Her Majesty the Queen - v. -, 2012 SKPC 61

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 061 Date: April 10, 2012 Information: 37252263 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joseph Darby Dirk Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Merv Nidesh, Q.C. For the Accused DECISION M.T. GORDON , J [ 1 ] Mr. Dirk is charged as follows: that on or about the 7 th day of April, A.D. 2010, at or near Moose Jaw, Saskatchewan, did, while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 255(1) and section 253(1) (

a) of the Criminal Code and, [ 2 ] On or about the 7 th day of April, A.D. 2010, at or near Moose Jaw, Saskatchewan, did without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer pursuant to section 254(5) of the Criminal Code .

[ 3 ] The Crown elected to proceed summarily. At the commencement of the trial, counsel for Mr. Dirk advised that his client took no issue with the following: identity of the accused, date and place of the alleged offences, the accused was impaired, and the demand by Cst. Lawrence for breath samples pursuant to section 254(3) of the Criminal Code was lawful. Evidence of the Crown [ 4 ] Three friends were with the accused in his vehicle on April 7, 2010, namely Dylan Fritz, Adam Clace and Carl Kojocar. They had met up the evening before and been at a party. Carl Kojocar was the designated driver.

The accused owned the vehicle. [ 5 ] Carl Kojocar was the only one who had not been drinking. They had been at a gathering place about two kilometres southeast of Moose Jaw, called Bubbley’s. Carl was driving and the accused was a front seat passenger. Dylan and Adam were in the back seat. [ 6 ] The three individuals in the vehicle testified and their evidence varied, likely due to their level of sobriety and vantage point. Evidence of Dylan Fritz [ 7 ] Dylan Fritz testified they were driving down the hill near the oval at Wakamow Valley when he heard the accused mutter something about jumping out of the car.

At the oval Dylan and Carl got out of the car and were talking to some friends they knew in another car. [ 8 ] Dylan stated neither Adam nor the accused were in any shape to drive. In fact, all three of them were drunk. [ 9 ] On cross-examination, Dylan Fritz did not recall details suggested by Defence counsel. Dylan responded saying he did not recall the following: 1. The accused and Adam fighting; 2. Adam saying let go of my wrists; 3. The accused grabbing his (Dylan’

s) wrists in the car; 4. Saying to the accused he wanted to fight; 5. The accused crying in the car; 6. The accused opening the driver’s door; 7. Pulling the driver’s door and damaging the hinges; 8. Throwing a garbage can at the door. Dylan did recall trying to get Dirk’s attention by kicking the driver’s door. Evidence of Adam Clace [ 10 ] Adam Clace was in the back seat behind the driver of the accused’s vehicle. He is not sure how much whiskey he drank. He stated that Dylan and the accused would have shared a forty ounce bottle of whiskey and that the accused was pretty drunk. [ 11 ] Carl was driving.

He stopped the vehicle by the skating oval upon Dylan’s instruction, and got out of the vehicle. Dylan also

got out. Adam stayed in the vehicle. [ 12 ] According to Adam, Dylan wanted to fight the accused and the two of them got into an argument. He recalled the accused holding Dylan and even grabbing his wrists while they were driving around. This is when Dylan told Carl to stop as Dylan did not like his wrists being grabbed. The accused moved to the driver’s seat as soon as the driver exited the vehicle.

Adam testified that the accused was scared as he started talking in a soft voice. [ 13 ] He thinks the car was turned off although the keys were in the ignition. [ 14 ] According to Adam, Dylan kicked the driver’s door for about two minutes. The accused unlocked the door and Dylan grabbed the door and tried to rip the door open. The door would not close afterwards. [ 15 ] Adam says the accused said he was scared and said “don’t get out”. The accused then drove about fifteen feet forward and then reversed, trying to get away. [ 16 ] Dylan chased the vehicle and threw a garbage can at the passenger door.

