Her Majesty the Queen - v. -, 2016 SKPC 104

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 104 Date: September 16, 2016 Information: 24496574 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Vincent William Lehman Appearing: Andrew Wyatt For the Crown David Kreklewich For the Accused JUDGMENT R. GREEN , J I INTRODUCTION [ 1 ] Vincent Lehman is charged with driving a vehicle while his ability to do so was impaired by alcohol (under s. 253(1) (

a) of the Criminal Code ) and while his blood alcohol concentration exceeded the legal limit of .08 (under s. 253(1) (b)) and, lastly, with failing to stop for a police officer as soon as reasonable in order to evade that officer (under s. 249.1(2) ), all on August 17, 2013 at Togo.

[ 2 ] This case arose during the early morning hours of that day. Cst. David Cobbledick, of the Kamsack RCMP, had a motorist pulled over at 2:50 a.m. in the village of Togo. Just as he was completing that stop, he heard a truck, which turned out to be one driven by Mr. Lehman, on an adjacent street. [ 3 ] After finishing with the first motorist, he drove to the street on which he had first heard Mr. Lehman’s truck, and followed a dust trail from the truck down that street until he saw Mr. Lehman coming around a corner, in his words “kind of creeping”. He engaged his emergency lights, and came up behind his truck.

Mr. Lehman spun his tires and fish-tailed, and in the officer’s words sped up rapidly and “took off”. The pursuit lasted over about four blocks, during which Mr. Lehman failed to stop at two stop signs before turning onto Highway 5, and after a block or so on the highway turned onto Baker Street, where he finally stopped in the driveway of his house. [ 4 ] Cst. Cobbledick soon arrested Mr. Lehman for an offence under s. 249.1(2) and, after he received a fail result from him on an Approved Screening Device (ASD) between 3:01 and 3:03 a.m., read the breath demand to him at 3:03 a.m.

He then drove him back to Kamsack, where Mr. Lehman provided samples of his breath of 110 mg% at 3:55 a.m. and 100 mg% at 4:17 a.m. (as per the Certificate of Analyses, Exhibit P-2). [ 5 ] While Mr. Lehman admitted that he was drinking alcohol that evening and night, Mr. Lehman denied that he was impaired by alcohol when seen driving by the officer, and further denied that he was trying to evade the police officer when he did not stop for him: rather he was just trying to make it back to his driveway as he believed this would legally protect him from having his truck seized. Mr.

Lehman as well, through his lawyer, asserted a so-called “last drink” defence: that alcohol he drank just before driving was not yet in his blood stream when he was stopped by the officer, but was at the time his breath tests were taken at the detachment. [ 6 ] The only witness for the Crown was Cst. Cobbledick. The defence called alcohol expert Mary Ellen Scott and Mr. Lehman. [ 7 ] The issues for me to determine are:

(1) Whether there is proof beyond a reasonable doubt Mr. Lehman’s ability to drive was impaired by alcohol;

(2) Whether Mr. Lehman’s evidence, together with expert Mary Ellen Scott’s evidence, raises a reasonable doubt that his blood alcohol concentration was over the legal limit at the time when he finally stopped his vehicle for Cst. Cobbledick; and

(3) Whether Mr. Lehman had a reasonable excuse for not stopping immediately for the police officer and whether his actions amounted to him evading the police officer. II. BACKGROUND [ 8 ] Cst. Cobbledick said that Mr. Lehman drove up his driveway as far as he could, then jumped out of his vehicle and came back toward the police vehicle. This struck the officer as an aggressive move, and he told Mr. Lehman he was under arrest for flight from police. He said, at that point, Mr.

Lehman had glossy, watery eyes, but his walk and his speech were “fairly normal” and he was polite and cooperative throughout his dealings with Cst. Cobbledick. The officer smelled beverage alcohol coming from Mr. Lehman, but, overall, was surprised that he did not see the signs of impairment in Mr. Lehman’s person that his driving suggested. Mr. Lehman’s level of intoxication was in the officer’s view borderline, and he required the ASD test to give him the grounds to make an Intoxilyzer demand. [ 9 ] Mr. Lehman was bare-footed, and, as a result, after the breath demand the officer took Mr.

Lehman into the house to get his shoes. Upon entering the house, the officer noted approximately ten to twelve beer cans on the coffee table, which got his attention because Mr. Lehman had told him that he had only drank six beer throughout the day. Although the officer did not specifically count the beer cans and put them in his notes, he was adamant that there were more than six beer cans on the table.

