Her Majesty the Queen - v. -, 2012 SKPC 80

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 080 Date: May 4, 2012 Information : 31111424 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Gary W. Rookes Appearing: Ms. Codi L. Chudyk For the Crown Mr. Rod C. Simaluk For the Accused JUDGMENT M. HINDS , J BACKGROUND [ 1 ] On February 26, 2010 at Regina, Saskatchewan, Gary Rookes was charged with the following offences: (1) while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 253(1) (

a) of the Criminal Code .

(2) Without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer pursuant to section 254(3) (

a) of the Criminal Code , to provide samples of his breath for analysis, contrary to section 254(5) of the Criminal Code .

(3) Operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code . [ 2 ] The matter proceeded to trial. Constables Tyler Bacon and Grant Campbell testified for the crown. Gary Rookes testified for the defence. I previously acquitted Mr. Rookes on the charge of drive while disqualified, as there was no evidence before the court regarding the status of Mr. Rookes’ driver’s licence on February 26, 2010. The issue before the court is whether the GiO cycle which Mr. Rookes was operating is a motor vehicle as defined by the Criminal Code .

Evidence Constable Tyler Bacon [ 3 ] Constable Bacon has been a member of the Regina Police Service for four and one half years. On February 26, 2010, at 11: 20 p.m. he was on general patrol duty in his police vehicle which was proceeding westbound on Saskatchewan Drive. As the police vehicle approached the intersection of Broad Street and Saskatchewan Drive, Constable Bacon observed a driver on a moped proceed northbound on Broad Street against a red light.

Constable Bacon testified that the moped had an electric motor under the seat. [ 4 ] Constable Bacon activated the lights on the police vehicle and followed the moped. Mr. Rookes was operating the moped. Constable Bacon testified in chief that he observed that Mr. Rookes was dragging his feet while driving the moped. He also testified that the moped quickly came to a stop underneath a railway overpass on Broad Street. Constable Bacon testified that after Mr.

Rookes stopped the moped, he appeared to steady himself, dismounted the moped and stumbled backwards toward a wall adjacent to the roadway. [ 5 ] Constable Bacon spoke to Mr. Rookes. He asked for his driver’s licence or some other identification. Mr. Rookes told him that he had neither with him. Constable Bacon asked Mr. Rookes to accompany him back to his police vehicle. Constable Bacon testified that he observed Mr. Rookes to stumble and sway from side to side as he walked to the police vehicle. He also testified that once Mr. Rookes reached the police vehicle he appeared to steady himself against it. [ 6 ] Mr.

Rookes got into the back of the police vehicle. Constable Bacon testified in chief that he did not notice a distinct smell of alcohol coming from Mr. Rookes. Constable Bacon made an approved screening device demand of Mr. Rookes at 11:21 a.m. Constable Bacon testified that he suspected Mr. Bacon was impaired by alcohol based upon his earlier observations that Mr. Rookes (1) ran a red light (2) dragged his feet (3) stumbled backwards after getting of his moped and (4) steadied himself against the police vehicle. [ 7 ] Mr. Rookes blew into the approved screening device twice.

His first breath lacked sufficient pressure to activate the device. His second breath registered a fail result on the device. [ 8 ] As a result of the fail result, Constable Bacon arrested Mr. Rookes for driving while impaired and drive while disqualified. Constable Bacon then read Mr. Rookes his rights and warnings and made a breath demand upon Mr. Rookes. Constable Bacon transported Mr.

Rookes to the Regina Police station where he met Constable Campbell, the intoxilizer technician. [ 9 ] On cross examination, Constable Bacon agreed that on February 26, 2010 the road conditions in Regina were generally dry with some wetness on the roadway beneath the railway overpass on Broad Street. Constable Bacon agreed that Mr. Rookes could have coasted down Broad Street as that roadway dips beneath the railway overpass. Constable Bacon also confirmed the accuracy of paragraph 6 of his incident report which stated that the moped electric bicycle operated by Mr. Rookes had pedals which had been removed.