Dylan continued to yell at the accused. [ 17 ] Adam had a cell phone. He was not sure whether the accused had one. He was not sure whether Carl or Dylan used their cell phones. Evidence of Carl Kojocar [ 18 ] Carl Kojocar was the designated driver that night. He had driven to a spot called Bubbley’s and then was returning to Moose Jaw with his three drunk passengers; Adam, Dylan and Joseph Dirk. [ 19 ] He stopped the vehicle at the skating oval in Wakamow. The accused and Dylan were in an argument. Joseph Dirk wanted to jump out of the vehicle. Joseph Dirk did not believe that there was not any alcohol left.

Joseph Dirk wanted to move the vehicle. [ 20 ] Carl did not see any physical contact between Joseph and the back seat passengers, Dylan or Adam, prior to stopping the car. [ 21 ] A vehicle with friends Sheldon Paul and Cameron Irwin had been following them and also stopped at the oval. Carl got out of the car and Joseph slid over to the driver’s seat. Joseph was bickering with Dylan and “freaking out”. According to Carl, Joseph acts like this every time he drinks. [ 22 ] Carl testified that Dylan Fritz was yelling at Joseph and wanted to get him out of the car as Joseph had said he was going to drive.

Carl had turned the car off and left the keys in the ignition when he stepped out. [ 23 ] Carl then noticed Dylan Fritz kick the car door. Adam was still in the back seat. Joseph started the vehicle and backed up the car about ten feet. Joseph opened the driver’s door and Dylan held onto it while the vehicle was moving forward. [ 24 ] He saw Joseph jump out of the vehicle and then back in. He was not sure where Dylan was at this time. [ 25 ] On cross-examination Carl stated that Joseph went back to his vehicle once Dylan moved away.

He did not see Dylan throw a garbage can at the vehicle but saw Dylan kicking the accused’s vehicle.

[ 26 ] By agreement of counsel, relevant portions of video recordings were played and referred to by the police officer when testifying and marked as Exhibits P-1 and P-2. Evidence of Police Officers [ 27 ] Cst. Lawrence received a call from dispatch about an incident at the skating oval, of someone being held in a vehicle and a possible impaired driver. [ 28 ] Cpl. Froehlich had arrived on scene just prior to Cst. Lawrence. Cst. Lawrence assisted in arresting the accused and dealing with several other bystanders. [ 29 ] Cst. Lawrence observed Joseph Dirk to be noticeably intoxicated.

In particular, he noted slurred speech, smell of beverage alcohol on his breath, confusion and incoherent words. The accused did not listen well when handcuffed and arrested and placed in the rear of a police vehicle. [ 30 ] The accused was given his Charter rights, the breathalyzer demand and police warning at 2:40 a.m. At 2:45 a.m., the accused said he understood the police warning; that he wanted to call a lawyer and he would take the breath test. [ 31 ] At 2:48 a.m., they arrived at the police cells and the accused was booked in and afforded an opportunity to call a lawyer. Sgt.

Mackey also allowed the accused’s request to call his father. After three or four minutes, Mr. Dirk hung up the phone in anger. Dirk was then handed over to Cst. Watt who explained the breath demand. Cst. Lawrence supervised the accused while Cst. Watt prepared the intoxilyzer. [ 32 ] At 4:03 a.m., Cst. Watt read the accused the waiver of rights to counsel to ensure the accused understood. [ 33 ] Dirk’s responses were from one extreme to the other. He was agitated, then cooperative. He was like that from the time of booking in, trying to get him to answer a simple question. [ 34 ] At 4:10 a.m., Cst.

Lawrence handed the accused over to Cst. Watt to take the first breath sample. At 4:16 a.m., the accused said he wanted to contact Ken Keeler, his uncle, of Medicine Hat. Sgt. Mackey said “okay” and then the accused tried to call. The officer noted Dirk to grab himself by the neck in an attempt to pass out. Dirk repeated these actions in the intoxilyzer room. [ 35 ] The video, Exhibit P-1, was viewed and confirmed Cst. Lawrence’s evidence. The accused can be seen, quite agitated, yelling and pacing. The accused said he didn’t understand, then said “I’m sorry”, “that’s cool”.

