Her Majesty the Queen - v. -, 2015 SKPC 26

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 026 Date: February 12, 2015 Information: 24487717 Location: Southey _____________________________________________________________________________ Between: Her Majesty the Queen - and - Misty Skye Badger Appearing: Mr. D. Maher For the Crown Mr. B. Campbell For the Accused VOIR DIRE AND TRIAL DECISION M. HINDS , J [ 1 ] Around 2:45 a.m. on October 6, 2012, R.C.M.P.

Constables Nathan Bruce and Jean Luc LeBlanc were driving an unmarked patrol car southbound on Highway #6 south of the Qu ’ Appelle Valley when they observed a northbound van driving over the centre line of the highway. As a result of these observations Constable Bruce turned the police car around and activated the police emergency lights and caught up with the van. The driver of the van eventually pulled the van over to the right-hand side of the highway partially in a ditch. When the police came to van, they found the accused, Misty Badger to be in the driver ’ s seat of the van.

Her common-law partner, Trent Michiskinic was located in the front passenger seat of the van. Both were intoxicated. [ 2 ] Ms. Badger was charged with operating a motor vehicle while (1) impaired by alcohol and

(2) while over .08, contrary to sections 255(1) , 253(1) (

a) and 253(1)(

b) of the Criminal Code . Issues [ 3 ] There is one issue on the voir dire : 1. Whether certain statements by the accused Ms. Badger to Constable Bruce were made voluntarily and should be admitted as evidence at the trial? [ 4 ] There are two issues at the trial: 1. Has the Crown established that Ms. Badger operated or had care or control of the motor vehicle? 2. Has the Crown established that Ms. Badger was in defacto care or control of the motor vehicle? Facts [ 5 ] Misty Badger is 26 years of age. She is the mother of three boys ages 5, 4 and 3. Trent Michiskinic is the father of her children.

Misty and Trent have known each other since 2007. Misty and Trent have had a rocky relationship which at times involves Trent being violent with Misty. [ 6 ] On October 6, 2012, Ms. Badger went shopping in the City of Regina with her family. She testified that she dropped her children with her sister-in-law Annette and around 8:00 or 9:00 p.m., Ms. Badger and Trent Michiskinic went to his other sister Barbara Swan’s home at 1126 Retallack Street where they began visiting and drinking alcohol. Ms. Badger testified that she and Trent became intoxicated at the house party. [ 7 ] Ms.

Badger testified that she and Trent Michiskinic got into an argument at the house party around 2:00 a.m. Trent wanted to leave the party and she did not. Ms. Badger testified that Mr. Michiskinic pushed her out of the house. She did not have socks or shoes on. He also slapped and beat her giving her two black eyes and a swollen lip. Ms. Badger testified that after the beating she got into the passenger seat of their van. Mr. Michiskinic proceeded to drive the van to Annette’s home where they had left the children. Ms. Badger further testified that Mr.

Michiskinic then drove the van northbound on Highway #6 on route to Piapot First Nation. [ 8 ] Around 2:45 a.m., Constables Nathan Bruce and Jean Luc LeBlanc were driving southbound on Highway #6 when they observed a northbound van driving over the centre line of the divided highway. As a result of these observations, Constable Bruce turned the police car around and activated the police emergency lights and caught up with the van. The driver of the van eventually pulled the van over to the right of the highway partially in a ditch. Initially the two officers could see two heads in the front seat of the van.

When they approached the van on foot they also observed three young children in the back of the van. [ 9 ] The officers found Misty Badger seated in the driver’s seat of the van. Trent Michiskinic was located in the front passenger seat of the van. Constable Bruce acknowledged on cross-examination that it was possible that the van had tinted windows. [ 10 ] Misty Badger testified that shortly after seeing the police emergency lights, Trent Michiskinic stopped the van. She further testified Mr. Michiskinic told her to switch seats with him and she did. She said this only took a second. Ms.

