Her Majesty the Queen - v. -, 2013 SKPC 22

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 022 Date: February 6, 2013 Information: 43962318 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Yaroslav Luider-Grebnev Appearing: Bryce Pashovitz For the Crown George Green For the Accused JUDGMENT D.E.

LABACH , J INTRODUCTION [ 1 ] The accused, Yaroslav Luider-Grebnev, is charged that on or about the 14 th day of October, 2010, at Saskatoon, Saskatchewan, he did, without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer pursuant to section 254(2) of the Criminal Code to provide a sample of his breath to enable analysis to be made by means of an approved screening device contrary to section 254(5) of the Criminal Code .

[ 2 ] At the commencement of the trial, Defence counsel admitted that the incident occurred on October 14, 2010 in Saskatoon, Saskatchewan and that the identity of the accused was not in issue. The Defence also advised that he would not be alleging any breaches of his client’s Charter rights. [ 3 ] The Crown called two police officers on the trial and the Defence did not call anyone. After closing argument was completed, I gave both counsel leave to file further case law or written submissions. Neither chose to file anything further.

FACTS [ 4 ] On October 14, 2010, Constable Scot Martin and Constable Tara Cummine were working the night shift on patrol duties in an unmarked police car. They were both in uniform. At approximately 2:40 a.m. they were stopped at a red light at the intersection of Ontario Avenue and 24 th Street when they noticed a gray Murano travelling east on 24 th Street with only its daytime running lights on. [ 5 ] Constable Martin was driving the patrol car so he turned east onto 24 th Street and pursued the Murano.

He testified that it was his intention to catch up to the driver and tell him that he did not have his headlights on. The officer caught up to the vehicle at the intersection of 24 th Street and 3 rd Avenue. The Murano was in the inside lane stopped for a red light. Constable Martin pulled up beside the vehicle, rolled down his window and motioned for the passenger to do the same. The male passenger rolled down his window and Constable Martin told the driver and the passenger to turn their lights on. The accused was driving. They just stared at him and the accused’s mouth was hanging open.

Finally the accused said “okay” and turned his lights on. Constable Martin then asked if they had been drinking that night. It took a moment but the accused said “No”. Constable Martin then decided to effect a traffic stop and he told the accused to pull over to the side of the road. The accused complied. [ 6 ] Constable Martin approached the driver’s door of the vehicle and the accused rolled down his window. The officer asked the accused to repeat the alphabet. The accused told the officer that his first language was Russian and the officer noticed that he had a Russian accent.

He tried to recite the English alphabet but could not do so. The officer then asked the accused for his driver’s licence. The accused provided it but the officer noted that his movements were slow and deliberate. The officer asked the accused for his phone number. The accused responded “Which one?” but moments later said that he only had one. The officer asked the accused if he had been charged with impaired driving before to see if the accused was a seasoned drinker.

At this point the passenger said that the accused was the designated driver that evening. [ 7 ] Constable Martin could smell beverage alcohol coming from the vehicle and it was apparent the passenger had been drinking a lot. He asked the accused to step out. Once outside the vehicle the officer could smell alcohol coming from the accused’s person. The accused told him he had not had anything to drink. Constable Martin could not smell alcohol on the accused’s breath nor did he note any problems with the accused’s eyes or slurred speech.

He asked the accused if he had any kind of medical condition or if he was on any medications and the accused said “No”. [ 8 ] Given that the accused was driving with only his running lights on, that there was an odour of alcohol coming from the vehicle and the accused’s person, that there appeared to be a lack of comprehension, that he could not recite the English alphabet and that he had slow, deliberate movements when getting his driver’s licence, Constable Martin suspected that the accused had alcohol in his body.

Thus, at 2:45 a.m. the officer read the accused a formal approved screening device demand pursuant to section 254(2) of the Criminal Code . When asked if he understood the demand, the accused replied “Yes, I do”. [ 9 ] Constable Martin had the accused accompany him to the back of the police vehicle. He observed the accused to have a slow gait and once in the police car, he noticed the accused to have bloodshot eyes. The officer had an Alcotest 7410 GLC with him in the trunk of the police car and he was qualified to operate it.

He did not demonstrate how to provide a sample but told the accused that he had to blow long and hard into the machine and likened it to blowing into a balloon. He told the accused to blow until he told him to stop. He gave the accused eleven opportunities to provide a proper sample into the device but the accused was unable to do so. According to Constable Martin, the first three times he was told to blow he did not blow. The fourth time he did not blow long enough. The fifth time he did not blow. The sixth and seventh times he did not blow long enough and the eighth time, again, he did not blow.

