R. v. Gates Date:, 2013 BCPC 299

Citation: R. v. Gates Date: 20131028 2013 BCPC 0299 File No: 35062 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KODY WILLIAM PATRICK GATES REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: G. Merke Counsel for the Defendant: G. Cranston Place of Hearing: Port Alberni , B.C. Date of Hearing: July 15, 16, October 28, 2013 Date of Judgment: October 28, 2013

[ 1 ] Mr. Gates is charged with one count of impaired driving, contrary to

section 253 of the Criminal Code , and one count of failing to comply with a breath demand, contrary to

section 254 of the Criminal Code. The Evidence for the Crown [ 2 ] Mr. and Ms. Nass live at the intersection of Malabar Road and Beaver Creek Road, in Port Alberni, BC. They went to bed at about 10:00 p.m. on September 23, 2102. Ms. Nass was awoken a few minutes later by the sound of squealing tires. She said it sounded like a vehicle was stuck and was spinning its wheels trying to free itself. She woke Mr. Nass, who is a heavy sleeper. They looked out their window and saw a truck stuck in a ditch and a dog running around.

They also saw a man, whom they described as clearly intoxicated and accompanied by the dog, staggering around near the truck. Mr. Nass described it as a late-model Chevrolet or GMC truck, “brownish” in colour, with a flat deck instead of the usual box. Mr. and Ms. Nass each remarked that it was very dark out and difficult to see. Mr. Nass saw the man get in and out of the truck several times, and saw him emerge at least once out of the driver’s side door of the vehicle. Ms. Nass called the police. She said that they arrived “within minutes”. Mr.

Nass said that the police definitely arrived within 2 minutes of the telephone call. Mr. and Ms. Nass did not leave their home. [ 3 ] Ms. Nass’ call was not the first call to the police about the incident. The first call was made by a motorist, Mr. Earthy, at 22:19 hours. He left the scene before the police arrived. At 22:22 hours on September 23, 2012, Constable Gill was directed by his dispatcher to the intersection of Malabar Road and Beaver Creek Road. Constable Gill arrived at the accident scene at 22:24 hours.

He observed a black Dodge pickup truck, stopped in the northbound lane of Beaver Creek Road with its hazard lights flashing. The driver of the Dodge pickup truck, later identified as Mr. Timothy George, was speaking with an individual later identified as Mr. Gates. An old brown GMC pickup truck was stationary in front of the Dodge, at right angle to the direction of travel, its front wheels in the ditch and its rear wheels on the edge of the travelled portion of the roadway. The rear end of the GMC protruded about 2–3 feet into the travelled portion of the roadway.

Tire marks on the asphalt were consistent with someone having spun its rear wheels in an attempt to back it out of the ditch. Constable Gill approached Mr. George and Mr. Gates. Mr. Gates was standing on level, dry asphalt, holding a piece of rope, and was swaying on his feet. A strong odour of alcohol emanated from him. His eyes were glassy and bloodshot. He told Constable Gill that he had put his truck in the ditch and needed help to get it out. Mr. George told Constable Gill that Mr. Gates had asked Mr. George for help to get the truck out of the ditch, but that Mr. George had refused because Mr.

Gates appeared to be intoxicated. Constable Gill and Mr. Gates walked over to the GMC. As they did so, Mr. Gates told Constable Gill that he had consumed no alcohol in the preceding 3 ½ hours. When they reached the GMC, Constable Gill observed that the keys were in the ignition, the engine was off, the automatic transmission was engaged in the “L2” position, the lights were on, Mr Gates’ wallet was lying on the floor on the passenger side of the cab beside an empty beer can, and the right front tire had been torn from the wheel-rim.

There were tire marks left by the tires of the GMC on the pavement, consistent with a failed attempt to back it out of the ditch under its own power, and a smell of burnt rubber in the air. [ 4 ] Constable Gill said that the two statements made to him by Mr. Gates were spontaneous; i.e. they were not prompted by any statement or action on the part of Constable Gill. No contrary suggestion was made by Mr. Cranston. I conclude that the two statements were voluntary and are admissible. [ 5 ] Constable Gill arrested Mr.

