Her Majesty the Queen - v. -, 2012 SKPC 185

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 185 Date: December 11, 2012 Information: 24298047 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Marc Valliere Appearing: M. Schroeder For the Crown Ms. Lori A. Dunford For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] Marc Valliere is charged with failing or refusing to provide suitable breath samples in the approved roadside screening device at Estevan, Saskatchewan. THE EVIDENCE

[ 2 ] The first witness called by the Crown was Cst. Warren Morrical. He testified that he has been with the Estevan police for approximately four and a half years. On December 24, 2011, at approximately 1:00 a.m., he was on patrol in Estevan, and near the Beefeater Motor Inn. At that time, he noticed a white Silverado half-ton truck rapidly accelerate as it left the parking lot. Because of the rapid acceleration, the truck lost traction and spun out of control. The officer activated his emergency lights and attempted to catch up. The truck didn’t immediately brake, but rather turned right onto another street.

At this time the right rear wheel bounced over the curb. The officer followed the truck around the corner, and then the truck came to a stop. The officer approached the vehicle and noted there was a driver and one passenger in the vehicle. The driver was the accused, Marc Valliere. [ 3 ] The officer testified that both individuals in the truck appeared drunk. He asked the accused for his licence and registration, which were produced. The officer asked the accused if he had anything to drink, and the accused said he had a beer at supper.

The officer testified however that the accused had watery or glassy eyes and a strong odour of alcohol about him. The officer immediately formed the opinion that the accused had alcohol in his body and asked the accused to come with him back to the police car for the ASD test. [ 4 ] When the accused was seated in the back of the police car, at 1:08 a.m., the officer made the ASD demand. The accused said he understood. The officer explained how the machine worked and how to blow into the machine. The accused then made three attempts at providing a suitable sample. However, each attempt was inadequate.

The officer testified that it appeared the accused was blowing around the mouthpiece. After the third attempt, the accused advised that he was a smoker and suffered from asthma. The officer testified however, that he saw no indication or evidence of this. The accused appeared to be breathing quite normally. He had not been coughing to this point. He had no difficulty speaking or communicating with the police officer, and he had no difficulty walking back to and getting into the police vehicle. The officer testified that after the third failed attempt, he got out a second mouthpiece and demonstrated to Mr.

Valliere how to blow into the machine. Mr. Valliere then made a fourth attempt. The officer testified that this attempt was better than the other three, but was still inadequate. On this occasion Mr. Valliere stopped blowing too early and before an adequate sample could be obtained. Following the fourth failed attempt, Mr. Valliere said he didn’t feel good about this and was refusing to blow further. The officer testified that he advised Mr. Valliere that he would be charged with refusal. When Mr. Valliere still refused further attempts, he was placed under arrest and advised of his Charter rights.

This occurred at 1:22 a.m. [ 5 ] On the way back to the police station, the accused began coughing more. The officer asked dispatch to arrange for EMS to attend. The officer testified that he and the accused arrived at the Estevan Police Station at 1:30 and EMS arrived there at 1:33. At the police station, the accused became very agitated and spoke of being harassed. He spoke of an asthma attack. When the EMTs arrived, he swore at them and refused to cooperate. He tore the device off his finger that was to measure his oxygen content in the blood.

When they placed an oxygen mask on his face to administer drugs for asthma, he tore the mask off and threw it on the floor. This occurred on a number of occasions. He constantly swore at the officers and the EMTs, and accused them of causing him to have this problem. The accused was taken to the hospital in Estevan where he was seen by the nurse on duty in the Emergency Department. Mr. Valliere continued with the same angry and completely uncooperative behaviour with the R.N. The R.N. used a stethoscope to listen to Mr.

Valliere’s breathing, and then advised the officer that there was no indication of an asthma attack. The R.N. advised that with Mr. Valliere refusing all of the treatment, there was nothing else that the hospital could do. The police officers transported the accused back to the Estevan Police Station where he was booked into cells. Some time later, the accused settled down and went to sleep. He was released the following morning. [ 6 ] The Crown also called the two paramedics that dealt with the accused that night and Cst. Danielle Stefany of the Estevan police.

