Her Majesty the Queen - v. -, 2011 SKPC 169

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 169 Date: November 2, 2011 Information: 24392518 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Maciej Skora Appearing: Ms. V. Adamko For the Crown Mr. R. Muenz For the Accused JUDGMENT D.C. SCOTT , J BACKGROUND [ 1 ] On August 4, 2010, Maciej Skora was charged with having care or control of a motor vehicle while his ability to operate a

motor vehicle was impaired by alcohol contrary to s. 253(1) (

a) of the Criminal Code . A charge of refusing to provide breath samples contrary to s. 254(3) (

a) of the Criminal Code was stayed by the Crown. [ 2 ] At trial, the Crown called three witnesses; the accused, Mr. Skora testified for the Defence. [ 3 ] The presumption of care or control as set out in s. 258(1) (

a) of the Criminal Code applies in this case. The Court must determine (1) whether the Crown has established beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol; (2) whether the evidence rebuts the presumption of care or control; and (3) if so, whether the evidence establishes that the accused had de facto care or control.

Evidence Constable Kenneth Moore [ 4 ] RCMP Constable Moore testified that on August 4, 2010, at approximately 11:15 p.m., while on duty, he received a complaint of a semi-trailer truck being driven in an erratic manner on Highway 16, east of Borden, Saskatchewan. The officer arrived at the scene at 11:45 p.m. Two vehicles were parked on the right shoulder of the road well behind the semi pulling a flat deck.

Although the shoulder surface on that stretch of highway is paved and the grade of the road is flat, the semi was parked with the cab protruding into the right westbound driving lane of the divided highway, at a right angle, such that it obstructed traffic. The officer testified that the semi ought to have been parked well onto the shoulder away from the driving lane, with the flashers activated or with the use of reflective cones. [ 5 ] Constable Moore and his partner, Constable Hall found the accused, Mr. Skora in the driver’s seat slumped over the steering wheel, leaning onto the driver’s door.

The accused’s feet were on the floor. After several minutes of banging on the doors and yelling in an attempt to rouse the accused, the officer heard a verbal response that he could not understand. Once awakened, the accused seemed confused and disoriented. [ 6 ] Constable Moore was given permission to enter the cab. There was no evidence of anyone other than the accused in the vehicle. The key was in the ignition, but the officer could not say in what gear the semi was parked, as he is not familiar with the operation of such a vehicle. He had no recollection of whether lights or flashers were illuminated.

Neither could he recall whether the engine was running at the time; there was nothing in his notes in that regard. [ 7 ] The officer could smell the odour of alcohol. The accused’s speech was slurred. He found a partially full 1.4 litre bottle of vodka on the floor between the driver’s and passenger’s seats. The accused was placed under arrest for impaired care or control. [ 8 ] Mr. Skora was taken to the police car. Although not recorded in his notes, the officer testified that the accused’s balance was unsteady and he swayed side to side in a zig-zag motion, but he was able to walk under his own power.

He was handcuffed, searched and placed in the back seat for officer safety. At 12:05 a.m. his rights were read to him. The accused, whose first language is not English, stated he did not understand. The officer again explained his rights and the reason for his arrest. The accused stated he understood and wanted to speak to a lawyer. [ 9 ] After his right to counsel and police warning were read, a breath demand was made at 12:17 a.m. The accused indicated he understood the demand. A tow truck had been called and eventually the semi was safely moved.

The officer with the accused returned to the Warman Detachment to obtain breath samples, at approximately 1:30 a.m. The accused was escorted to a phone room and provided a phonebook. Ultimately he was offered Legal Aid which he declined. The accused asked numerous times why he was there and why he had been arrested.

[ 10 ] Because of the language barrier, the officer contacted their office in Regina to find an interpreter to assist with translation. The accused was escorted to the intoxilyzer technician, but the accused refused to provide a sample. He was then taken to the Saskatoon RCMP cells. [ 11 ] At the detachment, the officer observed the accused’s eyes were bloodshot and he continued to notice an odour of liquor. Sharmon Martin [ 12 ] Ms. Martin testified that on the evening of August 4, 2010, she and her husband were travelling on Highway 16 westbound toward North Battleford.

She was driving as they came upon a semi travelling ahead of their vehicle, swerving from left to right on the highway. [ 13 ] Initially, she had been travelling in the right westbound lane, as she came up behind the semi also travelling in the same lane ahead of her. She pulled into the left lane to pass, but the semi swerved across the highway into the left lane. She was forced to slow to approximately 80 kilometres per hour. The semi continued to swerve from lane to lane, so Ms. Martin decided to stay behind the semi believing it was unsafe to try to pass.

