Her Majesty the Queen - v. -, 2012 SKPC 151

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 151 Date: November 6, 2012 Information: 44303227, 36653160 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Clayton Darcy Ahenakew Appearing: Pat Tondevold For the Crown Leslie Dunning For the Accused JUDGMENT P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged on or about July 2, 2011, at or near Saskatoon with committing the following offences:

1) operate a motor vehicle while his ability to operate the vehicle was impaired by alcohol, contrary to s. 253(1) (

a) of the Criminal Code ; 2) having the care, charge or control of a motor vehicle that was involved in an accident with a vehicle at the 1600 block of 22 nd Street, with intent to escape civil or criminal liability, fail to stop his vehicle and give his name and address or offer assistance to any person who was injured or appeared to require assistance, contrary to s. 252(1) of the Criminal Code ; 3) operate a motor vehicle having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, contrary to s. 253(1) (

b) of the Criminal Code ; 4) steal Chevrolet Cavalier the property of Sandra Vidmar of a value not exceeding five thousand dollars, contrary to s. 334 (

b) of the Criminal Code . [ 2 ] Prior to a collision at the scene, the parties had been drinking together at a party. They were familiar with each other from past experience. Both the complainant and the accused ended up in the motor vehicle as the only occupants when it collided with one being operated by a third party. It is the theory of the Crown that the accused had been the operator. The accused disputes that allegation and has provided defence evidence to the contrary.

There is direct and circumstantial evidence for consideration by the Court. [ 3 ] As such, the issue here is whether the evidence for the Crown is sufficiently credible to prove beyond a reasonable doubt the identification of the accused as the person responsible for the acts as alleged. There is no onus on the accused herein to prove anything, but the credibility of the defence evidence will be considered in accord with the appropriate principles. EVIDENCE FOR THE CROWN Sandra Vidmar [ 4 ] Ms. Vidmar, age thirty-nine, was the occupant of the motor vehicle when the alleged matter had occurred.

A female friend of hers was apparently in the process of purchasing the motor vehicle at the time. [ 5 ] Prior to that matter, she had been drinking with the accused. When her attention was diverted, he took her car keys off the coffee table and headed outside. He was at the car and trying to open it with the keys. When she attempted to grab the keys from him, he got mad and took a swing at her. He managed to get it started, was behind the wheel and she climbed into the passenger seat. [ 6 ] He was operating the motor vehicle at a high rate of speed when the accident happened.

She was unsure if they hit a curb or another motor vehicle. After it had occurred, the accused crawled over her where she was sitting in the front passenger seat. She got out of the front passenger seat as well. Ms. Vidmar confirmed also that she was very drunk at the time. She had been drinking that morning and the night before and was unsure when she had stopped. As well, she believed the accused was half drunk.

She had not granted him permission to take the car keys. [ 7 ] Further, although she had been driving the vehicle earlier on to pick up the accused, she had not been operating the motor vehicle later that day when this alleged matter had occurred. [ 8 ] She had purchased the motor vehicle for $450.00 and confirmed its state in the photos which had been entered as a Crown exhibit. He had refused her request to stop driving at the time and was getting mad at her. She had initially given a false name to the police which she corrected with the police a couple of days later.

[ 9 ] Further, the accused was her friend and was able to identify him in court where he was seated at the counsel table. He was very drunk at the time of this alleged matter. His eyes were vacant and he was slurring his words. [ 10 ] In cross-examination Ms. Vidmar indicated the accused was roughly 6’, 160 - 170 pounds and she was 5’10”, 200 pounds. They had indeed both exited from the passenger door as indicated. She had falsely identified herself to the police as Nicole Bird.

She confirmed as well picking up the accused earlier on that day and driving to the location for that purpose. [ 11 ] Further, she had been consuming alcohol for at least twelve hours prior to this. Both of them continued to drink at that spot. [ 12 ] She denied also that the smashed window in Exhibit P-1 - photo 14 was caused by her head but may have been from her leg striking in the course of the collision. Regardless, she had not been behind the wheel, nor the operator, even though she used a false name with the police. She agreed as well to the existence of a criminal record. Michael Kerfoot [ 13 ] Mr.

