Her Majesty the Queen - v. -, 2016 SKPC 177

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 177 Date: December 20, 2016 Information: 90121622 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mark Kyler McKee Appearing: Mr. T. Healey For the Crown Mr. R. Piché For the Accused JUDGMENT I.J. CARDINAL , J Introduction [ 1 ] As the result of being found in the driver’s seat of a vehicle in a ditch, Mr. McKee is charged that he did on March 26, 2016 in Melfort, Saskatchewan operate a motor vehicle while his ability to do so was impaired by alcohol, contrary to section 253(1) (

a) of the Criminal Code .

[2] The Crown called two witnesses, Cst. Monsees and Cst. Redekopp. The defence called no evidence. [3] Counsel have agreed that the issue is not whether he was operating the motor vehicle, but whether he was in care or control of it.

There was no evidence the accused was driving the truck, but care or control is an includedoffence of operating a motor vehicle, as stated by the Supreme Court of Canada in R v Drolet (1988), (QC CA), 14MVR (2d) 50 (Que CA) aff’d (1990) (SCC), 2 SCR 1107 and noted in R v Pincemin, 2004 SKCA 33 at para 24, (2004)SJ No 134 (QL) and R v Campbell 2002 SKQB 109. [4] For the following reasons, I find him not guilty of the offence of operating a motor vehicle while his ability to do so was impaired by alcohol, but guilty of the included offence of care or control of a motor vehicle whilehis ability to do so was impaired by alcohol.

Facts [5] The facts were not seriously disputed. At approximately 11:50 p.m. on March 26, 2016, Cst. Monsees and Cst. Redekopp of the Melfort Royal Canadian Mounted Police were on patrol, travelling east on Spruce Haven Road inthe city of Melfort. In the ditch on the north side of the road, they saw a white truck sitting on top of the chain link fence that surroundsa nearby ball diamond. The truck was pointing to the west, and was straddling the fence, with the length of the truck along the length ofthe fence. Pictures were taken of the scene from various angles and marked as Exhibit P-1 through to Exhibit P- 6.

The vehicle is awhite four wheel drive, four door Ford truck. [6] The evidence of Cst. Monsees and the photographs indicate the truck drove straight into the ditch from the gravel road on which it was travelling. It then drove over the fence for a short distance and appeared to have becomestuck in the snow, or hung up on the fence, or both. Although neither officer testified about the height of the fence or gave a descriptionof it, the photographs show the fence is about three feet high, as it appears to be just below or at the hood of the vehicle.

It has metal oraluminum posts supporting it and the top of it has metal or aluminum tubing along it to hold up the chain link. The vehicle caught thefence, not at the end of it, but somewhere along its length as Exhibit P-1 shows the fence continuing along in front of and behind thetruck. [7] Both officers could see the male operator of the truck was attempting to move the vehicle off the fence. Cst. Monsees saw the back wheel on the driver side of the truck spinning in an apparent effort to become unstuck. Cst.Monsees testified that the vehicle was stuck and was “going nowhere” without a tow. Cst.

Redekopp noted the lights were on, and theengine running. [8] The police activated their emergency lights and pulled off to the opposite side of the road from the truck. Cst. Monsees approached the truck. The wheels were no longer spinning. Both officers observed the driver, lateridentified as Mr. McKee, get out of the driver’s side of the truck and as he did so, stumble into the ditch. [9] Both officers described it as stumbling or tripping, with Cst. Redekopp observing that it appeared the male caught himself as he stumbled. Cst.

Monsees approached the driver and detected a strong odour of beverage alcoholon his breath. He was swaying and unstable on his feet, with his hands in his pockets. He swayed back and forth, and from side to side,and could not stand up straight. At some point, she asked his name and he stated it was Mark McKee. [10] Based on her observations of the accused, including the location and placement of the truck atop a fence, Cst. Monsees formed the opinion that Mr. McKee’s ability to operate a motor vehicle was impaired by alcohol.

