J. 2002 SKPC 138 ON THE INFORMATION OF S/CST L.C. SMITH PEACE OFFICER FOR THE CITY OF YORKTON IN THE PROVINCE OF SASKATCHEWAN -AND- JOSHUA SCHWARTZ ACCUSED JUDGMENT E.S. BOBOWSKI, PCJ DECEMBER 23, 2002 T. Wellsch for Crown K. Wasylyshen for Accused 1. The accused is charged that:On or about the 13th day of April A. D. 2002 at Yorkton in the Province of Saskatchewan did without reasonable excuse fail to comply with a demand made to him by a Peace Officer, to wit: Cpl. Ian McLean, pursuant to Section 254(3) of the Criminal Code of Canada requiring him to provide then or a soon thereafter as is practicable such samples of his breath as in the opinion of a qualified technician are necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood, contrary to Section 254(5) of the Criminal Code. 2. On April 13, 2002, Cpl. Ian McLean, 28 year member of the RCMP, while on duty, at 2:00 a.m. was alerted by the Citizens on Patrol Program personnel to be on the lookout for certain vehicle that was driving erratically. 3. As that particular vehicle passed Cpl. McLean on Broadway Avenue, he pulled in behind it and followed it for one or two blocks. When it turned north on Barber Avenue, Cpl. McLean turned on the emergency lights and the accused did not stop until Cpl. McLean pulled alongside him and honked his horn to get his attention, about block later. 4. The accused was the lone occupant and identified himself to Cpl.McLean as Joshua Schwartz and because of smell of liquor emanating from the vehicle, asked if the accused had anything to drink. The accused replied that he did not. 5. When Cpl. McLean stated he could smell liquor, the accused then replied that he'd had little bit of beer earlier. Cpl. McLean concluded that the accused had alcohol in his body and called for roadside screening device which was delivered by Cst. Chambers within five minutes and the accused blew fail without problem on one attempt at around 2:20 a.m. 6. As result of the fail, Cpl. McLean believed his ability to operate motor vehicle was impaired by alcohol and made breathalyser demand on the accused, gave him his rights to counsel including free legal aid and police warning. The accused understood what was told to him. 7. They arrived at the Yorkton Rural Detachment within five to seven minutes and Mr. Schwartz was taken directly to room with phone and list of local lawyers and given an opportunity to contact counsel. 8. Cpl. McLean observed through the window the accused use the phone for short period of time. The accused then stood there and after hanging up the phone, made no attempt to move towards the door. 9. Cpl. McLean then opened the door and asked if he had contacted his lawyer. The accused indicated that he didn't contact his lawyer, that his lawyer would not be able to come down. Cpl. McLean then told him that he wasn't compelled to have his lawyer attend the office and he could get his legal advice over the phone and that he could call his lawyer back. The accused then told Cpl. McLean that he got an answering machine. No call back was ever received from any lawyer at all times pertinent hereto. 10. Cpl. McLean then asked him if he wanted to contact someone else and advised him that there was list of lawyers as well as phone book. He then closed the door and watched the accused for approximately ten minutes. During the approximately ten minutes, the accused did not use the phone nor did he turn towards the phone list, just stood there looking at the window. 11. Cpl. McLean then opened the door and asked him if he wanted to contact lawyer. He said he did but his lawyer was not available. Cpl. McLean replied that he had two hour window presumption in breathalyser investigations and that it would be necessary for him to contact counsel and dialled the Legal Aid number and handed the phone to the accused and left the room. 12. When the accused hung up, Cpl. McLean opened the door and took the accused into the intoxilyzer room for breath tests. This was at 2:55 a.m. 13. The accused indicated to Cpl. McLean that he was not satisfied with the advice he received from the Legal Aid lawyer but he did not ask Cpl. McLean to call another lawyer. 14. Cpl. McLean is qualified to obtain readings on the Intoxilyzer, an approved instrument in the Criminal Code. He has had considerable experience with respect to obtaining breath samples doing over 700 tests on the Breathalyser and 200 tests on the Intoxilyzer. He has also blown into both the roadside screening device that was used and the Intoxilyzer and indicated that it is more difficult to blow into the roadside screening device, that is, the effort required to blow into the Intoxilyzer is less. 15. While Cpl. McLean was preparing the Intoxilyzer by entering Mr. Schwartz's statistics, the accused advised Cpl. McLean that he was subject to anxiety attacks. Cpl. McLean made conversation with the accused to try and keep him relaxed and instructed him to blow long, hard and steady until the tone stopped. 