R. v. Lewko, (2002) 227 Sask.R. 77 (CA)

• Jurisdiction: Saskatchewan
• Judge: Bayda, C.J.S., Lane and Jackson, JJ.A.
• Neutral Citation: 2002 SKCA 121
• Court: Court of Appeal (Saskatchewan)
• Date: 31 October 2002
• Citation: (2002), 227 Sask.R. 77 (CA),2002 SKCA 121,[2003] 2 WWR 197,169 CCC (3d) 359,7 CR (6th) 71,[2002] CarswellSask 665,[2002] SJ No 622 (QL),227 Sask R 77,287 WAC 77,31 MVR (4th) 1,227 SaskR 77,(2002), 227 SaskR 77 (CA),287 W.A.C. 77,227 Sask.R. 77,[2002] S.J. No 622 (QL)

R. v. Lewko (G.L.) (2002), 227 Sask.R. 77 (CA);

    287 W.A.C. 77

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. NO.002

Her Majesty The Queen (appellant) v. Glen Lyn Lewko (respondent)

(No. 421; 2002 SKCA 121)

Indexed As: R. v. Lewko (G.L.)

Saskatchewan Court of Appeal

Bayda, C.J.S., Lane and Jackson, JJ.A.

October 31, 2002.

Summary:

The accused was convicted of failing or refusing, without reasonable excuse, to provide a roadside ALERT breath sample and was acquitted of impaired driving. The accused appealed the conviction. The Crown cross-appealed the acquittal.

The Saskatchewan Court of Queen's Bench, in a judgment reported 214 Sask.R. 274, allowed the accused's conviction appeal and ordered a new trial. The Crown's cross-appeal was dismissed. The Crown appealed the ordering of a new trial for the breathalyzer refusal.

The Saskatchewan Court of Appeal allowed the appeal and restored the conviction.

Criminal Law - Topic 1386

Motor vehicles - Impaired driving - Roadside screening test - Excuse for refusal - The accused failed to blow long and hard enough into a roadside screening device to provide a usable sample - He was convicted of failing or refusing to provide an ALERT breath sample - The trial judge accepted expert evidence that notwithstanding the effects of anxiety and cramped quarters on the accused's ability to provide a suitable breath sample, the accused would have the ability to overcome these effects and blow long and hard enough into the machine to register a usable sample - He convicted the accused, finding no reasonable excuse - The appellate court ordered a new trial on the basis that "if the accused was, as he testified, in fact doing his best and still failing, then the defence is not reasonable excuse, but lack of mens rea in relation to his failure to provide a proper sample" - Since the trial judge assumed the defence was reasonable excuse, he failed to determine whether he was left with a reasonable doubt on the issue of mens rea - The Saskatchewan Court of Appeal restored the conviction - The trial judge did not err in making the inexorable inference that the accused intended to fail to provide an adequate sample - An accused's "voluntary assumption of a cramped position in a motor vehicle while attempting to provide a sample of his breath coupled with his anxiety, as described in this case, is not, as a matter of law, capable of constituting a 'reasonable excuse'".

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 3].

R. v. Brownridge, [1972] S.C.R. 926, refd to. [para. 11].

R. v. Taraschuk, [1977] 1 S.C.R. 385; 5 N.R. 507, refd to. [para. 11].

R. v. Schwartz, [1988] 2 S.C.R. 443; 88 N.R. 90; 56 Man.R.(2d) 92, refd to. [para. 13].

R. v. Appleby, [1972] S.C.R. 303, refd to. [para. 14].

R. v. Cinous (J.) (2002), 285 N.R. 1; 162 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 18].

R. v. Whyte, [1988] 2 S.C.R. 3; 86 N.R. 328, dist. [para. 18].

Rowland v. Thorpe, [1970] 3 All E.R. 195 (Q.B.), refd to. [para. 19].

Law v. Stephens, [1971] R.T.R. 358, refd to. [para. 19].

R. v. John, [1974] 2 All E.R. 561 (C.A.), refd to. [para. 19].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 28].

R. v. Robicheau (M.D.) (2002), 289 N.R. 217; 216 N.S.R.(2d) 1; 645 A.P.R. 1; 165 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 28].

R. v. MacDougall (1976), 15 N.B.R.(2d) 279; 18 A.P.R. 279 (C.A.), disagreed with [para. 37].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 41].

R. v. Pittendreigh (J.R.) (1994), 162 A.R. 169; 83 W.A.C. 169; 9 M.V.R.(3d) 236 (C.A.), refd to. [para. 42].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 794(2) [para. 15].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed. 2002), vol. 2, c. 25:10120 [para. 16].

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), pp. 49 [para. 26]; 50, 51 [para. 10]; 61 [para. 26]; 599 [para. 11].

Counsel:

W. Dean Sinclair, for the Crown;

Nicholas J. Stooshinoff, for the respondent.

This appeal was heard before Bayda, C.J.S., Lane and Jackson, JJ.A., of the Saskatchewan Court of Appeal.

On October 31, 2002, Bayda, C.J.S., delivered the following judgment for the Court of Appeal.