Her Majesty the Queen - v. -, 2013 SKPC 153

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 153 Date: September 12, 2013 Information: 24437870 Location: Assiniboia _____________________________________________________________________________ Between: Her Majesty the Queen - and - Suzanne Irma Desanghere Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Ms. Lee Mountain For the Accused JUDGMENT D. KOVATCH , J [ 1 ] Suzanne Irma Desanghere is charged with failing or refusing to comply with a demand that she supply a breath sample into the approved screening device. It is alleged that the offence occurred on April 27, 2012 at Assiniboia.

The only issues are whether the Crown has proved the necessary intent to refuse and/or the accused has a reasonable excuse for failing to comply. THE EVIDENCE

[ 2 ] Cst. Harris testified that he has been with the RCMP for six years, and is currently stationed at Assiniboia. On April 27, 2012, at approximately 10:00 p.m., he was on routine patrol in Assiniboia. He was in uniform and in a marked police vehicle. He testified that earlier in the evening, he had noticed a silver Matrix vehicle at the Bar B. At this time, he saw the same silver Matrix driving down the street. He stopped the vehicle by the One to One business establishment to ask for a driver’s licence and registration and check sobriety.

The accused was the lone occupant. [ 3 ] He testified that he approached the accused in her vehicle, and asked for her driver’s licence and registration. She had some difficulty finding it. At this time, he smelled alcohol coming from the accused, and he asked her how much she had to drink. She indicated that she had two to three beer at the Bar B. He testified that her eyes were glossy. He said that he then told Ms. Desanghere that he would take a breath sample and she replied: “You don’t want to do that”.

He then made the formal ASD demand and she again repeated: “You don’t want to do that.” [ 4 ] He then asked her when her last drink was and she said she had just finished one. She was still seated in the driver’s seat of her vehicle. He asked her to come to the police vehicle and advised they would wait for 15 minutes to alleviate mouth alcohol. She refused to come to the police car and became very angry and started yelling. She told him that he couldn’t take a sample.

The officer estimated that the first five minutes of this 15 minute waiting or observation period was spent with the accused seated in the driver’s seat of her vehicle and the officer standing at her window. During this time, he was attempting to calm her down and get her to come back to the police vehicle. Finally that was achieved. He noted that when she was seated in the back of the police car, he could clearly smell alcohol. [ 5 ] He testified that after the 15 minute observation period, he explained to her how to use the machine. He then made about five attempts to obtain a suitable sample.

During this time, he could see that she was placing her tongue against the mouthpiece to block the air from going through the mouthpiece. He explained to her that she could be charged with refusal, to which she replied: “You can’t do that. I’m not refusing”. He then made at least five more attempts to obtain a suitable sample. During these five attempts, she blew very short breaths but on each occasion stopped blowing before a suitable sample was obtained. The officer said he kept telling her to “keep blowing” but on each occasion she stopped.

She gave no explanation as to why she was stopping, but did indicate “she wasn’t refusing”. [ 6 ] After the second group of attempts, the officer advised that she would be charged with refusal. There was further conversation after which the officer decided to give her another chance. They made at least three more attempts but no adequate sample was obtained. [ 7 ] She was taken to the RCMP Detachment and issued court documents, which she refused to execute. [ 8 ] Under cross-examination, the officer was asked if she advised that she had a throat condition. He stated that she never advised of any such thing.

He was also asked if she advised she had seen two doctors, and the officer stated this was never indicated. The officer also stated that he was not aware that she had cancer. [ 9 ] Cst. Steven Ross also testified. He was with Cst. Harris on this evening. He estimated that about 12 to 15 attempts to obtain a suitable sample were made. During this time, the accused said that she was trying but gave no reason as to why she wasn’t providing a suitable sample. [ 10 ] Ms. Desanghere also testified. She testified that after work on this date, she went to the Bar B and had a few drinks.

She was driving when stopped by the police officer, and admitted to drinking. She heard and understood the demand. [ 11 ] She testified that two or perhaps three years ago, she wasn’t clear, she began to repeatedly or continually experience a sore throat and sore gums. She consulted her family doctor about this, who referred her to a specialist in Regina, Dr. O’Grady. Copies of two letters from physicians were entered as exhibits. There is a letter from Dr. Victor Carulei dated August 30, 2012. It states that Ms.

Desanghere was “referred to an otolaryngologist (eye, ear, nose and throat specialist) in March 2012 which included further follow up if necessary, for ongoing sore throat time one year”. There is also a letter dated October 2, 2012, from Dr. M.J. O’Grady of Regina. That letter states in part as follows:

This is a follow up letter on the above mentioned patient whose main complaint is that of troubles with her throat. We had the opportunity to review her back in March at which time she was complaining of an irritation in her throat. We were unable to identify any pathology and she presents for follow up evaluation with similar symptoms at this time. She is otherwise asymptomatic. She states that it continues to feel as though there is something in the back of her throat that is bothering her. Physical examination today fails to reveal any pathology. The nose, oral cavity and neck were normal.

