2011 MBPC 38, 2011 MBPC 38

CITE# 2011 MBPC38 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Chantal R. Boutin, for the Crown ) - and - ) ) Alex Wayne Ryle ) Bill F. Armstrong, for the Accused ) ) Judgment delivered: ) May 11, 2011 HEINRICHS, ROBERT, P.J. INTRODUCTION [ 1 ] A two vehicle collision occurred on Highway #6 just north of the Dauphin River Bridge and the Fairford First Nation on the morning of June 26, 2010.

As a result of the police investigation that morning, Alex Wayne Ryle was arrested at the scene of the crash, taken into custody and then charged with impaired driving and drive over .08 related offences. [ 2 ] The Crown proceeded to trial on one of the charges on April 7, 2011, namely: that Alex Wayne Ryle was unlawfully operating a motor vehicle that morning while his ability to do so was impaired by alcohol and as a result he caused bodily harm to Bree Balaski, contrary to section 255(2) of the Criminal Code . [ 3 ] Counsel agreed to certain facts and to the filing of a medical report which confirmed that the injuries that Bree Balaski suffered that day amounted to “bodily harm”.

As well, the evidence clearly showed that the accident occurred around 7:30 a.m. on June 26, 2010 in the Rural Municipality of Grahamdale, in the Province of Manitoba. [ 4 ] During the trial a voir dire took place with respect to comments made and answers given by Alex Wayne Ryle to the officers during the course of their investigation. In the end counsel for Mr. Ryle conceded that there was no issue as to voluntariness. As well the Court ruled that there was no Charter breach concerning right to counsel warnings and noted that Mr.

Ryle had been given the opportunity to speak to a lawyer in private at the police station. [ 5 ] Two substantial issues were raised during the testimony of the Crown witnesses. First, was Alex Wayne Ryle the driver of the vehicle that struck Bree Balaski’s vehicle that morning? Secondly, if Alex Wayne Ryle was driving a vehicle that morning, was his ability to operate a motor vehicle impaired by alcohol? The Court will now proceed to answer those two questions. WAS THE ACCUSED THE DRIVER? [ 6 ] Bree Balaski testified that she was driving on Highway #6 from Winnipeg to The Pas on June 26, 2010.

She was living and working in The Pas at the time, but had been in Winnipeg because her father had been there in a hospital for surgery. She had left Winnipeg around 5:00 a.m.; the sky was clear and the roads were dry. She had been driving for more than two hours when she slowed down to the speed limit of 80 kilometres an hour to pass through the Fairford First Nation and cross the bridge over the Dauphin River. She then passed a gas station located on the right hand side of the road and looked down to turn on her cruise control and accelerate to the speed limit of 100 kilometres an hour.

She looked up and as she was entering into a right hand curve saw a Dodge Caravan in the curve coming at her in her lane “head-on”. She said that she was up to 90 kilometres an hour when she slammed on her brakes. The vehicle was still coming at her “head on” and so she pulled onto the right shoulder of the highway. However, the vehicle continued coming at her “head on’ and so she pulled further to the right to hit the ditch. The van collided with the driver’s side of her vehicle, causing it to spin and roll into the ditch.

[ 7 ] In the moments before her vehicle was hit by the Dodge Caravan, Bree Balaski was able to observe two people in the front seats of the oncoming vehicle. She testified that the driver was of a very large build with “crazy” wavy hair and the second individual, seated in front passenger seat was small in stature compared to the driver. It may have only been a matter of a second or seconds, however, Bree Balaski gave clear detailed evidence that was not shaken on cross-examination. At one point in her testimony she says that she is a “very detail oriented” person.

Of note, this witness could recall the colour and make and model of all of the vehicles at the scene of the accident, and was able to give very specific details about a family that briefly stopped at the scene to offer assistance.

She was able to recall the ethnicity of the family, the build of the two adult males, that both were wearing jeans and one had a bright blue polo shirt on, that the woman was wearing a bright yellow traditional dress and that there were two or three children standing with her on the side of the road. [ 8 ] Bree Balaski estimated that she needed 10 or 15 minutes to extract herself from her vehicle lying in the ditch. When she was able to open the driver’s side door and peer out, she was able to talk to the males of the East Indian family that had stopped.