Badger testified that she was scared of the consequences she faced from Mr. Michiskinic if she did not switch seats. Ms. Badger also testified that she was going to be arrested on an outstanding warrant and she thought Mr. Michiskinic would be okay to stay with the children. [ 11 ] Ms. Badger said that she occupied the driver’s seat for about 10 seconds before the police knocked on the windows of the

van. She added that all of windows of the van are tinted except the windshield, driver’s and passenger side windows. [12] On cross-examination Ms. Badger testified that she has been previously assaulted by Mr. Michiskinic more than four times.She maintained Mr. Michiskinic assaulted her prior to their encounter with the police on October 6, 2012. Ms. Badger did agree that shemisled Constable Bruce that early morning by telling him that she was in a fight with her sister-in-law. She acknowledged that she wasnot going to leave the children with Ms.

Michiskinic, however, she changed her mind as she thought she was going to be arrested by thepolice in any event. She also testified that she was not thinking clearly that early morning. Voir Dire Ruling [13] A voir dire was conducted to determine if certain statements made by the accused while in the presence of the police wereadmissible as evidence at the trial. [14] Constable Bruce testified in-chief that before he stopped the van he observed two people in the van and he did notlose sight of the van. Upon encountering Ms.

Badger he immediately smelled the odour of alcohol, she had slow deliberate movements,she was unstable on her feet and her eyes were bloodshot and watery. He also observed that Ms. Badger had bloody swollen lips, twoblack eyes and that she was barefoot. He arrested her for impaired driving. He read Ms. Badger her Charter rights, a standard policewarning and made a breath test demand from her at 2:54 a.m. In response Ms. Badger said “Can you cut me a break, though?” Constable Bruce also testified that in between breath tests that Ms. Badger told Constable Bruce that she was not driving the van and thatMr.

Michiskinic made her switch seats with him. [15] I am satisfied that both of these statements were voluntary and were in compliance with the law set out in R vOickle, 2000 SCC 38 , [2000] 2 SCR 3. I find that Constable Bruce did not make any promises or threats to Ms. Badger prior tothese statements being made. I also find Constable Bruce did not create conditions distasteful enough that Ms. Badger made stresscompliant utterances to escape those conditions. I find there is no evidence that Ms.

Badger was deprived of an operating mind prior tomaking this statement, nor was there trickery or deceit used by the police in relation to Ms. Badger. [16] Constable Bruce testified that after he got Ms. Badger into the police car a decision was made to have another police vehicleattend the scene to deal with Mr. Michiskinic and the children. Constable LeBlanc arrested Mr. Michiskinic for having open liquor in avehicle and for breaching a release condition to have no contact with Ms. Badger. As it was quite cold out that early morning the twoofficers left Mr.

Michiskinic unaccompanied in the van with the children while awaiting another police officer to arrive. This proved tobe a poor decision by the police. Just as another officer arrived on scene, Mr. Michiskinic decided to get into the driver’s seat of the vanand speed away with the children. The police were unable to stop Mr. Michiskinic. Fortunately, I understand that no harm came to thechildren. [17] Ms. Badger remained in police custody.

She subsequently provided two samples of her breath at 4:35 a.m. and 4:54 a.m. intoan approved instrument which revealed she had 150 and 140 milligrams respectively, of alcohol in 100 millilitres of blood. Has the Crown established that Ms. Badger operated or had care or control of the van? [18] Neither officer testified that they actually saw Ms. Badger operating the van. This is not surprising given themomentary encounter which would have taken place as the two vehicles drove past each other going in opposite directions on Highway#6 at night.