16. The accused then began to gasp and hyperventilate. He was moving back and his chest was rising and falling and his head was moving. Cpl. McLean told him to calm down, to take deep breaths, to get control and relax. He did so and asked him to blow again. As Cpl. McLean held the mouthpiece up to him, the accused started to pant again. He did this the third time after which time Cpl. McLean had to reenter his statistics into the Intoxilyzer to get sample. The deficient sample was given at 3:07 a.m. 17. Cpl. McLean once again told him to relax and stay calm. As the accused leaned forward to give the sample, he started to hyperventilate again and contaminated the mouthpiece causing an ambient failure. The Intoxilyzer was prepared again but Mr. Schwartz hyperventilated again and Cpl. McLean told Mr. Schwartz that he believed he was faking. 18. Upon this accusation, the accused started to argue with Cpl. McLean and immediately stopped hyperventilating, i.,e, he was breathing normally. Cst. McLean told him to stay that mad so sample could be taken and advised him of the consequences for failing to blow. 19. Some conversation was then exchanged about whether the accused was faking it and Cpl. McLean pointed out to him that he didn't seem to be sweating nor were his pupils moving nor did he show any other signs of anxiety outlined in First Aid books, but that he only seemed to not be able to breath when it was time to obtain sample from him. 20. The Intoxilyzer was prepared again, and as he placed his mouth over the mouthpiece, Cpl. McLean saw that the accused sealed the mouthpiece with the tip of his tongue. 21. Cpl. McLean then advised him that he could not block the mouthpiece with his tongue, that free-flowing breath sample was required. The accused moved forward again and blew but there wasn't enough air entering the Intoxilyzer to start the tone because he didn't seal his mouth off and air escaped before entering the mouthpiece. There was no sound of air going through the tube, nor were there obstructions in any of the mouthpieces used. 22. Cpl McLean advised the accused that he had to seal off his mouth but for at least two times the accused failed to do so. It was at this time (3:16 A.M.) that Cpl. McLean became satisfied that the accused was not going to provide suitable sample and charged him accordingly, 23. At the outset of the accused's testimony he indicated that he might be little choppy every once in while because he was anxious right now and if he had to stop for few seconds, he hoped not to annoy the court. This statement was offered after the Court asked if he wanted to speak to his counsel privately for minute or two. The accused replied that his counsel knew what he was going to say and defence counsel did not object. 24. It is rare when witness or an accused would offer an opening statement. However, with the statement in mind, did not detect in his giving of evidence any indications of anxiety, such as described by Cpl. McLean and that he appeared to be in control of his breathing. 25. The accused testified that during the day of Friday, April 12, 2002, he was pretty hung over and at lunchtime he went to friend's house for few beer, then went back to bed for while, then got up and went to Holly's night club at about 12:15 or 12:30 a.m. of Saturday morning, April 13. When asked by defence counsel, how many beer he consumed, the accused replied"I would say three beer, yes". 26. At Holly's, he indicated: "I would have had two or three beer, probably three beer as was there until probably quarter after 2:00". 27 When Cpl. McLean stopped him and told him that he smelled liquor on him, the accused replied that he had quite large amount of alcohol spilled on him that night at the bar from drunk friends and whatnot. 28. The accused admitted replying no to Cpl. McLean when asked whether he drank anything but after being told by Cpl. McLean that he could smell alcohol, the accused replied yes, did have few drinks of beer earlier on. 29. The accused further admitted that he had no difficulty blowing into the roadside test. 30. When at the detachment, the accused testified that his first phone call was to Ron Bell, lawyer who was not there. He made second call to defence counsel, Mr. Wasylyshen and got an answering machine. 