Her Majesty the Queen - v. -, 2015 SKPC 21

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 021 Date: February 11, 2015 Information: 24541422 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Garrett Kazmiruk Appearing: Will Collins For the Crown Kaitlyn Perrin For the Accused JUDGMENT M.L. GRAY , J [ 1 ] Mr. Kazmiruk was charged on March 29, 2014 at Warman, Saskatchewan with operating a motor vehicle while his ability to do so was impaired by alcohol contrary to s. 253(1) (

a) of the Criminal Code . Although a Charter notice had been provided alleging violations of ss. 9 and 10(

b) of the Charter of Rights and Freedoms , that application was abandoned at the conclusion of the Crown’s case. At the outset, counsel for the accused admitted identity and voluntariness of any statements made by the accused to a police officer. Evidence

[ 2 ] At approximately 1:30 a.m. on March 29, 2014, Carla Kazmiruk, the mother of the 21 year old accused, received a phone call from her son, who sounded panicked, asking her to come to a location very near to their home “now”. Still in her night wear, she immediately went to him and saw her son standing near his “smashed in” vehicle. The hood of the truck had been pushed in and a van was on the sidewalk. He told her that he had fallen asleep and hit the van. There was no one else around. She and the accused then drove home, where she dressed, before returning to the collision scene.

They arrived about ten minutes later with the intention of finding out who owned the vehicle that had been struck. This time, there were three people present; she learned that the police had been called. [ 3 ] One of the men there identified himself as the owner of the van and she told him that the damaged truck belonged to her son who had been driving at the time of the accident. Two younger males also were present. She went to the truck and, with her son’s assistance, retrieved his hockey equipment from the box.

She noted an empty beer can on the street near the driver’s door that may have fallen out when she opened the back door of the truck; there was another can on the floor of the back seat. She could not say whether the tins were empty or full. [ 4 ] About 10 minutes later, two or three police vehicles arrived. She told the female officer that her son had called her after the accident; she could not recall if she told the police officer the time of the call.

She also told the officer that her son had been drinking. [ 5 ] She saw no sign that her son had been consuming alcohol but assumed he had because of his plans for the evening. She asked him if he had been drinking and he told her that he had a few. She did not see him drink between picking him up at the accident scene and returning there. [ 6 ] Since the incident, she has spoken to her son who told her that he had about eight beer over the course of that evening and that he had gone for supper, to a concert, and then to a pub called Hudson’s.

He also said that he was very tired as he had been up at 4:00 a.m. and had worked all day. He did not remain in the city as originally planned because the others with whom he was socializing wanted to stay out and he was tired. She denied that she had discussed her testimony with her son. [ 7 ] In cross-examination, she said she had no difficulty understanding her son’s speech; she did not smell alcohol on him and he did not display any symptoms of impairment which is why she asked whether he had been drinking.

She did not notice anything about the way he walked. [ 8 ] Doug McLeay testified that he lives on August Drive in Warman, Saskatchewan and that he owns a Chevrolet Astro van. At about 2:30 a.m. on March 29, 2014, he was awakened by his son who told him that a truck had collided with the van. As a result, he went outside and saw that his van had been hit by a truck and pushed approximately 35 feet forward from where he had originally parked it at about 11:00 p.m. on March 28, 2014. It appeared that the truck had come over the curb, and onto the sidewalk before striking the right rear of the van.

The left front of the truck was damaged and its lights were flashing. There was no one around. The police were called. [ 9 ] Although they looked around the van and the truck and noted serious damage to both, they did not touch anything or disturb the scene. He noted a beer can on the ground as if it had fallen from the driver’s door of the truck. He also noted beer cans inside the truck and the hockey equipment in the box of the truck. [ 10 ] While waiting for the police, a woman and young man, who identified himself as the owner or driver of the truck, arrived.

Within ten minutes of the call to the police, three cars responded; the male driver of the truck and his mother arrived about five minutes before the officers. [ 11 ] When asked about his observations of the driver of the truck, he said that the woman did the talking while the male stood quietly by the car. He described the accused as “shocked, stunned, not with it, maybe because of the accident”. He could not say if he was impaired other than he did not look “with it”. Mr. McLeay has worked with people under the influence in businesses such as bars and restaurants.

