R. v. Perry, 2021 MBPC 52

CITATION: R. v. Perry, 2021 MBPC 52 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) V. Mitrovic ) ) for the Crown - and – ) ) ) Ashley Perry ) ) E. Wach for the Accused ) ) ) Reasons for Decision ) Delivered: October 18, 2021 CARLSON, P.J. INTRODUCTION [ 1 ] Ashley Perry is charged that on July 7, 2019, at 259-1 st Street South West, in Carman, Manitoba, she did operate a conveyance while her ability to operate it was impaired to any degree by alcohol, contrary to s. 320.14(1) (

a) Criminal Code , and that she had a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 milliliters of blood within two hours after ceasing to operate a conveyance, contrary to s. 320.14(1) (

b) Criminal Code . [ 2 ] The “operation” of a conveyance alleged is that Ms. Perry, when observed by police, was lying across the back seat of a parked motor vehicle, while the vehicle engine was running, and as such, had care or control of the vehicle. Having care or control of a motor vehicle falls within the s. 320.11 Criminal Code definition of “operating” a conveyance. [ 3 ] Ms. Perry filed an application alleging breaches of certain rights guaranteed to her by the Canadian Charter of Rights and Freedoms (the “ Charter ”). The Crown’s evidence was all heard in a voir dire . At the end of the voir dire , Ms.

Perry’s counsel withdrew her Charter application. All of the Crown’s evidence from the voir dire was admitted into the evidence on the trial proper. THE EVIDENCE The Police Evidence [ 4 ] The Crown called three RCMP officers to testify. [ 5 ] The evidence of the two RCMP officers, Constables Ryan Wiebe and Ralph Reimer, who attended on scene and located Ms. Perry in a parked vehicle, was the same or similar in a number of respects. Each testified that he had completed his shift, and in the early hours of July 7, 2019, was at home, but on call.

Each received a call to attend to an incident, but on the way to that incident, driving together, they received a priority dispatch, just before 3 a.m., to attend to a possible impaired driving situation at 259-1 st Street South West in Carman. They arrived, in a marked police vehicle and both in police uniform, at that address, at 3:40 a.m. They located a motor vehicle, which matched the particulars of the motor vehicle described in the dispatch call. The vehicle was properly parked on the road across from the residence at 259-1 st Street South West.

Both officers testified that when they arrived and approached the vehicle, the engine was running. They both testified that inside the vehicle was a lone occupant, ultimately identified as Ashley Perry, lying across the back seat. She appeared to be asleep. She was wearing light clothing, including a skirt, and she had bare legs. Constable Wiebe shone his flashlight into the back seat and identified himself verbally as a police officer. Ms. Perry sat up and tried to open the rear door. She was unable to unlock the rear door, so she moved to the front seat, opened the door and exited the vehicle.

She identified herself to officers as Ashley Perry. [ 6 ] Constable Wiebe testified that before Ms. Perry exited the vehicle, she took the key out of the ignition. [ 7 ] Constable Wiebe observed that Ms. Perry had watery, red, bloodshot eyes, that she was uncoordinated getting from the back seat to front seat, had moved from the back seat to front seat as if it were a race, that she seemed frantic to get out, and that she was a bit unstable on her feet once she was out of the vehicle. Constable Wiebe took her to the back of her vehicle, and asked her if she had had anything to drink. She said no.

Constable Wiebe testified that he heard Constable Reimer say something to Ms. Perry about an ASD. He heard Ms. Perry respond that if she blew the ASD, she would fail. At that point, Constable Wiebe testified that Ms. Perry appeared to get

riled up and she started walking away. Constable Wiebe told her that if she did not comply with police demands she would be arrested for obstruction. Constable Wiebe testified that he put himself in her path, and that when he was close to her, he smelled beverage alcohol from her breath. Based on his observations of Ms. Perry, and the odor of alcohol from her breath, he formed the opinion that she was impaired and told her that she was under arrest for impaired care or control of a vehicle. That was at 3:46 a.m. Constable Wiebe put her in the back seat of the police vehicle. At 3:46 a.m., Constable Wiebe read her a formal notice of arrest, and provided her the formal s. 10(

b) Charter right and police caution. She confirmed that she understood, and said “no” when asked if she wanted to contact counsel. Constable Wiebe told Constable Reimer to call a tow truck and to call the breath technician and request the breath technician meet them at the detachment. They left the scene with Ms. Perry at 3:52 a.m. They drove to the Carman detachment, which was the closest RCMP detachment, and took a direct route there. When they arrived at the detachment, and were inside, Constable Wiebe conducted the first observation period of Ms. Perry while she sat in the hallway.