31. After advising Cpl. McLean that he could not get hold of his lawyer, Cpl. McLean put him back into the room. The accused stated he was sitting there for approximately 10 minutes doing nothing waiting for call back from Mr. Wasylyshen because the answering machine said he would call back. He did not communicate his reason for waiting to Cpl McLean. 32. Cpl. McLean then came into the room and dialled the Legal Aid number for him. The accused stated that earlier on when Cpl McLean mentioned about Legal Aid lawyer, he expressed to Cpl. McLean that he did not want to get one of them because he didn't think he would get the advice that he needed. 33. He stated he was on the phone to Legal Aid for maybe 30 seconds, it wasn't five minutes and was told not to say anything. 34. Then he was taken to the breathalyser room and that's where he couldn't breathe normally. 35. He testified that prior to April 13, 2002, he had two prior anxiety attacks. Firstly, December 22, 2001 at Kamsack, Saskatchewan and secondly, in February 2002, at Yorkton. 36. The accused admitted that he did stop hyperventilating when he was being shouted at by Cpl. McLean. He stated that the attacks are erratic in that his heart could be pounding one minute and the next minute he can be sitting back and it will be okay. That he was trying to control his attacks while he was in the breathalyser room. 37. He admitted that lowering his head to his knees helped "for the time being, until it seemed you know, it's going to seem until, yeah, until it was ready to go again. And then it just automatically, bang, it kicked in again". 38. When asked whether he put his tongue over the mouthpiece, his reply was: "No, maybe for split second, but other than that, no, it wasn't on there, while was trying to blow". 39. When asked by his counsel and to return to his testimony about phone calls to lawyers, he was asked; "Did you you talked about phoning two lawyers, did you phone,can you go back and and recall, is there anything you've missed in terms of Without allowing counsel to complete the question, the accused replied; "Yes, that's right, I'm sorry, did phone third at the same time phoned Dave Rusnak at the same time as did the first and got no answer". 40. The accused further testified that he did not ask Cpl. McLean to call another lawyer after expressing his dissatisfaction about Legal Aid because he was on the way to the breathalyser room and Cpl. McLean indicated to him that the time was up. 41. When referred back to the time when he was in the room for ten minutes the accused testified that; "I was sitting there for the ten minutes after after was in the room for the first time, that's when was waiting for call from Mr. Wasylyshen". Q. After you left message on the machine? Q. And you told this to the Cpl.? A. Yes, told him that I'd left message on the answering 42. When asked by the court what the recording was on the answering machine, the accused replied; "The answering machine said, believe, I'm not in right now, but will call you back as soon as possible". 43. In cross-examination, when asked what triggers these anxiety attacks, he replied that driving on highway, hard night of drinking the night before and situations that don't know how to handle. He then referred to the situation right now (while testifying) that it's pretty nerve racking. must comment that at the time did not notice any outward signs of anxiety on the accused and that he appeared to be quite controlled and calm giving his evidence. 44. When asked to describe the attacks, he stated that it usually starts off with just slight pressure in the chest and then increases to where he breathes pretty rapidly. He gets sweaty and then his vision gets blurry and he gets dizzy. 45. In further cross-examination, the accused stated that when he was in the room waiting for the ten minutes, he did nothing but wait for Mr. Wasylyshen's return call. He stated that most of the other lawyers on the wall were Real Estate lawyers who would be absolutely no use to him in this situation but he did not communicate this to Cpl. McLean. He admitted that he did not tell Cpl. McLean that he was waiting for phone call back from Mr. Wasylyshen and that he told Cpl. McLean that he could not get hold of lawyer before Cpl. McLean suggested Legal Aid. 46. He further admitted in cross-examination that he didn't get anxious until presented with the mouthpiece to blow and that after relaxing his breathing became normal. 