R. v. Polischuk, 2015 MBPC 47

CITATION: R. v. Polischuk , 2015 MBPC 47 Date: 2015 09 21 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) David N. Gray ) for the Crown ) and ) ) ) Trevor James Polischuk ) Daniel V. Gunn ) for the Accused ) ) ) ) Reasons for Decision delivered: ) September 21, 2015 McDONALD P.J. [ 1 ] Mr. Polischuk stands charged with two offences. First, that he had care and control of a motor vehicle while he was impaired by alcohol and second that he had care and control of a motor vehicle while his blood alcohol level exceed 80 milligrams in 100 milliliters of blood.

These charges arise from an incident in the town of The Pas on January 12, 2014. [ 2 ] The Court heard from one Crown witness, the investigating officer Cst. Schirr. The Defence called five witnesses, the accused, Trevor Polischuk, his wife, Jenna Polischuk, two work colleagues, Seth Kisuik and Tyson Denechezhe-Dettinikaze and Tara Dodds who was working as a bartender at the Royal Canadian Legion. THE FACTS [ 3 ] The evening of January 11, 2014 and early morning hours of January 12, 2014 were cold and uncomfortable in The Pas, Manitoba. Mr.

Polischuk, an electrician, had been working with two of his colleagues at an auto dealer’s business in the town installing new lighting in part of the premises. After completing their work the gentlemen decided to get something to eat and drink. Their first choice of restaurant was not open at the time so they chose, in the end, to go to the Royal Canadian Legion. As it turned out, no food was on offer so they spent the evening drinking beer. [ 4 ] Ms. Polischuk telephoned the accused as she had expected him home hours earlier, he told her he had been drinking.

She told him he was not welcome at home that evening and told him not to drive. According to the various witnesses heard by the court, the estimates of the beer drank by Mr. Polischuk and his employees were fairly consistently in the range of six or seven pitchers of beer. Suffice it to say that when the bar at the Legion closed at around 2:00 a.m. Mr. Polischuk and his two co-workers were very much under the influence of alcohol. [ 5 ] According to each of the defence witnesses, a taxi cab was called at closing time. According to Mr. Polischuk the waitress at the bar offered to call a cab for Mr.

Polischuk and his colleagues. Mr. Polischuk says the cab did show but drove away before he could get to it as a fight had broken out between his colleagues, Seth Kisuik and Tyson Dencheze-Dettinikaze, which he says he broke up. When the first cab left, a request, apparently by Mr. Kisuik, was made for another cab to be called by the bartender. The cab was slow in

showing up. Mr. Kisuik received a ride home from the bartender. Mr. Polischuk and Mr. Dencheze-Dettinikaze declined the offer and said they would wait for the cab. After a further period of time the cab still did not arrive and the accused and his companion got in the accused’s truck. The accused started the truck to warm himself and his colleague and then both of them fell asleep. As to where Mr.

Polischuk might go if the cab had arrived, he said in direct examination and on cross-examination that he planned to go to his cousin’s housewarming party where he said he expected to find his uncle present. [ 6 ] Meanwhile Cst. Schirr of The Pas RCMP was on patrol in the town. He had started his shift at midnight. He says he noted a truck, which turned out to be the truck belonging to the accused, idling in the Legion parking lot around 2:00 a.m. At around 3:50 a.m. he noted the same vehicle still parked in the Legion parking lot with the engine running. He found this suspicious and decided to investigate.

He approached the vehicle and found two individuals in the vehicle with Mr. Polischuk in the driver’s seat and the passenger in the other front seat of the vehicle. Initially, Cst. Schirr did not open the driver’s side door but made observations through the vehicle’s window and took some photos. He saw that Mr. Polischuk had his foot on the gas pedal and was revving the vehicle’s engine at a rate of nearly 4,000 RPMS. The gear shift on the automatic transmission was in park. [ 7 ] When the officer opened the door Mr. Polischuk woke up. The officer noted a strong smell of alcohol coming from the vehicle.

