Her Majesty the Queen Applicant v. Donald Blackett, 2011 NBPC 35

Citation #: 2011 NBPC 35 Court File Number: 04177711 CANADA PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF BATHURST BETWEEN: Her Majesty the Queen Applicant -and- Donald Blackett Defendant BEFORE : Judge Steven M. Hutchinson AT : Bathurst, N.B. DATE OF HEARING : October 18, 2011 DATE OF DECISION : December 9, 2011 APPEARANCES : René Dumaresq, for Her Majesty the Queen;

Jean-Guy Henry, for the defendant DECISION Hutchinson, J : [ 1 ] The defendant, Donald Blackett, is charged with failing or refusing, without reasonable excuse, to comply with a demand made to him by a peace officer to provide samples of his breath to enable a proper analysis to be made by the means of an approved screening device, an offense under 254(5) of the Criminal Code of Canada .

The offense is alleged to have occurred on July the 17 th , 2010 at Beresford, N.B. [ 2 ] As a result of the position taken by the parties, the decision of the Court will be based on a very narrow issue; that being what evidence is necessary in order to justify a refusal to provide adequate samples of one’s breath, for the purposes of Section 254(5) of the Criminal Code of Canada ? EVIDENCE OF THE CROWN: [ 3 ] The Crown called a single witness, that being Constable Manon Doucet of the Bathurst-Nepisiguit Police Force.

She testified that at 2:49 a.m. on July the 17 th , 2010 at Beresford, N.B., she stopped a motor vehicle for speeding. Constable Doucet testified that the vehicle in question was travelling at 104 km/hr in a zone where the permitted speed was 60 km/hr. [ 4 ] Relying upon this observation, Constable Doucet then proceeded to intercept the vehicle driven by the defendant, Donald Blackett. He was alone in his vehicle. [ 5 ] When Constable Doucet approached the vehicle, she noted that the defendant was smoking a cigarette.

She asked him to “ butt out ” the cigarette.During this brief conversation that ensued; she was able to detect an odor of alcohol emanating from his breath. As a result, she asked him to proceed to her patrol vehicle, where again she was able to smell alcohol on his breath. [ 6 ] Relying upon these observations, she then proceeded to make a demand for breath samples into an approved screening device, which was agreed to by the defendant. This demand was made at 2:51 a.m. [ 7 ] Constable Doucet then proceeded on three different occasions to attempt to obtain a sample of the breath of the defendant.

On each of these occasions, Blackett was unable to provide an adequate sample of his breath. More precisely, on the first occasion, Blackett would have provided two breath samples that were inadequate. The device was giving Constable Doucet a reading, which indicated that there was not enough air going into the instrument in order to affect a proper analysis. [ 8 ] As a result of this, Constable Doucet again explained to Mr. Blackett how to blow into the instrument. [ 9 ] In all, Blackett would have attempted to provide a breath sample on four different occasions using two different mouth pieces.

During these attempts, Constable Doucet would have informed the defendant that he was not blowing hard enough, and that he was not blowing long enough. [ 10 ] After four samples were attempted, a third mouthpiece was attached to the instrument, and as a result, Blackett was

unable, on two different occasions, to provide an adequate breath sample. Constable Doucet then informed the defendant that if he did not provided an adequate sample on his sixth attempt, that he would be charged with refusal. [ 11 ] The procedures were completed at 3 a.m., nine minutes after the demand was made. [ 12 ] On cross-examination, it was established that after the first attempt, Blackett would have informed the police officer that he was unable to provide an adequate sample of his breath because he was a smoker.

Subsequent to this, the defendant would have advised the police officer that he couldn’t blow because he had asthma. Cst. Doucet’s testimony was that she was never informed by Mr. Blackett with respect to any medicationthat he may have been taking nor the fact that he used “puffers” or an inhaler, prescribed to him by his physician.

This would only have been done after the third or fourth attempt had been completed. [ 13 ] I would point out that Constable Doucet, who is qualified to operate an approved screening device, stated that she has a great deal of experience with this device, and that in her experience, it is relatively easy to provide an adequate breath sample. She also testified that, in her experience as a police officer, she has dealt with a number of smokers and asthmatics who were able to provide adequate samples into the instrument. EVIDENCE OF THE DEFENSE: [ 14 ] Donald Blackett, the defendant testified.

