R v Candido, 2015 SKCA 104

Court of Appeal for Saskatchewan Docket: CACR2411 Citation: R v Candido , 2015 SKCA 104 Date: 2015-10-01 Between: Gregory L. Candido Appellant And Her Majesty the Queen Respondent Before: Jackson, Caldwell and Herauf JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Herauf On Appeal From: QBA 10 of 2013, Battleford Appeal Heard: 8 September 2015 Counsel: Gregory L. Candido for the himself Erin Bartsch for the Respondent Jackson J.A. [ 1 ] Gregory L.

Candido was convicted in the Provincial Court of Saskatchewan of refusing to provide a breath sample, contrary to s. 254(5) of the Criminal Code , RSC 1985, c C-46. He appealed his conviction to the Court of Queen’s Bench where his conviction was sustained and his appeal dismissed. He now appeals to this Court pursuant to s. 839(1) of the Criminal Code . In order to obtain a successful result in this Court, Mr.

Candido must obtain leave to appeal and demonstrate error with respect to a question of law of sufficient importance to warrant intervention by this Court. [ 2 ] By way of brief background, Constable Durdle of the RCMP stopped a car being driven by Mr. Candido. Constable Durdle had earlier received a radio dispatch that an intoxicated male was leaving a certain location in a car. The officer found a vehicle behind the location mentioned in the radio dispatch. Constable Durdle’s partner spoke to the passenger in the car who acted belligerently and was subsequently put under arrest for causing a disturbance.

Meanwhile, Constable Durdle began speaking to Mr. Candido and smelled alcohol from Mr. Candido’s breath. Mr. Candido was asked to come to the police vehicle and blow into an ASD. Mr. Candido insisted he was following the instructions, but he failed to provide a breath sample six times, at which point the officer concluded that Mr. Candido was trying to deceive the machine and arrested him for failing to provide a breath sample. [ 3 ] Mr. Candido was not represented by legal counsel in the Provincial Court. He decided not to testify.

In his oral submissions to the Provincial Court judge, he stated the following: Well, I do believe that I’ve made it clear that I made an attempt, as has been agreed with the prosecutor, to provide a sample. I believe there was something wrong with that device. I don’t believe it was properly checked. I don’t believe it was anything that Constable Durdle was familiar with -- that specific device. Perhaps the process of using a device of that nature I could agree to him being familiar with, but not the one in question that would have been affecting me. That’s my first point.

The second point is that there wasn’t any indication on my part of intoxication to have given grounds for this test throughout, and I was held a long time. I was held until the next morning. I believe I was released at 10:00 a.m. I don’t know why it isn’t in the notes but there isn’t any evidence of my having been intoxicated. I think that has a lot to do with whether or not there was even a need for a test.

I have a few other things in my mind in terms of how long it’s been, how long it’s taken to bring this case to trial, some of which I was responsible for, but definitely not the last delay, it’s obviously affecting people’s memories of the events, as much as they’re to refer to their notes, such as they are. And that’s my case.

Thank you. (Trial transcripts, pp. 44–45) [ 4 ] The Provincial Court Judge rendered his decision as follows: The only evidence before the Court with respect to the actual attempts to blow on the machine are from Constable Durdle in Baffin Island, and it was his testimony that he had put on a fresh mouthpiece, visually checked it, and that the accused tried in all six times, kept repeating that he was trying his best and he was trying to blow, but on a number of occasions it was visible that he was blowing out the side of the mouthpiece and never did create a tone on the machine.

There is no evidence at all whatsoever that the instrument was working improperly or was out of service or was jammed up or anything, and it was Durdle’s testimony that he thought, it was his view, that the accused was trying to trick the -- the system. This is a case of constructive refusal because apparently throughout Mr. Candido indicated he was trying his best and wanted to blow, but after six attempts it was given up, and he was -- he was charged with a refuse to provide samples in a screening device.

Clearly, and I agree with the -- the accused, that the evidence is that he -- that he put it in his mouth and tried six times. There is no -- no doubt about that.

The prerequisites have been met. There was a -- a suspicion of alcohol in the body. The accused was observed driving, and -- and I thinkit -- it’s important here that in the context this is a result of a complaint from the management of the Good Knight Inn on theSaskatchewan side about an intoxicated individual, and that’s what Durdle was attending to, and he could smell liquor on the breath of --of the accused and that thus he was entitled to request a roadside screening exam. There’s no need that he prove that, in this court case, that the accused was intoxicated. That’s not the issue.

