Her Majesty the Queen - v. -, 2011 SKPC 5

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 005 Date: January 13, 2011 Information: 24370679 Location: Carrot River _____________________________________________________________________________ Between: Her Majesty the Queen - and - Carrie Neigel Appearing: Mr. T. Healey For the Crown Mr. R. Saretzky For the Accused JUDGMENT B. MORGAN , J INTRODUCTION: [ 1 ] Based on the events of December 5, 2009, at Carrot River, Ms. Neigel was charged with one count of impaired driving, and one count of driving “over .08”, as the charges are more formally particularized in the Information.

The defence has admitted all of the essential elements of each charge; the only issue is the factual one of whether or not Ms. Neigel was the person operating the vehicle. The defence suggests that another individual, Mr. Wiens, was the driver, and that he had vacated the vehicle moments before the officers arrived.

THE FACTS: [ 2 ] The background is not in dispute. The officers had been advised that, on occasion, there were compliance issues respecting “cut off” at the local bar, so they decided to drop in while on routine patrol. The officers arrived at the hotel at 2:00 a.m., at which time they observed Ms. Neigel, and other individuals, playing “drinking games”; Cst. Holmstrom estimated that there were five or six people. Ms. Neigel jokingly asked the officers to join them. The officers gave a friendly warning to the individuals not to drive when they left the bar, and exited the establishment.

By all accounts, this encounter was quite friendly in nature. [ 3 ] The officers continued their patrol in the area, and returned to the bar at approximately 3:00 a.m., the closing time. The officers stopped in the back lane, and both noted people exit the back of the bar, and get into a black truck. Cst. Holmstrom thought that four or five people got into the truck. Cst. Stanton noted that all four doors of the vehicle were opened. The officers were not able to identify where any of the individuals sat in the truck.

Both officers were of the view these individuals were the individuals they had spoken to previously at the bar, and both officers were clearly of the view that none of those individuals were in any shape to be operating a motor vehicle. [ 4 ] Cst. Holmstrom estimated the officers were approximately 100 metres away when they first observed the vehicle being started. Cst. Stanton thought the distance was a little less. This vehicle, a four door half-ton truck, started to back up. This prompted Cst.

Holmstrom, who was driving the police truck, to immediately turn on the headlights, engage the emergency lights, and close the distance to the vehicle. The vehicle then pulled back into the spot it had just left, the police pulling in behind. Both officers quickly exited their vehicle, and both went to the driver’s side door of the suspect vehicle. [ 5 ] As Cst. Holmstrom approached the driver’s side door, he saw it start to open, and he yelled for the occupants to stay in the truck. The door started to close, and he ran to it and put his hand against it to ensure it would not start to open again.

The driver’s side window was then rolled down. Ms. Neigel was in the driver’s seat. [ 6 ] At this point, there is some dispute over the facts. Cst. Holmstom testified that he told Ms. Neigel to shut off the vehicle, which was still running; she did so, and he testified that she put the keys on to the dashboard. Cst. Stanton, who was standing just behind Cst. Holmstrom, testified that he definitely saw keys in the ignition although he did not know what happened to those keys. Both officers were clear that the vehicle was running, and that there were keys in the ignition, when they first encountered Ms. Neigel.

The defence evidence on this point is that there were no keys in the ignition, the vehicle being, at the time the officers arrived, idling under the remote “command start” that had been turned on by Mr. Wiens at the time he exited the vehicle moments before the police approached the vehicle. [ 7 ] Ms. Neigel was taken out of the vehicle, and placed in the back of the police vehicle. Cst. Holmstrom noted what he thought were signs of impairment.

About the same time, other people got out of the vehicle, and at least one individual asked for the keys, in order to start the vehicle so they could wait in the vehicle while the police dealt with Ms. Neigel. Although there was no specific evidence as to the actual temperature, all parties who testified agreed that it was very cold, and the estimate of minus 20 degrees Celsius does not seem unreasonable. [ 8 ] Eventually, Ms. Neigel was taken to the police station, and all of the other individuals who were in the vehicle walked away. Cst.

Holmstrom was not absolutely sure what happened to the vehicle keys, although he did indicate that the vehicle was left behind the bar to eventually be towed. [ 9 ] Ms. Neigel’s evidence was that she had driven her vehicle to a home approximately two blocks away from the bar, and had walked with a number of friends to the bar at approximately 10:00 p.m. or 11:00 p.m. the night before, that is, December 4. Ms. Neigel testified she had four or five drinks prior to going to the bar, and four or five drinks at the bar. She indicated that Mr.

Wiens arrived at approximately 12:30 a.m. or 1:00 a.m., and that he wasn’t drinking. As Ms. Neigel put it, the group kind of “volunteered” Mr. Wiens to be the designated driver. Ms. Neigel said she and Dave Derksen were in the front seat, although in cross-examination she said she recalled that she was in the middle, that is, there may have been a third person in the front seat. She also said that more people jumped into the back, although she could not say where anyone in the back was sitting.

