Her Majesty the Queen - v. -, 2013 SKPC 219

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 219 Date: October 16, 2013 Information: 24400822 Location: Ahtahkakoop First Nation _____________________________________________________________________________ Between: Her Majesty the Queen - and - Robin Arvin Masuskapoe Appearing: Jennifer Claxton-Viczko For the Crown Allicia Hunter For the Accused DECISION G. M. MORIN , J [ 1 ] Robin Arvin Masuskapoe is charged that on or about the 3 rd day of December, A. D. 2013, at Ahtahkakoop First Nation, in the Province of Saskatchewan did : (1) while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle contrary to section 253(1) (

a) of the Criminal Code ; And furthermore

(2) having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle contrary to section 253(1) (

b) of the Criminal Code . [ 2 ] At the outset – it is clear that the defence admits that Mr. Masuskapoe was operating a motor vehicle while his ability to operate it was impaired . [ 3 ] The issue is whether his conduct should be excused on the basis of the defence of necessity. [ 4 ] The testimony was clear that Mr. Masuskapoe was the driver of his truck and he was intoxicated. [ 5 ] On December 3, 2011, the defendant was drinking that evening and he made arrangements for a designated driver, Curtis. He had earlier been looking for gas but to no avail.

He then went over to his grandmother ’ s residence and his uncle Arvin was there. His grandmother was apparently unhappy that he had been drinking and she did not want him in the house and asked him to leave. He had an aunt that lived next door. [ 6 ] He went to his aunt ’ s but no one was home. He subsequently went to his uncle ’ s house which was approximately four miles away. He was trying to sleep on the couch when his cousin came in and proceeded to attack him for no apparent reason and he was also threatened. [ 7 ] He made a hasty retreat and he took off, after his cousin approached the vehicle.

It was minus 25 Celsius and very cold. [ 8 ] His next option was to drive to his sister ’ s place about five miles away. Unbeknownst to him, he had been reported by his grandmother that he had been drinking and now driving. He was stopped by the police before he made it to the paved part of the highway. [ 9 ] The Crown argues that Mr. Masuskapoe did not offer this explanation to the police once he was charged. He did not offer an explanation rather he said I ’ m drunk.

The implication is that an early explanation gives the theory a better chance of being believed in the eyes of the Crown. [ 10 ] The Crown also asserts that the accused made some admissions which were different.

For instance, he says he dropped off the designated driver but now he testifies his cousin was picked up by the designated driver ’ s girlfriend. [ 11 ] He apparently also stated that he wanted to drive and this was his second impairment. [ 12 ] Defence stated that part of the problem is taking everything he said at the time he was talking to the police was that the accused was drunk so what he said is to be viewed under that lens and content.

He doesn ’ t deny he was intoxicated. [ 13 ] The defence of necessity is articulated in two sources: Section 8(3) states: Every rule and principle of the common law that renders any circumstance a justification or excuse for

an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except insofar as they are altered by or are inconsistent with this Act or any other Act of ... [ 14 ] R. v. Latimer, 2001 SCC 1 , states the law which governs the defence of necessity and there are three elements :

(1) Imminent peril or danger;

(2) The absence of a reasonable legal alternative; and

(3) Proportionality between the harm inflicted and the harm avoided. [ 15 ] Defence and Crown made their submission in writing and I will not elaborate other than what I quote herein. [ 16 ] Defence states the defendant was in imminent danger and he could have frozen to death. Suffice to say – the distance between different residences are of some considerable distance. One only has to think of the Pauchy case when two children were exposed to severe weather conditions with their father who was intoxicated and they perished.

Yes he was in considerable trouble with the weather conditions, time of night, no gas and no phone service with Rogers cell phone service outside city limits. [ 17 ] Defence states the defendant had no legal alternative but to drive to another residence. [ 18 ] On the third aspect of the defence articulated in Latimer , the issue of proportionality between the harm inflicted and the harm avoided needs some assessment. First of all there is no evidence of any accident or damages sustained as a result of the defendant ’ s driving while impaired by alcohol.

Actual harm is to be the barometer - here no harm has come to the public, see: R. v. Derosiers, 2007 ONCJ 255 , at para. 24 . The facts on which defence stated that they have presented to the Court, are sufficient. [ 19 ] The Crown does not raise reasonable alternatives to the cold minus 25; the dangers of running out of gas, parked, waiting and to keep warm. To merely suggest that the defendant voluntarily chose to drive offers no more than what the facts bear out. Yes he drove to avoid being frozen to death or being beat up more severely. [ 20 ] Therefore Mr.

Masuskapoe ’ s conduct of driving while impaired and while over .08 is excused by reason of the defence of necessity and he is acquitted on both charges. [ 21 ] Each case will turn on its own facts, here the facts given by the defence were sufficient to raise a defence which has strict parameters. [ 22 ] Dated this 16 th day of October, A.D. 2013, at Ahtahkakoop First Nation, in the Province of Saskatchewan. _______________________ G. M. Morin, J