The ears were visualized and no abnormalities were noted. We discussed the options available and I would like to see her back in four to six months if she is still having issues. This was reviewed with her and she was in agreement with this course of action. [ 12 ] She testified other people at her place of employment, a personal care home, have had sore throats and rashes. She believed her condition was also related to her place of employment. [ 13 ] She testified that on the night in question, she took a deep breath and blew as hard as she could. She said she couldn’t have blown any longer.

Further that she tried hard to blow. She indicated that she did not in any way convey to the police information about her throat condition. She testified that she did tell the police officer that he can’t charge her as she is not refusing. [ 14 ] She testified that she previously had cancer in the breast and lymph nodes. As a result her immune system is sometimes low and she wheezes sometimes. [ 15 ] Under cross-examination, she testified that she is a special care aide and works with patients that require Level 3 and 4 care. Mr. Hendrickson suggested that this work is fairly strenuous and she agreed.

Apparently, she has had no difficulty continuing to perform this work. [ 16 ] Counsel asked her if she told the police officer upon the demand being made, “you don’t want to do that”. She denied that she made that statement, and indicated she said “I can’t do it”. [ 17 ] She did agree however, that there had been a prior incident regarding her tenant, and that she began yelling at the officer about this. She testified that she thought this was why the officer was “bothering her”. [ 18 ] She agreed that her memory may not be the best.

She also agreed that the officer did not at any time tell her to stop blowing and that she decided to do that. She also agreed that she never told the officer she was blowing as hard as she could or that she couldn’t blow harder because of a throat problem. She was quite sure that she did say “I can’t do it”. She also agreed that her first reaction was to not blow. She later changed her mind, and decided that she would attempt to blow. ANALYSIS [ 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. [ 20 ] I begin by noting that Ms.

Desanghere admitted that shortly after being stopped, she began yelling at the officer about her tenant. Further, that she thought the officer was bothering her because of the tenant. It is apparent that very early in the process, the accused decided the officer was bothering her, and she was not about to cooperate with him.

[ 21 ] This attitude is further illustrated in that she initially refused to come back to the police car for the ASD test. It took considerable convincing from the officer before she eventually agreed to go to the police car. All of this causes me to conclude that Ms. Desanghere decided very early on that she would not cooperate and would in fact refuse. She followed through with this approach when the officer actually attempted to obtain the breath samples. [ 22 ] At no point in time did Ms. Desanghere ever indicate to either of the police officers that her throat condition prevented her from blowing.

I would note that in her evidence, Ms. Desanghere did not even indicate that her throat was sore that night, or that this sore throat made it difficult for her to provide a breath sample. She only indicated that she tried to blow and attributed her failure to this condition. [ 23 ] The medical evidence provided falls well short of providing any reason for failing to blow. Dr. O’Grady’s report indicates that he could find no pathology. I take this to mean he found no physical evidence of a sore throat. There is no indication that he prescribed any treatment or medication for a sore throat.

Perhaps most importantly, there is not the slightest indication as to how any sore throat that may or may not have existed on that evening, affected Ms. Desanghere’s ability to provide a suitable breath sample. [ 24 ] Under cross-examination, Ms. Desanghere admitted that she works as a special care aide, and works with patients that require Level 3 and 4 care. She agreed with counsel that this work is often strenuous. She testified that she has been able to continue to do this work.

It would seem to me that if this throat condition caused a breathing problem sufficient to prevent her from providing a suitable sample, this same breathing problem would have manifested itself prior to this incident and in the course of her employment. [ 25 ] Lastly, while Ms. Desanghere never told the officer that she suffered from a throat condition that affected her ability to blow, she did clearly state to the officers that she can’t be charged with refusal because she wasn’t refusing. This statement strikes me as very odd.

If she wasn’t able to physically provide a sample, I would have expected her to simply say that. Why get into a legal debate with the officer about what he could or couldn’t charge her with? It seems to me likely that Ms. Desanghere determined, in her mind, that she could not be charged with refusal providing she did not refuse. Thereafter, she was pursuing a strategy of not refusing, and not providing an adequate sample. [ 26 ] For all of the above mentioned reasons, the accused’s evidence lacks any credibility or air of reality.

I have no reasonable doubt that she failed or refused to provide an adequate sample in compliance with the demand and I find her guilty of the charge. [ 27 ] Dated at Assiniboia, Saskatchewan this 12 th day of September, 2013. D. Kovatch, J