Her Majesty the Queen - v. -, 2015 SKPC 165

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 165 Date: September 22, 2015 Information: 24448455 Location: Meadow Lake _____________________________________________________________________________ Between: Her Majesty the Queen - and - Lianne Pelletier Appearing: Lana Morelli For the Crown Gerald Perkins For the Defendant JUDGMENT M. MARTINEZ , J Introduction [ 1 ] In the early evening of January 17, 2014, the defendant, Lianne Pelletier, and her husband were driving home on Highway 55, east of Meadow Lake, Saskatchewan, when their GMC Envoy collided with a moose.

Members of the Meadow Lake RCMP detachment arrived on scene within about 15 minutes. Fortunately, neither of the Pelletiers suffered serious injuries. Unfortunately, for Ms. Pelletier, she was charged with two criminal drinking and driving offences: impaired driving contrary to subsection 253(1) (

a) of the Criminal Code and driving while “over 80” contrary to subsection 253(1)(

b) of the Code .

[ 2 ] Her trial began with a voir dire on January 8, 2015. The purpose of the voir dire was to determine whether I should exclude the evidence against Ms. Pelletier that came to light after her arrest. The basis of her application was that the arresting officer did not have reasonable grounds to arrest her. Ultimately, I decided that the officer’s grounds for arresting Ms. Pelletier were objectively reasonable. Counsel then agreed that the Crown’s voir dire evidence should be applied to the trial. [ 3 ] The Crown did not call any additional evidence and Ms. Pelletier did not call any evidence in her defence.

She did, however, submit that there were four reasons why I should dismiss the charges against her: • The Crown did not prove beyond a reasonable doubt that she was the driver of the Envoy • Samples of her breath were not taken and analyzed as soon as practicable after the accident • The Crown did not prove beyond a reasonable doubt that, at the time of the collision, the concentration of alcohol in her blood exceeded 80 milligrams in 100 millilitres of blood • The Crown did not prove beyond a reasonable doubt that her ability to drive was impaired by alcohol [ 4 ] Although both counsel made submissions about the “as soon as practicable” issue, in my opinion, I do not have to decide this question.

Whether a defendant’s breath samples were taken “as soon as practicable” is relevant only when the Crown relies on the statutory presumption that the results of the analysis of the defendant’s breath conclusively prove the concentration of alcohol in her blood at the time of driving; see Criminal Code , subsection 258(1)(c). In order to rely on that presumption, the Crown must prove, among other things, that the samples were taken as soon as practicable after the alleged offence and that the first sample was taken within two hours after the alleged offence; see subsection 258(1)(c)(ii) of the Criminal Code .

In this case the Crown cannot rely on the statutory presumption because the first sample of Ms. Pelletier’s breath was not taken within two hours after the alleged offence. As such, the Crown must prove its case in another way and it does not matter whether Ms. Pelletier’s breath samples were taken “as soon as practicable”. Consequently, I will restrict my decision to Ms. Pelletier’s remaining defences. Issues, Facts, and Analysis Did the Crown prove beyond a reasonable doubt that Lianne Pelletier was the driver of the Envoy? [ 5 ] There is no direct evidence that Ms.

Pelletier was behind the wheel of the Envoy when it hit the moose.

As there is no direct evidence, the Crown may prove the driver’s identity through circumstantial evidence; see R v Pawlick , 2007 ABCA 9 , at para 8 : To convict on circumstantial evidence when identity is in question, the trier of fact must consider the whole of the evidence and must be satisfied on two points: first, that the evidence is consistent with the accused having committed the act in question; and, second, that the evidence is inconsistent with any other rational conclusion except that the accused is guilty… [ 6 ] An assessment of the relevant circumstantial evidence requires me to review the testimony of the Crown’s witnesses who were at the scene of the accident.

Relevant Testimony [ 7 ] On the evening of January 17, 2014, Charlene Roy, her spouse, Sandy Rediron, and Ms. Roy’s daughter were travelling home to Beauval, Saskatchewan, on Highway 55. Ms. Roy was driving and Mr. Rediron sat in the front passenger seat. A few kilometres east of Meadow Lake, Ms. Roy and Mr. Rediron saw the tail lights of the vehicle ahead of them suddenly swerve left, then right, then left again, and then stop and begin flashing. [ 8 ] Mr. Rediron estimated that the other vehicle was about 500 metres ahead of them.

In cross-examination he conceded that it may have been further ahead but the distance certainly was less than a kilometre. When they arrived at the other vehicle, most of it was in the oncoming lane. It was apparent that the vehicle had struck a moose as Mr. Rediron saw what appeared to be a dead moose on the

edge of the highway some 10 or 15 car lengths before they reached the damaged Envoy. [ 9 ] Both Ms. Roy and Mr. Rediron are trained emergency medical responders. As soon as Ms. Roy stopped their vehicle, Mr. Rediron jumped out and ran to check the occupants of the damaged Envoy. Mr. Rediron went to the passenger side first, where he found a man occupying the front passenger’s seat. The man immediately asked about his wife’s well-being. Mr.

