Her Majesty the Queen - v. -, 2015 SKPC 77

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 077 Date: July 8, 2015 Information: 24487884 Location: Southey _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ryan Edward King Appearing: Mr. Derek C. Maher For the Crown Mr. William J. Klebeck For the Accused JUDGMENT M. HINDS , J INTRODUCTION [ 1 ] Ryan Edward King is charged that on or about the 3 rd day of September A.D. 2013, at or near Southey, Saskatchewan, he operated a motor vehicle while (1) impaired by alcohol, and (2) over .08, contrary to sections 255(1) , 253(1) (

a) and 253(1)(

b) of the Criminal Code .

[ 2 ] At the beginning of the trial the defence brought an application to set aside a Production Order obtained by the police on October 16, 2013, respecting records of medical treatment Ryan King received at the Regina General Hospital on September 3, 2013 until discharge. RCMP Constables Jean-Luc LeBlanc and Nathan Bruce testified at the voir dire . In R v King , 2014 SKPC 203 , I determined that Constable LeBlanc acted reasonably and with due diligence on September 3-4, 2013 with respect to the investigation of Mr. King, and that Mr. King’s defence has not been prejudiced by the use of a Production Order.

As a result I dismissed the application to set aside the Production Order. [ 3 ] Crown and defence counsel agreed that the evidence at the voir dire could be applied to the trial proper. [ 4 ] The trial on these charges occurred before me on March 11, 2015. Mr. King, through counsel admitted that he was the driver of the vehicle in question. Dr. Tracey Cherlet, an expert in forensic toxicology, testified on behalf of the Crown. Ryan King testified in his own defence. [ 5 ] The defence takes the position that the Crown has not proved the case against Mr. King beyond a reasonable doubt.

The Crown contends that it has. [ 6 ] In this case I have determined that Mr. King is guilty of both offences. PRIOR FINDINGS OF FACTS [ 7 ] The findings of facts which I set out in paragraphs 7 to 19 in R v King , 2014 SKPC 203 , apply to this trial decision. On October 30, 2013, Constable Bruce received a number of medical records regarding Mr. King from the Regina General Hospital. One of those documents was a biochemistry report (Exhibit P-1 Trial). Page 1 of the biochemistry report reveals that a blood specimen was collected from Mr.

King at 00:39 on September 4, 2013 and that he had 64.9 mmol/L of ethanol in his blood. The Testimony of Dr. Cherlet at Trial [ 8 ] Dr. Tracey Cherlet was qualified as an expert witness in the general area of forensic toxicology, and specifically in the following areas: 1. The absorption, distribution, metabolism and elimination of alcohol in the human body. 2. To be able to provide anterograde and retrograde estimations of blood alcohol concentration in the human body based on blood analysis results. 3.

The effects of alcohol on the human body, including the effects of alcohol with respect to the operation of a motor vehicle. [ 9 ] Dr. Cherlet testified that she obtained a biochemistry report respecting Ryan King (Exhibit P-1 Trial) prior to preparing her report of February 10, 2015 entitled “Forensic Science and Identification Services and Laboratory Report respecting Ryan Edward King” (Exhibit P-3 Trial). [ 10 ] Dr. Cherlet testified that the biochemistry report indicates that on September 4, 2013 at 00:39 a.m., a blood serum sample was collected from Mr. King at the hospital and analysed for an alcohol level.

The result was 64.9 millimoles of ethanol (alcohol) per litre of serum blood, which by her calculations, equates to blood alcohol concentration of 299 milligrams of alcohol in 100 millilitres of blood.

[ 11 ] Dr. Cherlet explained that blood serum is the liquid component of coagulated blood. Blood serum contains more water than whole blood. As a result, the alcohol concentration of a blood serum sample will be higher than that of whole blood. Based on a blood alcohol serum concentration of 299% at 00:39 a.m. (time of collection), Dr. Cherlet estimated the whole blood b.a.c. to be between 239 mg% and 272 mg%. [ 12 ] Dr. Cherlet then went on to calculate the blood alcohol concentration of Mr. King at 22:25 hours or 10:25 p.m. which was thought to be the time of the motor vehicle collision. Dr.

