Her Majesty the Queen - v. -, 2013 SKPC 178

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 178 Date: December 4, 2013 Information: 24471461 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Christopher L. Brown Appearing: Ms. Lori O ’Connor For the Crown Mr. Streeton and Ms. Will For the Accused JUDGMENT J.F. RYBCHUK , J INTRODUCTION [ 1 ] A favourite pastime for many people living in rural, northern Saskatchewan is off-roading or “playing in the mud” as the accused, Christopher L. Brown, likes to call it.

That is, at least until he found himself stuck in the mud and charged with impaired driving, over .08 and resisting a peace officer on May 20, 2012.

FACTS [ 2 ] The accused had been out “playing in the mud” with his buddies on a neighbour’s back forty the afternoon of May 20, 2012. This was a common form of recreation and sporting event for them. He had specifically purchased his Ford F-250 3/4 ton truck for this purpose. He had the truck lifted and placed large mud tires on it. The object of the game was to see how far out in the mud and bush they could take their trucks and get back out without getting stuck.

The accused acknowledged that he faired quite poorly that day. [ 3 ] He had consumed two or three beers that afternoon while out 4x4ing with his friends. He then went for supper with a friend and after supper, drove to Smeaton, Saskatchewan for a house party. The accused did not like driving his 4x4 truck with its larger, more aggressive and expensive tires on the pavement as it tends to shred them.

So, along the way he drove in and out of ditches alongside the road and into farmers’ fields tearing around a little bit, until he eventually ventured into one ditch too deep and ended up getting stuck in the mud and water around 8:00 p.m. that evening. [ 4 ] The accused tried going back and forth with his truck a few times, but it quickly became obvious to him that it absolutely would not move and was stuck. He decided to call a friend, Shawn Stringer, who was in a distant town, St. Brieux, at the time. He made arrangements with his friend to come pick him up in about an hour and give him a lift into town.

The sun was going down and the truck was not going anywhere. The accused decided he would have to wait until the morning to tow the truck out. [ 5 ] He shut off the vehicle and lit a cigarette. He remembered the box of beer for the party that he had in the box of the truck. He opened one up and sat back waiting for his ride to arrive. He waited awhile and probably had a couple of cigarettes and beer before eventually leaning over to take a nap and wait his friend out. [ 6 ] The aforementioned was all uncontradicted evidence of the accused which I accept.

It is at this point though that the accused’s testimony began to get fuzzy and contradict that of Cst. Dyck who arrived on the scene next. Wherever this occurred, I accept the evidence of Cst. Dyck to that of the accused and have rejected the accused’s testimony in this regard entirely, for the following reasons: (

i) Cst. Dyck was sober and took notes of the incident; (ii) Cst. Dyck remembered and testified clearly to the events that day with minimal reference to his notes. He remembered the events clearly and independently; (iii) the accused’s testimony simply was not believable because: (

a) he was argumentative and cagey in his responses to the Crown prosecutor’s questions; (

b) he had a chip on his shoulders with a partiality or motivation to be self-serving in his testimony given his admitted past bad experiences with some members of the local R.C.M.P., including Cst. Dyck in particular; (

c) the accused’s capacity to observe, remember and communicate what occurred next was compromised by his decision to start drinking and sleeping after finding himself in this precarious situation; (

d) his drinking compounded by his sleepiness meant he could not recall details clearly, or at least the details that did not benefit him, whereas he could recall quite clearly those details that did benefit him (e.g. that he had put the keys in the console; he only drank two beer after getting stuck; his friend was coming to pick him up, not pull him out); (

e) he was elusive and either could not recall or qualified his responses to many questions (eg. he was “somewhere” in the truck cab when drinking; he was “probably” in the centre seat; there was a “good chance” that when lying down his feet were under the steering wheel; it was “not likely” the keys were in the ignition; “perhaps” he was loud; and “define difficult”); (

f) the accused’s actions when being removed from the vehicle were not the actions of somebody sleeping or just waking up. His clutching to the steering wheel and frame of the truck does not sound like somebody sleeping. Furthermore, after falling in the water once and then getting up and grabbing the vehicle again are not the actions of somebody who is sleeping and unaware of what is going on around him; and (