The accused claimed he was not driving and had three witnesses to prove it. The accused was calm and then became very excitable. [ 36 ] On cross-examination Cst. Lawrence stated at 6:35 a.m. the accused was taken by ambulance to the hospital. The accused was intoxicated and had problems keeping his thoughts straight. Cst. Lawrence was not sure of the accused’s mental capacity. [ 37 ] At 7:07 a.m., the accused was returned from the hospital. The accused was emotionally up and down. The police placed the accused in the restraint chair to prevent him from hurting himself.

The accused would hit his head against the wall and tried to choke himself. The officer thinks the accused was released around noon. [ 38 ] Cst. Jason Watt was the final Crown witness. He was called in to work as a result of Joseph Dirk being arrested and a breath demand made. [ 39 ] Cst. Watt saw the accused for a few minutes in the cell area. Dirk declined to speak to counsel.

[40] Dirk appeared very drunk and drugged. He was aggressive and passive, loud and normal. [41] Cst. Watt explained to the accused, after the accused declined to contact counsel, that he would take two tests twenty minutesapart. The accused agreed. The accused came to the intoxilyzer room and appeared compliant. [42] Cst. Watt instructed Dirk how to blow. Dirk once again became aggressive, then passive. The accused would puff his mouth,then said he wanted to talk and became aggressive and wanted to fight. Cst. Watt tried to explain the refusal.

Dirk said he wanted to killhimself and had to be physically restrained. [43] The video clearly shows the accused’s vacillating conduct. He appears coordinated, and his balance is all right. At one pointhe states he does not know what the officer is talking about, then he says “please don’t do this…I’ll tell you the truth”. The accused thenbecomes very agitated and tries to grab the officer. He is taken to the ground. Dirk tries to choke himself. [44] Cst. Watt spends some time explaining the process to the accused. At one point in particular on the DVD, the accused veryclearly states “yeah, I will provide”.

Then the accused’s behaviour continues up and down, relaxed and then tightened and flexing hismuscles. [45] On cross-examination Cst.

Watt agreed it was only for a brief moment that the accused put his thumbs to his trachea and hisface turned red. [46] The Defence did not call any evidence. [47] The trial was adjourned to December 22, 2011, and then, at the request of Defence counsel, to February 6, 2012, to allowwritten materials to be filed by the Defence. [48] Counsel agreed that the issues before the Court are as follows: Has the Crown proved beyond a reasonable doubt theaccused’s driving action was voluntary?

Do the accused’s actions in these circumstances give rise to the defence of necessity and, didthe accused have the mens rea or capacity to refuse the breath test demand? Crown Submissions [49] The Crown acknowledges it always has the ultimate burden to prove the essential elements of the charge beyond a reasonabledoubt. Count #1 – Operate a Motor Vehicle While Impaired and the Necessity Defence [50] The Crown filed the following cases: R. v. English, 2009 BCSC 1292 , R. v. Romanchuk, 2000 SKQB 307 ,R. v. Block, 2011 SKPC 4 , R. v.

Pries, 2005 SKPC 60 ; that discuss the defence of necessity. [51] The Crown submitted that the case law is clear and that the modified objective test is to be used. In R. v. English, the Courtquotes the well known Supreme Court of Canada case R. v. Latimer, 2001 SCC 1 , [2001] 1 S.C.R. 3 at paragraphs 27 and 28,as follows:

27 Dickson J. insisted that the defence of necessity be restricted to those rare cases in which true "involuntariness" is present. Thedefence, he held, must be "strictly controlled and scrupulously limited" (p. 250). It is well established that the defence of necessity mustbe of limited application. Were the criteria for the defence loosened or approached purely subjectively, some fear, as did Edmund DaviesL.J., that necessity would "very easily become simply a mask for anarchy": Southwark London Borough Council v.

Williams, [1971] Ch.734 (C.A.), at p. 746. 28 Perka outlined three elements that must be present for the defence of necessity. First, there is the requirement of imminent peril ordanger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook. Third, there mustbe proportionality between the harm inflicted and the harm avoided. [52] The Crown noted that the accused did not testify and there was no evidence as to what the accused believed. There wasevidence of one of his friends, that the accused was scared, but this is not enough.

