R. v. TAILLEFER, 2020 MBPC 24

CITATION: R. v. TAILLEFER, 2020 MBPC 24 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Erin Dunsmore, ) ) for the Crown - and – ) GILLES TAILLEFER ) ) Eric Wach, Accused ) ) for the Accused ) ) ) Reasons for Decision ) Delivered: July 28, 2020 SHARMA, K., P.J. INTRODUCTION [ 1 ] Gilles Tailleffer is charged with Driving Impaired and Refusing Breathalyzer arising out of a Checkstop Program conducted by the Winnipeg Police Service (WPS) on July 15, 2018.

As the accused raised several issues under The Charter of Rights and Freedoms ( The Charter ) at the trial on October 8, 2019, the matter proceeded as a blended voir dire with the evidence to apply mutatis mutandis to the trial proper. The Crown called three police witnesses at the trial. The accused did not call evidence. [ 2 ] The matter was adjourned for argument. When we returned on December 12, 2019, the Crown stayed the Drive Impaired charge and the accused withdrew his Charter motions.

The only question left for this Court is whether the Crown has established that the accused had failed or refused to provide a sample of his breath suitable for analysis or to accompany the officer for this purpose. [ 3 ] The accused argues that a conviction for refusal must be based on a valid demand. In the present case, he submits there is no evidence before the Court of the content of the demand made to the accused. The officer did not read it into the trial record therefore the accused must be acquitted. Crown counsel says the Court can infer a valid demand by looking at the surrounding circumstances.

As the accused failed to provide a suitable sample for analysis, he should be found guilty of that charge. FACTS: [ 4 ] On July 15, 2018, WPS were conducting a Checkstop Program to identify impaired drivers. There were 15 to 20 police officers working in pairs randomly stopping drivers to assess road safety issues such as, fitness of the vehicle, licence and vehicle registration and driver sobriety. If necessary, the program also had a mobile van with a breath technician to conduct breathalyzer tests.

On this date, the officers set up at Ragland and Portage Avenue in Winnipeg, Manitoba. [ 5 ] WPS Constable Matthew Rob testified that on July 15, 2018 he and his partner Constable Joseph McKenzie were assigned to screen stopped drivers. WPS stopped Gilles Taillefer at 1:25 a.m. and directed him to Constable Rob. When the officer approached the driver’s side window, the accused told the officer that he had consumed a few beer. The officer noted that the accused’s speech was slow and deliberate and he had dilated pupils.

Based on these observations, and the accused’s admission, the officer made a demand for a sample of the accused’s breath into an approved screening device (ASD). The accused agreed to provide a sample and exited his vehicle. [ 6 ] Constable Rob testified that he verbally explained and physically demonstrated how to provide a sample into the ASD. He gave the accused five opportunities but the accused did not provide a suitable sample for analysis. The officer observed that the accused appeared to be pretending to comply by providing short insufficient blows.

When the device did not detect a sufficient amount of air input, it timed out. The officer explained the instructions to the accused again and this time he noted the accused was blocking the mouthpiece with his tongue when attempting to blow into the device. The officer now warned the accused that he could be charged with refusal. [ 7 ] On his last attempt, the accused again failed to provide a sufficient sample.

Based on this and other observations of the accused, including the odour of liquor emanating from his breath, his slow deliberate speech, dilated pupils and unsteadiness on his feet, Constable Rob arrested him for Drive Impaired and made a breath demand.

[ 8 ] The following questions and answers took place at trial between the Crown and the officer regarding his interaction with the accused on the breath demand: Constable Rob: In this matter, I then provided the breath demand, I read the breath demand from my notebook. Crown: What does the breath demand mean? Rob: It’s for the actual demand, Demanding that the accused provide a sample of their breath into the approved instrument, not the roadside alcohol screening device but into the intox CCR. Crown: Okay, and what was his response to that? Rob: I asked, Will you provide a sample of your breath?

