Her Majesty the Queen - v. -, 2015 SKPC 110

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 110 Date: August 24, 2015 Information: 24520722 Location: Melville _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tristen John Rodney Thiele Appearing: Mr. Barrie Stricker For the Crown Self-Represented For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] Mr. Thiele is charged on March 7, 2015, at Melville with operating a motor vehicle while disqualified from doing so by reason of a legal disqualification in the Province of Saskatchewan of his right or privilege to operate a motor vehicle in that province contrary to s. 259(4) of the Criminal Code .

[ 2 ] Around 4:00 p.m. this day, Mr. Thiele was arrested for this offence by Cst. Demeria, a few minutes after the officer claimed to have seen Mr. Thiele driving. The Crown submits that the reason Mr. Thiele was disqualified from driving was because he was suspended under s. 148(5) of The Traffic Safety Act ( TSA ) of Saskatchewan after he was charged in Esterhazy on September 23, 2014 with an offence under s. 253 of the Criminal Code . Under s. 148(5) the TSA suspension remains from the date he was charged until the date that charge is stayed or withdrawn or until he is acquitted or convicted of the offence.

Mr. Thiele, in response to this charge, denies that he was driving when passed by Cst. Demeria. [ 3 ] As a result, the issues to be determined in this case are:

(1) Was Mr. Thiele driving his vehicle this day?

(2) If so, was he disqualified from so doing under s. 259(4) of the Criminal Code ? II. BACKGROUND [ 4 ] Cst. Demeria was driving his police vehicle this day with Cst. Coder as a passenger. On Delschneider Road they passed a Dodge pickup truck coming directly towards them. Cst. Demeria, who had frequent dealings with Mr. Thiele, said he was within 10 feet of the driver and clearly could see it was Mr. Thiele. This officer turned around and followed Mr. Thiele’s vehicle, which had entered the parking lot of TJ’s Store. When the officers pulled into the parking lot, the Thiele vehicle was empty, as Mr.

Thiele and his passengers - Travis Sawchuk and Daniel Molhart - had gone inside TJ’s. [ 5 ] Cst. Demeria and Cst. Coder waited for several minutes for Mr. Thiele to exit the store. When he did not, Cst. Demeria went into the store and arrested Mr. Thiele. The subsequent discussion between the two was described by Cst. Demeria, and was ruled admissible after a voir dire . That discussion included Mr. Thiele saying that he had pending criminal charges in Esterhazy which he had pled not guilty to and that he believed he had been suspended from driving for 90 days as a result of these charges. [ 6 ] Cst.

Coder was sitting in the passenger seat of the police vehicle next to Cst. Demeria. He recognized the driver to be Mr. Thiele. He said he was within 10 feet of the driver at the time they passed by Mr. Thiele’s vehicle, and he had unobstructed vision of who was driving. He recognized the others in the car as Travis Sawchuk and Daniel Molhart. He said Mr. Sawchuk was 5’10” with dirty blonde hair and Mr. Molhart was 5’8” with dark hair. He said Mr. Molhart had shorter hair than Mr. Thiele and, on this day, Mr. Thiele had longer fluffy hair which was sticking out of his baseball cap. Mr.

Thiele was photographed at the detachment both with the baseball cap and without. [ 7 ] The other witness for the Crown was Cst. Jesse Manley of the Esterhazy RCMP. He confirmed that on September 23, 2014, he charged Mr. Thiele with offences under s. 253 of the Criminal Code . About 10 minutes of a video interview between him and Mr. Thiele that day was played in Court. This showed the portion where the two men discussed Mr. Thiele’s suspension under The Traffic Safety Act . In that video, Cst. Manley tells Mr. Thiele that his vehicle is impounded for 30 days and that he is suspended from driving for 60 days.

Later in the video, Mr. Thiele says to the officer: “so I have 30 days on the truck and 60 days on my licence?” The officer responds “yes”. At the trial, the officer admitted that he was mistaken in what he told Mr. Thiele, but said the Notice of Suspension he gave to Mr. Thiele that night clearly indicated an indefinite administrative licence suspension for him until his charges are disposed of in Court, under s. 148 of The Traffic Safety Act (Exhibit P-2). [ 8 ] Mr. Thiele testified that he was not driving that day.

He said he had a licenced driver bring the truck to town and he got another licenced driver to get him where he wanted to go that day. He said the vehicle he was in went down Delschneider Road, and then into the parking lot at TJ’s. He got a drink and was on his way out when he was arrested. He said, before being arrested, Travis Sawchuk told him he was about to be arrested by Cst. Demeria. He said he figured it was easiest to get Danny Molhart to give him his keys back to deal with the situation.