Constable Bacon did not take any photographs of Mr. Rookes’ moped. Constable Grant Campbell [ 10 ] Constable Campbell has been a member of the Regina Police Service since 2007. He was working as an intoxilizer technician during the evening of February 26, 2010. Constable Campbell was dispatched to the police “breath room” to prepare the intoxilizer and deal with Gary Rookes who was suspected of being an impaired driver. He met Constable Bacon and Mr. Rookes at the breath room. Constable Bacon told Constable Campbell that he had previously made a breath demand on Mr. Rookes. Constable

Campbell testified that he made the following observations respecting Mr. Rookes: (1) a strong smell of beverage alcohol was coming from him (2) he leaned on a counter in the breath room (3) he swayed when he walked (4) he had glassy, watery eyes and (5) he had slurred speech. [ 11 ] Constable Campbell testified regarding the various steps he took to prepare the intoxilizer device for Mr. Rookes’ breath samples. He testified the device was working properly. Constable Campbell testified that he gave Mr. Rookes instructions on how to provide a proper breath sample.

Constable Campbell testified that on three separate occasions Mr. Rookes did not blow into the mouthpiece of the intoxilizer device with sufficient force to provide a proper breath sample. He warned Mr. Rookes that he could be charged with refusing to provide a breath sample. He subsequently charged Mr. Rookes with refusal after the device timed out. The defence did not cross examine Constable Campbell. Gary Rookes [ 12 ] Gary Rookes is 57 years of age. During the evening of February26, 2010 Mr. Rookes went to a friend’s home to watch television.

He testified that his mode of transportation that evening was his mechanical assist GiO cycle. Mr. Rookes presented four photographs of GiO cycles to the court which he obtained from the manufacturer. The photographs were marked as exhibits D 1, 2 & 3. Mr. Rookes testified that the photographs are true depictions of his GiO bike. Each of the photographs show GiO bikes equipped with pedals. [ 13 ] Mr. Rookes testified that his GiO bike was equipped with pedals and a 500 watt electrical motor which was situated in the hub of the rear wheel.

He added that a battery is located under the seat of the GiO bike which is rechargeable and powers the 500 watt engine. Mr. Rookes further testified that he operated his GiO bike on February 26, 2010 by pedalling it. He testified that normally his GiO bike could also be powered (assisted) by the 500 watt electric motor by engaging a switch. There is also a switch used to turn the headlights and turn signals on the GiO bike. Mr. Rookes testified that on the evening of February 26, 2010 he did not make use of the electric motor assist on his GiO bike because the electric motor was not working. [ 14 ] Mr.

Rookes testified that he subsequently took his GiO bike to Ebikes Regina where the electric motor was repaired. He produced a receipt he obtained from Ebikes Regina dated March 15, 2011 in the sum of ninety dollars which was marked as exhibit D - 4. The receipt has the words “wire repair” written on it. [ 15 ] Mr. Rookes further testified that no driver’s licence is required to operate his GiO bike and in addition he was not required to put a licence plate on the GiO bike. In support of his claims Mr.

Rookes filed with the court a document he obtained from the manufacturer revealing another photograph of a GiO 500 watt electric scooter equipped with pedals. This document was marked as Exhibit D5. D5 states that the GiO 500 w E-Scooter is classified as an electric bicycle, since pedals can be used. D5 also describes the GiO 500 w E-Scooter as a power assisted bicycle. Mr. Rookes also tendered an email that his sister Debbie Rooke sent to his lawyer, Mr. Simulak setting out the specifications for a GiO 500 w E- Scooter (Exhibit D6). [ 16 ] On cross examination, Mr.

Rookes testified that he drank two or three beers while visiting a friend from 4:00 p.m. until the time he left his friend’s home and began his homeward journey. Mr. Rookes was adamant that on the evening of February 26, 2010 he was pedalling his GiO bike as he was proceeding northbound on Broad Street. He further testified as he entered the intersection of Saskatchewan Drive and Broad Street the traffic signal turned from green to amber. He admitted that as he proceeded through the intersection the traffic signal turned red. However, Mr.

Rookes maintained that had he stopped his GiO bike earlier, it would have been in the middle of the intersection. [ 17 ] Mr. Rookes also testified that he verified with a Saskatchewan Government Insurance publication entitled Motor Cycle Handbook, that operators of electric assist cycles are not required to have driver’s licences. DEFENCE POSITION [ 18 ] Counsel for the accused takes the position that the GiO 500 watt E-scooter which Mr. Rookes was operating on February 26, 2010 is not a motor vehicle as defined by the Criminal Code and hence Mr. Rookes should be acquitted of the charges before the court.