Gates for impaired driving at 22:28 hours, read him the usual Charter warning at 22:29 hours and read him a breath demand at 22:32 hours. He then transported Mr. Gates to the RCMP detachment, arriving at 22:53 hours. Mr. Gates spoke by telephone, in private, with Legal Aid duty counsel between 22:57 and 22:59 hours. Constable Gill described him as swaying on his feet, having slurred speech and smelling strongly of alcohol. When asked for his telephone number, he gave three different answers, one comprising 5 digits, one 7 digits and the third 8 digits.

He stumbled, almost fell from a chair when he sat down, and found it necessary to steady himself against the door frame of the telephone room. [ 6 ] Constable Gill took Mr. Gates to the observation room at 23:01 hours. It is necessary to maintain continuous observation of an impaired driving suspect for a period of time before administering a breathalyzer test so as to ensure the integrity of the results. At 23:17 hours, Mr Gates sucked in air to his lungs and emitted a small belch.

That required Constable Gill to re-start the observation period because the belch might have the effect of drawing alcohol from the stomach into the mouth and affecting the breathalyzer test. At 23:26 hours, Constable Peterson, a breathalyzer technician, entered the observation room. As he did so, Mr. Gates emitted a large belch, requiring the officers to re-start the observation period for a second time. At 23:30 and 23:35 hours, Mr. Gates made two statements, each unprompted by any words or actions of Constable Gill.

They were: “I have to defend my own livelihood.” “I should have just grabbed my dog and ran.” I conclude that each statement was voluntary and is admissible. [ 7 ] At 23:54 hours, Constable Peterson returned. He and Constable Gill took Mr. Gates to the instrument room, where Constable Peterson instructed Mr. Gates to blow into a breathalyzer. Mr. Gates did so, but the breathalyzer reported that the sample was insufficient because Mr. Gates did not provide sufficient breath. Constable Peterson then used a mouthpiece from the breathalyzer to demonstrate to Mr.

Gates what kind and volume of breath sample was required. Mr. Gates nodded, which Constable Gill took to indicate that Mr. Gates understood Constable Peterson’s instructions. Mr. Gates was then instructed to provide a second breath sample. He did so, with the same result as the first. Constable Gill informed him that he would be charged with failing to provide a breath sample if he failed on his third attempt. Mr. Gates was then instructed to provide a third sample, which he did with the same result as the first two. Constable Gill then informed him that he was under arrest for failing to provide a breath sample.

He was lodged in cells to allow him to sober up. Mr. Gates was released on a promise to appear at 04:56 hours on September 24, 2012. At 04:58 hours, more than 6 hours after his arrest, he said to Constable Gill that he would have been willing to provide a blood sample if asked. Constable Gill then drove him to his home, arriving at 05:12 hours.

Assessment of the Evidence for the Crown [8] I am obliged to consider whether the evidence tendered by the Crown, standing alone, is sufficient to establish, beyond areasonable doubt, the elements of either or both of the offences charged. If I conclude that it is, I must then consider whether theevidence tendered by Mr. Gates raises a reasonable doubt as to his guilt. [9] In relation to count #1, the question is whether the evidence establishes, beyond a reasonable doubt, that Mr.

Gates had care orcontrol of a motor vehicle on September 23, 2012 while his ability to operate the vehicle was impaired by alcohol. [10] Mr. Gates told Constable Gill that he had “put his truck in the ditch”. Standing alone, that evidence satisfies me that Mr. Gateswas driving the truck when it entered the ditch. However, that fact is of limited assistance in determining whether Mr. Gates had careand control of the truck at a time when he was intoxicated. He might have become intoxicated after he put the truck in the ditch. As willbecome apparent, a more useful question is whether Mr.

Gates had care and control of the truck after 22:10 hours. [11] Ms. Nass telephoned the police within a minute or two after she was awoken by the sound of squealing tires. Mr. Earthy’s call,reporting the accident, preceded hers. Mr. Earthy’s call was received by the RCMP at 22:19 hours. It follows that the sound ofsquealing tires was made within a few minutes of 22:19 hours. Mr. and Ms. Nass looked outside their window and saw a truck with itsfront wheels in the ditch and an apparently intoxicated person, accompanied by a dog, in and around the truck. The question is whetherthe person was Mr.