A person’s intention and state of mind can change. [53] Two of the witnesses testified about alternatives to the situation such as staying in the car and locking the door or using a cellphone, if the accused was afraid of Dylan Fritz. [54] The Crown also noted the case of R. v. Block, 2011 SKPC 4 , and noted paragraphs thirty-two to thirty-nine whichdiscusses the limited application of the necessity defence. [55] In R. v. Murray, 2010 ABQB 784, the Court of Queen’s Bench Judge reviews the law of necessity and the onus of proof.

Atparagraph 21 he quotes the older, well-known case of the Supreme Court of Canada R. v. Perka, (SCC), [1984] 2 S.C.R.232, and also refers to R. v. Latimer, 2001 SCC 1 , [2001] 1 S.C.R. 3 and R. v. Sekhon, 2007 ABQB 315, as follows: The Law on the Defence of Necessity 21 In R. v.

Perka, (SCC), [1984] 2 S.C.R. 232, Dickson J. explained at p. 248 that the defence of necessity rests on arealistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience oflaws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impeldisobedience. Such acts are still wrongful, but are excusable in the circumstances.

He further stated at pp. 257-258: Although necessity is spoken of as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of provinga voluntary act. The prosecution must prove every element of the crime charged.

One such element is the voluntariness of the act.Normally, voluntariness can be presumed, but if the accused places before the Court, through his own witnesses or through cross-examination of Crown witnesses, evidence sufficient to raise an issue that the situation created by external forces was so emergent thatfailure to act could endanger life or health and upon any reasonable view of the facts, compliance with the law was impossible, then theCrown must be prepared to meet that issue. There is no onus of proof on the accused. 22 The Supreme Court in R. v.

Latimer, 2001 SCC 1 , [2001] 1 S.C.R. 3, at paras. 26 to 34, confirmed that the defence ofnecessity is restricted to those rare cases in which true "involuntariness" is present, and that the defence of necessity requires: 1) arequirement of imminent peril or danger; 2) no reasonable legal alternative to the course of action he or she undertook; and 3)proportionality between the harm inflicted and the harm avoided. 23 The peril must be on the verge of transpiring and virtually certain to occur, such that normal human instincts cry out for action andmake a counsel of patience unreasonable.

The second requirement of no reasonable legal alternative involves a realistic appreciation ofthe alternatives open to a person; the accused need not be placed in the last resort imaginable. 24 The first two criteria are assessed on a modified objective basis. This is an objective evaluation, taking into account the situationand characteristics of the particular accused person, including his or her reasonable perceptions of the existence of alternative courses ofaction. Proportionality is measured on an objective standard. 25 In R. v.

Sekhon, 2007 ABQB 315, appeal dismissed 2008 ABCA 171, Belzil J. after considering the above passage in Perka stated: 31 Given that the Respondent admitted the offences, the Crown therefore would meet its burden of proving voluntariness if it provesbeyond a reasonable doubt that the defence of necessity is not established. [56] In conclusion, the Crown argues that it had met the criminal burden of proof. There was no evidence as to the accused’sperception of the situation. His friends had cell phones.

The accused did not try any other alternatives such as calling out for help orasking that someone call the police.

Count #2 – Refusal and the Lack of Mens Rea [57] The Crown submits that it has proved beyond a reasonable doubt that the accused had the necessary mens rea to refuse thebreath demand. The Crown urges the Court to adopt the analysis of the Court of Appeal in R. v. Lewko, 2002 SKCA 121. The Crownnotes the evidence of the two police officers which describe the accused’s behaviour as vacillating between calm to aggressive andupset. There is no evidence indicating that the accused is a non-functioning person. The accused is intoxicated and despondent.

However, the video (Exhibit P-1 and P-2) shows he has good balance, appears to understand, makes certain requests, and then whenpressed by Cst. Watt, the technician, the accused became aggressive, tried to choke himself and finally had to be removed. [58] The Crown argues it would be pure speculation on the part of the Court to make assumptions about the progressive affect ofalcohol on the accused and his ability to understand and respond to his situation. [59] Finally, the Crown observed, the two defences put forth by the accused are contradictory. The accused cannot have it bothways.

