THE PROVINCIAL COURT OF NOVA SCOTIA
(Citation: R. v. Coyle, 2003NSPC035)
Date: July 15, 2003
Case No. 1249400, 1256891
Registry: Digby
BETWEEN:
HER MAJESTY THE QUEEN
v.
CATHERINE COYLE
______________________________________
D E C I S I O N
_____________________________________________________________
BEFORE: The Honourable Judge Jean-Louis Batiot, J.P.C.
DATE(S) HEARD: May 15th and May 20th, 2003
PLACE HEARD: Digby, Nova Scotia
CHARGE(S): On or about the 10th day of November 2002 at or near Smith’s Cove in the county of Digby, Province of Nova Scotia, did, without reasonable excuse, fail to comply with a demand made to her by a Peace Officer, to provide samples of her breath suitable to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in her blood, contrary to Section 254(5) of the Criminal Code.
And further;
On or about the 10th day of November, 2002 at, or near Smith’s Cove, in
the County of Digby, Province of Nova Scotia, did unlawfully drive a
motor vehicle while her license was suspended, contrary to Section 287(2)
of the Motor Vehicle Act, R.S.N.S. 1989, c-293.
COUNSEL: R. Michie, for the Crown
D. MacLeod, for the Defence
[1] This matter proceeded ex-parte when the Defendant failed to show, and did not inform her lawyer or the Court of any impediment to do so.
[2] Ms. Coyle faces the charges of failure to provide a breath sample contrary to s. 254(5) of the Criminal Code, R.S.C. 1985, C-46, and driving while her licence was suspended, contrary to s. 287(2) of the Motor Vehicle Act, R.S. 1989, c. 293.
[3] The main issue in this case of refusal is whether the Crown has adduced sufficient evidence to establish the rebuttable presumption that the police officer is a qualified technician, within the meaning of the Criminal Code (s. 254(1)). Additionally, the defence argues there was a change of mind, rather than a refusal. Two other issues, whether the test were administered as soon thereafter as is practicable (s. 254(3)), and whether further advice with respect to rights to counsel ought to have been provided upon the change of venue for the tests, were alluded to, but abandoned.
FACTS
[4] Constables Walton and Smith, of the RCMP, were on patrol at 01:25 a.m. in Digby, Digby Co, N.S., on November 10th, 2002. They observed a person, walking unsteadily on Water Street, away from a well known club, to a motor vehicle registered in Newfoundland. She was clearly intoxicated. With her keys, she opened the driver’s door and sat behind the wheel. Constable Walton intervened and advised her not to drive, not to operate the vehicle in any way, as she was in no condition to do so. She left, saying a friend would drive her. Shortly thereafter, the officers observed and stopped the same vehicle, driven by someone they knew, who was not under the influence of alcohol. The passenger, the same person seen earlier, identified herself as Tina Maher. It turned out a few minutes later that the name was fictitious.
[5] At 01:50 hours on highway 101 near exit 26 by Smith’s Cove in the same County, they saw the vehicle again, driving easterly towards Annapolis Royal. The vehicle was weaving all over the road and the accused was alone, driving. The officers intercepted her; she quickly brought her vehicle to a stop on the shoulder of the highway; then its back up lights lit up and it backed up some 20 feet. The police car was behind it; Constable Walton, the driver, had to reverse to prevent a collision.
[6] Constable Smith was out, yelling at the driver to stop. The brake lights came on; the accused’s vehicle stopped; Ms. Maher then, now Ms. Coyle, was identified through the proper identification documents. Constable Smith arrested her and recited her Right to counsel, a breathalyser demand and a police caution. In the meantime the tow truck had been called; it arrived at 02:10 hours. The officers took the accused back to the RCMP Detachment at Digby; they reached it at 02:20 hours.
[7] Constable Walton testified that he was a qualified technician with respect to administering breathalyser tests. He was going to use that night a 900A Borkenstein Model and has administered some 200 tests since 1996, the year he received his certificate of qualification.
[8] He went to the room to prepare the instrument. Their main instrument, the 900A Borkenstein was out for servicing; their spare instrument, a 900 Borkenstein, was, by mistake, unplugged. It had to warm up. Constable Walton plugged it and turned it on; after a little while he found it was not ready to be used and decided to take the accused to the nearest Detachment of the RCMP, in Bridgetown. They arrived there at 02:50 hours, and he prepared the instrument by going through its operational check sheet. He explained to the accused the procedure. He offered the accused to blow in the instrument; she tried but nothing happened, even though the instrument was up to temperature, and in good working order. He invited Ms. Coyle, after explaining again the procedure and the possibility of a refusal charge to, once again, provide a sample of her breath, to no avail: there was no transfer of air, as nothing was being introduced in the instrument. This occurred seven times. The officer checked the mouth piece: it was in good working order and unobstructed. The accused offered to now blow. He charged her with failure to comply and providing samples in accordance with the demand; the accused was returned by 4:30 to the cells in Digby; she spent the night there and was released the next day on an undertaking and $500.00 cash bail.