g) the general tenor of his evidence (i.e. his demeanour and manner in which he presented himself) was not credible. [ 7 ] As a result of a phone call received at 8:25 p.m. at the R.C.M.P. Smeaton Detachment, Cst. Dyck drove to the scene where the truck was located. He arrived at 8:42 p.m. and got out of his truck to investigate. It was still light out. Cst. Dyck noticed tire marks

on the grass, swerving down from the gravel road and into the ditch full of water. The truck was in the water and surrounded by water on all sides. There were no footprints in the grass or mud in the ditch. The truck was closer to the farmer’s field than the road. The truck was on an angle with the driver’s side more in the water than the passenger’s side. In his opinion, a person would have had to hang onto something inside the truck in order to sit on the passenger’s side of the truck. The water in the ditch was up to Cst.

Dyck’s knees and three-quarters of the way up the large mud tires on the truck. [ 8 ] As Cst. Dyck approached the truck, he noticed that there were a couple of empty beer bottles in the outside box of the truck. He noticed a man laying down inside the truck. His feet, legs and butt were in the driver’s seat with his upper body laying to the right on his right side next to the driver’s seat. Cst. Dyck knocked on the window and opened the door to see if he was okay. He recognized and called the accused by his name “Chris”. The accused did not respond. The officer asked if he was okay. Cst.

Dyck could not remember the accused’s exact words, but did remember that the accused indicated he was okay. [ 9 ] These gentlemen were known to each other. The accused still had his eyes closed and was unresponsive so the officer tried shaking him a little bit. The accused reacted a little bit and got up, but then went back down again. It was Cst. Dyck’s opinion that this was deliberate. [ 10 ] Cst. Dyck was in full uniform that day and identified himself as a police officer to the accused. [ 11 ] He noticed that the accused’s clothing, including footwear was dry, as was the inside cab of the truck.

The keys were in the ignition, but the lights and the radio were not on and the truck was not running. There was no evidence however, that the Ford truck was having mechanical difficulties or could not start. [ 12 ] Cst. Dyck eventually sat the accused up in his seat. At this point he noticed a strong and overpowering smell of smoke in the cab of the truck and lots of cigarettes in the ashtray. There was no smell of alcohol. Cst. Dyck asked when the accused last had a drink of alcohol. The accused gave several different answers of “two days ago”, “one day ago”, “five minutes ago” and “15 minutes ago”. Cst.

Dyck did not think the accused was confused, but rather that this was on purpose and it looked like a game to him. [ 13 ] The accused was not making any sense. The officer believed he had grounds and arrested the accused for impaired operation of a vehicle. He offered to lift the accused out of the truck and across the water in the ditch to the police vehicle to avoid getting wet. [ 14 ] The accused then laid back down again and it became apparent to Cst. Dyck that he was not coming to the police vehicle willingly. Cst.

Dyck asked to see the accused’s wallet so he could get his licence and registration, but the accused did not think he needed to see his wallet. Cst. Dyck grabbed the accused again and said forcefully that he should get out of the truck, at which point Cst. Dyck proceeded to grab the accused while he was lying down and pull him backwards out of the truck. Cst. Dyck used his left hand to grab hold of the accused’s left arm, and his right hand to grab hold of the right side of the accused’s body to try to pull him from the truck.

The accused grabbed hold of the steering wheel with one arm and the frame of the truck with the other arm, instead. [ 15 ] The result was that both men fell together into the water-filled ditch. A tussle ensued with both men eventually standing up and the accused stiffening up and grabbing hold of the truck again while the officer tried moving him away from the accused’s truck in the ditch towards his police truck on the road. The result was that both men fell back down again into the water in the ditch. [ 16 ] At some point the accused eventually indicated he had enough.

He took off his wet jacket and stood on the road. He was handcuffed by Cst. Dyck and placed in the police truck. [ 17 ] While in the police truck, Cst. Dyck could smell alcohol on the accused. The accused asked for his cell phone. Cst. Dyck went back into the ditch to retrieve it from his truck. Cst. Dyck called to have a tow truck come get the accused’s truck out of the ditch. Both Cst. Dyck and the accused agreed in their testimony that the truck was stuck and needed to be towed out. Where they differed though was that Cst.

