R. v. Makortoff Date:, 2012 BCPC 225

Citation: R. v. Makortoff Date: 20120416 2012 BCPC 0225 File No: 180516-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EDWARD JAMES MAKORTOFF ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.G. MacDONALD Counsel for the Crown: D. Lloyd Counsel for the Defendant: D. Gosal Place of Hearing: Surrey , B.C. Dates of Hearing: November 24, 2011; January 3, 30, April 2, 2012 Date of Judgment: April 16, 2012 [ 1 ] THE COURT : The accused here is charged with impaired care or control of a motor vehicle and driving with more than 80

milligrams of alcohol per hundred millilitres of blood and having care or control of a motor vehicle. The incidents take place on December the 19th, 2009. Because we have been through a fairly lengthy voir dire and this has occurred over a number of days and I have reviewed the evidence on other occasions, I will be fairly brief. [ 2 ] There was a civilian witness who observed the accused driving. The driving was horrendous, really. He followed the vehicle driven by the accused. It was around 12:30 in the morning, he said. He was going southbound on 200th.

He said the vehicle came up behind him, the vehicle driven by the accused nearly struck him. The vehicle was high-beaming. The vehicle driven by the witness Mr. St. Cyr pulls over at 36th Avenue to let the vehicle pass and the vehicle does go by. [ 3 ] The accused was driving this vehicle that was described as a white GMC Sierra truck by Mr. St. Cyr. He said the Sierra hesitated and then swerved to the right side of the road where there was a sidewalk and then passed on the left, said it passed within a few feet or so.

He said on 200th southbound of 36th Avenue the accused's vehicle crossed over the oncoming lane and touched the dirt on the far side, so went all the way across the road, all the way across the oncoming lane and touched the dirt on the far side of the road, on the oncoming side, and then back again, and this happened three or four times. There was some oncoming traffic during all that period of time. He said after one near accident he called 9-1-1.

He said the vehicle would go over to the right-hand side and touch the dirt on the right-hand side, and then over to the driver's side and to the far side of the road. [ 4 ] The witness, Mr. St. Cyr, in my view, was an extremely strong witness, had good recollection of the incidents. He was credible and gave his evidence in that fashion. He saw the police car come into play and the police car driven by Cst. Day, as we find out later, takes over observation of this vehicle at 24th Avenue where he sees the vehicle approaching and he felt the vehicle was not going to stop at the stop sign.

At the last minute it braked rapidly and did almost stop, did a California stop, and carried on south on 200th. The vehicle was weaving within its lane, swerving. The wheels touched the grass on the right-hand side and then went right across the road, crossing the centre line and the wheels almost touched the ditch on the northbound side. The vehicle, of course, was going southbound. [ 5 ] After the vehicle crossed back and forth like this and into the oncoming lane, the officer noticed an oncoming vehicle. He pulled into the oncoming lane and flashed on his emergency lights.

The other vehicle did not seem to slow down and there was a near collision. In fact, the driver's side wheels of the accused's vehicle were over the centre line at the time that the oncoming vehicle passed. The siren was eventually put on and the vehicle driven by the accused was pulled over. [ 6 ] The officer had a conversation. The officer asked him if he knew why he was being stopped.

He responded, "No." One would think at that point that regardless of the possible reasons for the weaving, if it was something other than impaired by alcohol, that the accused would not be surprised by why he had been stopped because the driving, as I said, was horrendous. The officer told him he was swerving all over the road, and he said the accused did not believe him.

I have no explanation for why somebody would say that, and the accused, who gave evidence in this case, certainly does not explain it. [ 7 ] The officer said that he made observations of impairment, watery eyes, glassy eyes, red face, inability to focus on the officer. The accused said he had some problems with his eyes, which I will get to, which may have some affect on that. He was slurring his speech to some degree, slurring the last syllable of a word, extending it. When he was asked for his driver's licence, he produced his wallet instead and handed it to the officer.