Kerfoot is somewhat familiar with Sandra Vidmar. He was doing renovations as a carpenter in a housing complex where she had resided. She became aware of his motor vehicle and convinced him to sell it. The deal was made and he got a partial payment. She planned to register the sale on Saturday, but on Monday he was told by Ms. Vidmar that it had been stolen. [ 14 ] In cross-examination he confirmed the deal was to be registered on July 2 and learned that had not occurred when he was back at work on July 4. There was a $700.00 deductible so the motor vehicle was written off by SGI.

He was still owed roughly $200.00 on the $600.00 deal and was to be paid that amount from her work wages. Gordon Watson [ 15 ] Mr. Watson is the joint owner/operator of an outlet of Pizza Pirates, located between Avenue O and Avenue P in the immediate area where this alleged matter occurred. [ 16 ] He was standing outside and heard a loud bang. He had not seen the collision but went to the front of his building from the location of the noise and called 911. He observed the driver behind the wheel, and exit from it. He was attempting to convince the female who he encountered that she was driving.

They appeared to know each other but she said no to that suggestion. [ 17 ] The driver made his way to a fenced yard and laid down in the grass. Mr. Watson kept the driver in sight the whole time. Even though the fence was 6’ tall, it had gaps between the boards so he was able to watch him. [ 18 ] A couple of minutes passed before the police arrived. He observed them place the same person under arrest as he had indicated had been the driver. He had not taken his eyes off the driver. [ 19 ] Mr.

Watson confirmed as well that he had provided a statement to the police which involved a general description of the driver. That same person got out from behind the wheel and walked away. As well, he had a smell of alcohol and did not appear to be sober, as noted from a distance of roughly one metre. [ 20 ] In cross-examination Mr. Watson confirmed there had only been one person in the motor vehicle when he approached. As

well, roughly thirty-five seconds had elapsed from the noise to his arrival at the motor vehicle. He had not paid any attention to the passenger side because the accused had left the motor vehicle from the driver’s side. Laryssa Barry [ 21 ] Ms. Barry was a passenger in a motor vehicle being operated by a friend, going eastbound on 20 th Street West. It was late afternoon. The vehicle in issue was ahead of their motor vehicle, also going east. She was seated in the front passenger seat. She heard a crash, had not seen it, but was immediately at the scene.

She provided a diagram of the scene where this particular vehicle ended up and it was entered as an exhibit in these proceedings. [ 22 ] She had observed a male exit from the driver’s seat and a female from the passenger’s seat. She had not seen the face of either, but offered some general description of clothing and other identifying aspects of both. It had been a nice clear sunny day. The male got out and started running. The female appeared to be angry and was yelling. [ 23 ] In cross-examination Ms.

Barry initially confirmed that one had emerged from the driver’s side and the other out the passenger’s, but then agreed it was possible that they had both exited from the passenger’s side. Lauren Shyluk [ 24 ] Ms. Shyluk, age eighteen, had been travelling with Laryssa Barry in the same motor vehicle, at the time of this alleged matter. At about 6:40 p.m. she heard a crash to the right of their motor vehicle and called 911. She did not see where either of them had exited from the motor vehicle after the motor vehicle accident.

As well she had provided a statement for the police. [ 25 ] In cross-examination she agreed there had been some discussion among her friends before court today, but nothing drastic. Sergeant Ernie Louttit [ 26 ] Sergeant Louttit has roughly twenty-five years experience with the Saskatoon Police Service. He was on duty as a shift supervisor when this matter allegedly occurred. He has had extensive experience in the investigation of impaired driver motor vehicle accidents and persons under the influence of alcohol. [ 27 ] He had arrived at the scene at roughly 6:50 p.m.

As part of the investigation he had spoken to someone who had identified herself as Sandra Blackbird. He knew her to have been Sandra Vidmar, but had attempted to mislead him as to her proper identity. In due course he placed her under arrest for an outstanding warrant and took her to detention. [ 28 ] In cross-examination Sergeant Louttit confirmed that Ms. Vidmar had lied to him as to her proper identity and said she had been a passenger in the back seat. He also received some suggestion that there were drugs in the back seat, but none were located by the police. Beverly-Ann Southgate [ 29 ] Ms.

Southgate of Battleford, Saskatchewan had been the operator of the motor vehicle with which the vehicle came into collision. She was stopped at the intersection of Avenue P South with the signal activated turning right. She recalls looking once to ensure there was no oncoming traffic and has no actual memory of the collision.

