Her Majesty the Queen - v. -, 2016 SKPC 46

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 046 Date: April 4, 2016 Information: 24507485 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Matthew Fiegal Appearing: Andrew Wyatt For the Crown Thomas Campbell For the Accused JUDGMENT R. GREEN, J I. INTRODUCTION [ 1 ] Matthew Fiegal is charged with having the care or control of a vehicle while his ability to operate that vehicle was impaired by alcohol or a drug and while he was over the legal limit of .08.

The only issue to be determined, based on the submissions of counsel, is whether there is proof beyond a reasonable doubt that Mr. Fiegal was in the care or control of his vehicle at Springside on November 11, 2015.

[ 2 ] The Crown called two witnesses: Aaron Hoffman and Cst. Lafferty. The evidence of Mr. Fiegal’s common law Brittany Siedler was submitted in written form, with consent of the defence. Mr. Fiegal testified in his own defence. II. BACKGROUND [ 3 ] Mr. Hoffman was returning to Springside this day, and drove by a farm field of his. There, he saw someone, who turned out to be Mr. Fiegal, doing so-called “donuts” in the field. He went over to Mr. Fiegal’s vehicle to get his license number, but Mr. Fiegal drove away. Mr. Fiegal soon returned, and there was a discussion in which Mr. Fiegal asked Mr.

Hoffman if he wanted to fight and Mr. Hoffman said no. [ 4 ] During his conversation with Mr. Fiegal, Mr. Fiegal didn’t seem normal to Mr. Hoffman and seemed to be under the influence of something , although he did not get really close to Mr. Fiegal and did not know him or smell any alcohol on him. Mr. Hoffman then returned to his home in Springside, and called the police. While he was phoning, he said Mr. Fiegal was “ripping” up and down his back alley at excessive speeds. [ 5 ] Cst. Lafferty received a call at 7:45 p.m. this day from Mr.

Hoffman in Springside, about a red Toyota Tacoma doing donuts in a field near the town. As a result, he drove to Springside. At 8:15 p.m., he saw a vehicle matching that described in the complaint, not running and parked in the driveway of 122 Willis Avenue. He went to this residence, which turned out to be Mr. Fiegal’s, and talked to him. In his opinion, Mr. Fiegal showed signs of impairment by alcohol, and he admitted to doing donuts in the field. He could not give the officer any details about how much he had drank or when he had drank it. The officer told Mr.

Fiegal that he believed he was intoxicated, and would probably “be getting away with one”, but that he should not drive. Mr. Fiegal seemed defiant to him. Given all the circumstances, the officer decided not to commence an investigation at that time. [ 6 ] After he left Mr. Fiegal’s residence, Cst. Lafferty drove to nearby Patrick Street in Springside to investigate an unrelated complaint, which took, in total, about fifteen minutes. He said Patrick Street is not in the line of sight from Mr. Fiegal’s residence. [ 7 ] Cst. Lafferty then came back down Patrick Street to Taylor Avenue.

He could see headlights a couple of hundred feet away in the area of Mr. Fiegal’s residence, from a vehicle that was parked, but he could not see which vehicle it was. As a result, he drove up and saw that Mr. Fiegal’s vehicle had the lights on. The vehicle had not moved from its original location. [ 8 ] At 8:43 p.m., Cst. Lafferty parked 12 to 15 feet in front of that vehicle. He said Mr. Fiegal was in the vehicle, behind the steering wheel, with the driver door open and the headlights on. Mr. Fiegal flicked the headlights at him. He could not see where Mr. Fiegal’s legs or feet were, and he and Mr.

Fiegal got out of the vehicles quickly, at about the same time. Cst. Lafferty placed him under arrest. Mr. Fiegal had the keys in his hands, was wearing pants and a t-shirt without a jacket, and had bare feet without any shoes. The temperature was a couple of degrees below zero and it had snowed with fresh snow on the ground. [ 9 ] Cst. Lafferty was not sure whether the vehicle was running when he pulled up. It was not running when he arrested Mr. Fiegal. The officer read the breath demand twice to Mr. Fiegal, who was being difficult and uncooperative with him.

