Her Majesty the Queen - v. -, 2015 SKPC 169

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 169 Date: December 10, 2015 Information: 24527110 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Garet Bonk Appearing: Ms. Tyla Olenchuk For the Crown Mr. Trent Forsyth For the Accused JUDGMENT J. RYBCHUK , J INTRODUCTION [ 1 ] The accused took his girlfriend back to his home town to meet the family. While staying at his parents’ house, they were awakened in the middle of the night by friends wanting them to come to the local bar with them.

The girlfriend did not go and went back to sleep. The accused did go and found his new truck was damaged. He got into a fight and was beaten up. He resisted arrest and was

charged with 9 criminal offences. He ended up spending the rest of the night in jail and losing his job afterwards. They are now nolonger dating. [2] The accused pled guilty to several of the offences. Others have been stayed or withdrawn. I will deal with the 4 remainingoffences in the same order counsel did in their closing arguments following trial as follows: COUNT #7 - Impaired Care or Control COUNT #8 - Care or Control Over 80 ISSUE [3] The accused was sitting in his truck across from the bar when the police pulled up alongside him shortly after 3:00 a.m., themorning of Saturday, February 21, 2015.

He acknowledged that he was impaired and the Certificate of Qualified Technician isconclusive proof that the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time. So the only issue is, was the accused in care or control of his truck?

LAW & ANALYSIS [4] The leading and most recent decision of the Supreme Court of Canada on care or control is R v Boudreault, 2012 SCC 56, [2012] SCJ No 56 (SCC) [Boudreault], where Fish J. writing for the Court set out the three essential elements of the offence atparagraph 33 as follows: (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. [5] This represents a clarification of the law the Supreme Court of Canada had previously set out in R v Toews, (SCC), [1985] 2 SCR 119 [Toews], where McIntyre J. writing on behalf of the Court stated at paragraph 26 as follows: ... acts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course ofconduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous.

Eachcase will depend on its own facts and the circumstances in which acts of care or control may be found will vary widely. [6] Here, the accused rightfully conceded the first element of the offence that he had assumed an intentional course of conductassociated with truck or some use of its fittings and equipment, such as:

(1) He used the truck’s command start to start the engine and warm it up. The engine was still running when the police arrived.

(2) He was seated in the driver’s seat.

(3) He pushed the brake pedal to kill the engine. I accept Cst. Cook’s and the accused’s testimony on this point, over Cst.Abbott’s testimony, and find that that the engine was shut off right after the police arrived and when the accused was getting out of thetruck.

(4) He was the registered owner of the black 2015 Dodge Ram Sport half-ton truck that he had just purchased three monthsearlier.

(5) It had an automatic transmission.

(6) In order to put the truck into gear, the accused would have had to press and hold the start button of the truck and thensimultaneously press the brake pedal and turn the knob on the dash to the right of the steering wheel.

(7) The accused had driven the truck earlier that day to Kinistino, SK where he visited with his parents and then some friends atthe local bar. He parked his new truck on Main Street across the street from the bar by backing it into a stall.

(8) The truck was damaged in a hit and run later that night. When the accused confronted some people outside the bar aboutthe damage to his truck, he was attacked by them. So, the accused’s disposition and attitude that night was not good.

(9) He used his cell phone to call the police to report the accident and assault upon him. Things only got worse when the policearrived and rather than investigating his allegations, they chose to arrest him for breaching his undertakings not to drink alcohol or be ina bar. He exercised bad judgment by breaching his undertakings and resisting arrest by fleeing and fighting with police.

(10) It also did not help that the accused had quite a bit to drink that night and his blood alcohol concentration was 190 milligramsin 100 ml of blood. [7] Both officers testified that the accused was seated in the driver’s seat of his truck when they pulled up alongside him withthe driver’s door of the police truck facing the driver’s door of the accused’s truck, so the statutory presumption in s. 258(1)(

a) of theCriminal Code applies. But, I find the accused has successfully rebutted the presumption as his evidence and actions that night wereclear that he did not intend to drive the truck home from the bar as he had in fact, not driven the truck home from the bar earlier thatnight when both he and his girlfriend decided to leave the bar and walked to his parents’ place which is located only approximately oneblock away from the bar on Main Street in Kinistino, Saskatchewan.

