Her Majesty the Queen - v. -, 2015 SKPC 140

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 140 Date: October 23, 2015 Information: 24446935 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Eugene Elias Holm Appearing: Barrie Stricker For the Crown David Kreklewich For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] Eugene Holm is charged with having the care or control of a motor vehicle while impaired by alcohol and while over the legal limit, on May 2, 2015 at the Churchbridge District. Mr.

Holm was found on the side of a grid road northwest of Churchbridge, around 7:00 p.m. this day, by Cst. Wilkinson of the Esterhazy RCMP. The officer awakened Mr. Holm, who was sitting in the driver’s seat.

[ 2 ] The officer had Mr. Holm get out of the vehicle, and, after coming to believe he had been consuming alcohol, arrested Mr. Holm for impaired driving. After an ASD sample was taken from Mr. Holm with a fail result, Cst. Wilkinson drove him to the Esterhazy RCMP Detachment, where he provided samples of his breath both of 100 mg% at 8:41 p.m. and 9:03 p.m. [ 3 ] The issues in this case are: 1) As Mr. Holm was found in the driver’s seat of his vehicle, has he rebutted the presumption in s. 258(1) (

a) of the Criminal Code that he was in the care or control of his vehicle? 2) If so, was there proof beyond a reasonable doubt that he was in the care or control of his vehicle? 3) Is there proof beyond a reasonable doubt that his ability to operate his vehicle was impaired by alcohol? [ 4 ] The Crown presented three witnesses: Bradley Schmidt, a local farmer who saw Mr. Holm’s vehicle parked roadside between 5:00 and 6:00 p.m. this day and called the RCMP; Jeff Metzler, a tow truck driver from Bredenbury who was called by the RCMP to remove Mr. Holm’s vehicle from the scene of the stop; and Cst. Wilkinson. Mr.

Holm testified in his own defence and the defence further called Kyle Nicholauson, a friend of Mr. Holm’s who testified that he was asked to come pick up Mr. Holm this evening. II. BACKGROUND [ 5 ] Mr. Schmidt saw Mr. Holm’s vehicle parked on the shoulder of a grid road near his farm. Mr. Holm, whom he did not know, had his head down, his eyes closed and was sleeping. Music was blaring out of the open window of the vehicle. He phoned 911 to alert the police. About an hour later, the police arrived at the vehicle. [ 6 ] Cst. Wilkinson said he received the call about Mr.

Holm’s vehicle around 6:00 p.m. and arrived at the scene northwest of Churchbridge around 7:00 p.m. There he found Mr. Holm’s pickup truck, with an all-terrain vehicle (ATV) in the back, parked at the side of the road. He initially did not think that anyone was in the vehicle, but heard the radio on loudly and approached the driver’s side door. He saw Mr. Holm’s head pop up in the driver’s seat and said the engine of the truck was running. He spoke to Mr. Holm who seemed disoriented and confused. Mr. Holm poked at the radio trying to turn it off without any success. He said there was a case of beer beside Mr.

Holm on the front seat with four beer left in it (Exhibit P-2). [ 7 ] The officer had Mr. Holm exit the vehicle, took his driver’s licence and registration from him and, after handcuffing him, secured him in the police vehicle. The officer then returned to Mr. Holm’s vehicle and photographed the vehicle (these pictures are Exhibit P-1). The officer said he turned off the ignition to the vehicle with a screwdriver before returning to the police vehicle to deal with Mr. Holm. Regarding the pickup truck, Cst.

Wilkinson described it as run-down but operational. [ 8 ] When asked by the prosecutor whether he gave an approved screening device (ASD) demand to Mr. Holm in the police vehicle, Cst. Wilkinson said he did not recall. After reviewing his notes, he said that he indeed did give an ASD demand to Mr. Holm (at 7:00 p.m.), which produced a fail reading. After providing Mr. Holm with his rights to counsel and with the police warning, the officer drove him to the police detachment. They arrived at 8:00 p.m. [ 9 ] Mr. Metzler, from Bredenbury, was called this day by the RCMP to tow Mr.

Holm’s vehicle from the scene, which he said was northwest of Churchbridge: about 20 kilometres from Bredenbury but closer to Churchbridge. He picked up the truck by the back end and towed it to the police compound in Esterhazy. When Mr. Metzler arrived at the police compound with Mr. Holm’s vehicle, he started the pickup truck with a screwdriver and drove the truck into the compound. [ 10 ] Mr. Holm works as a miner at the K-3 Potash Mine. On May 1, 2015, he worked from 5:00 p.m. to 5:30 a.m. on May 2. After he got off work, he worked with his friend Kyle Nicholauson to fix the axle and drive shaft of his ATV.

After this was fixed, he drove his truck to Shellmouth Manitoba, where an ATV derby was to start at 10:00 a.m. In doing so, he followed the vehicle of a friend

of his who knew the way to Shellmouth, about an hour drive from Esterhazy. [ 11 ] Mr. Holm consumed alcohol during the derby. He brought a 12 pack of Bohemian beer with him, and said that he consumed six beer from that case until he left Shellmouth, between 4:30 and 5:00 p.m. He was not sure of the route he took going home. While on a grid road, his truck began to overheat and he pulled over to the side. He said this had happened before. He believed the antifreeze was about to boil over in his truck’s engine, although he did not check under the hood. [ 12 ] Mr.

