Her Majesty the Queen - v. -, 2015 SKPC 48

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 048 Date: March 27, 2015 Information: 24515558 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Colin George Gaudet Appearing: J. Claxton For the Crown P. Northcott For the Accused JUDGMENT R.D. JACKSON , J I INTRODUCTION [ 1 ] The accused stands charged, on July 22, 2014, at Young, Saskatchewan that he had the care or control of his motor vehicle while his ability to operate it was impaired by alcohol and secondly, that he failed or refused to provide samples of his breath at the detachment.

[ 2 ] The Crown called at trial the investigating officer, Sergeant Leblanc as well as the breath technician, Constable Hannah. The Defence called the accused, Colin George Gaudet, as its sole witness. [ 3 ] The Defence made application for non-suit or directed verdict at the conclusion of the Crown’s case with respect to the refusal charge based upon the failure of the Crown to lead evidence of a proper breath demand being made upon the accused at scene.

The Court rejected this argument however as there was some evidence, rather than no evidence, that a demand had been made upon the accused for samples of his breath. [1] The question of whether this amounts to a proper demand at law could be raised at the conclusion of the case, the Court advised. II ISSUES [ 4 ] At the conclusion of trial the following issues emerged for determination: Impaired Care or Control

a) Whether the accused had rebutted the presumption in s. 258(1)(a) [2] that he occupied the driver’s seat with the intention of setting the vehicle in motion while his ability to operate was impaired by alcohol;

b) Whether, if he rebutted this presumption, that notwithstanding, he had de facto or actual care or control of the motor vehicle while his ability to operate was impaired by alcohol. Refusal

c) Whether the investigating officer had reasonable and probable grounds to make the demand for breath samples;

d) Whether the Crown has proved that the officer made a proper demand for such samples in accordance with s. 254(5) of the Criminal Code . Impaired Care or Control

a) Whether the accused had rebutted the presumption in s. 258(1)(

a) that he occupied the driver ’s seat with the intention of setting the vehicle in motion while his ability to operate was impaired by alcohol; [ 5 ] On the evidence before the Court both from the Crown and the accused himself as hereafter set out in this judgment, the ability of the accused to operate his motor vehicle while impaired by alcohol is not in dispute and the Court so finds. [ 6 ] The issue rather is whether the accused, while so impaired, had the care or control of his vehicle. The evidence of Sergeant Leblanc is that he found the accused behind the wheel of his truck asleep and unresponsive. Accordingly, the Crown is able to rely upon the presumption set out in s. 258(1)(

a) to prove the requisite intention unless the accused is able to rebut this presumption on a balance of probability. [ 7 ] The accused testified to the following respecting his intention in this regard:

a) he attended at the residence of his boss following their night shift and consumed between 7 to 8 beer between the hours of roughly 8:30 a.m. and 11:30 a.m.;

b) he knew that following such consumption he was not in a condition to drive so intended to stay at this residence for the day prior to going to work again that evening;

c) however, following an argument with his boss he was told to leave the premises;

d) he drove, in his estimation, a couple of blocks at which point he pulled into a residential driveway and parked the vehicle;

e) he then placed the transmission in park, put the keys in his pocket, reclined the seat and went to sleep. [ 8 ] The evidence of the accused in this regard was largely unchallenged by the Crown. In the circumstances the Court is satisfied that he has rebutted the presumption on a balance of probability that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion at the time he parked in the driveway.

b) Whether if he rebutted this presumption, that notwithstanding he had de facto or actual care or control of the motor vehicle while his ability to operate was impaired by alcohol. [ 9 ] In the most recent pronouncement of the Supreme Court of Canada on the issue of care or control within the meaning of s. 253(1) of the Criminal Code , R v Donald Boudreault [3] , the following was articulated at paras. 9, 42 and 48 respectively: [9] For the reasons that follow, I have concluded that “care or control”, within the meaning of s. 253(1) of the Criminal Code , signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk , as opposed to a remote possibility , of danger to persons or property. [42] In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways.

