Her Majesty the Queen - v. -, 2013 SKPC 127

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 127 Date: October 16, 2013 Information: 37252739 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Coralee Anne Ingleby Appearing: Mr. Rob Parker For the Crown Mr. Estes Fonkalsrud For the Accused JUDGMENT M. GORDON , J [ 1 ] Coralee Anne Ingleby is charged that: On or about the 27 th day of December A.D. 2011, at or near Moose Jaw, Saskatchewan did without reasonable excuse fail or refuse to comply with a demand made to her by a peace officer pursuant to s. 254(3) (

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

[ 2 ] The Crown called two witnesses being Cst. Biniaris and Cst. Westrum. Both are members of the Moose Jaw City Police and were working on a project named “Overdrive” on December 27, 2011. Essentially this project was to detect impaired drivers. Cst. Westrum was driving an unmarked police vehicle and Cst. Biniaris stated he first noticed the vehicle parked at the back in the parking lot at Chillers Bar and Nightclub at about 2:00 a.m. The officers followed this vehicle for some distance as it left Chillers. The officers kept this vehicle continuously in sight. Cst.

Westrum activated the emergency lights of the police vehicle and pulled this vehicle over to check the driver for licence, registration and sobriety. The officers kept this vehicle continuously in sight. The driver of the vehicle was the accused Coralee Anne Ingleby and the defence has indicated identity is not an issue. [ 3 ] Ms. Ingleby produced her licence and registration and said she was returning home from Chillers. Cst. Biniaris noticed an open case of open alcohol in the back seat. The accused indicated she had one drink. Cst.

Biniaris observed her to have bloodshot and watery eyes and asked her to come to the back seat of the police vehicle and advised he was going to be making an ASD demand. At 2:36, he read the ASD demand from a card and Ms. Ingleby responded “yup”. The officer asked if she had ever blown into this machine and he described in some detail the instructions for providing an adequate breath sample. He told her to breathe deeply, form a seal around the mouthpiece and blow until he told her to stop. Prior to the first sample, the accused did say she had some stomach pains.

She then took a deep breath, placed her lips around the plastic mouthpiece and blew a little bit. However, it was not strong enough to even activate the ASD machine. There was no noise at all. Ms. Ingleby took a deep breath and blew a second time. The officer did not hear anything. The police officer explained to her again the procedure and she was given five more opportunities to blow. On one occasion the officer heard a humming noise but she did not blow long enough. The officer admits that Ms. Ingleby told him that she had stomach pains. She had her hand on her stomach right from the initial stop.

She told the officer her stomach was upset and that she was going to throw up. She told the officer that he did not appear to understand her predicament. [ 4 ] Cst. Westrum thought he would try and assist in the situation as sometimes an explanation from somebody else is helpful. He was giving her the benefit of the doubt he indicated. He had been advised by Cst. Biniaris that Ms. Ingleby had tried but had not provided sufficient air for a sufficient duration to obtain a proper reading. Cst. Westrum acknowledged that the accused indicated she had cramps, she was bloated and had irritable bowel syndrome.

He admitted that she did seem compliant initially but could not sustain the breath for the required period of time. The officer did not observe any breathing problems. The officer allowed her to stand outside the vehicle and try to blow. After six tries, the officer said “this is enough” and advised she would be charged with refusal. Ms. Ingleby became very upset and accused the officer of harassment. [ 5 ] A video from the in-car camera showed some of the encounter between the police and Ms. Ingleby. The officer admitted he forgot to put on the camera to show Ms. Ingleby in the rear seat of the police vehicle.

The audio on the video indicates that the police officer was very patient with her and provided a good explanation of how to blow into the ASD. The accused at one point asked if she was doing something wrong and the officer responds and explains to her that it was a random stop, checking sobriety. Ms. Ingleby was advised she could be charged with refusal and at 2:52 a.m. she was in fact charged. She was placed under arrest for refusing the ASD and given her rights to counsel and police warning which she indicated she understood. [ 6 ] Ms. Ingleby testified that she got off work at midnight and went home.

After a shower, she was texting some people who asked her to join them at the bar for a visit. She drove to the bar. She was fairly certain she would likely be driving people home. Originally she was going to take the two fellows, Joel and Tyler, to a party but she did not feel well and decided to take them home. As she was driving, she saw the police lights in her rearview mirror. She pulled over and upon request, produced her driver’s licence and registration. She told Cst. Biniaris she had one drink. When she walked to the police vehicle she said “no, just half a drink”.