He then read him his rights to counsel and the police warning again. Mr. Fiegal called the officer names and continued to berate him at times, and then would become apologetic. [ 10 ] Cst. Lafferty drove Mr. Fiegal back to the RCMP detachment in Yorkton, where he provided suitable samples of his breath of 120 milligrams % and 110 milligrams % at 10:06 p.m. and 10:28 p.m. He believed Mr. Fiegal to be intoxicated when he arrested him. On a scale of one to ten - with one being low level of impairment and ten being a very high level of impairment - he rated him to be between six and seven.

He said he smelled an odour of liquor on Mr. Fiegal’s breath and he had red watery eyes, but there was no noticeable difficulty in his walking or motor skills. The officer dealt with Mr. Fiegal some time later, and found him to be a pleasant young man who treated him well. [ 11 ] While at the detachment, at 9:45 p.m., Mr. Fiegal said to the officer that he was taunting the officer to come and get him in

the truck. At 10:01 p.m., he said to the officer that he started his truck to check the oil and listen to music. After the breath samples were completed, Mr. Fiegal provided a warned statement to the officer which was tendered as Exhibit P-3, with a transcript of the statement as Exhibit P-4. [ 12 ] Mr. Fiegal is 25 years of age, is 6' 2" in height, and has no criminal record. On this day he was residing with Brittany Seidler and got into an argument with her around noon hour. He said that the two were swearing at each other and throwing stuff back and forth.

His common-law smashed the television and he ripped up paper. He got mad and left to go to Yorkton, to buy a new television and to see his mother. After he purchased the television, he went to his mother’s residence where he had one beer. [ 13 ] Around 5:00 p.m., Mr. Fiegal returned to Springside. Brittany was at the house, and they started arguing again with more yelling and screaming. His common-law left the house and he went out driving down Highway 47 towards Good Spirit Lake. He saw an open field, which was Mr. Hoffman’s field, and drove in and did donuts and shot mud up. [ 14 ] Mr.

Hoffman then came up and asked him what he was doing. He responded “what’s the big deal, I’m just in a slough”? He did not know that Mr. Hoffman owned the field, and admitted that he asked Mr. Hoffman to fight and that he [Mr. Fiegal] was acting like an idiot. [ 15 ] Mr. Fiegal then drove home, and passed by Mr. Hoffman’s house, but denied that he was driving erratically or speedily. Once home, he was in his words “blowing off steam” and started guzzling beer and not keeping track of how much he was drinking. He was drinking from a twelve of beer he had purchased in Yorkton.

His vehicle was backed into his driveway with the emergency brake on, he said because the driveway slopes down from the road towards the house. He said this vehicle has a standard transmission and you have to push in the clutch to make the vehicle move. [ 16 ] When Cst. Lafferty came to the door, he admitted to the officer that he had been drinking but did not give him many details on how much and when.

He said he was being a jerk to the police officer, as he was upset at both the police officer and his common-law, and was, generally in a bad mood. [ 17 ] After the police officer left, he went out to his vehicle twice. The first time, he put the keys in the ignition and turned on the lights and put the ignition to the “on” position, but did not start the engine. He turned on the lights and the music on loud, in his words to be a jerk and taunt the police officer. He said he thought he saw the officer drive by, and that is why he turned his lights on.

He then went back inside the house. [ 18 ] At some later point, he returned to the vehicle when he realized he didn’t have his cell phone and thought it was in his truck. This was about fifteen minutes after he first came out. He said he was looking for his phone and leaning into the truck when the police officer pulled up. He flashed his lights, again to be a jerk. He said he was leaning into the vehicle with his head in and his hand on the steering wheel. He took the keys out of the ignition and his head came out of the vehicle. He said he found his cell phone in his vehicle the next day. [ 19 ] Mr.

Fiegal denied having any intention to drive when he went out to the vehicle these two times. He said he had no shoes or socks on, and had nowhere to go. He was working the next day and denied ever turning the vehicle on. He didn’t tell the police officer he was looking for his cell phone as he didn’t think this would matter. [ 20 ] Mr. Fiegal said that, at the detachment, he was not telling the truth when he told Cst. Lafferty that he started his truck to check the oil and listen to music. When asked by the prosecutor why he would lie to the police officer about this, he said he was making it up.

