Her Majesty the Queen - v. -, 2015 SKPC 136

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 136 Date: September 11, 2015 Information: 24506946 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Pippin Appearing: Tamara Rock For the Crown Brian Pfefferle For the Accused JUDGMENT M.L. GRAY , J Background [ 1 ] Mr. Pippin was charged on March 10, 2013 with having the care or control of a motor vehicle while his ability to do so was impaired by alcohol contrary to section 253(1) (

a) of the Criminal Code . A second count on the information alleged that he did “without reasonable excuse fail to comply with a demand made to him by Constable Tyler Busch under section 254(2) (

a) of the Criminal Code of Canada ”. The Court drew the deficiencies of this allegation to the attention of counsel and subsequently granted an application to amend the information to conform with the evidence that a demand was made pursuant to s. 254(3) (a)(

i) of the Criminal Code. The information

was further amended to refer to the

section number of the offence alleged. It was the view of the Court that this did not cause prejudice to the accused as he was fully aware that the demand was for breath samples and not roadside sobriety tests as had been alleged on the information. Further the offence of refusal was articulated, although the relevant

section number was not referenced, thus, no prejudice arose as the result of this amendment either. [ 2 ] At the commencement of the trial, counsel for the accused admitted identity and jurisdiction and further, that the video taken at the RCMP Detachment could be admitted without authentication. As Notice had been filed alleging a violation of s. 8 of the Charter , the Crown evidence was called on a voir dire ; there was no defence evidence called .

The Crown evidence was applied, by consent, to the trial proper and the accused testified. [ 3 ] Briefly stated, the police were called to a rural residence at about 5:00 a.m. in response to a call that a vehicle had pulled into the complainant’s driveway and was parked there with the engine running. She was concerned and asked the police to attend. Officers Busch and Gillis went to that home and discovered the accused in the driver’s seat, with his legs under the steering wheel and his feet in the vicinity of the gas and brake pedals; his torso and head were lying on the seat.

The accused was awakened and after the officer noted several indicia of impairment, a demand was made that he accompany the officers to the detachment to provide samples of his breath for analysis. There, the accused was given nine opportunities but failed to provide a suitable sample. It was the opinion of the breath technician that the accused was deliberately failing to blow adequately into the instrument. He was thus charged with refusal. The issues that were left for the Court are these: (

i) Has the Crown established that the ability of the accused to operate a motor vehicle was impaired by alcohol? (ii) Is the Crown entitled to rely upon the presumption of care or control as stated in s. 258(1) (

a) of the Criminal Code ? (iii) If the presumption does not apply has the Crown established actual care or control? and (iv) Has the Crown proven the offence of refusal beyond a reasonable doubt? Analysis (

i) Has the Crown established that the ability of the accused to operate a motor vehicle was impaired by alcohol? [ 4 ] After discovering the accused in the truck, Constable Busch made his presence known by knocking on the window and aiming the flashlight into the vehicle. He received no response so he opened the door and shone the flashlight into the truck cab while announcing himself as a peace officer. The accused still did not react. He then physically shook the accused who awoke, sat up and appeared confused. The officer again identified himself as a police officer and asked if he was alright.

The accused replied that he was okay, tried to push the officer away and to close the door. Constable Busch again announced that it was the police and asked the accused to step out of the vehicle. The officer noted a strong odour of alcohol within the vehicle and noted a drinking glass on the dashboard of the truck. The accused still did not seem to realize Constable Busch was a peace officer based on the dazed look on his face, the fact that he tried to push the officer away and his general confusion.

It was not until Constable Busch identified himself several times that the accused followed the instruction to leave the truck. When he did step out, the accused lost his balance and grabbed onto Constable Busch to right himself. Once he did, he leaned on the truck for support. As the officer spoke to the accused, he noted bloodshot eyes, a smell of alcohol from the breath of the accused, as well as slow, slurred speech. The accused seemed confused and when asked where he lived, replied, “Canada”.

The accused swayed in a circular motion as he stood. [ 5 ] The officer formed the opinion that the accused’s ability to operate a motor vehicle was impaired by alcohol and arrested the accused for impaired care or control at 5:53 a.m. He was taken directly back to the police vehicle where he was advised of his rights to counsel. When asked if he understood, he replied, “what are you saying?” The officer explained in “plain English” and then the accused acknowledged that he understood. When asked if he wished to speak to a lawyer, he replied, “not really, don’t think I’m in trouble”.

