Her Majesty the Queen - v. -, 2013 SKPC 156

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 156 Date: September 30, 2013 Information: 36653978 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tammy Morash Appearing: Cory Bliss For the Crown Mike Owens For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] Ms. Morash was charged on February 26, 2012 with operating a motor vehicle while her ability to do so was impaired by alcohol or a drug, contrary to s. 253(1) (

a) of the Criminal Code . An allegation of refusing to provide a breath sample which appeared on the same Information was stayed at the commencement of the trial. The only issue is whether the evidence establishes the offence of impaired driving to a standard of beyond a reasonable doubt.

EVIDENCE [ 2 ] Ms. Degagne is 28 years old and works for the Youth Justice Restitution program. She is a first cousin to the accused and has known her all her life. Prior to February 26, 2012, she and the accused were very close, much like sisters. [ 3 ] On February 26, she met the accused at a local karaoke bar. Ms. Degagne expressed the opinion that the accused was drunk that night and should not have driven given the amount of alcohol she consumed and the symptoms that she displayed. While they were together, she saw the accused miss a step onto a curb and almost fall.

To this, the accused commented, “I’m so drunk.” She noted that the accused was stumbling, would randomly burst into prolonged laughter over nothing and that she slurred her speech a bit. Overall, she described the accused as “out of it” and “not the same person” as when she has not been drinking. [ 4 ] The only alcohol consumed by Ms.

Degagne was four or five sips from a beer that her husband finished after he had one of his own; she saw the accused consume three beers and one shot of hard liquor in the bar. [ 5 ] Around midnight, the bartender refused to serve the accused any more alcohol and she and her two friends were told to leave the bar. When the accused was asked to leave, Ms. Degagne and her husband also departed. In leaving the bar, the accused was stumbling, and trying to find the correct key for her vehicle. Outside, Ms. Degagne offered to drive the accused and reached for her vehicle keys.

The accused snatched them away and ultimately drove off. Ms. Degagne and her husband followed in their vehicle to ensure that the accused got home safely. The accused drove through a stop sign and a red light. When she saw the accused go to a drive- through restaurant, Ms. Degagne and her husband stopped briefly at a service station to get some cigarettes. They then continued on to where they had last seen the accused and found that her SUV had collided with a sign post. The accused was behind the wheel of her vehicle, revving the engine and attempting to reverse away from the post.

In spite of this, the bumper of the SUV remained firmly wrapped around the pole and the vehicle could not be disengaged . There was fluid leaking from underneath and an unpleasant smell emanating from the vehicle. Ms. Degagne spoke to the accused who kept repeating, “I fucked up” and asked whether she should lie to the police. [ 6 ] Ms. Degagne said that it was not easy for her to testify as she loves the accused as a sister. Their relationship has changed since this incident as they do not talk or message.

In cross-examination, she acknowledged that she texted the accused once and spoke to her through an open window while in traffic. She said that she had forgotten those instances until defence counsel reminded her with his question. [ 7 ] In cross-examination, Ms. Degagne acknowledged that she did not provide a written statement to the police until several months after the fact. Further, she did not tell them everything that she said in court but simply answered the questions that were put to her.

She agreed that although the accused stumbled while walking, she did not have any difficulty unlocking or getting into her vehicle. She has seen the accused “drink to her limit” on many occasions. She maintained that there was no marijuana smoked that night even though they had gone to the truck for that purpose. [ 8 ] In further cross-examination, Ms. Degagne agreed that the accused might speak with a lisp and a quick, clipped cadence. It was Ms.

Degagne’s opinion that it was a bit difficult to understand the speech of the accused on the evening in question but admitted that she never relayed that information to the police. She also agreed that the accused was coherent. She confirmed that the accused had balance issues inside as well as outside the bar but could not say whether the shoes worn by the accused contributed to those difficulties. [ 9 ] Craig Hill, Nadine Degagne’s husband, confirmed that after February 26, things “went sour” between his wife and the accused; until then they had been the best of friends.

At the bar, he first encountered the accused in the parking lot and opined that she was “cut” meaning that her equilibrium and balance were gone. He described her taking two steps forward and four steps back. Her speech was slurred and her words elongated. She was loud, a “happy drunk...screaming...”. She was not a person he wanted to be around when she was under the influence of alcohol. He saw the accused drink one beer and one shooter. [ 10 ] At one point, the accused said that she wanted to roll a joint, and they went to her vehicle for that purpose. When they got

there, she could not find the marijuana because, in his view, she was too intoxicated to do so. He based his opinion on the following: the accused said that she had been drinking since she got off work, she was slurring her words, her sentences did not seem to end, her demeanour was entirely different than when she was sober, she staggered on the sidewalk and for no apparent reason lost her balance and went backward. The accused appeared to become more intoxicated as the evening wore on. He did not believe that she should have driven. [ 11 ] He and his wife followed the accused when they left the bar.