First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. [48] I need hardly reiterate that “ realistic risk ” is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.

To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. [ 10 ] In the current circumstances the Court finds that the first two criteria required i.e. that the accused embarked upon an intentional course of conduct associated with the motor vehicle and while his ability to operate was impaired by alcohol, have been readily met on the evidence. [ 11 ] The third criterion of whether there was a realistic risk of danger posed in the circumstances has also been proven in the Court’s view.

The accused drove to the spot where he was encountered only 30 minutes previously in an extremely intoxicated condition. His manner of stopping right in the middle of a private driveway suggested he took no steps to ensure his vehicle did not pose a hazard to other users of this thoroughfare. Further, although the keys were not in the ignition they were still well within his reach, either in his pocket or on the seat, according to the accused and the Crown respectively.

Upon waking, he would have had to move the vehicle out of harm’s way at the very least, if not drive to his home or work location since he had to work again in only a few hours.

Further, when approached by the home owner to see if he needed assistance he replied by yelling obscenities demonstrating, at the very least, a lack of good judgment exacerbated no doubt by his advanced state of intoxication. Considering all of the evidence as a whole, it cannot be said that he posed only a remote possibility of danger in his condition to persons or property. [ 12 ] The Crown raised a further point relying upon the decision of R v Pincemin [4] to establish that the accused had actual care or control of the truck while his ability to operate was impaired by alcohol.

In that case, the accused admitted in cross-examination that he drove in an extremely intoxicated condition to the spot where he was ultimately encountered by the police. He was accordingly convicted based upon his own admission and applying the rationale of R v Drolet [5] that driving is an offence included in care or control since one must assume care or control in order to drive. [ 13 ] Mr.

Gaudet in the present case made similar admissions stating that he drove when he knew he was in an intoxicated condition to the yard where Sergeant Leblanc found him. [ 14 ] Defence counsel raised the issue of inherent unfairness to the accused in such a situation where he is obliged to take the stand to rebut the presumption in s. 258(1)(

a) thereby opening himself up to cross-examination on other potentially incriminating issues. The Court of Appeal in Pincemin , supra, however, was clear that once the accused takes the stand the Crown can pursue all avenues available in seeking conviction. [6] Further, it will only be in circumstances where evidence demonstrates obvious impairment where jeopardy would possibly lie.

There no doubt may be many and varied instances where an accused stops driving after consuming alcohol out of prudence rather than obvious impairment. [ 15 ] Based upon the ratio of Pincemin , the accused in the present case would also have to be found in actual care or control when his ability to operate the motor vehicle was impaired by alcohol. Refusal

c) Whether the investigating officer had reasonable and probable grounds to make the demand for breath samples; [ 16 ] Sergeant Leblanc responded to a complaint from a citizen who said an individual yelled and swore at him when the citizen inquired if he needed help. Upon encountering the vehicle, Sergeant Leblanc’s initial observation was that the truck was parked in the middle of the driveway rather than off to the side. The window was down and the driver was asleep behind the wheel.

Sergeant Leblance spent the next five to ten minutes, according to his evidence, attempting to arouse the driver, which included shaking and prodding him. The driver went in and out of consciousness mumbling that he just wanted to go back to sleep in what appeared to be a slurred voice. [ 17 ] After finally bringing the accused around, Sergeant Leblanc formed the opinion he was highly intoxicated and arrested him for impaired driving. At that point, the officer was approached by the property owner who informed that he had not seen the individual drive up but rather only after the vehicle had parked.

Consequently, Sergeant Leblanc escorted the accused back to the patrol car and re- arrested him for care or control. [ 18 ] Sergeant Leblanc testified that the accused was extremely unsteady on his feet, stumbling and swaying side to side such that Sergeant Leblanc had to put his hand on him to prevent him from falling to the ground.