He was asked again, and this time he said, “don’t know, not sure”. The third time he was asked he said, “probably”. The accused seemed confused. Subsequently, the breath demand was made, and when asked if he understood, the accused replied, “I wasn’t driving”. The officer asked the question again and this time the accused responded, “okay then”.

[6] The accused was driven to the Martensville Detachment where the officer continued to smell a strong odour of alcohol fromthe accused and noted that his eyes were bloodshot. The accused also walked slowly and cautiously. Constable Rowley, the breathtechnician, similarly noticed the odour of alcohol and observed that the accused was slouched over and had red, glossy, glazed eyes.

Healso noted that the accused was unsteady on his feet and swayed between the walls of the detachment hall as he walked. [7] Constable Gillis confirmed the difficulty that Constable Busch had in awakening the accused and that the accused appeareddisoriented. He also saw the accused either stumble or slip and grab onto Constable Busch for support. He also reported that theaccused had red, bloodshot eyes and smelled of alcohol. When asked where he lived, the accused replied “Saskatchewan”, slurring thefirst “s”. When again asked where he was from, the accused said, “Canada”.

Constable Gillis also confirmed that the glass in the truckcontained rye and some sort of mix. He drove the police vehicle to Martensville and had no interaction with the accused once there. [8] The accused testified that he had been at a party and did not feel intoxicated when he left, only tired. He acknowledged thathe had seven or eight drinks over the space of five hours and that he took a drink for the road. He believed that it was a poor judgmentcall to have open liquor in the vehicle, but not necessarily a poor judgment call to drink and drive.

He denied that the alcoholconsumption affected his memory but says that his fatigue of that evening and the 2 1/2 years which have passed since his arrest havehad an adverse effect. [9] Having listened carefully to all of the witnesses and having since carefully reviewed that evidence and the arguments ofcounsel, the Court has no hesitation in finding that the accused’s ability to operate a motor vehicle was impaired by alcohol in accordancewith the test set out in R v Stellato (1993), (ON CA), 78 CCC (3d) 380 (Ont CA) affd (SCC), [1994]2 SCR 478 [Stellato].

That test requires that the Court assess the evidence of driving and the physical comportment of the accused todetermine whether his ability to operate that vehicle was impaired, even slightly, by alcohol. This does not mean that slight evidencewill suffice as the Court must be satisfied of that fact beyond a reasonable doubt. In the case at hand, there is no driving evidence;however, significant signs of physical impairment were noted by the officers and I accept that evidence.

The accused attempted toexplain those symptoms by saying that he was startled by the officer opening the door and shining a light on his face. He did not hearthe officer knock because the radio was too loud; he stumbled when he exited the vehicle because it was icy. He says that his answersto the question of where he lived were intended to be humourous. However, by his own admission, he acknowledged the need to stopdriving due to his extreme fatigue. This does constitute a defence where alcohol consumption was a contributing factor: see R v Pelletier,[1989] SJ No 493 (Sask QB).

Given that the accused continued to demonstrate symptoms of impairment almost an hour later at thedetachment, the Court has no hesitation in finding that his alcohol consumption was a significant factor in the impairment of his ability tooperate a motor vehicle. (ii) Is the Crown entitled to rely upon the presumption of care or control as stated in s. 258(1)(

a) of the Criminal Code? [10] Constable Tyler Busch testified that on March 10, 2013, he was working from the Martensville Detachment in uniform and ina marked police vehicle. In the early morning hours, he received a complaint from a resident in the Pike Lake District that she wasconcerned about a vehicle that had parked on her driveway with the engine running. He and Constable Gillis followed up on this calland went to the area. There, they saw a truck, with the engine running, parked a short way down the driveway. There was fresh snowand no footprints around the vehicle.

