Her Majesty the Queen - v. -, 2011 SKPC 77

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 077 Date: June 17, 2011 Information: 24380608 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - David Earl Whitehawk Appearing: Mr. A. Wyatt For the Crown Mr. T. Campbell For the Accused JUDGMENT R. GREEN , J I. OVERVIEW [ 1 ] Mr. Whitehawk is charged with having the care or control of a motor vehicle while impaired by alcohol, contrary to s. 253(1) (

a) of the Criminal Code and with failing to comply with a demand for a breath test, made under s. 254(3) and contrary to s. 254(5) of the Code . The events leading to these charges occurred at the Cote First Nation in the early morning hours of October 30, 2010.

[ 2 ] Cst. Mackinnon and Cst. Smith, of the Kamsack RCMP, were patrolling through the Cote First Nation not long before 2:30 a.m. on this date. While on the so-called Badgerville access road, a van passed the officers at a high rate of speed. Cst. Mackinnon turned his police vehicle around and pursued the van, which turned from the access road onto Highway #8.

After engaging their emergency lights, both officers observed the van pull over onto the shoulder and stopped suddenly, as though the driver had, to use the vernacular, slammed on the brakes. [ 3 ] Both officers quickly walked to the van, and noted some movement in the van, but could not see the faces of any of the individuals in the middle and back part of the vehicle, given the rear tinted windows in the van. The officers found Mr. Whitehawk in the driver’s seat of the van, with no one in the front passenger seat.

The keys were in the ignition, the lights were on and the engine of the vehicle was running. [ 4 ] Based on observations he made of Mr. Whitehawk, and a short conversation with him, Cst. Mackinnon arrested Mr. Whitehawk for the offence of impaired operation of a motor vehicle. Mr. Whitehawk then protested that he was not driving, and the officer re-arrested him for having the care or control of a motor vehicle while impaired. Cst. Mackinnon placed Mr. Whitehawk into his police vehicle, and returned toward the van. Before he reached the van, he heard Mr.

Whitehawk scream over and over, from the back seat of the police vehicle, that he was not the driver. He could hear Mr. Whitehawk’s voice clearly, despite the closed windows on the police vehicle. [ 5 ] After speaking to the others who had been in the van, and after looking into the front part of the vehicle, Cst. Mackinnon came back to Mr. Whitehawk. He then read him a standard police warning and the right to contact a lawyer (at 2:31 a.m.) and read him a demand for a breath sample under s. 254(3) of the Code (at 2:34 a.m.). [ 6 ] Back at the detachment, at 2:57 a.m., Cst. Mackinnon repeatedly asked Mr.

Whitehawk if he wanted to call a lawyer. Mr. Whitehawk replied that he wanted to call his mother, with no other explanation given by him to the officer as to why. Eventually, two attempts were made by Cst. Mackinnon, a qualified breath technician, to have Mr. Whitehawk provide a suitable sample into the breath instrument. Both attempts failed, and Mr. Whitehawk was charged with failing to provide a sample. [ 7 ] A number of issues arose during the course of the trial, however, only three remain to be determined: 1. Was Mr. Whitehawk’s right to retain and instruct a lawyer without delay under s. 10(

b) of the Charter violated by Cst. Mackinnon, and, if so, should evidence of his failure to provide a breath sample be excluded pursuant to s. 24(2) of the Charter ? 2. Has the Crown proved beyond a reasonable doubt that Cst. Mackinnon made a lawful demand to Mr. Whitehawk for a sample of his breath pursuant to s. 254(3) of the Code ? 3. Has the Crown proved beyond a reasonable doubt that Mr. Whitehawk was in the care or control of this vehicle? II.

SECTION 10(

B) OF THE CHARTER [ 8 ] There is no doubt that Mr. Whitehawk was advised by Cst. Mackinnon of his right to retain and instruct a lawyer. Mr. Campbell, however, asserted that Mr. Whitehawk was not given a reasonable opportunity to exercise that right, as he was denied the opportunity to call his mother. He also asserted that nothing Mr. Whitehawk said to the officers could properly be taken as a waiver of his right to contact a lawyer. [ 9 ] At the detachment, when asked if he wanted to call a lawyer, Mr. Whitehawk responded that he wanted to speak with his mother.

When asked again he said that he only wished to speak with his mother. Cst. Mackinnon told Mr. Whitehawk that he knew his mother was not a lawyer. When asked what he would have done if Mr. Whitehawk had asked to call his mother to help him find a lawyer, Cst. Mackinnon said he would have allowed the call. The officer, however, denied any such request, despite the numerous times he asked Mr. Whitehawk whether he wanted to call a lawyer.