He noted the accused’s eyes were bloodshot. When asked how he was feeling the accused responded with an “OK” sign rather than responding with words. When the accused alighted from the vehicle he was unsure on his feet, needed the support of the truck as he moved and swayed as he stood still. The officer formed the opinion the accused was impaired in his care and control of the vehicle by alcohol and made a demand that he provide a sample of his breath. After providing the accused with the demand, the police warning and his

section 10(

b) rights, Cst. Schirr transported him about 75 yards to the detachment building. [ 8 ] At the detachment he spoke to a lawyer with the Legal Aid on call service. He indicated he was not satisfied with the advice and unsuccessful attempts to contact other counsel took place. Eventually the accused agreed to accompany the officer for the breath sample. The accused was placed into the breathalyzer room for observation while the breath testing instrument was being prepared.

During the observation period there was a discussion between the officer and the accused and during the discussion the officer indicated that Mr. Polischuk made a comment about how a person could break the instrument to get off the charge. In addition, the officer filled out the checklist required prior to a breath test reviewing with the accused his drinking history leading up to his arrest along with what the accused had to eat and the like. [ 9 ] The accused was then instructed on to how to properly give a sample.

On the way up to the machine to give his first sample the accused slammed the door of a metal cabinet in the room. On the first attempt he blew too hard and the maximum breath rate was exceeded and the test was aborted. The officer was also afraid, given the way the accused was giving the sample, that the accused may break the mouthpiece. After the aborted test Cst. Schirr felt obliged to read him the refusal warning. The following tests were performed properly and without incident.

The two tests resulted in readings of 160 and 150 milligrams in 100 milliliters of blood. [ 10 ] It was the officer’s view that the accused was behaving aggressively and that a lot of patience was required to complete the testing process with him. At one point the officer says the accused told him that he hoped the officer’s heater would break down so he could freeze – the officer presumed that this was related to the fact that the accused is an electrician. [ 11 ] In cross-examination the officer confirmed that the accused’s speech was good and understandable and that there was no alcohol found in the vehicle.

He also did not ask the accused where he was going or how he planned on getting home. Cst. Schirr also could not recall if the accused offered any information on this point. The officer also conceded he could not say whether the accused’s parking brake was on or not. THE ISSUES [ 12 ] Both counsel concede the issue for this Court to determine is whether or not there was a realistic risk of danger that the accused would set the vehicle in motion. ANALYSIS [ 13 ] In this case there is no contest that the accused was impaired by alcohol or that his blood alcohol level exceeded the legal limit.

The contest issue revolves around whether he was in care and control of the motor vehicle. [ 14 ] In a fact situation, such as the one at bar, the Crown is entitled to rely on the presumption contained in

section 258(a), which states, in effect, an accused found in the seat ordinarily occupied by the driver of a vehicle is deemed to have had care and control of that vehicle. The evidentiary onus then shifts to the defendant to show that he had no intention to set the vehicle in motion.

Even if he establishes he had no intention to set it in motion when he took his place in the driver’s seat, evidence of acts involving the use of the vehicle which could accidentally set it in motion or otherwise present a “realistic risk of danger” may establish that the accused had care and control. [ 15 ] Here there is uncontested evidence, from multiple sources, that when the accused entered the driver’s seat, initially it was to await the taxi cab that had been called.

As a result the accused has satisfied the onus, on a preponderance of the evidence, that initially, at least, he entered the driver’s seat with no intention to set it in motion. However, that does not end the inquiry as to whether there was a realistic risk of danger arising from the accused’s acts involving the use of the vehicle that he would accidentally set it in motion or change his mind in his intoxicated state and set the vehicle in motion and as a result present a realistic risk of danger as a result. [ 16 ] The leading case dealing with the issue of realistic risk of danger is, of course, R. v.

Boudreault , 2012 SCC 56 . In Boudreault the accused was acquitted at trial. The trial judge heard that the accused had been drinking and accompanied a female friend, Ms. Dubois, home to her apartment. Ms. Dubois was sober and drove Mr. Boudreault’s truck to the apartment building. Mr. Boudreault and Ms. Dubois then drank together until the morning when he decided he would go home. He asked Ms. Dubois to phone a taxi service called Taxic, this service sends out someone to take the client and another driver to take the client’s vehicle home. After waiting an unusually long time Ms.