He again asked her if she wanted to speak to a lawyer and she said “no”. The observation period started at 3:56 a.m. Constable Wiebe handed the observation duties to Constable Reimer at 4:16 a.m., while Constable Wiebe worked on his report. [ 8 ] Constable Reimer testified that when he saw Ms. Perry in the vehicle, the keys were on the back seat. He saw her turn off the vehicle. When she exited her parked vehicle, he had a suspicion that she had alcohol in her body, based on the information in the dispatch call. He did not smell any alcohol from Ms. Perry at that time. He made a verbal ASD demand of Ms. Perry.

In response, she seemed upset and emotional. She said she did not want to provide a sample because she believed she would fail. He told her she had to. She did not comply with the demand and walked toward the house where he understood, based on some information, that her boyfriend was. At that point, Constable Reimer heard Constable Wiebe speak directly to Ms. Perry, and he heard and observed Constable Wiebe arrest Ms. Perry for impaired operation. Once they were on their way to the detachment, after Constable Wiebe provided Ms.

Perry with her notice of arrest and Charter rights and police caution, he called Constable Sokolsky, a breath technician, and asked him to meet them at the Carman detachment. That was at 3:48 a.m. Constables Wiebe and Reimer were not qualified breath technicians. They arrived at the detachment at about 3:50 a.m. Constable Reimer took over the observation period of Ms. Perry at 4:16 a.m. [ 9 ] Both officers agreed with the suggestion that at the time they located Ms. Perry in the vehicle, the temperature outside was cool, possibly 13 or 14 degrees Celsius.

Both agreed there was no reference in their respective notes to Ms. Perry having slurred speech. Though Constable Wiebe had said on direct examination that Ms. Perry was mumbling and he could not understand her, he agreed on cross-examination that he could understand some of what she said. [ 10 ] Constable Reimer agreed on cross-examination that he did not have grounds to arrest Ms. Perry for impaired operation. He did not make any observations as to slurred speech. He could understand most of what she said, but some parts he could not understand due to her emotional state.

He has no notes as to any balance issues. [ 11 ] RCMP Constable Jamie Sokolsky testified. He was the qualified breath technician called to attend the Carman detachment to obtain breath samples from Ms. Perry. He was called at 3:48 a.m. and was at the Carman detachment at 4:34 a.m. He went to the breath room and confirmed the instrument was working. He confirmed some information with Constable Reimer, confirmed Ms. Perry’s identity by viewing her driver’s license, and had some discussion with her, confirming directly with her that she had been read her rights and the breath demand.

She confirmed she was willing to provide samples and that she did not want to call counsel. He explained to her how to provide samples. He checked her mouth, and while doing so, noted a strong odor of beverage alcohol from her breath. He noted that she had slurred speech. She advised him she had a palate extender in her mouth though he did not see it. He read her the police warning and she confirmed she understood at 4:43 a.m. He asked her when her last drink was. Ms. Perry replied that her last drink had been around 9:30 p.m., when she had been drinking wine with friends.

She said she had had two drinks. [ 12 ] At 4:51 a.m., Ms. Perry gave her first breath sample. After a second observation period, at 5:15 a.m., she gave a second breath sample. [ 13 ] Constable Sokolsky testified that Ms. Perry appeared very distressed, was crying, and appeared highly intoxicated. [ 14 ] Constable Sokolsky testified that he told her the results of her breathalyzer tests. She was served with the requisite documents, and was released to her boyfriend who picked her up at 5:53 a.m. [ 15 ] The Certificate of Qualified Technician signed by Constable Sokolsky was entered as an exhibit.

It confirms the first sample of Ms. Perry’s breath was taken at 4:51 a.m. on July 7, 2019, and the result was 110 milligrams of alcohol in 100 milliliters of blood, and the second sample was taken at 5:12 a.m. with the result being 90 milligrams of alcohol in 100 milliliters of blood. Ms. Perry’s Comments made to the Officers [ 16 ] Ms. Perry made comments to all three officers, which were testified to by the officers. She told officers that earlier that evening she had shared four bottles of wine with girlfriends.

