Her Majesty the Queen - v. -, 2013 SKPC 184

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 184 Date: November 21, 2013 Information: 24478244 Location: Assiniboia _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brian M. Tendler Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Dave Halvorsen For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, Brian M. Tendler is charged with impaired driving. It is alleged the offence occurred in the early morning hours of September 8, 2012, in the Town of Assiniboia, Saskatchewan. The issue is whether the Crown has proved the charge beyond a reasonable doubt. EVIDENCE

[ 2 ] The Crown called two witnesses, both civilians. The first of those was Mr. Colby Piche. [ 3 ] Mr. Piche is a young man, 20 years of age. At the trial, in September of 2013, he advised that he was living in Alberta. However, in September of 2012, he was living in Assiniboia, Saskatchewan. He testified that in the early morning hours of September 8, 2012, probably at approximately 1:00 a.m., he was walking along Main Street in Assiniboia with his friend, Ben Potratz. He testified that he and Ben had been to a party at “Davey’s house”.

He believed they arrived there at approximately 9:00 p.m. and left around midnight. He testified that they had been drinking. At first he testified that he had about four beer. Under cross-examination, he admitted he may have had six beer. On a scale of drunkenness from one to 10, with 10 being very drunk, Mr. Piche said he was about four. He said he definitely would not have driven a vehicle. [ 4 ] Mr. Piche testified that he knew the accused, Brian Tendler. Mr. Piche said he used to work at Kal Tire, and Mr. Tendler was a regular customer at Kal Tire. [ 5 ] Mr.

Piche testified that he and Ben were walking along Main Street at which time a black Trans Am began a left-hand turn off of Main Street. The black Trans Am was moving quickly. However, right in the middle of the intersection, the driver slammed on the brakes, took the car out of gear, opened the driver’s door, left the driver’s seat and staggered toward them. Mr. Piche was very clear and sure that the driver was the accused, Brian Tendler. [ 6 ] Mr. Piche testified that the accused was the lone occupant driving a black Trans Am automobile. Mr.

Piche said that the Trans Am was going awkwardly fast and went through the stop sign, without stopping. The accused then slammed on his brakes and the tires squealed. The accused stopped right in the middle of the street and exited the vehicle. Mr. Piche said that as the accused approached him, he stumbled from side to side. Mr. Piche said the accused was yelling at them and calling them names. He told them to watch what they said. Mr. Piche said that none of this made any sense, as he hadn’t seen the accused in some time, and hadn’t said anything to him. [ 7 ] Mr.

Piche testified that the accused got right up into the face of Ben Potratz and himself. At this time Mr. Piche could very clearly smell liquor, and marihuana. He testified that he was very familiar with both smells and the odour was strong. Mr. Piche testified that they dealt with the accused for approximately three to five minutes and were somewhat successful in calming him down. When the accused calmed down a bit, he got into his car and sped away. [ 8 ] Mr. Piche testified that the accused was very definitely impaired by alcohol.

He came to this conclusion because of the way the accused was driving, the strong smell of alcohol and marihuana, and the accused’s speech. He said he had no idea what Mr. Tendler was talking about. Mr. Piche said he was very concerned that Mr. Tendler would be involved in an accident. As a result, they immediately called the RCMP and gave a full statement to the RCMP. [ 9 ] Mr. Piche testified that the only prior occasions where he saw the accused were at Kal Tire. Further that on those occasions, Mr. Tendler was very different. He said that on these occasions, Mr.

Tendler “was a good guy”. [ 10 ] Under cross-examination, Mr. Piche admitted that he may have had six beer. He admitted that he was definitely impaired and would not have driven a vehicle. He said that he and Ben Potratz were both side by side, and would have smelled the same substances coming from Mr. Tendler. He admitted that he and Ben Potratz had discussed the events of that evening. He stated however that he did not change anything as a result of those conversations. He admitted that he read his statement before Court. He agreed with Mr.

Halvorsen that sometimes people exaggerate how much they have to drink because they are playing the big shot, and agreed that you can’t tell how much an individual has drank or how much marihuana they have consumed simply from the smell on their breath. He was adamant however that he smelled both alcohol and marihuana on the breath of the accused. [ 11 ] Ben Potratz testified that he was at a party with Colby Piche. He could not recall when the party started. He believed he had three or four beer and on a scale of one to 10, put himself at three or four.

He indicated that he probably would not have driven a vehicle. He testified that as they were walking, Brian parked right in the middle of the street. He started yelling at them and calling

them names. Mr. Potratz testified that Brian told them to walk away before there is a fight. Further, there was no earlier incident, so all of this was “pretty confusing”. Mr. Potratz said that Brian was the lone occupant of the car. Mr. Potratz could not recall if the car was still running when the accused approached them. [ 12 ] Mr. Potratz said the accused’s volume was really up and down. He would speak normally for a few seconds and then just start yelling. Mr. Potratz testified that the accused was stumbling, and was clearly drunk. Further that the accused was very angry and wanted to start a fight. Mr.

