R. v. Lemay (R.N.), (2013) 563 A.R. 300 (PC)

• Judge: McLeod, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: June 04, 2013
• Citations: (2013), 563 A.R. 300 (PC);2013 ABPC 144

R. v. Lemay (R.N.) (2013), 563 A.R. 300 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JN.098

Her Majesty the Queen v. Raymond Noel Lemay (110576212P1; 2013 ABPC 144)

Indexed As: R. v. Lemay (R.N.)

Alberta Provincial Court

McLeod, P.C.J.

June 4, 2013.

Summary:

The accused was charged with impaired driving and failing to comply with a demand to provide breath samples into an approved screening device.

The Alberta Provincial Court acquitted the accused of both offences.

Criminal Law - Topic 1362

Offences against person and reputation - Motor vehicles - Impaired driving - Evidence and proof - Police received a complaint about a possible impaired driver at 12:42 a.m. - An officer located Lemay's truck and observed it make two very slow turns at intersections - The truck then turned into a parking lot and parked, straddling the lines for two parking spots with the nose of the truck extending into the driving lane - The officer noted that Lemay's speech was slow and slurred, his control of motion was "flaky", and he had trouble locating his driver's licence - One beer from a 12 pack in the box of Lemay's truck was missing - After arriving at the police station, the officer discerned the smell of alcohol on Lemay's breath - Lemay was charged with impaired driving - He testified that he had nothing to drink on the day in question, that he had trouble finding his driver's licence because he had not needed to pull it out of his wallet for a long time, that his unusual driving in the parking lot was because no one else was parked there, and a gel he had applied to a sore tooth might have caused numbness on his tongue and thus difficulties with his speech - The Alberta Provincial Court acquitted Lemay - While there might have been some imperfections in Lemay's driving and his other conduct, having regard to the very limited evidence directly relating to alleged alcohol consumption, it could not be safely said that Lemay's ability to drive was impaired by alcohol - That doubt arose on the officer's evidence alone, but Lemay's evidence also weakened the officer's evidence - See paragraphs 29 to 36.

Criminal Law - Topic 1386

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Excuse for refusal - [See Criminal Law - Topic 1386.3 ].

Criminal Law - Topic 1386.1

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Demand - A police officer asked Lemay to provide breath samples into an approved screening device (ASD) based on the following: (1) a gas station attendant contacted police about a possible impaired driver after smelling alcohol on Lemay and observing him drive away; (2) the officer located Lemay's vehicle and observed an "unusual" and "abnormal" driving and parking pattern (Lemay made two very slow turns at intersections, and parked by straddling the lines for two parking spots with the nose of his truck extending into the driving lane); (3) Lemay had slurred speech and seemed disoriented; (4) Lemay had difficulty and took some time locating his driver's licence; and (5) Lemay had a lack of control or "flaky" control of motion - The only direct evidence of alcohol consumption came in the form of hearsay from the gas station attendant - The Alberta Provincial Court held that it was not unreasonable for the officer to place some reliance on the hearsay information in forming his reasonable suspicion - The gas station attendant was not in a strict sense anonymous, there was a degree of detail to the tip, and it was to some extent corroborated by the officer's observations of Lemay and his truck - The conclusion that Lemay had alcohol in his body was reasonably available to the officer on the totality of the available facts - Accordingly, the ASD demand was lawful - See paragraphs 37 to 63.

Criminal Law - Topic 1386.3

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Refusal - Lemay was charged with failing to comply with a demand to provide breath samples into an approved screening device (ASD) after making seven unsuccessful attempts to provide a suitable sample - Lemay testified that he was unable to provide a suitable sample because he had earlier purchased and applied a "gel" to a sore tooth, which caused his gums to be frozen and numb - The next day, he went to the dentist and had the offending tooth pulled - The tube of gel (Maximum Strength Orajel) was marked as an exhibit at trial - The Alberta Provincial Court held that the Crown had clearly proven the actus reus of the offence: Lemay, despite seven attempts, did not comply with the officer's demand to provide a sample into the ASD - Respecting mens rea, the Crown did not have to show that Lemay wilfully intended to produce the failure - Lemay's motivation to comply or not comply was not relevant to mens rea - The question was whether Lemay had knowledge or awareness of the prohibited act - In other words, did Lemay have present knowledge that he was blowing in a way that had the effect of failing to comply with the demand? - Even if Lemay's explanation about the gel was accepted, his unsuccessful attempts to blow were volitional because they were done with knowledge and awareness of the prohibited act - Accordingly, the mens rea of the offence was also proven beyond a reasonable doubt - However, the Crown had not negated Lemay's evidence of a reasonable excuse - It was possible that the gel had some physical effect on his teeth and mouth - Lemay was acquitted - See paragraphs 81 to 129.