[ 10 ] Cst. Cobbledick said Mr. Lehman told him on three occasions that what he had to drink that day was six beer. At the detachment Mr. Lehman told him he had purchased an 18 pack of Kokanee beer earlier that day. He, as well, said Mr. Lehman apologized for not stopping for the officer because he needed to keep his Class 1 licence and because he did not want to have his truck seized. [ 11 ] Mr. Lehman , who is 6 feet tall and 170 pounds, said he did some housework and watched television this morning. He left for Yorkton at approximately 1:30 p.m. and had no alcohol to drink before he left for Yorkton.

In Yorkton, he went to Wal Mart and went to wash his truck. He ate at McDonald’s and left Yorkton at 4:30 p.m. He drove back to Kamsack and stopped at the liquor store. There he claimed that he bought six Kokanee beer. [ 12 ] Mr. Lehman said he returned to his house in Togo sometime after 6:00 p.m. He finished eating at 6:30 p.m. and then had one beer. He then watched television and did some things around the house until 10:00 p.m. At that time, he had another beer. He then watched television and downloaded some music onto his computer.

He continued to drink beer and said he finished the last of the remaining beer at about 2:15 a.m. [ 13 ] Mr. Lehman said, after 2:15 a.m., when he finished his sixth beer, that he got out his DVD player and watched a show, which he then got bored with. He then decided to go out to his truck and listen to the music that he had downloaded. He said he grabbed his coffee cup, and poured what was left in a vodka bottle he had - which he said was a little more than half full, or about six or seven ounces - into the cup and mixed it with Tang orange juice. [ 14 ] Mr.

Lehman said he took that drink out to the truck, at approximately 2:40 to 2:45 a.m. He said he listened to two or three songs then decided he wanted to go for a spin. He said he did not want to take his drink with him, so he “downed it”, and put the cup into the console of his truck. He said he was not planning on going anywhere as he was in bare feet and did not have his driver’s licence, and further left his house at 132 Baker Street unlocked. [ 15 ] Mr. Lehman said he drove from his house into the downtown area of Togo, turning onto East Street.

He saw another vehicle which he thought he recognized, but then discovered it was the police officer when the officer engaged his emergency lights. He said his truck is pretty loud. He was on a gravel road and “gunned it”, which spun his tires a bit, and he then turned onto 3 rd Street. He said, after the officer put his lights on, he panicked. While he denied feeling impaired, he said that he had consumed some drinks and sped up. He said he was worried because he had a Class 1 licence, as this was how he made his living.

As he had been drinking, he was also concerned that he thought his vehicle would be towed away and he was afraid the vehicle might have some items stolen from it. [ 16 ] Mr. Lehman denied trying to outrun the officer, but said he wanted to get his truck home to park it in the driveway, where he thought the truck would be safe from impoundment. He claimed he later drove the route he took that night at 40 km/hr., just days before the trial, and it took him three minutes and nine seconds to drive that route. He claimed he was going slowly, about 15 mph, when he first saw Cst. Cobbledick.

He said there were six empty cans of Kokanee on the table in his house when he went in with the officer. He said he told the officer as many as three times that he drank six Kokanee beer that day. [ 17 ] Regarding his memory of what happened on this day in 2013, Mr. Lehman had no specific explanation about why he remembered particular things that day, other than saying it was important to him to remember. He further said he had a good memory of that day as “I wasn’t drinking lots so I remember it like yesterday”. He further denied that his memory about how much he drank had ever changed.

When asked by his lawyer whether he had a vivid memory of when he finished his last beer he said “apparently yeah”. He said he looked at his watch, and thought “you know what, I wish I had another one, but I don’t”. [ 18 ] On cross-examination, Mr. Lehman, when asked whether he knew how much more than half he had in the vodka bottle, said he did not. He admitted that it could have been eight ounces in the bottle. Further, he said that there was no way there could have been five ounces in that bottle. He said he was sure it was above the halfway mark.

He further said that the only reason he went for a drive was to hear his music and drive. When asked whether he was being honest when he told the officer that what he had to drink that evening was six beer, he replied that what he said was “close”. Regarding not stopping for the police officer, he admitted that he could have stopped for the officer, and said that he made some bad choices and kept going until he came to his driveway.

[19] Pursuant to s. 12 of the Canada Evidence Act, Mr. Lehman admitted that his criminal record has nine Criminal Code drinkingand driving convictions: two from 1982, three from 1986, two from 1990, and one each in 2000 and 2007. [20] Mary Ellen Scott was qualified as an expert and allowed to give opinion evidence in the area of distribution, elimination andthe effects of alcohol on a person, and the measurement and calculation of blood alcohol concentrations in an individual using forwardand retrograde calculation methods, as well as the effects of alcohol on the human body. [21] Ms.