Dubois suggested the accused leave and go warm up the truck. Mr. Boudreault complied and left the apartment he waited for a time, it was very cold out, so he eventually went to the vehicle, got in the driver’s seat, started it to warm himself and

then fell asleep.

When the Taxic drivers arrived they phoned police because there was a man sleeping behind the wheel of a vehicle. [17] The trial judge found that the accused had a concrete and reliable plan that did not involve setting the vehicle in motion, thatthat plan was corroborated by the taxi cab driver who was called to give evidence and as a result there was no realistic risk the accusedwould set the vehicle in motion and hence constitute a danger. [18] On appeal, the Court of Appeal allowed the Crown appeal citing the advanced state of intoxication of the accused, over threetimes the legal limit, and, in its view, his impaired judgment would have constituted a realistic risk of danger. [19] In restoring the verdict of the trial judge, Justice Fish on behalf of the majority of the Court, set out the three essential elementsof “care and control” under section 253(1)(

a) at paragraph 33: (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 is exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or property. [20] Justice Fish went on to emphasize the risk must be realistic and not simply theoretically possible, but likewise it need not beprobable or even serious or substantial.

He observed that the “realistic” threshold is low threshold which is consistent with Parliament’sintention to protect the public from danger but not so low as to criminalizing the use of a vehicle for a “manifestly innocent” purpose. [21] Justice Fish emphasized that “anyone found inebriated and behind the wheel with a present ability to drive will – and should –almost invariably be convicted” (paragraph 45).

In order to avoid conviction the accused “will in practice face a tactical necessity ofadducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of thecase” (paragraph 48). [22] The realistic risk of danger can occur in at least three ways (

a) an inebriated person may unintentionally set the vehicle inmotion, (

b) through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property and (c)an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so(paragraph 42). [23] Mr. Polischuk’s vehicle was parked in the Legion parking lot. In its stationary position it posed no risk to persons or propertywhile located there. Although there is no evidence the park brake was on there is evidence the transmission was in park and it wouldhave been difficult to set the vehicle in motion accidentally.

There is no evidence that despite the high engine revolution count on thetachometer there was any risk of engine heating or failure that would have constituted a realistic risk of danger.

As a result I am satisfiedthat the evidence establishes the first two ways that a realistic risk of danger may occur did not exist in this case. [24] The third way in which such a danger may arise, that being that an inebriated individual may change his mind and operate themotor vehicle, is the real issue at stake in the case. [25] In Boudreault the Court emphasized that the existence of a realistic danger, or absence of such a danger, is a finding of fact andthe trial judge must consider a number of factors. [26] In R. v.

Szymanski, (ONSC) Durno J. reviews the law respecting the impaired care and control and theconcept of “risk of danger” in establishing de facto care and control. At paragraph 93 of the Judgment the learned Justice sets out lists ofcriteria that have been considered in determining if real risk arises in a case specific circumstance.

a) The level of impairment. R. v. Daines, [2005] O.J. No. 4026 (C.A.), R. v. Ferguson (2005), (ON SC), 15 M.V.R.(5th) 74 (S.C.J.), R. v. Ross (2007), 2007 ONCJ 59 , 44 M.V.R. (5th) 275 (O.C.J.) In Ogrodnick, Wittman A.C.J. qualified hiscomments about speculation and conjecture by accepting that it was an appropriate basis to find care or control because the level ofintoxication demonstrates unpredictability or a risky pattern of behavior (paragraph 54).

In Ross, the trial judge found that thisconsideration might relate to the likelihood of the accused exercising bad judgment, the time it would take to become fit and thelikelihood that he or she would be presented with an opportunity to change their mind during that time.

b) Whether the keys were in the ignition or readily available to be placed in the ignition. Pelletier, supra.

c) Whether the vehicle was running. R. v. Cadieux, [2004] O.J. No. 197 (C.A.)

d) The location of the vehicle, whether it was on the side of a major highway or in a parking lot. Cadieux, R. v. Grover, [2000] A.J. No.1272 (Q.B.)

e) Whether the accused had reached his or her destination or if they were still required to travel to their destination. Ross, supra.