For the necessity defence to succeed, the Court is asked to find that the accused made a conscious decision, in light of theparticular circumstances at the time, and concluded he had no other alternative but to drive. [60] For the second defence, the accused is saying that he was so intoxicated that he did not have the mens rea or intention torefuse the demand pursuant to section 254(3) of the Criminal Code.

Defence Submissions Count #1 – Operate a Motor Vehicle While Impaired and the Necessity Defence [61] With respect to the defence of necessity, the Defence urges this Court to adopt the analysis and conclusion in R. v. Murray,2010 ABQB 784, at paragraphs twenty-seven to thirty-seven. The Defence argued there is sufficient evidence to meet the modifiedobjective or air of reality test. The onus then shifts to the Crown.

The evidence of the other fellows in the car, especially that of AdamClace, establish that it is only when the accused is fearful of his own personal safety that he chose to drive the vehicle a short distance totry and get away from Fritz’s threatening behaviour. [62] Therefore, the Defence submits that while Joseph Dirk drove the vehicle while impaired, his conduct should be excused onthe basis of the defence of necessity. [63] The accused submitted that his fear of further damage being caused to his vehicle meets the “air of reality” test for thedefence to be submitted. Judge Tomkins of this Court in R. v.

S.R.M., 2010 SKPC 93 , 2010 SKPC 093, refers to the twoSupreme Court of Canada decisions that discuss the defence of necessity. In R. v. Perka, (SCC), [1984] 2 S.C.R. 232,Mr. Justice Dickson explained the origin and purposes of this defence at paragraph thirty-three: It rests on the realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to strictobedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelminglyimpel disobedience.

The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they areexcusable. Praise is not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle in TheNicomachean Ethics (translator Rees, p. 49), “overstrains human nature and which no one could with-stand.” [64] The Defence argued that Mr. Dirk drove the short distance to protect his property, namely his vehicle, from Dylan Fritz. TheDefence noted that Adam Clace testified that the accused feared for his safety. Mr.

Fritz had kicked the accused’s vehicle, damaging thedriver’s side door. Mr. Clace also stated that the accused and Dylan Fritz were arguing and the accused was freaking out and wanted tomove. Dylan testified he kicked the car door to get the accused’s attention. On cross-examination, Dylan did not recall any other details. [65] Counsel for the Defence highlighted the following evidence which he asks the Court to accept in arriving at a decision. Theaccused was heavily intoxicated, the vehicle belonged to the accused, Kojocar was the designated driver and thus the accused had nointent to drive.

Fritz, a large fellow, was outside the vehicle, and acted aggressively towards the vehicle (kicked it, ripped driver’s door

so it would not close, and threw a garbage can at the vehicle) and towards the accused. Adam Clace, the Defence noted, testified that theaccused feared for his safety and only moved his vehicle to protect it from damage. Defence Argument Count #2 – Refusal and the Lack of Mens Rea [66] The Defence referred in particular to the cases of R. v. Schwartz, 2009 ABPC 120 and R. v. Lewko, supra. [67] The Defence argued that the Crown has not proved beyond a reasonable doubt that the accused voluntarily refused.

At thepolice station, the accused’s physical and mental capabilities were deteriorating as a result of the absorption of alcohol. At the policestation, the accused was not acting in a rational manner. Each incident must be viewed in context, at the particular moment and the lawapplied. There is no inconsistency in the Defence’s position as the accused’s condition was deteriorating. Analysis Count #1 - Operate a Motor Vehicle While Impaired [68] I am satisfied that it is appropriate to consider whether the defence of necessity applies to the relevant facts capable ofsatisfying its necessary prerequisites. In R. v.

English, 2009 BCSC 1292, Mr. Justice McEwan of the Supreme Court of BritishColumbia considers the issue of “imminent peril or danger” by quoting paragraph twenty-nine of Latimer: To begin, there must be an urgent situation of “clear and imminent peril”: Morgentaler v. The Queen, (SCC), [1976] 1S.C.R. 616, at p. 678… . In short, disaster must be imminent, or harm, unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be onthe verge of transpiring and virtually certain to occur.

