R. v. Strykowsky, 2019 MBPC 24

Citation: R. v. Strykowsky , 2019 MBPC 24 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) A. Slough ) for the Crown ) and ) ) ) STRYKOWSKY, Jeffrey ) B. Gladstone ) for the Accused ) ) ) ) Reasons for Decision delivered: ) April 10, 2019 C.A. DEVINE, P.J. [ 1 ] Mr. Strykowsky is charged with having care and control of a motor vehicle while his ability to do so was impaired by alcohol, and while his blood alcohol level was above the legal limit of .08. [ 2 ] The sole issue in this trial is whether Mr. Strykowsky had care and control of the vehicle at the time he was impaired.

He concedes his ability to drive was impaired by alcohol and that his blood alcohol readings of 170% were accurate. [ 3 ] The Crown called two witnesses, those being the two police officers who were dispatched to Mr. Strykowsky in his vehicle, and who filed the certificate of the authorized breath technician. Mr. Strykowsky testified in his own defence. Because of that, an analysis of the credibility and reliability of the witnesses’ evidence is required.

EVIDENCE OF THE POLICE [ 4 ] At approximately 8:15 p.m. on April 26, 2018 the Selkirk RCMP detachment received a call about a suspicious vehicle parked on a side road in the RM of St. Clements. The caller said there was a person slumped over in the vehicle. Cst. Pitman and Cst. Beech responded to the dispatch, arriving on scene at 8:55 p.m. [ 5 ] Cst. Pitman described the road as a narrow dirt road. There is no shoulder. Vehicles can meet and pass each other, but carefully. The truck was pulled over as far as it could safely be, the passenger side tilted towards the ditch.

It did not represent an obstruction or risk to other vehicles. [ 6 ] The vehicle was a 1984 Ford one ton truck. It was unregistered. [ 7 ] As they walked towards the vehicle, Cst. Pitman testified that he could see the person, who was in the driver’s seat, start to move his head around a bit. [ 8 ] When the officers got to the vehicle, Mr. Strykowsky opened the door. He identified himself. He did not have a driver’s licence. There was a case of beer in the vehicle, with one empty can on the seat beside him. There were three full cans of beer left in the case.

The officers could not recall if it was a case of 12 or 15. There was an empty can of a different brand of beer under the case. [ 9 ] The officers noticed the odor of alcohol on Mr. Strykowsky’s breath, slurring, and as he walked outside the vehicle, some staggering or swaying back and forth. According to Cst. Beech, he almost fell one time.

[ 10 ] Cst. Pitman arrested Mr. Strykowsky for impaired care and control and placed him in the police car. [ 11 ] Cst. Pitman got the keys for the truck from Mr. Strykowsky. When he went back to the truck he noticed that a key was already in the ignition. He could not remove the key. Cst. Beech also tried to remove the key from the ignition and could not. [ 12 ] Cst. Pitman returned to the police car and formally arrested Mr. Strykowsky, provided his rights and the police warning and made the breath demand. When Cst. Pitman made the breath demand, at 9:12 p.m., Mr. Strykowsky stated, “I know I’m drunk.

You know I’m drunk. Why are we here?” [ 13 ] The police did not start the vehicle. It was not started until the tow-truck driver came and started it at 9:35 p.m. It made a very loud sound when it started. [ 14 ] The officers took Mr. Strykowsky to the Selkirk detachment. While there, they offered him legal counsel again, which he again declined. The observation period and taking of the breath samples were all conducted without incident and at 10:30 and 10:51 p.m., Mr. Strykowsky provided two breath samples of 170%. [ 15 ] Mr.

Strykowsky told the officers he drank 12 cans of Labatt’s Extra Dry beer and finished his last drink between 2:00 and 3:00 p.m. Cst. Beech asked him how long his nap was, he said he probably fell asleep about 7:00 p.m. When Cst. Beech asked him, “Why are you here”, he answered “I am drunk.” After the first breath sample, he said to Cst. Beech, “I’m impaired, right Kyle?” When Cst. Beech was explaining his role as a breath technician, Mr. Strykowsky said, “You know I’m drunk.” [ 16 ] After the first sample Mr.

Strykowsky stated, “The only thing I did wrong was drink, sleep, keys in the ignition – I shoulda put them in my shoe.” [ 17 ] Both officers testified that Mr. Strykowsky’s level of impairment seemed to stay the same throughout their interaction with him. After providing the samples, he was told he could get someone to come and pick him up. He told them he did not want to bother anyone. He did speak with a lawyer at that point and after that call decided he would call someone to pick him up. He was not able to reach anyone to pick him up, so he stayed in the police cells until the next morning.