Cherlet testified that, in her opinion, the blood alcohol concentration at 10:25 p.m. was estimated to be between 262 mg% and 316 mg%. In arriving at this opinion Dr. Cherlet made the following assumptions: (

a) the peak blood alcohol concentration had been achieved at, or prior to, 10:25 p.m. (

b) alcohol is eliminated from the blood at the rate of 10 to 20 mg% per hour, and (

c) the blood alcohol concentration at 00:39 a.m. is between 239 mg% and 272 mg%. [ 13 ] In Dr. Cherlet’s opinion, all individuals with a blood alcohol concentration between 262 mg% and 316 mg%, and a regular tolerance to alcohol are impaired in terms of their ability to operate a motor vehicle safely. The average drinker is expected to be severely intoxicated with such a blood alcohol concentration. His ability to operate a motor vehicle would be significantly compromised. [ 14 ] Dr.

Cherlet further testified that the safe operation of a motor vehicle is a complex task that requires a great deal of skill and ability. Alcohol adversely affects an individual’s physical (balance, motor control), sensory (vision) and mental functions (focus, increased time to comprehend and process information). [ 15 ] Dr. Cherlet also testified that alcohol is a central nervous system depressant and causes progressive deterioration of mental, sensory and physical processes. As such, increasing the blood alcohol concentration progressively diminishes one’s ability to drive safely.

A person is expected to be impaired in their ability to operate a motor vehicle with a blood alcohol concentration of 50 mg%. This is due to the complexity of driving, especially in emergency conditions. With a blood alcohol concentration of 100 mg% or higher all individuals are impaired in their ability to operate a motor vehicle, regardless of their level of tolerance to, and experience with alcohol. Intoxication is an advanced state of impairment in which the outward physical signs of the deteriorating effects of alcohol become apparent.

Intoxicated individuals often exhibit slurred speech, loss of balance, staggering gait and maudlin behaviour. For the average drinker, that being one who consumes moderate amounts of alcohol and who has some tolerance to the effects of alcohol, intoxication begins at a blood alcohol concentration of 150 mg%. Blood alcohol concentrations approaching 250 mg% and beyond are associated with severe intoxication. Individuals who are severely intoxicated exhibit marked muscular in-coordination, decreased response to stimuli (such as pain), mental confusion and disorientation. [ 16 ] Lastly, Dr.

Cherlet testified that in order for the blood alcohol concentration to be 80 mg% at 10:25 p.m. (time of collision) and 239 mg% (lowest estimated blood alcohol concentration) at 00:39 a.m. (time of blood collection), a male weighing 73 kilograms would have to have a minimum of 9.7 ounces of hard liquor (40% alcohol by volume), 6.5 bottles of regular beer (5% alcohol by volume, 341 mL size) or 7.8 cans of light beer (4% alcohol by volume, 355 mL size) enter the blood stream after the time of collision, prior to the time of blood collection.

This amount of alcohol would have to be consumed either after the time of collision or within minutes immediately prior to the time of collision. [ 17 ] On cross-examination Dr. Cherlet acknowledged she made two major assumptions in arriving at her opinions: (1) that peak blood alcohol concentration occurred at or before the collision; and (2) there was no consumption of alcohol after the collision or accident. Dr. Cherlet also agreed that she did not receive a copy of Mr. King’s written warned statement given to Sgt. Floedel six days after the accident in which Mr.

King indicated he drank a mickey of whiskey or vodka after the accident. [ 18 ] On cross-examination Dr. Cherlet testified as follows:

(1) That an average drinker would be severely intoxicated at blood alcohol concentrations between 262 mg% and 316 mg%.

(2) That individuals who are impaired or intoxicated by alcohol tend to have an inability to negotiate turns and curves successfully.

(3) Persons involved in a collision and who are severely injured can suffer deterioration of mental and cognitive function.

(4) If the person involved in the collision says there were other people in the vehicle and there were not, this would mean that person suffered some shock and trauma. [ 19 ] In cross-examination, defence counsel put several hypothetical questions to Dr. Cherlet. [ 20 ] The first hypothetical question was as follows: Assume that a male weighing 160 pounds (73 kilograms) drank 2 to 3 Bud Lite beer (4% alcohol content) in a regular pattern over a period of about five hours before 10:30 p.m. and then guzzled half a can of lite beer about 15 minutes prior to a collision at 10:25 p.m.