Scott gave a number of opinions which were based on the drinking history Mr. Lehman gave in his direct evidence and onaverage absorption and elimination rates in the human body. Although her evidence was in my view difficult to follow at times, heropinions, relevant to Mr. Lehman’s BAC at the time of driving and the time his breath samples were taken at the detachment, can besummarised as:

(1) For a person of his height and weight, and based on the drinking history testified to by Mr. Lehman in direct evidence at this trial,including the bolus consumption of vodka shortly before driving, he would have had approximately three ounces of vodka unabsorbed inhis stomach at 2:50 a.m. This meant that she believed he was not over 80mg% at that time, and, by forward calculation, she alsobelieved this drinking history to be consistent with a reading of 100 mg% at 4:17 p.m. She said her conclusions were the same: (a)whether the amount of vodka consumed shortly before driving was either six or seven ounces; and (

b) whether either amount wasconsumed at 2:35 a.m. or at 2:40 a.m.; and

(2) Based on the drinking history given by Mr. Lehman in direct evidence at this trial, she opined that his BAC at 2:50 a.m. would havebeen between 15 and 91 mg%. [22] In cross-examination, Ms. Scott admitted that an opinion she had given on July 31, 2015 (Exhibit D-4) was based on adifferent drinking pattern - regarding the amount and times of consumption - from Mr.

Lehman: that he drank a total of seven Kokaneebeer, with one at supper at 6:00 p.m. and six between 10:00 p.m. and 2:15 a.m., and that at 2:15 a.m. he poured and consumed veryquickly a drink containing approximately five to six ounces of hard liquor and was then stopped by the officer within fifteen to thirtyminutes of consuming this hard liquor. III. WAS MR.

LEHMAN’S ABILITY TO OPERATE HIS VEHICLE IMPAIRED BY ALCOHOL? [23] The Supreme Court of Canada in R v Stellato, (SCC), [1994] 2 SCR 478 approved the following test forimpairment: In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can beregistered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability tooperate a motor vehicle was impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out. [24] Mr. Wyatt argued that in this case impairment, albeit at the low end of the scale, had been proved beyond a reasonable doubt. I disagree. [25] Despite Mr. Lehman’s manner of driving, and in particular not stopping for the officer, his glossy and watery eyes and thesmell of alcohol coming from him, Cst.

Cobbledick said his walk and his speech were “fairly normal” and he was polite and cooperativethroughout his dealings with Cst. Cobbledick. Overall, the officer was surprised that he did not see the signs of impairment in Mr.Lehman’s person that his driving suggested and, most significantly, said that Mr. Lehman’s level of intoxication was in his viewborderline and he required an ASD test to give him the grounds to make an Intoxilyzer demand. Taken together, this leaves me with areasonable doubt that Mr. Lehman was impaired.

IV. IS THERE A REASONABLE DOUBT MR. LEHMAN WAS OVER .08 WHEN HE STOPPED HIS VEHICLE? [ 26 ] Section 258(1) (d.1) of the Criminal Code sets out the bounds of the so-called “last drink” defence.

If breath samples have been taken showing a blood alcohol concentration (BAC) of over 80 mg% and if the Certificate of Analyses is otherwise admissible under s. 258(1) (c), as is the case here: ... evidence of the results of the analyses is proof that the concentration of alcohol in the accused's blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 ml of blood, in the absence of evidence tending to show that the accused's consumption of alcohol was consistent with both: (

i) a concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol in 100 ml of blood at the time when the offence was alleged to have been committed, and (ii) the concentration of alcohol in the accused's blood as determined under paragraph (c) ... at the time when the sample or samples were taken; (emphasis added) [ 27 ] As a result, the issue is whether I am satisfied that there is credible evidence which tends to show that Mr.

Lehman’s consumption of alcohol was consistent with both: (1) him not having a BAC of over 80 mg% at the time of driving; and (2) the BAC readings contained on the Certificate of Analyses. [ 28 ] I am satisfied that Mr. Lehman was drinking alcohol steadily over the hours before he drove, and that this factor, taken together with the time since this day, has effected his recollection of this day and what he drank. As a result, given that finding, where the evidence of Cst. Cobbledick and Mr. Lehman is at odds, I reject the evidence of Mr. Lehman and accept the evidence of Cst.