Once in the patrol car, Sergeant Leblanc was able to detect an odour of alcohol; however, it is unclear from the evidence whether this was prior, or subsequent to, the formal breath demand being made upon the accused. [ 19 ] Defence counsel maintains that on the totality of the evidence and having regard particularly to the fact that the Crown had not proved any nexus to alcohol consumption prior to the demand, the arresting officer did not have reasonable and probable grounds to make the breath demand.

[ 20 ] At the time the breath demand was made in the patrol car, apart from ascertaining any odour of alcohol or admission from the accused in this regard, Sergeant Leblanc had the following indicia of impairment by alcohol in his mind:

a) citizen complaint that the accused was parked in a private driveway yelling obscenities when approached for assistance;

b) vehicle parked in the middle of a stranger’s driveway, rather than off to the side;

c) driver asleep behind the wheel at just after noon;

d) inability to rouse the driver for five to ten minutes despite physically prodding and shaking him;

e) slurred speech;

f) going in and out of consciousness repeatedly;

g) extreme unsteadiness on his feet, stumbling and swaying as he walked; and

h) having to be physically prevented from falling to the ground. [ 21 ] According to Sergeant Leblanc he has “woken up a lot of intoxicated individuals” in his career and that the accused here certainly fit into that category. The Court accepts that he held an honest subjective belief in this regard.

The only issue is whether objectively there existed reasonable grounds for this belief [7] without regard to any direct evidence of actual alcohol consumption by way of admissions, smell or presence of alcohol containers, and so forth. [ 22 ] In making this determination the Court must assess the totality of the information available to Sergeant Leblanc at the time of the demand. [8] This need not amount to a prima facie case for impaired driving, but rather, is a question of whether the conclusion was reasonable based on the articulated observations. [9] No set or stock list of indicia as stated by Wilkinson, J in R v Kopperud [10] is required as each case will be different on its facts.

Simply put, on the observations the officer did make, is his conclusion of impairment objectively reasonable? [ 23 ] In a remarkably similar case on the facts, R v Palmer [11] , my sister Judge Gray dealt with precisely the same issue as in the present case, as stated at para. 18 of her decision: [18] In the case before me, there is no dispute that the officer ’ s belief was honestly held and subjectively valid.

The only question is whether, in the absence of any smell of or admission of consumption of beverage alcohol, his belief can be verified objectively. [ 24 ] In reaching the conclusion that such indicia was not necessary given the wealth of other evidentiary markers Judge Gray stated eloquently at para. 23: [23] It is the view of this Court that the driving irregularities and the physical symptoms of the accused in this case paint a virtual stereotypic portrait of a motorist impaired by alcohol.

The absence of the smell of beverage alcohol or any admission of consumption of beverage alcohol does not vitiate the probative value of the other indicia considered in their totality. In the face of the manner of driving demonstrated by the accused and the very significant symptoms of impairment, it would be ludicrous to suggest that the officer reasonably could have only a mere suspicion that the accused had alcohol in his body. On the whole of the observations and information

in the possession of the officer, I find that he did have reasonable grounds to effect an arrest for impaired driving and that the grounds to make the demand are objectively sustainable. Accordingly, there was no breach of s. 8 or s. 9 of the Charter and the Certificate of Analyses is therefore admissible . [ 25 ] Support for this proposition can be found in Impaired Driving in Canada - The Charter Cases [2 nd ed] [12] by the learned author, Justice Joseph F.

Kenkel, at page 100 relying on R v Lewis [13] , where he stated “ . . . the totality of the circumstances approach is inconsistent with elevating one circumstance to an essential pre-requisite to the existence of reasonable grounds.” [ 26 ] Accordingly, on the evidence before the Court, notwithstanding no admission of alcohol consumption or smell of alcohol, as was the case in Palmer , supra , the Court has no hesitation in determining the subjective belief of Sergeant Leblanc to be objectively reasonable in these circumstances.