In Perka, Dickson J. expressed the requirement of imminent peril at p. 251: “At aminimum the situation must be so emergent and the peril must be so pressed that normal human instincts cry out for action and make acounsel of patience unreasonable”. The Perka case, at p. 251, also offers the rationale for this requirement of immediate peril: “Therequirement … tests whether it was indeed unavoidable for the actor to act at all”.

Where the situation of peril clearly should have beenforeseen and avoided, an accused person cannot reasonably claim any immediate peril. [69] I do not think that the evidence that the accused and Fritz were in some kind of an argument, and that the accused appeared tobe scared and that Fritz had kicked the driver’s door is enough. The Court is asked to infer that the accused was trying to protect hisvehicle (not himself) from further harm. This was not a situation as in R. v. Murray, 2010 ABQB 784, where the circumstances were fardifferent.

In the Murray case one of the accused’s co-workers had been beaten unconscious by local bar patrons. In the parking lot, theaccused, who was from out of town, was met by a group of ten to twelve angry locals who were threatening to beat the accused and hisco-workers. [70] The imminent peril or danger facing the accused in the Murray case contrasts markedly with the merely speculative fear of apossibility of harm the Court is asked to infer in this case. Here, the urgency of the situation is not present. Dylan Fritz kicked andgrabbed the car door such that it would not close properly.

However, after that, the evidence is equivocal and I do not find that he didanything else. There was no evidence that he was threatening the accused if he got out of the car. The other car that arrived werefriends, not foes. The others with the accused were not joining Fritz in ganging up on him. [71] Mr. Justice Dickson in R. v. Perka, supra, at paragraph forty, stated: “At minimum the situation must be so emergent and theperil must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable”.

I do not acceptthat this requirement has been met. [72] At paragraph sixty-two the following elements are set out by Mr. Justice Dickson as follows: 1. The defence of necessity could be conceptualized as either a justification or an excuse.

2. It should be recognized in Canada as an excuse, operating by virtue of section 7(3) of the Criminal Code . 3. Necessity as an excuse implies no vindication of the deeds of the actor. 4. The criterion is the moral involuntariness of the wrongful action. 5. This involuntariness is measured on the basis of society’s expectation of appropriate and normal resistance to pressure. 6. Negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity. 7. Actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle. 8.

The existence of a reasonable legal alternative similarly disentitles; to be involuntary the act must be inevitable, unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of law. 9. The defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and immediate peril. 10. Where the accused places before the Court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt. [ 73 ] Judge Tomkins states at paragraph thirty-two of R. v.

S.R.M. , supra, the following: From these elements, the Court in Latimer set out the three requirements for the defence as follows: 1. There must be an urgent situation of clear and imminent peril. 2. There must be no reasonable legal alternative to disobeying the law. 3. There must be proportionality between the harm inflicted and the harm avoided. The Court further held that the first and second of these are tested against a modified objective standard – an objective evaluation that takes into account the situation and characteristics of a particular accused person.

The third is tested against an objective standard. [ 74 ] While unnecessary, I am going to consider the other two requirements for the defence of necessity as stated in Latimer . [ 75 ] Judge Tomkins comments on this point at paragraph forty-four of R. v. S.R.M. , supra, as follows: The element of choice – or lack thereof – is critical to a consideration of the defence and founds the second requirement. It is only when a person has no real choice that unlawful actions will be excused.

This is because, when there is no reasonable legal alternative, the accused person had no real choice and in that sense, his action was not voluntary. While the decision to take the action which constitutes a criminal offence was voluntary in a literal sense, it is not “morally voluntary”, to use Justice Dickson’s words. [ 76 ] The accused did not testify, nor is he required to.

The difficulty is I am left with having to speculate as to what else the accused could or should have done when he found himself in these circumstances. [ 77 ] The evidence of Kojocar, Fritz and Clace is not helpful in this point. [ 78 ] One of the fellows may have had a cell phone. The suggestion is someone, perhaps even the accused, had a cell phone, but no one is sure. There is no evidence that any other steps were taken to deal with the suggested harm that the actions of Mr. Fritz would inflict. There is no evidence of the accused fearing for his personal safety.