In fact, they had both already gone to bed and were awakened laterby the accused’s sister and a friend who had come by to tell them of the damage that had occurred to his truck outside the bar after theyhad left. The accused made the fateful mistake of getting up and returning to the bar to inquire about the damage, which resulted in thealtercation and a call to 911 reporting the accident and the assault. [8] His first call to 911 was from inside the bar. The bar closed and they had to leave.

It was minus 30 degrees outside in themiddle of February in Saskatchewan, so the accused started his truck with his command start and got into it with some witnesses to theaccident and attack in order to keep warm and wait for the police to arrive. He spoke to the police a second time from inside the truckand told them that he was in his truck and would be waiting for them when they got there. [9] I conducted an R v WD (SCC), [1991] 1 SCR 742 analysis of the accused’s evidence and find it to becredible and reliable.

There may be some minor concerns with his high level of intoxication, memory problems and inconsistencies withhis girlfriend’s evidence, but these inconsistencies are trivial and not much different in nature, frankly, than the inconsistencies betweenthe police officers’ evidence and which are normal in cases of this sort where witnesses are trying to recall events from over 9 monthsearlier.

His evidence was still believable enough to me on more than a balance of probabilities to find that he did not occupy the driver’sseat or position for the purpose of setting the truck in motion, but only for the purpose of shelter while waiting for the police to arrive. [10] However, this does not end the matter as Boudreault and Toews both make clear that I still must determine whether the Crownhas demonstrated beyond a reasonable doubt that the accused was in actual or de facto care or control of the truck in circumstances thatcreated a realistic risk of danger to persons or property.

The existence of a realistic risk of danger is a question of fact to be determinedin the particular circumstances of each case (Boudreault, para 50). It is a low threshold to prove, but it must have an evidentiaryfoundation.

It need not be probable or even serious or substantial (Boudreault, para 34), but must be something more than just a remoteor theoretical possibility (Boudreault, paras 9 and 33) or based on mere speculation or conjecture (R. v Smits, 2012 ONCA 524 [Smits];R. v Derkson, 2015 SKPC 42). [11] A realistic risk of danger can arise in at least three ways: First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to doso; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, badjudgment or otherwise, a stationary or inoperable vehicle may endanger persons or property. (Boudreault, para 42)

[12] The Crown did not argue the latter two ways and the crux of its submissions focused on the first way of creating a realisticrisk of danger by the accused changing his mind and choosing to drive. The Supreme Court of Canada stated several times and inseveral different ways in Boudreault that in the absence of evidence to the contrary, a realistic risk of danger will normally be the onlyreasonable inference where the Crown establishes the accused was impaired and a possessed a present ability to set the vehicle inmotion.

To avoid conviction therefore, the accused faces a tactical necessity of adducing credible and reliable evidence tending to provethat a realistic risk of danger did not exist in the particular circumstances of the case. The Court stated at paragraphs 49, 51 and 52 ofBoudreault: The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of itslocation or placement, could, under no reasonably conceivable circumstances, pose a risk of danger.

Likewise, use of the vehicle for amanifestly innocent purpose should not attract the stigma of a criminal conviction. As Lamer C.J. observed in Penno, “The law … is notdeprived 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 amotor vehicle” (p. 877) … One of the factors of particular relevance in this case is that the accused took care to arrange what some courts have called an “alternateplan” to ensure his safe transportation home.

The impact of an “alternate plan” of this sort on the court’s assessment of the risk of danger depends on two considerations: first,whether the plan was objectively concrete and reliable; second, whether it was in fact implemented by the accused. [13] The Ontario Supreme Court has done a good job in R. v Szymanski, (2009) (ON SC), 88 MVR (5th) 182,at para 93, and R v. Topfer, 2014 ONSC 5669, at para 16, of listing various factors a court may consider when engaging in the risk ofdanger analysis, some of which I have already examined earlier on and include in this analysis as well.