Dyck believed it could be towed out by another vehicle of the same size, whereas the accused believed it would require wheels shocks, a large winch or a tractor to tow it out.

[ 18 ] Cst. Dyck asked the accused how he got in the ditch in the first place and the accused indicated that it was none of his concern as he had made arrangements with somebody else to come pick him up. [ 19 ] The accused’s manner of speaking was fine while on the roadway and in the police truck. Cst. Dyck could understand him. However, when answering questions the accused’s responses were curt and biting and he began to become belligerent. [ 20 ] The officer had previous dealings with this accused, none of which were good. The accused told Cst.

Dyck to make sure he took good notes of everything as on a previous occasion he did not. [ 21 ] The accused was formally arrested for impaired driving at 8:52 p.m. He was read his rights warning at 8:53 p.m., police warning at 8:54 p.m. and breath demand at 8:55 p.m. Nobody drove by the scene while Cst. Dyck was there. [ 22 ] They eventually departed for the R.C.M.P. Nipawin Detachment at 9:01 p.m. Along the way, the accused began badgering Cst. Dyck and repeatedly told him to make sure he takes good notes and that he does not have a good case because he was not in care and control.

The accused was becoming loud in the vehicle so the officer turned up the radio so he would not have to listen to him. [ 23 ] They arrived at the Nipawin Detachment at 9:42 p.m. The accused urinated at 9:45 p.m. The accused was not walking too bad while at the detachment. The accused continued with the belligerent, loud speech though. He burped or belched three times while at the detachment. The breath technician, Cst. Malkoske, believed the accused was delaying the breath tests.

So after the third burp he told the accused to control his burping and explained to him that he would be charged with refusal if he burped again. The accused did not burp again. Two breath samples of .200 and .190 were obtained at 10:27 p.m. and 10:49 p.m., respectively. The accused urinated again between the breath samples. [ 24 ] The accused kept saying that Cst. Dyck should take good notes and that the breath samples did not matter. [ 25 ] Cst. Dyck later released the accused and drove him into Choiceland where his mother picked him up. ISSUES

(1) Was the accused in care or control of the vehicle?

(2) Did the accused resist arrest by not physically leaving the vehicle? ANALYSIS

(1) Was the accused in care or control of the vehicle? [ 26 ] The accused was charged in Information 24471461 with one count of impaired operation of a motor vehicle contrary to sections 253(1)(

a) and 255(1) and a second count of operating a motor vehicle while over .08 contrary to sections 253(1) (

b) and 255(1) of the Criminal Code . However, both Crown and defence counsel agreed that this really is a case of care or control, which is an included offence [1] and on which basis they argued the matter.

[27] Section 258(1)(

a) of the Criminal Code[2] creates a rebuttable presumption of care or control where the accused occupies theseat or position ordinarily occupied by a person who operates a motor vehicle. [28] It does not matter whether the vehicle is operable or movable; where the presumption in section 258(1)(

a) applies and is not rebutted, the accused is in care or control of a motor vehicle[3]. [29] Cst. Dyck’s evidence was that the accused’s feet, legs and behind were located in the driver’s seat of the truck with his upperbody laying to the right when he found him sleeping in the truck. Defence counsel did not take issue with whether this constituted the“position ordinarily occupied by a person who operates a motor vehicle” and agreed the presumption applied in these circumstances.

Instead, the accused was called as a witness to testify and rebut the presumption, which presumption was rebutted and was conceded toby counsel for the Crown. [30] The accused testified that when he was on his way into Smeaton, Saskatchewan the evening of May 20, 2012, he was drivinghis 3/4 ton 4x4 truck in and out of water-filled ditches. He was not certain what time exactly other than it was “about 8:00 p.m.” that heentered the ditch in which his truck became stuck.