[10] Mr. Whitehawk said, in his own mind, he wanted to call his mother as she would know what to do. He said that Cst.Mackinnon never asked him why he wanted to call her. Mr. Whitehawk denied ever saying that he did not want to call a lawyer, butadmitted that he never told Cst. Mackinnon he wanted to contact his mother to get a hold of a lawyer. He said he had no idea why hedidn’t call a lawyer, and repeated that he wanted to call his mother to ask her what he should do.

He also admitted that, in June of 2008,he was arrested on a similar charge and that, while in police custody that time, he was leafing through a phone book and looking for thephone number of a lawyer. [11] Mr. Whitehawk’s mother, Frances Whitehawk, was called by the defence as a witness on the Charter issue. She is acounsellor at the Cote First Nation and is Chairperson of the Cote First Nation Justice Committee. She described how the committee isinvolved in liaison with the RCMP, and how, during that liaison, she has communicated to RCMP officers the lack of knowledge by theiryouth towards the law.

She said that Cst. Mackinnon had been a part of some of these meetings. She further said that she gave specificinstructions to her son to give her a call first, if he was ever in custody, and she would get him a lawyer. She admitted that she did notwant to give her son legal advice. [12] In my view the facts of this case are similar to those in Chowen v. R. (1985), 36 M.V.R. 95 (B.C.S.C.), a case cited by theCrown. In Chowen, an 18 year old accused requested permission to speak to his father.

Although he wanted to speak to his father to gethis help in contacting a lawyer, that purpose was never communicated to the police officer. The Court held that the request wasunambiguous, and that there was nothing in the request that should have caused the officer to infer it was related to obtaining legaladvice. As a result, Mr. Chowen’s s. 10(

b) rights were not violated. [13] This case is also similar to R. v. O’Flanagan, 2009 SKPC 14, where a 19 year old in custody initially asked to speak to hisfather about the vehicle registration. While there was conflicting evidence about whether he further asked to speak to his father aftergiven the right to contact a lawyer, I was not satisfied that such a request, if it occurred, was connected to obtaining legal advice. As aresult, no breach of s. 10(

b) was found. [14] Here, I am not satisfied on a balance of probabilities that Mr. Whitehawk ever communicated to the officer, expressly or byimplication, that his request to call his mother was connected to obtaining a lawyer for him. In Mr. Whitehawk’s own evidence, he didnot suggest this was the reason for calling her. Nor am I satisfied on the evidence that Cst. Mackinnon knew, or should have known thatthe request was in some way connected to helping Mr. Whitehawk find a lawyer. As a result, I am not satisfied that the refusal of Mr.Whitehawk’s request to call his mother constituted a violation of Mr. Whitehawk’s rights under s. 10(

b) of the Charter. Nor am Isatisfied that the issue of waiver arises in this case, as Mr. Whitehawk did not ever indicate that he wished to speak to a lawyer. As aresult, the application under s. 24(2) of the Charter is dismissed. III. PROOF OF A LAWFUL DEMAND [15] Section 254(3) of the Code provides that a police officer may demand a breath sample from a person whom he believes, onreasonable grounds, is committing or has committed within the previous three hours an offence under s. 253. Therefore, at 2:34 a.m.with Mr. Whitehawk in the back of his police vehicle, did Cst.

Mackinnon have reasonable grounds to believe that Mr. Whitehawk hadcommitted an offence under s. 253 within the previous three hours? [16] The current wording of this subsection refers to “reasonable grounds”, which replaces a previous reference to “reasonable andprobable grounds”. I am satisfied that the standard to be applied to the current wording is the same as was applied to the previouswording (see R. v. Shepherd, 2009 SCC 35 , [2009] 2 S.C.R. 527 (S.C.C.) at paragraphs 13 and 16). In assessing the meaning ofreasonable and probable grounds, the Supreme Court of Canada in R. v.

Bernshaw (1995), (SCC), 95 C.C.C. (3d) 193stated at page 216: ...existence of reasonable and probable grounds entails both an objective and a subjective component. That is, s. 254(3) of the CriminalCode requires that the police officer subjectively has an honest belief that the suspect has committed the offence and, objectively, theremust exist reasonable grounds for this belief... [17] Cst. Mackinnon said he saw the van go by him at a high rate of speed, and then, after he pursued the vehicle with hisemergency lights on, the vehicle stopped quickly after it angled off the main highway and onto the shoulder.

He said the front-end of the

vehicle pointed down indicating that the brakes had been applied heavily. He said, as he walked up to the driver’s side of the van, that,although he could not see who was moving around in the van, he heard the words “get into the fucking passenger seat, David”. He thenfound David Whitehawk in the driver’s seat, with the seat belt around his left arm. He noted that the front passenger seat was empty andthat the seat belt assembly was retracting on that side, suggesting someone had just left the passenger seat. [18] Cst. Mackinnon described Mr.

