Her Majesty the Queen - v. -, 2015 SKPC 149

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 149 Date: December 8, 2015 Information: 37252421 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gisele Quewezance Appearing: Rob Parker For the Crown Estes Fonkalsrud For the Accused JUDGMENT M.

GORDON , J [ 1 ] Gisele Quewezance is charged that: Count 1 - On or about the 18 th day of September A.D. 2010, at or near Moose Jaw, Saskatchewan did, having consumed alcohol in such quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code ; and Count 2 - On or about the 18 th day of September A.D. 2010, at or near Moose Jaw, Saskatchewan did, while her ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code .

[ 2 ] The trial commenced May 20, 2015 and was adjourned to September 17, 2015. The defence requested the adjournment to try and locate an essential witness for the defence. [ 3 ] The sole issue is identity. In other words, has the Crown proven beyond a reasonable doubt that Gisele Quewezance was the operator of a motor vehicle on September 18, 2010. [ 4 ] The only Crown witness was Cst. Lawrence. [ 5 ] On September 18, 2010, Cst. Lawrence was in uniform and on patrol in a marked police vehicle.

From his dispatch he received information about a possible impaired driver in the area of Tim Horton’s and 9 th Avenue Northeast in Moose Jaw. He was provided with an Alberta plate number and a description of the vehicle. Cst. Lawrence was proceeding north on 9 th Avenue towards Tim Horton’s and he noted a vehicle that matched the description which was westbound to his right on Oxford Street. He passed by, turned around and met this vehicle head on. He pulled in front of the vehicle and stopped the vehicle. At this point there was no one in the driver’s seat.

He saw the driver of the vehicle settling into the back seat and not sitting still. As he was passing the vehicle going north, he noted two people in the front and no one in the back. There was no one in the driver’s seat when the vehicle was stopped. [ 6 ] Cst. Lawrence did not know the accused when he approached her. The officer spoke to the accused who was in the back seat and called for another unit to deal with the passengers. Cst. Lawrence’s only dealings were with the accused.

He could smell alcohol coming from her and advised her she was under arrest and at 8:56 a.m., asked the accused for her name and date of birth and also observed slurred speech, glossy eyes and the odour of beverage alcohol from her breath. At 8:58 a.m., he provided her with the Charter rights, breathalyzer demand and police warning. [ 7 ] The video marked by consent as Exhibit P-1 as described by Cst. Lawrence shows that Ms. Quewezance was handcuffed and questioned further by the officer about her last drink. The officer also asked her “why did you change places” and Ms. Quewezance responds “on impulse”.

She told the officer they just wanted to get coffee and had left Tim Horton’s and were returning to her sister’s. At 9:37 a.m., Ms. Quewezance was handed over to Cst. Watt, the breathalyzer technician. Two samples were taken and Exhibit P-2 was marked as the Certificate of Analyses. Cst. Lawrence said he received no other information that someone different was driving and Ms. Quewezance never told the officer she was not driving. The Crown closed its case. [ 8 ] Nikita Bulianitz was called by the defence. She testified that on September 18, 2010, she was sitting in the passenger’s seat of the car.

She related that she had been drinking with the accused as well as other people the night before. They had actually been drinking for a couple of days and had lots to drink. They had been drinking at her house which was approximately one block from where they were stopped. She testified that Jessie was driving them around because they were intoxicated. They were driving Gisele’s grey two-door Thunderbird. Gisele was in the back seat. She testified that they went to Tim Horton’s to get coffee and snacks at the drive- through and then went back to her house to drop off a coffee for the babysitter.

They were on their way to the liquor store. She recalls the officer saying to Gisele “I saw you move back”. She said that Jessie pushed himself into the back seat and as a result Gisele, who was holding her coffee, was bounced around and spilled her coffee. Jessie is Jessie Badger who is a tall, slightly built young man. Ms. Bulianitz agreed that Ms. Quewezance’s physical appearance is much different from Jessie’s and that she is a larger woman. She was adamant that she told the police that Gisele was not driving. She also told Jessie to tell the police that. [ 9 ] On cross-examination Ms.

Bulianitz admitted that she had a lot to drink and that alcohol can affect one’s memory. She was adamant that Jessie was sober at the time and had been their chauffeur the night before. That morning they wanted to get to the liquor store by 9:00 a.m. Jessie was only 17 at the time. She was aware that he was “on conditions”. She again says she said to Jessie “tell them you were driving, tell them you were driving” and also she stated emphatically that she told the officer “why are you arresting Gisele, when she was not driving”.