[ 30 ] Immediately thereafter she was aware of the presence of people at the scene. The collision had occurred with enough force that the tire jack from their vehicle ended up down the road. When she tried to slowly exit from the motor vehicle she was concerned her neck might spasm. Therefore she was placed on a gurney by the emergency staff. She also had some swelling in her face and was given some ice for it. They were transported to St. Paul’s Hospital where she was examined and released that same evening.

She did not end up with any back spasms out of the incident but had arthritis diagnosed from the pain she had suffered. [ 31 ] They received roughly $3,300.00 to $3,600.00 from SGI for the damage to the vehicle which she regarded as being low. After the collision she had not seen the occupants of the other motor vehicle. [ 32 ] In cross-examination Ms. Southgate confirmed they had waited until 10:30 p.m. or later at the hospital which she had regarded as a long time. Kenneth Southgate [ 33 ] Mr. Southgate testified he had been a passenger in the front seat at the time.

As he said, there was a big bang and he didn’t see anything. Both the front seats they had been occupying slipped out the back from the impact. Despite that he was able to exit from the front seat and people began to gather. [ 34 ] After his spouse spoke to the emergency personnel they placed a neck brace on her before going to the hospital. They attended at St. Paul’s where the medical staff checked her condition. Sergeant Todd Bayly [ 35 ] Sergeant Bayly has nineteen years experience with the Saskatoon Police Service and was a shift supervisor who attended at the time.

In the course of his duties he has been involved in the investigation of impaired operators of motor vehicles. [ 36 ] When he attended at the scene, part of the dispatch he had received was information from Gordon Watson that the driver of the motor vehicle had departed from the scene and was northbound on foot. Shortly thereafter, Mr. Watson directed the officer to the accused as the alleged operator. [ 37 ] The officer was aware of the smell of alcohol from the accused so he was placed under arrest for impaired operation.

At 19:09 hours he provided the accused with his rights to counsel, rights to silence and an Intoxilyzer sample demand, all of which the accused understood. He did not wish to speak to a lawyer. The signs of impairment he had noted included slurred speech, bloodshot eyes, weaving as he walked and foam around his mouth.

The accused was cooperative throughout and showed the same symptoms at the Police Services Building when they attended as he had at the scene. [ 38 ] In due course the accused provided Intoxilyzer samples of 210 milligrams percent and 200 milligrams percent at 19:41 hours and 20:03 hours respectively. The Certificate of Analyses was entered as an exhibit in these proceedings by consent. [ 39 ] In cross-examination the officer confirmed that the accused had been cooperative and not caused any trouble. As well, he claimed Sandy had been driving. Constable Christopher Rhodes

[ 40 ] Constable Rhodes has five years experience with the Saskatoon Police Service. He had attended at the scene at 7:00 p.m. In due course he came in contact with someone purported to be the accused, although he could not identify him in court. [ 41 ] Regardless, the person to whom he had spoken stated words to the effect that “I wasn’t driving”. He had slightly slurred speech and some difficulty walking. Constable Christopher Fehr [ 42 ] Constable Fehr has five years experience as a member of the Saskatoon Police Service and two years with the RCMP.

After he had arrived at the scene the officer blocked some of the traffic with his police vehicle. He was also aware that no drugs were located in the motor vehicle although there was some suggestion there might be. EVIDENCE FOR THE DEFENCE Dennis Ahenakew [ 43 ] Mr. Ahenakew is the accused’s father. He confirmed from the photos that he is familiar with the auto. As well he knows Sandra Vidmar. [ 44 ] In July he had been at a gathering of people at 305 - 29 th Street West. Apparently that is the residence of Mr. Ahenakew’s niece and her husband. The accused had also been there at the time.

In the course of events, Sandra Vidmar had driven the motor vehicle to that spot and parked it in the backyard. [ 45 ] As matters unfolded, she asked the accused to go for a ride. He noticed that she had been drinking, not that she was drunk, but had had some drinks. Therefore he told the accused not to go. [ 46 ] However, the accused did go with her and Sandra drove as they left. She was behind the wheel when they departed. He did not see them again. [ 47 ] In cross-examination Mr. Ahenakew confirmed that Sandra had attended there in the afternoon.

Also, he had not been at the scene of the motor vehicle accident. Clayton Ahenakew - the accused [ 48 ] The accused confirmed the existence of a criminal record and it was placed before the Court as an exhibit for the Defence. He agreed as well that the last few pages of it appear to be duplicated entries for the same matter. Regardless, to the extent that there may be inaccuracies in the document filed there has been no certified copy of his convictions as contemplated in s. 570 of the Criminal Code .