Criminal Law - Topic 1386.4

Offences against person and reputation - Motor vehicles - Impaired driving - Roadside screening test - Evidence and proof (incl. whether device approved, calibration records, etc.) - Lemay was charged with failing to comply with a demand to provide breath samples into an approved screening device (ASD) - The arresting officer testified that (1) he had a "400D" in his vehicle; (2) the device was an ASD under the Criminal Code; and (3) he was qualified to operate the "400D" and he had tested the device when he started his shift that day - One of the devices listed in the regulations as being approved for the purposes of s. 254 of the Criminal Code was an "Intoxilyzer 400D" - The Alberta Provincial Court held that the device used by the officer was an Intoxilyzer 400D and thus an approved device under the Criminal Code - The officer testified that he understood the "400D" to be an approved screening device pursuant to the regulation under the Criminal Code - On cross-examination, he was able to provide detail about the ASD being a machine that analyzed the content of alcohol in blood - There was no evidence that raised a reasonable doubt about the conclusion that an Intoxilyzer 400D had been used - See paragraphs 64 to 80.

Cases Noticed:

R. v. Stellato (T.) (1994), 168 N.R. 190; 72 O.A.C. 140 (S.C.C.), affing. (1993), 61 O.A.C. 217 (C.A.), refd to. [para. 30].

R. v. Andrews (M.A.) (1996), 178 A.R. 182; 110 W.A.C. 182; 1996 ABCA 23, refd to. [para. 30].

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352 (S.C.C.), refd to. [para. 34].

R. v. Martinovic (M.), [2012] A.R. Uned. 781; 2012 ABPC 306, appld. [para. 39].

R. v. Shepherd (C.) (2009), 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 44].

R. v. Zoravkocic, [1998] O.J. No. 2668 (C.A.), refd to. [para. 52].

R. v. Brady (C.S.), [2007] O.T.C. Uned. S42 (Sup. Ct.), refd to. [para. 52].

R. v. Defend, 2010 ONCJ 206, dist. [para. 52].

R. v. Vaillencourt, [2010] N.J. No. 418 (Prov. Ct.), dist. [para. 52].

R. v. Musurichan (1990), 107 A.R. 102 (C.A.), refd to. [para. 54].

R. v. White (M.J.), [2012] A.R. Uned. 744; 2012 ABPC 290, refd to. [para. 54].

R. v. Danychuk (W.) (2004), 184 O.A.C. 131 (C.A.), refd to. [para. 65].

R. v. Weare, [2005] O.J. No. 368 (Sup. Ct.), affd. [2005] O.J. No. 2411 (C.A.), refd to. [para. 65].

R. v. Latulippe (R.), [2005] O.T.C. 919 (Sup. Ct.), refd to. [para. 66].

R. v. Arsenault (D.J.) (2005), 295 N.B.R.(2d) 123; 766 A.P.R. 123; 2005 CarswellNB 716 (C.A.), refd to. [para. 71].

R. v. Gillis (C.), [2006] A.R. Uned. 709; 2006 ABPC 323, refd to. [para. 71].

R. v. Gundy (T.) (2008), 235 O.A.C. 236; 2008 ONCA 284, refd to. [para. 71].

R. v. Korn (R.P.), [2012] A.R. Uned. 145; 2012 ABPC 20, refd to. [para. 71].

R. v. Kingston (M.G.), [2010] A.R. Uned. 859; 2010 ABPC 367, refd to. [para. 71].

R. v. Gordon-Brietzke (D.A.J.) (2012), 547 A.R. 260; 2012 ABPC 221, refd to. [para. 71].

R. v. Moser (1992), 53 O.A.C. 145 (C.A.), refd to. [para. 81].

R. v. Lewko (G.L.) (2002), 227 Sask.R. 77; 287 W.A.C. 77; 2002 SKCA 121, refd to. [para. 82].

R. v. Dolphin (J.D.) (2004), 189 Man.R.(2d) 178; 2004 MBQB 252, refd to. [para. 82].

R. v. Sullivan, [2001] O.J. No. 2799 (C.J.), not folld. [para. 92].

R. v. Westerman, 2012 ONCJ 9, not folld. [para. 92].

R. v. Porter (J.), [2012] O.T.C. Uned. 3504; 2012 ONSC 3504, appld. [para. 93].

R. v. Butler (C.), [2013] O.T.C. Uned. 2403; 2013 ONSC 2403, refd to. [para. 94].

R. v. Buffalo (B.J.) (2002), 333 A.R. 178; 2003 ABQB 80, refd to. [para. 96].

R. v. Plante (J.D.) (2013), 559 A.R. 345; 2013 ABQB 222, appld. [para. 113].

Counsel:

Richelle Freiheit, for the Crown;

Alan Pearse, for the Defence.

This matter was heard before McLeod, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for decision at Calgary, Alberta, on June 4, 2013.