Shearrested him for that offence and for the offence of committing mischief under five thousand dollars to the fence (this offence will bediscussed in court as it was not yet argued before me). At 11:53 p.m. she handcuffed him behind his back and both she and Cst.

Redekopp walked him from the ditch over to the police vehicle that was parked on the gravel road about 15 or 20 feet away. Cst. Redekopp testified that if the police had not had a hold of Mr. McKee, he would have fallen over. [ 11 ] At 11:54 p.m. Cst. Monsees placed Mr. McKee in the back of the police vehicle. Once in the police vehicle she gave him rights to counsel, but he did not seem to understand and she explained it to him a couple of times. She also had to explain the police warning to him numerous times.

At 12:04 she gave him the breath demand and they drove to the detachment, which took about two to two and a half minutes. [ 12 ] At the detachment, Cst. Monsees testified the accused was very agitated and had to physically be removed from the police vehicle in the bay. She testified he refused to get out of the vehicle when told to do so, and Cst. Redekopp had to pull him out. Cst. Redekopp gave similar evidence of resistance by the accused and that he was forcibly removed from the vehicle. [ 13 ] I note at this juncture that, in cross-examination, defence counsel played the video of Mr.

McKee at the detachment, which was marked as Exhibit D-1. There is no audio on the recording, and while it is a continuous play it is more of a set of stills that move at an approximate speed of two frames per second. The actual times are slightly different than those to which the officers testified, but it is of no consequence as both officers estimates of the length of time that elapsed appear to be quite close to those in the video.

I note that in cross-examination, each of the officers watched the video footage from the secure bay at this point in time, and accepted that it shows the accused steps out of the police vehicle without any assistance from the police. Both officers admit their evidence in this regard was not correct, and I accept Mr. McKee did get out of the vehicle on his own power when the police first arrived at the detachment. [ 14 ] Once inside the detachment, Cst. Monsees testified they usually get an accused to sit as there is a bench and lockers for storage of personal items. Mr.

McKee did sit, and they told him to remove his boots, but he would not, and kept standing up, getting right up to the police officers faces, bumping them with his chest and pushing with his shoulder. She was on one side of the accused and Cst. Redekopp on the other. Both of them pushed him back down onto the bench. [ 15 ] This happened a couple of times and at one point Cst. Redekopp pinned the accused down on the bench and used painful compliance techniques on his neck in an effort to gain his compliance. Cst. Monsees testified that both she and Cst.

Redekopp were trying to calm the accused down by repeatedly telling him to sit down, calm down, relax and take off his boots. Still, Mr. McKee, who was handcuffed behind his back, would not listen to the officers and continued to resist by sitting up and trying to stand up. Cst. Redekopp again pushed Mr. McKee onto the bench and applied the technique to his neck. Cst. Redekopp then grabbed him by his shoulders and pushed Mr. McKee down onto the floor. [ 16 ] As a result of being pushed to the floor, Mr.

McKee’s nose began bleeding, and concerned his nose may be broken, the officers advised him they were taking him to the hospital to be assessed. Mr. McKee continued to resist the police officers and, according to Cst. Monsees, once they gained control, they had to continue to use force to get him into the police vehicle. They left the detachment at approximately 12:13 a.m. [ 17 ] Cst.

Redekopp gave very similar evidence concerning this interaction with the accused, and I note the video illustrates there was a scuffle between the officers, but because the video is not actually streaming in real time, some movement by the officers and the accused is lost. The video also shows the accused resisting the police in their attempts to place him in the vehicle.

I accept the evidence of both officers that the accused was being belligerent, was not listening to commands and had to be forcibly controlled due to his unruly, irrational behavior. [ 18 ] Upon arrival at the hospital, both officers testified they had to fight to get Mr. McKee into the hospital as he continued to be belligerent and was spitting blood on the officers and getting it in their faces. As they walked toward the hospital, Mr. McKee was yelling that the officers were going to kill him.