She also told officers that she had had two drinks with her girlfriends, and that her last drink had been at 9:30 p.m. She told officers that she had caught her boyfriend cheating, he had kicked her out, so she had gone to her car, and called her mother to come and pick her up. She went to sleep in her car, and was trying to stay warm, while she waited for her mother to come and get her. Ms. Perry also commented to the officers on scene that she did not want to take the ASD test because she would fail it. [ 17 ] The voluntariness of all those comments was admitted by Ms.

Perry, and all the comments were admitted into evidence. DEFENCE EVIDENCE [ 18 ] Ms. Perry elected, as is her right, not to testify herself. She called one witness; Ms. Julie Belong. [ 19 ] Ms. Belong is Ms. Perry’s mother. She testified that on July 7, 2019 she was living in Morden with her daughter Ashley Perry and Ms. Perry’s son. She testified that she had seen Ms. Perry at around 6:30 p.m. or 7:00 p.m. the evening before, and had spoken to her. She did not observe anything unusual about her daughter. Ms. Perry had no slurred speech and showed no signs of having consumed alcohol. Ms.

Perry left the residence an hour or an hour and a half later. Ms. Belong next heard from Ms. Perry by phone

sometime between 1:00 a.m. and 4:00 a.m. As a result of receiving that call, Ms. Belong testified that she drove from her residence inMorden to Carman, intending to pick her daughter up and drive her back home. The drive from Morden to Carman takes about twenty-five minutes. She attended to the location where Ms. Perry’s car was parked, which she knew was outside Ms. Perry’s boyfriend’sresidence. When she arrived, there was nobody in Ms. Perry’s car, and all the lights were out. Ms. Belong said she figured that herdaughter was sleeping at her boyfriend’s place. So she left and drove back home.

The next time she heard from Ms. Perry, she learnedthat Ms. Perry had been arrested. THE ISSUES [20] The ultimate issue is whether the Crown has proved beyond a reasonable doubt the elements of either or both of the offencescharged. [21] Conviction of both offences requires proof beyond a reasonable doubt that, at the time and location alleged: 1. Ms. Perry’s ability to operate a motor vehicle was impaired to any degree by alcohol; 2. Ms. Perry’s blood alcohol level was equal to or exceeded the legal limit as alleged; and 3. Ms. Perry, was “operating” a motor vehicle, by having “care or control” of it.

ASSESSMENT OF THE EVIDENCE Is a “W.D.” analysis required in this case? [22] A decision in this case does not ultimately turn on an analysis pursuant to the framework set out in R. v W.(D.), (SCC), [1991] 1 S.C.R. 742. [23] Although defence evidence was called, the subject of that evidence was not the same as the subject of the Crown evidence. Thedefence evidence and the Crown evidence did not contradict each other or support different versions of what happened. Crown witnessesprovided testimony relating to different periods of time and events than Ms. Belong’s evidence related to.

The police officers testifiedabout their observations and what happened when they attended the parked vehicle, their interactions with, and observations of Ms. Perryat the vehicle, at the police station, and as to the breathalyzer testing. The defence evidence did not address any of that. It addressed onlyMs. Perry’s mother receiving a phone call and attending to the parked vehicle at a time shortly after the police and Ms. Perry had alreadydeparted the vehicle. There was no police evidence that contradicted Ms. Belong’s evidence. None of Ms.

Belong’s evidencecontradicted the police evidence. [24] The credibility and reliability of all the evidence of course has to be assessed. But, the W.D. test is not in play here. Even if allthe Crown evidence and the defence evidence is accepted, it is possible for the court to convict Ms. Perry of the offences, or, on theother hand, to acquit her of the offences. Credibility and Reliability of the Police Evidence [25] The three officers who testified are all experienced police officers who have dealt with numerous impaired individuals. All ofthem had notes about their dealings with Ms.