He was cooperative and polite throughout. EVIDENCE OF MR. STRYKOWSKY [ 18 ] Mr. Strykowsky testified that he got in an argument that day with a friend who was staying at his house. He became very upset and drove off in his truck, bought a case of beer and was headed to another friend’s, about 20 to 30 minutes away, when the old one ton truck overheated. [ 19 ] Mr. Strykowsky knows a lot about vehicles. He has worked on this truck and had been a truck driver and tow-truck driver for many years.

He explained that this truck overheats and when it does it “makes a racket” and has to be shut off and let cool for anywhere between two and six hours. [ 20 ] He was about 10 minutes away from his friend’s place in the country when the truck overheated. He pulled over to the side of the dirt road and decided to “crack open the case” of beer. He put the vehicle in neutral, turned off the ignition, put on the emergency brake and waited for the truck to cool down. He had just installed the emergency brake.

He testified that he was confident that the vehicle cannot move when the emergency brake is engaged. [ 21 ] He decided not to call his friend because she does not drive – she would have to wait until a third friend got off work. He also testified that he did not call her because he was still upset about the earlier argument with his other friend. He decided to cool off and drink beer. [ 22 ] Mr. Strykowsky testified that “one led to another” and eventually he passed out. [ 23 ] But not before he went to relieve himself in the woods.

While doing that, he gathered up the beer cans in a Safeway bag and threw it in the woods. That is why there was only one empty can in the truck when the police arrived. [ 24 ] Mr. Strykowsky gave two explanations for leaving the keys in the ignition of the truck. He initially testified that he forgot to take the keys out of the ignition and then testified that the vehicle could not start without steps being taken. When cross-examined on the inconsistency, he stated that he forgot to take the keys out of the ignition. [ 25 ] Mr.

Strykowsky testified that there are eight steps involved in getting the vehicle to drive: 1) push the key in; 2) turn the key; 3) reach down under the dash on the right, push in the large button and hold for three seconds; 4) push the clutch all the way down; 5) turn the key all the way; 6) let the vehicle warm up; 7) release the emergency brake, tucked in below the dash, on the left; and 8) clutch again, put it in gear.

[ 26 ] Mr. Strykowsky testified that the vehicle could not be put in motion by accident. [ 27 ] Mr. Strykowsky testified that he had no intention to drive that night after he made the decision to drink in the truck. He testified that he would “sleep it off.” He testified at length about knowing that he needs six to eight hours of sleep after drinking half that amount of beer, so he expected he would need eight to 10 hours to sleep off 12 beer, he expected until morning.

He testified that he would never drive when feeling the effects of alcohol; if he still feels the effects of alcohol from the night before, he sleeps a little longer. [ 28 ] Mr. Strykowsky testified that he was a tow-truck driver for many years and still owns a tow-truck – he had seen too many motor vehicle accidents as a result of impaired driving. That is why he would never drive while impaired. [ 29 ] He testified that even at his place when friends are over, he puts their keys in their shoes, “Out of sight; out of mind” he testified, explaining that keeping the keys in a shoe removes the temptation.

But he denied he would have that temptation, even though he told the police he should have put the keys in his shoe. [ 30 ] He testified that he “had a few too many” but did not think he was as intoxicated as the police believed him to be. He testified that he was not swaying or staggering as a result of intoxication. In 2015 he had surgery on his leg as a result of vascular disease – he has no sensation in the leg from just above the knee to his toes, which is why his gait is awkward. I was able to observe this awkward movement in court during the trial as Mr.

Strykowsky took the stand and then returned to his seat. ISSUE [ 31 ] The only issue is whether Mr. Strykowsky had care and control of the vehicle at the time the police found him. THE LAW OF CARE OR CONTROL [ 32 ] Section 253(1) of the Criminal Code makes it an offence to operate or have care or control of a motor vehicle while the person’s ability to operate the vehicle is impaired by alcohol or a drug. [ 33 ] Justice Fish for the Supreme Court of Canada majority in R. v.

Boudreault , 2012 SCC 56 set out the elements of care or control as follows: In this light, I think it helpful to set out once again the essential elements of "care or control" under s. 253(1) of the Criminal Code in this way: (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 of danger to persons or property. [ 34 ] The Crown must prove beyond a reasonable doubt that the driver engaged in an intentional course of conduct associated with a motor vehicle and that the person’s ability to drive was impaired in circumstances that create a realistic risk of danger to persons or property. [ 35 ] The “realistic” risk of danger is a fairly low standard in keeping with Parliament’s desire to curb impaired driving.