Moreover, I find that the officers’ view of the inside of the van would have been obscured as they pulled up behind the vanas I accept Ms. Badger’s testimony that all of windows of the van are tinted except the windshield, driver’s and passenger side windows. [19] R v Drolet (1988), (QC CA), 14 MVR (2d) 50 (QCA) affirmed by the Supreme Court of Canada (SCC), [1990] SCJ No 101 held that impaired care or control of a motor vehicle is an included offence of impaired operation

of a motor vehicle. In this case the Crown takes the position that Ms. Badger was in care or control of the van. [20] 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 ... [21] The issue of care or control has been extensively litigated in Canada, and there is a significant list of appellate courtdecisions to provide guidance on the

interpretation and application of this section. I refer to Ford v The Queen, (SCC),[1982] 1 SCR 231 [Ford]; R v Toews, (SCC), [1985] 2 SCR 119 [Toews]; R v Brahniuk, 2002 SKCA 104; R vShuparski, 2003 SKCA 22 [Shuparski]; R v Buckingham, 2007 SKCA 32; R v Boudreault, 2012 SCC 56 [Boudreault]; R v Anderson,2012 SKCA 37 and R v Poncelet, 2014 SKCA 30 [Poncelet]. [22] Boudreault is considered the leading authority with respect to the offence of being in care or control of a vehicle contrary to s.253(1) of the Criminal Code. In Poncelet, Chief Justice Richards summarises the law set out in Boudreault as follows: 22.

In its decision, the Supreme Court described the essential elements of “care or control” as follows: (

a) an intentional course ofconduct associated with a motor vehicle; (

b) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds thelegal limit; and (

c) in circumstances that create a realistic risk of danger to persons or property (para. 33). 23. The Court underlined that the risk of danger must be “realistic” and not just “theoretically possible”. It said the risk need not be“probable” or “substantial” and, speaking through Fish J., described the low nature of the risk threshold as follows: [48] I need hardly reiterate that “realistic risk” is a low threshold and, in the absence of evidence to the contrary, will normally be theonly reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion.

To avoidconviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that norealistic risk of danger existed in the particular circumstances of the case. 24. As to the practical effect of its view of “care or control”, the Supreme Court stressed that intoxicated persons found behind the wheelof a vehicle will almost always face conviction: [45] As I mentioned at the outset, anyone found inebriated and behind the wheel with a present ability to drive will - and should - almostinvariably be convicted.

It hardly follows, however, that a conviction in these circumstances is, or should be, “automatic”. A convictionwill be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case. [23] In R v LaCasse, [2013] SJ No 597 at para 16, my brother Judge Kovatch set out a method of analysis for care or control casesas follows: 1. Has the Crown established that the accused was occupying the driver’s seat? If yes, then the presumption contained in s. 258(1)(a)applies. 2. Has the accused adduced evidence to rebut the presumption in s. 258(1)(a)?

If the accused has not rebutted the presumption, then theCourt should conclude that the accused is in care and control of the vehicle. If the accused has not rebutted the presumption, and theCrown has proved the other requisite elements of the offence, then the accused must be convicted of the charge. 3. If the accused has rebutted the presumption, then the Court must determine whether on all of the evidence, the accused is in de factocare and control of the vehicle. [24] I adopt this method of analysis. The Presumption of Care or Control

[25] The evidence reveals that on October 6, 2012, sometime shortly after 2:45 a.m., the police found Ms. Badger in the driver’sseat of a van. Therefore, the presumption that Ms. Badger had care or control of the vehicle applies. The presumption of care or controlcan be rebutted by evidence which, if accepted, establishes on a balance of probabilities that the accused did not occupy the driver’s seatfor the purpose of setting the vehicle in motion (Ford and Shuparski). [26] I found Ms. Badger to be a credible witness. I accept her evidence that she was beaten by her common-law partnerMr.

Michiskinic and forced into the passenger seat of the van earlier that morning. When Constable Bruce first encountered Ms. Badger,he observed that she had bloody swollen lips, two black eyes and that she was barefoot. In my view her visible injuries corroborate Ms.Badger’s testimony. Given her circumstances and the complex issues associated with domestic violence, I do not find it difficult tounderstand why Ms. Badger did not tell Constable Bruce that Mr. Michiskinic beat her. I find that she was in fear of Mr.

