He said: [22] . . . Whenever there has been an outright refusal, mens rea can be presumed. However, where a failure is alleged, more proof isrequired. Usually, that proof will flow from the inference that a person intends the natural consequences of his/her acts.

The inference isoften drawn from proof that an adequate sample was not provided after a clear explanation was given as to how to blow into the deviceand after the accused was given an adequate opportunity to blow into a device that was in good working order. Having said that, often isnot always. Consequently, whenever the defence argues that the accused did not intentionally refuse to provide a sample, the court mustanalyze the evidence to determine if mens rea has been proved beyond a reasonable doubt. [23] Trial judges must be cautious not to merge the concepts of mens rea and reasonable excuse.

The evidence appropriate to each ofthese elements of the charge is often similar but it is not always identical. Consequently, a trial judge is obliged to identify andadjudicate the issue of mens rea separately. [40] The Defence takes no issue with whether the first two elements have been made out. They are only arguing that the mens reahas not been proven beyond a reasonable doubt. In my view, the Defence, in their argument, has merged these concepts of mens rea andreasonable excuse.

There are really two questions that must be asked here: (1) was there an intent on the part of the accused not toprovide a breath sample and (2) was the accused’s medical condition and illness a reasonable excuse for not providing the requestedsamples. An analysis of both these issues must begin with the accused’s evidence. Applying the test in R. v. W.(D.), (SCC), [1991], 1 S.C.R. 742 (S.C.C.), if I believe the accused then not only did he not have the mens rea necessary for the offence ofrefusal but he had a reasonable excuse for failing to provide the breath sample.

If I do not believe the evidence of the accused but I amleft in a reasonable doubt by it, I must also acquit as I would not be satisfied that the Crown has proven the mens rea of the offence orthat they proved the accused did not have a reasonable excuse for failing to provide a breath sample. Even if I am not left in doubt by the

evidence of the accused, I must ask myself on the basis of the evidence I do accept, whether I am convinced beyond a reasonable doubt of the guilt of the accused. [ 41 ] Having carefully considered the evidence in this case, I do not believe the accused nor am I left in a reasonable doubt by his evidence. The accused did not give his evidence in a very believable fashion. At times I found him to be evasive. For example, he said that after spending time at the Hawarden Bar and then at Mr. Gordon’s residence, he and his friend, Mr. Osachuk took the back roads home to Kenaston.

But when asked why he took the back roads home instead of the main highway, he had no response. At other times I found him to be vague, particularly about what he was doing that night after leaving the Hawarden Bar. I also found some of his answers to be self-serving to the point of absurd. By way of example, for some reason he was asked by his counsel what he meant when he told the officer his last drink was twenty minutes ago. The accused responded that this was the time he started his last drink but not when he finished it.

It was answers such as these that convinced me that the accused was being disingenuous in his testimony. [ 42 ] The accused would also have me believe that he could not provide a breath sample because of the injuries he suffered to his lungs in his 2002 motor vehicle accident. But in cross examination, he admitted that in 2009 and again in December 2012, he successfully provided breath samples into a breath machine for analysis.

I have no reason to doubt that he was in an accident in 2002 and suffered injuries, but there is no evidence before me as to the severity of those injuries or whether he was left with any permanent damage as a result of those injuries. There is nothing before me explaining what is meant by “reduced lung capacity”. I am left to speculate as to what impact the accident had on the accused’s lungs, how reduced his lung capacity was, whether this is something that heals up and goes away over time, whether it is exacerbated by other medical issues or how this would impact the accused’s daily life.

The evidence is to the contrary and does not substantiate that the injuries from this accident affected his ability to provide a breath sample on November 30, 2013. [ 43 ] The accused tried to explain that when he successfully provided breath samples in 2009 and 2012, he did not have a lung infection along with his reduced lung capacity. But there is no evidence that he had a lung infection or some other type of respiratory problem on November 30 th . I accept that Ms. Yelich and her husband saw the accused about two weeks before November 30 th and he was exhibiting cold like symptoms.

I am also satisfied that on November 30 th he still had those cold like symptoms. But there is no evidence as to whether those cold like symptoms combined with his lung issues would affect his ability to provide a breath sample into an Alcotest 7410 device. I am also satisfied that later in December, the accused’s symptoms got worse and eventually, on December 28 th , he had to be hospitalized. While at the hospital he was apparently diagnosed with pneumonia and COPD.

But there is no evidence when he developed either pneumonia or COPD, whether he was suffering from one or both of these illnesses on November 30 th or how they would affect his ability to provide a breath sample. [ 44 ] The evidence that I do accept in this case is that of Constable Lakinger. He made a lawful demand on the accused for a breath sample in a roadside screening device. The accused advised that he understood the demand. The officer told him how to provide a proper sample.

He gave the accused seven attempts to provide a proper sample and after each attempt he inserted a new mouthpiece in the screening device. He repeated his instructions as to how to provide a suitable sample and on every occasion, the accused did not blow hard enough for a long enough period of time. I am not satisfied that the reason he was not blowing hard enough or long enough was due to a lung problem coupled with pneumonia and/or COPD. As Scurfield J.said in Dolphin , supra , a person intends the natural consequences of his acts.

Given the efforts made by Constable Lakinger to explain the process to the accused, encourage him to provide a suitable sample and the number of opportunities he gave the accused to provide a suitable sample, the only reasonable inference is that the accused did not intend to provide a suitable sample of his breath into the approved screening device.

That being the case, the Crown has satisfied me beyond a reasonable doubt that the accused had the required mens rea for the offence of refusal. [ 45 ] The Crown has also satisfied me beyond a reasonable doubt that the accused did not have a reasonable excuse for failing or refusing to provide an adequate breath sample. The fact that the accused had been able to successfully blow into a breath machine in 2009 and 2012 leads me to conclude that his 2002 motor vehicle accident did not result in an injury that stopped him from providing a sample in November 2013.

He was coughing and had cold like symptoms at the time of the test but there is nothing in the evidence to suggest to me that that, in and of itself or combined with the injuries he suffered in 2002, would have adversely affected his ability to provide a proper breath sample on November 30, 2013. Moreover, the accused may have been diagnosed with pneumonia and COPD on December 28 th but there is nothing in the evidence that he had pneumonia and/or COPD on November 30 or, even if he did, how that would affect his ability to provide a breath sample.

Just because he was coughing, spitting up phelgm or exhibiting cold like symptoms does not mean that he could not provide a breath sample and by itself, it is not a reasonable excuse. CONCLUSION

[ 46 ] Having found that the accused had the mens rea necessary for the offence of refusal and that there was no reasonable excuse on the evidence for the accused not to provide the requested breath sample, I find the accused guilty of section 254(2) (

b) of the Criminal Code on Information 24507820. __________________________ D.E. Labach, J