Her Majesty the Queen - v. -, 2014 SKPC 1

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 001 Date: June 10, 2014 Information: 37252850 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cole Wyatt Rieder Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh, Q.C. For the Accused JUDGMENT M. GORDON , J [ 1 ] The accused is charged: - On or about the 3 rd day of June 2012, at or near Moose Jaw, Saskatchewan did while his ability to operate a motor vehicle was impaired by alcohol or a drug operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code ; and - Count 2, on or about the 3 rd day of June 2012, at or near Moose Jaw, Saskatchewan did without reasonable excuse fail or refuse to comply with a demand made to him by a peace officer pursuant to s. 254(3) (

a) of the Criminal Code to provide samples of his breath for analysis contrary to s. 254(5) of the Criminal Code .

EVIDENCE [ 2 ] Three witnesses were called for the Crown; one lay witness and two police officers. The first witness was Katarzijna Zmuda-Trzebiatowski. This witness appeared by video conference. She described the events of June 3, 2012. She was travelling from Calgary to Winnipeg and had stopped in Moose Jaw at the Heritage Inn. It was early evening, about 6:00 to 7:00 p.m., and she was driving out of the parking lot of the Heritage Inn when the accused’s vehicle passed her and then clipped the rear fender of her vehicle when he was attempting to make a left turn into a parking stall.

When she confronted the accused about the damage, he was confrontational, uncooperative and refused to provide his contact information. In fact, he denied that there was any damage to her vehicle. She immediately smelled alcohol on his breath and noticed that the accused was unsteady on his feet and had a difficult time formulating answers to her questions. She spoke with him for less than five minutes and then called 911. The police arrived five to 10 minutes later. The accused was seated on the curb and she sat in her vehicle and waited. She did not see the accused consume anything in this period of time.

She saw the accused being driven away in a police vehicle. [ 3 ] On cross-examination she admitted that it was a dent in her rear bumper and there did not appear to be too much damage. [ 4 ] The Crown’s next witness was Cst. Taylor Elder who was on duty June 3, 2012, in the early evening. He was dispatched to a motor vehicle accident at the Heritage Inn in Moose Jaw which is adjacent to Boston Pizza. The information he received was that the driver may be impaired. The constable spoke to the accused, whose identity is admitted by the defence, who stated he was not involved in an accident and not driving a car.

The officer could smell alcohol on the accused and concluded that he had been drinking. He asked the accused to get into the police vehicle and spoke to Mr. Rieder. The officer could detect alcohol on Mr. Rieder’s breath. He also noted a slight slurring of his speech. He believed that Mr. Rieder was impaired by alcohol and arrested him for impaired driving. At 19:22, he read the breath demand and at 19:24, rights to counsel under the Charter and at 19:25, the police warning were all read to Mr. Rieder from his police issued card.

The accused replied that he understood the demand and the warnings and said he did not want to call a lawyer. He was transported to the police station. Mr. Rieder provided his name and address and a photo ID. The officer noted that Mr. Rieder was driving a larger vehicle than the car that he had come into collision with. [ 5 ] On cross-examination the officer noted that he had observed poor balance on the part of the accused. The officer was not sure why the in-car camera had no sound and why there was not a video available of the booking in area.

When asked by the Court, the officer said he did not make the ASD demand as he did not have one and he did not feel it was necessary. The officer was of the opinion he had reasonable grounds to make the Intoxilyzer demand. [ 6 ] Cst. Sheldon McNaughton was the final Crown witness. On June 3, 2012, at approximately 7:45, he was informed by Cst. Elder that a breath technician was required. He met the accused at the detachment and recorded his name, file number, the time of the demand and observations of the accused that had been made. He prepared the Intoxilyzer and asked Cst.

Elder to bring the accused into the room. He gave instructions to Mr. Rieder on how to blow into the Intoxilyzer. The officer put on a new mouthpiece and explained to the accused that he had to exhale long and hard and keep exhaling until the officer told him to stop. After six failed attempts, the officer decided that the accused was not going to provide a sample and he was charged with refusal. Cst. McNaughton warned Mr. Rieder on more than one occasion that if he did not provide a sample, he could be charged with refusal.

The officer noted that it is not uncommon for the first attempt by an accused person to be unsatisfactory. The officer gave more instructions on how to blow and again emphasized that Mr. Rieder must blow until he was told to stop. The officer noted that Mr. Rieder’s cheeks puffed out for a couple of seconds and then he could tell that Mr. Rieder stopped blowing. The tone of the Intoxilyzer would stop when the accused’s cheeks compressed. None of the samples were close to being a proper or adequate sample.

