Her Majesty the Queen - v. -, 2016 SKPC 88

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 088 Date: September 2 , 2016 Information: 24445655 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Clara Ann Lafontaine Appearing: Fredric Fisher For the Crown Rhiannon Rees For the Accused JUDGMENT R. GREEN , J I INTRODUCTION [ 1 ] Clara Lafontaine is charged with having the care and control of a motor vehicle while her ability to operate that motor vehicle was impaired by alcohol, at Yorkton on April 23, 2014. According to the investigating police officer Cst. Allison Morris, the RCMP received four phone calls about Ms. Lafontaine that day:

1. At 6:45 p.m., from the Co-op Gas Station on Broadway Street in Yorkton, which advised that Ms. Lafontaine had left withoutpaying for gas. The police officer called Ms. Lafontaine, who said she forgot to pay, and she then returned and did so. 2. At 7:45 p.m., a call was received from the Kahkewistahaw First Nation Gas Station in Yorkton, advising that a woman, whoturned out to be Ms. Lafontaine, had driven into a curb at the station and that an employee there believed she was an impaired driver. 3. At 11:44 p.m., an employee of Humpty’s Restaurant in Yorkton called to advise that Ms.

Lafontaine was at the restaurant, and shewas intoxicated and causing problems. Cst. Morris and other officers then attended to the restaurant, where Ms. Lafontaine was arrestedfor being drunk in a public place. 4. Shortly thereafter, the RCMP received a call from Bryce Sherring, who said that, earlier that evening, he was driving a few milessouth of Yorkton on Highway 9 and came upon Ms. Lafontaine behind the wheel of a vehicle that was in the ditch off the highway. Henoticed a half full bottle of Wiser’s Whiskey in the vehicle. [2] After Ms.

Lafontaine was arrested at the restaurant for being drunk in public, no breath demand was given to her under theCriminal Code, as the breath technician on duty that night told Cst. Morris that it would be difficult to prove when she had been driving. Ms. Lafontaine was not charged with this offence - impaired care or control - until July 7, 2014, after Cst. Morris had a chance to viewthe video from the Kakawiestihaw Gas Station. [3] Despite the Information in this case stating that the alleged offence occurred at Yorkton, the Crown submits that there isproof beyond a reasonable doubt that Ms.

Lafontaine was in the care and control of a vehicle, while her ability to operate that vehicle wasimpaired by alcohol, in two locations this day: (1) when she arrived at the Kahkewistahaw Gas Station in Yorkton; and (2) later thatevening, when Mr. Sherring found her behind the wheel of her vehicle south of Yorkton. [4] It is not in question that Ms.

Lafontaine was in the “care or control” of her vehicle - which is the wording in s. 253, despitethe charge reading “care and control” - when she arrived at the Kakawiestihaw Gas Station or that her ability to operate a motor vehiclewas impaired by alcohol when she was later found in the ditch by Mr. Sherring. What is in question in this case is: 1. Whether there is proof beyond a reasonable doubt that her ability to operate a motor vehicle was impaired by alcohol when shearrived at the gas station; and 2.

Whether there is proof to that standard that she was in the care or control of her vehicle when she was found by Mr. Sherring. [5] The Crown called three witnesses who were:

(1) Cst. Morris; (2) a gas station employee named Katherine Sparvier whoserved Ms. Lafontaine and phoned the RCMP; and

(3) Mr. Sherring. Ms. Lafontaine and her former common law spouse RobertBrazeau testified for the defence. II WAS HER ABILITY TO OPERATE HER VEHICLE IMPAIRED BY ALCOHOL WHEN SHE ARRIVED AT THEKAHKEWISTAHAW GAS STATION? The legal standard [6] The Supreme Court of Canada in R v Stellato, (SCC), [1994] 2 SCR 478 approved the following test forimpairment: In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can beregistered.

Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment

ranging from slight to great, the offence has been made out. The relevant evidence [ 7 ] Katherine Sparvier was working as a cashier in the confectionary store of the Kahkewistahaw Gas Station this evening. She saw Ms. Lafontaine pull up to the front of the confectionary store and hit the curb. Ms. Lafontaine, whom she had never seen before, had trouble walking into the store, and then leaned on the counter while Ms. Sparvier served her. [ 8 ] Ms. Sparvier dealt with Ms. Lafontaine for ten to fifteen minutes, during which time Ms.

Lafontaine counted out some coins on the counter, but did not have enough money to purchase cigarettes. She then tried to use her debit card but this did not work on the debit machine. During this time, Ms. Lafontaine talked to Ms. Sparvier about a movie called Heaven is For Real and as well presented a treaty card number for a person named Violet Peepeetch and tried unsuccessfully to use this to make a purchase. [ 9 ] Ms. Sparvier claimed that Ms. Lafontaine’s speech was a little slurred and slower than normal, and that she seemed emotional and confused. She was also upset when Ms.

Sparvier would not take the treaty card as it belonged to someone else. Lastly, she testified that Ms. Lafontaine said to her: “I am drunk, and I usually don’t do this”. [ 10 ] When Ms. Lafontaine left the store, Ms. Sparvier phoned the police as she suspected that Ms. Lafontaine was an intoxicated person. Most of Ms. Lafontaine’s movement while inside the store was caught on a video which was marked as Exhibit P-1. Ms. Sparvier said that, when Ms. Lafontaine drove away, she drove over the sidewalk and turned left. [ 11 ] On cross-examination, Ms. Sparvier admitted that other people had hit the curb that Ms.

Lafontaine hit. She was as well asked about the exact words Ms. Lafontaine said about being drunk. While her version changed a couple of times, she maintained that Ms. Lafontaine did say that she was drunk. In conclusion she said that she suspected that Ms. Lafontaine was intoxicated, but was not positive of this. She said she saw red flags come up which concerned her. [ 12 ] Ms. Lafontaine , who limped noticeably when walking to the stand in court, is 55 years of age and lives in Moose Jaw.

She has a disability which includes plantar fasciatus, collapsed arches, arthritis in her knees, osteoarthritis in her shoulders, a tear to her shoulder and pulled ligaments and bone spurs. She said she began taking a pain killer medication in April of 2014. She is also a diabetic, which results in her being light headed and presenting in a confused state at times. She said, given her disability, it is difficult for her to stand for an extended period of time, and she says she is constantly in pain. [ 13 ] Ms.

Lafontaine had been at her father’s residence in Yorkton this day, and had a heated argument with her sister over the living conditions of her father. This upset her greatly, and, as a result, she drove to a local graveyard where her mother is buried, to be in her presence. She was there for half an hour and departed sometime after 6:00 p.m. She then drove to the Co-op Gas Station on Broadway to get $20.00 worth of gas. She forgot to pay, but soon returned to do so. She then went to visit her daughter on Ontario Street in Yorkton, and visited for fifteen minutes.

She then drove to her sister’s place on Matheson Crescent in Heritage Heights in Yorkton for a couple of minutes, and then proceeded to a storage unit near Deer Park Golf Course in Yorkton, where she said she tried to regain her composure. [ 14 ] After this, Ms. Lafontaine drove to the Kakawiestihaw Gas Station, to purchase some cigarettes. The front of her car is very low and she bumped into the cement block in front of the confectionary store. She said she had done this before. She denied having drank any alcohol to this point in the day.

She went into the store, counted out some change onto the counter, but did not have enough for cigarettes. She tried to use Violet Peepeetch’s treaty card, but this did not work. She, as well, gave a bank card to the cashier, which did not successfully process, and she was very embarrassed when this happened. She admitted that she was leaning on the counter for the ten to fifteen minutes she was there, but said this was to take pressure off of her feet given her disabilities. [ 15 ] Ms. Lafontaine could tell that the cashier, Ms. Sparvier, was frustrated with her.