They attempted to call for help with their cell phone but told her there was no service and promptly the whole family got into their blue Honda SUV and left. [ 9 ] When the family left, the only other people at the scene were a female who was yelling and screaming at her saying, among other things, “you killed my baby” and a large person laying on the side of the road. Other than her vehicle in the ditch, the only other vehicle in sight was a Dodge Caravan, resting on its hood with the wheels in the air. It was further along in the same ditch and closer to a fence and some bush.

Bree Balaski chose to keep her distance from the yelling female and went back to her vehicle in the ditch to continue searching for her cell phone. She got back into her vehicle to search and when she came out, a lady in a purple Dodge Charger had stopped and offered her assistance. The lady called 911 and handed Bree Balaski her cell phone to speak to the operator. [ 10 ] In continuing the search for her cell phone, Bree Balaski walked close by the male lying on the side of the road. She said she was about 15 feet away from him at one point in time and recognized him as the driver.

He was “very, very large, very bold”. The hair and the build led her to believe that he was the driver she had seen just before the accident. On cross-examination it was pointed out to her that when she had given her statement to the police some three weeks after the accident, she said, “I remember sitting on the side of the road and there was a guy laying, laying up beside the road which was the driver of the other vehicle I’m assuming”.

Bree Balaski was never shown a photo pack or taken to a police line-up and yet when she came to court to testify, on April 6 and April 7, 2011 she observed the accused, Alex Wayne Ryle, to be present at St. Martin Court. She first noticed him in the parking lot on April 6 and had no hesitation in pointing him out in court on April 7 and said she was certain that he was the driver of the vehicle that struck her. [ 11 ] As a result of their investigation at the scene, Constables Fraser Potts and Tyler Johnson of the Gypsumville RCMP arrested Alex Wayne Ryle for impaired driving.

At the scene of the accident Constable Potts read him his Charter right to counsel, police caution and breath demand. Once at the police station, Constable Potts arranged for Mr. Ryle to speak to a lawyer. During the “observation period” which followed, the officer completed their C-256 form, called the “Investigative Guide and Report on Alcohol Impairment”. The questions on the form were asked and included the following questions and answers. To the question, “Were you driving?”, the answer was “Yes.” The next word on the form is “Describe.” This was left blank.

To the question “What time did the collision occur?”, the answer was “7:30 – 7:45”, which the police officer understood to mean in the a.m. To the question about how long he had been driving today, the answer was “No idea”. [ 12 ] Bree Balaski presented as a forthright and careful witness. She was clear about what she could or could not remember or why she said things in the way she did. Although she used the word “assume” in her statement to the police on July 13, 2010, her testimony makes it overwhelmingly clear that Alex Wayne Ryle was the driver of the vehicle at the time of the accident.

It could not have been anyone else. In addition to that, when given the opportunity to answer questions about the accident, Alex Wayne Ryle said he had been driving and could not recall how long he had been driving that day. While the officer did not clarify this by asking when Mr. Ryle was driving, or have him “describe” the driving as suggested on the form, the only logical conclusion of what was said, and what was not said, is that Alex Wayne Ryle was driving at the time of the accident.

The Court is satisfied beyond any reasonable doubt that Alex Wayne Ryle was the driver of the Dodge Caravan at the time it collided with Bree Balaski’s vehicle. WAS THE ACCUSED’S ABILITY TO OPERATE A MOTOR VEHICLE IMPAIRED BY ALCOHOL? [ 13 ] Constable Johnson was the first of the two officers on scene to have direct contact with Alex Wayne Ryle, someone personally known to him. Mr. Ryle was still on the side of the road when the officer approached him. Constable Johnson observed that Mr. Ryle’s eyes were quite bloodshot and that he was slightly, but not grossly, slurring his words.

The officer noted a stale odour of alcohol on Alex Ryle’s breath. When Mr. Ryle stood up, he had to use the vehicle to maintain his balance. The officer testified that there were visible signs of impairment, but not gross or excessive signs of impairment. It was enough; however, to form the belief that Alex Wayne Ryle was impaired by alcohol and because of the other information they had gathered at the scene, Alex Wayne Ryle was arrested for impaired driving. Mr.

Ryle never drank alcohol while in police custody and later that morning at the police station, two Datamaster samples were provided, which resulted in readings of 120 milligrams of alcohol in Mr. Ryle’s blood per one hundred millilitres of blood. Those samples were provided at 10:27 and 10:54 a.m.