47. On the third time, he stated that he blew as hard and long as he could and did not block the mouthpiece with his tongue. That although he was anxious, he had no difficulty blowing as hard as he could. That he had sweaty palms but displayed no other signs of sweating or cold sweats. He further admitted that he could get sweaty palms without having an anxiety attack and that on this night he did not have major anxiety attack whereby he had to seek medical attention. 48. The defence then called Dr. Bashara Issa, licensed medical doctor and physician licensed to practice medicine in the Province of Saskatchewan, who currently had the accused as patient. 49. He has had no experience of blowing into an Intoxilyzer but based on his known medical history of the accused, Dr. Issa stated that if an individual is having an anxiety attack, his or her breathing becomes extremely short and rapid and therefore deep lung sample will not be obtained. These attacks can be triggered by stress, alcohol and/or drugs. 50. He stated that he was not treating Mr. Schwartz for anxiety attacks but advising him on how to manage them. He surmised that Mr. Schwartz's anxiety disorders were precipitated by alcohol and other factors and was advised to try and eliminate as much as possible the known triggering factors. 51. In cross-examination, the Dr. agreed that if one's breathing is normal then deep lung breath could be obtained but when shallow and rapid, it could not. 52. Counsel for the accused then made an application under Section 10(b) of the Charter without calling further evidence and both him and Crown counsel decided to apply the evidence already heard for the purposes of the Charter issue. The onus of proof is on the accused to prove on balance of probability that there was Charter violation. 53. Defence counsel argues that the accused was not given reasonable opportunity to contact counsel of his choice as was his right under Section 10(b) of the Charter. That for the police to insist that the accused blow into an intoxilyzer 35 minutes into the two hour window of opportunity is unreasonable and constitutes an infringement of his rights. 54. The law with respect to Section 10(b) rights was canvassed by the New Brunswick Court of Appeal in R. v. Dunnett, (1991), 1990 CanLII 2346 (NB CA), 62 C.C.C. (3d) 14 as cited by defence counsel. Mr. Justice Hoyt cites four factors arising from recent Supreme Court of Canada decisions concerning detained or arrested person's right to lawyer. 1) When request for lawyer is made, unless there is an urgency because of the time limit imposed either by the Code or the circumstances of the situation, the police must permit the accused reasonable opportunity to consult counsel. Lamer, J., as he then was in R. v. Tremblay (1987), 37 CCC (3d) 565 said at pages 567 and 568; "In the case the accused was promptly informed of his right to counsel, asked for lawyer, was given telephone and placed call to his wife. It appears, though the evidence on this point is not all that clear, that she was to call lawyer for him. Right after that call, the police officers requested that the accused give his first sample of breath, request he complied with. When that request was made, there remained ample time to comply with the requirements set down in the Criminal Code as regards the time limits for the taking of breath samples; there was thus no urgency to proceed, and to do so right after his call was what, in my opinion, triggered the violation of this accused's rights. From the moment the accused was intercepted on the road to the moment he was asked to give the first sample of his breath his behaviour was violent, vulgar, and obnoxious. reading of the record and the findings of fact below satisfy me that, while the police, following the request for counsel, did not, as they must, afford the accused reasonable opportunity to contact lawyer through his wife before calling upon him to give breath sample, their haste in the matter was provoked by the accused's behaviour. Indeed, throughout this encounter with the police, the accused, as was found by the trial judge as matter of fact, "was deliberately attempting to make the investigation difficult" and "was actively obstructing it". As testified to by police officer, it appeared to the police that the accused was stalling when he was given the telephone to contact lawyer. Generally speaking, if detainee is not being reasonably diligent in the exercise of his rights, the correlative duties set out in this court's decision in