He attempted to move the vehicle back and forth a few times to get it out, but it soonbecame abundantly clear to him that this truck was not going anywhere. He therefore, called a friend and made an alternate plan to havehim pick him up and drive him into Smeaton. The friend indicated it would be quite some time before he could travel from St. Brieux topick him up, so the accused had no option but to sit back and wait. It was getting late in the evening and the sun was going down. Theaccused would have to wait until the next day to tow his truck out.

While he was waiting, he smoked some cigarettes, drank some beerand fell asleep. [31] The accused’s evidence was that the truck was not moving anywhere without “serious assistance”. Both Cst. Dyck and theaccused agreed that the truck would need to be towed out by another vehicle.

They just disagreed on the size and towing capacity of thatother vehicle that it would take to tow the accused’s truck out. [32] The accused was not certain at what time exactly he entered the ditch other than it was “about 8:00 p.m.” I have alreadyindicated my concerns with the testimony of the accused in the general, so I am not convinced beyond a reasonable doubt of the actualtime he was last operating or in care or control of the truck that evening, and I have no evidence whatsoever of the condition or state ofimpairment the accused may have been in at that time, particularly given that he subsequently consumed alcohol after becoming stuckand before Cst.

Dyck arrived. [33] However, I am satisfied on a balance of probabilities required to rebut the presumption that he was operating the truck when itentered the ditch and that he aborted care or control of it shortly after it became stuck and evident to him that it would not moveanymore. It was at this point that he abandoned his intention to drive and made alternate arrangements to get picked up and driven intotown. He fell asleep while waiting and having a smoke and a beer. He no longer occupied the driver’s seat of the truck for the purposeof setting it in motion. [34] R. v. Debnam, [1998] S.J.

No. 399; (SK KB), 166 Sask. R. 262 (Sask. Q.B.) is a case very similar to thisone where the accused was driving on a grid road near Esterhazy, Saskatchewan late at night. He swerved to miss a deer and his vehiclewent into the ditch and came to rest partly submerged in a slough. He tried to start the car but there was no way it would run. He got outof the car to check under the hood, but slipped and fell in the water. He re-entered the car and attempted to use his cellular phone to callhis fianceé, but the phone would not work. So he had to wait for someone to come along to get a ride.

The passenger’s side of the carseat was wet. Because he was wet from falling, he took off his pants and pulled his feet up on the car seat and pulled his sweatshirt overhis knees in an effort to stay warm. This was the position Debnam was in when the police officer eventually arrived later.

Whilewaiting, Debnam drank beer that he had in his car. [35] Madam Justice Hunter of the Saskatchewan Court of Queen’s Bench, as she then was, determined that Debnam hadabandoned the purpose of setting the vehicle in motion well before the police officer had arrived and acquitted him on the charges ofcare or control of the vehicle. [36] The accused in this case having rebutted the statutory presumption, the question then becomes whether he was still in de factocare or control of the truck when Cst. Dyck arrived on the scene.

[37] For the accused to be in care or control there must be a risk of danger.[4] In R. v. Toews, (SCC), [1985] 2S.C.R. 119, McIntyre J. stated at para. 126: 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 and control may be found will vary widely. (emphasisadded) [38] The risk of danger was refined further by Fish J. in the majority decision of the Supreme Court of Canada in R. v. Boudreault,2012 SCC 56 , [2012] S.C.J.

No. 56 (S.C.C.) where he distilled the essential elements of “care or control” 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, not just remote or theoretically possible.[5] But nor need the risk be probable or even serious or substantial.[6] [39] The Crown argues that there was a realistic risk of danger because the keys were still in the ignition of the truck when Cst.Dyck arrived and it can be inferred from the answer the accused gave in cross-examination that if he could have still driven the truck, hewould have.

The accused had other friends in the area with tow ropes and the ability to tow him out. If somebody else had come alongand offered to get him out, he would have jumped at the opportunity to do so and driven the truck again. [40] With respect, I disagree. The accused did not express an intention to drive in cross-examination. What he did say in responseto that question posed by the Crown prosecutor was that if he could have driven the vehicle, he would not have been in the ditch in thefirst place.