f) The accused’s disposition and attitude R. v. Smeda (2007), 51 M.V.R. (5th) 226 (Ont. C.A.)

g) Whether the accused drove the vehicle to the location of drinking. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)

h) Whether the accused started driving after drinking and pulled over to “sleep it off” or started out using the vehicle for purposes otherthan driving. If the accused drove while impaired it might show both continuing care or control, bad judgment regarding fitness to driveand willingness to break the law. Ross, supra.

i) Whether the accused had a plan to get home that did not involve driving while he or she was impaired or not over the legal limit. Cadieux, Ross, R. v. Friesen, [1991] A.J. No. 811 (C.A.), R. v. Gill (2002), 33 M.V.R. (4th) 297 (S.C.J.) (paragraph 21) Ross, supra.

j) Whether the accused had a stated intention to resume driving. In Cadieux, supra , where the accused testified he was not driving and was waiting to sober up. The Court of Appeal held that his evidence that he would not drive until he was sober only went to weight.

k) Whether the accused was seated in the driver’s seat regardless of the applicability of the presumption. R. v. Pelletier , [2000] O.J. No. 848 (C.A.)

l) Whether the accused was wearing his or her seatbelt. Pelletier, supra .

m) Whether the accused failed to take advantage of alternate means of leaving the scene. Pelletier, supra .

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. Cadieux, supra . [ 27 ] In the case at bar the accused was very intoxicated when he entered the vehicle outside the Legion Bar. Some three hours after the Cst. Schirr first saw his vehicle running in the parking lot his breath samples were 150 and 160 milligram of alcohol in 100 milliliters of blood. In addition he appeared significantly intoxicated when roused by the officer. [ 28 ] The keys were in the ignition and the vehicle was running.

The accused was not at his destination, a reality I will have more to say about later. [ 29 ] I am satisfied on the evidence I have heard the accused’s disposition was rather surly with the officer and that he did, rather clumsily, try to defeat the breath machine on his first test until warned by Cst.

Schirr. [ 30 ] The accused did drive the vehicle to the location where the drinking was taking place albeit before he had had any alcohol to drink. [ 31 ] There was no stated intention, one way or the other, in the evidence to resume or refrain from driving at some time in the future although when he entered the vehicle I am satisfied there was no immediate intention to set the vehicle in motion. [ 32 ] The accused was in the driver’s seat but there is no evidence as to whether or not he was wearing a seatbelt. [ 33 ] The accused did fail to take advantage of other methods to leave the area having missed, at least once and perhaps twice, an opportunity to take a cab.

In addition, although he had a cell phone he did not phone the cab company again to find out where the cab was, prior to falling asleep in the driver’s seat of his vehicle. I also am satisfied that Ms. Dobbs, the bartender, offered him a ride which he declined. [ 34 ] Of all the criteria listed in Szymanski perhaps the most crucial is - (

i) did the accused have a plan to get home that did not involve driving over the legal limit? Mr. Polischuk’s plans for the day of the incident that brought him before the court required him to do his work at the automobile dealership and then drive to his home at Clearwater Lake, some 20 kilometers north of The Pas where he and his family then planned to travel back into The Pas for a cousin’s housewarming party that was to commence at around 9:00 p.m. Mr. Polischuk was expected home at around supper time but was still working at the time. Eventually he came to the Legion and began to drink.

It appears this commenced around 8:30 p.m. According to Ms. Polischuk she phoned sometime later to find out where he was and he told her he was “having a beer” she was angry and told him not to bother coming home and not to drive. Mr. Polischuk continued drinking until the bar closed at around 2:00 a.m. He says his plan was to go to his cousin’s housewarming party, find his uncle and sleepover at his place. However, there is nothing to suggest that he (

a) phoned his cousin’s residence to see if the party was still in progress or (

b) phoned the uncle to see if he could stay with him despite the fact that a reasonable person, even one who was intoxicated, would have made such a call. Also, there was no evidence he discussed his plans about where he was going with his wife, his drinking colleagues, or Ms. Dobbs. Moreover, his ability to respond to further setbacks to his plan, such as it was, was limited by the fact he had forgotten his wallet at home and at the time of his arrest had only $17.75 in cash. [ 35 ] In addition he said nothing to the police officer about (

a) waiting for a cab or (

b) that he was going to his uncle’s. In saying this, I am mindful there is no obligation on the accused to say anything to a police officer about his plans while under detention or arrest or otherwise, but in conjunction with his failure to share his plans with his wife and colleagues it sheds doubt on the bona fides of the plan. In addition, it establishes a pattern of irresponsible conduct on the night in question. [ 36 ] Counsel for the defendant has cited several cases to support the argument that the conduct of Mr. Polischuk did not present a realistic risk of danger. [ 37 ] In R v.