She told the police officer she had cramps, burping and irritable bowel syndrome and diarrhea. She admitted she maybe just burped once. She held her stomach. She testified she also suffers from anxiety which is related to irritable bowel syndrome. She was worried because she had diarrhea and bloating and was in extreme discomfort. She said she could only push her stomach out so far. She testified she understood the directions of Cst. Biniaris with respect to blowing in the ASD. She testified she tried to the best of her ability. She tried to make a good seal and blow as hard and as long as she could.

She was certainly willing to provide a sample if she could go home. She testified she didn’t feel she was drunk but wanted to get it over with. She was very anxious. She said she was not sure of why she was pulled over by the police. She agreed that the one male passenger in the back seat, Tyler, was being obnoxious. She also testified that Cst. Westrum asked her to provide a sample and she tried when standing outside the vehicle. [ 7 ] She stated in cross-examination that it had been a long day although once she got home and rested for awhile, showered and relaxed, she was okay to go out with friends.

She did say that she had supper about 8:00 and it was still sitting at the top of her stomach. She said she was sweating and shaky and short of breath and that she had taken Paxil medication for the anxiety for years. Exhibit D-1 is a letter from her doctor dated March 13, 2012, confirming that she is prescribed this medication. She had not taken Paxil on the night in question. She admitted she did not tell the police officer about any shortness of breath or panic attacks. The police were not believing her about the cramps, so she did not think they would believe her when she said she had shortness of breath.

She admitted that she had no medical diagnosis of irritable bowel syndrome. She knows that she has discomfort at some points and along with anxiety and this can be a problem. She tries to eat correctly and manage her condition without drugs. She testified that on that night she tried to take deep breaths but she just could not exhale for the time period required. At a certain point she just could not.

[ 8 ] The Crown argued it has proven all the elements of the offence and relies in the main part on the decision of R. v. Lewko , 2002 SKCA 121 . [ 9 ] The defence takes the position that based on the same case of R. v. Lewko , that the Crown has not proven beyond a reasonable doubt in all of the circumstances that Ms. Ingleby failed to provide a sample of her breath. The defence in other words argues that in all of the circumstances the Crown has not proved that the accused had the necessary intent to refuse to blow. In addition, the defence argues that in all of the circumstances Ms.

Ingleby had a reasonable excuse for not providing a satisfactory sample in the ASD. ANALYSIS [ 10 ] The Saskatchewan Court of Appeal in R. v. Lewko , supra , sets out at para. 9 and 10 the requirements to prove this offence as follows: The elements of the offence that the Crown must prove beyond a reasonable doubt are three. First, the Crown must prove the existence of a demand having the requirements of one of the three types mentioned in ss. (2) and (3). Second, the Crown must prove a failure 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 ). The proof by the Crown of the three elements (and the defendant’ s questioning of that proof by combatting the allegations of the prosecution without introducing any further issue) may be looked upon as the first stage of the proceedings. Once the Crown has established 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) . [ 11 ] In Lewko , the Court goes on to say that the defence has an evidentiary burden to raise a reasonable excuse. The Court makes clear at paragraphs 12 through 20 that the evidential burden is simply to raise a reasonable doubt. 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. There is no question that Ms. Ingleby failed to produce the required sample of her breath.

She did not refuse to provide a sample but her efforts resulted in a failure. There is no dispute that she was given several opportunities to blow and that there was clear instructions given to her by both officers. The Crown has clearly proved the actus reus of the offence. [ 12 ] There is no question that the officer had a reasonable suspicion to make the ASD demand and the ASD was an approved instrument in proper working order. The first issue is whether the Crown has proved beyond a reasonable doubt that the accused intended to produce a failure; the failure to supply a breath sample into the ASD.

Put another way, has the Crown proved beyond a reasonable doubt that the accused had the necessary mens rea to constitute this offence. [ 13 ] In R. v. Dolphin , 2004 MBQB 252 , the Court comments as to the necessary proof for this type of case as follows: There is clearly an overlap in the proof that is required to prove both the actus reus and the mens rea in “ failure ” cases. Whenever there has been an outright refusal, mens rea can be presumed. However, where a failure is alleged, more proof is required.

