Her Majesty the Queen - v. -, 2017 SKPC 34

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2017 SKPC 034 Date: April 6, 2017 Information: 30992551 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Erika Michelle Knight Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Merv Nidesh, Q.C. For the Accused JUDGMENT KOVATCH , J BACKGROUND [ 1 ] The accused, Erika Michelle Knight, is charged that on November 6, 2016, she had the care and control of a motor vehicle while her blood alcohol content exceeded .08 percent, and while she was impaired by alcohol.

Defence counsel served and filed a Charter notice alleging that the accused’s Charter right had been infringed in that she was overheld after having supplied breath samples. One witness, Constable Hoggins, was called for the Crown. The defence provided no evidence. Following presentation of the Crown’s case, argument was made on both issues and I reserved my decision.

THE EVIDENCE [ 2 ] Constable Hoggins of the Moose Jaw Police Service testified that on November 6, 2016, he received a call from dispatch at approximately 1:00 a.m. regarding a possible impaired driver in a white jeep. He went into the back alley behind the Crushed Can drinking establishment, looked to his right, and saw a vehicle that seemed to match that description. The vehicle was parked behind Rosie’s on River Street. He stated that at that time, the driver’s door was open and the lights were on. He could not say if the engine was running. He drove toward the vehicle and parked, and then radioed to dispatch.

He then approached the car. By this time, the driver’s door was closed. There was but one occupant of the vehicle, a female, who was later identified as the accused, Erika Knight. [ 3 ] He asked her to roll down the window and she seemed confused. [ 4 ] He advised her of a complaint regarding an impaired driver and asked for her licence and registration. Eventually she gave him the licence and registration, together with three or four other sheets of paper. At this time, she was still seated in the driver’s seat.

Her feet were near the pedals. [ 5 ] On a number of occasions, the accused asked him why she was stopped, and asserted that she was not even driving. [ 6 ] The officer testified that he smelled a strong smell of alcohol. He asked her to step out of the vehicle in order to provide a sample in the approved screening device (ASD). [ 7 ] She went with him to the police vehicle. He testified that her walking to that vehicle was fairly normal. [ 8 ] Once she was seated in the police vehicle, he made the normal ASD demand.

He testified that his grounds for that demand were her flushed face, red eyes, and the odour of alcohol. She provided a sample in the ASD and a fail result was recorded. As a result the officer then made the usual intoxilyzer demand. Ultimately, she was taken to the Moose Jaw Police station which was not far away, where she provided breath samples in the intoxilyzer. [ 9 ] During cross-examination, defence counsel replayed the video from the in car camera that night. I will not go into that evidence in detail as it is not relevant to the arguments made by defence counsel, except to note that on many occasions Ms.

Knight questioned why she was stopped, and protested that she was not driving. [ 10 ] The Certificate of the Qualified Technician indicates that at 2:05 and 2:28 a.m., the accused provided samples in the intoxilyzer. Both of those samples registered 200 milligrams of alcohol per 100 millilitres of blood. The appearance notice on file indicates that Ms. Knight was issued an appearance notice at 10:16 a.m. The evidence was that she was released from custody immediately after being issued the appearance notice. THE DEFENCE ARGUMENT [ 11 ] Defence counsel made two arguments for acquittal: i.

That the video and the officer’s evidence clearly disclosed that the accused had repeatedly objected that she was not driving. Mr. Nidesh asserted that this rebutted the presumption of care and control, and as a result I should find she was not in care and control of the vehicle.

ii. The accused provided the second breath sample at 2:28 a.m. She was not released until at least 10:16 a.m. She could have and should have been released earlier. She was overheld and unlawfully detained contrary to her Charter rights. Defence counsel further argued that because of the overholding, I should exclude the evidence of the service of the Certificate of Analyses and Notice of Intention. He argued that I should grant this remedy of exclusion of this evidence pursuant to section 24(2) of the Charter .