What would be the blood alcohol concentration at 10:30 p.m.? Dr. Cherlet testified that the blood alcohol concentration would be difficult to determine, as the time that the drinking began was not provided.

However, she opined that the consumption of three and one half beer would increase the blood alcohol concentration of a 160 pound or 73 kilogram male from 0 mg% to a maximum of 82 mg%. [ 21 ] The second hypothetical question was as follows: Assume that a male weighing 160 pounds (73 kilograms) drank 2 Bud Lite beer (4% alcohol content) in a regular pattern over a period of about five hours before 10:25 p.m. and then guzzled half a can of lite beer about 20 minutes prior to a collision at 10:25 p.m. What would be the blood alcohol concentration at 10:25 p.m.? Dr.

Cherlet testified that the blood alcohol concentration would depend on the exact drinking pattern (i.e. when the male finished the second can of beer), however, she opined that the consumption of two and one half beer would increase the blood alcohol concentration of a 160 pound or 73 kilogram male from 0 mg% to a maximum of 12% mg. [ 22 ] The third hypothetical question was as follows: Assume that a male weighing 160 pounds (73 kilograms) drank 2 Bud Lite beer (4% alcohol content) in a regular pattern over a period of about five hours before 10:25 p.m. and then guzzled half a can of lite beer about 20 minutes prior to a collision at 10:25 p.m., and then consumed thirteen ounces of vodka (40% alcohol content) after the collision.

What would be the blood alcohol concentration at 10:25 p.m.? Dr. Cherlet opined that the blood alcohol concentration of such a male at 10:25 p.m. is estimated to be between 19 mg% and 74% mg, assuming an elimination rate of 10-20 mg% per hour and the blood alcohol concentration at 00:39 hours is between 239 mg% and 316 mg%. The Testimony of Ryan King at Trial [ 23 ] Ryan King is 33 years of age. He works as a farmer and general contractor in Serath, Saskatchewan. At all material times he weighed 160 pounds.

[ 24 ] Mr. King testified that he spent the afternoon of September 3, 2013 in the town of Raymore, Saskatchewan where he did some errands, which included banking and picking up a triple pane window, salt blocks, 18 cans of Bud Lite beer and a mickey (13 ounces) of Russian Prince vodka. After doing his errands he stopped at the home of a friend in Raymore at 5:00 p.m. for a visit. Mr. King testified that between 5:00 p.m. and 10:00 p.m. he consumed three Bud Lite beer. He added that he consumed the last one half can of beer just before he got into his 2013 Ford Crew Cab truck and drove southbound on Highway #6.

He added that he placed the new window in the back seat of his truck. [ 25 ] Mr. King testified in-chief that everything was going fine as he drove along, until he received a telephone call as he entered a curve in the highway, southeast of the town of Serath. Mr. King said that his cell phone is synced to a touch screen located on the dash of his vehicle. Initially Mr. King tried to connect to the caller by touching the screen. This did not work. He then tried disconnect. It was at this time he looked up and saw that his vehicle was going into the ditch off the curve of the highway.

He didn’t have time to react and he hit an approach. As a result the vehicle rolled and he ended up upside down on the roof. His feet were tangled in his seat belt, he was laying across the vehicle’s console, and the torso of his body was in the back passenger area. The window which he had placed in the back seat of the truck had disintegrated. Mr. King had broken his nose and some ribs. He sustained many cuts and was bleeding. [ 26 ] Several cans of Bud Lite beer were punctured during the accident. As a result Mr. King was covered in beer.

He testified that he hit the approach about 20 minutes after leaving his friend’s place in Raymore. He further testified that he did not drink alcohol between the time he left his friend’s house and the time of the accident. [ 27 ] Thirteen photographs showing the condition of the truck after the accident were entered as Exhibit D-1. The photographs reveal that Mr. King’s truck sustained significant damage. The driver’s side of the engine was stowed in. The windshield was pushed into the cab of the vehicle. Both driver’s side windows were missing, as was one portion of the back window.