R. v. Manninen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385, 41 D.L.R. (4th) 301, [1987] S.C.R. 1233, imposed on the police in situation where detainee has requested the assistance of counsel are suspended and are not bar to their continuing their investigation and calling upon him to give sample of his breath. While this is not the case here, the accused's conduct was, to some degree, misleading in that regard. While the police hastiness does not change the fact that the detainee's right to counsel was violated, the reasons therefor make it understandable and are relevant when one addresses the s. 24(2) issue. In my view, the admission of the evidence obtained would not, having regard to all of the circumstances, bring the administration of justice into 2) The accused must be diligent in attempting to obtain counsel once he indicates this wish. 3) After R. v. Brydges (1990), 53 (CCC)(3d) 330, (S.C.C.) the police must, in some circumstances, assist the person in his efforts to obtain lawyer. 4) An accused may waive his right to counsel. 55. Regarding urgency at Page 23, Mr. Justice Hoyt of the New Brunswick Court of Appeal states; "I do not say that in all circumstances the police would have to wait until the two hour period is about to expire. In this case, however, there remained sufficient time in the circumstances surrounding the detention to afford Mr. Dunnett further opportunity to attempt to consult counsel. Although some of the Supreme Court of Canada decisions involve circumstances where there was no urgency due to some time constraint, the tenor of those decisions is that, if the person is diligent in asserting his right and the circumstances permit, he must be permitted to continue his efforts. Once it is apparent that further efforts will be futile or when time-limit is approaching, the person can no longer refuse and invoke his rights under S. 10(b) of the Charter; During argument, counsel pressed us to indicate cut-off time, say one hour or one hour and half, after which person would have to give breath sample or be faced with refusal charge. That, of course, is impossible as each case depends on its own unique circumstances". 56. Regarding the case at bar, granted that the accused was charged with refusal 51 minutes after the demand for the breath tests, I find that even though Mr. Schwartz was diligent in attempting to reach counsel, he was not diligent in pursuing his rights after he unsuccessfully tried to contact a lawyer three times. No one was at Ron Bell's number. An answering service was reached on his second call to Mr. Wasylyshen and no one answered at David Rusnak's number. That does not surprise me as it was 2:30 a.m. find that he did not communicate the contents of the message on the answering machine to Cpl. McLean thus not allowing Cpl. McLean to consider longer waiting period than the 10 minutes he did allow. In any event, find that when the message on the answering machine at 2:30 a.m. is that the party is not here and would call back as soon as possible, that message is not an indication that it's reasonable to assume that the call back would be made in the next 10 or 15 minutes or even one hour. 57. When Cst. McLean realized that Mr. Schwartz was not able to reach his lawyer, he then proceeded to comply with the ruling in v. Brydges, that is, he got him the services of Legal Aid lawyer. It is not police officer's obligation to go further if the accused does not appreciate the advice of Legal Aid counsel. 58 This case is basically similar to the Alberta Court of Appeal decision of R. Topp (Quicklaw) cited by the Crown which although not binding is persuasive wherein Mr. Justice Cote states the accused must not conceal his reasons for refusing to give breath samples. The case has to be decided on the basis of what the police knew or could readily surmise, not the hidden facts which the accused had not disclosed to the police. He states further that since the administration of justice is prejudiced by delay then after initial attempts to reach the chosen lawyer at home failed, the police need not delay further if it is unlikely to do the accused any good. Accordingly, the Charter application is dismissed. 59. Besides the Charter argument, defence further argues that the accused had a reasonable excuse to refuse the intoxilyzer based on his medical condition of anxiety attacks at the time of blowing. 