Gates and the truck was his truck. There is no direct evidence of either fact. The following circumstances indicatethat it was Mr. Gates and his truck: a. Mr. Nass’ description roughly conforms to Mr. Gates’ truck. Mr. Nass described it as a GMC or Chevrolet pickup, “brownish” incolour, with a flat-deck instead of a box. Mr. Gates’ truck is, in fact, a brown, older-model, GMC pickup with a conventional box. b. At 22:24 hours, at most 10 minutes after Mr. and Mrs. Nass observed the person with the “brownish” truck, Constable Gill arrivedon the scene. On arrival, he met Mr.

Gates, who told Constable Gill that he had put his truck in the ditch and wanted some assistance toextract it. c. No witness mentioned any other truck in the ditch when Constable Gill arrived. It seems reasonable to think that someone wouldhave mentioned it if there were two trucks in the ditch at that intersection. d. When Constable Gill approached Mr. Gates’ truck, he observed tire marks on the roadway by the rear wheels of the truck, consistentwith an attempt to back the truck out of the ditch, and a smell of burning rubber. e. The only people present when Constable Gill arrived were Mr. Gates and Mr. George.

There was nothing to indicate that Mr. Georgehad operated, or attempted to operate, Mr. Gates’ truck. f. The person observed by Mr. and Mrs. Nass in and around the truck appeared to be intoxicated and accompanied by a dog, as wasMr. Gates. No witness remarked of any sign that Mr. George was intoxicated or had a dog. [12] In those circumstances, the logical inferences are that: a. Mr. Gates attempted to back his truck out of the ditch at about 22:15 hours; b. In the attempt, his rear tires spun on the pavement, leaving the tire marks observed by Constable Gill and making the sound whichawakened Ms. Nass. c. Mr.

George came on the scene shortly thereafter, and was engaged in conversation with Mr. Gates when Constable Gill arrived. Other versions of the relevant events are possible. d. Someone else, also intoxicated, accompanied by a dog and driving a brown GMC pickup, might have crashed it in the ditch in frontof the Nass residence at about 22:15 hours, spun its wheels in a successful attempt to extract itself from the ditch and fled the scenebefore Mr. Gates arrived. Mr. Gates might then have crashed his vehicle silently in the ditch just in time to be discovered by Mr.George. However, that scenario would not assist Mr.

Gates because it would leave him in care and control of his truck after 22:15hours. e. Alternatively, Mr. Gates might have crashed his truck, unobserved, into the ditch earlier (say, before 22:00 hours), spun its wheels,unheard, in an unsuccessful attempt to extract it, and left the scene. Someone else might have attempted to back it out of the ditch at22:15 hours, thus awakening Ms. Nass, and fled the scene, unobserved, before Mr. Gates returned in the interval between 22:15 and22:24 hours. No doubt, other minds, more imaginative than mine, could devise alternate possibilities.

However, there is no evidence, in the Crown’scase, to suggest that any of them might have occurred. [13] Considering the Crown’s evidence alone, I consider the circumstantial evidence to be logically consistent with only oneconclusion; i.e. at or about 22:15 hours, Mr. Gates made an unsuccessful attempt to back his truck out of the ditch and awakened Ms.Nass with the sound of his spinning tires.

I consider any other alternate explanation of the evidence to be an unsupported speculation,and am guided by the following admonition, articulated in R vs Wild (SCC), [1971] SCR 101: ... it is my opinion that the learned trial judge failed properly to apply the rule in Hodge's case to the facts before him in that heacquitted the appellant, not because he found that there was a rational conclusion on the facts inconsistent with his guilt, but becausethere was, in his opinion, a conjectural conclusion which he considered might be inconsistent with his guilt.

I have also noted the following remarks of Chief Justice McEachern in R vs To [1992] BCJ #1700:

It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can bereached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty. In the same case, Chief Justice McEachern said that, where the Crown’s case is founded upon circumstantial evidence, the question iswhether: ... other inferences consistent with innocence may be drawn from all the proven circumstances.