On his ninth try the accused did not blow long enough and put his tongue over the mouthpiece. On the tenth and eleventh times, the accused did not blow long enough. Finally, after the eleventh try, the accused said “I am doing what you are telling me to do. Just charge me with refusal.”

[10] Constable Martin warned the accused on three different occasions that if he did not provide a proper sample he could becharged with refusal. The accused said that he was trying. The officer told him he was not. After the accused’s comments following hiseleventh attempt, Constable Martin felt that he was not prepared to blow into the device any further and at 2:53 a.m. he arrested theaccused for refusing to provide a sample into an approved screening device. At 3:51 a.m., Constable Martin tested the approvedscreening device that he had used on the accused and found it to be working properly.

He did not test or examine the mouthpiece theaccused had used to determine if it was obstructed at all and he never changed the mouthpiece on the device on any of the accused’seleven attempts to provide a sample. [11] Constable Cummine remained in the police vehicle while her partner dealt with the accused at the roadside. When theaccused was in the back of their police vehicle attempting the breath tests she smelled a strong smell of cologne coming from him but noodour of alcohol. She noted that the accused spoke with an accent and a thick tongue, had bloodshot eyes and slow deliberate speech.

Inher opinion the accused understood what he was being told and she had no problems understanding him. At one point during theaccused’s many attempts to provide a sample, she showed him how to take a deep breath and blow. ISSUES

a) Did Constable Martin make a lawful demand on the accused to provide a proper sample of his breath for analysis in an approvedscreening device?

b) Has the Crown proven beyond a reasonable doubt the actus reus and mens rea of the offence of failing or refusing to provide abreath sample for analysis in an approved screening device? ANALYSIS

a) Did Constable Martin make a lawful demand on the accused to provide a proper sample of his breath for analysis in an approvedscreening device? [12] Section 254(2)(

b) of the Criminal Code states as follows: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol . . . in their body and that person has, within thepreceding three hours, operated a motor vehicle . . . or had the care or control of a motor vehicle . . . the peace officer may, by demand,require the person . . . (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose. [13] Unless a demand made by a police officer falls within this section, the person upon whom the demand is made is under noobligation to comply with the demand and does not commit an offence under section 254(5) by refusing to provide the requested sample.

To put it another way, where an accused is charged with refusing to provide a sample of his breath for analysis in an approved screeningdevice and the officer making the demand did not comply with the requirements of section 254(2)(b), then that constitutes an absolutedefence to the charge. See R. v. Grant, (SCC), [1991] 3 S.C.R. 139 (S.C.C.) at paragraphs 17 to 21; R. v. Lytle, [2008]S.J. No. 770 (Sask. Prov. Ct.) at paragraph 18. In such a case, no Charter application is required. [14] In order for a demand under section 254(2)(

b) to be lawful, the Crown must prove beyond a reasonable doubt that (1) theofficer who made the demand had a reasonable suspicion that an accused person had alcohol in his body, (2) that the accused person wasoperating or in care and control of a motor vehicle within the preceding three hours, and (3) that the sample was provided “forthwith”.

[15] In this case the Defence took no issue with whether the second and third requirements had been satisfied on the evidence andrightly so. Constable Martin observed the accused driving the gray Murano five minutes before he made the formal approved screeningdevice demand. He had an approved screening device with him and following some directions from him as to how to provide a sample,the accused began the first of his numerous attempts to blow into the device. [16] It was Defence counsel’s position that the first requirement had not been met.

In his view, the evidence did not establishbeyond a reasonable doubt that Constable Martin had a reasonable suspicion that the accused had alcohol in his body at the time he madethe formal section 254(2) demand. [17] The concept of reasonable suspicion has both a subjective and an objective component to it. A court, when faced with thisquestion, must determine if the officer who made the demand had a subjective or honest suspicion that the accused had alcohol in hisbody and whether that suspicion was rationally sustainable on an objective basis. See R. v Lytle, supra at paragraph 20; R. v Anderson,[2010] S.J.

No. 89 (Sask. Q.B.) (reversed on other grounds at 2011 SKCA 13 , [2011] S.J. No. 70 (Sask. C.A.)) at paragraph23. The time for determining whether the officer’s suspicion was reasonable is the time the formal demand was made. See R. v.Nahorniak, 2010 SKCA 68 , [2010] S.J. No. 300 (Sask.