She drove in the centre of the highway and activated her flashing emergency lights to alert other drivers on the road. [ 14 ] After following the semi for approximately one kilometre, Ms. Martin observed the emergency flashers activated on the semi, while it continued to travel, swerving on the highway. Ms. Martin did not see brake lights engaged. [ 15 ] Ms. Martin followed the semi for approximately five to seven kilometres, observing the semi swerving “all over the highway” from lane to lane. She observed the semi swerve to such an extent that it entered the ditch.

She was concerned the semi would roll, but it returned to the highway. She estimated that the vehicle swerved approximately 15 to 16 times, moving from lane to lane. On three occasions it entered the ditch. [ 16 ] Eventually the semi pulled to the right side of the right westbound lane and stopped. The vehicle was parked with the flat bed trailer straight on the side of the road but the tractor was angled partly to the left, extending into the right lane of traffic. Had a vehicle tried to pass the semi in that lane, it would have hit the front bumper.

The emergency flashers on the semi remained activated after it parked. [ 17 ] After following the semi for approximately one kilometre, Mr. Martin contacted 9-1-1 and remained on the phone until the semi stopped; they waited for the police to arrive. Another vehicle also stopped behind Ms. Martin’s. In the meantime, her husband went to the door of the truck but it was locked. The driver did not come out of the vehicle. Ms. Martin did not know whether the semi engine remained running after it parked. [ 18 ] Once the police arrived, Ms.

Martin observed the accused exit the truck, as he was escorted to the police vehicle. She could see the accused walking to the police cruiser. She described him as stumbling or staggering, although this was not in her statement to the police. RCMP Constable Craig Hall [ 19 ] Constable Hall arrived in a separate vehicle. He approached the driver’s side door of the semi and looked inside. He could not recall whether the semi engine was running, but did not believe it was. He did not recall whether the hazard lights or other lights were on.

He climbed up three or four steps to reach the door and saw the cab was dark and the door was locked. He found the accused sleeping with his head turned away and his arms wrapped around the steering wheel. He could see the key in the ignition.

[ 20 ] The officer banged on the door window and yelled at the accused. He was unresponsive. The officer yelled numerous times as he was concerned that the driver might be in medical distress. He went to the passenger door and could see the driver breathing, as his chest was rising and falling. He threatened to break the window and then heard the driver mumble. The officer ran back to the driver’s side door and the driver lowered the window. The officer reached in and unlocked the door. [ 21 ] The officer observed the accused to be lethargic, with glossy, bloodshot eyes.

He was talking heavily with slurred speech. When asked for his driver’s licence, the accused fumbled with his wallet. The officer observed the strong odour of alcohol emanating from the accused. The officer leaned in and retrieved the keys but did not know in what gear the semi was parked, as he is not familiar with its operation. He could not recall if the lights were illuminated or if the flashers were activated.

There was no recording of these matters in his notes. [ 22 ] Constable Hall testified that Constable Moore took the accused to the police vehicle and he walked with them, approximately three feet behind. He observed the accused was unsteady on his feet and appeared to be having difficulty walking and maintaining his balance. [ 23 ] Constable Hall returned to the semi to search it. He discovered a sealed bottle of rum in the sleeper, which could not have been reached from the driver’s seat. He was aware Constable Moore had found an open bottle of alcohol. Constable Hall emptied both.

He waited for the tow truck and returned to the detachment. [ 24 ] The officer testified the semi was parked in such a manner that the cab was blocking the right driving lane, making it impassable to other traffic. Maciej Skora (with the assistance of an interpreter) [ 25 ] Mr. Skora is 48 years of age, has his 1A driver’s licence and has worked as a truck driver for 20 years. His first language is Polish. [ 26 ] Mr. Skora testified that on August 4, 2010, his day began at 7:00 a.m. in Estevan. His plan was to drive to Lloydminster. He stopped in Regina for approximately 5 ½ hours, leaving at 6:00 p.m.

He stopped twice between Regina and Saskatoon to check the engine’s belts and stopped in Saskatoon. He left Saskatoon at approximately 10:30 p.m. [ 27 ] He testified that he ate lightly that day and did not consume any alcohol from Estevan to the time he stopped his semi on the side of the road. The night before, he had stayed in Estevan and did not drink alcohol while there. [ 28 ] This was his third continuous day of driving. Regulations require a professional truck driver to rest for 10 hours after driving a maximum of 14 hours. [ 29 ] Mr.