Poncelet , 2014 SKCA 30 , 2014 CarswellSask 166 , the accused was found slumped over the steering wheel of his truck while intoxicated. He had come to Prince Albert to buy tires. During his time in the city he went to the Quality Inn and drank beer from 6:00 p.m. to 9:00 p.m. When he got in his vehicle he concluded he was too intoxicated to drive home and determined that he would sleep in his vehicle until late the next morning until he was sober and drive home. [ 38 ] At trial the accused was acquitted as the trial judge accepted that there was minimal risk Mr.

Poncelet would inadvertently set the vehicle in motion or would intentionally stray from his plan not to drive home while still intoxicated. The decision at trial was rendered prior to the release of the Boudreault decision by the Supreme Court of Canada. On appeal to the Queen’s Bench court the acquittal was set aside. In the Saskatchewan Court of Appeal the verdict of acquittal rendered by the trial judge was restored.

The Court of Appeal noted that Boudreault significantly changed the standard of review on appeal in Saskatchewan of a trial judge’s finding on the issue of care and control from one of a potential error in law and the application of a standard of correctness to one of a finding of fact which is subject to reversal only on finding of palpable and overriding error of fact. [ 39 ] At paragraph 39 of the decision the Court deals with the crown contention that there was a palpable and overriding error in assessing the facts.

The answer to this line of attack is that, regardless of what another judge or what this Court might make of the matter, there are a number

of aspects of the evidence presented at trial which, in combination, serve to sustain the trial judge’s conclusions about the risk posed byMr. Poncelet: (

a) Mr. Poncelet had been convicted previously for drinking and driving and said, “I’ve changed quite a bit. It’s kind of against my rulesnow to actually take the chance that I should drive, safety-wise and everything else, you know, just -- and the part of getting stoppedagain of course”. (

b) In referring to his previous convictions, Mr. Poncelet had said, “I definitely don’t want to go through it again.” (

c) Mr. Poncelet had a clear plan to sleep in his truck until the next day when he was sober. He explained that his truck was fairly new. He said it was comfortable as he could recline the driver’s seat and stretch out to sleep. (

d) Mr. Poncelet had slept in his truck before. (

e) When Constable LeBlue became involved, Mr. Poncelet readily acknowledged that he had been drinking and explained that he wasjust sleeping in his truck. (

f) Mr. Poncelet had carried through with his plan not to drive at several points during the night. The first was when he arrived at thetruck and made the initial decision not to drive. The second was when he had awoken around midnight, started the truck in order towarm up, and then switched it off and gone back to sleep. The third was when he had started the truck at around 2:00 a.m. [40] The Court of Appeal also noted how the trial judge found the accused to be a credible witness and accepted his testimony. [41] Counsel for the Defendant also cited R. v. Matthew Topfer, 2014 ONSC 5669.

In that the accused had attended a soccertournament and then a bar where he drank until he became impaired. He had made arrangements with a sober individual to act as adesignated driver. For reasons that are not entirely clear the accused decided to leave the bar and have a smoke in his car and await thearrival of his designated driver. During the time he was waiting, in the passenger seat, he fell asleep and was found by an officer with ajacket covering his body and his head on the driver’s seat. [42] In overturning the trial judge’s verdict of conviction, the

summary appeal court concluded that the trial judge misinterpreted thethrust of the decision in Boudreault by finding that the concrete plan that Mr. Topfer originally had in place was altered to one that was“not airtight” simply by Mr. Topfer falling asleep and perhaps changing his mind when he awoke. The