[9] Constable Smith, Constable Walton’s partner that night, indicated he read from his card the Rights to Counsel, the Breathalyzer Demand and the Police Caution. The accused did not wish to contact a lawyer. He then accompanied the accused and Constable Walton to Digby, then to Bridgetown. There he stayed in the doorway and observed the accused’s attempts to provide four samples of her breath. Constable Smith is not a qualified technician but has assisted in many of these tests. He testifies that he could not hear any air being introduced in the instrument, nor could he see its plunger ( on the instrument) move, as it normally does when air is introduced. Constable Walton explained again the procedure. At the end, the accused simply stated: okay, okay, I’ll blow, I’ll blow, but Constable Walton decided to charge her with the failure.
[10] We also have the evidence of Mr. Robinson, the driver observed by the officers. He was walking his dog when a lady ran to him and asked him to drive her in her car. Apparently she wanted to be driven to Annapolis Royal and she would give him money for a taxi to come back to his home. In fact, before leaving Digby, she asked him to stop, let Mr. Robinson out and resumed the driving.
[11] Just a few preliminary observations:
1. Mr. Macleod has had to act without the presence of his client in this trial, as she failed to show up or provide an explanation for her absence. He appeared well acquainted with this file.
2. Ms Coyle was identified properly through her documentation. She failed to provide further instructions to her solicitor through no fault of his own. His motion to withdraw, made at the beginning of the trial, was simply too late in the circumstances.
3. Ms Coyle was extremely inebriated, yet appeared to understand the advice and information the officers provided to her and her predicament.
4. The officers could have charged her with care or control when they first observed her; they preferred to warn her.
5. The evidence could have supported a charge of impaired driving. She was not so charged.
6. The accused had her mind set on driving, and she was intent on prevailing against the officers’ better advice, of not doing so.
7. Her statement to the officers that she will blow now is consistent, standing alone, with a change of mind.
8. The onus is always on the Crown to prove its case beyond a reasonable doubt.
9. There is no issue of establishing a lawful excuse on the facts of this case.
QUALIFIED TECHNICIAN
[12] S. 254. (1) defines “qualified technician” as a person designated by the Attorney General as being qualified to operate an approved instrument.
[13] Constable Walton testified that he passed the evidentiary breath test technician course which he attended from the 27th of February to the 8th of March 1996 in the basic theory and operation of the breathalyzer and satisfactorily completed the requirement specified in the course training standards. He also said that he has conducted some two hundred tests since then. He did not say that he was Gazetted or that he was appointed as a qualified technician by the Attorney General of this Province.
[14] The Defence argues that, in accordance with R. v. LeBlanc (1972), 7 CCC (2d) 525 (NSSC Ap. Div.) this evidence does not raise a rebuttable presumption of due appointment, as a Judge cannot take judicial notice of such appointment and sufficient evidence must be led. In that case, the breathalyser test has been administered within the prescribed period and the administering officer had testified as to his qualification, the operation of the instrument and the results obtained. An interpretation of the analysis made by that instrument were crucial to the Crown’s case and only a qualified technician or an expert may do so. The Court of Appeal held that the representations made by the officer - he had been appointed by the Attorney General and it had been Gazetted - were sufficient to show that he was a “qualified breathalyser operator”, as opposed to “qualified technician”, both referring to the same designation: the Crown had established a rebuttable presumption.
[15] The Defence also refers to R. v. Zinck 2003 NSPC 6, a decision of Judge Williams of this court, where the main issue was the official qualification of the officer who had administered the breathalyser in a case where it was determined that the accused had both blown and sucked back simultaneously into the instrument. Judge Williams found that the qualification of the technician was insufficient as it was mainly due to the response to a leading question – had he been appointed by the Attorney General as a qualified technician – without any reference to Gazetting, and thus he did not accept his evidence describing the actions of the accused with respect to the refusal.
[16] The Court of Appeal referred in its decision to Belzberg v. The Queen (1962), 131 CCC 281 at p. 286, where the Supreme Court of Canada, dealing with the official status of a Chief Building Inspector as it related to a charge of bribing an official, said:
.... Walker's uncontradicted evidence that he was both the Chief Building Inspector and a "municipal official", coupled with the description of his official activities contained in his own evidence and in that of the appellant, constitutes prima facie evidence that he was a person who held office under the City of Calgary and was a "municipal official" within the meaning of s. 104(3). It has been held on more than one occasion that evidence of a person acting in an official capacity raises a rebuttable presumption of his due appointment to that office.
[17] The Court of Appeal, in reaching its conclusion, does refer to Phipson on Evidence, 10thed. (1963), para. 326, p. 150, with approval, at p. 531-532:
The admission of such evidence rests partly on the principle that the law presumes in favour of the regularity of acts and against misconduct and bad faith; and partly on the consideration that the invalidity of an act or appointment is more liable to detection when of a public, than when of a private, nature. It is inherently improbable that a person would assume to act unless in fact he held the office or appointment.