[19] At the hospital, a nurse advised his nose was not broken. He appeared calmer and they moved his cuffs from the back to the front. They were there about 15 to 20 minutes and left to go back to the detachment at 12:35 a.m.and arrived at 12:38 a.m. [20] Once at the detachment, Mr. McKee appeared to be more co-operative according to Cst. Monsees. He took off his boots and they took off his cuffs. When they took him to the telephone room to call a lawyer, they had adiscussion about that and the accused became belligerent.

He did speak to a lawyer in private, and when he opened the door of the roomafter the call, he was swearing at the police, belligerent and argumentative. He was placed in a cell where he finally calmed down andwent to sleep. Issues 1. Has the Crown proven the accused was impaired by alcohol? 2. Has the Crown proven beyond a reasonable doubt that the accused had the care or control of a motor vehicle, even though thevehicle was stuck in the ditch?

Impairment [21] I am mindful the onus is on the Crown to satisfy me beyond a reasonable doubt that the ability of the accused to have the care or control of a motor vehicle was impaired by alcohol.

Any degree of impairment, from slight togreat, will suffice to ground a conviction. (See R v Stellato (1993), (ON CA), 78 CCC (3d) 380, aff’d [1994] 2 SCR47. [22] In R v Landes, (SK KB), [1997] SJ No 785 (QL), Justice Klebuc (as he then was) stated at paragraph 16: An opinion as to impairment, be it by the trial judge or a non-expert, must meet an objective standard of “an ordinary citizen” or a“reasonable person” in order to avoid the uncertainties associated with subjective standards, particularly when based on inferences.

Tothat end a list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’smental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive a motorvehicle.

Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot orwatery eyes; (3) presence of a flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of coordination and inability toperform physical tests; (7) lack of comprehension; and (8) inappropriate behavior. [23] And further at paragraph 17: In my view, a trial judge must carefully review all of the reported tests and observations which inferentially support or negate anyimpairment of the accused’s mental and physical capabilities, and then be satisfied beyond a reasonable doubt that the reasonableinferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of theCriminal Code.

A piecemeal approach supporting or negating impairment is not permissible… [24] The accused did not testify and I am left with the evidence of the officers. Here the officers were presented with a truck that, for no apparent reason, had left the road, driven straight into the shallow ditch and over a

fence. I accept the evidence of Cst. Monsees that the accused appeared to stumble as he got out of the truck, was swaying back and forthand side to side as he stood beside the white truck in the ditch, and had a strong odour of beverage alcohol coming from his breath. [25] I also accept the observations of Cst. Redekopp that Mr. McKee stumbled or tripped as he got out, and that if the police were not holding onto to him at roadside, he would have fallen over.

His inability to understand Cst.Monsees when she read him his rights to counsel and police warning, are further signs of impairment as is his unexplained belligerent,irrational attitude toward the police once he was at the detachment such that he had to be physically restrained and forcibly moved. [26] I accept there are some inconsistencies between the evidence of the officers as to what transpired at the detachment and that shown in the video (Exhibit D-1). However, these are not significant in my opinion, as given thedisruptive behavior of Mr.

McKee it does not surprise me that the officers may have been mistaken as to the order of events or when Mr.McKee resisted and how he did so. [27] There is no inconsistency in the Crown evidence that gives me pause such that I cannot rely on the evidence of the police officers. Both officers gave their evidence in a forth right manner. They were careful in testifying andwhile their evidence as to what they each observed over the course of the evening, especially at the detachment, varied, I find that eachof them provided credible, reliable, and trustworthy evidence. [28] I do not accept Cst.