She admitted that at the time she was not on the best of terms with the police. [ 10 ] The matter was adjourned to September 17 to allow the defence to try and contact the one witness Jessie Badger, who Ms. Bulianitz says was driving.

[ 11 ] On September 17, counsel advised that he could not locate Jessie. The defence called the accused Gisele Quewezance. Ms. Quewezance testified she lives in Hinton, Alberta and on the date in question she was partying and drinking with Nikita Bulianitz. They decided to go for cigarettes and coffee at Tim Horton’s and had just dropped a coffee off for her son who was at Nikita’s and they were going to the store for cigarettes and then on to the liquor store. Ms. Quewezance says she was in the car with Jessie and Nikita. She was in the back seat behind the driver’s seat. It was her car but Jessie was driving.

Nikita was in the front seat. On the way to the store, they were driving west on a gravel road, stopped for the stop sign and all of a sudden Jessie jumped into the back seat beside her and caused her to spill her coffee. Jessie jumped into the back seat between the two bucket seats. [ 12 ] When the police officer came to the vehicle, he said “you didn’t think I’d see you do that”. She admits she was pretty drunk, about a six out of a scale of 10, with 10 being very drunk. She was put in the back of the police car and read her rights to counsel and police warning.

The police officer said to her again “did you think I wouldn’t see you”. She was scared. She did not want to get Jessie into trouble as he had just got out of jail a few days ago. She tried not to say anything or have any communications with the officer. She sat with her head down and really did not know what to say. She was adamant that she was not driving although she admitted she did not tell the officer that Jessie was driving. Jessie was already in a lot of trouble and she was under the impression he was facing a lot of charges.

Her vehicle was a 1992 Ford Thunderbird coupe that she had only owned for a few months. It was a two-door sportier model and a smaller vehicle. She had a hard enough time getting in and out of the back seat given it was a two-door. [ 13 ] On cross-examination she stated that Jessie was 18 years old at the time. He had been sleeping and babysitting her children. For the past two or three days she had been drinking heavily and sleeping and eating in-between the drinking sessions. She was again emphatic that Jessie was not drinking and that she said to him “I’m too drunk to drive”.

She decided to tag along to Tim Horton’s and the other stops because it was her car. In addition, she did not want Jessie and Nikita to go off on some sort of joy riding escapade. She explained that the reason she got in the back seat is Nikita knew Jessie better and she thought that they were having a “thing”. She explained her actions by saying she was worried that Jessie would get into trouble as she had heard him talk of some serious charges he had and that he was on conditions.

She agreed that when the officer asked her why she switched places with Jessie that she responded with some mumbling and then words to the effect “it was an impulse”. Again Ms. Quewezance said she was trying not to respond at all to the police officer. She was trying to just get the process over with and get back to the house. One can see in the video and she explained, when asked, that she made small talk with the officer to try to change the topic of conversation by talking about random matters. She says after that the police officer did not ask any further questions.

CROWN ARGUMENT [ 14 ] The Crown submits that the evidence of Cst. Lawrence as well as the video evidence clearly shows Gisele Quewezance moving from the driver’s seat to the back seat behind the driver’s seat. It is to be noted that both defence witnesses were highly intoxicated at the time and Ms. Quewezance did not deny driving at roadside or for that matter, on the way to the police station or when being asked to take the breathalyzer test. In fact she agreed that she was driving. Now that some time has elapsed, the Crown suggests the accused and Ms.

Bulianitz have come up with this calculated story pointing the finger at Jessie. [ 15 ] The Crown admits and it can certainly be seen on the video that Cst. Lawrence was very businesslike and perhaps even officious or abrupt, which may be a better description, when dealing with Ms. Quewezance. However, he clearly asked Ms. Quewezance if she had been driving and all that required was a yes or no answer. Ms. Quewezance suggested she just gave in to the police officer but it is noted the police officer did not keep questioning her or badgering her in any fashion. The Crown suggests the evidence of Ms.

Bulianitz is not honest and was designed to deceive and that the evidence of both these women should be discounted except for the one truthful moment that Ms. Quewezance had which was in the police vehicle when she admitted “on impulse” she changed places. DEFENCE ARGUMENT [ 16 ] The defence argues that the Crown has not proved identity beyond a reasonable doubt. The defence suggests that the video does not clearly show Ms. Quewezance going from the front seat to the back. The video does show that two people were in the back seat when Cst. Lawrence came up to the car.