The remaining factors applicableto this case are:

(1) The accused had already arrived at his intended final destination for the night. He drove from Saskatoon to Kinistino withhis girlfriend and sister so he could visit with his parents and friends that night. His parents live on Main Street only a block away fromthe bar so I accept the evidence of his girlfriend, who was sober the whole night, that they parked on Main Street and went to hisparents’ place first and visited with them for a few hours before walking to the bar to visit with friends.

(2) When they were done visiting with friends at the bar, the plan was to then walk back to his parents’ place where they wouldspend the night. This is an objectively concrete and reliable plan in small town, SK where the accused’s parents live only a block orminute walk from the Kinistino Bar. And it is important to note that not only was this plan to be implemented, it actually wasimplemented by them. The accused’s girlfriend left the bar before the accused at midnight and walked back to his parents’ place.

Andthe accused left the bar a couple of hours later at approximately 2 am and walked back to his parents’ place as well. That is, neither ofthem drove home from the bar that night and both of them had already gone to sleep before the events that led to accused going back tobar and calling police. This is an important qualitative factor that really sets this case apart from a lot of other care or control cases such as R. v. Ruest 2009ONCA 841 filed by the Crown.

In that case, not only was there no credible and reliable alternate plan to get home, but quite the oppositethe court noted that the paramount feature in its risk assessment was the accused’s stated intention to get into his car and drive homewhen leaving a New Year’s Eve party. He had been drinking and offered to give some friends a ride home. The friends becameconcerned and encouraged the accused to take a taxi instead. When he refused and insisted on driving home himself, one of the friendscalled police.

(3) Here, not only did the accused have no stated intention to drive that night, but his stated intention when talking to the policeon his cellphone from inside the truck was that he was going to wait for them in his truck until they arrived. He was not going anywhere.

(4) There is no evidence the accused was wearing a seatbelt.

(5) When the police arrived he immediately pressed the brake pedal which killed the engine that had been idling in command start mode only. He got out of the truck and walked to the front of it to show the officers the damage.

(6) The command start is programmed to automatically shut the engine off after it has been idling for 30 minutes. If the accused was to touch the brake pedal at any time while idling in command start mode, the engine would automatically shut-off. The truck cannot be driven in command start mode only. The fact he stopped the truck when the police arrived shows he had no intention to drive it.

(7) The accused had been in the truck for approximately 20 minutes before the police arrived and he did not operate it in any fashion. If he had any intention to drive, he could have easily exercised it during this time, but did not. Instead, he was turned to the right in the driver’s seat talking to his sister in the passenger seat and the witnesses in the back seat of the truck as it was a quad cab truck.

(8) The start button to the truck was never pressed. This would be the equivalent to the keys not being in the ignition in earlier care or control decisions.

(9) The accused drove and parked the truck there earlier that night when he was sober and never started driving the truck again after drinking.

(10) He was awake, conscious and alert when the police showed up. That is, he was not asleep, passed out or pulled over to “sleep it off” as is sometimes the situation in these types of cases. This is one of the distinguishing features from the Smits case where the accused was found passed out in a minivan with open alcohol in a rural, remote area. The accused had driven the van there with the intention of returning to his residence, and also had no alternate plan or means for getting home.

(11) It was -30 degrees and “freezing” outside according to the accused’s girlfriend. The bar had closed for the night and the accused believed the police were already on their way, so it was not unreasonable for them to try to keep warm in the truck while waiting for the police to arrive. I also understand why the accused did not want to bring the stranger witnesses back to his parents’ place at 3:00 am in the morning to wait for the police to come there instead.

If it ended up taking the police too long to get to the bar, I believe the accused when he says he would have just walked back to his parents’ house again, rather than drive, as he had done earlier that night. There is nothing in the evidence to suggest that the accused had abandoned his intention to walk back home again after he came back to the bar. This inference does not logically follow from the mere fact he was attacked outside the bar. There was no evidence to indicate he had any difficulty walking.