Then, on the basis of the exclusion of this evidence, I could conclude that section 258(7) had not been complied with, and I should dismiss the charge on that basis. ANALYSIS 1. THE CARE AND CONTROL ISSUE [ 12 ] During argument, I questioned whether Ms. Knight would have to testify in order to rebut the presumption. I questioned whether out-of-court statements could rebut the presumption. Mr. Nidesh adamantly stated there was no need for the accused to testify. Further, he asserted that I was required to consider all of the evidence, and the evidence was to the effect that the presumption was rebutted.

I have great difficulty with the use of self-serving out-of-court statements as evidence to rebut the presumption. However, I need not decide whether these statements can be used to rebut the presumption. On the basis of all of the evidence from the video and the officer, there is no evidence rebutting the presumption of care and control. [ 13 ] Section 258(1)(

a) provides that where it is proved that the accused occupied the position ordinarily occupied by the driver, the accused shall be deemed to have care and control, “. . . unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle in motion.” In this case, accepting all of the accused’s statements at face value, she provided no evidence capable of rebutting the presumption. She repeatedly questioned why she was stopped and repeatedly asserted “I wasn’t even driving”. At no time did she speak to why she was in the driver’s seat.

At no time did she say she didn’t get into the driver’s seat to drive the vehicle or set it in motion. Simply stated, in order to rebut the presumption, she had to provide evidence that she didn’t occupy the seat for the purpose of setting the vehicle in motion, and she provided no such evidence. As a result, I conclude that she was in care and control of the vehicle. THE OVERHOLDING ISSUE [ 14 ] Defence counsel asserts there was an overholding of some seven hours and that this amounts to a Charter breach. The Crown argued that she was detained because of her high readings.

Defence counsel objected to this statement and argument. [ 15 ] I note that the onus is upon the accused to establish the Charter breach and the entitlement to a Charter remedy. I have great difficulty concluding there was a Charter breach when there is absolutely no evidence as to why she was held as long as she was, and why she was not released earlier. Perhaps more importantly, however, I have determined that counsel is not entitled to the remedy he seeks in any event.

In R v Poletz , 2014 SKCA 16 [ Poletz ], the Court of Appeal dealt with the overholding issue and an application by defence counsel for a stay of proceedings pursuant to

section 24 of the Charter. The Court of Appeal clearly concluded that a stay was not an appropriate remedy in cases of overholding. In my view, that decision is clearly binding upon me. [ 16 ] Over the years, judges often said that one cannot do indirectly what one cannot do directly. In my view, the argument made by defence counsel is a clear attempt to circumvent the Poletz decision. I am not prepared to do that.

[ 17 ] Moreover, in my view, the argument made by defence counsel is “intellectually dishonest”. In making this statement, I do not say that defence counsel did anything improper in advancing the argument. However, in my view, acceptance of it would bring the administration of justice into disrepute. I start by observing that there are at least two probably more independent requirements upon the police and the Crown in investigating and proving this charge.

Under section 258(7), there is a requirement that the Crown serve a copy of the Certificate of Analyses and Notice of Intention in order to rely upon the Certificate. Under the constitution and provisions of the Criminal Code , there are completely separate and independent requirements that the police release the accused as soon as is reasonably possible. In this case, the police and Crown clearly met the obligation imposed on them under section 258(7) regarding service, but arguably did not meet the requirement for earliest release. As a result of the arguable failure to release, Mr.

Nidesh asks that I exclude the evidence of service, deem service not to have been effected, and dismiss the charge on the basis of non-compliance with section 258(7). In the Poletz case, the Court of Appeal spoke of a causal connection between the Charter breach and the remedy. In my view there is no causal connection between the alleged overholding and the service of the Notice of Intention. If I were to follow such a course, in my view, I would be bringing the Court in disrepute and I am not prepared to take that action. [ 18 ] I find the accused guilty of the charge of care and control while over .08.

I impose a judicial stay with respect to the impaired charge. Dated at the City of Moose Jaw, the Province of Saskatchewan, this 6 th day of April 2017. _____________________________ Kovatch, J