The defence notes the type of car and the size or build of the accused. By noting these things one could draw an inference that it would be very difficult and unlikely that Ms. Quewezance could quickly get into the back seat between the two bucket seats. Defence also says that Ms. Quewezance never unequivocally said she was the driver. She has explained how she did not want to get Jessie into trouble. Otherwise she was cooperative with the police. The defence suggests when the Court applies a W.D. analysis, that all the circumstances must be looked at in their totality.

On that basis, he argues that the Court should have a reasonable doubt with respect to whether Ms. Quewezance was the operator or in care or control of the vehicle at the time in question.

ANALYSIS [ 17 ] One of the most important elements of an impaired driving investigation is the identification of the person who was driving or in care or control of the motor vehicle. Often when the police officer stops a vehicle, he questions the driver and obtains photo identification by way of a driver’s licence. However, in accident situations, the driver may no longer be in the vehicle. Likewise here, in a more unusual situation, there was no one in the driver’s seat once Cst. Lawrence had stopped his vehicle and attended the accused’s vehicle.

In this case, conviction depends on a passing glance of a previously unknown person by Cst. Lawrence. Cst. Lawrence’s vehicle is moving and is at right angles to the accused’s vehicle. The accused’s vehicle, as I have said, is to the right or to the east of the police vehicle. The time is about 9:00 in the morning on September 18. There is a considerable body of jurisprudence with respect to the dangers of eyewitness identification. As I have said, Cst. Lawrence was not acquainted with the accused at this time. He did not provide any description of the accused.

He says he just saw the driver settling into the back seat and not sitting still. [ 18 ] Cst. Lawrence states that the accused complied with his requests. When he questioned the accused, she never denied being the driver. In fact, in answer to his question about why the switch had taken place, she responded on impulse and this confirmed in his mind that she was the driver.

Again, many of the cases on eyewitness identification talk about the dangers of relying solely on the subject’s admission of driving. [ 19 ] This case requires the Court to assess the credibility of the witnesses’ testimony in light of all of the evidence. This is commonly known as the W.D. test or framework and the requirements can be summarised as follows. First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether on the basis of the evidence which you do accept, if you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused. Subsequent cases have made it clear that the Crown must prove the elements of the offence beyond a reasonable doubt. Evidence is not to be assessed in isolation but the totality of the evidence must be considered. [ 20 ] Ms. Quewezance testified that she had not experienced positive or pleasant encounters with the police in the past.

She was aware or under the impression that Jessie Badger was “on conditions” and that he would be in trouble if caught driving. She had been drinking for days and as a result, not thinking clearly about the implications of her responses to the officer. Her explanation for her behaviour and comments to the officer are believable in this situation. Regrettably, it was obviously the wrong way to respond and has led to more difficulties for her.

However, I accept her explanation for her conduct at the time. [ 21 ] I also note that the Quewezance vehicle was to the right or east of the police officer when he says he saw the switch. I also note that Ms. Quewezance is a larger woman. Her vehicle is a smaller, sportier, two-door sedan. I have watched the DVD again and I see a larger woman moving in the back seat with another slighter person beside her. I cannot conclude from this recording that Ms. Quewezance was moving to the back seat. I note Ms. Quewezance said she had a difficult time getting into the back seat in the ordinary way.

I do not see how she could accomplish a quick jump into the back seat as described by the officer just as the officer was passing. Jessie Badger is described as a slight 17 year old male. He would have a far easier time making this move. [ 22 ] Finally, Ms. Quewezance testified she was not driving. Ms. Bulianitz, the front seat passenger, also testified that the accused was not driving. It was common ground between counsel that defence counsel had tried to locate Jessie Badger. Both women said they did not know his whereabouts.

Of course it would have been ideal if Jessie Badger had come forward and said he was driving. [ 23 ] Therefore, applying the W.D. analysis, as it has evolved, is quite straightforward. In this case when I consider the evidence of Ms. Quewezance and Ms. Bulianitz taken together with all of the evidence, I conclude the Crown has failed to prove that Ms. Quewezance was the operator of the motor vehicle at the time in question.

Even if I am wrong, if I go to the second stage of analysis in W.D. , I would conclude that after a consideration of all of the evidence even if I could not say I believed the evidence of the accused, I would be unable to decide whom to believe and therefore I would still find the Crown has not proved Ms. Quewezance to be the operator of the motor vehicle. [ 24 ] I would like to note that Cst. Lawrence is not to be faulted in any way in his investigation. He carried out his duties in a professional and businesslike manner.

However, the Court hears all the evidence and the onus of course at this stage is proof beyond a reasonable doubt.

CONCLUSION [ 25 ] The Certificate of Analyses is admissible. However, on the whole of the evidence, I find Ms. Quewezance not guilty. M. Gordon, J