In all respects otherwise, the accused appeared to be in a heavily intoxicated condition when encountered by Sergeant Leblanc.

d) Whether the Crown has proved that the officer made a proper demand for such samples in accordance with s. 254(5) of the Criminal Code . [ 27 ] Sergeant Leblanc testified that he made the breath demand “off the card” which is his standard practice, the actual text of which was not placed into evidence. He was not cross-examined on this point nor asked to elaborate in any fashion however. The reply of the accused was noted verbatim in Sergeant Leblanc’s notebook to be “ . . .

I will give you . . . absolutely yes.” [ 28 ] The accused contends on this evidence that the Crown has not proven beyond a reasonable doubt that a formal breath demand was made and therefore a finding of guilt for the subsequent refusal cannot be established. [ 29 ] There is no statutorily prescribed text for a s. 254(3) demand. Rather, it is sufficient that by words or circumstances that the accused understand what is being requested of him. [14] The evidence before the Court at roadside suggested the accused did understand this according to his response “I will give you . . . absolutely yes”.

Further, in cross-examination he admitted while at the detachment he understood the officers wanted a sample of his breath when he was presented to the machine. [ 30 ] In all the circumstances, the Court is satisfied that a proper breath demand was made upon the accused from which he understood what was required of him. [ 31 ] The evidence of Sergeant Leblanc and Constable Hannah is undisputed, that despite being repeatedly warned as to the consequences, the accused refused to provide samples of his breath. In his own evidence in cross-examination, the accused stated “I agree I declined to provide a sample”.

III CONCLUSION [ 32 ] The accused is found guilty on both counts of the Information of having care or control of his motor vehicle while his ability to operate was impaired by alcohol and of refusing to provide samples of his breath suitable for analyses. The Court will entertain submissions from the Crown as to which count a conviction will register accordingly. ___________________________

R.D. Jackson, J [1] See R v Litchfield [1993]4 SCR 2004 333, (SCC), 86 CCC (3d) 97 (SCC) [2] S. 258(1)(

a) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) orin any proceedings under any of subsections 255(2) to (3.2), where it is proved that the accused occupied the seat or position ordinarilyoccupied by a person who operates a motor vehicle, . . . the accused shall be deemed to have had the care or control of the vehicle, . . .unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle . . . in motion . . . [3] 2012 SCC 56 , [2012] 3 RCS 157 [4] 2004 SKCA 33 [5] (QC CA), [1989] R.J.Q. 295, 14 M.V.R. (2d) 50 (CA), affd (SCC), [1990] 2 S.C.R. 1106n, (SCC), 26 M.V.R. (2d) 169 [6] See para. [30] The respondent chose to testify.

An accused person who testifies, may, in the course of giving exculpatory evidenceon one issue, provide evidence that establishes facts that supports the prosecution’s case. An accused person who chooses not to testifycan make closing submissions that the Crown failed to establish its case or prove relevant facts.

But when an accused does testify, histestimony becomes part of the “whole of the case” to be considered by the judge in a non-jury trial. . . . [7] R v Bernshaw (1995), (SCC), 95 CCC (3d) 193 at para. 216 [8] R v Slippery 2014 SKCA 23 [9] R v Shepherd 2009 SCC 35 , [2009] SCJ No 35 (CA); R v Gunn (1997), 1997 ABCA 35 , 113 CCC (3d) 174 [10] 2011 SKQB 192 , [2011] SJ No 303 (QB) at para. 57: [11] 2012 SKPC 43 , 2012 SKPC 043 (PC) [12] Lexis Nexis Canada Inc. 2014, February 2014 [13] (ON CA), [1998] OJ No 376 (CA) at para. 22 [14] R v Kachmarski [2014] SCJ No 81 at paras. 35, 37 - 38 (QB), R v Wylie, [2013] OJ No 5019 at para. 10: “All that s. 254(3) requiresis that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon aspracticable.

There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the‘who, what, where and when’ of the demand.”