Many of the air bags of the vehicle were deployed. [ 28 ] Mr. King testified in-chief that he tried to gather himself after the accident. He said it was dark inside the cab of his vehicle and he wanted to find his cigarettes. Mr. King further testified that his “. . . radio was talking to me. It was a woman.” She asked if he needed help. He told the woman on the other end of his vehicle’s communication device that he rolled his vehicle on a curve south of Serath. He then found the bottle of vodka inside his overturned vehicle and consumed it all before the police and emergency medical services (EMS) arrived.

He thought it took about 20 minutes after the accident before the police and EMS arrived on the scene. He crawled out of the vehicle and the paramedics took him to the hospital. [ 29 ] Mr. King testified in-chief that he drank the mickey of vodka as he was panicked, bleeding and was in shock. He also testified that he provided a written warned statement to Constable Floedel a few days after the accident. He testified that the statement provided to Constable Floedel matches the testimony he provided in Court. Counsel for Mr. King admitted that any statements made by Mr.

King to Constable Floedel were made voluntarily. [ 30 ] On cross-examination Mr. King admitted that he had driven the highway between his home and Raymore about 1,000 times prior to his accident, and was very familiar with the curve in the highway near Serath. He added that he was driving with his cruise control set at about 110 km/h and that he was “expecting it (the curve), but not that quick”. [ 31 ] Mr. King confirmed that he drank 3 Bud Lite beer over five hours prior to driving his vehicle. He testified that he did not feel impaired prior to driving his truck.

He added that if he felt impaired in any way, he would not have driven his vehicle, because his girlfriend works in Raymore, and she got off work at 11:00 p.m. that evening, so he would have gotten a ride from her. [ 32 ] On further cross-examination Mr. King elaborated on the predicament in which he found himself. He testified that after rolling the vehicle he ended up upside down. He got his feet and legs untangled from the seat belt. His legs hurt. He had a chipped tooth, cracked ribs, glass was embedded in his head, and he was bleeding. It was pitch black in the interior of his vehicle and he was scared.

He testified that he was panicking. He was sore and hurt. He did not know if he was going to be crippled. Mr. King testified that the voice activated device came on immediately after the accident, and the woman on the other end of the device wanted to keep him talking. He talked to the woman until help arrived. [ 33 ] Mr. King ended up sitting on the roof in the back passenger side of his vehicle and found the plastic bottle of vodka which

was still intact. He testified that he drank the bottle of vodka. He added “. . . I don’t know if I guzzled it or sipped it.” [34] During cross-examination Mr. King confirmed that he gave a statement to Constable Floedel on September 9, 2013. Mr. Kingagreed that his initial statement to Constable Floedel was as follows: He had been in Raymore to get supplies earlier that day. That he had a case of eighteen beer and a mickey of vodka in the vehicle. Hestopped at a friend’s house before coming home and he had two beer out of the case. That while driving home his cell phone went off.

He looked down and the next thing he knew he was heading into the ditch. He didn’t want to correct (his steering) or he would roll. Next thing he knew On Star was talking to him and he thought he was dead, so he drank beer and a whole mickey of vodka. [35] On further cross-examination Mr. King agreed that Constable Floedel questioned him further. He conceded that he may havechanged his story and told Constable Floedel that “ . . . he was not sure what happened, he was not sure how much he drank or even if hedrank any vodka.” Mr.

King went on to testify that he changed his story to agree with Constable Floedel and that he did not know whatto say. ISSUE [36] There is one issue to be determined:

(1) The credibility and reliability of the witnesses ANALYSIS [37] In my view this case turns on the credibility and reliability of the accused. The Crown, through its expert Dr. Cherlet, hasadduced evidence that at 10:25 p.m. (the time of the single vehicle accident) Mr. King’s blood alcohol was estimated to be between 262mg% and 316 mg%. Dr. Cherlet further opined that the ability to safely operate a motor vehicle is impaired for all individuals with ablood alcohol concentration between 262 mg% and 316 mg%, and a regular tolerance to alcohol.

The average drinker is expected to beseverely intoxicated with such a blood alcohol concentration. His or her ability to operate a motor vehicle would be significantlycompromised. [38] One of Dr. Cherlet’s key assumptions in arriving at her blood alcohol concentration opinion is that Mr. King’s peak bloodalcohol concentration had been achieved at, or prior to 10:25 p.m. [39] Mr. King’s testimony, if accepted, that he drank a total of three beer prior to driving his vehicle and a mickey of vodka 20minutes after the accident, significantly alters Dr.