As a result, she started talking to her about a religious movie she had seen called Heaven is for Real , trying to smooth things over with Ms. Sparvier, whom she did not know. Ms. Sparvier reminded her of her younger sister who had committed suicide in 2011.

[ 16 ] Ms. Lafontaine denied ever saying to Ms. Sparvier that she was drunk, but rather she said to her: “Please excuse me, I am upset”. Ms. Lafontaine was cross-examined at length on this, but was adamant that she did not tell Ms. Sparvier that she was drunk. When she left the gas station, she drove to Betts Avenue, to the home of her former common law Robert Brazeau. [ 17 ] Mr. Brazeau had come from Moose Jaw to Yorkton to visit his mother who lives on Betts Avenue. He did not believe Ms. Lafontaine had been drinking when she arrived at his mother’s place that evening.

He smelled no alcohol on her, and said, having lived together with her for twenty-five years in the past, that he could tell she was sober. Was she impaired by alcohol at the gas station? [ 18 ] Having considered the evidence on this question, I have a reasonable doubt that Ms. Lafontaine’s ability to operate a motor vehicle was impaired by alcohol when she arrived at the Kahkewistahaw Gas Station. That is because: ( 1) Ms.

Lafontaine’s manner of walking in the video from the gas station - similar to her manner of walking in court - and the time she leaned on the cashier’s counter at the gas station, may well in my view have been the result of her medical ailments or any pain killers she was taking;

(2) There was no evidence that Ms. Lafontaine smelled of alcohol while at the gas station;

(3) Ms. Lafontaine’s manner of driving, when she bumped into the curb at the gas station parking area (as recorded on the video) and then, according to Ms. Sparvier, ran over the sidewalk when leaving, do not in my view necessarily indicate impairment. I accept Ms. Lafontaine’s evidence that her car is low to the ground and she has bumped into the curb before and Ms. Sparvier’s admission that others have done so as well. While Ms. Sparvier’s somewhat general description of how Ms. Lafontaine left the station (a departure that was not caught on the video) does raise a question about Ms. Lafontaine’s driving, I am, nevertheless, not satisfied that it was a result of her consuming alcohol;

(4) I am satisfied that Mr. Brazeau saw Ms. Lafontaine shortly after she left the gas station, and I accept his evidence that he smelled no alcohol on her, and that, having lived together with her for twenty-five years in the past, he could tell she was sober;

(5) While Ms. Sparvier was a straight-forward witness, and while I don’t doubt that she honestly suspected that Ms. Lafontaine was impaired, having considered Ms. Lafontaine’s evidence, I am satisfied that the opinion Ms. Sparvier reached about Ms. Lafontaine’s condition may have been inaccurate;

(6) Regarding the issue of whether Ms. Lafontaine told Ms. Sparvier she was drunk, I am not sure who to believe on this. While Ms. Sparvier was clear on this recollection of the conversation, in my view Ms. Lafontaine was equally believable in her denial of saying she was drunk, and in her explanation of what she said to Ms. Sparvier; and

(7) Regarding Ms. Lafontaine’s speech, Ms. Sparvier had never met her before and had no idea how she spoke. As a result, and further considering her medical condition including her diabetes, Ms. Sparvier’s evidence that Ms. Lafontaine’s speech was a little slurred and that she spoke slower than normal only suggests to me a possibility that Ms. Lafontaine had been drinking. [ 19 ] Taken together, the evidence and considerations listed above leave me with a reasonable doubt that Ms. Lafontaine’s ability to drive was impaired by alcohol when she arrived at the gas station. III WAS SHE IN THE CARE OR CONTROL OF HER VEHICLE WHEN FOUND BY MR. SHERRING?