Potratz estimated that the accused was with them for under a minute, before he got in his car and left. Mr. Potratz said he was afraid that the accused would cause an accident and someone would be hurt. As a result, they called the police. [ 13 ] Mr. Potratz testified that he knew Mr. Tendler as Mr. Tendler “used to hang out with my sister”. On these prior occasions, the accused was sober. Mr. Potratz said that Mr. Tendler, when sober, wasn’t at all like he appeared that night. Mr. Tendler was a good guy when he was sober. [ 14 ] Under cross-examination, Mr.

Potratz said he was 19 at the time of trial and 18 at the time of this incident. He admitted he was not old enough to drink at the time of this incident. He said neither he nor Colby Piche had smoked any marihuana earlier that evening. He did admit that prior to this incident he had smoked marihuana. He stated he didn’t know just how much he had to drink and couldn’t remember arrival or departure times at the party. [ 15 ] He agreed with Mr. Halvorsen that you can’t tell how much somebody has drank by the smell of their breath. He agreed the same applied with respect to marihuana.

He also agreed that some people pretend to be drunk because they are “playing a role” or “playing the big shot”. He also agreed that he was right beside Colby and they both smelled the same stuff. [ 16 ] He advised he gave a statement to the police, but did not see the video of that statement prior to Court. He advised he did read the typed statement before Court. He also agreed that between the time of the incident and Court, he and Colby had talked about what had happened. He said he didn’t remember in detail what had happened and had really testified on the basis of the statement.

From what he remembered, he said the statement was what he told the RCMP. [ 17 ] Mr. Halvorsen suggested to Mr. Potratz that none of this had happened. This was adamantly denied by Mr. Potratz, who said he told the truth. [ 18 ] The accused, Brian Tendler, gave evidence. He began by saying that none of this happened. He said that he was at work on September 8, 2012 and would have got back home about 7:00 or 8:00. Then he went to the Bar B Inn, the same as every day. He said that night a friend started a fight. Mr. Tendler became involved in the fight, was punched in the face, and had a tooth punched back.

He had an injured mouth which affected his ability to talk. It sounded like he had a lisp. [ 19 ] Mr. Tendler said he didn’t know when he got to the bar; perhaps 9:00 - 9:30 or 10:00. He stated he didn’t have a clue when he left. He said he left with Amanda McNutt. He said he went to his house to clean the blood off of his mouth and then they went to her house. He stated that he woke up there in the early morning, perhaps about 6:00 a.m., and went home.

He indicated Amanda McNutt was with him at the time of this alleged incident. (She did not testify in this matter.) [ 20 ] He spent some time attempting to draw a diagram of various places within Assiniboia. He testified that it made no sense that the two Crown witnesses would be walking down Main Street, as that would be considerably out of their way. [ 21 ] Early in his testimony, Mr. Tendler clearly said that he never met these two before. Later, he testified quite differently. [ 22 ] Under cross-examination, Mr. Tendler said he worked operating heavy equipment on a road crew.

He said his licence ran out that night. He couldn’t say what he did that day or what the weather was like that day. He said he was pretty sure that September 8 was a Friday.

[ 23 ] He testified that he lived in Assiniboia since he was 14 years old. He agreed he was a customer at Kal Tire, and picked up tires there. [ 24 ] He testified that he couldn’t recall where he worked on September 8. He thought it might have been at Ceylon building a road. He didn’t know what time he stopped work. [ 25 ] He said that when he got home, he showered and ate, and then went to the Bar B. He couldn’t say when he got there. He couldn’t say if he went there alone or went with somebody else. He stated that: “I imagine I went there with someone. I don’t know who.” [ 26 ] Mr.

Tendler said his licence was going to run out that night. It sounded as though his licence would expire at midnight. He said he did a bunch of driving during the week. He said his truck was in an impound. He advised he did own a black Trans Am. However that vehicle had no plates on it and was parked at a job site. [ 27 ] When asked again, he testified he didn’t know how he got to the Bar B or when he got there. He said he imagined that someone called him or texted him. He said he was drinking at the Bar B, but couldn’t say when he left. He left with Amanda.

He said he wasn’t sure who the fight was with. [ 28 ] He said that he only drank beer and didn’t drink hard liquor anymore. He said he was drunk, but not falling down drunk. He said that he wouldn’t have drove a car. He then talked about a conviction for a .08. [ 29 ] He said that after the fight, he and Amanda walked to his place where he cleaned up and then they walked to Amanda’s. [ 30 ] He agreed that he used to hang out with Ben’s sister, and that he and Ben knew each other. He also agreed that he had no reason to call Colby or Ben names. [ 31 ] Mr.

Hendrickson cross-examined him regarding his licence ending. Mr. Tendler said that he got a DUI and lost his licence for awhile. He then got it back for seven days, and then it expired and he was suspended. [ 32 ] Following the conclusion of the cross-examination, Mr. Halvorsen briefly discussed matters with Mr. Hendrickson. They agreed that they would advise me that Mr. Tendler was arrested for driving under the influence on September 1, 2012. This resulted in an immediate 24 hour suspension. Mr. Tendler was then given a seven day temporary permit in order to get his affairs in order.