He believed that she “stepped on it” through a red light and did not accept the suggestion that the roads were so slippery as to prevent the accused from making a proper stop. When they caught up to her at the drive-in restaurant, he saw smoke coming from the tires of the accused’s vehicle and the bumper of her SUV hooked around a pole on the right side of the drive-through. [ 12 ] Jumaida Becaba was the manager working at the restaurant where the collision occurred. She could not identify the driver involved or make any comment with respect to the condition of the driver.

No other collision like this ever occurred while she was working. [ 13 ] Constable Martin responded to the report of this accident and arrived at the scene at 12:53 a.m. He saw five to six feet of skid marks in the fresh snow which suggested to him that the vehicle had been proceeding eastbound, tried to turn right and skidded into a post in the drive-through. There was a female standing next to the damaged vehicle; she was detained and dealt with by Constable Broadbent. Constable Martin spent limited time with her and noted only the smell of alcohol from her breath and the slurring of her speech.

He checked inside the SUV and found that the keys were not in the ignition; there were three open alcohol containers that held only a small amount of liquid. [ 14 ] Constable Broadbent was on duty and working with Constable Martin on February 26, 2012 when they were dispatched to attend to an accident. As they were very near the scene, they arrived within a minute of being dispatched. When they arrived, he saw a vehicle had collided with a pole that had been sheared from its concrete foundation. There was extensive damage to the vehicle rendering it inoperable.

There were five people milling about and when he approached one of them, the accused was pointed out as the driver of the vehicle. When he spoke to her, he noted that her speech was “slurry” which he defined as words that were not properly enunciated as the consonants blended together; this made her difficult to understand. [ 15 ] She seemed sad or upset as her shoulders were slumped and her head hung. Her eyes were quite red and bloodshot. She told the officer that she had been drinking. As a result of this admission and his observations, the accused was arrested for impaired driving.

After the arrest, the officer noted that the accused walked in a “zig-zag” pattern and had a great deal of difficulty getting into the patrol car. The officer then spoke to Ms. Degagne, and when he returned to the accused, she asked to use the restaurant bathroom. He escorted her to the restaurant and again noted that she had difficulty walking. En route, she dropped a mitten and when she bent to retrieve it, lost her balance and fell over in the snow.

The officer continued to make observations of the accused after they arrived at the police station and was able to smell beverage alcohol from her breath from a distance of about three feet. [ 16 ] In cross-examination, the officer acknowledged that the road conditions were snowy and slippery on the morning in question. He also expressed the view that the symptoms demonstrated by the accused were more pronounced at the scene than they were in his later dealings with her. He did note her swaying left and right while at the booking desk in the detention area.

The accused understood directions that were given to her and he did not have to repeat himself. The officer acknowledged that he neglected to make a demand for breath samples at the scene and did not remember to do so until 55 minutes later. He also candidly admitted his error in failing to provide the accused with an opportunity to call a lawyer once she had been booked.

Further, he did not obtain statements from either Nadine Degagne or Craig Hill in the course of his investigation and only arranged for those statements on a request from a prosecutor in November 2012. [ 17 ] Upon being shown video footage of the accused from the Saskatoon Police Station, the officer could not point to any balance or dexterity problems exhibited by the accused when she is first captured on video in the sally port. He does note that she leaned on the elevator wall en route to the detention area and was jovial and joking, which seemed at odds with the gravity of the situation.

He noted that this demeanour was quite different about an hour later when she became quite emotional and cried. He pointed out that she immediately leaned on the booking counter and that her movements in removing her outerwear and personal possessions seemed clumsy. The Court also noted that the accused patted herself in a somewhat uninhibited fashion as she removed various personal items from her clothing. The officer opined that there was nothing observed on the video which detracted from his view that the accused’s ability to operate a motor vehicle was impaired by alcohol.

[18] The accused testified that she works in construction and on February 25, 2012, she worked until about 3:00 p.m. The weatherwas miserable–cold, and snowing; the roads were icy and slippery. After having supper, she took her dog to a friend’s home where shehad a beer. Although she initially had no intention of going out, she agreed to accompany her friend and two other women to the bar. They arrived about 10:00 p.m. and she sent a text message to her cousin Nadine inviting her to join them there.