Whitehawk’s movements as slow and deliberate, and could smell alcohol coming from him. He said Mr. Whitehawk’s eyes were glassy and he swayed back and forth. Upon asking him if he had been drinking, Mr. Whitehawktold him that he had not been drinking. He then arrested Mr. Whitehawk for driving while impaired, and Mr. Whitehawk immediatelyprotested that he had not been driving. At that point, Cst. Mackinnon re-arrested him for being under the care or control of a motorvehicle while impaired. [19] After lodging Mr. Whitehawk in the police vehicle, Cst.

Mackinnon started to walk back to the van and said that Mr.Whitehawk immediately started screaming at him at a level that could be heard through the closed door. He returned and Mr.Whitehawk remained animated and agitated saying he had not been driving. Cst. Mackinnon then returned to the van to speak to theother occupants, and said, when he looked into the front part of the van, he noted a can of beer in the front cup holder. [20] In R. v. Hopkie, (SK KB), [1994] S.J. No. 545 (Sask.

Q.B.), in considering whether or not objectivegrounds existed for a breath demand, Chief Justice MacPherson stated: Neither the smell of alcohol nor redness of eyes, together or by themselves, can indicate impairment in the ability to operate a vehicle. But in combination with a staggering walk, slurring of speech, knowledge of erratic driving, inability to reasonably answer questions, orperhaps any of these things, could give rise to a belief of impairment on reasonable and probable grounds. ... [par. 16] [21] Here, there was more than glassy eyes and the smell of alcohol upon which the officer based his demand.

I accept that Cst.Mackinnon could reasonably have believed that Mr. Whitehawk was driving the van, given the voice he heard, when approaching thevehicle, telling Mr. Whitehawk to get into the passenger seat and given that he found Mr. Whitehawk in the driver’s seat. Therefore, theofficer could properly have considered the nature of the driving - with the van travelling at a high rate of speed and the driver slammingon the brakes - whether or not he charged Mr.

Whitehawk with operating, or care or control, while impaired. [22] In addition to the nature of the driving and his observation of the smell of alcohol from Mr. Whitehawk and his glassy eyes,Cst. Mackinnon, prior to giving the breath demand, had: 1) been lied to by Mr. Whitehawk, who claimed he had not been drinking, whenhe obviously had been; 2) observed Mr. Whitehawk’s movements as slow and deliberate and that he was swaying back and forth; 3)heard Mr.

Whitehawk screaming at him from the police car in a way I am satisfied showed erratic behaviour on the part of Mr.Whitehawk; and 4) found a can of beer in a front cup holder in the van. [23] Taken together, applying the standard from Hopkie, I am satisfied beyond a reasonable doubt that this officer had an honestbelief that Mr. Whitehawk had committed an offence under s. 253 within the previous three hours, and that this belief was reasonable. [24] Regarding count two, I need not consider whether Mr.

Whitehawk had a reasonable excuse for his failure to provide a breathsample, as there was no evidence to support such a defence, nor was this argued by Mr. Campbell. IV. PROOF OF CARE OR CONTROL [25] I am satisfied beyond a reasonable doubt that Mr. Whitehawk’s ability to operate a motor vehicle was impaired by alcohol atthe point the officers found him in the driver’s seat of this van. Cst. Smith described Mr. Whitehawk as highly intoxicated, and said thathe was unable to wake him up back at the detachment to release him. Cst. Mackinnon, who dealt with Mr.

Whitehawk both at the sceneand at the detachment, described him as highly intoxicated. Cst. George, who attended to the scene to assist the other officers, said helater dealt with Mr. Whitehawk at the detachment and found him to be so intoxicated that he was unable to fingerprint him. In his ownevidence, Mr. Whitehawk admitted that he was very drunk, to the point of not being, in his words, “in control”.

[26] But was Mr. Whitehawk in the care or control of this vehicle when approached by the police? The mens rea, or mentalelement, of care or control is the act of voluntarily becoming intoxicated (as per McLachlin J. - as she then was - in R. v. Penno, (SCC), [1990] 2 S.C.R. 865 at p. 904).

The actus reus, or physical element, of care or control is comprised of acts, short ofdriving, which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle, whichwould involve a risk of putting the vehicle in motion so that it could become dangerous (as stated by McIntyre J. in R. v. Toews, (SCC), [1985] 2 S.C.R. 119 at paragraph 10). [27] Care or control can be proved in two ways, either through application of the presumption in s. 258(1)(

a) of the Code or, if thepresumption is rebutted or not relied on by the Crown, by proof beyond a reasonable doubt of the mens rea and actus reus of care orcontrol. Section 258(1)(

a) provides where an accused occupies the driver’s seat of his vehicle, he shall be deemed to have the care orcontrol of his vehicle unless he establishes that he did not occupy that seat for the purpose of setting the vehicle in motion. In this casethe Crown relies on this presumption. Therefore, based on the evidence at this trial, does the presumption apply? [28] Mr. Whitehawk said he was sleeping in the passenger seat at the time the van, driven by Lavonne Quewezance, was pulledover by the police. He recalled everyone in the van yelling at him to get into the driver’s side.