Cherlet’s opinion. [40] Since this case turns on the credibility and reliability of the accused’s evidence, I must consider it in light of the tests set outin R v McKenzie (1996), (SK CA), 141 Sask R 221 (CA) [McKenzie] and R v W.(D.), (SCC), [1991]1 SCR 742 [W.(D.)]. In McKenzie, Mr. Justice Tallis added a fourth step to the test set out in W.(D.) respecting the doctrine of reasonabledoubt as it applies to the issue of credibility and reliability of witnesses. This test is as follows: (

i) First, if you believe the accused, obviously you must acquit; (ii) Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; (iii) Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; (iv) Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the

(iv) Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [41] In R v Dinardo, 2008 SCC 24 , [2008] 1 SCR 788, at paragraph 23, Justice Charon wrote: [23] The majority rightly stated that there is nothing sacrosanct about the formula as set out in W.(D.).

Indeed, as Chamberland J.A.himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the threedistinct steps suggested in W.(D.); it will depend on the context (para. 112). What matters is that the substance of the W.(D.) instructionbe respected.

In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question ofwhether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt . . . [42] I have grave concerns about the credibility and reliability of the accused’s testimony respecting his consumption of alcohol during the late afternoon and evening of September 3, 2013. [43] There are significant inconsistencies regarding how much and when Mr. King consumed some Bud Lite beer and vodka. In-chief, Mr.

King testified that he consumed a total of three Bud Lite beer between 5:00 p.m. and 10:00 p.m. There was little detailregarding when he drank each of these three beer over a period of five hours, other than that he drank the last half of his third beer justbefore he got into his truck and drove southbound on Highway #6. Mr. King was very clear in-chief that he drank the mickey (13ounces) of vodka after the accident. [44] On cross-examination, Mr. King agreed that his initial statement to Constable Floedel on September 9, 2013 was as follows: He had been in Raymore to get supplies earlier that day.

That he had a case of eighteen beer and a mickey of vodka in the vehicle. Hestopped at a friend’s house before coming home and he had two beer out of the case. That while driving home his cell phone went off. He looked down and the next thing he knew he was heading into the ditch. He didn’t want to correct (his steering) or he would roll.

Next thing he knew On Star was talking to him and he thought he was dead, so he drank beer and a whole mickey of vodka. [emphasis added] [45] This statement suggests that he consumed two beer prior to the accident and some more beer and thirteen ounces of vodkaafter the accident. However, at trial Mr.

King conceded on cross-examination that when Constable Floedel questioned him further inSeptember of 2013, he may have changed his story and told Constable Floedel that “ . . . he was not sure what happened, he was not surehow much he drank or even if he drank any vodka.” [emphasis added] [46] I am of the view this statement severely undermines the credibility and reliability of Mr. King’s trial testimony regarding hisconsumption of alcohol. This view is reinforced by the fact that Mr.

King gave a detailed description of the time he spent trapped in hisvehicle prior to being rescued and yet was unable to recall whether he gulped or sipped the vodka. [47] As a result, I do not accept Mr. King’s evidence regarding his alcohol consumption. Nor I am not left with areasonable doubt by his evidence. In this case, the biochemistry report respecting Mr. King (Exhibit P-1) has been admitted intoevidence. I found Dr. Cherlet to be a credible and reliable witness. Dr. Cherlet used the biochemistry report in coming to her opinion.

Iaccept her opinion evidence that at 10:25 p.m. (the time of the single vehicle accident), Mr. King’s blood alcohol was between 262 mg%and 316 mg%. I also accept her evidence that at the time of the accident, Mr. King’s ability to drive would have been impaired byalcohol. CONCLUSION

[ 48 ] I find the accused guilty of both counts set out in the information. In accordance with the usual practice in this jurisdiction, a conditional stay shall be entered on count #1 (impaired driving), to be made complete upon the expiration of the appeal period, or alternatively until such time as all initiated appeals have been completed, whereby a conviction on count #2 (drive over .08) is maintained. ___________________________ M. Hinds, J