[ 10 ] She went on to say that Mr. Wiens, who she says was driving, started to back the vehicle up, when someone said that “off- sale” was needed, that is, the group had no beer. He therefore pulled back in, took his keys out of the truck, and went in to obtain something for the group to drink. As he took the keys, he used a fob on the key chain to start the “command start”, that is, a remote starting device, as it was a cold evening and he wanted to make sure the individuals in the truck were warm. [ 11 ] Mr. Wiens testified that he is a guide, and had been working earlier that day in that capacity.

He stated he arrived at the bar at approximately 9:00 p.m. on December 5, and that before he got to the bar, he had a couple of drinks. There were a group of people at the bar, and he stated that he only had one beer at the bar because he was driving. [ 12 ] His evidence was that he noted the group of people at the bar whom he was acquainted with, so he sat with them and visited. He stated that he had been in the bush for a month and a half, so it was good to get out. He recalled the officers coming in, although he did not have any specific recall of particulars of what went on.

He thought the police had come in at approximately 11:00 p.m. or 11:30 p.m. [ 13 ] With respect to alcohol consumption of others, he described Ms. Neigel as being “pretty full”, a phrase I interpret to mean that she was “pretty drunk” (Ms. Neigel’s words) when the police arrived, and there is no real suggestion she was any less intoxicated when the individuals exited the bar at approximately 3:00 a.m. [ 14 ] Mr. Wiens had testified that when they left the bar, they were going to a friend’s house, and that he told people in the bar to “pile in” the truck. He stated that he was behind the driver’s wheel, and Ms.

Neigel was next to him, and there were a number of others in the back, he thought four. [ 15 ] His evidence was that he started to back out, someone made note that they had forgotten to purchase off-sale, so he pulled in, shut off the vehicle, pulled the keys out of the ignition, turned on the command start to leave the vehicle running, and went towards the back door of the bar to obtain off-sale.

He was very adamant that he didn’t want to leave his vehicle running with the keys in the ignition, the advantage of command start being that, if an individual touches the brakes (in order to put the vehicle into gear), the vehicle would automatically shut off. [ 16 ] That is the substance of the case. As mentioned previously, the sole factual issue is whether or not Ms. Neigel was the operator of the vehicle. DISCUSSION: [ 17 ] There were a number of inconsistencies, and resolution of this case can only be made by determining what the facts are.

I start by noting that, where the evidence of the Crown witnesses is in conflict with the evidence of either or both defence witnesses, I accept the Crown witnesses’ version of events. In sum, for the reasons that follow, I am satisfied beyond a reasonable doubt that Ms.

Neigel was in fact the operator of the motor vehicle at all relevant times that morning, and I am satisfied beyond a reasonable doubt of her guilt on both counts, irrespective of the acknowledgement that all aspects of the case were established, but for identity. [ 18 ] In assessing credibility, of course, I can accept some, all, or none of the evidence of any particular witness. In assessing credibility, I had the opportunity to hear each of the witnesses, and I carefully observed the manner in which they testified, and the statements that they made.

I prefer the evidence of the police officers, in general, for a number of reasons. I noted that each of the officers testified in a very straightforward and candid manner, without any attempt to fabricate or embellish. In particular, at one point Cst. Stanton testified that he wasn’t sure whether or not the vehicle had started to pull back in. As such, it was obvious he was prepared to admit to being unsure of some things, which certainly did not hurt his credibility.

By the same token, when it was suggested to him in cross-examination that he did not actually see any keys in the ignition, he was adamant and unshaken in his evidence that he definitely saw keys in the ignition. [ 19 ] I had much the same observations of Cst. Holmstrom. There were certain things he was not aware of, as he had not made

notes of all the particulars. However, when questioned on particulars that he had not noted, he was not inclined to start to fill in blanks of evidence; if he didn’t know the answer, he simply said he didn’t know the answer. [ 20 ] Both officers were polite and forthright in their evidence both in examination-in-chief and in cross-examination. Both officers were adamant and unshaken on the main points of the evidence. The fact that they were not sure of collateral matters, matters that would have been of no import in their investigation, does not detract from their credibility.

Until such time as they became actively involved in an investigation of a suspected impaired driving offence, there would be no need to pay particular attention to routine patrol matters. [ 21 ] With respect to the evidence of each of Ms. Neigel and Mr. Wiens, I note firstly that Ms. Neigel was very intoxicated at the time.

She admitted in cross-examination that there were some things she didn’t remember from that evening, and some things she had a clear recollection of, an example of the latter being her sitting in the middle of the front seat, as the other two males that she said were in the front seat, that is Mr. Derksen and Mr. Wiens, did not want to sit next to each other. When asked in cross-examination if she was driving for a bit, she said she didn’t think so, then said probably not, and then said she didn’t remember backing up or getting into the driver’s seat.

She conceded that it was possible that she did drive, although her evidence was that “if I was going to drive, I probably would have taken my truck to the bar”. She then indicated that she did remember backing up, or at least the vehicle backing up, at which point she was in the middle seat. [ 22 ] Ms. Neigel was polite and cooperative both in examination-in-chief and cross-examination, however, I have no doubt that her ability to observe what occurred on December 5, and accurately recall it almost one year later at trial, was severely hampered by her alcohol intake on December 4 and 5. [ 23 ] With respect to Mr.