And what the accused didback at the detachment is long after the event. The fact that he’d volunteered to blow in a breathalyzer doesn’t in any way impact on thedecision as to whether he constructively refused to blow on the roadside device. There is no evidence here at this trial as to his time of release, and thus those issues are not in play. Unfortunately, for Mr. Candido I find him guilty of refusal as charged. (pp. T45–47) [5] Mr.

Candido has no criminal record and the Crown sought the minimum sentence, which was a fine of $1000 and a one-year, Canada-wide driving prohibition. [6] In the Court of Queen’s Bench, Mr. Candido raised the following grounds of appeal: (

i) the trial judge told him not to testify;(ii) the police officer lacked the necessary grounds to demand that he blow into an approved screening device; (iii) there was aninordinate delay from the time of the traffic stop and when the machine was presented to him to provide a breath sample; (iv) the trialjudge should not have found that he had failed without reasonable excuse to comply with the officer’s demand; (

v) there was a s. 11(b)breach the Charter because of an inordinate delay in bringing the matter to trial; (vi) there was a s. 9 breach of the Charter; (vii) therewere breaches of s. 11(

d) due to a lack of trial fairness and a failure to respect the presumption of innocence; (viii) there were concernsabout some of the trial judge’s mannerisms; and (ix) the verdict was unreasonable or unsupported by the evidence. [7] The

summary conviction appeal judge reviewed each of these arguments. She noted that the transcript does not show thatthe trial judge told Mr. Candido not to testify. The trial judge offered him little advice, but he did not discourage him from testifying. Theappeal judge commented that the court is not a proper forum to consider issues of judge comportment.

She also noted that she would beunable to deal with any of his allegations of breaches of the Charter because he was raising these in the absence of proper notice havingbeen given in the Provincial Court or the Court of Queen’s Bench and all of the alleged breaches required an evidentiary foundation. Inessence, Mr. Candido was raising Charter arguments for the first time in the Court of Queen’s Bench. On the question of proper groundsto suspect, she noted the trial judge found as a fact that the officer detected the odour of alcohol on Mr.

Candido’s breath, that theintoxicated passenger had been removed from the vehicle by another officer and that liquor in the vehicle was unopened. Relying on R vButchko, 2004 SKCA 159, 257 Sask R 41 [Butchko], she held that these findings of fact were sufficient for the Crown to prove theofficer had reasonable suspicion as required by s. 254(2) of the Criminal Code.

She found there was no basis to allege an inordinatedelay between the stop and the taking of the roadside breathalyzer test. [8] On the reasonableness of the decision, the appeal judge wrote the following: [7] The appellant submits that the trial judge erred in concluding that the appellant committed a constructive refusal when the officerrequired him to blow six times and the officer was unable to obtain a reading on the breathalyzer. The trial judge accepted Cst.

Durdle’stestimony that, despite his instructions to the appellant, the appellant was not sealing his lips around the mouth piece of the breathalyzersufficiently to allow a reading to be taken. [8] The trial judge also accepted the evidence of Cst. Durdle that the appellant understood the instructions on blowing into the road sidebreathalyzer. There was no evidence before the court that the appellant was having any trouble breathing. [9] The appellant did not testify at the trial.

Section 254(5) states that “Everyone commits an offence who, without reasonable excuse,fails or refuses to comply with a demand under this section.” Section 794(2) states:

(2) The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of thedefendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption,proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information. [10] Thus, the burden of proving he had a reasonable excuse to fail to comply with the officer’s demand to provide a breath sample is onthe appellant.

In this case, no evidence amounting to an excuse was before the court. [11] Thus, on reviewing all the evidence and the learned trial judge’s oral reasons, the findings of fact are reasonable and can besupported by the evidence. There is no basis for the appellate court to interfere with his decision. See: R. v. Andres, (SK CA), [1982] 2 W.W.R. 249, para. 9–10. (Underline emphasis in original, QB Decision, pp. 3–4) [9] In this Court, Mr. Candido does not abandon any of the arguments that he made in the Court of Queen’s Bench. He believeshe did not receive a fair trial. He asserts that s. 11(

d) of the Charter was breached in all of the ways he has indicated above. In addition tothe arguments made in the Court of Queen’s Bench, he stresses three arguments in this Court. First, he argues the Crown did not provethe device used by the peace officer was approved in accordance with the regulations of the Criminal Code nor was its nature properlyidentified. Second, by reference to the transcript, he indicates the peace officer did not testify that he believed the accused had alcohol inhis body; his testimony could be taken as saying his belief was as to consumption during that day only. Mr.