He said he jumped into the driver’s seatbecause the others were yelling at him, and he went over without thinking. He was confused as he had just woken up. He said his feetwere not down around the pedals, but rather more towards the middle of the front compartment. He used the column, upon which theseat belt attaches, to pull himself up into the seat. He denied driving this van at any time that day, and said he had no intention to drive. [29] Mr. Whitehawk admitted that he was very drunk this evening, to the point where he was not acting as usual and was not undercontrol.

When asked, because of his high level of intoxication, whether he would have driven away, he denied this. Then, when askedwhether he would drive himself home, he said he would “most likely” stay there, and that he knew he wouldn’t have driven. He did notknow how the seat belt got around his left arm, and said it was possible he could have touched something in the front area of the vehiclewhen he scrambled over from the passenger seat to the driver’s seat. He, however, denied touching the steering wheel. Mr.

Whitehawksaid he didn’t know what he was doing and admitted that, in his confused state, it was possible he would have put the van into motion ifhe had been told to do so by those yelling at him. [30] All of the other people who had been in the van - Lavonne Quewezance, Sheyanne Pelly, Kiana Pelly and Albert MacKay -testified, in one fashion or another, that Mr. Whitehawk was in the passenger seat at the time the police stopped the vehicle, and thatLavonne Quewezance, whose father owned the vehicle, was driving. Each as well testified that Ms.

Quewezance jumped out of thedriver’s seat, that the group of them yelled at Mr. Whitehawk to get into the driver’s seat, and that he then moved over. While each ofthese other individuals was under the influence of alcohol at the time, and while these individuals disagreed on some parts of theevidence which occurred earlier in the evening, I am satisfied, and accept, that Ms. Quewezance was driving at the point this vehiclepassed by the police, and that Mr. Whitehawk moved into the driver’s seat after the vehicle stopped. [31] In this case, I am not satisfied that Mr.

Whitehawk knew why he entered the driver’s seat. He said he did so because theothers were yelling at him, but admitted that he was in a confused state, not in control, and that he didn’t know what was going on whenhe woke up.

Given his admission that, in this confused state it is possible he would have put the car into motion if he had been told to doso by those yelling, I am not satisfied on a balance of probabilities that he did not occupy the driver’s seat for the purpose of setting thevehicle in motion. [32] If the presumption had been rebutted, which is not the case here, the Crown could still have proved that Mr. Whitehawk wasin de facto care or control. Further to the Toews case, the New Brunswick Court of Appeal, in R. v. Mallery (2008), 2008 NBCA 18, 231 C.C.C. (3d) 203, provided an excellent

summary of what is required to prove de facto care or control. In care or control cases, the ultimate task of the trial judge is to decide whether the Crown has met the burden of establishing beyond areasonable doubt that the accused's interaction with his or her vehicle presented a danger or, as it is sometimes phrased, a "risk of danger"or a "risk to public safety".

If the facts establish beyond a reasonable doubt a risk of the accused putting the vehicle in motion, eitherintentionally or unintentionally, or if the facts otherwise support a finding of danger (such as from parking one's car in the middle of apublic thoroughfare), then care or control will have been established. (paragraph 52) [33] In this case, Mr. Whitehawk admitted that he was highly intoxicated, and not in control, and that he stumbled across to get

into the driver’s seat after the others in the vehicle yelled at him. While I am not able to reject his evidence that his feet were not down by the pedals at the time Cst. Mackinnon spoke to him, I am nevertheless satisfied that there was a risk of Mr. Whitehawk putting the vehicle in motion, given his admission, as noted above, that it was possible he would have put the car into motion if he had been told to do so. Given the lack of control he had over himself at that point, I find that the risk was obvious. V.

CONCLUSION [ 34 ] As I am satisfied beyond a reasonable doubt that, when found in the driver’s seat by Cst. Mackinnon, Mr. Whitehawk was in care or control of this vehicle and, further, that his ability to operate this vehicle was impaired by alcohol, he is found guilty on count one. Although I am satisfied beyond a reasonable doubt that Mr.

Whitehawk failed without a reasonable excuse to comply with a lawful demand, pursuant to s. 254(3) of the Code , I direct a conditional stay on count two, which will become absolute upon no appeal being taken to the impaired driving conviction or, if taken, upon that appeal being dismissed. ____________________ R. Green, J