Court File and Parties

Court File No.: St. Catharines - 2111-998-12-S3508-00 Date: 2013-04-12 Ontario Court of Justice

Between: Her Majesty the Queen — and — Henry Gruythuyzen

Before: Justice D.A. Harris

Heard: January 17, 2013

Reasons for Judgment: April 12, 2013

Counsel:

• C. Lapointe, for the Crown
• C. Ryall, for the accused, Henry Gruythuyzen

Reasons for Judgment

HARRIS J.:

[1] Henry Gruythuyzen was charged with failing to comply with a demand to provide a sample of his breath into an approved screening device.

[2] Crown counsel elected to proceed summarily. Mr. Gruythuyzen entered a plea of not guilty and a trial was held. He is before me today to receive judgment.

[3] There are two issues which are fatal to the Crown's case.

[4] First, the "demand" made by Constable Spiergula was not a valid demand pursuant to section 254(2) of the Criminal Code and Mr. Gruythuyzen was not obliged to comply with it.

[5] Secondly, the Crown failed to prove beyond a reasonable doubt that Mr. Gruythuyzen had the necessary mens rea.

[6] So let us take a look at each of these issues.

Validity of the Demand

[7] With respect to the first issue, there is no question that Constable Spiergula made a demand for Mr. Gruythuyzen to provide a sample of his breath into an approved screening device.

[8] The issue is whether the demand was valid and proper and in compliance with the provisions of section 254(2).

[9] The relevant parts of section 254(2) read as follows:

254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol … in their body and that the person has, within the preceding three hours, operated … or had the care or control of a motor vehicle, … the peace officer may, by demand, require the person … :

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[10] For reasons that will be clear shortly I also include part of section 254(3) which reads as follows:

254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, … and

(b) if necessary, to accompany the peace officer for that purpose.

[11] Section 253 includes, amongst others, the offence of operating a motor vehicle while one's ability to operate a motor vehicle is impaired by alcohol.

[12] Mr. Gruythuyzen was operating a motor vehicle. He was involved in a motor vehicle collision.

[13] Constable Inch was the first police officer to arrive at the scene. He thought that Mr. Gruythuyzen's ability to operate a motor vehicle was impaired.

[14] Constable Spiergula came along next. He concluded that there was "maybe some impairment" on the part of Mr. Gruythuyzen. When asked for his reasons for his belief that there was impairment, he said that he had spoken with Mr. Gruythuyzen, and with Constable Inch, and with another driver and that he had their information. Mr. Gruythuyzen's explanation for the accident was different from that given by the other driver. In addition there were no external factors such as bad weather that would explain the accident having taken place.

[15] Finally, Mr. Gruythuyzen indicated that he had been drinking earlier. He had not been using drugs. Constable Spiergula requested an approved screening device test of Mr. Gruythuyzen's breath so as to exclude drugs as the possible cause of impairment.

[16] But that is not the purpose of a screening test. It is not intended to provide evidence that can be used at trial. Rather, as Sopinka J. stated in R. v. Bernshaw:

It is clear that Parliament has set up a statutory scheme whereby a screening test can be administered by the police merely upon entertaining a reasonable suspicion that alcohol is in a person's body. The purpose behind this screening test is evidently to assist police in furnishing the reasonable grounds necessary to demand a breathalyzer.

[17] But Constable Spiergula already had the grounds necessary to make the demand for an Intoxilyzer. As required by section 254(3), he had reasonable grounds to believe that Mr. Gruythuyzen had been operating his motor vehicle while his ability to do so was impaired by alcohol. So Constable Spiergula did not need to employ the intermediate step of testing Mr. Gruythuyzen's breath in a screening device.

[18] That being the case, he ought not to have been wasting time by going that route. Section 254(3) requires that the demand be made as soon as practicable requiring the person to provide breath samples into the Intoxilyzer also as soon as practicable. Time is clearly of some importance then and ought not to be wasted on unnecessary procedures. An approved screening device test falls into that category of unnecessary procedures here because a "fail" result on the test would have left Constable Spiergula in exactly the same position that he was already.