[14] Constable Potts first came into contact with Alex Wayne Ryle when he observed Constable Johnson asking him for his driver’slicense. Constable Potts observed that Mr. Ryle had red bloodshot eyes and that he had to use the vehicle for support when he stood up. There was a scent of liquor on his person and he was swaying as he was standing and talking to the officers. Constable Potts also formedthe opinion that Alex Wayne Ryle was impaired by alcohol and took over the arrest, providing Mr. Ryle with the Charter warnings,police caution and breath demand.

During the “observation period” at the police station, Constable Potts noted the same signs ofimpairment were still present and that Mr. Ryle’s face was flushed. Constable Potts asked Alex Wayne Ryle questions from the C-256form, and some of the questions and answers confirmed that Mr. Ryle had been drinking Budweiser beer earlier that day and was unsureof how much he had drunk. Constable Potts confirmed that Alex Wayne Ryle did not drink any alcohol when in police custody. [15] The Datamaster readings, given later in the morning, also confirm that Alex Wayne Ryle had most likely been drinking alcoholearlier.

The Court is entitled to find this without any technical or special knowledge, as noted in R. v. Dinelle (1986), (NS CA), 44 M.V.R. 109 (N.S.C.A). [16] As set out by the Ontario Court of Appeal, and affirmed by the Supreme Court of Canada, if what the Court accepts as evidenceis a degree of impairment from slight to great, then the impairment required for this

section of the Criminal Code is made out. See R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380, 18 C.R. (4th) 127 (Ont. C.A.), affd (SCC), [1994] 2S.C.R. 478n, 90 C.C.C. (3d) 160n. [17] Within minutes of speaking to Alex Wayne Ryle at the scene of the accident, both officers formed the opinion that Mr. Rylewas clearly impaired by alcohol such that he was to be arrested for impaired driving. One of the officers fairly described him as beingvisibly impaired, but not grossly or excessively impaired.

Confirmation of the fact that Alex Wayne Ryle had been drinking alcohol priorto the accident came by his own admission of this to Constable Potts and by way of the Datamaster results. Alex Wayne Ryle, throughhis counsel, suggests that there are other explanations for the signs of impairment noted by the officers, however, Constable Johnsonknew Mr. Ryle from before and noted a different demeanour this time. As well, the combination of all of the symptoms observed andthe length of time for which they were noted cannot be explained by the mere fact that he was in an accident and possibly “in shock’ asa result.

All of the testimony of the officers concerning the symptoms of impairment they saw in Alex Wayne Ryle is accepted asevidence by the Court. This Court finds beyond a reasonable doubt that there was slight, if not moderate, impairment by alcohol. [18] The only evidence presented to the Court about what caused the accident came from Bree Balaski. The Court accepts herdescription of what happened. As she was approaching a curve in the highway she faced a vehicle coming at her in her own lane oftraffic.

When she moved onto her shoulder to avoid a head on collision, the oncoming vehicle also moved onto her shoulder and thenstruck her on the driver’s side of the vehicle. If Bree Balaski had not attempted to veer sharply to the right, that is into the ditch, at thelast second, a head on collision would have occurred on the shoulder. The accident occurred around 7:30 a.m. on a summer morningwhen the skies were clear and the road was completely dry. The manner of driving was far beyond “a slight departure from normalconduct” as contemplated in R. v.

Andrews (1996), 1996 ABCA 23 , 104 C.C.C. (3d) 392, 110 W.A.C. 182 (Alta C.A.), leave toS.C.C., refused 106 C.C.C. (3d) vi, 135 W.A.C. 79n. Mr. Ryle’s manner of driving cries out for an explanation. The evidence the Courthas accepted confirms that Alex Wayne Ryle was impaired by alcohol to some degree at the time of the accident. The Court heard noevidence of any other explanation such as a lack of sleep or any medical issues. The Court concludes that Mr. Ryle’s ability to operate amotor vehicle was impaired by alcohol. [19] The Court finds that Mr.

Alex Wayne Ryle was the driver of a motor vehicle on June 26, 2010, and while his ability to operatea motor vehicle was impaired by alcohol, did cause bodily harm to Bree Balaski. Mr. Alex Wayne Ryle is therefore convicted of thecharge under section 255 (2) of the Criminal Code. “ORIGINAL SIGNED BY:” HEINRICHS, ROBERT, P.J.