Wiens, I found him to be somewhat evasive in cross-examination, a tendency he did not exhibit in examination-in-chief. The difference between the demeanour he exhibited during his testimony, based on who was asking him questions, caused me to have considerable concern. [ 24 ] Although there were a number of inconsistencies in the evidence of the defence, I restrict myself to a few examples, in order to provide specific reasons for rejecting the defence evidence. I have already dealt with Ms.

Neigel’s evidence, which I reject due to her extreme level of intoxication; her recollection of events was simply not reliable. I will now focus on some things that Mr. Wiens said. [ 25 ] First, Mr. Wiens volunteered the fact, during cross-examination, that he actually got a room at the hotel adjacent to the bar rather than drive home that night. When queried why he would stay at a hotel, when the original plan was that he was the sober one who was going to drive the other individuals home on a cold night, he simply didn’t have a satisfactory answer. I found that evidence to be simply unbelievable. If Mr.

Wiens was as sober as he says he was, having drunk a grand total of three beer over the entire course of the preceding seven or eight hours, there would be no reason for him to stay at a hotel when he was, in his mind at least, clearly sober enough to drive home. He was, after all, the designated driver. [ 26 ] I also do not accept Mr. Wiens’ evidence as to getting out of the vehicle and going in to pick up off-sale.

The police evidence is very clear, from both officers, that from the time they noted the individuals getting into the truck, until they arrived at the door of that truck, at no time was the vehicle out of their sight. As soon as the vehicle started to back up, the police officers started to approach and very quickly pulled right in behind the vehicle; at most, the entire incident took mere seconds, from the time the vehicle backed up, and then pulled in. Mr. Wiens testified that he is 6' 1" tall, and he weighs 340 pounds.

He also testified that there were four people in the front seat of the truck, including him. (He said this fourth individual was Henry Derksen.) Had Mr. Wiens actually exited the vehicle, and gone into the bar to get off-sale, the police would simply had to have observed him exit the vehicle. Both officers were absolutely adamant that they had the vehicle in their sight at all times, and at no time did the driver’s door fully open. [ 27 ] I also noted that Mr.

Wiens tended to answer questions, especially in cross-examination, by resort to what he normally does, and was simply not able to state what he specifically did on the morning in question. For example, he stated he knew he had the keys, because he wouldn’t have left the keys in the vehicle with drunk people in the vehicle. As he put it, “nine times out of ten I take my keys with me if there was someone drunk in my truck”. When pressed as to what he did that morning, he kept avoiding the issue, and I am absolutely satisfied he couldn’t recall all particulars of that night.

It took considerable cross-examination before he finally agreed he wasn’t sure that he had the keys, going on to say that the events of that night were “a bit of a blur”. As well, of course, had he been in possession of the keys when he says he returned to the bar, there would have been no need for anyone in the truck to ask the police for the keys, in order to keep warm; Mr. Wiens could have simply activated his command start. I find as a fact that the keys were in the ignition when the police arrived at the truck and had been in the ignition since the time the group entered the vehicle.

[ 28 ] In comparing the evidence of Ms. Neigel and Mr. Wiens, I note a number of inconsistencies. The time lines given by Mr. Wiens are considerably different from time lines given by Ms. Neigel. That is, Ms. Neigel said that Mr. Wiens came into the bar at approximately 12:30 or 1:00 a.m., and Mr. Wiens stated he got to the bar at about 9:00 p.m., a four hour difference. As well, Mr. Wiens thought it was approximately 11:00 p.m. when the police came through the bar the first time, fully three hours difference from the time that Ms. Neigel, and the police themselves, gave. Ms.

Neigel seemed to have a total of three individuals in the front seat of the vehicle, Mr. Wiens had four. [ 29 ] In short, the defence evidence lacks reliability. I do not accept that evidence, nor does that evidence leave me in a state of reasonable doubt. That, of course, does not end the matter. I must still ask myself if, based on the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of the defendant. I am so satisfied. [ 30 ] In review, I am absolutely satisfied of the following facts: 1) at the time the individuals got into the truck, Ms.

Neigel was behind the wheel; 2) at no point did anyone other than Ms. Neigel have operation of that vehicle; she was the one who backed it out, and again pulled it forward; 3) at no time did any individual exit the vehicle, after getting in the vehicle as observed by the police; 4) keys were in fact in the vehicle, and it was running, as the police came to the driver’s side door; 5) Ms. Neigel’s blood alcohol level exceeded the permitted amount (count 2).

The Certificate of Analyses tendered as Exhibit P-1 by consent shows a blood alcohol level of 150 milligrams of alcohol in 100 millilitres of blood, at 3:30 a.m., and again at 3:51 a.m., on the morning of the incident. [ 31 ] I find Ms. Neigel guilty on count 2, the “over .08”, as particularized in the Information. I also find her guilty on count 1, the charge of impaired operation of a motor vehicle. However, in order to avoid offending the rule against multiple convictions, I enter a judicial stay on count 1, to become final upon the expiration of all appeal periods. B. Morgan, J