Candido also points to thestatement in the transcript where the officer stated that all he needed was a “mere suspicion.” Third, he argues that the peace officer didnot have reasonable grounds to suspect there was alcohol in his body at the time of the demand in any event. In this regard, he relies onthe detailed analysis for reasonable grounds in R v Nahorniak, 2010 SKCA 68, 359 Sask R 15 [Nahorniak]. As part of this argument, heindicates that there was no evidence of impairment. Only one officer testified as to whether he had an odour of liquor on his breath. The

other officer could be taken as saying the odour was coming from the obviously intoxicated passenger. The complaint, relayed by radiodispatch, was about his passenger and not about him. He sums up his arguments on this point by stating that in all the circumstances, thepeace officer could not have had reasonable grounds to suspect there was alcohol in his body at the time of the demand. [10] Mr. Candido’s arguments depend upon his case at trial having been presented differently.

As a result, his arguments arequestionable in this Court and indeed in the Court of Queen’s Bench, because there is no evidence to support them. He has raisedCharter arguments without notice having been given and without any factual foundation for them. He asks this Court to draw differentinferences as though we were considering the matter afresh. He has done his best to raise legal questions but—without a proper factualfoundation—there is no proper basis upon which this Court can intervene.

His argument in relation to the ASD device is not sustainableas authorities such as R v Donald, 2011 SKQB 408, 386 Sask R 26 indicate. He has also raised new arguments, which is contrary to suchauthorities as R v Perka, (SCC), [1984] 2 SCR 232. In the area of drinking and driving offences, there are manytechnical defences, but most of them depend for their success upon the evidence that is placed before the trier of fact. [11] Without Mr. Candido’s testimony, and with no other evidence, the error must be found in the way the evidence played out forthe Crown. Thus, in this case, Mr.

Candido’s only possible arguments on appeal are that the appeal judge erred by failing to find errorwith respect to the grounds for the demand or that the delay between the time of the stop and the attempt to take the sample wasinordinate. On the question of reasonable suspicion, case law from this Court indicates the relatively low threshold required: Butchko;Nahorniak; R v Yates, 2014 SKCA 54, 438 Sask R 78. On the question of inordinate delay, it appears Mr. Candido admitted in the Courtof Queen’s Bench that the inference could be drawn that the amount of time in question is 10 minutes. [12] Mr.

Candido, of course did not have to testify or present evidence. The burden was on the Crown throughout; but, given howthe evidence of the Crown was presented in examination and cross-examination, and given the nature of the charge, the lack of evidenceon the other side raises the issue appropriately identified by the appeal judge, which was whether he had a reasonable excuse not tocomply with the demand. On this point, there is no evidence. [13] In considering this appeal, we have reviewed the transcript to determine whether the trial judge failed in his obligation toprovide assistance to Mr.

Candido as a self-represented litigant (see R v McGibbon, (1988) (ON CA), 45 CCC (3d) 334(Ont CA)). While the trial judge might have been more expansive in responding to Mr. Candido’s questions about whether he shouldtestify, we are satisfied that the trial judge did, at the least, what was necessary in this case. In passing, it is noted that Mr. Candidoapplied for counsel in this Court, which was denied. We are satisfied that having counsel in this Court would not have assisted him. Thecritical issues depend on how the case was presented at trial. Mr.

Candido may have benefited from counsel at the trial level; but, in thecircumstances of this case, nothing turns on this observation. [14] In light of the prevailing jurisprudence and the facts as found by the trial judge, the appeal judge did not err when shedismissed his appeal. [15] The Court has taken the time to read Mr. Candido’s extensive written arguments with the transcript and the decision underappeal. For the reasons above indicated, however, his appeal must be dismissed in this Court.

We have granted him leave, but we dismisshis appeal. “Jackson J.A.” Jackson J.A.I concur. “Caldwell J.A.” Caldwell J.A.I concur. “Herauf J.A.” Herauf J.A.