Justice Fish explained that a “realistic” risk rises above a risk that is simply “theoretically possible,” but is not so stringent as to require the Crown to prove that the risk is “probable,” “serious” or “substantial.” ( Boudreault at paras. 34 – 35 ) [ 36 ] Section 258(1) (

a) of the Criminal Code provides that where a person is found in the driver’s seat of a vehicle, they are presumed to have care and control of the vehicle, unless they establish that they were not in the driver’s seat for the purpose of setting the vehicle in motion. The standard of proof for rebutting the presumption is on a balance of probabilities. [ 37 ] Rebutting the presumption does not end the matter however. The Boudreault case clarified that proving the accused intended to drive is not an element of the offence of “care and control” in section 253(1) .

The case also explained that because creating a realistic risk of danger is an element of “care and control”, an accused who rebuts the presumption that they did not intend to drive may nonetheless be convicted of having care or control of a motor vehicle.

There are three other ways in which a “realistic risk” could be created by the inebriated person in the driver’s seat: 1) they could change their mind and proceed to drive; 2) they could unintentionally set the vehicle in motion; or 3) the vehicle, however stationary or inoperable, may endanger persons or property, for example, a vehicle stopped in the middle of a highway. (At para. 42) [ 38 ] The presumption is a presumption, because an inebriated person found in the driver’s seat of a motor vehicle should usually be found guilty of the offence in

section 253. As Justice Fish stated in Boudreault at paragraphs 45, 48 and 49 : As I mentioned at the outset, anyone found inebriated and behind the wheel with a present ability to drive will — and should — almost invariably be convicted. It hardly follows, however, that a conviction in these circumstances is, or should be, "automatic". A conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case. I need hardly reiterate that "realistic risk" is a low threshold and, in the absence of evidence to the contrary, will normally be the only

reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. . . .

"The law ... is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle" (p. 877). (Emphasis added) [ 39 ] The realistic risk of harm is a finding of fact. ( Boudreault at para. 50 ) The Court will take into account a number of factors to determine if there was a realistic risk of danger in the circumstances of the case. Justice Fish listed several factors in Boudreault that may lead a trial judge to conclude that a risk of harm exists.

A lengthier, but notably non-exhaustive list was adopted by the Ontario Court of Appeal in R. v. Smits , 2012 ONCA 524 at para. 63 : (

a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive; (

b) Whether the keys were in the ignition or readily available to be placed in the ignition; (

c) Whether the vehicle was running; (

d) The location of the vehicle; (

e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination; (

f) The accused’s disposition and attitude; (

g) Whether the accused drove the vehicle to the location where it was found; (

h) Whether the accused started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes other than driving; (

i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit; (

j) Whether the accused had a stated intention to resume driving; (

k) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption; (

l) Whether the accused was wearing his or her seatbelt; (

m) Whether the accused failed to take advantage of alternate means of leaving the scene; (

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. [ 40 ] In Boudreault , the accused established that he had “an alternate plan” to get home, other than driving. He had been at a friend’s house and had too much to drink to drive, or to stay. He and the friend both testified that they called a ride service for people who had been drinking called “Taxic.” The friend asked the accused to leave her apartment while he waited for the cab. He went to his truck outside, started it and turned on the heat, since it was an extremely cold, winter day, and fell asleep.

When the cab driver arrived he called the police rather than the accused. The trial judge was convinced that in the particular circumstances of the case, including the existence of an “alternate plan,” there was no realistic risk of harm caused by the accused being in the driver’s seat of the vehicle and he was acquitted of the charge. ANALYSIS OF THE EVIDENCE AND THE FACTORS IN THIS CASE [ 41 ] In this case, I am satisfied by the evidence in the trial that Mr. Strykowsky was safely parked at the side of the dirt road, such that his stationary vehicle did not present a risk.

I am also satisfied that the truck could not have been put in motion unintentionally. The only two ways in which Mr. Strykowsky could create a “realistic risk” of danger would be by intending to drive at some point, or by changing his mind and driving. [ 42 ] In this case, the police officers’ evidence was straightforward, credible, and reliable. Their evidence was not put in issue by the defence. The case largely turns on the credibility and reliability of the evidence of Mr.

Strykowsky on the issue of whether his position in the driver’s seat of the vehicle while impaired posed a “realistic risk” of causing danger to persons or property, specifically whether he intended to drive at some point, or could have changed his mind and driven at some point. [ 43 ] A witness’ evidence must be considered in terms of its inherent reliability and the likelihood that the events happened as he or she said they did. A judge can believe all of the evidence, some of the evidence or none of the evidence of any particular witness. [ 44 ] Mr. Strykowsky’s evidence was replete with inconsistencies.

