R. v. Mercado (T.B.), (2013) 578 A.R. 366 (PC)

• Judge: Semenuk, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 10, 2013
• Citations: (2013), 578 A.R. 366 (PC);2013 ABPC 330

R. v. Mercado (T.B.) (2013), 578 A.R. 366 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. DE.103

Her Majesty the Queen v. Teresita Balisi Mercado (130017130P1; 2013 ABPC 330)

Indexed As: R. v. Mercado (T.B.)

Alberta Provincial Court

Semenuk, P.C.J.

December 10, 2013.

Summary:

The accused was charged with failing or refusing to supply a breath sample into an approved screening device. Defence counsel argued that the accused either lacked the requisite mens rea for the offence, or she had a reasonable excuse for failing to provide a breath sample (physically unable to comply with the demand due to nervousness, shaking and a shortness of breath).

The Alberta Provincial Court found the accused not guilty. The reasonable excuse offered had an air of reality.

Criminal Law - Topic 1386

Motor vehicles - Impaired driving - Roadside screening test - Excuse for refusal - Mercado, a 64 year old woman, was charged with failing or refusing to supply a breath sample into an approved screening device (ASD) - The arresting officer stated that Mercado made a tight seal with her lips around the mouthpiece and did not try to block the mouthpiece with her tongue, but simply stopped blowing before she was told to stop - Mercado testified that she was very nervous and shaking - She tried her best to blow into the ASD but experienced a shortness of breath and had to stop to catch her breath - Defence counsel argued that Mercado had a reasonable excuse for failing to provide a breath sample - The Alberta Provincial Court found Mercado not guilty - The reasonable excuse offered had an air of reality - The lack of medical evidence did not matter - There was no evidence that Mercado was faking her attempts or deliberately making an insufficient effort - See paragraphs 65 to 77.

Criminal Law - Topic 1386.3

Motor vehicles - Impaired driving - Roadside screening test - Refusal - Mercado, a 64 year old woman, was charged with failing or refusing to supply a breath sample into an approved screening device (ASD) - The arresting officer stated that Mercado made a tight seal with her lips around the mouthpiece and did not try to block the mouthpiece with her tongue, but simply stopped blowing before she was told to stop - Mercado testified that she was very nervous and shaking - She tried her best to blow into the ASD but experienced a shortness of breath and had to stop to catch her breath - Defence counsel argued that Mercado lacked the requisite mens rea for the offence - The Alberta Provincial Court rejected this argument - The offence was one of general intent, not specific intent - The Crown did not have to prove that Mercado wilfully intended to commit the offence - It only had to prove that she had knowledge and/or was reckless respecting compliance with the demand - Mercado's explanation for why she was unable to provide a sample did not go to mens rea - It did not provide evidence that raised a reasonable doubt as to her knowledge or awareness that she was blowing in a way that failed to provide a suitable sample - See paragraphs 56 to 64.

Cases Noticed:

R. v. Nagy (C.T.) (2003), 336 A.R. 124; 2003 ABQB 690, refd to. [para. 57].

R. v. Spracklin (V.E.) (2013), 551 A.R. 323; 2013 ABPC 55, agreed with [para. 57].

R. v. Gutierrez (R.), [2001] O.T.C. 687 (Sup. Ct.), refd to. [para. 58].

R. v. Lewko (G.L.) (2002), 227 Sask.R. 77; 287 W.A.C. 77; 2002 SKCA 121, refd to. [para. 58].

R. v. Dolphin (J.D.) (2004), 189 Man.R.(2d) 178; 2004 MBQB 252, refd to. [para. 58].

R. v. Schwartz (K.A.) (2009), 473 A.R. 233; 2009 ABPC 120, refd to. [para. 58].

R. v. Plante (J.D.) (2013), 559 A.R. 345; 2013 ABQB 222, refd to. [para. 59].

R. v. Lemay (R.N.) (2013), 563 A.R. 300; 2013 ABPC 144, agreed with [para. 59].

R. v. One Spot (M.) (2013), 555 A.R. 166; 2013 ABPC 25, disagreed with [para. 66].

R. v. D.W. (1991), 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397 (S.C.C.), refd to. [para. 69].

R. v. Francoeur (1983), 46 N.B.R.(2d) 239; 121 A.P.R. 239 (T.D.), refd to. [para. 72].

R. v. Marshall (1985), 41 Sask.R. 303 (Q.B.), refd to. [para. 72].

R. v. Sponagle (1986), 75 N.S.R.(2d) 423; 186 A.P.R. 423 (C.A.), refd to. [para. 72].

R. v. Schenk (J.R.), [2013] A.R. Uned. 695; 2013 ABPC 289, refd to. [para. 77].

Counsel:

A. Voss-Altman, for the Crown;

R. Muenz, for the accused.

This matter was heard before Semenuk, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for judgment at Calgary, Alberta, on December 10, 2013.