There is also no evidentiary foundation upon which I can conclude that he might have decided to drive the truck home to prevent any further damage to it. The accused was not asked this question, so this is really more in the nature of speculation or conjecture, which is not enough to constitute a realistic risk of danger according to Boudreault and Smits .

CONCLUSION [ 14 ] When I weigh all these factors and their qualitative attributes as they apply to the unique circumstances of this case, I find as fact that there was no realistic risk the accused would change his mind and decide to drive the truck while impaired. I am therefore, left in a reasonable doubt that a realistic risk of danger to persons or property existed in the circumstances of this case. The third element of the offence for care or control is lacking and I therefore, find the accused not guilty of counts #7 and #8.

[ 15 ] The next offence I will next deal with is: COUNT #9 - Attempt to Disarm a Police Officer FACTS [ 16 ] The facts surrounding this charge are that when Cst. Abbott went to arrest the accused, he took off across the street and ran down an alley next to the bar. The street was icy. Both men lost their footing. The accused literally lost his boots and Cst. Abbott took one step after him, slipped and landed on his face. He injured himself and was unable to pursue the accused any further. [ 17 ] Cst.

Cook took off after the accused and caught up to him in the alley where the snow was soft and approximately 1½ to 2 feet deep. She jumped onto the back of the accused and landed on top of him with the accused lying face down in the snow. She was straddling him from behind on the ground. [ 18 ] The accused’s hands were underneath his body. Cst. Cook was trying to get control of one of his arms to cuff him. The accused’s arms were flailing and he was trying to push himself up or away from her.

He was pushing down on the ground with his left arm while his right arm was out and trying to pull himself to the right. [ 19 ] The accused’s sister showed up on the left side of Cst. Cook and tried pushing her off the accused. Cst. Cook used her left arm to fend off the sister. But, the accused’s sister caught her off guard with one good push inside Cst. Cook’s left shoulder that resulted in Cst. Cook being pushed off the accused so that she was trying to balance herself on her right knee on the ground with her right buttock on top of her right calf.

Her inner left thigh was across the accused on the ground. [ 20 ] It was then that Cst. Cook felt a ‘pull’ or a ‘tug’ on her gun on her holster on her right-hand side. She figured it was the accused as there was no way the accused’s sister could have done it being on her opposite left-hand side. Her first thought was to get control of her gun and she was able to do that and make sure all of the straps were still done up. She felt the accused’s forearm when she reached down and he moved it. [ 21 ] Cst.

Cook was able to push the accused’s sister away and got repositioned on top of the accused as he was still trying to get up. She pressed her elbow between his shoulder blades to force him back down until Cst. Abbott showed up and they were finally able to handcuff the accused. [ 22 ] Cst. Cook clarified in cross-examination that she did not actually see the accused’s hand on her gun and that it was more of a tug on the holster where the gun is. Her holster was strapped to her belt buckle and it contains two straps: one on the top of the gun and one on the side of the gun.

Both were still intact when she checked them. Everything happened very quickly. Nothing was said by the accused and she did not say anything to him when it happened. Further, nothing was said by the accused at any time while he lay prone on the ground and she was on top of him. The accused’s sister had pushed her partially off balance and she was only partially on top of the accused when she felt the tug. The accused was always facing away from her and in the same direction she was.

That is, she was looking at the back of the accused’s head the whole time. [ 23 ] The accused testified that he never intended to grab and did not grab Cst. Cook’s gun or holster. He did not try to get her gun and his arm was never in contact with her gun. He was just trying to get away from her. He was deliberately not producing his hand and flailing his arms about to prevent them from being handcuffed. He thought that he might have bumped her gun during their struggle instead.