Cobbledick. [ 29 ] For the reasons that follow, I am not satisfied that the defence provided a credible account of Mr. Lehman’s alcohol consumption this evening and early morning:

(1) Mr. Lehman discussed his alcohol consumption with Cst. Cobbledick during this investigation, after receiving his rights to counsel and the police warning, but did not mention any consumption of vodka or hard liquor;

(2) The drinking history Mr. Lehman gave at the trial was different - in terms of both the amount of beer and hard liquor consumed and the time the hard liquor was consumed - than the history he gave to alcohol expert Mary Ellen Scott, as set out in her letter of July 31, 2015 (Exhibit D-4). As a result, it is clear to me that his memory, and/or version, of what he drank this evening and night, and when he drank it, has changed over time;

(3) I accept that Mr. Lehman told Cst. Cobbledick that he purchased 18 beer that day, in contrast to his testimony that he told him he bought six beer in Kamsack;

(4) I further accept and find that Cst. Cobbledick saw about ten to twelve beer cans on his coffee table, and in any event significantly more than the six cans Mr. Lehman claimed were there. In so finding, I note that even Mr. Lehman’s drinking history initially given to Ms. Scott suggested he consumed more than six beer (at seven beer); and

(5) The scenario he presented - that he drank as much as eight ounces of vodka in a few minutes before going for a leisurely drive to listen to music, after drinking six beer over the preceding seven and a half to eight hours - is in my view not believable; [ 30 ] As I am not satisfied that there was a credible account of Mr. Lehman’s alcohol consumption this evening and early morning, there is not in my view a basis to apply the opinions given by Ms. Scott. As a result, and as I am satisfied that all other prerequisites in s. 258(1) (

c) have been proved by the Crown beyond a reasonable doubt, I do not have a reasonable doubt that Mr. Lehman’s blood alcohol

content was over 80 mg% at the time he got out of his vehicle and approached Cst. Cobbledick. V. DID MR. LEHMAN EVADE THE PURSUING POLICE OFFICER? [ 31 ]

Section 249.1(2) establishes an offence if a person operating a motor vehicle, while being pursued by a peace officer operating a motor vehicle, fails without reasonable excuse and in order to evade the peace officer to stop the vehicle as soon as is reasonable in the circumstances. There is no doubt, based on the evidence, that Mr. Lehman knew he was being pursued by a police officer who had engaged his emergency lights for a stop or that Mr. Lehman did not stop as soon as was reasonable in the circumstances.

The questions to be answered, however, are whether: (1) he had a reasonable excuse for doing so; and (2) he did so to evade the police officer. [ 32 ] Mr. Lehman submits that he did have a reasonable excuse - that he wanted to reach his driveway where he would not have his truck seized by the officer and that he was further concerned that his truck would be vandalised if left by the side of the road. Further, he said he was not trying to evade Cst. Cobbledick, as he drove about four blocks back to his house, on a cul-de-sac, and parked on his driveway.

On the latter point, in effect, he submits he was not trying to get away from the officer, as he had nowhere to go from his house. [ 33 ] Considering Mr. Lehman’s evidence, I am not satisfied that he had a reasonable excuse for not stopping. While he said he wanted to avoid seizure of his truck on his driveway, he as well said he was concerned about his Class I licence from which he earned his living. As a result, I am satisfied he was concerned both about losing his licence and having his vehicle seized, by virtue of the officer’s powers under The Traffic Safety Act .

His belief - that he would, in effect, be “home free” if he reached his driveway - was clearly a mistake of law, because of what I accept was this officer’s power to stop Mr. Lehman under s. 209.1 of that Act taken together with the Saskatchewan Court of Appeal’s

interpretation of the extension of that power from a public road to a private road in R v Anderson [1] . Regardless of such a mistake, though, I don’t accept that a desire to avoid the application and consequences of The Traffic Safety Act is a reasonable excuse for not stopping for a police officer. [ 34 ] Nor do I accept Mr. Lehman’s contention that he was not trying to evade this police officer. The Alberta Court of Appeal in R v Kulchisky [2] defined “evade” in the following way: To evade, in our view, equates with an attempt to elude or get away from.

The motive for evasion, assuming the absence of a reasonable excuse, is of no moment. [ 35 ] There is no doubt on the evidence that Mr. Lehman attempted to get away from the police officer when he turned on his emergency lights, because he was afraid of the legal consequences that could befall him at that point. [ 36 ] As a result, I am satisfied beyond a reasonable doubt that Mr. Lehman operated a motor vehicle while being pursued by Cst. Cobbledick in his police vehicle, and failed, without a reasonable excuse, and in order to evade Cst.

Cobbledick, to stop his vehicle as soon as was reasonable in the circumstances. VI. CONCLUSION [ 37 ] For the reasons I have stated, Mr. Lehman is found not guilty on the impaired driving charge (count 1), guilty on the over .08 charge (count 2) and guilty on the flight from police charge (count 3). R. Green, J

[1] 2014 SKCA 32 . At par 25 of that decision, Whitmore J.A. said: “.... where a police officer has formed the intention to stop a driver on a public highway pursuant to s. 209.1 of The Traffic Safety Act , the police officer is acting within the statutory authority by following the driver onto private property in order to complete his investigation. [2] 2007 ABCA 110 at para 10 .