C.A.) at paragraph 23. [18] In the present case, Constable Martin testified that he thought the accused had alcohol in his body because the accused wasdriving at night with only his running lights on, there was an odour of alcohol in the accused’s vehicle and, when he was outside thevehicle, on the accused’s person, it appeared the accused lacked comprehension, his movements were slow and deliberate and he couldnot recite the English alphabet.

These are the observations he made at the time he made the formal demand on the accused. [19] I am satisfied that Constable Martin subjectively believed that the accused had alcohol in his body. He gave his testimony ina straightforward fashion. He was professional and patient in his dealings with the accused. He had never met the accused before.

There was nothing in the evidence that would lead me to conclude that the officer was embellishing his testimony or that he was notacting in good faith in his dealings with the accused. [20] However, I am not satisfied that Constable Martin’s belief was objectively reasonable. At no point was he ever able to satisfyhimself that there was a smell of alcohol coming from the accused’s breath or that the accused had recently consumed alcohol. He noteda smell of alcohol in the accused’s vehicle but he was aware that the accused’s passenger was quite intoxicated.

He separated theaccused from the vehicle and said that once he did that he could smell an odour of alcohol coming from the accused’s person. There isno evidence as to how strong this odour was but it must have been faint at best as neither Constable Martin nor his partner, ConstableCummine, testified that they smelled any alcohol coming from the accused’s breath or his person when the accused was in the confinedspace of the police vehicle.

As a matter of fact, all Constable Cummine smelled coming from the accused when he was in the back oftheir car was a smell of cologne. [21] A smell of alcohol coming from one’s person, whether faint or otherwise, is not indicative that that person has alcohol in theirbody without more. In R. v. Beechinor, [2004] S.J. No. 187 (Sask. Prov. Ct.) Judge Jackson was faced with the question of whether anofficer’s suspicion that an accused had alcohol in his body was objectively reasonable.

At paragraph 23 he said: [23] Although the threshold is low, there nonetheless must be evidence capable of demonstrating that the officer have reasonablesuspicion that the driver has alcohol in his or her body in order to make the ASD demand. This does not mean simply that alcohol hasbeen consumed at some point that day or the officer could detect alcohol in the vehicle or even on the person. The suspicion mustbe that the accused had alcohol in the body at that time and there must be objective evidence to support this conclusion. (Highlights are mine) [22] In R. v. Donald, 2010 SKPC 123 , [2010] S.J.

No. 564 (Sask. Prov. Ct.) my brother Judge Kalmakoff in speakingabout what constitutes reasonable suspicion, said: [18] . . . The smell of alcohol on a driver’s breath alone, or evidence of consumption in any quantity is enough to base a reasonablesuspicion. The officer is not required to smell alcohol on the driver’s breath or obtain evidence of consumption of alcohol inorder to have a reasonable suspicion, but the absence of such evidence may negate the existence of reasonable suspicion.

(Highlights are mine) [ 23 ] Constable Martin’s observation that there was an odour of alcohol coming from the Murano and on the accused’s person do not support a conclusion that the accused had alcohol in his body without some further evidence to substantiate that conclusion.

When I consider the other factors Constable Martin based his demand on it still does not support the conclusion that the accused had alcohol in his body at the time he was stopped, especially when I consider that before the officer made the demand he also knew that the accused denied consuming any alcohol, that the accused’s passenger was extremely intoxicated, that the accused had a Russian accent and that his first language was Russian.

The totality of the evidence Constable Martin knew at the time he made the formal demand established that the accused was driving his intoxicated friend around, had turned on only his running lights instead of his head lights and was surprised when an officer in an unmarked police car pulled up beside him and told him to turn his lights on.

It also established that the accused was unable to recite the English alphabet because Russian was his first language, that there was an odour of alcohol in the Murano because the passenger was so intoxicated and that the accused smelled like alcohol because he was in close confines with his intoxicated passenger. It does not support a conclusion that the accused had alcohol in his body. As a result, the approved screening device demand made by Constable Martin did not conform to the requirements of section 254(2) (

b) of the Criminal Code and was therefore unlawful.

b) Has the Crown proven beyond a reasonable doubt the actus reus and mens rea of the offence of failing or refusing to provide a breath sample for analysis in an approved screening device? [ 24 ] Given my decision on the first issue it is not necessary for me to address whether the Crown has proven the actus reus and mens rea of the offence beyond a reasonable doubt and I decline to do so.

CONCLUSION [ 25 ] Having concluded that the approved screening device demand made by Constable Martin was unlawful, the accused was not then obliged to comply with it and as such, I acquit him of the charge of refusing to provide a breath sample for analysis into an approved screening device contrary to section 254(5) of the Criminal Code . _____________________ D.E. Labach, J.