Usually, that proof will flow from the inference that a person intends the natural consequences of his/her acts. The inference is often drawn from proof that an adequate sample was not provided after a clear explanation was given as to how to blow into the device and after the accused was given an adequate opportunity to blow into a device that was in good working order. Having said that, often is not always.

Consequently, whenever the defence argues that the accused did not intentionally refuse to provide a sample, the court must analyze the evidence to determine if mens rea has been proved beyond a reasonable doubt. Trial judges must be cautious not to merge the concepts of mens rea and reasonable excuse. The evidence appropriate to each of these elements of the charge is often similar, but it is not always identical. Consequently, a trial judge is obliged to identify and adjudicate the issue of mens rea separately.

[14] Judge Chow in the case of R. v. Duchek, 2013 SKPC 84, provides a very thorough review of the authorities with respect to thissection and the burden of proof, specifically in paragraphs 46 to 48. He quotes extensively from the Lewko case from our Court ofAppeal as well as from the Textbook of Criminal Law by Glanville Williams (London: Stevens & Sons, 1983) (2d ed.) at 50-51.

JudgeChow goes on to conclude at para. 48 as follows: In the present case, the Accused submits she was willing throughout to provide samples, and that she attempted to comply with thedemand, but was unable to do so due to a medical excuse. I am satisfied that she has met the evidential burden in that her testimonygives rise to the possibility of a reasonable excuse. [15] Ms. Ingleby was stopped as a result of project Overdrive which was targeting potential drunk drivers that evening. She wasobserved leaving Chillers, a bar in Moose Jaw, about 2:00 a.m. and followed for some time before stopping.

There was nothingparticularly wrong with her driving actions. The grounds for the reasonable suspicion to make the ASD demand were minimal andprimarily based on her admission of consumption. [16] Ms. Ingleby was willing to provide samples. She tried her best, she was unable to do so due to her digestive and stomachcramps and concern with diarrhea and vomiting. She was holding her stomach and she told the police officers more than once of herdifficulties. Ms. Ingleby on the video said to the officers that after she made a few attempts “you don’t understand”. She also said shedid not know what else to tell them.

She said she repeated she was sick. She was worried because she had diarrhea and bloating and wasin extreme discomfort. She could only push her stomach out so far. I find that Ms. Ingleby was coherent, cooperative and compliant. Itwas only after numerous tries she became frustrated and wanted to go home. [17] It may seem strange to the two police officers that a young woman such as Ms. Ingleby would have difficulty performing therelatively simple task of blowing into the ASD machine for the required time. However, there is evidence that Ms. Ingleby tried onmany occasions. She was never reluctant to try.

The Crown has suggested that she was not trying. Cst. Biniaris said he heard no airgoing into the machine. However I conclude from the fact that the officers gave her many opportunities to provide a sample that theyfelt she was trying and not just fooling around or trying to be devious and avoid the test. [18] This case is distinguishable from many others where an accused tries various tactics to avoid providing a sample of his or herbreath. There is evidence which I accept that the accused attempted to blow into the ASD.

I have a reasonable doubt that the accusedrefused or failed to provide a sample. [19] I do not need to consider the question of reasonable excuse. In R. v. Keith Arthur Schwartz, 2009 ABPC 120, the Courtexplains why this issue does not need to be considered at para. 24 as follows: This issue is no longer material in view of my finding that the accused lacked the mens rea to commit the offence. In R. v.

Moser, (ON CA), (1992), 71 C.C.C. (3d) 165, Doherty, J.A. observes in paragraph 33: 33 The essential elements of the offence described in s. 254(5) consist of a proper demand and a refusal or failure to comply with thatdemand. The defence of “reasonable excuse” is not a denial of either of those essential elements but refers to “matters which standoutside of the requirements which must be met . . . before a charge can be supported”: per Laskin J. in R. v. Taraschuk, (SCC), [1977] 1 S.C.R. 385, 25 C.C.C. (2d) 108, at p. 388 S.C.R., p. 110 C.C.C.

The defence of “reasonable excuse” is engaged onlyafter the Crown has proved a proper demand and a failure or refusal to comply with that demand. [20] I am satisfied that the Crown has not proved the mens rea of the accused beyond a reasonable doubt and as such, the accusedis acquitted of the charge.

M. Gordon, J