Redekopp’s evidence that the accused was slurring his words as he could not point to anything specific in his evidence. Even if I reject Cst. Redekopp’s evidence in its entirety as suggested by defencecounsel, on Cst. Monsees evidence alone I am satisfied beyond a reasonable doubt Mr. McKee’s ability to operate or have the care orcontrol of a motor vehicle was impaired by alcohol. Care or Control The Presumption [29] The remaining question is whether Mr. McKee had the care or control of the motor vehicle at the time the officers happened upon him. Section 258(1)(

a) of the Code provides a rebuttable presumption in law and states: …where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, …theaccused shall be deemed to have the care or control of the vehicle…as the case may be, unless the accused establishes that the accuseddid not occupy that seat or position for the purpose of setting the vehicle…in motion… (Emphasis mine) [30] Mr. McKee was the only person in the vehicle, and observed by both police officers to be seated in the driver’s seat when they arrived on the scene.

Having been found in the driver’s seat of the vehicle, Mr. McKee is deemedto have the care or control of the vehicle, unless he establishes that he did not occupy that seat for the purpose of setting the vehicle inmotion. Mr. McKee did not testify, nor did anyone testify on his behalf. [31] Where the Crown relies on the presumption in s. 258(1)(a), the risk of danger is not an element the Crown need establish in proving the offence of care or control.

Further, the presumption applies where the vehicle isimmoveable. (See R v Amyotte, (ON SC) [32] The accused did not testify as to his intention, and has not proven on a balance of probabilities that the presumption does not apply. The presumption remains and I need not go further in my analysis. I find the accusedguilty of having the care or control of a motor vehicle while his ability to do so was impaired by alcohol.

De Facto Care or Control [ 33 ] However, even if I am mistaken and the accused has rebutted the presumption by the mere fact that the vehicle was stuck in the ditch and immoveable, I find that he had de facto care or control as outlined in R v Boudreault , 2012 SCC 56 at paras 33 and 34 , [2012] SCR 157: [33] In this light, I think it helpful to set out once again the essential elements of “care or control” under s. 253(1) of the Criminal Code in this way: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or property. [ 34 ] The risk of danger must be realistic and not just theoretically possible: Smits , at para. 60.

But nor need the risk be probable, or even serious or substantial. [34] As noted in Boudreault , supra ,: [12] I recognize, as the trial judge did, that a conviction will normally ensue where the accused, as in this case, was found inebriated behind the wheel of a motor vehicle with nothing to stop the accused from setting it in motion, either intentionally or accidentally. [13] Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs.

Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger.

In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case...... [48] I need hardly reiterate that “realistic risk” is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.

To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. [49] The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. .. [ 35 ] Counsel for Mr. McKee argues that the motor vehicle was inoperable or immoveable, as it was stuck in the ditch.

Also, given its location or placement, under no reasonably conceivable circumstances, could it pose a danger. I find this argument has no merit. [ 36 ] Cst. Monsees testified, and the photographs of the truck in the ditch illustrate, that this

was a shallow ditch with only a few inches of snow in it, by her estimate, six inches or so. The tires were all on the ground, and the main impediment appears to be the fence, and to a lesser degree, the snow. [ 37 ] The evidence establishes the vehicle was operable. Mr. McKee was clearly attempting to move the truck off the fence, out of the ditch, and back onto the road. Cst. Monsees saw the rear tire spinning, and the engine was running. I find Mr.

McKee was depressing the accelerator pedal, with the vehicle in gear, in an effort to dislodge the truck from the ditch. [ 38 ] There was a realistic risk of danger that the accused could have eventually worked the truck free, driven out of the ditch, and continued on his way. Given he was in the city limits, there was also a realistic risk of danger that someone could attend and give him a tow such that he would be free of the ditch and continue on his way. Further, Mr. McKee may have continued to drive the truck along the fence, creating more property damage.

Anyone in the vicinity attempting to help him could suffer injury due to flying debris, such as pieces of the fence that may become dislodged due to his efforts to free the truck. [ 39 ] In these circumstances, I find the Crown has proven the accused had de facto care or control of the motor vehicle as outlined in Boudreault , supra , and I find him guilty.

Conclusion [ 40 ] On all of the evidence I do accept, I find the Crown has proven beyond a reasonable doubt that the accused had the care or control of a motor vehicle while his ability to do so was impaired by alcohol and I find him guilty. __________________ I.J. Cardinal, J