Before every attempt the officer gave instructions to the accused as he recognized that sometimes a different way of explaining or communicating with an accused is necessary to get a person to understand what is required of them. Mr. Rieder gave no indication or explanation of his reason for not providing a sample. He also noted that Mr. Rieder was biting the mouthpiece, not just having his lips tightly sealed around the mouthpiece. Prior to the last attempt by Mr. Rieder it was clear to Cst. McNaughton that this accused was not doing what was instructed of him.

He was again warned and ignored the officer’s directions. [ 7 ] In cross-examination Cst. McNaughton clarified that he obtained the initial information from Cst. Elder and input it into the Intoxilyzer program. When asked, the officer could not recall if he changed the mouthpiece on each occasion but he was clear that each time that he did take the mouthpiece off he handled the bottom part of it, not the part that the accused puts in his mouth. He said the mouthpiece was thrown away. He did not recall checking the mouthpiece to see if there was any obstruction but he did recall fitting the

mouthpiece onto the tube so no air was escaping. [ 8 ] Mr. Rieder testified that on Sunday, June 3, 2012, he was at Palliser Regional Park, west of Riverhurst, along Lake Diefenbaker. It was a very hot day and he had a few Pilsner beer, probably four beer. He had his first beer around noon with lunch and his fourth beer about 5:00 p.m. He gave a friend a ride into Moose Jaw and stayed at his friend’s for most of the afternoon. He then drove to the Heritage Inn parking lot to go to the off-sale. He was pulling into the parking lot when a lady was backing out of a stall. The two vehicles collided.

The side of his Jeep clipped her back bumper. The woman driver was Ms. Zmuda-Trzebiatowski. She said to Mr. Rieder that his vehicle had run into her. He responded by saying “no, this was an accident”. He admitted he does not really recall what was said. The police attended and he was arrested and taken to the police station in Moose Jaw. Mr. Rieder said “if I can remember correctly”, I was taken to the booking in area. Some paperwork was done and then I was taken to a backroom to the breathalyzer. Mr. Rieder testified that the first time he tried to blow, he could not get a full breath.

The police officer tried to coach him through the procedure. He tried again. He could not exhale. He could hardly breathe through his nose. His lungs just gave out. Mr. Rieder explained in Court that he had allergies but tries not to take any medication. He had taken two allergy pills earlier to help him breathe. He smokes one and a half to two packs of cigarettes per day and he has smoked since he was 11 years old. [ 9 ] On cross-examination, Mr. Rieder said he had brought a six-pack of beer and bottle of rye to the park on Saturday evening. There was some rye left.

He and his Moose Jaw friend, Stephanie Smith, left the park about 11:00 a.m. and returned to Moose Jaw and this is where he consumed the four beer in the afternoon. Mr. Rieder admitted he knew the police officer was requesting a breath sample. He understood as he had done it before. He said he told the police officer he had allergy problems and could not breathe and was trying his best. He admits he did not tell the officer he had allergy pills as the officer did not ask. POSITION OF THE PARTIES [ 10 ] The defence argues that the Crown has not proven beyond a reasonable doubt that Mr.

Rieder intended to refuse to provide the required adequate sample into the Intoxilyzer machine. The defence argues that Mr. Rieder had a reasonable excuse for not providing a suitable sample because of his allergies. He physically could not blow. The defence filed a brief of memorandum and copies of the following cases: R. v. Sokulski , 2012 SKPC 141 R. v. Schwartz , 2009 ABPC 120 R. v. Goleski , 2011 BCSC 911 R. v. Mason , 2011 O.J. No. 3941 R. v. Lefebvre , 2010 ABPC 108 [ 11 ] The defence also referred to other cases in his memorandum. [ 12 ] The defence submitted that Mr.

Rieder had a reasonable excuse with respect to his failure to provide an adequate sample and that the Crown therefore has not proved beyond a reasonable doubt the refusal. Mr. Rieder has a “desk job”, so is not required to be outdoors or physically active. Mr. Rieder took the witness stand and provided an explanation for his inability to blow. He explained about his allergies and that he was unable to sustain the breath for the time required. [ 13 ] The defence asked the Court to look at the totality of the evidence with respect to the impaired driving charge.

There are no videos and there is insufficient evidence to convict on this charge. [ 14 ] The Crown argued that it has proven beyond a reasonable doubt that Mr. Rieder is guilty of both counts. The Crown asked the Court to accept the evidence of the civilian witness who noted several signs of impairment. As well, the accused’s belligerent attitude, initial denial of driving, refusing to give his name to the civilian witness after the accident, all suggest that Mr. Rieder was impaired. The civilian witness is a 911 dispatcher in Winnipeg and has some familiarity in dealing with people who are impaired.