He assumed that the accused had been drinking based on his physical appearance and the accident; he did not speak to the accused. When asked to explain what “not with it” means, he described it as someone who has been drinking can seem to be spacey or dazed and sometimes quiet, perhaps on the verge of passing out. That was very similar to how the accused appeared to him. The accused was placed into the patrol car fairly quickly after the police arrived.

[ 12 ] In cross-examination, Mr. McLeay indicated that he simply assumed that the accused was impaired because of the accident, the beer cans and the mother’s statement. When pressed and asked if he would have drawn the same conclusion if he had not seen the beer cans and had no conversation with the accused’s mother, he indicated that would have been his first conclusion simply given the nature of the accident. When asked why he did not think that it was just an accident, he said that the accused did not interact, he offered no apology or explanation, and simply stood back.

It was his view that if he was alert and coherent he would have spoken to him as the owner of the damaged van and been more vocal or involved. [ 13 ] Matthew McLeay indicated that he was out with a friend and arrived home at approximately 1:45 a.m. on March 29, 2014. He noticed that a white truck had hit the rear of his father’s van and that there was no one at the scene. As a result, he went in to waken his father. He noticed that there were empty beer cans in the bed of the truck along with some hockey equipment and an empty beer can on the road by the driver’s door of the truck.

It was his view that the truck had been totalled off as the whole front end was damaged and the air bags had engaged. The passenger rear of the van had been damaged. He believed that his friend Kyle called the police within five or ten minutes of arriving home and that his father also called about two minutes later. [ 14 ] About five minutes before the police arrived, a woman and a young man arrived at the scene. His opinion was that the woman appeared concerned while the young man seemed “freaked out”. The young man said nothing; his mother did the explaining.

He described the young man as “dizzy, panicked, like you would if you just hit a car”. He stood looking at the ground and never spoke. He did not speak to the accused, only to his mother, although the accused was within earshot. [ 15 ] In cross-examination, he said that he did not see the accused get out of the car when he arrived at the scene as he was on the far side of the vehicle. He did not see the accused stumble and opined that he “looked shaken up”.

He went on to add that the accused looked “like he didn’t know what happened” and also noted that the accused did not speak at all and that the mother did the talking. [ 16 ] Constable Heidi Marshall has been a member of the Royal Canadian Mounted Police for 13 years and has had frequent occasion to deal with people under the influence of alcohol in the course of her duties. At 1:51 a.m. on March 29, 2014, she was dispatched to a motor vehicle accident on August Drive in Warman where a white Chevy truck had rear-ended a van and the driver had left.

As a result of this call, she and Constable Hiscock attended to the scene at 2:04 a.m. where they were met by Constables Zwarych and Bush. She saw a light coloured Chevy van with damage to the right rear panel and a truck with damage to the driver’s side and front. The hazard lights on the truck were on and it was some distance back of the van. On the sidewalk were a group of people. [ 17 ] While she was still by her patrol car, she was approached by the accused and his mother; both told her that he had been driving.

She asked if anyone else had been in the vehicle; the accused said there was no one else and that he had fallen asleep at the wheel while travelling north. During this conversation, she noted a strong smell of alcohol from his breath from approximately one metre away. The accused appeared calm which seemed unusual given the severity of the accident. She thought he mumbled his surname because it was not clearly pronounced. She also noted that he had glassy, watery eyes and appeared very tired.

After the initial four minute conversation, she asked the accused to attend to her patrol car to complete a Traffic Safety Act accident report. He seemed steady on his feet but as he walked to the patrol car he swayed to one side. At this point, she started to form the opinion that he might be impaired by alcohol so placed him under arrest, and advised him of his rights to counsel.

He said that he understood his rights and when asked if he wished to call a lawyer responded, “don’t know, I’m guilty, don’t know why I need a lawyer”. [ 18 ] A breath demand was made and the accused was advised he would be taken to Martensville to provide breath tests. As Constable Hiscock was a qualified breath technician he travelled with them. En route, the accused said he arrived at O’Shea’s between four and five in the afternoon and had two or three light beers. At about six o’clock he went to the Odeon for a concert and had three or four cans of beer.

When the concert ended at 11:00 p.m., he went to Hudson’s and between 10:30 and 11:00 p.m. had three to four more drinks. He denied using any drugs. He left Hudson’s about 1:00 a.m. and believed the accident occurred at 1:30. [ 19 ] About 2:30 a.m., at the detachment, the accused was asked if he wanted to call a lawyer; he said he did not. While following the accused down the hall to the interview room, Constable Marshall again noticed a sway to the left side. [ 20 ] At the detachment, the accused was presented to the breathalyzer on four occasions and two suitable samples were obtained.