It is this rational process whichdistinguishes inference from speculation or conjecture. At the end of the case, of course, the Crown must prove the guilt of the accusedbeyond a reasonable doubt, but once that was done, on the circumstances of this case, the burden of adducing an explanation that raises areasonable doubt, or of extracting reasonable doubt from the evidence, rested upon the accused. [14] If Mr. Gates was attempting to back his truck out of the ditch at 22:15 hours, he clearly had care and control of the truck at thattime.

The next question on count #1 is whether his ability to drive was impaired by alcohol at that time. In considering that question, Iam conscious that any degree of impairment, however slight, is sufficient to satisfy this element of the offence, but that it is unsafe toinfer impairment from observations of conduct unless they constitute a “marked departure from the norm”: R vs Stellato (SCC), [1994] 2 SCR 478; R vs Andrews (1994) 1996 ABCA 23 , 104 CCC (3d) 392. If I were to consider only ConstableGill’s observations at the accident scene, I would be left with a doubt on this point.

However, the behaviour exhibited by Mr. Gates atthe RCMP detachment leaves no doubt that his ability to drive was grossly impaired at 23:00 hours and thereafter. Simply put, a personwho was as drunk as he was at 23:00 hours was in no condition to operate a motor vehicle at 22:15 hours, unless he had consumedalcohol in the interval between 22:15 and 23:00 hours. In this case, it is established that Mr.

Gates consumed no alcohol after the arrivalof Constable Gill at 22:24 hours, so the question is whether he did so between 22:15 and 22:24 hours. [15] There is nothing in the Crown’s case to exclude the possibility that Mr. Gates consumed alcohol during the interval between22:15 hours and 22:24 hours. [16] If it stood alone, the Crown’s evidence would convince me beyond a reasonable doubt that Mr. Gates committed the offence ofimpaired driving when he attempted to extract his truck from the ditch at 22:15 hours, subject only to the possibility that Mr.

Gates mighthave consumed alcohol sometime between 22:15 hours and 22:24 hours. As noted below, that possibility is excluded by Mr. Gates’evidence. [17] In relation to count #2, there is no doubt that Mr. Gates failed, on three separate occasions, to provide a breath sample. Becausemens rea is an element of the offence, that fact is not sufficient to justify a conviction. The Crown must also show that the failure waswilful.

Constable Gill, who is a qualified breathalyzer technician, said that he has administered more than 100 breath tests and that onlytwo individuals have failed to provide a sufficient breath sample. One was a person who simply refused to blow into the mouthpiece,and the other was Mr. Gates. The obvious inference is that, absent some unusual medical condition, human beings are capable ofproviding the sample. Mr. Cranston argues that there was no evidence to negative the possibility that there might have been somemalfunction in the machine or the mouthpiece.

In my view, the Crown is not obliged to anticipate and prove the negative of everytheoretical possibility which might give rise to a defence. Constable Gill brought the mouthpieces in question to court and offered themfor examination. No one took up his offer. There was no evidence to indicate that the mouthpieces or the breathalyzer weremalfunctioning in any way, nor was that possibility explored during Constable Gill’s cross-examination. There was no evidence tosuggest that Mr. Gates suffers from any physical condition which might have rendered it difficult to provide an adequate breath sample.

If the Crown’s evidence stood alone, I would be satisfied beyond a reasonable doubt that Mr. Gates wilfully refused to provide asufficient sample. The Evidence for the Defence [18] Mr. Gates was the only defence witness. He said that: a. He had been out to dinner at the home of a friend, Wendy McKinney, and had one glass of wine with dinner. b. He was returning home, with his dog, in his truck at about 19:15–19:30 hours. He stopped at the stop sign on Malabar Road at theintersection of Beaver Creek Road, then turned left onto Beaver Creek Road.