LAW [ 24 ] In R v Blaser , 2015 SKPC 85 [ Blaser ], Judge Hinds reviewed the law surrounding the offence of disarming a police officer in R v Jacquot , 2010 NSPC 13, 86 WCB (2d) 763 [ Jacquot ] and Watt’s Criminal Law and Evidence Newsletter (Nov 4, 2002). He determined that it is a general intent offence requiring proof beyond a reasonable doubt of the following four elements at para 65: 1. The accused took, or attempted to take a weapon; 2. The weapon was in the possession of the officer; 3. The officer did not consent to the accused taking the weapon; and 4. The officer was in the execution of their duties.

ANALYSIS [ 25 ] When I consider all the evidence, the Crown has not proven beyond a reasonable doubt the first element of the offence, that there was any attempt or effort by the accused to take Cst. Cook’s weapon for the following reasons:

(1) Cst. Cook did not actually see the accused’s hand on her gun or holster at any time.

(2) It all happened very quickly or momentarily. It was not repeated or ongoing.

(3) Cst. Cook immediately checked her gun and found it was still safely secured in the holster with both straps on. These factors are important and distinguish this case from Blaser where Hinds, J. found Mr. Blaser’s left hand was grabbing onto the grip of the constable’s firearm for 3 to 4 minutes and that the constable could not get Mr. Blaser’s hand off the grip of her firearm. Instead, this case is more like Jacquot where the officer ‘felt’ the holster holding his service revolver ‘move’ on two or three occasions, but no one actually saw Ms. Jacquot touch the revolver.

She was hysterical and very upset while pawing or pulling at the officer’s waist, hip and pants belt area in an attempt to pull the officer off her husband. In that case, the court concluded that the Crown had not established the charge beyond a reasonable doubt based upon the fact that the officer only ‘felt’, but did not actually see, his pistol move in its holster and the evidence was equally consistent with Ms. Jacquot being very upset and hysterical in ‘pawing’ at the officer in a frantic attempt to pull him off of her husband.

(4) The accused and Cst. Cook were engaged in a constant and intense struggle with the accused’s arms under him on the ground and flailing all about to the sides to prevent them from being handcuffed. There was a lot of contact between the two while Cst. Cook wrestled to handcuff him from behind in the snow on the ground.

(5) When the ‘tug’ or ‘pull’ happened, Cst. Cook was unsteady and unbalanced on top of the accused in the deep snow as she had just been caught off guard by the accused’s sister who gave her a good shove pushing her partially off the accused, so that the right side of her body, where the gun is holstered, was hunched down on her right leg on the ground with the inside of her left leg across the accused.

(6) When I consider Cst. Cook’s position at that time it would have been virtually impossible for the accused to blindly reach backwards and sideways all the way across Cst. Cook to try to take her gun.

(7) The accused was deliberately not putting his arms back and flailing them about so that they could not be cuffed. With the accused’s arms continuing to flail about it is quite possible his right arm made contact with her gun or holster behind him and that he would not necessarily have even seen or known about it given the position he was in on the ground. It is entirely possible and equally consistent that his arm or hand contacted Cst. Cooks’ holster or gun in an accidental manner when he was flailing them about to keep from being cuffed.

(8) The accused had his back to the officer the whole time. He was lying face down on the ground with Cst. Cook on top of him. He was always facing down with his head towards the ground and would not have been able to see exactly what was going on behind him in the dark alley in the middle of the night.

(9) The accused stood up well in cross-examination when confronted about whether he ever touched or pulled, or intended to touch or pull, the officer’s gun.

[26] All of the above left a reasonable doubt in mind whether the accused attempted to take Cst. Cook’s gun. In coming to thisconclusion, I understand the fear Cst. Cook must have felt for her life in that situation, which she clearly displayed when testifying aboutit on the stand. I do not believe she was being anything but sincere and in no way wish to take away from the genuine feelings sheobviously experienced that day.

It just is possible that there is another explanation for the sensation she experienced and I cannotdiscount that when the test for a criminal conviction is proof beyond a reasonable doubt. [27] I have also considered as part of my reasoning that Cst. Cook was not specifically asked in cross-examination whether shethought the accused might have accidentally brushed up against her gun or holster. I agree with the Crown that is not a situation of aclear breach of the rule in Browne v. Dunn, (1894) 6 R 67 (HL).