Some of his evidence was implausible. He started his testimony by stating that he remembers that day and several times he testified that he was not really that intoxicated. At the same time, he testified that he would usually drink six to seven beer. On this occasion he drank 12 beer in under four hours. He also testified he had nothing to eat that day. The police noted several signs of intoxication. His readings were more than twice the legal limit. He passed out in the vehicle. [ 45 ] I believe that Mr. Strykowsky was more intoxicated than he was prepared to admit.

[ 46 ] I do not accept that Mr. Strykowsky had a “plan” to drink in the vehicle, sleep in the vehicle and in the morning drive somewhere. It is contrary to the sequence of events that day, which were: he became embroiled in a serious dispute with a friend and was so upset that he left his home, went to buy beer and was headed to a friend’s to drink that beer and presumably, to vent. But on the way to the friend’s his truck overheated. He knew the truck would need two to four hours to cool down before he could drive it again. He was 10 minutes from his friend’s house. But he did not call for a ride.

He decided to drink. He testified, inconsistently, that he still needed to cool off, so decided to stay in the truck and cool off some more before seeing her. Then he testified that she does not drive, so he would have to wait for her to call a third friend, after work, to come and get him. He then said his plan was to have a few beers and then call these friends to come and pick him up. [ 47 ] It is more plausible that Mr. Strykowsky intended to wait until it was safe to drive the truck again and continue on to his friend’s house, only 10 minutes away on a direct road.

That is why the keys remained in the ignition. And that is why he did not call his friends to pick him up. I accept that Mr. Strykowsky may not have intended to drink 12 beer and then drive to his friend’s house. But, he perhaps thought he would have a couple. In his own words, “One led to another….” [ 48 ] I expect that the plan over time became as blurry as Mr. Strykowsky’s sobriety, as he continued to drink, eventually to the point of passing out. [ 49 ] His comments to the police that he should have put the keys in his shoe did not assist him.

He testified that when people come to his house and drink too much he hides their keys in their shoes, so they are not tempted to drive, “Outta sight, outta mind” in his words. He said he should have done that. He agreed on cross-examination that if the keys are not in the ignition, temptation is removed. Later, he tried to convince the Court that he would have no temptation to drive with the keys in the ignition. [ 50 ] He testified that he “forgot” to take the keys out of the ignition. I do not believe that is the case.

This is a man who otherwise planned quite well: he pulled over on the road in such a way as to not cause a danger, he went to great lengths to explain the steps required to put the vehicle in motion, he put the emergency brake on. If he knew he was going to have a few beer and not drive, in light of his other behaviour, it is not plausible that he forgot to take the keys out of the ignition. [ 51 ] He had no explanation for not getting in the passenger seat to nap. [ 52 ] He did not ever call his friend to pick him up. [ 53 ] Although Mr.

Strykowsky testified that he would never drive when intoxicated because he has seen too many accidents caused by drinking and driving when he was a tow-truck driver, I would have to characterize this as wishful thinking rather than an accurate reflection of what was going on in his mind that night. [ 54 ] In

summary, I do not believe Mr. Strykowsky that he did not intend to drive again that night, nor that he might change his mind. Nor does his evidence in that regard raise a reasonable doubt. CONCLUSION [ 55 ] Having regard to the factors set out in Smits , I find the following:

a) Mr. Strykowsky was quite inebriated and his judgement was affected by the alcohol he consumed to the extent that any initial intention he might have had not to drive, and the deterrent effect of seeing carnage on the road as a tow-truck driver, were no longer operating constraints after 12 beer.

b) The keys were in the ignition.

c) The vehicle would be drivable in two to six hours after it cooled down.

d) His friend’s house was only 10 minutes away.

e) He was on his way to his friend’s house.

f) He was waiting for the vehicle to cool off until it was fit to drive again and while waiting he started drinking beer.

g) He did not call his friends at any point to come and pick him up. DECISION [ 56 ] In these circumstances, I am satisfied beyond a reasonable doubt that there was a realistic risk that Mr. Strykowsky would drive the vehicle once it had cooled down sufficiently to drive. All the other elements of the offence having been proved by the Crown, Mr. Strykowsky is convicted of having care and control of a vehicle while his ability to do so was impaired by alcohol, and care and control of a vehicle while his blood alcohol level was above the legal limit of .08. “Original signed by:” C.A. DEVINE, P.J.