Rediron said that he had trouble seeing across to the driver’s seat because of the extensive damage to the Envoy’s front end including the fact that its windshield had been pushed well into the passenger compartment. As the male passenger did not appear to be seriously injured, Mr. Rediron ran around the back of the Envoy to the driver’s side. There, he saw a woman exiting the vehicle from the front driver’s door. He described the woman as having “quite a bit of blood on her”. She had blood on her face and her hands were bleeding. This is about when Ms. Roy joined him. [ 10 ] Ms.

Roy testified that she saw a woman exiting the Envoy from the driver’s side. She saw that the woman’s hands were bleeding. She asked the woman her name and the woman told her that her name was Lianne. [ 11 ] Both Ms. Roy and Mr. Rediron estimated that the first RCMP officers arrived no more than 15 minutes after the accident. At this time, both occupants of the Envoy were sitting on the pavement behind their vehicle with Ms. Roy and Mr. Rediron attending to their injuries. [ 12 ] The first officers on scene were Constables Greenslade and Buckingham of the Meadow Lake detachment.

While Constable Buckingham dealt with traffic control, Constable Greenslade retrieved the first aid kit from his police vehicle so that Ms. Roy and Mr. Rediron could bandage the injured woman’s hands. [ 13 ] Both officers testified that they recognized the man sitting behind the Envoy with the injured woman. He was RCMP Corporal Pelletier, whom they knew because he was stationed at their sister detachment in Green Lake, Saskatchewan. Neither officer knew the other people at the scene. Corporal How arrived shortly after Constables Greenslade and Buckingham.

He recognized Corporal Pelletier, Charlene Roy, and Sandy Rediron. He had never met Lianne Pelletier before. Corporal Pelletier told the RCMP members that the injured woman was his wife, Lianne. [ 14 ] At trial, neither Ms. Roy nor Mr. Rediron could identify Ms. Pelletier as the woman they had helped at the accident scene; however, all three police officers positively identified her as the woman with bleeding hands at the accident scene. Conclusion and Reasons [ 15 ] Based on the testimony of these witnesses, I do not have a reasonable doubt that Ms. Pelletier was the driver of the Envoy.

The following evidence leads me to no other rational conclusion: • Mr. Rediron, who was the first person to check the occupants of the Envoy, found a man occupying the front passenger’s seat • The man asked Mr. Rediron to check his wife, presumably because she was or had been in the driver’s seat of the Envoy which could not be seen clearly from the passenger side • Both Ms. Roy and Mr. Rediron saw a woman getting out of the damaged vehicle from the driver’s side • Both civilian witnesses said that the woman’s hands were bleeding • The woman told Ms.

Roy that her name was Lianne and Corporal Pelletier introduced her to the RCMP officers as his wife, Lianne

• All three RCMP officers positively identified Ms. Pelletier as the woman with bleeding hands who they met at the scene of the accident Did the Crown prove beyond a reasonable doubt that, at the time of driving, the concentration of alcohol in Ms. Pelletier’s blood exceeded the legal limit? [ 16 ] At trial, the Crown relied on expert opinion evidence to prove that the concentration of alcohol in Ms. Pelletier’s blood exceeded the legal limit when she drove the Envoy. The Crown’s expert was Gertrude Lehman. She is a pharmacist who has been employed by the RCMP since 1987 as a forensic expert.

I admitted her as an expert to give evidence in the following areas: • calculation and analysis of blood alcohol concentrations in the human body • pharmacology of alcohol as it relates to the effects of alcohol on the human body and the ability to safely operate a motor vehicle • physiology of alcohol with respect to the absorption, distribution and elimination of alcohol • analytical procedures used in the laboratory including calculation of blood alcohol levels and theory and operation of breath testing equipment. [ 17 ] The Crown entered Ms. Lehman’s written expert report in evidence.

She also gave oral evidence about her estimate of the concentration of alcohol in Ms. Pelletier’s blood at the time of driving. [ 18 ] Using Ms. Pelletier’s breath sample analysis results and a time of driving of 6 p.m., Ms. Lehman’s expert opinion was that the concentration of alcohol in Ms. Pelletier’s blood at the relevant time was between 158 and 168 milligrams in 100 millilitres of blood. She arrived at her conclusion by taking Ms.

Pelletier’s second breath sample analysis result of 130 milligrams percent and adding 10 to 20 milligrams percent per hour – the rate at which she said that most people eliminate alcohol – for the 2 hour and 47 minute period between the time of driving and the second breath sample. [ 19 ] Some of the facts or assumptions underpinning Ms. Lehman’s expert opinion are outside of her expert knowledge. The Crown bears the burden of proving those facts. The facts that the Crown must prove are the time of driving, the time when Ms. Pelletier’s second breath sample was taken and analyzed, and the result of the analysis.

For the following reasons, I find that the Crown has proven those facts beyond a reasonable doubt. Time of driving [ 20 ] Neither Ms. Roy nor Mr. Rediron knew what time the collision occurred. The best they could say was that it was early evening and dark out. Ms. Roy and Mr. Rediron testified that the first RCMP officers arrived at the scene within 15 minutes after the accident. All of the RCMP officers said that their dispatch call came in shortly after 6 p.m. All of the officers testified that they responded immediately to the call.