The officer asked him to remove the driver's licence and he had great difficulty getting it from behind the plastic shield in the wallet. He displayed diminished fine motor skills. [ 8 ] He finally produced his driver's licence in the name Edward Makortoff. Asked where he was coming from and going, he said he was at a friend's house in Langley. Asked if he had consumed any alcohol prior to driving, he said no. We know from the readings which are obtained shortly thereafter that that is a lie. [ 9 ] The officer asked him to exit the vehicle. He got out and he walked.

He had weak knees when he walked, he almost stumbled; he was unsteady on his feet although not staggering. He was walking gingerly. It was flat, paved asphalt. At the front of the vehicle as he stood in front of the police car he was swaying slightly back and forth. The officer, who has an impairment in his ability to detect smells, says that he cannot smell liquor on the breath of a person. Some things he says he smells very well, but not liquor. This is something he has noticed in his life, in his everyday life and certainly in his career as a police officer.

So there is no odour of liquor detected by the officer. I have no doubt there was an odour of liquor in that the accused had a substantial amount of alcohol in his system at the time. [ 10 ] The accused was arrested for impaired care or control; he was handcuffed, he was Chartered and warned. He was asked if he wanted to call a lawyer, he said, "Yes, I would." The police warning was read to him, breath demand read to him. His response to the breath demand is, "Are you serious? Come on, man. Come on. Where do we go from here? Let's get this done.

I'm like one block from my house, one block." I am not sure why that would make a difference to somebody, but apparently it did to the accused. [ 11 ] They leave the scene; they go back to the police station. Two breath samples are obtained, one at 1:48 a.m. and one at 2:10. The 1:48 a.m. is the 310 milligram reading and the one at 2:10, which is the one that we attribute to the accused, being the lesser of the two readings, was 300 milligrams. That's three-and-a-half times the legal limit of alcohol in one's system. He was served with the certificates and he was released about 2:45 in the morning.

That is the case for the Crown. [ 12 ] The accused gave evidence, but it was not very helpful in that the accused says he really remembers nothing of that night. He was asked if he remembered that day, December the 19th, 2009. He said, "I don't remember that day. It's two years ago," and gave an example of how the witness was unable to remember certain details. He was asked by the Crown in cross-examination if he could remember his vehicle weaving that night. He said no. He was asked if he was drinking that night and he did not deny that he was drinking. He did not admit it either.

He says, "I don't recall." I must say, on that point I do not believe the accused for one second. In the absence of a head injury or some mental illness, somebody who is stopped and arrested for impaired driving, at least the next morning when they wake up and realize what happened, certainly remembers the day before. They remember if they were drinking or not. They might not remember every detail, but I do not believe for one second that the accused does not remember.

In fact, in all my years on the bench I cannot recall a statement as blatantly false as that. [ 13 ] The accused talks about his eyes and said he had some scraping done on the right eye; he has a degenerative disease in his

corneas, that he had a corneal transplant on his left eye, not sure when it was, somewhere around that time; in fact he thinks it was after the incident and it had some affect on his vision, he had diminished vision. [ 14 ] I am not sure the relevance of any of that. He does not pretend to say that he was so blind as he drove down the road that he could not tell if he was on the right side of the road or not.

He said he could see the lines on the road and he could tell if he was weaving, and he denied that he was weaving, so I am not sure the relevance of the eye problems; perhaps to indicate that he might have trouble focusing, although he did not say that. But that would be the biggest stretch you could get from that. In any event, there are no statements put forward which would in any way explain the horrible driving, the symptoms of impairment which are towards the serious end of impairment, and the extremely high reading, like I said, three-and-a-half times the legal limit of alcohol in his body.

On the impaired charge, the evidence is overwhelming. [PROCEEDINGS] [ 15 ] THE COURT: I do not really see an issue, and since it is not suggested that I should not make the finding, I am going to find that the accused is guilty; the Crown has proven the case beyond a reasonable doubt. With respect to the impairment it is an overwhelming case, in my view, and I find him guilty of that offence. [ 16 ] I also find him guilty with respect to over .08.

I would not enter a conviction on that offence just because of the Kienapple decision; however, there is ample evidence before the court from which he could be found guilty and I do find him guilty; I am just not going to enter a conviction on that. (REASONS FOR JUDGMENT CONCLUDED)