Michiskinic thatearly morning and that he had been driving the van prior to it being stopped by the police. Ms. Badger was in no condition to operate orhave care or control of the van that early morning. She freely admits she was intoxicated. She was also injured and barefoot. She was illequipped to be driving a vehicle. [27] Mr. Michiskinic had no hesitation in taking advantage of being left in the running motor vehicle. He decided to getback into the driver’s seat and speed away from the police with the children in the vehicle, leaving Ms. Badger with the police. I acceptMs.

Badger’s testimony that she was sitting in the front passenger seat of the van when it came to a stop and that she complied with Mr.Michiskinic’s demand to switch seats with him. In addition I find that Ms. Badger had no intention to occupy the driver’s seat for thepurpose of setting the vehicle in motion. Rather she wanted to avoid further violence from Mr. Michiskinic. Hence, I find that Ms.Badger has rebutted the presumption of care or control. Defacto Care or Control [28] However, the analysis does not end here.

Even if an accused is able to establish that there was no intent to drive, care orcontrol is made out where there is a realistic risk of danger (Boudreault, 2012 SCC 56 at 33). This risk must be “realistic and not justtheoretically possible…but nor need the risk be probable, or even serious or substantial” (Boudreault at 34). This realistic risk can bemade out in several ways. The impaired person may change their mind and drive. They may unintentionally set the vehicle intomotion. The vehicle could also be dangerous through negligence or bad judgment, even when the vehicle remains stationary.

Hence, Imust now determine whether on all of the evidence before me, the accused was in de facto care or control of the vehicle. [29] De facto or actual care or control of a motor vehicle involves some use of the vehicle, or its fittings and equipment,or conduct associated with the vehicle that would involve a risk of putting the vehicle in motion so that it could become dangerous(Toews, Ford and Shuparski). [30] The accused may also be found in actual care or control where the danger arises due to other circumstances such asthe vehicle being parked in the middle of a street or thoroughfare where its mere presence is a danger, regardless of whether it can be putin motion.

In R v Mallery (2008), 2008 NBCA 18 , 231 CCC (3d) 203 (NBCA), the New Brunswick Court of Appeal provideda helpful

summary of what is required to prove de facto care or control: In care or control cases, the ultimate task of the trial judge is to decide whether the Crown has met the burden of establishing beyond areasonable doubt that the accused’s interaction with his or her vehicle presented a danger or, as it is sometimes phrased, a “risk ofdanger” or a “risk to public safety”.

If the facts establish beyond a reasonable doubt a risk of the accused putting the vehicle in motion,either intentionally or unintentionally, or if the facts otherwise support a finding of danger (such as from parking one’s car in the middleof a public thoroughfare), then care or control will have been established. (paragraph 52) [31] The evidence reveals that the injured Ms. Badger was simply occupying the driver’s seat.

There is no evidence that she hadher hands on the steering wheel or was otherwise involved in some use of the vehicle, or its fittings and equipment, or conductassociated with the vehicle that would involve a risk of putting the vehicle in motion so that it could become dangerous. That risk onlymaterialized once Ms. Badger was removed from the vehicle and Mr. Michiskinic once again got into the driver’s seat. [32] In this case, I am not satisfied beyond a reasonable doubt that the facts support a finding of a risk of danger.

Accordingly, I am of the view that care or control of the vehicle has not been established. Conclusion [ 33 ] In

summary, I have a reasonable doubt that Ms. Badger operated the van prior to it coming to a stop on Highway #6. I determined that Ms. Badger rebutted the presumption that she had care or control of the van. Lastly I have a reasonable doubt that Ms. Badger had de facto care or control of the van after it came to a stop on Highway #6. As a result Ms. Badger is acquitted of the charges before the Court. ____________________________ M. Hinds, J