The Crown also argues that the statutory requirements for making the demand have been met. The Crown notes that Mr. Rieder saying he

tried is not sufficient. The police officer was very clear in his evidence that Mr. Rieder was not following instructions. Mr. Rieder wasbiting the mouthpiece and there was insufficient airflow. Mr. Rieder admits that the officer was trying to coach him through theprocedure. The Crown therefore says there is no air of reality to Mr. Rieder’s explanation. There were no observations by the policeofficer that Mr. Rieder had difficulty breathing that could lead to reduced lung capacity. While medical evidence is not alwaysnecessary, it can be helpful to provide this air of reality. Mr.

Rieder was not coughing or wheezing. Mr. Rieder did not tell the policeofficer, according to the officer’s testimony, that he was suffering from allergies. The Crown filed a written brief on March 26, 2014,summarising its position and supporting cases. IMPAIRED DRIVING CHARGE [15] The well-known and oft-quoted case of R. v. Stellato, (SCC), [1994] 2 S.C.R. 478 (S.C.C.) at paragraph 74: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can beregistered.

Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [16] In R. v.

Watson, 2013 SKPC 196, at paragraph 23, Judge Agnew states: The degree of impairment which the Crown must prove is only slight, although I must still be convinced beyond a reasonable doubt. [17] I accept the evidence of the civilian witness and the officer with respect to the indicia of impairment. Considering the totalityof the evidence including the minor accident, the strong smell of alcohol coming from Mr. Rieder, and the belligerent attitude of Mr.Rieder, I am satisfied beyond a reasonable doubt that he was driving while impaired by alcohol. REFUSAL CHARGE [18] Mr.

Rieder is also charged with refusal to provide an adequate breath sample pursuant to s. 254(3) of the Criminal Code. Mr.Justice Danyliuk in the case of R. v. Rezansoff, 2013 SKQB 384, at paragraph 17, stated: Thus, my conclusion is that in the appropriate circumstances when a refusal charge is before the court, there must be a three-stageinquiry. First, examine the facts to determine whether the requirements of s. 254 have been met and the essential elements of the chargeproven by the Crown.

If not, the inquiry ends there, without further exploration or the necessity of determining whether Charter rightshave been breached and the appropriate remedy arising from same. This first branch of the test is a legal issue. Second, if the statutoryrequirements have been proven by the Crown, the court ought to examine the evidence to determine whether the accused has a“reasonable excuse” which exculpates him from criminal liability which would ordinarily arise from his refusal to comply with a demandfor a breath sample.

Third, determine whether any Charter breaches exist and, if so, the appropriate remedy for same. [19] As well, in R. v. Lewko, 2002 SKCA 121, at paragraphs 9 and 10, the Court put it this way: The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existence ofa demand having the requirements of one of the three types mentioned in ss. (2) and (3). Second, the Crown must prove a failure orrefusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus).

Third, the Crownmust prove that the defendant intended to produce that failure (the mens rea). 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 defendant

raises a defence. That brings us to what may be looked upon as the second stage in the proceedings, namely, the presentation by the defendant of his/her justifications or excuses – his/her defences. (I use the term “ defence ” in the narrow sense – for the distinction between 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 a defence constituted 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) . [ 20 ] The police officer at the time of making a demand pursuant to s. 254(3) must have both subjective and objective grounds to believe the accused’s ability to drive is impaired by alcohol. Here Cst. Elder responded to a call about a motor vehicle accident. He spoke to Mr. Rieder who was standing beside the vehicle in the parking lot at the Heritage Inn. Mr. Rieder stated he was not involved in an accident and was not driving a car. The officer noted Mr. Rieder had slurred speech and smelled of alcohol.

I am satisfied that the police officer had sufficient grounds to make the Intoxilyzer demand. The other necessary requirements under s. 253(1) (

a) were complied with and in fact there was no argument on these points at the conclusion of the trial. [ 21 ] It is clear from the evidence of Cst. Sheldon McNaughton that Mr. Rieder refused to provide a breath sample or did not provide an adequate sample after being given detailed and clear instructions and six opportunities to blow. Therefore, the Crown has proven the mens rea of the offence. [ 22 ] I am satisfied that Mr. Rieder acted intentionally and therefore did not provide a suitable sample. I do not accept his evidence that he could not provide a sample.

Such was the case in Lewko as well where the Court said at paragraph 30, “the only live issue before the trial judge was the presence of the third element”. The crux of this case in terms of the oral argument from counsel was on whether the Crown had proven beyond a reasonable doubt the refusal. Mr. Rieder provided an excuse and what he suggests is a reasonable excuse in that he had allergy problems. [ 23 ] In R. v.