The officer followed the tire tracks down the lane directly to the truck and found the accusedsleeping while seated behind the wheel, and leaning to the right with his head on the passenger side. [11] The accused testified that he attended a birthday party in Delisle, which is about 20 miles from his home. He arrived therebetween 8:00 and 9:00 p.m. to find approximately 30-40 people already in attendance. He left for home between 1:00 and 1:30 a.m. Enroute, he decided to “have a rest” because he “was tired and had been drinking”. He decided to pull over until he felt better.

About 1:30or 2:00 a.m., he pulled into a private laneway and stopped at the end of the lane as he believed this was a safe place to stop. He put hisvehicle in park, removed his seat belt, had a drink of the rye whisky that he brought with him from the party and lay down on the benchseat of his truck for a nap. He planned to stay there until he felt better as he was not feeling “that great” and did not “feel normal”, butwas not sick or nauseous. In order to set his vehicle in motion, he would have to put his foot on the brake, and pull the gear shift down. [12] Section 258(1)(

a) of the Criminal Code deems that a person who is in the seat normally occupied by the driver of a motorvehicle has the care or control of that vehicle. This presumption can be rebutted by evidence, which if accepted, establishes on a balanceof probabilities that the accused did not assume that position with the intention of setting the vehicle in motion: R v Whyte, 1988

47 (SCC), [1988] 2 SCR 3. Here, the evidence is uncontradicted that Constable Busch found the accused seated behind the steeringwheel of a motor vehicle with his feet in the wheel well while the engine was running; accordingly, pursuant to s. 258(1)(a), the accusedis deemed to have care or control of that motor vehicle. The question is whether that presumption has been rebutted. [13] In this instance, the Court is satisfied, on a balance of probabilities, that the accused had abandoned his intention to drive.

Support for this is found in the undisputed fact that he pulled off the main road and onto a private driveway and that he removed his seatbelt before falling asleep on the bench seat of his truck. The presumption has therefore been rebutted. (iii) If the presumption does not apply has the Crown established actual care or control? [14] If the presumption of s. 258(1)(

a) is rebutted, the Crown may prove actual care or control by establishing both the actus reusand mens rea of the offence without reference to the presumption. In R v Toews, (SCC), [1985] 2 SCR 119 at para 7, theSupreme Court of Canada defined the elements of care or control as follows: . . . the mens rea for having the care or control of a motor vehicle is the intent to assume care or control after the voluntary consumptionof alcohol or drug.

The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol or drug hasimpaired the ability to drive. [15] The intention to drive or set the vehicle in motion is not integral to the proof of care or control. In R v Coleman, 2012 SKCA65 [2012] SJ No 397 (SKCA) [Coleman], Chief Justice Richards wrote at para 24: The relevant risk does not relate solely to the possibility of an impaired driver acting inadvertently to put a vehicle in motion. It alsoincludes the possibility of such a driver acting intentionally in this regard. The reason for this is self-evident.

Impaired drivers have adiminished capacity to make safe judgments. They frequently act, deliberately, in ways which endanger themselves and the public. [16] This reasoning is in accord with the earlier decisions from the Saskatchewan Court of Appeal in R v Buckingham, 2007 SKCA32 [Buckingham] and R v Anderson, 2012 SKCA 37 [Anderson]. The Court in Buckingham and Anderson identified two aspects to therisk contemplated by the offence of impaired care or control: (

i) that an intoxicated accused will awaken and be too intoxicated toremember or adhere to the previous decision not to drive, and (ii) that an intoxicated accused might inadvertently set the vehicle inmotion. As Richards CJ pointed out in para 33 of Coleman, the legislative objective behind s. 253(1) of the Criminal Code: . . .was to wholly avoid having intoxicated individuals in positions where they can put vehicles in motion (or otherwise endanger thepublic) in the first place.

It was not to create an incentive for drunk drivers to pull over. [17] In R v Boudreault, 2012 SCC 56 [Boudreault], the Supreme Court of Canada affirmed that the offence of impaired care orcontrol is an intentional course of conduct in relation to a motor vehicle by a person whose ability to operate that vehicle is impaired byalcohol or drug, or whose blood alcohol concentration exceeds the lawful limit, in circumstances that create a realistic risk of danger toeither people or property.

This realistic risk must be one which is more that theoretically possible; however, it need not be probable,serious or substantial. To require that a risk is realistic, is to establish a low threshold consistent with Parliament’s intention to preventdanger to public safety: Boudreault para 34-35.