The constables attended the accident scene before Corporal How because they received the dispatch call at the Meadow Lake RCMP detachment which is on Highway 55 and Corporal How was in the city, several blocks away from the detachment when the call came in. [ 21 ] None of the officers made a specific note of when they arrived at the accident scene. Constables Buckingham and Greenslade believed they arrived at about 6:35 p.m. This puts the time of the accident at about 6:20 p.m. or 15 minute before the constables attended the scene.

Corporal How testified that he arrived at the scene about 6:25 p.m. which puts the time of the collision at 6:10 p.m. In either case, it is clear that the accident occurred shortly after 6 p.m. and I do not have a reasonable doubt that Ms. Pelletier was operating the Envoy at 6 p.m., which is the driving time Ms. Lehman used in her calculations. Second Breath Sample: Time and Result

[22] The Crown entered into evidence the Certificate of a Qualified Technician prepared by the qualified technician who receivedand analyzed Ms. Pelletier’s breath samples in an approved instrument. That certificate shows that the qualified technician took Ms.Pelletier’s second breath sample at 20:47 hours – in other words, 8:47 p.m. – and that the result of the analysis of the sample was 130milligrams of alcohol in 100 millilitres of blood. Corporal How testified that he observed Ms.

Pelletier giving her breath samples andrecorded the time she gave the samples, and the results returned by the instrument used to analyze the samples. His testimony confirmedthe information contained in the Certificate of Qualified Technician. Post-offence Alcohol Consumption [23] Aside from the time of driving, the time of the second breath test, and the result of that test, Ms. Lehman’s expert opinion alsoassumes that Ms. Pelletier did not consume any alcohol after the accident. None of the Crown’s witnesses saw Ms.

Pelletier drink anyalcohol after the accident and at least one of them was with her at all times from when Ms. Roy and Mr. Rediron came upon the sceneuntil she gave her second breath sample. However, Corporal How testified that between her first and second breath samples, Ms. Pelletierasked him whether drinking alcohol after the accident would affect her breath sample results. Corporal How asked her why she asked thisquestion and she told him that she had a “couple of swigs” after the collision.

Corporal How also testified that he found an open butmostly full bottle of Kamora coffee liqueur on the floor behind the driver’s seat of the Envoy. He also found a travel mug in the Envoy’sconsole with what appeared to be a small amount of the same liqueur in it. [24] Had Ms. Pelletier chosen to call evidence that she drank after the collision, I would have had to consider whether that evidencewas credible and whether it raised a reasonable doubt in my mind about the amount of alcohol in her blood at the time of the collision. Asit stands, I have evidence of what Ms. Pelletier said, not of what she did.

For this reason, there is no evidence that Ms. Pelletier drank anyalcohol after driving and I accept Ms. Lehman’s expert opinion that, at the time of driving, the concentration of alcohol in her bloodexceeded 80 milligrams in 100 millilitres of blood. Did the Crown prove beyond a reasonable doubt that Ms.

Pelletier’s ability to drive was impaired by alcohol? [25] A collision between a motor vehicle and a large mammal, in the early evening hours, in January, in Saskatchewan, is not asign that the driver’s ability to operate the motor vehicle was impaired in any way. [26] The only Crown witness who closely observed Ms. Pelletier and noted any signs of alcohol consumption or impairment wasthe arresting officer, Corporal How. [27] He detected the smell of beverage alcohol on Ms.

Pelletier’s breath, both when she sat in the back seat of his police truck tostay warm and when he was with her as she was receiving medical attention in the ambulance. In the ambulance, he noted signs ofimpairment when she answered questions posed to her by the ambulance attendants. He testified that she spoke with a “very thick andslurred speech” and “smacked her lips repeatedly like her mouth was very dry”. In the bright interior of the ambulance, Corporal Howalso noted, for the first time, that her eyes appeared very glossy and red.

Finally, he testified that he said to her “You’ve been drinking”and that she responded “Yes, a lot.” [28] None of Corporal How’s observations are signs of gross impairment, but even evidence of slight impairment can support aconviction for impaired driving; see R v Stellato (1993), 78 CCC (3d) 380, (ONCA), affd (SCC),[1994] 2 SCR 478; R v Hall (1994), 125 Sask R 62, (SKCA). If Corporal How’s observations left any doubt in mymind about whether Ms. Pelletier’s ability to drive was impaired by alcohol, Ms. Lehman’s expert opinion dispelled that doubt. [29] In Ms.

Lehman’s expert opinion, everyone’s ability to operate a motor vehicle is impaired when their blood alcoholconcentration is 158 milligrams in 100 millilitres of blood, irrespective of their ability to tolerate alcohol. Conclusion [30] For these reasons, I find Ms. Pelletier guilty of both offences with which she is charged. Further, I accept Ms. Lehman’s expertopinion that the concentration of alcohol in Ms. Pelletier’s blood at the time of driving was at least 158 milligrams in 100 millilitres ofblood.

________________________ M. Martinez, J