There was no evidence before the Court as to the results of those tests or how those results might relate to the impairment of driving skills.

[ 21 ] Throughout Constable Marshall’s dealings with the accused, he appeared relaxed, very tired and disinterested. On two occasions, he fell asleep sitting in a chair. She also noted that he was burping a lot and there was a very strong smell of alcohol in the room. His eyes were red and watery and his speech was somewhat mumbled, like someone who was not making any effort to pronounce words clearly. In comparison, she noted that the accused, in court, had brighter eyes, was blinking faster and had a more firm posture.

When asked to summarize the grounds for her demand, she referred to: the information that the accident had just happened, the beer cans around the vehicle and the lack of a reasonable explanation for the collision caused by the accused driving up on a sidewalk and striking the passenger side of a parked vehicle.

This, in combination with the smell of alcohol on the breath of the accused, and his admission that he had been drinking led her to believe that his ability to operate a vehicle was impaired by alcohol. [ 22 ] In cross-examination, the officer admitted that she made no observations as the accused first walked toward her and noted nothing distinctive about his speech. Nor did she observe any difficulties with his balance or comprehension. She did note that the mother of the accused responded to her questions.

Up to the time that she asked the accused to go to the police vehicle to provide a statement she had formed no opinion with respect to impairment. That occurred just before they got to the police car and she noted him sway. The accused had no difficulty getting out of the patrol vehicle, nor did he have any difficulty walking to the detachment from the car apart from the one sway in the hall. In the interview room, he was seated in a chair where he leaned back with his legs stretched out. She also conceded the accused’s eyes were red as if he was tired.

She defined glassy, watery eyes that were kind of teary as opposed to having a normal moist look. She also admitted that, based on her common experience, red eyes could be consistent with fatigue or being rubbed. She also acknowledged that tired people sometimes mumble their speech. She noted only one instance of slurring when the accused said his last name, and admitted that she did not know how he normally spoke his name. She continued to note that the smell of alcohol was very strong and that the accused blinked slowly and that his motor skills were “a lot slower”.

When asked what motor skills she replied “blinking, fidgeting and that everything was slow”. [ 23 ] Constable Tyler Bush indicated that he is a member of the Royal Canadian Mounted Police and attended at the accident scene in Warman with Constables Marshall and Hiscock. He took photographs which were marked as Exhibits P-1 and P-2 respectively, showing the two vehicles involved in the collision and their relative positions. He had no dealings with the accused. [ 24 ] Garrett Kazmiruk testified that on March 29, 2014, he awoke at 4:00 a.m. in order to be at work at 5:00.

He poured concrete all day and got home about 3:30 p.m. He showered and grabbed a few things that he needed and returned to Saskatoon. He picked up a friend in Hampton Village and then proceeded downtown. They met with friends at O’Shea’s where he had two pints of beer, a burger and some fries. At 6:30 p.m. they went to a concert at the Odeon where he got a couple more beer. The show started at 7:00 p.m. and he was there until 10:30 or 11:00 p.m. Through the course of the concert he had four beer. After the concert, he and another friend went to Hudson’s Pub arriving there just after 11:00 p.m.

He ordered three beer but did not finish the last one. He sat for half an hour before leaving the pub between 12:45 and 1:00 a.m. He went home because his friends wanted to stay out but he was tired and needed to be up early the next morning for a hockey tournament in Tisdale. After he had eaten his dinner and had a few drinks, along with the adrenalin of the concert, he was wide awake but felt tired again after the concert. He felt able to drive and had no trouble negotiating the route out of the city.

However, when he got to Warman he felt his eyes getting heavy and he was yawning and shaking his head to stay awake. He recalled driving down Centre Street in Warman and making several turns onto Nicholas Lane. His next memory was after he hit the parked vehicle. By that time, he had been awake 21 hours and had spent approximately eight hours doing heavy labour. He described his condition as exhausted. [ 25 ] After the collision, he backed away from the van and called his mother to ask her to come to the accident scene.

When he and his mother returned to the scene, he apologized to the owner of the van and explained that he had fallen asleep. He grabbed his hockey bag out of the box of the truck while his mother grabbed his goalie pads. When the police arrived, he walked up to the female police officer and told her what had happened. She asked if anyone was hurt. After the officers had spoken to everyone else they put him in a car where he was read his rights to counsel. He was asked if alcohol was involved but did not recall the conversation en route to the detachment.