Despite his belief his driver’s licence was only suspended for 60 days as a result of his Esterhazy charges, he said he didn’t want to drive in Melville “to avoid complications”. [ 9 ] Neither Mr. Sawchuk or Mr. Molhart were present or testified at the trial. Mr. Thiele, however, called two other witnesses. Adam O’Keefe said he had the police pass by or follow him on a number of occasions while driving Mr. Thiele’s truck. He couldn’t

identify the officers, and said this happened in Melville or on the outskirts of Melville. It was clear from his evidence he was never stopped by the police. [ 10 ] Cody Kurtz said he had operated Mr. Thiele’s truck a number of times. About half of those times he had been followed by the police. On one occasion he pulled over to look at his cell phone and he was questioned by two officers, one of which was Cst. Coder, about whether Mr. Thiele had been driving. III. WAS MR. THIELE DRIVING HIS VEHICLE THIS DAY? [ 11 ] Having considered the evidence of both police officers, I accept their evidence that they saw Mr.

Thiele driving his pickup truck this day on Delschneider Road in Melville. This happened in the late afternoon, with clear conditions in daylight, the vision of both officers unobstructed, and the officers less than 10 feet away from where the driver of Mr. Thiele’s vehicle sat. Both officers were well acquainted with Mr. Thiele, together with the two passengers in the vehicle. In total, I accept their evidence that Mr. Thiele was the driver. [ 12 ] I do not accept Mr. Thiele’s evidence that he was not driving. In rejecting his evidence I note, primarily, that neither Mr. Sawchuk or Mr.

Molhart were called by him to testify at this trial. I further note his evidence, which appears to be supported by the video with Cst. Manley, that he believed he had been suspended for 60 days on September 23, 2014, and that he could legally drive this day. As a result, what is not disputed is that we have a person who thought he could legally drive in his own vehicle that day. These factors, taken together with the strength of the evidence of the officers and the reality that Mr. Thiele never said whom he claimed was driving (although he said he got the keys from Mr.

Molhart at the store), leads me to reject Mr. Thiele’s denial. The evidence of Mr. O’Keefe and Mr. Kurtz in my view adds nothing to the question of whether he was driving this day. IV. IF SO, WAS HE DISQUALIFIED FROM DRIVING UNDER S. 259(4) OF THE CRIMINAL CODE ? [ 13 ] Mr. Stricker submitted that Mr. Thiele’s suspension under s. 148(5) of The Traffic Safety Act provided the basis of the disqualification under s. 259(4) of the Criminal Code .

He argued that the definition of disqualification in s. 259(5) does not apply to an offence under s. 259(4) , in part because the sections and subsections listed in s. 259(5) do not include s. 259(4) . I disagree. [ 14 ] Section 259(4) makes it an offence if someone operates a motor vehicle while disqualified from doing so. Section 259(5) defines “disqualification” and begins with the words “[f]or the purpose of this section”, which clearly applies to all of s. 259, including s. 259(4) . It states “disqualification” means: (

a) a prohibition from operating a motor vehicle ... ordered pursuant to any of subsections (1), (2) and (3.1) to (3.4); or (

b) a disqualification or any other form of legal restriction of the right or privilege to operate a motor vehicle ... imposed (

i) in the case of a motor vehicle under the law of a province ... in respect of a conviction or discharge under s. 730 of any offence referred to in any of subsections (1), (2) and (3.1) to (3.4). [ 15 ] The offences referred to in subsections (1), (2) and (3.1) to (3.4) of s. 259 are found in sections 220, 221, 236, 249, 249.1, 249.2, 249.3, 249.4(1), 249.4(3), 249.4(4), 250, 251, 252, 253, 254 and 255(2) to (3.2).

As a result, a “disqualification” as defined in s. 259(5) results from a Criminal Code driving prohibition from one of these named offence sections, or from a provincial driving disqualification which extends such a Criminal Code driving prohibition. [ 16 ] In this case, there is no evidence that Mr. Thiele was ever prohibited from driving under any of the Criminal Code offence sections listed above. In my view, that means that Mr. Thiele was not disqualified within the meaning of s. 259(5).

As the definition of “disqualification” in that subsection applies to all of s. 259, neither was he disqualified under s. 259(4) . The fact that s. 259(4) is not mentioned in the definition of “disqualification” in s. 259(5) is in my view not relevant. That is because the subsections listed in s. 259(5) (subsections (1), (2) and (3.1) to (3.4)) only serve to identify the Criminal Code sections from which a driving prohibition may

flow. V. CONCLUSION [ 17 ] Despite my conclusion that Mr. Thiele was driving this day, I have a reasonable doubt that he was disqualified from doing so under s. 259(4) of the Criminal Code , and as a result he is found not guilty. R. Green, J