[18] In the case at bar, Constable Walton did not describe his designation as a technician, or it being Gazetted, yet his evidence demonstrates that he is an RCMP Officer who has acted that night, and on some 200 other occasions, as a qualified technician, over the last seven years or so. This is uncontradicted. Constable Smith stated as well that Constable Walton was a qualified technician and was the designated Breathalyzer technician on the night in question. Constable Walton has described his activities, the tasks he performs, his actions toward the Accused, and, incidently, the patience he has shown her, in trying to get a sample of her breath, over a period of time. At no time was his qualification questioned by the accused that night; indeed, she appeared to have complied with his request, except for the provision of a sample of breath and his instructions to her to not drive.
[19] It is current practice to accept, as proof, the representations of a police officer with respect to his or her appointment, be it Municipal or RCMP, without the document appointing him or her. A police officer need not be a qualified technician, a designation which may not be judicially noticed. But there is no reason why a designation may not be presumed, on sufficient evidence. In the case at bar, on the evidence presented and already described, and in light of Leblanc and Belzberg, supra, I think the Crown has established a prima facie case that Constable Walton was a qualified technician, within the meaning of the Criminal Code. There being no evidence to rebut this presumption, this finding is made beyond a reasonable doubt.
AS SOON AS PRACTICABLE
[20] Constable Walton, from his experience with the Borkenstein Breathalyser was of the opinion that the first one, in Digby, was not ready to accept samples after nearly half an hour. He had an accused who, given her state of inebriety and her unwillingness to obey simple instructions not to drive, would likely not have be released anyway, decided to take her then directly to the very next operating breathalyser instrument. It took 35 minutes to get there (at most, since, by the clock, it appeared to be thirty minutes). They spent time preparing and explaining the procedure to her, repeatedly; seven attempts, which also took time, were made to obtain a sample. The offer to Ms. Coyle to provide a sample of her breath as requested was made as soon as practicable given the circumstances of that night.
REFUSAL OR CHANGE OF MIND
[21] It must be recalled that the Crown does not have to prove that a breathalyser instrument is
in working order (R. v. Levesque (1985), 22 CCC (3d) 559 (BCCA)), nor the type of training or experience the Peace Officer may have (R. v. Fillier (1995) 15 MVR (3d) 272 (Nfld. S.C.) in case of a roadside screening device), and, by extension, of a breathalyser instrument, unless there was evidence that clearly involved the working of the instrument itself.
[22] The description of the Officers of the repeated unsuccessful attempts to provide a sample of breath show that Ms. Coyle simply did not provide such a sample. The issue of a qualified technician determining the suitability of the sample in accordance with the Criminal Code did not arise: it was not a matter of analyzing what was provided and interpreting the result in light of one’s special knowledge of the instrument, or training. Nothing was provided. It was simply observing that no air passed through an unobstructed mouth piece, a simple clear plastic tube. It indicates that the accused was not blowing, but only appeared to blow, into the instrument. The actus reus is made out.
[23] The mens rea happens contemporaneously, when the accused indicated that she would now blow, upon further request. That offer was simply too late. The intention not to provide the sample is confirmed. She has had already ample time to consider the demand and whether to comply with it or not. She was going through the motion of appearing to comply with it but never did the very thing that was requested of her: provide a sample of breath. It is only after seven failures to provide such samples, that she offered to do that which she had failed to perform. Both the refusal and the subsequent change of heart [did not] occur almost simultaneous, to paraphrase our Court of Appeal, in R. v. Bowman (1978), 40 CCC (2d) 525 (NSSC Ap. Div.) (Quicklaw, pg. 4). These were two distinct events, and I find the offence had been completed before her final offer. (see also R. v. Wagstaff, [1988] NSJ 526).
FURTHER RIGHTS TO COUNSEL
[24] Ms. Coyle was informed of her right to counsel at the roadside. This was not repeated to her when they moved from Digby to Bridgetown. The demand was still the same and there was no change in the jeopardy in which she had found herself; thus R. v. Black [1989] 2 SCR 138 is not applicable to this case. Further there is no requirement, since the jeopardy was the same, to further advise her upon refusal since the demand had informed her of this possible charge. At any rate this Charter issue was not pursued at trial.
[25] Given her state of inebriety, the consequences of likely failing the test or of refusing were the same. She chose not to avail herself of the breathalyser test which - a very remote possibility - may have exonerated her. The offence contrary to s. 287(2) of the Motor Vehicle Act is made out that her driver’s license was suspended on the 14th day of August A.D., 2002 under the provisions of s. 279(a) of the Motor Vehicle Act (administrative license suspension - MVA).
[26] The accused is found guilty of both charges.
____________________________________
Jean-Louis Batiot, J.P.C.
July 15th, 2003
Annapolis Royal, Nova Scotia