Through the course of theevening, she had two more beer but no hard liquor as she refused a “shot” when a round was purchased. She bought her own drinks anddid not have much money; no drinks were purchased for her. Twice that evening she went out to start her vehicle as her dog was in it. On one of those occasions, Mr. Hill smoked a joint, but she did not partake. The staff did not refuse to serve her drinks, nor was sheasked to leave the bar. [19] At the end of the evening, Nadine did not want her to drive and asked for the vehicle keys; Ms.

Morash did not believe that herability to operate her vehicle was at all compromised as she only had three beer. She drove down an alley to Cumberland Avenue whereshe encountered black ice which caused her to slide through a red light. She signalled a left turn and never reached a speed greater than35 to 40 kph. She signalled a right turn to the drive-through restaurant when the back end of her vehicle slid out due to the icy roadconditions and the poor tires on her vehicle.

She applied the brakes and her vehicle slid into the pole; she could do nothing to prevent it.Her passengers went into the restaurant and she called Nadine; she felt very shaken. Nadine arrived while she was attempting todisengage her vehicle from the pole with the help of two passers-by. When the officer arrived on the scene, she told him that she hadbeen drinking. [20] She acknowledged that she fell and attributed that fall to the fact that the ground was slippery and that she was wearingrunning shoes with no grip.

She was able to get up without assistance. [21] She denied that she had any issue with balance in the police station and only leaned on the elevator wall and booking counteras she has a tendency to have a sore back from being somewhat overweight. Even though she dropped her mittens, she was readily able toretrieve them. She acknowledged that she attempted to make light of her situation, but that was a function of her personality, notintoxication. She also acknowledged that she became upset and anxious after she was arrested for refusing to provide a breath sample.

She attributed any redness in her eyes to the ulcers that developed from repeatedly leaving her contacts in her eyes for too long. [22] In cross-examination, she acknowledged that the people who accompanied her to the bar were not present in court to giveevidence as one lived in Calgary and the other was too busy at work. She acknowledged that Nadine had seen her intoxicated onprevious occasions. She had no idea why Nadine followed her from the bar as Nadine lived in the opposite direction.

She alsoacknowledged that prior to the arrival of the police, she worried about being arrested because she “had a couple beers” and “probably”because she knew how she would come across. When told she was under arrest, the seriousness of her predicament was lost on herbecause she was still in shock from the accident. She maintained that she simply slipped on the ice when she bent to pick up her mittenoutside the restaurant.

ISSUE [23] The only issues for the Court to determine are whether the evidence of the accused is believed or raises a reasonable doubtand if it does not, whether the evidence establishes the offence of impaired driving to a standard of beyond a reasonable doubt. DEFENCE POSITION [24] Defence counsel for the accused argues that the evidence of the accused was not shaken and might reasonably be true; thus,she must have the benefit of a reasonable doubt.

Counsel also suggests that the video footage supports the evidence of the accused thatshe was not impaired by alcohol and at the very least creates a reasonable doubt about her impairment. Counsel further argues that theCrown evidence is unreliable and referred the Court to the following cases: R. v. Landes, (SK KB), [1997] S.J. No.785 (Sask. Q. B.), R. v. Pendleton, 2001 S.J. No. 311(Sask. P.C.), R. v. Vonmoldencam, 2005 ABQB 120 , 2005 A.J. No. 194and R. v. Krausher, 2009 unreported. CROWN POSITION

[25] Crown counsel argues that the Crown witnesses provided accurate and reliable testimony that ought to be accepted by theCourt. Further, considerable weight should be given to the opinions of Nadine Degagne and Craig Hill as they knew the accused welland had seen her intoxicated on previous occasions. The Court was referred to R. v. Rodgers, 2011 SKQB 244 and R. v. Spence, 2013SKPC 106. ANALYSIS [26] The Court must of course consider and weigh all of the evidence in the context of the well-recognized principles distilled fromR. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (SCC) and R. v.

C.W.H. (1991), (BC CA), 68 C.C.C.(3d) 146 (B.C.C.A.) and enunciated in R. v. McKenzie (1996), (SK CA), 141 Sask. R. 221 (Sask. C.A.). The Court isalso obliged to apply the test of R. v. Stellato, (ON CA), [1993] O.J. No. 18 (C.A.), affd. (SCC),[1994] 2 S.C.R. 478 (SCC) to the issue of impairment. [27] I have had an opportunity to listen carefully to the evidence of the witnesses and to review thoroughly all of the evidencebefore me. After doing so, I find that I do not accept the evidence of the accused, nor am I left with a reasonable doubt by it.