Perry that they made at the time they dealt with her, or shortly after. Constable Wiebe’sobservations were more detailed than Constable Reimer’s and referenced more indicia than Constable Reimer did, but their respectiveobservations as to Ms. Perry were not inconsistent with each other. Some of the observations made by Constable Sokolsky weredifferent, although those observations were made an hour after the relevant time, which is when Ms. Perry was located by ConstablesWiebe and Reimer, in the vehicle. The evidence of all the officers as to comments made to them by Ms. Perry was essentially the same.

Iaccept the evidence of all three officers as credible and reliable. Credibility and Reliability of Defence Evidence [26] Ms. Belong’s evidence was concise and straightforward. It was not shaken on cross examination. She agreed that the eventhappened two years ago and that it was hard to recall details, which likely explains the broad time range that she provided in terms ofwhen she received the phone call from her daughter. Her evidence in terms of when she arrived at Ms.

Perry’s car in Carman, and foundnobody to be inside, corresponds with the time frame testified to by Constables Wiebe and Reimer in that they had already left the scenewith Ms. Perry by then. There is no reason for the court not to accept Ms. Belong’s evidence. I do find Ms. Belong’s evidence to beboth reliable and credible. APPLICATION OF LAW TO THE EVIDENCE [27] The evidence established identity, jurisdiction and date. Issue 1: Was Ms.

Perry’s ability to operate a motor vehicle impaired by alcohol when she was observed in the vehicle by ConstablesWiebe and Reimer? [28] The “impaired” element of the offence of impaired operation of a conveyance is established by proof beyond a reasonabledoubt of any degree of impairment, ranging from slight to great. The Crown need not establish a marked departure from normalbehavior. Impairment is a question of fact for the trial judge (R. v Stellato, (SCC), [1994] 2 S.C.R. 478). [29] The combination of Ms.

Perry’s blood alcohol level at 90 milligrams of alcohol in 100 millilitres of blood, and the indicia ofimpairment described by one or both of the two officers who observed her on scene, including that she had bloodshot, red, watery eyes,an odor of alcohol coming from her breath, some mumbling and incoherent speech, and her admission of alcohol consumption, leads me

to be persuaded beyond a reasonable doubt that her ability to operate a motor vehicle was impaired to some degree. Issue 2: Did Ms. Perry’s blood alcohol level exceed the legal limit as alleged? [30] The Certificate of Analysis was admitted as an exhibit. That is proof that Ms. Perry’s blood alcohol level at 5:12 a.m., whichwas within two hours of being located in the motor vehicle by police, was 90 milligrams of alcohol in 100 milliliters of blood. TheCrown has proved beyond a reasonable doubt that Ms. Perry’s blood alcohol level exceeded the legal limit at the time and place alleged. Issue 3: Did Ms.

Perry have “care or control” of the parked motor vehicle at the time she was observed by police? [31] Even though Ms. Perry’s ability to operate a motor vehicle was impaired to some degree by alcohol, and her blood alcohol levelexceeded the legal limit at the time she was observed by police, those facts alone do not make out either of the offences. In order to beguilty of either offence charged, in addition to those factors, the court must be persuaded beyond a reasonable doubt that Ms. Perry wasin care or control of the vehicle at the time she was observed by police. [32] Ms.

Perry was not found by police in the driver’s seat, so there is no legal presumption of operation that has to be rebutted. [33] The case of R. v. Boudreault 2012 SCC 56 , [2012] 3 S.C.R. 157 confirmed the elements of the offence of care orcontrol while impaired or when one’s blood alcohol level exceeds the legal limit. [34] The point of appeal in Boudreault was one of law alone, that is, whether the existence of a realistic risk of danger to persons orproperty is an essential element of the “care or control” offence. The Supreme Court of Canada confirmed that it is (Boudreault, para10).

Whether or not the circumstances of a particular case create a realistic risk of such danger, is a factual finding to be made on theevidence (Boudreault, para 11). [35] Justice Fish concluded at paragraph 9 of Boudreault that: “care or control, within the meaning of s. 253(1) of the Criminal Code, signifies (1) an intentional course of conduct associated with amotor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) incircumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property. ” [36] At paragraph 13 of Boudreault, Mr.

Justice Fish stated that “Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs. Absent evidenceto the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. Inpractice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherentrisk is not a realistic risk in the particular circumstances of the case.” [37] In this case, Ms. Perry demonstrated an intentional course of conduct associated with a motor vehicle.