Skora testified he was seeing reflections of animals and recognized that his driving was completely inadequate. He was having trouble staying awake so he decided to pull over to sleep, even though Lloydminster was another three or four hours away. His recollection was that he drove approximately 15 minutes before deciding to stop. He activated the hazard lights before pulling over. He did so as he realized his driving was already impaired by fatigue and he was looking for some place to stop. He pulled over to the shoulder after he realized he was driving in the ditch. Mr.

Skora acknowledged that he had passed Langham, yet did not stop at the gas station there, even though he was tired. [ 30 ] Mr. Skora testified that after he stopped the semi, he took the following steps: (1) put the vehicle in neutral; (2) applied the foot brakes (air brakes); (3) turned off the headlights; (4) activated the emergency lights; and (5) closed the doors. The vehicle was turned off. He testified the keys are always in the ignition when he is in the truck. All emergency lights were activated on the truck and the flat bed.

[ 31 ] When he stopped the vehicle, he did not get out of the vehicle to ascertain how he was parked—he checked the mirrors and thought he was parked correctly. He did not see the civilian vehicles parked behind the semi. [ 32 ] The accused admitted he had alcohol in the sleeper compartment of his truck. He testified he left the driver’s seat, went into the sleeping quarters and consumed two glasses of alcohol and had a cigarette. He intended to sleep for eight or nine hours in the sleeper.

This would have been usual for him, because he lives in the truck when he is on the road for many days. [ 33 ] One bottle of alcohol was in the sleeper of the vehicle and the other was by his feet when he was trying to access a cigarette. From the sleeper compartment, he returned to the driver’s seat to have a cigarette. He did so because he never smokes in his sleeping quarters and his cigarettes are stored by the dashboard.

The ashtray is also near the cupholders close to the dashboard to the right of the steering wheel. [ 34 ] He testified he did not recall when he had purchased the bottles of alcohol, but both were sealed until he opened the vodka after parking his vehicle on the side of the road. [ 35 ] Mr. Skora consumed two shot glasses of vodka. He did so because he thought the vodka would help him get to sleep more quickly. He then placed the bottle on the floor between the driver’s and passenger’s seats, a space of approximately 16 to 18 inches.

There is a distance of approximately four feet between the dash where the keys were in the ignition and the partition between the cab and sleeper. The space between the back of the driver’s seat and the sleeper is approximately one and a half to two feet. A curtain separates the sleeper and driving compartment. [ 36 ] Mr. Skora testified that after he had the cigarette, the next thing he remembers was the banging on the door. He had been planning to move to the sleeper to sleep. He clarified that he had no recollection of having the cigarette, although he was sure he had taken one out of the box.

He had no memory after he returned to the driver’s seat. When he was awakened by the police from his sleep he was “groggy”. [ 37 ] Mr. Skora testified that to start the vehicle, the following steps must be taken: (

a) depress clutch (

b) check gears for neutral position (

c) start the engine (

d) release brake (

e) depress clutch again and place vehicle into first gear. [ 38 ] Everything he needed to do to start the engine would be from the driver’s seat. However, his usual practice is to ensure the fifth wheel is attached to the rest of the truck requiring him to go outside. The truck has a diesel engine, which, according to the accused, requires warming for approximately 20 minutes before driving. Defence Position [ 39 ] The Defence argued the apparent signs of impairment can be explained by the accused’s fatigue and his Polish accent.

Further, the accused has provided a credible explanation for being in the driver’s seat, thereby rebutting the presumption that he had the care or control of the vehicle. Counsel for the accused also argued there was no danger the semi could have been inadvertently set in motion, which is the risk Parliament intended to prevent.

Crown Position [40] The Crown argued the evidence was sufficient to meet the test for impairment by alcohol. It was counsel’s submission thatthe accused’s testimony was not credible and did not rebut the presumption. As well, everything the accused needed to do to set thevehicle in motion could have been done from the driver’s seat, thereby creating a danger had he awakened and decided to drive. Analysis 1.

Has the Crown proven beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol? [41] The Crown must prove beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired byalcohol at the time he was in care or control of the vehicle. According to R. v. Stellato, (ON CA), [1993] O.J. No. 18(C.A.) para. 14, affd. (SCC), [1994] 2 S.C.R. 478 (S.C.C.), any degree of impairment, from slight to great, is sufficientto establish this element of the offence. As Gray J. stated in R. v. Breland, [2011] S.J.