Your Honour and the accused indicated, “Yes, I’ll try.” [ 9 ] Constable Rob said he then took the accused to the Checkstop van and turned him over to the breathalyzer technician. [ 10 ] Constable Douglas McCain testified that he has been a WPS member for 16 years. He is a breath technician and on July 15, 2018 he was operating the Intox EC/IR 2 approved instrument more commonly known as a breathalyzer in the Checkstop van. [ 11 ] When the accused was brought into the van for a breath test, Constable McCain gave him instructions on how to properly blow into the instrument to provide breath samples.

He remembered the accused nodding his head, indicating his understanding. The accused was given six attempts to blow and all six blows were insufficient. Officer McCain explained that the instrument gives out a low tone when someone is blowing properly and the instrument is able to do a proper analysis of their breath. In the accused’s case, the instrument did not emit a tone as the accused’s breath had insufficient volume to do an analysis.

Although McCain admitted he does not take detailed notes of every incident, he remembers the accused pretending to blow and making “a show of inhaling deeply, chest puffed out then blowing softly, there was approximately one second of solid tone followed again by an insufficient sample reading” because no volume of breath was detected by the instrument. At 2:10 a.m. the accused was arrested for refusal/failure to provide a breath sample. The accused was turned over to Constable Rob where he was transported to the police station, processed and remanded into custody in the Winnipeg Remand Centre.

LAW: [ 12 ] I reviewed a number of cases on what constitutes a refusal, provided by counsel at the hearing as well as some from my own research. The case of R . v. Truscott

(2009) BCSC 364 provided by Crown counsel and R . v. Campbell

(2019) ONCJ 152 provided by defence counsel were very helpful in that they reviewed some of the law in this area. [ 13 ] It is trite law that a person is only compelled to provide a sample of their breath in response to a valid demand. What makes a demand valid? [ 14 ] While it h as long been established that there are no magic words required to make a demand for a breath sample ( R. v. Ackerman, 1972, CarswellSask 131 ; R. v. Mandeville , 1985 CarswellAlta 302 ), the demand should contain certain elements such as the statutory requirements of the

section from the Criminal Code . [ 15 ] The relevant

section for our purposes at the time of the alleged offence read: Section 254(3):

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or…. [ 16 ] In addition to the obvious elements that must be included in a demand under s. 254(3) that are clearly outlined in the

section (i.e., reasonable and problems grounds; as soon as practicable; into an approved instrument that measures the concentration of alcohol in the blood; etc.), case law has also interpreted the

section to define or clarify other requirements such as outlined by Miller, J. in R. v. Boucher

(1986) CarswellNB 12 , at paragraph 14 : The demand must be in plain language so the accused can understand what is expected of them. Gentility and good manners should be neither condemned nor criticized but s. 235 of the Criminal Code refers to the making of a demand and not the issuance of an invitation or a request. The offence is committed when a demand is refused — not when an invitation is declined. The demand must be unequivocal; there must be no doubt left in the mind of the accused that he must respond affirmatively to that demand or he will be

charged with a failure or refusal of that demand. [ 17 ] In order to determine if the required elements of a demand have been met, the Court must know what was actually said. Some courts have found that the officer simply testifying that, “I read the breath demand from my notebook” without more was not enough to establish that a valid demand had been made (e.g., R. v. Hergott (1999), O.J. No.5314 ; R . v.

Mandeville ( supra )). [ 18 ] Yet in other cases, courts have found that it was generally sufficient for the officer to give testimony that a breath demand was made without giving a full verbatim reading of what was said, where the surrounding circumstances allowed the Court to infer what was said ( Ackerman , supra ; R. v. Truscott ( supra) ). [ 19 ] Whether the words spoken are sufficient to constitute a valid demand also depends on if the charge is drive over .08 where the accused has provided a sample of his breath or a refusal where the accused has refused or failed to provide a proper sample for analysis.

This distinction is an important one because a refusal requires the Crown to prove a proper demand as an element of the offence making the words used that much more significant whereas in an over .08 case, the fact that a demand was made is what is needed to admit the certificate of analysis into evidence. In addition, evidence of a suitable sample can be used to establish that a valid demand was made by the officer and understood by the accused. This is clearly not always available in the case of a refusal charge. The distinction between the two offences is discussed in R . v. Ouellette , [1994] B.C.J.