A realistic risk is, in the absence of evidence to the contrary, the only reasonableinference where the evidence establishes impairment of the accused and the present ability to set a motor vehicle in motion: Boudreaultpara 48. [18] Nevertheless, a judicial determination of realistic risk is required and is dependent on the facts found in any particular case. Itcannot be a conclusion based on conjecture or speculation; it must be founded on evidence related to a risk: (

a) that the accused will setthe vehicle in motion unintentionally; (

b) that a stationary or inoperable vehicle, as a result of negligence, might endanger the accused orothers; and (

c) that the accused who decided not to drive might change his or her mind while still impaired.

[19] In making this determination, the Court in R v Topfer, 2014 ONSC 5669 at para 16 set out a non-exhaustive list of factors thata court can consider in determining whether there is a realistic risk that an accused might set a vehicle in motion.

Judge Kalmakoff (ashe then was) summarized those factors in R v Derksen, 2015 SKPC 42 2015 SKPC 042 at para 20 as follows: i. the level of impairment; ii. whether the keys were in the ignition; iii. the location of the vehicle; iv. whether or not he had reached his final destination; v. whether he drove the vehicle to the location where it was found; vi. whether he had started driving after drinking and pulled over to “sleep it off” or started using the vehicle for purposes otherthan driving; vii. whether he had a plan to get home that did not include driving while impaired or over the legal limit; viii. whether he had a stated intention to resume driving; ix. whether he was seated in the driver’s seat regardless of the applicability of the presumption; x. whether he was wearing his seat belt; and xi. whether he failed to take advantage of an alternative means of leaving the scene; and whether he had a cell phone to makealternative arrangements and failed to do so. [20] In the case at hand, the accused drove for approximately 20 minutes before pulling off the public road when he was about 10minutes away from home.

He was found behind the steering wheel (albeit in a prone position) and admitted that he pulled over to restuntil he felt better. He had arranged no alternate ride home from the party and although he had a telephone, he was loathe to call his wifeas she was unwell. Most significant is his evidence that his only plan was to “nap ‘til I felt I was okay” and then drive home. In short,the accused consumed a substantial amount of alcohol at the party, and by his own admission took an alcoholic beverage with him andconsumed some of it after parking in the private driveway.

The Court has found that his ability to operate a motor vehicle was impairedby alcohol. He was behind the steering wheel of a vehicle that was not disabled in any way, and the engine was running. He had no planto get home other than to drive himself when he awoke. This evidence, in its totality, leads the Court to the conclusion that this isprecisely the danger contemplated by the offence of impaired care or control. These circumstances presented a very realistic and almostcertain risk that the accused, on awakening, would underestimate the degree of his impairment and would drive.

Accordingly, the Courtis satisfied, beyond a reasonable doubt, that the accused was in actual care or control of his motor vehicle. [21] Further, the accused, by his own admission, drove his vehicle in the early morning hours of the date alleged after consuming asignificant amount of alcohol and at a time when the Court is satisfied that he was impaired by a combination of alcohol and fatigue.

Care or control is included in the act of driving and consequently, the accused was in actual care or control on this basis as well: see R vDrolet, (SCC), [1990] 2 SCR 1107 at para 15 and R v Pincemin (2004) 2004 SKCA 33 SJ No 134 at para 24. [22] Having also found that the ability of the accused to operate a motor vehicle was impaired by alcohol, all the elements of thecharge of having the care or control of a motor vehicle while his ability to do so was impaired by alcohol have been proven and theaccused is accordingly found guilty of count one. (iv) Has the Crown proven the offence of refusal beyond a reasonable doubt? [23] Immediately after the accused had an opportunity to speak to a lawyer, Constable Busch began a 15 minute observation periodof the accused to ensure that he did not consume anything, burp or regurgitate.

The purpose was to ensure that there was no alcohol inhis mouth when he provided breath samples. During this time, the accused indicated that he felt sick and was given a clean garbage binin the event that he had to vomit. The accused was dry heaving while on his hands and knees with his head over the garbage can. Theofficer was of the view that this was faked because, in his view, a true dry heave “comes right from the gut” whereas the accused’sactions seemed forced. The garbage bin was clean at the outset and was clean at the end of his dealings with the accused.