No. 476 at para. 20: The Court must be satisfied beyond a reasonable doubt, on the totality of the evidence, that the ability of the accused to operate a motorvehicle was impaired to some degree by alcohol. R. v. Stellato…provides the test to be applied in determining whether the offence ofimpaired driving has been established; that is: if the Crown has proven beyond a reasonable doubt that the ability of an accused to operatea motor vehicle is even slightly impaired by drug or alcohol, there is sufficient proof of the offence. This does not mean that only slightevidence will be adequate.

Rather, the evidence as a whole must establish that such an inference can reasonably be drawn from conductwhich is a departure from the norm. That departure may fall upon a continuum from slight to great, leading to no other reasonableconclusion but that the accused’s ability to operate a motor vehicle was impaired to some degree by the consumption of alcohol and/ordrugs. [42] The evidence in this case establishes the accused, a professional driver, was driving in an egregious manner for a considerableperiod of time. He parked the semi in such a way that it obstructed highway traffic.

He was found in a deep sleep, slumped over thesteering wheel while in the driver’s seat. The officers pounded on the vehicle doors a number of times and yelled at him for severalminutes, because he was difficult to awaken. Once awake, Mr. Skora appeared to be disoriented and lethargic. He had bloodshot eyes. His speech was heavy and slurred. The officers observed the strong smell of alcohol emanating from the accused. When asked for hisidentification, the accused fumbled with his wallet.

When walking from the truck to the police vehicle, the accused’s balance wasunsteady and he swayed side to side in a zig-zag motion, although he was able to walk under his own power. [43] Because the accused testified, the Court must consider his testimony in light of all of the circumstances in assessing whether itraises a reasonable doubt with respect to his level of impairment (R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397(S.C.C.); R. v. McKenzie (1996), (SK CA), 141 Sask.

R. 221 (C.A.)). [44] The accused testified he had consumed no alcohol on the day of these events, until he stopped the vehicle on the side of theroad, at which time he drank two glasses of vodka. He did so, to help him sleep, despite suffering from extreme fatigue. [45] He acknowledged the manner of his driving, as described by Ms. Martin, but explained it was the result of fatigue.

The Courtdoes not accept that a professional truck driver, whose judgment was impaired only by fatigue, would have continued driving in thedangerous manner that he did, risking the safety of others and jeopardizing the equipment he was hauling. Rather it would be expectedthat a professional driver would plan a rest stop or pull over at the first sign of fatigue. [46] The accused thought he had parked the semi properly, using his mirrors, although he admitted he did not get out of the vehicle

to check. Once again, a professional driver, affected by fatigue and no other impairment, would have ensured his semi was parked in asafe and appropriate manner, well onto the shoulder, using reflective cones, to alert other drivers, rather than blocking a driving lane sothat it was impassable. [47] The accused testified that after parking, he put the vehicle in neutral, applied the air brakes, turned off the headlights,activated the emergency lights and closed the doors. Then, he left the driver’s seat, went into the sleeping quarters and drank twoglasses of alcohol and had a cigarette.

It was when he resumed his place in the driver’s seat that he fell asleep. It would have takenseveral minutes for him to shut down the engine, move about the cab, consume his drinks and have a cigarette. Yet, he was unaware ofthe civilian vehicles behind him and of Mr. Martin having approached his vehicle to determine if he was alright. [48] The Defence argued that the accused’s Polish accent might have been mistakenly perceived as slurred speech. The Court hadthe benefit of hearing the accused testify, albeit in Polish.

There was no indication that the accused’s accent prevented him fromarticulating his words. [49] For all of these reasons, the Court does not accept the accused’s assertion that his condition was caused only by extremefatigue. In any event, the combination of lack of sleep and alcohol is not a defence to the offence of impaired driving (Breland, para. 22;R. v. Pelletier (1989), (SK KB), 51 C.C.C. (3d) 161 (Sask.

Q.B.) at para. 15)). [50] The Court finds, on the whole of the evidence, the conduct of the accused demonstrated a departure from the norm, leading tono other reasonable conclusion but that the accused’s ability to operate a motor vehicle was impaired to some degree by alcohol. 2. Has the presumption of care or control in s. 258(1)(

a) of the Code been rebutted? [51] Section 258(1)(

a) of the Criminal Code provides in part: …where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle…theaccused shall be deemed to have had the care or control of the vehicle…unless the accused establishes that the accused did not occupythat seat or position for the purpose of setting the vehicle…in motion… [52] The presumption, if it applies, can be rebutted by evidence which establishes on a balance of probabilities that the accused didnot assume that position for the purpose of setting the vehicle in motion (R. v.