He had no difficulty walking around the car and into the detachment office and acknowledged that he dozed off while there. He maintained that he felt capable of driving when he left Hudson’s lounge. [ 26 ] In cross-examination, he explained that the route he took home was circuitous but was quicker because of fewer stop signs. He previously had driven after drinking but does not do so if he has had “too many”. He maintained that if he consumed one beer an hour he is not drunk. He acknowledged that after hockey games he would have alcoholic drinks and, on a couple of occasions, had driven home.

March 29 was not the first time that he drove after drinking but he did not drink enough to affect his driving. Since October 2012, he drove his truck ten times, at most, after drinking.

[27] He acknowledged that he made no notes and that his evidence is based solely on his memory. He did not have any drinksbeside the beer. He agreed that up to the end of the concert he had the equivalent of seven cans of beer and then had three more bottlesat Hudson’s. When it was suggested that the equivalent of ten beer would have affected how he felt, he denied that it did because of thetime over which it was consumed. He denied that the beer made him feel more tired. When it was suggested that he drank ten beerbecause he wanted to feel its effect, he said he drank because he liked the taste of beer.

When it was suggested that he drank ten beerbecause he liked the feeling that it evokes, he said it does not create much of a feeling when the beer are spaced out. He acknowledgedthat he felt some effect that evening although he denied that it affected his level of fatigue. When asked how it did affect him, he saidthat he had “fun” and “loosened up a little”. When asked if it removed his inhibition, he said to some degree. He thought ten beer mayhave affected the way he thought “a little bit”. He denied that he passed out and maintained that he simply fell asleep prior to thecollision.

He admitted that he knew he was tired when he got into the vehicle but that he did not feel the effects of alcohol as he stoppeddrinking 45 minutes before he drove. He stopped because he thought one more beer might have hurt his driving. [28] When it was suggested that he waited 45 minutes because he wanted the effects of the alcohol to wear off, he acknowledgedthat he did and that he did not want to add any further effects. He felt that he was “good to drive”.

When asked why he said “I don’tknow...I’m guilty...I don’t know why I need a lawyer” in response to the question “do you want to call a lawyer now?”, the accused gavedifferent answers. When it was suggested that he said it because he knew he was impaired he replied “I don’t know”. When pressed, heindicated that he said it because he was scared and did not know what to say so he cooperated with the police. It was put to him that hehad resigned himself to the fact that he was guilty and that there was no point in calling a lawyer.

To that he responded “yes”. [29] In re-examination, he indicated that he gave the response he did to calling a lawyer because he wanted to cooperate and “get itover with” and that he was going along with what they wanted him to say. He did not feel the alcohol affected his driving and was justcooperating with the police. Issue [30] The only issue left for the Court is whether or not the evidence establishes the offence of impaired driving to the standard ofbeyond a reasonable doubt. No issue was taken with respect to the proof of the essential elements of the offence except for the proof ofimpairment.

Analysis [31] The Court is mindful of the test set out in R v Stellato, (ON CA), [1993] OJ No 18 (CA), affd. (SCC), [1994] 2 SCR 478 (SCC) [Stellato]. In determining whether the offence has been established, the Court must be satisfied,beyond a reasonable doubt, that the ability of the accused to operate a motor vehicle was impaired to some degree by his consumption ofalcohol. The evidence, taken as a whole, must establish that such an inference reasonably can be drawn from conduct which is adeparture from the norm.

This departure may fall upon a continuum from slight to great, but it must lead to no other inference but thatthe ability of the accused to operate a vehicle was impaired to some degree by the consumption of alcohol. [32] I listened carefully to the evidence and the arguments of counsel and have since closely reviewed my notes. Acomprehensive

summary of the evidence has been set out above as I accept the evidence of all of the witnesses who did their best to behonest and straightforward with the Court. It is a matter of whether that evidence, taken as a whole, establishes that the accused’s abilityto drive was impaired by alcohol. After much consideration, I conclude that there is but slight evidence of impairment rather thanevidence of slight impairment as referenced in Stellato. [33] Ms.