[ 20 ] Care or control can be proved by the Crown in two ways: (1) through the presumption of care or control in s. 258(1)(a); or (2) through evidence that the accused was in actual (or de facto ) care or control. For the reasons that follow, I have a reasonable doubt that she was in the care or control of her vehicle when found by Mr. Sherring. The relevant evidence [ 21 ] Bryce Sherring was driving south on Highway 9 with his son on this dark and rainy night. He passed by Ms. Lafontaine’s vehicle, which had no lights on, and then returned to assist her. He found Ms.

Lafontaine behind the steering wheel and asked her if she needed help. He said the vehicle was off the highway, out of gas and stuck in the ditch. It appeared to him that the wheels on the vehicle had been spinning as the ground in the ditch was disturbed. [ 22 ] Mr. Sherring described Ms. Lafontaine as having a strong smell of alcohol coming from her, and not steady on her feet. He found a bottle of whiskey on the front seat. [ 23 ] Ms. Lafontaine wanted him to take her to the Little Bone First Nation, but he was not prepared to do this.

He then suggested, and did, take her to Humpty’s Restaurant, after getting a family contact number from Ms. Lafontaine to phone about the location of the car. He later spoke to a police officer by telephone. [ 24 ] Clara Lafontaine said that, after leaving the Kakawiestihaw Gas Station, she drove to Betts Avenue, where she spoke to Robert Brezeau. She and Mr. Brezeau have a son together, but no longer live together. Mr. Brezeau was looking for work, and wanted to use her vehicle to seek out a job.

She asked him to drive her to Violet Peepeetch’s place at Little Bone, south of Yorkton, and then he could keep her vehicle for awhile. [ 25 ] Ms. Lafontaine got into the back seat of the vehicle and closed her eyes, and Mr. Brezeau drove. When they were a few miles south of Yorkton, Mr. Brezeau told her that the car was running out of gas, and she could hear the car sputtering and then stall. Mr. Brazeau steered the car off the highway into the ditch, and then said he would hitchhike into Yorkton to get gas. He departed, and she did not see him again that evening. [ 26 ] Ms.

Lafontaine said she crawled into the front seat, but denied trying to drive the vehicle once it was in the ditch. It was very dark out. She turned on the head lights and the windshield washers, but said she did so without engaging the ignition. She then remembered that she had brought a bottle of whiskey with her, that she planned to drink once she got to Violet Peepeetch’s place. She said she drank from the bottle of whiskey and waited for someone to return.

When asked why she started drinking, she said she was scared and she felt like a drink, as there was nothing else she could do at this point. [ 27 ] After about 45 minutes, Mr. Sherring stopped to help her. He didn’t want to take her to Little Bone, but instead took her to Humpty’s Restaurant. She admitted that she was arrested at the restaurant, and charged with two offences under The Alcohol and Gaming Regulation Act : open liquor in a vehicle and public intoxication. She subsequently admitted her guilt on both of these tickets, and paid the fines. [ 28 ] When asked why she did not drive when she got to Mr.

Brezeau’s place, she said she was sick, tired and had muscle spasms and needed to lie down. She said she had not been feeling good all day, and the day had been very frustrating. [ 29 ] Ms. Lafontaine said she was feeling pretty looped after drinking the whiskey, as it doesn’t take much alcohol to make her that way. She claimed she had consumed half a mickey, although it appears that more than half remained in the picture of the bottle of whiskey marked as exhibit P-2. She admitted that she was impaired at the point Mr. Sherring found her.

She said the alcohol that she drank from the bottle was consumed quickly and it was enough to make her intoxicated.

[ 30 ] Mr. Brazeau said, after Ms. Lafontaine pulled up in her vehicle outside his mother’s place, that, as he was looking for work and needed a car, Ms. Lafontaine was prepared to lend her vehicle to him. As a result, he agreed to drive her in this vehicle to Violet Peepeetch’s place at the Little Bone First Nation, south of Yorkton. Ms. Lafontaine was resting in the back seat. [ 31 ] Mr. Brazeau drove south on Highway 9 and after about three miles this vehicle began running out of gas. He said it was sputtering and he pulled off the highway towards an approach.