Basically, he agrees with the evidence as provided by Constable Doucet with respect to his being stopped, and his agreement to provide a breath sample. He stated that after the second attempt, he was having trouble breathing. He would then have informed Constable Doucet that he was an asthmatic and was having difficulty providing a proper sample. [ 15 ] With respect to his medical condition, Mr. Blackett testified that he has been diagnosed by a medical practitioner as suffering from asthma. As a result of this, he has two different types of pumps or inhalers.

There was one, he described, as being an “orange pump”, which provides a 15 mg dosage of medication, which he takes in the morning. There is a further pump, a “blue pump”, which he uses four times daily. These pumps were prescribed for him by his doctor in 2007 after the diagnosis of asthma was made. [ 16 ] The Defendant testified that on May 9 th , 2007, he attended at the Chaleur Regional Hospital, at which time tests were carried out and a diagnosis was made of asthma. Mr.

Blackett explained that he subsequently returned to the hospital for medical attention, however, he is unable to remember the specific dates. However, in a general way, he was able to testify that his physician has prescribed the pumps in question, and basically he is to continue receiving this medication. Based upon the testimony of the defendant, the Court is satisfied that Donald Blackett suffers from asthma which seems to be chronic, requiring daily medication. [ 17 ] His medical problems have continued to the point where he has recently suffered a mild heart attack.

Unfortunately, for this particular individual, he is not able to afford all the medication that is prescribed by his doctors. He was unable to be more precise when questioned on this particular point. [ 18 ] In cross-examination, testified that he did have a pump or an inhaler in his vehicle. He testified that this pump, in his opinion, would have helped him in his efforts to provide an adequate sample of his breath. POSITION OF THE PARTIES: [ 19 ] The defense maintains that for valid medical reasons, Mr. Blackett was unable to furnish an adequate sample of his breath.

It follows that his failure or refusal to provide a breath sample, in this case, was not done intentionally. Given this fact, the necessary mens rea of the offense has not been established beyond a reasonable doubt. [ 20 ] The Crown counters that because there was a pump in his car, the defendant should have asked the officer for permission to use the pump, thereby alleviating any breathing problems that he was then experiencing. [ 21 ] It is also the position of the Crown, in this matter, that the evidence presented is not sufficient to raise a reasonable doubt.

The Crown is of the opinion that in order to establish “reasonable excuse” in the context of the within matter, it is necessary to produce medical evidence to substantiate the excuse. It follows that the absence of medical evidence by the defendant is fatal to the defense in the within matter.

THE LAW: [22] Subsection 254(5) of the Criminal Code creates the offence of failing or refusing to comply with a demand that abreath sample be provided. It states: Every one commits an offence who without reasonable excuse, fails or refuses to comply with a demand made to him by a peaceofficer under this section. [23] Subsection 254(5) refers to a “reasonable excuse”. Subsection 794(2) of the Criminal Code shifts the onus of provinga “reasonable excuse” to the accused. This

section reads as follows: The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of thedefendant 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. [24] In R. v. Lewko, 2002 SKCA 121 , [2002] 169 C.C.C. (3d) 359, the Saskatchewan Court of Appeal describedthe elements of the offense of refusal in the following terms: 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,the Crown 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.)at 50-51.) In the case of the subject offence, a defendant is able to present not only a defence ordinarily cognizable by law, but adefence constituted by any excuse that is "reasonable".

This is the effect of the use of the phrase "without reasonable excuse" in thecontext 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 themajority said: ... 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. [25] In my view, it is fundamental that the actus reus of this particular offence consists in the failure or refusal of theaccused to comply with the demand made upon him. The mens rea element requires that this failure or refusal to comply be intentional. Within the context of the present matter, it is important to keep in mind that these requirements have nothing to do with whether or notthe accused had a reasonable excuse for refusing.

[26] The concept of reasonable excuse was recently dealt with by the Ontario Court of Appeal in R. v. Armstrong, 2011ONCA 709 where Mr. Justice Watt observes at paragraph 9: A claim of “reasonable excuse” by a person charged with a flight offence is not a denial of the essential elements of that offence. A“reasonable excuse” refers to something outside the essential elements of an offence. An excuse speaks to whether an accused shouldbe held accountable for what otherwise would be a crime: R. v. Taraschuk, (SCC), [1977] 1 S.C.R. 385, at p. 388;and R. v.

Moser (ON CA), (1992), 7 O.R. (3d) 737 (C.A.), per Doherty J.A., concurring in the result, at pp. 748-749. [27] The New Brunswick Court of Appeal formulated a definition of “reasonable excuse” that had stood the test of time. Chief Justice Hughes in R. v.