[19] Accordingly, I find that the demand made by Constable Spiergula was not a valid demand pursuant to section 254(2).

[20] Finlayson J.A. wrote in R. v. Misasi that:

To summarize the decision in Grant, where a demand is made outside the ambit of s. 254(2), a motorist is not obliged to comply with it. Since no offence is committed by a refusal to comply, no Charter relief is necessary with respect to that offence.

[21] So, since the demand made by Constable Spiergula was outside the ambit of section 254(2), Mr. Gruythuyzen was not obliged to comply with it.

[22] Accordingly, no offence was committed by him and the charge is therefore dismissed.

[23] However, even if I am mistaken in my assessment of the law in that regard, I am also not satisfied that the Crown has proved beyond a reasonable doubt that Mr. Gruythuyzen had the necessary mens rea.

Mens Rea

[24] Mr. Gruythuyzen was not accused of refusing to provide a sample of his breath, and there was no evidence that he ever refused to do so.

[25] Mr. Gruythuyzen was accused of failing to provide a suitable sample of his breath, and there was ample evidence that he did in fact fail to do so.

[26] The evidence was far from clear however with regard to the issue of mens rea.

[27] Constable Spiergula testified that after he read the approved screening device demand to Mr. Gruythuyzen, "he accompanied me and complied completely".

[28] He described Mr. Gruythuyzen making approximately 15 unsuccessful attempts to provide a suitable sample of his breath into the approved screening device.

[29] Constable Spiergula was unable to say why those attempts were unsuccessful.

[30] He did say that he activated the device and it was ready before Mr. Gruythuyzen made the first of those 15 attempts. He related how he blew into the device himself at one point and received a reading of "zero". He did not however ever state expressly that the device was in proper working order. That is certainly something that I have heard in previous refusal cases.

[31] Constable Spiergula also never suggested that Mr. Gruythuyzen was puffing up his cheeks but not blowing. He never suggested that Mr. Gruythuyzen was failing to make a tight seal on the mouthpiece thereby blowing outside the device rather than into it. He never suggested that Mr. Gruythuyzen was deliberately stopping early, thereby preventing the device from receiving a suitable sample of his breath. He never suggested that Mr. Gruythuyzen was doing any of the things that the court has become used to hearing about in cases such as this. Rather, Constable Spiergula said quite candidly that he was not sure why these samples were not suitable samples but that they were not.

[32] If Constable Spiergula, a police officer with more than 13 years experience, cannot say with any certainty why the samples of Mr. Gruythuyzen's breath were not suitable samples, then I certainly cannot be satisfied beyond a reasonable doubt that it was as a result of something that Mr. Gruythuyzen had deliberately done wrong. I cannot be satisfied that he had the necessary mens rea to commit the offence and had it been necessary, I would have dismissed the charge for that reason.

[33] For both reasons, the charge is dismissed.

Released: April 12, 2013

Signed: "Justice D.A. Harris"

Justice D.A. Harris

Footnotes

[1] R. v. Bernshaw, [1994] S.C.J. No. 87 per Sopinka J. at para. 49.

[2] The Breathalyzer was the approved instrument in use at the time of Bernshaw. It has since been replaced by the Intoxilyzer which is the approved instrument which is being used now.

[3] The Ontario Court of Appeal stated in R. v. Stellato, [1993] O.J. No. 18 (Ont. C.A.), aff'd, [1994] S.C.J. No. 51, that there is no special test for determining impairment, such as a "marked departure" from normal behaviour. The offence of impaired operation of a motor vehicle by reason of alcohol or a drug is made out by proof of any degree of impairment ranging from slight to great.

[4] R. v. Misasi, [1993] O.J. No. 150 (Ont. C.A.) per Finlayson J.A. at para. 13. See also R. v. Gill, [2011] O.J. No. 3924 (Ont. S.C.J.) a summary conviction appeal per Durno J. at para. 39.