The accusedwas escorted to the bathroom but did not regurgitate there either. [24] In cross-examination, Constable Busch agreed that people can sometimes burp very quietly. Although it was his opinion thatthe accused was faking the dry heaves, he could not say that with certainty. He was aware that the introduction of mouth alcohol wouldrequire that the observation period be restarted.

The accused followed directions prior to being presented to the breath instrument andnever verbally refused to provide a sample. [25] Constable Lawny Rowley testified that he has been a member of the Royal Canadian Mounted Police for approximately 15years. He is a qualified breath technician and has conducted over 700 tests on more than 350 subjects. He has been involved in over1,500 investigations of impaired driving. On the morning of March 10, 2013, he was called to work early for the purpose ofadministering a breath test.

He travelled to the Martensville Detachment where he prepared an approved instrument, the EC/IR II, andfound it to be fully operational. The accused was observed by Constable Busch to ensure that he did not belch or burp or put anything inhis mouth. This is to the benefit of the accused as the presence of mouth alcohol can result in an elevated reading or cause the instrumentto abort the test.

He did not receive any information about the accused dry heaving prior to being presented for the tests, but did see theaccused dry heaving outside the detachment after he had been given nine opportunities to blow into the instrument. [26] The accused was brought to the instrument at 7:18 a.m. for the first test and was told to give a strong, steady sample. Instead,he puffed up his cheeks but created no tone from the instrument signifying air flow. Although it looked like the accused was blowing,no air entered. He was advised that he was not blowing hard enough and was then given a second chance.

The accused responded in thesame way to the second, third, fourth and fifth opportunities to provide a sample. After the fifth chance, the accused was advised of theoffence of refusal. Constable Rowley then opened another fresh mouthpiece and asked the accused to blow through it, which he did. That same mouthpiece was placed on the instrument and the accused was given a sixth opportunity to provide a suitable sample. It wasnot adequate and on the seventh try, the accused gave just a brief puff of air, again unsuitable for analysis. On the eighth attempt, theaccused stated, “it is not working”.

Consequently, Constable Rowley removed the ninth mouthpiece and again directed the accused toblow until he was told to stop. The accused said that he was nauseous and was taken outside for some fresh air; he was seen to dryheave. [27] Everytime the accused was presented to the instrument, a fresh mouthpiece was inserted and the accused was directed to sealhis lips around it and to blow strong and steady in a continuous breath until he was told to stop. The accused did not blow hard enough orlong enough to obtain a sample that could be analysed.

It was the opinion of Constable Rowley that the EC/IR II that was being used ismuch easier to blow into than some of the earlier approved instruments. The nine mouthpieces were retained and he subsequentlywatched Constable Busch test all of them by inserting a clear tube and blowing through the mouthpiece. [28] In cross-examination, the officer acknowledged that the methods used for detection of mouth alcohol are not totally accurateand that he relies on others to some extent for that information. He acknowledged that it is difficult to say what, if anything, enters themouth with a burp.

[29] The accused testified that he told the officers that he felt nauseous once he realized the kind of jeopardy that he faced. He waslegitimately sick when he was dry heaving and was bringing liquid into his mouth as he did so. He could not say that this occurred duringthe observation period, but it did happen after he was charged with refusal. After being taken outside for fresh air, he returned to theobservation room where he vomited about a teaspoonful into the bin.

In cross-examination, he agreed that this was after the nine failedtests. [30] When asked to provide breath samples, he blew into the device but the officer confused him a couple of times by telling himthat he blew too hard, and then that he did not blow hard enough. He tried his best throughout and denied that he ever stopped blowingmid sample or ever just pretended to blow. In cross-examination, he maintained that he was blowing as instructed but was confused bythe directions he was being given.