The people in the other car were friends. [ 79 ] Since I have concluded that there was no imminent peril, it is difficult to consider the point of whether the accused explored all reasonable alternatives. Nevertheless, it is clear to me that he did not. Mr. Dirk was not being assaulted or even personally threatened at the time he chose to drive. [ 80 ] Again, given my conclusion on the first requirement of the necessity analysis, it is not necessary to continue. I only do so to

be abundantly clear that in my view there is no basis for the necessity argument in the particulars of the case. [81] The Defence position must be the harm caused in this case was the damage to the vehicle and the unlawful driving while theharm avoided was the suggestion that further harm would be inflicted on the accused’s vehicle which was very important to him. Defence counsel did not directly argue concern about harm to his client, but I conclude that this was inferred in his submissions. [82] I accept that the accused only drove a few feet.

However, I do not accept that the harm avoided, that being damage to hisvehicle, was greater than the harm caused which was the unlawful driving while impaired. The unlawful driving of backing up the carwas in a situation where other people were mingling around outside in the dark in the park, and where the accused was very intoxicated. [83] The evidence was that the accused was argumentative in the car. I find that the accused contributed to his final situation. Hevoluntarily consumed alcohol and was impaired. He was argumentative in the car.

He was out with friends and trusted Kojocar to be thedesignated driver. [84] There is no merit to the necessity argument and I find the Crown has proved its case beyond a reasonable doubt that theaccused drove while impaired. I find the accused guilty on Count #1. Analysis – Count #2 – Refusal [85] In R. v. Shaw, 2010 NSPC 95, Judge Williston of the Provincial Court states at paragraph nineteen: To constitute an offence under s. 254(5) police must make a proper demand and the accused must refuse or fail to comply with thedemand.

A proper demand requires each of the following conditions: the demand must be clear; the language of the demand mustprovide the accused with a clear understanding of what is required and the Crown has provided me with two cases of R. v. Nicholson andR. v. Flegel which are often quoted and actually are still law with respect to this. They were early decisions when the legislation firstcame out. The phraseology of the demand must not be confusing, technical or too complicated for lay comprehension. That’s found in R.v.

Nicholson, (NS CA), 8 C.C.C. (2d) 170: Whether or not the demand is sufficiently clear must be determined by the language used and by the ability of the accused tocomprehend. [86] The Defence does not take issue with the demand but rather than the accused lacked the mens rea or intent to refuse. TheDefence says from all of the evidence there is a reasonable doubt as to whether Mr.

Dirk was capable of refusing and therefore notcapable of committing the offence. [87] The Defence has stressed throughout, and the Crown obviously takes no issue, that the burden of proof is on the Crown to thestandard of beyond a reasonable doubt. [88] A very helpful discussion with respect to the persuasive (legal) burden and the evidential burden is found in the SaskatchewanCourt of Appeal decision of R. v. Lewko, 2002 SKCA 121. The Court refers to the Schwartz case. It is clear that the persuasive (legal)burden on the Crown always consists of proof beyond a reasonable doubt.

The evidential burden means raising an issue by considerationof the evidence before the Court. [89] The Court in Lewko goes on to say that the Defendant need only raise the question of the possibility of reasonable excuse. InSchwartz, McLachlin C.J. and Bastarche J. state at paragraph fifty-three: In applying the air of reality test, a trial judge considers the totality of evidence, and assumes the evidence relied upon by the accused tobe true. See Osolin, supra (SCC), [1993] CanLII 54 (SCC), [1993] 4 S.C.R. 595; Park, supra (SCC),[1995] CanLII 104 (SCC), [1995] 2 S.C.R. 836.

The evidential foundation can be indicated by evidence emanating from theexamination-in-chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factualcircumstances of the case or from any other evidential source on the record. There is no requirement that the evidence adduced by the

accused. See Osolin , supra; Park, supra; Davis, supra [1999] CanLII 638 (SCC), [1993] 3 S.C.R. 759 . [ 90 ] I think it is useful to look at the actions of the accused and what he was capable of doing. Dylan Fritz testified that the accused was drunk and “muttering” to the others in the vehicle. The accused got out of the car, back in, opened the window, opened and tried to close the door, started the vehicle and backed it up and drove over by the office. [ 91 ] Adam Clace also testified the accused was “pretty drunk”. Clace says the accused held Dylan’s wrists.