Not every failure to cross-examine will lead to an adverse inferencebeing drawn from it (R v Lyttle, 2004 SCC 5 , 2004 SCJ 8). This is not a fixed or absolute rule and extent of its application lieswithin the discretion of the trial judge, and depends on the circumstances of the case. If the contradictory matter is general and apparent,there is no need for specific cross-examination (R. v. Quansah, 2015 ONCA 237). [28] Cst. Cook was visibly upset on the stand and clearly feared for her life alone in that back alley. She had difficulty testifyingand the trial was adjourned to allow her to compose herself.

In those circumstances, it was incumbent upon defence counsel to becareful and considerate in how he conducted his cross-examination of her. He was not seeking to contradict or attack her credibility on acentral feature of substance in this case. She clearly feared for her life and did not think it was an accident. She had alreadyacknowledged that she did not actually see the accused place his hand on her gun, so not much would have been gained by asking heropinion whether she thought the accused meant to take her gun or it was accidental.

Besides, this is something for the court, not a policeofficer, to determine on all the facts of the case. CONCLUSION [29] In all these circumstances, I do believe that there is a real possibility that any contact made with Cst. Cook’s gun holster wasaccidental and not a clear attempt to take her weapon. The Crown has not proven beyond a reasonable doubt the first element of thisoffence and the accused is therefore, not guilty of Count #9. COUNT #5 - Resist Arrest FACTS [30] The accused has already pled guilty to resisting Cst. Abbott by running off after Cst.

Abbott told him he was under arrest andgrabbed hold of the accused’s arm to cuff him. The accused ran across the street, losing his boots in the process, and down an alley nextto the bar. Cst. Abbott tried chasing after him, but slipped on the ice and injured himself. Cst. Cook took up the chase. The accusedcontinued over some hard packed snow in the alley and into some soft snow approximately 1½ to 2 feet deep. This slowed the accuseddown enough that Cst. Cook caught up to him and jumped on his back to try and restrain him.

This was not enough though as by theaccused’s own testimony, he continued to struggle with Cst. Cook while she was on top of him by fighting to get away from her. He wason his belly, but still wanted to get away. He was trying to go forward and push away. He was crawling with his hands and trying to getup and get away from Cst. Cook. [31] I therefore, find the Crown has established beyond a reasonable doubt that the accused resisted Cst. Cook in the execution ofher duty by fighting her to try and get away contrary to s. 129(

a) of the Criminal Code. LAW & ANALYSIS [32] However, the accused argued that having already pled guilty to the offence of resisting arrest in count #4 of the Informationhe should not also be convicted of this same offence of resisting arrest in count #5 based on the rule against multiple convictions

contained in Kienapple v The Queen, (SCC), [1975] 1 SCR 729 [Kienapple]. In that case, the Court held that anindividual should not be convicted of more than one offence for the same act or violation of the law.

The Court subsequently elaboratedin R v Prince, (SCC), [1986] 2 SCR 480 that in order for this rule in Kienapple to apply there must be a factual nexusbetween the two charges and there must be a very substantial overlap in the legal elements required for each offence. [33] I have considered, but determined that the rule in Kienapple does not apply in the facts of this case which involve entirelydifferent elements for each offence under each charge. That is, the accused resisted two entirely different police officers in two entirelydifferent ways. The first was by running off from Cst. Abbott.

The second was by fighting to get away and becoming involved in aphysical altercation with Cst. Cook. [34] It was one thing for the accused to simply run away from an officer when he was first arrested. It was quite another thing forhim to continue to struggle and fight against another officer who is on top of him lying face down on the ground with an elbow betweenhis shoulder blades to restrain him. These do not represent a very substantial overlap in the legal elements of the offences or part of thesame delict, transaction or event.

CONCLUSION [35] I therefore, find the accused guilty of count #5 and remit this matter for sentencing along with the other counts in thisInformation to which he has pled guilty. ______________________ J. Rybchuk, J