The vehicle did run out of gas, and he brought it to a stop on the edge of that approach. Mr. Brezeau said he was very disappointed about what happened, and set off to hitchhike back towards Yorkton. [ 32 ] In cross-examination he admitted that he had not been expecting Ms. Lafontaine to drive up that evening, but essentially said he was not surprised given the odd nature of their relationship together. Mr. Brezeau denied that he had been drinking at all that day. He said, when he returned to Yorkton after running out of gas, he made two phone calls to his brothers to see if he could get gas for the vehicle.

He said he had no money for a taxi, or for gas, and basically quit his efforts at some point. He next spoke to Ms. Lafontaine a significant time later, and she was very angry with him. Does the presumption of care or control apply? [ 33 ] Section 258(1) (

a) of the Criminal Code says that a person who occupies the driver’s seat is deemed to have the care or control of this vehicle, unless she establishes that she did not occupy that seat for the purpose of setting the vehicle in motion. Mr. Sherring found Ms. Lafontaine occupying the driver’s seat. [ 34 ] I accept Ms. Lafontaine’s evidence that she was resting in the back seat of her vehicle, with Mr. Brazeau driving. I, as well, accept that this vehicle ran out of gas, and that Mr. Brazeau pulled it off of the highway, onto an approach and partially into the ditch. While both Cst. Morris and Mr.

Sherring testified that the ground around the car was disturbed and that appeared to suggest the wheels had been spinning, I am satisfied that any disturbance to the ground happened when Mr. Brazeau guided the vehicle to its resting position, after it was out of gas. Most significantly, I accept that Ms. Lafontaine, when she crawled into the front seat, had no intention of driving, nor could she have with the vehicle out of gas. [ 35 ] As a result, I am satisfied that she did not occupy that seat for the purpose of setting her vehicle in motion, and the presumption is rebutted.

Is there sufficient evidence of actual care or control The legal standard [ 36 ] In R v Boudreault , 2012 SCC 56 , Mr. Justice Fish concluded that care or control within the meaning of s. 253(1) of the Criminal Code signifies: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk , as opposed to a remote possibility , of danger to persons or property. [1] [ 37 ] There is no doubt that, in this case, the first two conditions apply to Ms.

Lafontaine. The question is whether, in these circumstances, there was a realistic risk , as opposed to a remote possibility , of danger to persons or property.

Was she in care or control? [ 38 ] I am satisfied that there was in this case, at best, a remote possibility of damage to persons or property. That is because: (1) this vehicle was clearly off the road and not a danger to traffic on the highway; and (2) as noted before, this vehicle was out of gas and as a result inoperable, and Ms. Lafontaine’s actions in turning on the lights and windshield wipers did not create a realistic risk of such damage. [ 39 ] Regarding the amount of whiskey left in the Wiser’s bottle, and despite Mr. Sherring telling Cst.

Morris the bottle was half full and the poor lighting when the picture of the bottle was taken (Exhibit P-2), it nevertheless appears that Ms. Lafontaine underestimated the amount remaining, saying there was only a half bottle remaining. However, it was obvious that a number of ounces were gone from the bottle, and I do accept that Ms. Lafontaine drank this quickly. As a result, I don’t reject her evidence that the consumption of this whiskey led to the condition Mr.

Sherring, and then later the police officers at Humpty’s restaurant, found her in. [ 40 ] Considering all the evidence on this issue, taken together, I have a reasonable doubt Ms. Lafontaine was in the care or control of her vehicle when she was found in the front seat of it by Mr. Sherring. IV CONCLUSION [ 41 ] Because I am left with a reasonable doubt that:

(1) Ms. Lafontaine’s ability to operate a motor vehicle was impaired by alcohol when she arrived at the Kakawiestihaw Gas Station in Yorkton; and (2) she was in the care or control of her vehicle when she was found by Mr. Sherring in the ditch south of Yorkton, Ms. Lafontaine is found not guilty on this charge. R. Green, J [1] At paragraph 9.