She got into it, turned onthe engine, got into the back seat, lay down and went to sleep. [38] The second element set out in Boudreault is also present. I have already found that Ms. Perry’s ability to drive was impaired byalcohol, and her blood alcohol level exceeded the legal limit. [39] Like in Boudreault, whether there was a realistic risk of danger to persons or property, is the crux of the issue in this case. [40] As stated in Boudreault, absent evidence to the contrary, a present ability to drive while impaired, or with an excessive bloodalcohol ratio, creates an inherent risk of danger.

To avoid conviction, Ms. Perry has to provide evidence tending to prove that theinherent risk is not a realistic risk on the facts of her case. [41] In Boudreault, the accused had a present ability to drive. Mr. Boudreault was sitting in the driver’s seat, with the enginerunning, and he did not have to do anything to set the vehicle in motion except put the vehicle in gear, either intentionally or accidentally.Ms. Perry did not have quite that same present ability to drive, although she did have what I would describe as an accessible ability todrive.

That is, she could have gained an ability to drive, but to do so, she would have had to first take a number of positive steps, namelywaking up, sitting up, moving to the front of the vehicle from the back, and then getting into the driver’s seat, from which she could thenput the vehicle in motion. The fact of those extra steps having to be taken, alone suggest less of a risk that Ms. Perry would set thevehicle in motion than the risk someone in Mr. Boudreault’s circumstances might pose. [42] The only realistic risk of danger to persons or property could occur if Ms.

Perry, in her impaired state, put the vehicle inmotion. This could be intentional or accidental. It does not matter which. For such risk to be found, it has to be realistic, and not justtheoretically possible. (Boudreault, para 34). [43] There is no evidence as to any way that Ms. Perry could have accidentally put the vehicle into motion while she was lying inthe back seat. [44] Based on the evidence, I accept that Ms. Perry had a plan to get home without driving herself, that she had put that plan intomotion and was just waiting to be picked up. There is no evidence that she intended to drive.

Her plan was objectively concrete andreliable. Ms. Perry had made the call to her mother, and her mother had responded by travelling to Carman to pick Ms. Perry up. [45] As long as Ms. Perry consistently followed through with the plan to wait in the vehicle for her mother to pick her up, withoutdriving herself, there was no realistic risk of danger. The only realistic risk of danger to persons or property would be if Ms. Perry were

so intoxicated that her judgment was impaired to the degree that she would change her mind and decide to drive after all, even though she knew her mother was on the way to pick her up. [ 46 ] Ms. Perry’s blood alcohol ratio was over the legal limit but not greatly over. When a flashlight was shone into the vehicle by officers, she sat up right away and was responsive. She was responsive to questions from the officers, and, although visibly upset and emotional, she was ultimately cooperative with their directions.

She was able to articulate her plan for alternate transportation coherently to the officers on scene, and explained the same plan again to the breath technician. Further, her conduct between the time officers were dispatched to the scene at 3:00 a.m., and 3:40, when the officers located Ms. Perry asleep in the back seat of the vehicle with the engine running, appears to have been consistent with the plan for alternate transportation she told the police she had arranged. In the intervening forty minutes, by all accounts, she had not moved the vehicle and had remained in the vehicle waiting for her mother.

In my view, although she was impaired to some degree, Ms. Perry was not so impaired by alcohol that she was likely to divert from her plan, change her mind, and put the vehicle in motion, instead of waiting for her arranged ride home. [ 47 ] In all the circumstances, I am persuaded that there was no realistic risk that Ms. Perry would drive, or do something accidentally to put the vehicle in motion, that would cause danger to persons or property. CONCLUSION AND DECISION [ 48 ] Although I am satisfied beyond a reasonable doubt that Ms.

Perry’s ability to operate a motor vehicle was impaired by alcohol to some degree, and that her blood alcohol level exceeded the legal limit when she was located by police in a motor vehicle at the alleged time and place, because I have found that the circumstances did not create a realistic risk of danger to persons or property, I am not satisfied beyond a reasonable doubt that Ms. Perry had care or control of the motor vehicle as alleged. [ 49 ] Accordingly, I find Ms. Perry not guilty of both offences charged, and acquit her. “Original signed by” C. CARLSON