This is entirely different from expressing a future intention to drive again should he be pulled out of the ditch, and onlyaffirms his past intention to drive when he got stuck. Furthermore, conjecture or speculation that somebody else: (

i) might have comealong; (ii) might have seen the truck which was in the ditch closer to the field than to the road when the sun was setting or had alreadyset; (iii) might stop (note that the only other vehicle that had driven by and reported it to the police did not stop); (iv) might get out oftheir vehicle and venture down into the ditch into two feet of water; (

v) might attempt to wake the accused; (vi) might have actually beenable to wake the accused; (vii) might have tow ropes or any capability to tow him out; (viii) might offer to tow him out; and that theaccused: (ix) might accept the offer and then subsequently decide to drive again, is all in the nature of speculative, remote or atheoretically possible risk, but not a realistic risk of danger required in Boudreault. [41] The accused being asleep in an immobile vehicle in the ditch well off a grid road in rural Saskatchewan, he did not possess thepresent ability to set the vehicle in motion for quite some time before Cst.

Dyck arrived. He was incapable of unintentionally setting thevehicle in motion. His truck was not going anywhere. It was not stationed in such a way that it represented an ongoing and realistic riskof danger to other users of the grid road such as for example, by being on the road or side road with or without lights on as was thesituation in some of the cases the Crown referred to me, such as R. v. Ducharme, 2010 SKPC 31, 385 Sask. R. 1 (Sask. Prov. Ct.), whichis therefore distinguishable on the facts. [42] The existence of a realistic risk of danger is matter of fact[7].

Accordingly, I find as a matter of fact that the accusedin the position in which his truck was found did not represent a realistic risk of danger to any person or property. He therefore, did notpossess one of the fundamental elements necessary to be in care or control of the truck at the time Cst. Dyck found and arrested him, andis not guilty of counts 1 and 2.

(2) Did the accused resist arrest by not physically leaving the vehicle? [43] The accused was also charged with a third count of resisting Cst. Dyck in the execution of his duties of arresting him

by not physically leaving his motor vehicle contrary to

section 129 (

a) of the Criminal Code . The concept of resisting has been subsumed in a larger concept of obstructing a peace officer engaged in the execution of his duties.

Section 129 (

a) creates a general intent offence. The gravamen of the offence is interference with a police officer engaged in the execution of his duty by resisting or by wilful obstruction. [8] [ 44 ] The accused argues that the offence of resisting arrest has both physical and mental elements, and that in order to wilfully resist arrest the accused must have known that it was a peace officer he was resisting. The accused claims he was sleepy and groggy when he was being awakened in the truck and that is why he was either unresponsive or provided nonsensical answers to the questions that he did.

He did not answer the questions posed by the peace officer because he did not know it was a peace officer asking them. The accused also claims that he did not know it was a peace officer pulling him from the truck as he mostly had his back turned to him when this occurred. It was not until after the accused awoke, a tussle ensued and both men fell into the water in the ditch twice that the accused stood up and realized that he was scuffling with an officer of the law. [ 45 ] Having rejected the accused’s testimony wherever it conflicted with that of Cst. Dyck, I simply cannot accept this argument. Cst.

Dyck was on duty and dressed in standard uniform at the time. Cst. Dyck testified that he knocked on the window, opened the door and called the accused by his name to see if he was okay. After initially receiving a positive response from the accused that he was okay, Cst. Dyck further tried to get his attention and wake him up fully, but the accused would just lay back down and not respond to his questions. And when he did respond, he provided nonsensical answers. It appeared to Cst. Dyck that the accused was deliberately being difficult by acting like he was asleep and not making sense.

The accused got up on his own a little bit, but then would lay back down again. [ 46 ] Cst. Dyck observed: (1) tire marks in the grass indicating the truck had swerved off the road and into the ditch and become stuck; (2) empty beer bottles in the box of truck; (3) the driver of the truck laying motionless in the driver’s seat; (4) the keys in the ignition; (5) the “strong” and “overpowering” smell of smoke in the truck; and (6) when asked when he last drank alcohol the accused responded: (

i) two days ago; (ii) one day ago; (iii) five minutes ago; and (iv) 15 minutes ago. [ 47 ] Cst. Dyck had reasonable grounds and lawfully arrested the accused for impaired operation of a motor vehicle investigation, at which time he also identified himself as a police officer and served to confirm he was acting in execution of his duties as a peace officer. Cst. Dyck even offered to carry the accused out of the truck and through the water so as not to get the accused’s clothes wet, like his own. The accused then laid back down again and it became apparent to Cst.