Nadeau, (1975) 19 C.C.C. (2d) 199, defines “reasonable excuse” in the following manner: In my judgement the “reasonable excuse” envisaged must be some circumstance which renders compliance with the demand eitherextremely difficult or likely to involve a substantial risk to the health of the person on whom the demand has been made. [28] It is noteworthy that in the Taraschuk decision, the Supreme Court of Canada quoted the above-noted definition withapproval.

CONCLUSION: [29] As with any criminal matter, the Crown has the onus of proving that Donald Blackett committed the actus reus as wellas the mens rea of the offense charged. Again, it is important that the concept of “reasonable excuse” not be confused with the basicelements of proof.

Because of the particular wording of Section 254(5) of the Code, the Court may be satisfied that the Crown hasestablished each and every element of the offense but could still acquit the accused, upon being satisfied, that there exists a reasonableexcuse for the refusal. [30] In the within matter, whether considered from the perspective of the unintentional nature of the refusal, in other wordsthe absence of mens rea, which is the basic position of the defense, or if considering whether the defendant has established ,on a balanceof probabilities, that a “reasonable excuse” there exists a thread of commonality running through both questions, more particularly theCourt must consider the nature and quality of the evidence surrounding Donald Blackett’s health. [31] The Crown contends that it is essential that in these cases medical evidence must be presented.

While this has acertain common sense application, it is technically not necessary that medical evidence be presented. In R. v. Watson, [1997] A.J. no.282 and R. v. Cameron, [1999] A.J. no. 516, two judges of the Provincial Court of Alberta specifically ruled that medical evidence isnot necessary. While these decisions are not binding on this Court, they may be considered for their persuasive quality. [32] While I am prepared to accept that medical evidence is technically not necessary, Courts will usually look for somecorroborating or confirmatory evidence of the medical condition complained of.

The reason for this is obvious. If a defendant couldsecure an acquittal simply on his testimony, this would be accepting a burden or standard of proof that is too low. It would simply beunacceptable that the defendant could secure an acquittal simply by testifying that he has a medical condition that prevents him fromproviding an adequate breath sample. More is needed. [33] In R. v. James Victor Thomas,

(2006) N.B.P.C. 08, the Court was faced with a defendant charged with refusing to providebreath samples pursuant to a demand. In that case, Judge Jackson acquitted Mr. Thomas. The Court predicated its decision, on thetestimony of the defendant. In this matter. In addition, there was evidence from a medical practitioner with respect to the reduced lungcapacity of Mr. Thomas; notwithstanding the fact that the doctor had never been qualified as an expert. In addition, there was evidence,which the Court accepted, from the defendant and members of his family that he had a life-long history of respiratory problems.

Basedupon this particular fact situation, it was the view of the Court that the refusal would fall under the extremely-difficult-to-comply portionof the test as enunciated in Nadeau. The case is cited as an example of the evidence necessary to substantiate “reasonable excuse” [34] In the within matter, I am of the opinion that the evidence presented by the defense is not sufficient for the Court toconclude either that the refusal was unintentional or that it would constitute a “reasonable excuse”.

In arriving at this decision I havetaken into consideration the following factors: 1) There is no evidence from Constable Doucet that when Mr. Blackett attempted toprovide samples of his breath, that he displayed any signs of medical distress, such as coughing, wheezing or having an obvious asthmaattack; 2) The proposition that one suffers from asthma is nebulous. From a common-sense perspective, the Court is aware that there are

different degrees of seriousness of asthma, and it has not been shown that asthma would, in and of itself, be sufficient to prevent a person from providing the requested breath samples. In this regard, Constable Doucet did testify that, in her experience, people who are smokers or who complained of asthma were able to furnish the requested samples of their breath.

I am aware that Constable Doucet was never qualified as an expert, however, I feel that she can give evidence of her experience in the field, and while the probative value may not be that high, it is but one factor that can be taken into account. [ 35 ] In conclusion, I am not satisfied that Donald Blackett has established that he suffered from a medical condition, which would render compliance with the demand, either extremely difficult or likely to involve a substantial risk to his health, to track the language of the Nadeau decision. [ 36 ] As a result of this finding, I find the defendant, Donald Blackett, guilty as charged.

DATED on the 9 th day of December, 2011 at Bathurst, N.B. _______________________________ Steven M. Hutchinson, Judge . Provincial Court of New Brunswick