At the end of the seven day temporary permit, the 90 day suspension period began. THE ARGUMENT [ 33 ] Defence counsel advanced two alternative defences. Firstly, he argued that the event in question did not occur. There must be a reasonable doubt that Mr. Tendler drove any vehicle or had any dealings with the Crown witnesses on that morning. Secondly, he argued that if the events occurred, as alleged, there was insufficient evidence upon which I could conclude that Mr. Tendler was impaired by alcohol and for that reason I must acquit.

ANALYSIS [ 34 ] The determination of this matter really comes down to factual determinations based upon which evidence I accept, and the

[34] The determination of this matter really comes down to factual determinations based upon which evidence I accept, and thedetermination based upon a W.D. analysis, as to whether the Crown has proved the charge beyond a reasonable doubt. I have concludedthat I accept the Crown’s evidence and that I am satisfied of the accused’s guilt beyond a reasonable doubt. [35] In my view, the accused’s evidence is simply not credible and cannot be believed. He was unable to testify about anythingthat he did that day or night, before or after leaving the Bar B. He couldn’t say where he worked or when he got off.

He couldn’t saywhen he went to the bar or who he went to the bar with. He couldn’t say how he got to the bar. He said that he imagined or believedthese events had occurred, as that is what he did every night. He said he couldn’t remember who he fought with, and just that his mouthwas badly injured and a tooth injured by the fight. He had no idea what time he left the bar, but then suddenly became certain that he andAmanda went to his home where he washed the blood off, following which they walked to her home. [36] Most importantly, he said he was certain of these events because his licence was ending that night.

However, his evidenceabout this does not jive with the sequence of events that by consent were related to me by counsel. Mr. Halvorsen stated that the accusedwas arrested and issued a 24 hour suspension on September 1, 2012. This 24 hour suspension would then expire sometime on Sunday,September 2, 2012. Mr. Halvorsen indicated that Mr. Tendler then received a seven day temporary permit which according to mycalculations would then expire at 11:59 p.m. on Sunday, September 9, 2012. According to all the evidence, Mr. Piche and Mr. Potratzobserved Mr.

Tendler driving at approximately 1:00 a.m. on the morning of September 8. In order for Mr. Tendler’s evidence to becorrect and for him to remember these events because his licence expired at 11:59 p.m., his licence would have had to expire at 11:59p.m. on September 7, not at 11:59 p.m. on September 9, as was related to me. In a nutshell, I conclude that Mr. Tendler has the wrongnight and is testifying about a completely different evening and night. [37] By contrast, in my view the Crown witnesses, particularly Mr. Piche, were very good. They testified about what hadhappened.

They agreed with defence counsel on a number of points. This is not a situation where they are identifying the accused basedupon one very fleeting observation. To the contrary, both of them knew Mr. Tendler and had some familiarity with him from priordealings. Mr. Tendler agreed that he was a regular customer at the Kal Tire dealership and that he and Mr. Potratz knew each other as hewas a friend of Mr. Potratz’s sister. Both of these individuals testified that they were familiar with Mr. Tendler when he was sober, andhe was a good guy when he was sober.

They testified that he was nothing like the fellow they saw on that evening. [38] Mr. Tendler testified that he owned a black Trans Am and both of the Crown witnesses testified that they saw Mr. Tendlerdriving a black Trans Am. [39] Perhaps most importantly, there is not the slightest evidence of any past bad blood or animosity between the two Crownwitnesses and Mr. Tendler. There is no explanation and no reason as to why they would make up or concoct such a story, and then go tothe trouble of reporting the matter to the police and testifying in Court about this matter.

I conclude they are truthful and accept theirevidence. [40] I am mindful of the principles enunciated in R. v. W.D. (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and R. v.McKenzie, (SK CA), [1996] 141 Sask. R. 221 (Sask. C.A.). I have focused on the third and fourth principles. In anutshell, I accept the evidence of the two Crown witnesses and do not accept the evidence of the accused. I have no reasonable doubtand determine that the events occurred as stated by the two Crown witnesses. [41] Was there evidence upon which I can conclude that the accused was impaired by alcohol at the time of this incident?

In myview there was. The Crown witnesses testified as to the manner of driving. They also testified that the accused was stumbling, veryargumentative, and wanting to fight. They testified he smelled strongly of alcohol and marihuana. The case of R. v. Stellato (1993), (ON CA), O.J. No. 18, makes it clear that I need not determine whether the accused was impaired to any particulardegree. I merely must be satisfied beyond a reasonable doubt of his impairment.

I am so satisfied. [42] On the basis of all of the above, I find the accused guilty of the charge of impaired driving. [43] Dated at the Town of Assiniboia, this 21st day of November, 2013.

D. Kovatch, J