The document filed is inherently unreliable and will not be considered on the issue of the credibility of the accused. [ 49 ] As to the alleged matter before the court, he confirmed that he had been with Sandra Vidmar operating the motor vehicle at the material time. The accused was in the passenger seat. It all happened so fast, but he was pretty sure he had exited from the passenger

side. He had departed from the immediate scene on foot. [ 50 ] He confirmed as well that both he and Sandra were intoxicated. Also this particular motor vehicle had a standard transmission. He does not know how to drive one. He had not been driving and did not take the ignition keys as alleged. [ 51 ] In cross-examination the accused agreed that he was indeed intoxicated, which could have affected his ability to operate a motor vehicle, as well as memory and decision-making. [ 52 ] He did not know how he ended up on the driver’s side as alleged. It all happened so fast.

Perhaps he had jumped out from the driver’s door. He had run from the scene because he thought there was a warrant for his arrest and should have remained in case anyone was injured in the motor vehicle accident. [ 53 ] He insisted as well to having no experience or ability to operate a motor vehicle with a standard transmission. He was not on the driver’s side even if some witnesses suggested he was. He disputed taking the keys nor driving the motor vehicle at the time of this alleged matter.

ANALYSIS Is the evidence for the Crown sufficiently credible to prove beyond a reasonable doubt the identification of the accused as the responsible party? Is the circumstantial evidence consistent with the conclusion he is guilty and inconsistent with any other rational conclusion? [ 54 ]

Section 253 of the Criminal Code provides as follows: 253(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. [ 55 ]

Section 252 of the Criminal Code includes the following pertinent portions: 252

(1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with . . . (

b) a vehicle, . . . (c) . . . and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address, where any person has been injured or appears to require assistance, offer assistance . . .

(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the

absence of evidence to the contrary, proof of an intent to escape civil or criminal liability. [56] In regard to the allegation of theft, s. 322(1)(

a) of the Criminal Code offers the following: 322(1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right convertsto his use or the use of another person, anything whether animate or inanimate, with intent, (

a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of hisproperty or interest in it; . . . [57] In R. v. Finlay (K.V.) (2007), 2007 SKPC 123 , 308 Sask. R. 1, I considered circumstantial evidence in the evidencetherein. While that was very much a product of its particular circumstances, I noted the following general principles at para. 9: [9] The evidence against the accused is, of course, primarily circumstantial. I had occasion to consider the pertinent legal principles in R.v. S.J.M. (2006), 2006 SKPC 25 , 277 Sask.

R. 204, and noted the following, commencing at para. 19: [19] In general, the burden is on the Crown to prove the constituent elements of the offence beyond a reasonable doubt with credibleevidence, and the accused is presumed to be innocent until proven guilty. In assessing credibility, the court is guided by the principlesrestated in R. v. McKenzie (P.N.) (1996), (SK CA), 141 Sask. R. 221; 114 W.A.C. 221 (C.A.) (from R. v.

Rose (1992), (BC CA), 20 B.C.A.C. 7; 35 W.A.C. 7 (C.A.), at para. 4): First, if you believe the accused, obviously you must acquit; Secondly, if after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [20] The determination of credibility does not involve the court opting for one version of events or the other.

Rather, the Crown mustprove that its evidence is credible, and there is no onus on the accused whatsoever in that respect. Even if the court prefers the evidenceof the Crown, it must still consider whether the evidence of the accused raises a reasonable doubt. [21] In regard to the

interpretation of circumstantial evidence in general, I had noted in R. v. D.T., 2005 SKPC 101 , [2005] S.J.No. 668; 271 Sask. R. 265 (Prov. Ct.) as follows, commencing at para. 25: [25] In any event, in R. v. D.G.E. (2000), (SK PC), 204 Sask. R. 96 (Sask. Prov. Ct., Goliath PCJ), the court offeredthe following observations commencing at para. 6, in regard to circumstantial evidence of identification: [6] Where the only evidence of the identity of the accused as the person who committed the offence is circumstantial the so-called rulein Hodge’s Case, Re (1838), 16 E.R. 1336, is applicable, R. v.

Linn, (SK CA), [1994] 4 W.W.R. 305; 116 Sask. R.203; 59 W.A.C. 203. This rule, as stated by Duff C.J.C., in R. v. Comba, (SCC), [1938] S.C.R. 396, is that, before afinding of guilt can be made on circumstantial evidence alone, there must be a finding that not only the circumstances are consistent witha conclusion that the accused is guilty, but that the circumstances are inconsistent with any other rational conclusion.