When further asked by the prosecutor what he meant in his warned statement when he said the truck was “turned on”, he said it meant he turned the key to the on position, but maintained that he did not start the truck. [ 21 ] Mr. Fiegal admitted that alcohol doesn’t help a person’s judgment and, further, that he was not in a normal state that evening. He admitted that he can be a very angry person who does stupid things. He further admitted that he has an alcohol problem and often drinks alone.

While admitting that he was depressed and upset and taunting the police officer, he denied that he would have driven, saying he would not because it is illegal and he would get into trouble. When asked why he didn’t need shoes, he said he was going out

quickly to the truck to taunt the officer. He said the lights and music were on in the truck for fifteen minutes. [ 22 ] Mr. Fiegal admitted he was not thinking clearly and further admitted that he lied to the officer when he denied to drinking with his mother, he said because he thought he would not be released that night if he admitted that he had a beer with his mother. He admitted that he had considered running away from the police officer this evening and that his judgment was impaired. [ 23 ] Brittany Siedler ’s evidence was that on the morning of November 11, 2015, she and Mr.

Fiegal were arguing at their home in Springside. Mr. Fiegal left the home and went to his mother’s place in Yorkton. He then drove back to Springside and came back to their home. Both parties continued to argue upon his arrival. Ms. Seidler left the home at an unknown time but the sun was still out. She was concerned for Mr. Fiegal’s safety because during their argument he was threatening to hurt himself and she believed he was suicidal. III. DOES THE PRESUMPTION OF CARE OR CONTROL UNDER S. 258(1)(

a) APPLY, AND, IF SO, HAS IT BEEN REBUTTED? [ 24 ] S. 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 he establishes that he did not occupy that seat for the purpose of setting the vehicle in motion. [ 25 ] Cst. Lafferty said Mr. Fiegal was behind the steering wheel of his vehicle when the officer pulled up and saw him flick his lights, but could not see his legs or feet. Mr. Fiegal, who is 6" 2" tall and whose head would be high in the vehicle even if not sitting in it, said he was leaning into his vehicle to get his cell phone.

He admits flicking his lights at the officer, but denies that he was sitting behind the steering wheel. [ 26 ] Given the conflicting evidence on whether Mr. Fiegal was occupying the driver’s seat, I am not sure he was doing so, and thus I cannot find that Mr. Fiegal is deemed to have the care or control of the vehicle. However, if I am wrong in that regard, I am satisfied that his presence in the vehicle, to whatever extent, was not for the purposes of setting the vehicle in motion. That is because:

(1) I accept his evidence that he was looking for his cell phone in the truck;

(2) His driver door was open and he was in bare feet and wearing a t-shirt and no jacket;

(3) I accept that he was working the next day and had no intention of driving his vehicle further that evening; and

(4) I accept his testimony at the trial that he did not start the engine of his vehicle after returning home from driving in the field and beginning to drink at home, despite later telling Cst. Lafferty at the detachment that he started his vehicle to check the oil and listen to music. I view that later unrecorded statement on this point as not credible, as I accept that it was said by him in the same defiant, angry manner - in part affected by his consumption of alcohol - which he gave the subsequent recorded statement to Cst.

Lafferty (Exhibit P-3), and in which he appeared to be prepared to say virtually anything to the officer regardless of the truth. [ 27 ] As a result of the above findings, the presumption does not apply, but if I am wrong and it does, the presumption is rebutted. IV. IS THERE PROOF BEYOND A REASONABLE DOUBT THAT HE WAS IN THE CARE OR CONTROL OF HIS VEHICLE ? [ 28 ] 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] [29] There is no doubt that, in this case, the first two conditions apply to Mr. Fiegal.

The question is whether, in thesecircumstances, there was a realistic risk, as opposed to a remote possibility, of danger to persons or property [30] In assessing the issue of risk, the Supreme Court of Canada, in R v Toews, (SCC), [1985] 2 SCR 119, said theissue is whether the conduct of the person (here Mr.