60. adopt the statement of law enunciated by Richard J. of the Yukon Territory Supreme Court in R. v. Pederson dated March 25, 1993 where he states at paragraphs and 6; "In my respectful view the trial judge, in his oral reasons, correctly stated the law as to when medical condition constitutes "reasonable excuse" in the context of s.254(5): "The law is clear that if person cannot provide sample of this kind by reason of medical condition that is reasonable excuse. Now, when say he cannot provide sample, this does not mean that it is absolutely and utterly impossible for him to provide sample. It means that the medical condition must make it either extremely difficult or extremely painful\\or uncomfortable or involve some risk to the accused's health. So it is not an absolute, but it must be condition which, as say, makes compliance extremely difficult. It is simply not the case that any respiratory difficulty which makes it more difficult for the accused than for the average person involves reasonable excuse." This statement of the law is in accordance with R. v. Nadeau (1974) 1974 CanLII 1538 (NB CA), 19 C.C.C. (2d) 199 (N.B.S.C., App. Div.) and v. Phinney (1979) 1979 CanLII 2928 (NS CA), 49 C.C.C. (2d) 81 (N.S.S.C. App. Div.). And the onus is on the accused person to satisfy the trial judge that he had reasonable excuse. ee R. v. McDougall (1975) 15 N.B.R. (2D) 279 (N.B.C.A.) and v. Phinney, supra. 61. On the evidence before me, I cannot conclude that the accused's respiratory problems made it impossible for him to provide a sample. In fact, Dr. Issa stated, he could do so when his breathing returned to normal as did the accused. 62. Further, an accused, who is aware of what triggers his anxiety attacks, for example, a hard night of drinking the night before and continues to drink alcohol and operate a motor vehicle cannot be later heard to say and hope to avoid conviction, that the refusal was a result of a known medical condition. He should not drink and drive. 63. Furthermore, the accused did provide an adequate supply of air in the roadside screening device about one hour before. It was only when he was asked to blow into the mouthpiece of the Intoxilyzer each time that these supposed anxiety attacks caused him difficulty in blowing. I do not believe his evidence on this point. 64. He suggests further that he blew long and hard on the last attempt indicating that he had sufficient air to do so. Yet, nothing registered on the intoxilyzer. I find that the intoxilyzer did not register because he was not blowing properly into the mouthpiece. 65. Accordingly, find the accused guilty as charged. DATED this 23rd day of December A. D. 2002 at the City of Yorkton in the Province of Saskatchewan. E. S. Bobowski, PCJ
The accused was charged with failure to comply with a demand to provide a breath sample contrary to s.254(5) of the Criminal Code. He argued that he had a reasonable excuse to refuse based on his medical condition of anxiety attacks at the time of blowing. HELD: 1)This case is similar to the Alberta Court of Appeal decision in Topp which stated the accused must not conceal his reasons for refusing to give breath samples. The case has to be decided on the basis of what the police knew or could readily surmise, not on the hidden facts, which the accused had not disclosed. The New Brunswick case of R. v. Dunnett canvassed the law with respect to s.10(b) rights and cited four factors arising from recent SCC decisions concerning detained or arrested person's right to a lawyer. Granted the accused was charged with refusal 51 minutes after the demand for the breath tests, even though he was diligent in attempting to reach counsel, he was not diligent in pursuing his rights after he unsuccessfully tried to contact a lawyer three times. It is not a police officer's obligation to go further if the accused does not appreciate the advice of Legal Aid counsel. 2)His evidence was not believed as to the anxiety attacks. The intoxilyzer did not register because he was not breathing properly into the mouthpiece. He provided an adequate supply of air in the roadside screening device about an hour prior. The statement of law enunciated in Pederson out of the Yukon Territory Supreme Court was adopted. It could not be concluded on the evidence that his respiratory problems made it impossible to provide a sample. The doctor stated he could do so when his breathing returned to normal as did the accused. Further an accused who is aware of what triggers his anxiety attacks, for example a hard night of drinking the night before, and continues to drink alcohol and operate a motor vehicle cannot be later heard to say and hope to avoid conviction that the refusal was a result of a known medical condition. He should not drink and drive.