Their evidence may be conveniently summarised together. The paramedics were Teron Cameron and Amber Nostadt. They testified that when they arrived at the Estevan Police Station, the accused was sitting down and speaking with a police officer. He displayed none of the normal signs that they would expect to see with an asthma attack. He wasn’t wheezing or coughing, and did not have difficulty breathing or speaking in sentences or walking. They attempted to take his vital signs but at this time, the accused became very agitated and uncooperative. They had difficulty taking his vital signs.

The accused flailed around, tore instruments off of him and threw them on the floor. One of the technicians advised that she did obtain an oxygen reading of 97 percent, which was quite normal and again not indicative of an asthma attack. The two paramedics were not trained or authorized to administer the drugs to treat an asthma attack. However, shortly after they arrived, Cst. Stefany also arrived at the police station. Cst. Stefany spent 12 years as a paramedic in Estevan, and remains a licenced paramedic. After her 12 years as a paramedic, in January 2011, she joined the Estevan Police Service.

She testified that when she arrived, the accused appeared to be hyperventilating. She said that she introduced herself to Mr. Valliere and advised that she was a licenced paramedic. She advised that she would administer the drugs for an asthma attack through the oxygen mask, and attempted to do that. However, Mr. Valliere swore at her, tore off the mask and threw it on the ground. This occurred three or four times. Following these attempts, she attended at the Estevan hospital with the accused. The accused was similarly uncooperative with the R.N. on duty.

[ 7 ] The two paramedics and Cst. Stefany all testified that Mr. Valliere was able to breathe quite well, and there was no indication that he was suffering from an asthma attack. In fact, to them, it appeared that Mr. Valliere was hyperventilating. They advised about how they attempted to calm him down to control his breathing and reduce the breath rate. [ 8 ] The final Crown witness was Mr. Rob Slastukin, the R.N. that was on duty at the Estevan hospital. He testified that Mr. Valliere was hyperventilating. Mr. Slastukin testified that he was able to listen to Mr. Valliere’s breathing through the stethoscope.

There was no indication of any difficulty breathing and no indication of an asthma attack. He indicated that he offered Mr. Valliere the nebulizer, but Mr. Valliere refused this and refused all other treatment. As a result, Mr. Slastukin advised the police that there was no evidence of an asthma attack and in light of the refusal of any further treatment, there was nothing else that the hospital could do for him. [ 9 ] Mr. Valliere took the stand to testify. He advised that he is 26 years of age, and works on the oil rigs.

He testified that the prior day he was at work, returned home and had supper at about 4:30 p.m. and had one beer with supper. He testified that he was in bed at which time he received a telephone call from a friend at the Beefeater Motor Inn. The friend advised that he was in a fight and asked if he could be picked up. Mr. Valliere testified that he pulled up at the Beefeater Motor Inn, at which time his friend jumped into the vehicle. He drove away quickly and was fairly quickly stopped by the police officer. [ 10 ] Mr.

Valliere said he made a number of attempts to blow in the machine, but the officer was not happy with his breath or these attempts. He thought the officer was getting aggravated, and started to panic. He said he couldn’t catch his breath. The officer then explained how to do it and he tried again. He said he tried harder this time but was still not successful. Mr. Valliere testified that he told the police officer that he had asthma and was trying his very best. [ 11 ] Mr. Valliere testified that he was diagnosed with asthma just two or three months prior to this.

At that time, he completely lost his breath and was taken to the hospital. He was in the hospital for approximately two weeks prior to discharge. The discharge

summary from the hospital was entered into evidence to confirm this. He now has three different puffers that he is able to take to control his asthma condition. [ 12 ] He said that he also sometimes suffers from panic attacks. At the time of a panic attack, he can’t sit still. He will become very angry and impatient, and also can’t catch his breath. [ 13 ] Under cross-examination, Mr. Valliere agreed that his work is quite physical. Further, that he is fairly physically fit. Mr. Valliere agreed that he is normally able to do his job with little difficulty in spite of the asthma condition. [ 14 ] Mr.

Valliere said he thought that he was doing what the police officer requested, when asked to provide samples of his breath. However, he also conceded that it was possible that air was going around the mouthpiece. On another occasion, he stated that at the end he was getting very stressed out, and having difficulty catching his breath.

At this time he advised that he would not provide a sample. [ 15 ] He later advised that he is also claustrophobic, and explained that is why he tore the mask from his face and threw it on the ground. [ 16 ] He admitted that he was very angry with the police officers because he felt he was being treated badly. He admitted however, that the police officers were attempting to help him. He denied that he intentionally refused to blow into the ASD machine. [ 17 ] Chantal Roberts also testified. She is the common-law spouse of Mr. Valliere. She testified that she was present when Mr.