summary appeal court found thatthis was not in accord with the principle in Boudreault that someone using a motor vehicle for a manifestly innocent purpose should notattract the stigma of a criminal conviction. [43] Lastly, the defence cited the case of R. v. Steuart (N.), 2014 MBCA 7 and 2014 MBCA 98 where the Court of Appealoverturned the decision of the

summary appeal court to send the matter back for a new trial and restored the acquittal entered by myselfin this Court. Once again the trial decision in this case pre-dated the release of the decision of the Supreme Court of Canada inBoudreault. It involved a young man who had travelled from Denaire Beach, Saskatchewan into Flin Flon, Manitoba one very coldwinter day to do some grocery shopping and then he had planned to go to the bar with his friends and spend the night at a friend`sapartment. He stored his groceries at his friend’s apartment so he could take them home the following day.

During the evening theaccused decided to stay at the bar longer than his friend. When he went back to the apartment it was locked and he was unable to activatehis newly acquired phone to call his friend to let him in. He decided to get into his vehicle, which was parked near the apartment, andstart it to warm himself. He fell asleep and was found by the police in an intoxicated state.

The Court of Appeal concluded this Courtconsidered the three ways an impaired driver who is in care and control may pose a realistic risk of danger and made credibility findingsthat were open to this Court. [44] I am mindful this is a case where the accused has given evidence and as a result the test in R. v. W.(D.) (SCC)has to be considered, however the credibility of the accused really is in play in a limited way (

a) his evidence as respects his plan to getto his final destination without driving the vehicle, (

b) his evidence respecting his conduct after his arrest. The other evidence respectingthe criteria set out in Szymanski is not seriously at issue. [45] As respects his plan I have significant doubts about the bona fides of his plan as he related it to the court. Although in cases ofthis nature there will often be changes in a plan that arise from the fact an accused has been drinking and his or her circumstanceschange, here the lack of forethought, lack of logical steps to carry out the plan, and of adherence to the plan throughout give rise to mydoubts.

Unlike in Steuart and Topfer no arrangements were made while still sober or ahead of time to ensure that the accused would notin the end resort to changing his mind and putting the vehicle in motion. Morevoer, in the Topfer case, if he had driven away, he wouldhave left his designated driver behind and in the Steuart case he would leave his groceries behind and his friend wondering what becameof him.

Also in Steuart and Topfer the ultimate plan was shared with at least one other person in contrast to the case at bar. [46] In Poncelet the accused took a number of steps consistent with his stated intention not to move the truck, such as repeatedlystarting and warming the truck and turning it off again, and also immediately indicating to the arresting officer he was a just sleeping inthe truck when approached by the arresting officer. In contrast Mr.

Polischuk gave no such indication to the officer. [47] In Steuart, Topfer, and Poncelet each accused appeared to be cooperative and polite to the arresting officers. [48] As to the conduct of the accused after his arrest where his evidence is at odds with Cst. Schirr I accept the evidence of theconstable.

As a result I accept his general demeanor was uncooperative, that he made allusions to being able to defeat the breath machineby blowing excessively, that he told the police officer he (the officer) was acting “like an asshole”, that on his first breath test heproduced an invalid sample because he blew excessively hard and had to be warned by the officer, that he intentionally slammed a metalcabinet door near the breath machine enroute to take his first test, that he made remarks that he hoped the officer froze if his heater brokedown (the accused is an electrician). [49] The court cannot speculate about the future actions of an accused but it is entitled, indeed required, to examine all the evidence,

circumstantial and otherwise to assess if a realistic risk exists that the accused would awake, change his mind, and set the vehicle in motion. I find such a risk existed in this case.

The degree of the accused’s intoxication, the improvised nature of his plan and the fact it was not shared with anyone or logical steps taken to pursue it throughout the night and his difficult behaviour after arrest demonstrate a degree of intoxication and resultant lack of restraint or adherence to normal and expected behaviour that persuades the court the Crown has satisfied the burden upon it to show that, beyond a reasonable doubt, a realistic risk existed. [ 50 ] As a result I convict the accuse of being in care and control of a motor vehicle with a blood alcohol level over 80 milligrams of alcohol in 100 milliliters of blood. “Original signed by:” _________________________ McDONALD P.J.