I find herevidence, at times, strained to explain certain uncontradicted facts and overall appeared contrived. For example, she testified that shewent through a red light because of ice at an intersection, then later collided with a pole because of the icy road conditions andinadequate tires on her vehicle. Clearly she knew of both the poor tires and road conditions yet failed to exercise the judgementnecessary to avoid the collision. She also said that she was nervous about speaking to the police because she knew how she would“come across” because she had three beer over the course of a number of hours.

Later, she said that she was “in shock” and unable tocomprehend the seriousness of her predicament in order to explain her subsequent gregarious and somewhat uninhibited behaviour. Thisevidence is illogical and contradictory. [28] There were also some inconsistencies in the evidence of the Crown witnesses. For example, Ms. Degagne said a joint wasrolled but not smoked that evening; her husband contradicted that saying that no joint was rolled because the accused could not find hermarijuana.

There were further discrepancies as to whether the accused braked at the stop light or signalled her turn into the drive-through. Further both Mr. Hill and Ms. Degagne testified to details which were not included in their written statements.

Nonetheless, inconsidering the evidence as a whole, I find that the evidence of these witnesses with respect to the accused’s sobriety and her manner ofdriving to be credible and reliable. [29] I accept that the accused missed a step outside the bar and almost fell, that she stumbled when she walked, that her speech wasslurred and that she was loud and boisterous as described by Ms. Degagne and Mr. Hill. I also accept that her behaviour was quitedifferent than usual that evening. Ms. Degagne and Mr. Hill know the accused well and have seen her sober and drunk.

They spent timewith her that night and had the opportunity to observe her actions, behaviour and speech. Neither Ms. Degagne nor Mr. Hill consumedany significant amount of alcohol and both were sober while making their observations of the accused. Some deference must be given totheir opinion that she was intoxicated, particularly since many of their observations are supported in the evidence of the police officer:see Rodgers (supra) at para. 30. I also note that Ms. Degagne, in particular, did not appear to harbour any animus toward the accused anddid not volunteer information to the police about her. Ms.

Degagne made it clear, however, that when asked, she was not prepared to lieto protect the accused. The fact that Ms. Degagne tried to take the vehicle keys from the accused and went out of her way to follow theaccused when they left the bar to ensure that she was safe, also supports her opinion that she believed that the accused was toointoxicated to drive. [30] In examining the evidence of Constable Broadbent, I note that he, too, observed that the accused had difficulty with walkingand balance and that her speech was slurred and her eyes bloodshot. She admitted that she had been drinking alcohol.

At the policestation, he noticed that she leaned on the elevator wall to the detention area and once there laid her arms on the booking desk and leanedon it. Her demeanour and mood seemed very jovial considering the predicament in which she found herself and in stark contrast to themanner that she first presented to the officer. [31] The Court also had the benefit of viewing the videotape of the accused taken at the police station and found this silentwitness to be most telling. It is my view that the actions, demeanour and behaviour of Ms.

Morash, as depicted on screen are completelyconsistent with the opinions expressed by Ms. Degagne, Mr. Hill and Constable Broadbent.

[32] The test, as set out in Stellato (supra), in determining whether the offence of impaired driving has been established requiresthat the Crown prove, beyond a reasonable doubt, that the ability of the accused to operate a motor vehicle was impaired to some degreeby her consumption of alcohol. The evidence as a whole must establish that such an inference can be drawn reasonably from conductwhich is a departure from the norm.

That departure may fall upon a continuum from slight to great, but it must lead to no otherreasonable conclusion but that the accused’s ability to operate a motor vehicle was impaired to some degree by the consumption ofalcohol and/or drugs. Has there been a departure from the norm to permit that inference to be drawn in this case? [33] In R. v. Hall, (SK CA), 125 Sask. R. 62, the Saskatchewan Court of Appeal, referring to R. v.

Morin, (SCC), [1988] 2 S.C.R. 345 said at para. 13: “...the trial judge was entitled, and indeed required, to look at all of the evidenceand not use the piecemeal analysis advocated on behalf of Mr.

Hall.” From that I take that it is not for the Court to determine whethereach explanation offered by the accused for the symptoms and driving might reasonably be true, but rather the Court is obliged to look atthe whole picture that is painted by all of the evidence and make a determination on that basis. [34] Having had an opportunity to consider all of the evidence regarding the manner in which the accused operated her vehicle aswell as the conduct, demeanour and physical symptoms displayed by her, the Court is left with no doubt whatsoever that the ability ofthe accused to operate a motor vehicle was impaired by the alcohol that she ingested.

I have no hesitation in concluding that she ran ared light and later had a collision solely because her judgement and ability to operate her vehicle was impaired by that consumption, notbecause of icy roads and worn tires. [35] Accordingly, the accused is found guilty of the offence as charged. _______________________ M. L. Gray, J