Desanghere , 2013 SKPC 153 , Judge Kovatch made the following comments with respect to failure to comply with a demand to supply a breath sample into the approved screening device, at paragraph 19: The defence argument is largely based upon the case of R. v. Lewko , 2002 SKCA 121 . The defence argues that the accused did not refuse to blow, and was trying her best to provide a suitable sample. She was physically unable to do so. As a result, the defence argues that the Crown has not proved the necessary intent to refuse and the accused should be acquitted.

However, it is clear from both the Lewko decision and other jurisprudence that the defence evidence must be accepted by the Court and have “an air of reality” in order for this defence to succeed. In this case, I do not accept Ms. Desanghere’s evidence, as it has no air of reality. [ 24 ] I find myself echoing the same words as Judge Kovatch. In this case I do not accept Mr. Rieder’s evidence as it has no air of reality. Mr. Rieder was acting in a belligerent manner as soon as he was approached by the civilian witness after this minor accident. He would not provide his name and claimed he was not even driving.

The signs of impairment discussed previously I found were sufficient for the officer to make the Intoxilyzer demand. The officer described in some detail the efforts made by Mr. Rieder in blowing into the Intoxilyzer machine. This minimal effort and the biting of the mouthpiece and very little air going in to me indicates that Mr. Rieder was deliberately trying not to provide a sample. Mr. Rieder testified now that he suffered seasonal allergies and could not blow a sustained breath for a long enough period. Mr.

Rieder never gave any indication to the officer that he had any health problems on the night in question. He did not tell the officer that he had allergy medication with him and that he had taken two tablets earlier in the day. Mr. Rieder said he had some allergy medication with him and was likely part of the contents of his pockets when he emptied them at the request of the police officer. If that is the case, surely it would have reminded him to mention this allergy problem to the police officer. Mr. Rieder had runny eyes and red eyes which can be due to allergies as well as other causes.

However, there is still the lack of any evidence to link the allergy symptoms with the shortness of breath. Mr. Rieder asks the Court to believe now in his testimony, that does not make it so. When considering all of the evidence I have no doubt that Mr. Rieder refused to provide a sample. There is no evidence which I accept which provides a reasonable excuse for failure to provide an adequate sample. [ 25 ] In R. v. Giroux , 2012 SKPC 163 , another case of Judge Kovatch’s with respect to the ASD but with principles that are similar.

At paragraphs 18 to 20, he states: At paragraphs 19 and 20 of that case ( Lewko ), the Court goes on to say that the defence has an evidentiary burden to raise the reasonable

excuse. It indicates that this evidential burden is simply to raise a reasonable doubt. At paragraph 20, the Court indicates that the defence must raise evidence either through examination-in-chief or cross-examination that meets the air of reality test, and raises a reasonable doubt. As mentioned, both counsel referred to the Lewko decision. Crown counsel also referred to R. v. Piotrovich , 2004 SKPC 58 , as an example where her Honour Judge Whelan applied the air of reality test, determined that the defence evidence did not meet this standard, and accordingly a conviction ensued.

I begin by noting that no one single fact is determinative of whether a Court will decide that defence evidence has or has not an air of reality. To the contrary, the Courts consider the totality of the evidence in reaching this determination. [ 26 ] Another case of Judge Kovatch’s which was filed by the Crown is R. v. Valliere , 2012 SKPC 185 . Again, an ASD case where at paragraphs 22 and 23, Judge Kovatch refers to a case of Judge Hinds’ and states: 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. 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. [ 27 ] And finally in R. v. Desanghere , supra , Judge Kovatch commented at paragraph 25: If she wasn’t able to physically provide a sample, I would have expected her to simply say that. [ 28 ] I find this case is clearly distinguishable from that of R. v. Ingleby , 2013 SKPC 127 . In Ingleby , I held at paragraph 16 that Ms. Ingleby was willing to provide samples. She tried her best. She was unable to do so due to her digestive and stomach cramps and concern with the diarrhea and vomiting.

She was holding her stomach and she told the police officers more than once of her difficulties. I found the police did not dispute that she was trying as they gave her many opportunities. [ 29 ] In this case there is no satisfactory explanation as to how Mr. Rieder’s allergies relate or impact upon his ability to provide a suitable breath sample. If these were seasonal allergies, which I can only assume that is what is being suggested, there is nothing linking these allergies to difficulty in sustaining a breath for a sufficient period of time to provide an adequate sample into the Intoxilyzer machine.

Accordingly, I find Mr. Rieder guilty of the refusal charge as well. [ 30 ] In

summary, I am prepared to enter a conditional stay on the count of impaired driving being count 1 on the information if there is no appeal at the expiration of the 30 day appeal period. M. Gordon, J