The accused moved into the driver’s seat as soon as Kojocar got out. The accused started the car. The accused was talking. [ 92 ] Kojocar also testified that the accused was drunk. He was of the opinion the accused was upset as there was no alcohol. According to Kojocar the accused “freaks out” every time he drinks. [ 93 ] Cst. Lawrence observed, and it is not disputed, the accused had certain signs of impairment. Namely, he had slurred speech, smell of beverage alcohol on his breath, incoherent words and was not listening well.

However, after the breath demand, police warning and Charter rights the accused replied he wanted to call a lawyer. Also, at 2:43 a.m. the accused indicated he understood the police warning and agreed to take the test. At Moose Jaw police cells the sergeant allowed the accused to call his father which took him three to four minutes. The accused got upset and hung up. [ 94 ] Cst. Lawrence observed the accused’s emotional state to fluctuate up and down. He would become distraught and pretend to start choking himself. Dirk was allowed at his request to contact his Uncle Ken Keller in Medicine Hat. [ 95 ] Cst.

Lawrence described this behaviour over some minutes and pointed to the video Exhibit P-1. [ 96 ] The video clearly shows the entire process of the situation being explained properly to Dirk. On one occasion Dirk said he did not understand. Then he said “I’m sorry”, “That’s cool”, and that he would definitely blow but he did want to call a lawyer. Dirk would be excitable at times and then quieter and apologize for his behaviour. [ 97 ] Cst. Watt was the qualified technician and was called in when the accused was brought in.

He also acknowledged the accused was drunk and would be loud and aggressive and then quieter. The accused then went into the intoxilyzer room and appeared compliant. Once Cst. Watt had given him instructions on blowing, he would repeat this behaviour of going between aggressive and passive. Dirk would pull out his cheeks, flex his muscles, then want to talk or fight. At one point he said he wanted to kill himself. [ 98 ] The second video (Exhibit P-2) demonstrates that the accused, while under the influence of alcohol, is trying to extricate himself from this situation.

I conclude that Dirk knows all too well the jeopardy he is in and is using tactics, which are influenced by his consumption of alcohol, to avoid, delay or frustrate the process. He pleads with Cst. Watt not to proceed, and says he’ll tell the truth. Then when this isn’t working he asks the officer if he wants to fight. [ 99 ] Cst. Watt testified Dirk’s balance and speech were okay. I concur with this after watching the video. In fact, I find that the accused’s speech was very clear when he said “yeah, I will provide”.

Given the accused’s performance, the police had EMS take him to the hospital at 6:35 a.m. and returned at 7:07 a.m. [ 100 ] I do not think this shows the accused was totally incapacitated. I conclude that the officers wanted to ensure that they were correct in their assessment that the accused was basically playing games. [ 101 ] In Schwartz the Court noted that the accused testified that he suffered from asthma. His anxiety increased after each attempt to blow and that he wanted to blow as he had only consumed two beer over several hours.

The Court found there was nothing to discredit his evidence and therefore his evidence could not be rejected. [ 102 ] In my view, the evidence pointed to by the Defendant does not support the lack of mens rea argument. It leads me to the

conclusion, as I have said, that this accused, while intoxicated, was trying every available way to manipulate the situation and avoid the test. That is the only reasonable conclusion from the evidence. The evidence does not support the contention that he was so out of it that he was not capable of forming the intent to refuse. [ 103 ] In this particular case, the police clearly explained the process and what was required of him. The police allowed him to call his father and his uncle in addition to legal counsel.

The police took the time and were patient and clear in their dealings with the accused. [ 104 ] I am satisfied beyond a reasonable doubt that all the elements of Count #2 have been proved by the Crown. [ 105 ] Since I have found Mr. Dirk guilty of Count #1, I direct a conditional judicial stay of proceedings on Count #2, which will become absolute upon conclusion of the appeal period, without an appeal being taken, or upon any appeal taken on Count #1 being dismissed. Dated at Moose Jaw, Saskatchewan, this 10 th day of April, 2012. ______________________________________________ M.T. Gordon, J