17 PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION #1835715 HER MAJESTY THE QUEEN and Andre Detillieux T.B. Bekolay, P.C.J J. Kulyk, Q.C., CROWN PROSECUTORS, Prince Albert, SK. FOR THE CROWN. L. Balicki, Q.C., SANDERSON, BALICKI, POPESCUL LAW OFFICE, Prince Albert, SK. FOR THE DEFENCE. [1] Andre Detillieux stands charged that on or about the 11th day of November, 2001 at Paddockwood District in the Province of Saskatchewan did without reasonable excuse, fail to comply with a demand made to him by Cst. Rozario, a peace officer pursuant to Section 254(2)(a) of the Criminal Code, to provide forthwith a sample of his breath as in the opinion of Cst. Rozario was necessary to enable proper analysis of his breath to be made by means of an approved screening device contrary to Section 254(5) of the Criminal Code. [2] Cst. Rozario testified that he was on patrol in the Paddockwood District, Saskatchewan, on the date in question with “ride along”. He testified that the “ride along” had no duties and was simply with him. He chose not to disclose in his disclosure information the name of the “ride along” nor even that there was ride along. [3] He testified that at about 2:00 a.m., he noted the accused’s vehicle and decided to stop it to check out the driver’s license and registration. He testified that the accused’s vehicle swerved to the right-hand side of the highway more than necessary as he approached it. The accused stopped his vehicle once the officer engaged his emergency lights. The officer approached the driver’s side window. He noted the odour of alcohol coming from the accused’s vehicle. In response to question by the officer, the accused informed the officer that he had three beer the whole night. The last one having been consumed about two hours prior. The officer asked the accused to accompany him to the police vehicle where he placed him in the rear seat. He read to the accused the demand for sample of the accused’s breath for the road-side screening device. He turned on the instrument. He waited for the ready light to come on. He explained to the accused that he needed steady breath and that his lips had to be sealed over the mouthpiece. [4] The officer testified that when the accused began to blow he noted air escaping out of the side of the accused’s mouth. He ceased the test. ran another set of tests for the machine. The officer testified that when the ready light came on again, he explained that it was not proper sample; that the accused must take deep breath and blow until the officer told him to stop. note that the accused testified that he was only told once how to give proper sample although he did remember the officer telling him it was like blowing up balloon. For reasons which I will discuss later in this decision, where there is discrepancy between the testimony of the officer and that of the accused, I accept the evidence of the accused. [5] The officer said that he stopped the second test as the accused was blowing outside the mouthpiece again. The officer said he again explained to the accused what was required and that it was his last chance. waited for the ready light, then had the accused do the third try. He got an imbalance signal from the machine. The officer said he decided there was no change in how the accused was blowing. note that the officer made no mention of phoning another officer while administering the tests and informing that officer that he could not understand why things were not working as the accused appeared to be fully co-operative with him. accept the accused’s testimony that he did make such call and that indeed he did tell the other officer that he could not understand why he was not getting proper sample. [6] This was the officer’s first impaired case. He had only requested road-side test on one or two previous occasions. After the third test of the accused was not successfully completed, the officer read the accused the demand for sample of his breath for the breathalyser. He read the accused his Charter Rights. He began driving to the detachment in Prince Albert, some 30 miles away. [7] The officer testified that during this drive he spoke by telephone with his corporal who informed him that he should charge the accused with refusal on the alco-test. He did not inform the accused of this until he was back in the detachment in Prince Albert. He said the accused had confused look on his face when he told him there would be no breath test and he was being charged with refusal to provide breath sample. [8] The officer initially testified that he drove at speeds of 100 110 kilometres per hour on his way into town. After extensive cross-examination, he admitted that it was possible he had driven the 30 miles in about 15 minutes. He admitted to travelling at an excessive speed. The officer’s lack of cander in giving his testimony in this regard has raised doubts in my mind as to his forthrightness in respect to other important details in this matter. It is for this reason and as result of my observations of the accused while he was testifying that prefer the testimony of the accused over that of the officer where there is discrepancy. [9] The accused testified on his own behalf. As indicated, concluded that he gave his evidence in forthright manner and accept it without reservation. He testified that when the police vehicle approached his vehicle from the rear, its lights were very bright. He reached over and “flipped” the rear view mirror of his vehicle and pulled over to the right as he did not want this vehicle to continue to follow him. Then, the officer engaged the emergency lights on the police vehicle and he stopped. He said, and the officer admitted, that the officer was wearing white sunglasses placed on top of his head. This made the accused feel strange. He recalled being read “something”. He was told to blow into the machine. He blew. He testified that he did what the officer told him to do. He blew three times in all. During the blowing, he recalled the officer being on the telephone and saying “he seems to be fully co-operative. don’t know what’s going on.” He said, and fully accept his testimony, that he understood that he was being taken to Prince Albert to provide sample of his breath for breathalyser and he was happy to be doing that. [10] The accused testified that he was intimidated by the speed at which the officer drove back towards Prince Albert. He could not count the dotted lines in the highway because they were travelling so fast. There were three or four phone calls during that short trip. The last call came when they were at the pines just north of Prince Albert. After that the officer slowed down. He did not seem to be in rush anymore. He did not inform the accused of anything. Eventually at the detachment the accused said he was surprised when he was informed that he would be charged with refusal. The accused wrote on the Promise to Appeal served on him: “I did not refuse breathalyser”. [11] Although the accused had not told the young, inexperienced officer of why he thought he may have been having difficulty blowing sufficient sample for the officer, he did tell the court he is asthmatic. His asthma is worse when exposed to animal hair. The evening before he had helped his son skin deer which his son had just shot. He had to use his prescribed inhaler then and again at the party where he had had his two or three beer. do not conclude in any manner that this was indeed the reason why there was difficulties for the accused to blow into the machine. It is his attempt, think, to explain to himself why things did not work on the night in question. do not place any emphasis on this as being the reason for his failure to provide an adequate sample as more evidence would have to have been called in this regard for me to draw such conclusion. The Law and Analysis [12] The mental element of the offence of refusal created by Section 254(5) of the Criminal Code consists of intentional non-compliance. am satisfied on the evidence of the accused that he was not intentionally trying to avoid providing an adequate sample. He was attempting to supply sample as directed by the officer. The officer, in his conversation with another officer, during the tests said he could not understand what was going on. He could not understand why he was not getting proper sample. At minimum, I have a reasonable doubt that the officer did understand why he was not getting a proper sample. If the officer did not understand the reason why he was not getting an adequate sample, he could not provide the accused with adequate instructions for what he must do to provide an adequate sample. Hence, it is reasonably possible that the reason there was no adequate sample was that there was no adequate instruction as to how to provide the sample. [13] Therefore, I find the accused not guilty of the charge. DATED this 30th day of January, A.D., 2003, at the City of Prince Albert, in the Province of Saskatchewan. T.B. Bekolay, Provincial Court Judge
The accused was charged with failure to provide forthwith a breath sample contrary to Criminal Code s.254(5). HELD: The accused was found not guilty. The court accepted the evidence of the accused where there was a discrepancy between the testimony of the officer and the accused. The mental element of the offence of refusal consists of intentional non-compliance. The officer in his conversation with another officer said he could not understand why he was not getting a proper sample. There was a reasonable doubt that the officer did understand why he was not getting a proper sample and could not provide the accused with adequate instructions.