Kazmiruk testified that she saw nothing in the behaviour of her son that would suggest that he had been consumingalcohol; she asked if he had been drinking only because she knew he was going to a concert with friends, and in the ordinary coursewould have some alcohol on such an occasion. [34] Constable Marshall spent about four minutes speaking with the accused and noted a strong smell of alcohol, glassy, wateryeyes and thought he looked fatigued. She also thought that he mumbled his surname.

I place no stock in this observation as the surnameis one which I noted rolled quickly and easily off the tongue of the accused and his mother, but not so easily for others in the courtroom,including myself. Nonetheless, the intention of Constable Marshall at this point was to complete a Highway Traffic Act accident report as

she did not believe that she had the requisite grounds for a demand. It was only after she noted a sway in the step of the accused that shebelieved that she had those grounds and made a demand pursuant to s. 254(3) of the Criminal Code. Yet, when asked to articulate hergrounds, she stated that it was the nature of the accident for which there was no explanation (although the accused did tell her he hadfallen asleep), the presence of alcohol containers, the smell of alcohol on the breath of the accused and his admission of alcoholconsumption.

Nonetheless, even after she had this information, her intention was not to make a demand but to complete an accidentreport. Later, at the detachment, she noted that the accused swayed once as he walked down the hall, he burped a lot, he seemed not tomake an effort to pronounce his words clearly and fell asleep on a chair in the interview room. [35] Mr. McLeay Sr., who has had experience working with people who have been drinking, could not say unequivocally that theaccused was under the influence of alcohol.

Although he described the accused as looking “shocked”, “stunned”, and “not with it”, hecandidly volunteered this could have been the effect of the collision. Similarly, his son Matthew could not speak to the impairment ofthe accused, saying that he looked “dizzy, panicked, like you would if you just hit a car”. He thought the accused looked shaken. [36] The most potentially damning evidence comes from the statement “I am guilty” made by the accused to the officer inresponse to his rights to counsel. It is my view that such a statement is a legal conclusion on the very point the Court is obliged todetermine.

Although admissions of fact can be probative, statements related to conclusions in law are not and certainly do not obviatethe need for objective evidence of conduct that departs from the norm. In this instance, there is evidence of an accident the nature ofwhich is a very significant departure from the norm; there is also a credible explanation.

The evidence of physical impairment is veryslight; I note particularly the evidence of the civilian witnesses and the fact that but for a sway in the step of the accused, ConstableMarshall was intending simply to complete an accident report. [37] The Court was referred to the decision of R v Pelletier (1989), (SK KB), 51 CCC (3d) 161 (Sask QB)which I have read and considered. In that case, the accused was found to have bloodshot, squinty or drowsy looking, glassy eyes,staggered and was uncoordinated.

The speed of the vehicle he was operating was erratic, he was weaving in and out of his lane, he lefthis signal light on, and overtook another vehicle on the right in a lane that came to an end. He admitted to having two beer with lunch. The trial judge accepted that the ability of the accused to operate a motor vehicle may have been impaired in part, by fatigue, but foundthat partial impairment by alcohol was sufficient to found a conviction.

This was upheld on appeal by the Court of Queen’s Bench whereBatten J. said: ...the trial judge had ample reason to conclude that the accused’s ability to drive was impaired–all the more so because his manner ofdriving showed a marked departure from what is usually considered normal.

This combined with the evidence as to his walk, demeanourand behaviour in “honking his horn and looking down into the car and...making faces” when passing the other vehicle and the admittedconsumption of alcohol established beyond a reasonable doubt the appellant’s impairment by alcohol. [38] In conclusion, Batten J. went on to say: Once the trial judge in the instant case found impairment of the ability to drive due to the consumption of alcohol, his perception that theimpairment might also partially have been caused because the appellant may have been suffering from fatigue, does not provide adefence to the charge.

There was no evidence to suggest or from which the trial judge did or could have concluded that the impairmentof the appellant’s ability to drive a motor vehicle was caused by anything other than alcohol. [39] On the whole of the evidence before me I find that the evidence of impairment is equivocal unlike the situation in Pelletierwhere it was abundantly clear that the accused’s ability to drive was impaired. Although it is quite possible that the alcohol consumedby Mr.

Kazmiruk contributed to him falling asleep and losing control of his vehicle, the evidence does not satisfy the Court to thestandard of beyond a reasonable doubt that this was the case. After a careful consideration of all of the evidence, I find myself with areasonable doubt, the benefit of which must go to the accused. He is therefore found not guilty.

________________________ M. L. Gray, J