Dyck that he was not being cooperative and was not voluntarily coming with him. Cst. Dyck asked for the accused’s wallet so he could locate his licence and registration. The accused did not think he needed to see his wallet, so Cst. Dyck grabbed the accused and told him to get out of the truck. Cst. Dyck grabbed the accused’s left arm with his left arm and the right side of the accused’s body with his right arm and pulled the accused from the truck.

The accused “stiffened up” and clung with his right hand to the steering wheel and with his left hand to the frame of the truck, causing the two men to fall into the ditch full of water. They both got up and the accused “stiffened up” again and grabbed for the truck causing both men to fall back down into the water again. It was at this point that the accused indicated he had enough and allowed the officer to assist with taking his wet jacket off. He was then handcuffed and placed in the police vehicle. [ 48 ] The accused admitted in cross-examination that he knew Cst. Dyck.

He had prior dealings with him and did not like him very much. Having considered all these facts, and in particular the accused’s grabbing hold of the truck twice when being pulled from it, leads me to conclude that he was not really sleeping when Cst. Dyck arrested and attempted to remove him from the truck. Instead, I am convinced beyond a reasonable doubt that he knew it was Cst. Dyck who was arresting him and that he was doing everything in his power to keep from being arrested or delayed in being taken into custody.

[49] I have considered all the testimony of the accused that I do accept and the testimony that I not accept, and I am not left in anyreasonable doubt by it. Rather, I am convinced beyond a reasonable doubt on the basis of the Crown evidence that I do accept that theaccused deliberately intended to interfere, and did interfere, with Cst. Dyck when he was engaged in the execution of his duty of arrestinghim for impaired operation of a motor vehicle investigation by not physically leaving, resisting and obstructing attempts to remove himfrom his truck contrary to s. 129(

a) of the Criminal Code. I therefore, find the accused guilty of count 3. J.F. Rybchuk, J [1] Section 662(1) of the Criminal Code reads in part as follows: 662.

(1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating itor as charged in the count, includes the commission of another offence, whether punishable by indictment or on

summary conviction, theaccused may be convicted (

a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or (

b) of an attempt to commit an offence so included. R. c. Drolet (1988), (QC CA), 14 M.V.R. (2d) 50 (Que. C.A.), aff’d (SCC), [1990] 2 S.C.R. 1107(S.C.C.) R. v. Pincemin, [2004] S.J. No. 134, 2004 SKCA 33 at para. 24. [2]

Section 258 of the Criminal Code reads in part as follows: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 ... (

a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, ... theaccused shall be deemed to have had the care or control of the vehicle, ... unless the accused establishes that the accused did not occupythat seat or position for the purpose of setting the vehicle, ... in motion ... [3] R. v. Saunders, (SCC), [1967] 3 C.C.C. 278 (S.C.C.) R. v. Lloyd (1988), (SK CA), 66 Sask. R. 100 (S.C.A.) R. v. Dennis (2000), 1 M.V.R. (4th) 159 (N.S.C.A.) R. v. Burbella, 2002 MBCA 106 , [2002] M.J. No. 355 (Man. C.A.) R. v. Madigan, 2006 SKPC 2 (Sask. Prov.

Ct.) R. v. Paskimin, 2006 SKCA 141 (Sask. C.A.) [4] R. v. Shuparski, 2003 SKCA 22 , [2003] S.J. No. 147; 2003 SKCA 22, (2003) 6 W.W.R. 428 (S.C.A.), leave to appealrefused,

(2003) S.C.C.A No. 167, (2003) 2 S.C.R. [5] R. v. Boudreault, supra at paras. 9 and 33.

[6] R. v. Boudreault, supra at para. 34. [7] R. v. Boudreault, supra at paras. 11 and 15. [8] R. v. Glowach (2011), 2011 BCSC 241 , 277 C.C.C. (3d) 89 (B.C.S.C.)