CROWN POSITION [ 19 ] The Crown argues that GiO 500 watt E-scooter which Mr. Rookes was operating on February 26, 2010 is a motor vehicle as defined by the Criminal Code and that Mr. Rookes should be convicted of the charges of impaired driving and refusal to provide a breath sample. THE LAW [ 20 ]

Section 2 of the Criminal Code reads, in part, as follows: “motor vehicle “ means a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment; [ 21 ] Section 253(1) (

a) of the Criminal Code reads, in part, as follows: Every one commits an offence who operates a motor vehicle . . . (

a) while the person’s ability to operate the vehicle . . . is impaired by alcohol or a drug; [ 22 ] Sections 253(2) , (3) (a)(i), (3.3) and (5) of the Criminal Code reads, in part, as follows:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle . . . the peace officer may, by demand, require the person to comply with paragraphs (

a) and (b), in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulations to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion will enable a proper analysis to be made by means of an approved screening device and, if necessary to accompany the peace officer for that purpose.

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood,

(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(

b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer’s opinion, will enable a proper analysis to be made by means of an approved instrument.

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. [emphasis added] ANALYSIS [23] As in any criminal trial, the prosecution bears the burden to prove guilt beyond a reasonable doubt. The Crown must prove eachessential element of the offence charged beyond a reasonable doubt. Mr. Rookes is presumed innocent and bears no burden to proveanything. After considering the whole of the evidence, if there is a reasonable doubt on any element of the offence, he must be found notguilty. [24] In this case the Crown must prove that Mr. Rookes GiO bike was a motor vehicle, as defined by

section 2 of the CriminalCode. Put another way the Crown must prove on February 26, 2010 Mr. Rookes GiO bike was drawn, propelled or driven by anymeans other than muscular power. [25] This case requires several factual determinations including: (1) whether there were pedals on Mr. Rookes’ GiO bike thatnight (2) whether Mr. Rookes was pedaling the GiO bike that night and (3) whether the electric motor on GiO bike was working thatnight and propelling or driving the bike. [26] The evidence at trial is contradictory respecting whether there were pedals on Mr. Rookes GiO bike. The Crown relies on theevidence of Cst.

Bacon that he did not observe pedals on the GiO bike. Mr. Rookes on the other hand maintains his GiO bike wasequipped with pedals which he used and was the sole means of propulsion. [27] In this case I have applied the test set out by Mr. Justice Tallis of the Sask. Court of Appeal in R. v. McKenzie (1996) (SK CA), 141 Sask.

R. 221(C.A.) respecting the doctrine of reasonable doubt as it applies to the issue of credibility andreliability of witnesses, which is as follows: First, if you believe the accused, obviously you must acquit; Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused [28] Applying step one of the test I do not believe all of the evidence of the accused, hence I am not obligated to acquit him.

Attimes during Mr. Rookes’ testimony I was left with the impression that his testimony sounded somewhat rehearsed particularlyrespecting his consumption of alcohol earlier that day. I do note, however, that a critical aspect of Mr. Rookes’ testimony concerned hisGiO bike. I find that he provided this evidence in a straight-forward, credible manner. While it would have been preferable if heprovided photographs of his own GiO bike and called the repair person who fixed the wire on his GiO bike, the reason for the absenceof such evidence was not explored in cross examination.

Thus, while I find there are some problems with the evidence of Mr. Rookes, Icannot dismiss it as being incredible. [29] There are also some problems with the evidence of Constable Bacon. One particularly troubling aspect of his evidence concerns the lack any detailed observations respecting Mr. Rookes’ GiO bike. While Constable Baconclearly testified that Mr. Rookes went through a red light on his moped there is no evidence regarding the speed at which Mr. Rookeswas traveling or whether the front, back or running lights were on at any time.

There is also no evidence that the electric motor on theGiO bike was operational that evening. I also note that Constable Bacon testified that he observed Mr. Rookes was dragging his feetwhile driving the moped. Without further detail, this observation, in my view, is consistent with Mr.

Rookes pedaling the GiO bike with both of his feet being close to the ground, rather than resting on the floor board as the electric motor powered the GiO bike. [30] In this case after careful consideration of all the evidence, I am unable to decide whom to believe as to (1) whether there werepedals on the GiO bike (2) whether Mr. Rookes was pedaling his GiO bike as his sole means of propulsion and (3) whether the electric

engine was operable on February 26, 2010. [ 31 ] As a result I am of the view that the Crown has failed to prove that Mr. Rookes was operating a motor vehicle on the evening of February 26, 2010. Hence, I acquit him of the charges of operating a motor vehicle while impaired by alcohol or drug and refusing to provide a breath sample. CONCLUSION [ 32 ] I find Gary Rookes to be not guilty of the charges before the court. ________________________________ M.J. Hinds, J