No. 1505 (B.C.S.C.) and Truscott, (supra ). ANALYSIS: [ 20 ] The question for the Court in this case is whether a totality of the evidence establishes that the officer made a valid demand. [ 21 ] Crown counsel argues while it may be ideal to read the breath demand verbatim into the court record, it is not an essential element and there is enough evidence from which the Court can infer that all the requirements necessary to make it a valid demand are present.

The police officer referenced making the demand from his notebook and although he was asked to tell the court what the demand means instead of what the demand said , Crown counsel argues these are the same. [ 22 ] She further argues that in answering her question about what the demand means, the police officer was specifically explaining what his notebook card said and therefore what he read to the accused that night.

She continued, “That’s what I intended in the question and what I took as the answer.” She told the Court that from his description of what the breath demand “means”, the Court can infer that it met all the requirements. To assist me, I can look at the surrounding circumstances such as the fact that the officer referenced his notebook, something he also did when he testified about the ASD demand.

Since that demand was read into the record, I know it met all the requirements necessary for an ASD so I can infer the breath demand would have also met the necessary requirements. [ 23 ] Crown counsel asserts that I can also look to the accused’s conduct to infer that he understood what was being required of him - he accompanied the officer to the Checkstop van and tried to provide a sample. This means that the demand was given in plain language as the accused understood what he was supposed to do.

In fact, Crown counsel even goes on to suggest that I can look to the accused’s conduct in how he is not complying (e.g., putting his tongue over the mouth piece, not blowing hard or long enough, etc.) to infer that he knows how to comply . [ 24 ] And lastly she argues, I can also use the breath technician’s evidence to infer that he knew the consequences of not complying. [ 25 ] Defence counsel concedes that while something was said to the accused regarding providing a breath sample, we do not know what was said therefore how do we know if it constituted a valid demand?

The fact that the accused accompanied Constable Rob to the Checkstop van and complied in some respects means that something was communicated to him but we do not know if this means that the accused was asked if he understood what was being required of him or if he knew that it was even a requirement. Defence counsel further argues that the officer telling us what the demand meant is not evidence of what he actually told the accused. They are not the same. CONCLUSION [ 26 ] I agree with the authorities that the contents of the demand are more important when dealing with a refusal charge as opposed to an over .08.

I also agree with the line of cases that say there are no magic words, as long as the requirements of a valid demand are conveyed to the accused and he understands what he has to do and the consequences if he does not comply. [ 27 ] In the present case, the accused concedes that there are reasonable and probable grounds to make the demand. The evidence from Constable Rob and confirmed by the breath technician is that the demand is for a sample into the approved instrument (i.e., the breathalyzer) not the ASD (i.e., the roadside screening device).

There is a small discrepancy between the officer and the technician on the name of the instrument but one can reasonably infer that they are referring to the same one and certainly that it is used to measure the concentration of alcohol in the blood, which is the significant point. [ 28 ] With that said, how can I determine from the circumstances that the officer makes a demand so that the accused understands what he has to do and that he must comply? It is not an invitation but a requirement. I cannot use the accused’s conduct because he does not provide a suitable sample.

This is not similar to the line of cases where in the midst of a number of unsuitable samples, the accused provides one valid one that may be used to infer that he understood what he had to do. I also cannot look to the breath technician’s evidence on this point because as defence counsel argued, I am assessing the demand made by Constable Rob, not what the accused was

told after the fact and by someone else. [ 29 ] While I can infer from the circumstances that the breath demand given by Constable Rob met some of the requirements necessary to make it a valid demand, I am not in a position to conclude from the evidence before me beyond a reasonable doubt that the officer made a demand that was clear and unequivocal and understood by the accused. Both Constables Rob and McCain testified that they thought the accused was pretending to blow. I am also suspicious of his conduct, but without more, I am not convinced beyond a reasonable doubt that he is guilty of the offence charged.

As such, I acquit Mr. Taillefer of refuse breathalyzer. [ 30 ] As I do not find this was a valid demand, I will not deal with the other issue raised by defence counsel that the sample was not taken as soon as practicable because of the 5 minute unexplained delay. K. Sharma, P.J.