He swung too wide when making his turn and his rightfront wheel went into the ditch. c. He engaged the four-wheel drive and attempted to back out of the ditch, but failed. In the course of the attempt, the rear of his truckswung so that the truck was at right angle to the direction of travel, as it was when Constable Gill arrived about 3 hours later. d. He observed that the right front tire was flat and that the steering box was broken. e. He decided to walk home with his dog, which took about 15–20 minutes. f. He tried to call a friend who owned a tow truck, but was unable to reach him. g.

While at home, he found a 26-ounce bottle of Southern Comfort which was about half-full. He consumed half of that (about 6ounces) at home, and the rest while walking back to the accident scene, again with his dog. He threw the empty bottle into the ditch ashe walked, before he arrived at the accident scene. h. By time he arrived at the accident scene, he was too drunk to drive. i. He lied to Constable Gill when he told him that he had consumed no alcohol in the preceding 3 ½ hours.

j. He arrived at the accident scene about 5 minutes before Constable Gill arrived. k. He was concerned that his truck posed a safety hazard and hoped that a passing motorist would assist him to drag it into the ditch and off the roadway so that he and his friend could retrieve it on the following day. l. Only one vehicle, a blue minivan, stopped to offer him assistance. The driver of that vehicle declined to help pull the GMC into the ditch, but told Mr. Gates that help was on the way, and remained with him at the accident scene until help arrived. m. He has no memory of Mr.

George, and does not recall speaking with the driver of a black pickup truck. Mr. Gates first saw the black pickup truck when he was seated in the back of the police car. n. He did his best to blow as hard as he could into the breathalyzer at the RCMP detachment. Analysis of Mr. Gates’ Evidence [ 19 ] Mr. Merke submits that I should draw an adverse inference from Mr. Gates’ omission to call Ms. McKinney to give evidence at trial. Mr. Gates said that Ms. McKinney had volunteered to attend trial and give evidence on his behalf. In the event, Ms. McKinney was not called to give evidence.

If she had been, she could have corroborated or refuted Mr. Gates’ evidence as to his alcohol consumption at her home and as to the time of his departure from her home. Having regard to the guidance provided by R vs Solomon [2002] OJ #5128 @ paragraphs 32 – 33, I regard the omission to call Ms. McKinney as a factor relevant to Mr. Gates’s credibility, but not as a major factor on that issue. My conclusions on the issue are founded on the analysis below. [ 20 ] With one exception, I am satisfied that Mr. Gates’ evidence is false. Mr.

Gates’ evidence would require me to believe that: a. there was another brown GMC truck, spinning its wheels and burning its tires, in the ditch in front of the Nass home, at 22:15 hours and that no one noticed that there were two trucks in the ditch; or b. someone else, observed by Mr. and Ms. Nass to be intoxicated and accompanied by a dog, was in the driver’s seat of Mr. Gates’ truck at 22:15 hours, trying to back it out of the ditch and spinning its wheels in the process. The first is manifestly absurd, and the second only marginally less so. In particular, Mr.

Nass was clear in his recollection that the police arrived within 2 minutes of Ms. Nass’ call to the police. That evidence was not challenged on cross-examination. Mr. Gates said that he arrived on-scene about 5 minutes before Constable Gill arrived. If someone else was spinning the wheels of Mr. Gates’ truck in the ditch when Ms. Nass called the police, where did that person go and how did he escape unobserved? I conclude that, with one exception, Mr. Gates’ evidence is a deliberate series of falsehoods. His evidence raises in my mind no doubt of the proposition that Mr.

Gates was seated in the driver’s seat of the GMC at about 22:15 hours, with the engine on and the reverse gear engaged, attempting to back it out of the ditch. [ 21 ] The exception is Mr. Gates’ statement that he had nothing to drink after he arrived at the accident scene. I accept that as true. [ 22 ] It necessarily follows that Mr. Gates had care and control of his truck at about 22:15 hours, and that his ability to drive was impaired by alcohol at that time. I convict him on count #1 [ 23 ] Because the rest of Mr.

Gates’ evidence is a transparent falsehood, his assertion that he blew as hard as he could into the breathalyzer does not raise in my mind any doubt of the proposition that he wilfully failed to provide a breath sample. I convict him on count #2. October 28, 2013 ____________________ T. Gouge, PCJ