Ford, [1982] S.C.R. 231 (S.C.C.) at para. 6; R. v.Shuparksi, 2003 SKCA 22 at para. 23). Mr. Skora was found by the officers in the driver’s seat. Therefore, the presumption of care orcontrol applies. [53] The accused testified that he had stopped his vehicle, because it was his intention to sleep for the night. However, his vehicleis equipped with a sleeper compartment for that purpose, so he was not required to sleep in the driver’s seat. [54] The manner and location in which the accused parked the semi is inconsistent with a professional driver parking his rig, tosleep for nine hours.

Rather, it is suggestive of a temporary stop, either before moving the semi to a safer place to rest or continuing onto Lloydminster as was his original plan. [55] He testified his reason for being in the driver’s seat was to have a cigarette, but he fell asleep. Initially, he testified that thelast thing he recalled before the police officers arrived was finishing his cigarette. Later, in his testimony, he stated he could not recallwhether he had yet smoked or even lit a cigarette. [56] The ashtray was located between the driver’s and passenger’s seats.

As a professional truck driver, the accused would havebeen aware of the danger in resuming his place in the driver’s seat after consuming alcohol. Given the location of the ashtray, he could

have positioned himself in the passenger seat, had that been his purpose. The position in which he was found, with his feet on the floor,arms wrapped around the steering wheel, is inconsistent with someone who took the driver’s seat for the sole purpose of having acigarette. [57] The Court finds that the accused’s stated intention that he had stopped to sleep in the sleeper compartment for the night isinconsistent with the evidence as a whole. I do not accept his testimony in this regard, nor does it raise a reasonable doubt.

The totalityof the evidence is more consistent with the accused being impaired by alcohol and passing out in the driver’s seat of the vehicle almostimmediately upon parking. [58] Therefore, the Court finds the accused has failed to rebut the presumption in s. 258(1)(

a) of the Criminal Code and istherefore deemed to have been in care or control of the semi. 3. Has the Crown proven de facto or actual care or control? [59] Although the accused is deemed to have had care or control of the semi, the Court will also address whether the evidenceestablishes that the accused was in actual care or control of the vehicle. [60] The principles articulated in R. v. Pincemin, 2004 SKCA 33 , [2004] S.J. No. 134 (Sask. C.A.) are applicable to thiscase.

In Pincemin, the accused testified that before being found asleep at the wheel of his vehicle, he had become lost and drove until heran out of gas. The Court found the accused had abandoned his intention to drive and would have been unable to set the vehicle in motionbecause it was out of gas. Nonetheless, the accused was convicted on the basis of his testimony that he had been driving while grosslyimpaired by alcohol before stopping to sleep.

The Court of Appeal held that the offence of having the care or control of a vehicle whileimpaired includes the act of driving while impaired (para. 24). [61] In the case before this Court, the accused admitted he had been driving the semi prior to pulling it over. Further, heacknowledged his erratic driving. The Court has concluded that the accused was impaired not as the result of fatigue only, but rather, atbest a combination of fatigue and alcohol.

Further, the Court has not accepted the testimony that the only alcohol consumed by him wasa couple of quick shots after he had parked for the night. [62] The Court has found the accused was impaired at the time he was found by the officers. An inference can reasonably bedrawn from the evidence that the accused was impaired while he was driving. Ms. Martin’s husband called 9-1-1 approximately onekilometre after coming upon the accused’s semi. Mr. Martin was connected with the police and remained on the phone until the semistopped. According to Ms.

Martin, they waited approximately 20 minutes for the officers to arrive. Constable Moore testified hereceived the dispatch at approximately 11:17 p.m. and arrived at the scene at 11:45 p.m. He spoke briefly with the Martins and thenapproached the accused’s vehicle. The evidence establishes the accused drove in the two hours preceding his detention. [63] Given the relatively short duration between the accused’s erratic driving and being found intoxicated behind the wheel by theofficers, the Court concludes that the accused was impaired while he was driving.

Therefore, he was in de facto care or control at thattime. Conclusion [64] The Court has found the accused’s ability to operate a motor vehicle to have been impaired. The accused was found in thedriver’s seat, but failed to rebut the presumption that he had care or control of the vehicle. Further, the Court has found the accused wasin de facto care or control. [65] The accused is therefore found guilty of having care or control of the motor vehicle while his ability to do so was impaired.

______________________ D.C. Scott, J