He agreed those instructions were simple but denied that his alcohol consumption caused hisconfusion, saying that he gets nervous and easily flustered. While he was trying to give the samples required, he felt an acid reflux typeof stomach ache. [31] Section 254(5) of the Criminal Code states: Everyone commits an offence who, without reasonable excuse, fails or refuses tocomply with a demand made under this section. [32] The Saskatchewan Court of Appeal in R v Lewko, 2002 SKCA 121 [2002] SJ No 622 set out the elements of theoffence of refusal as follows: (

i) a proper demand; (ii) a failure or refusal by the accused to produce the required sample; (iii) theintention of the accused to provide a failure or refusal; and (iv) once raised by the defence, the absence of a reasonable excuse. [33] In the case at hand, counsel for the accused argues that the accused was justified in not providing a sample because theofficers did not follow the necessary protocol for the taking of breath samples.

Specifically, Constable Busch as the observing officer,did not draw to the attention of the breath technician that the accused had been dry heaving and that there was a possibility of mouthalcohol. In light of this possibility, the officers should not have presented the accused for tests when they could not be assured ofaccurate readings. In support of this proposition, counsel relies on the decision of Judge Toth in R v Sokulski, 2012 SKPC 141.

In thatcase, the court found that the accused had regurgitated and that the officer did not turn his mind to the reliability of any sample thatmight be taken from the accused under those circumstances. The court found that the officer was obliged to hold off until an accuratesample could be taken instead of attempting to obtain a test result, notwithstanding that a reliable result would not be received. As theofficer did not have an objective basis for the reliability of the test, the court concluded that there was no valid demand in existence atthe time that the accused was found to refuse.

However, in the event that the finding with respect to the demand was in error, the courtwent on to find that the accused had a medical condition that prevented him from giving breath samples; thus the Crown had failed toprove the necessary mens rea and the accused was acquitted. [34] This decision stands in stark contrast to a more recent decision from the Saskatchewan Court of Queen’s Bench in R v Goosen,2014 SKQB 135 [2014] SJ No 290 [Goosen]. That case dealt with a charge of refusing to provide a breath sample pursuant toa demand under s. 254(2) of the Criminal Code.

The arresting officer described a number of feigned attempts by the accused to providesamples; the accused testified that she tried to blow into the device as directed and that she could not have blown any harder. There wereno medical issues preventing her from providing a sufficient sample. The appeal court quoted the finding of fact, at trial, that theaccused “was just going through the motions without any intent to provide a sample that could be subject to a proper analysis”: para 23.

At para 44 of Goosen, the court held: The trial judge’s finding that the appellant was not trying to provide a sample renders the functioning of the ASD, and its mouthpiece,irrelevant. In the absence of an attempt to provide a proper sample, the proper functioning of the ASD, and the mouthpiece, does notcome into play. If an accused person is not trying to properly blow into the unit, it makes no difference if the mouthpiece wasobstructed or not. [35] I listened carefully to the evidence in this trial and have since taken an opportunity to review that evidence along with thearguments of counsel.

Having done so, the Court has no reservations in finding that, although the accused did not verbally refuse toprovide a breath sample, his actions were intended to have that effect. The Court accepts the evidence of Constable Rowley that, on eachof the nine chances that he was given, the accused either did not blow, feigned blowing or blew an insufficient amount of air into themouthpiece. No lawful excuse has been offered to the Court by way of explanation; the accused merely says that he was trying but wasconfused by the officer.

[ 36 ] In conclusion, the Court is satisfied that there was a lawful demand and note that counsel for the accused quite properly did not take issue with the grounds for the demand in the face of the overwhelming evidence on that point. Further, the Crown has established that the accused failed to provide a sample suitable for analysis. Finally, the Court is satisfied that the accused intended not to give an adequate sample. I do not accept his evidence that he was trying his best; nor do I accept that he was confused by the instructions that he was given. By his own admission, the directions were “simple”.

I accept the evidence of Constable Rowley that on nine occasions, the accused either pretended to blow or did not blow long enough or hard enough. [ 37 ] Following the reasoning in Goosen , the fact that the instrument may or may not have produced an accurate result because of the possibility of mouth alcohol, is totally irrelevant to a charge of refusal under circumstances where the accused is acting deliberately to ensure that the instrument does not receive a suitable sample.

The offence of refusal does not require proof that the test would have been accurate in the event a sample had been provided. [ 38 ] Therefore, the accused is found guilty of refusing to provide a sample of his breath for analysis and convictions will register for both the refusal and the impaired care or control. ________________________ M.L. Gray, J