Valliere had his first attack, and she took him to the hospital. She said that he usually has a panic attack along with an asthma attack. When he has a panic attack, he becomes very anxious and swears a lot. She attempts to have him take his puffer and calm him down. Generally, after he takes the puffer, he will calm down. ARGUMENT

[ 18 ] Defence counsel argued that the accused did not have the necessary intent to refuse to blow, or to defeat the system. Alternatively, that the accused had a reasonable excuse for not providing a suitable breath sample. ANALYSIS [ 19 ] I have determined that the defence argument cannot be accepted and the accused must be convicted of the charge. I have made this determination for the following reasons. [ 20 ] Firstly, the accused’s evidence lacks credibility and cannot be accepted by the Court. On the night of this incident, Mr. Valliere mentioned nothing of a panic attack.

He said only that he suffered from asthma and was a smoker. Simply stated, on the night in question, his asthmatic condition was the only stated reason for not being able to provide a suitable sample. At trial, all of the evidence before the Court is to the effect that he did not suffer an asthma attack. I was left with the distinct impression that when all of this evidence came out, Mr. Valliere in effect said: “How about a panic attack?” In addition, under cross-examination, Mr. Valliere admitted that air may have been escaping around the mouthpiece at the time he was blowing.

This statement speaks to a conscious attempt to avoid providing a suitable sample, not one’s best effort to provide that sample. On the whole, I do not have sufficient credible evidence to leave me with a reasonable doubt in this area. [ 21 ] Secondly, the evidence of the police officer, which I accept, is that he witnessed the accused driving at approximately 1:00 a.m. The police officer stopped the vehicle and the ASD demand was made at 1:08 a.m. Thereafter, the accused made four attempts to provide a suitable sample, but all were unsuccessful.

At 1:22 a.m., the officer arrested the accused and advised him of his Charter rights. As mentioned above, throughout this entire incident, there was absolutely no evidence that the accused suffered an asthma attack. Also, of particular note, prior to 1:22 a.m., at which time the accused was placed under arrest, there is not the slightest evidence of a panic attack. There is evidence that the accused may have suffered from a panic attack later, at the police station and at the hospital. However, this would be well after the fact of the refusal. Simply stated, if Mr.

Valliere suffered a panic attack, it was well after he failed and/or refused to provide an adequate sample and thus can provide no defence to the charge. [ 22 ] Thirdly, in the case of R. v. Hicton , 2009 SKPC 15 , His Honour Judge Hinds dealt with a charge of refusing to provide breath samples in the Intoxilyzer. The accused advanced his asthmatic condition as a reasonable excuse.

Judge Hinds reviewed various authorities and concluded at paragraph 66 as follows: In cases involving medical reasons for refusal, the Courts have absolved the accused from complying with the demand in situations where it was physically impossible, extremely difficult or likely to involve substantial risk to the health of the accused. [ 23 ] And at paragraph 63, Judge Hinds stated: I find Mr. Hicton failed to follow the instructions of Constable LeClair for blowing into the Intoxilyzer instrument.

I am unable to conclude that on May 26, 2006, it was physically impossible, extremely difficult or likely to involve substantial risk to the health of Mr. Hicton to provide a suitable breath sample. While I accept that Mr. Hicton had an asthmatic condition prior to May 26, 2006, there is no independent medical evidence before me as to the exact nature and extent of that condition on May 26, 2006. In particular there is no independent medical evidence before me suggesting that it would have been physically impossible, extremely difficult or risky for Mr.

Hicton to provide a breath sample in the Intoxilyzer instrument. [ 24 ] As mentioned above, there is no evidence that Mr. Valliere suffered any asthmatic attack on the night in question. There is some evidence that he suffered a panic attack. However, even if I concluded that he suffered a panic attack at the time the tests were being taken, which I cannot do, there is no independent evidence that this panic attack made it “physically impossible, extremely difficult or likely to involve substantial risk to the health” of Mr.

Valliere by providing the breath samples. [ 25 ] For all of the above mentioned reasons, I conclude that Mr. Valliere has not advanced any defence to the charge and must be convicted of the charge.

[ 26 ] Dated at Estevan, Saskatchewan this 11 th day of December, 2012. D. Kovatch, J