Fiegal) involved some use of his vehicle or its fittings and equipment, or somecourse of conduct associated with his vehicle, which would involve a risk of putting his vehicle in motion so that it could become dangerous.[2] [31] After considering all the evidence, I am satisfied, and find, that these circumstances created a risk which most properly can bedescribed as a remote possibility, as opposed to a realistic risk, of danger to person or property. That is because:

(1) Mr. Fiegal’s vehicle had a manual transmission which required the clutch to be engaged to move the vehicle, had the emergencybrake on, and was parked in his driveway, which sloped back from the road to his house;

(2) As stated above, I am satisfied he did not start his engine after he returned home following driving in Mr. Hoffman’s field;

(3) As stated above, I am satisfied he did not intend to drive further this evening; and

(4) Lastly, while Mr. Fiegal was under the influence of alcohol when the officer dealt with him at the scene and at the detachment andwhile his anger with the alcohol may have impaired his judgment, I am nevertheless satisfied that he was not intoxicated this evening. Isay that especially considering that: (

a) his breath readings were 120 milligrams % at 10:06 p.m. and 110 milligrams % at 10:28 p.m.; (b)his speech in the recorded statement he gave to the officer, while defiant, irreverent and angry, was clear and easy to understand; and (c)while Cst. Lafferty claimed Mr. Fiegal was intoxicated, he noted no difficulty in his ability to walk or his motor skills. [32] In making the above findings, I have considered the Crown’s argument that the rule in Brown v Dunn[3] should apply in thiscase, as a factor in considering Mr. Fiegal’s credibility; because Cst. Lafferty was not cross-examined about whether he drove by Mr.

Fiegal’s house shortly before Mr. Fiegal came out a first time, as Mr. Fiegal later claimed. Justice Jackson, in R v Wapass[4], said thefollowing about the rule: As the Court explained in R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, the rule in Browne v. Dunn "requires counsel to give notice tothose witnesses whom the cross-examiner intends later to impeach" (para. 64).

Giving notice in this context means that if counsel intendsto challenge the credibility of a witness by calling contradictory evidence on matters of significance to the facts in issue, "the witnessmust be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box" (R. v. Henderson (1999), (ON CA), 134 C.C.C. (3d) 131 at 141).[5] [33] Later, Justice Jackson said the following about the applicability of the rule:

The rule in Browne v. Dunn is not absolute in the sense that once breached the accused must be disbelieved. In Lyttle , the Court stated the extent of the application of the rule is within the discretion of the trial judge, after taking into account all the circumstances of the case (see para. 65). The Court in Lyttle made it clear that the rule is designed to provide fairness to witnesses and parties and it is not "fixed" (para. 65). [6] [ 34 ] In this case, Mr. Fiegal said he thought he saw the officer drive by, as he was coming out to his vehicle the first time. Obviously, considering Cst.

Lafferty’s evidence on this, Mr. Fiegal was mistaken. I am satisfied he mistook another vehicle for the police vehicle. Given that Mr. Campbell made no attempt to impeach the credibility of Cst. Lafferty on this point, I am not satisfied any perceived breach of this rule should result in an overall rejection of Mr. Fiegal’s evidence. Nor am I satisfied that Mr.

Campbell was in any way unfair in his treatment of this officer, who very clearly stated where he drove at Springside and who was not recalled to testify in rebuttal by the Crown. [ 35 ] Just so there is no misunderstanding in what I am saying in this judgment, Cst. Lafferty was a professional in every sense of the word in his investigation and his dealings with Mr. Fiegal. Mr. Fiegal set out to be a jerk to the officer, and I am satisfied by his behaviour at the scene and at the detachment he accomplished this.

But the ultimate question I must answer is not whether what he did in his interaction with the officer was morally wrong - which it clearly was - rather the question is whether or not Mr. Fiegal committed a crime. [ 36 ] Because I am satisfied and find: (1) that Mr.

Fiegal was not involved in some use of his vehicle or its fittings and equipment, or some course of conduct associated with his vehicle, which involved a risk of putting his vehicle in motion so that it could become dangerous; and (2) there was not, in these circumstances, a realistic risk , as opposed to a remote possibility , of danger to persons or property, I am left with a reasonable doubt that Mr. Fiegal was in the care or control of his vehicle. V. CONCLUSION [ 37 ] As a result, Mr. Fiegal is found not guilty on both charges on this Information. R.

Green, J [1] At paragraph 9. [2] As per McIntyre J. at para. 10. [3] (1893), 1893 CanLII 65 (FOREP) , 6 R. 67 (H.L.). [4] 2014 SKCA 76 . [5] At paragraph 21. [6] At paragraph 23.