[7] As stated by Vancise J.A., in R. v. Linn, (supra), when applying this rule it must be kept in mind that the “rational conclusion” mustbe one based upon and supported by the evidence, R. v. Torrie, (ON CA), [1967] 2 O.R. 8 (C.A.); R. v. McIver, (ON SC), [1965] 1 C.C.C. 210 (Ont.

H.C.). [8] This means that a “rational conclusion” must not be speculative or imaginative, but must be drawn from facts proven in evidence. and continuing at para. 11: [11] In determining whether the guilt of the accused is the only reasonable inference to be drawn, one cannot ignore the fact that theaccused did not testify or otherwise present any explanation for the appearance of his fingerprint on the trunk of the vehicle.

It is clearthat the adverse inferences can be drawn from the silence of the accused in the face of incriminating evidence, and that such adverseinferences may form part of the Crown’s case against the accused. [12] In R. v.

M.B.P., (SCC), [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161; 113 D.L.R. (4th) 461; 29 C.R. (4th)209, 227, Lamer C.J.C., said: ...Once, however, the Crown discharges its obligation to present a prima facie case, such that it cannot be non-suited by a motion for adirected verdict of acquittal, the accused can legitimately be expected to respond, whether by testifying him or herself or calling otherevidence, and failure to do so may serve as the basis for drawing adverse references. ...

In other words, once there is a ‘case to be met’ which, if believed would result in conviction, the accused can no longer remain apassive participant in the prosecutorial process and becomes - in a broad sense - compellable.

That is, the accused must answer the caseagainst him or her, or face the possibility of conviction. [13] It seems to me that the strength of the inferences which one might draw from an accused person’s silence is directly proportional tothe strength of the Crown’s case, considered without the benefit of such inferences. [14] As Professor Delisle put it in his annotation Silence at Trial: Inferences and Comments, following R. v.

Woodcock (1997), 1 C.R. (5th) 317: It is one thing to remain silent in the face of a weak case, with the thought the trier of fact will not be satisfied beyond a reasonabledoubt; it is quite another matter if the case is so strong that the risk of conviction is manifest. CONCLUSION [58] This was a brief, intense flurry of events which did not necessarily lend itself to calm reflection. As such, it may be difficultfor some to recall and relate in a reliable way.

Despite that, those witnesses who were not called to identify the driver still providedparticulars of the unfolding of the narrative which was most helpful. Also in that respect, there is no evidence of injury or damage to themotor vehicle which would aid in concluding which of the two had been the driver. [59] It was apparent that both Sandra Vidmar and the accused had been highly intoxicated. Each had taken steps to avoid arrest

and detection by the police after the collision. That did not deter either from claiming herein the other had been the driver. [ 60 ] The evidence from Gordon Watson and Laryssa Barry indicated as well they had concluded the accused was behind the wheel when this alleged matter had occurred. [ 61 ] Mr. Watson had also been aware of the accused apparently attempting to have Sandra Vidmar confirm that she had been driving. However, she was not prepared to do so. Whether his hope was to have her confirm the truth, or to take the rap for him was not entirely clear.

The accused had also given some indication to Sergeant Bayly and Constable Rhodes that Sandra Vidmar had been the driver. [ 62 ] The accused’s father, Dennis Ahenakew, confirmed that the accused and Sandra Vidmar had driven off from a party. She was the driver and he the passenger. He did not see the two of them or the motor vehicle again. It is not reasonable to infer they had switched positions en route when none of the evidence suggested that occurred.

In general, his evidence supports that of the accused. [ 63 ] Therefore, applying the principles in McKenzie , supra, to the evidence, the Court does not know who to believe. On that basis the accused must receive the benefit of the doubt.

Referring as well to Finlay, supra, that the accused was the operator of the motor vehicle at all material times, the circumstantial evidence is not consistent with one concluding the accused is guilty nor inconsistent with any other rational conclusion, that Sandra Vidmar was the operator at all material times. [ 64 ] Therefore the Crown is not able to prove the identity of the accused. As such, he is not guilty on all counts contrary to ss. 253(1) (a), 253(1)(b), 252(1) and 334 (

b) of the Criminal Code , respectively. _______________________ P.S Kolenick, J