Holm said he then turned off the vehicle, and put it into gear so the truck, which had a standard transmission, would not roll away. He said if he had left the vehicle running in neutral, it would have rolled away as his emergency brake did not work. He said he then texted Kyle Nicholauson, at around 5:30 p.m., to come get him as his truck had overheated. He told Mr. Nicholauson that he was on his way back from the Shellmouth derby, and said Mr. Nicholauson responded that he needed some time before coming to get him. [ 13 ] Mr. Holm said he then had a further beer and passed out as he was very tired.

He said, before having the beer, he took his boots off and put his keys and the screwdriver (which he used to start and stop the engine) in his boots and into the rear box of his pickup truck. [ 14 ] Mr. Holm said that his radio does not work and that the music was coming from a so-called boom box which received a signal by WiFi from his cell phone. He denied being concerned about his ability to drive. After being woken up, he did not recall talking to the police officer, but rather said he was taken outside of the vehicle and arrested for drinking and driving.

He said the police officer took him to the police vehicle and then left to photograph Mr. Holm’s truck. [ 15 ] Mr. Holm denied any intention to drive further that day, saying that his plan was to contact Mr. Nicholauson to come get him and pick up his ATV. His plan was to leave the pickup truck by the side of the road and come get it the next day. He said the pickup truck was only worth $300.00 whereas the ATV was worth $17,000.00. [ 16 ] On cross-examination, he did not recall grabbing for the radio after the police officer spoke to him.

When asked why, if he had six beer at the derby and one after he stopped by the side of the road, there were only four beer left in the case of Bohemian, he could not explain this other than saying that someone may have taken one from him at the derby. [ 17 ] After an extended cross-examination, it was clear that he did not know where he was when he pulled over. I am satisfied that he was north of Highway 16 to the northwest of Churchbridge. In effect, what Mr. Holm knew was that he was driving back from Shellmouth to Esterhazy, but admitted that there were a number of roads over this route.

It was obvious he was not found in a place that was between Shellmouth and Esterhazy, as Shellmouth is northeast of Churchbridge. [ 18 ] When asked what he would have done if Mr. Nicholauson didn’t show up, he said he would “probably” wake up and drive home, as his truck would have been, in his words, “fine”. He admitted that someone can be unpredictable when they wake up, and further admitted that he was very tired and needed sleep.

He admitted that he had pulled over solely because of his concern about the engine in his truck, and that, when his truck had overheated once before, it took about an hour for it to cool down. [ 19 ] Mr. Nicholauson said he did not hear from Mr. Holm, after helping him fix his ATV that morning, until later that day when he received a text message from him between 5:00 and 6:00 p.m. That message from Mr. Holm said that his truck had broken down and overheated. Mr. Nicholauson, who was in the Esterhazy area, said he sent a text back to Mr.

Holm that it would be an hour before he could get away from the work he was doing to help him. [ 20 ] Mr. Nicholauson said he then finished the work he was doing, went to a gas station in Esterhazy and then proceeded toward Churchbridge. He arrived at the Tempo gas station at Churchbridge and waited there for 20 minutes. It was clear from his evidence that he did not know where Mr. Holm was located, just that he was on his way back from the derby at Shellmouth. After the 20 minute wait, he left and returned to Esterhazy.

III. HAS MR. HOLM REBUTTED THE PRESUMPTION UNDER S. 258(1)(a)? [ 21 ] Mr. Holm was found in the driver’s seat of his vehicle. As a result, s. 258(1)(

a) deems that he had the care or control of this vehicle unless he establishes that he did not occupy that seat for the purpose of setting the vehicle in motion. [ 22 ] In this case, it was obvious that Cst. Wilkinson did not accurately recall all of the circumstances after he found Mr. Holm. Indeed, he could not initially recall giving an ASD demand to him. I am, however, satisfied that the pictures he took shortly after arresting Mr. Holm show that the screwdriver which was used to start this vehicle was found on the front seat of the vehicle at the time the officer found Mr. Holm in the driver’s seat.

As a result, I don’t accept Mr. Holm’s evidence that he placed the screwdriver in the back of his pickup truck. Nevertheless, and despite my view that Mr. Holm likely consumed eight and not seven beer as only four were left in the case, I do accept Mr. Holm’s evidence that he parked his vehicle after he was concerned about it overheating and that he then contacted Mr. Nicholauson to try to arrange a ride home. [ 23 ] Although I am satisfied a screwdriver capable of starting the vehicle was present on the front seat and while I note Mr.

Holm’s statement of what he would do if his friend did not show up, nevertheless, after hearing his explanation of what happened, I am satisfied on a balance of probabilities that Mr. Holm did not intend to drive this vehicle at the time Cst. Wilkinson found him, and, as a result, that he did not occupy that seat for the purpose of setting the vehicle in motion. The presumption is rebutted. IV. IS THERE PROOF BEYOND A REASONABLE DOUBT THAT HE WAS IN THE CARE OR CONTROL OF HIS VEHICLE? [ 24 ] This is a case where the defence argues that Mr.

Holm was not in care or control of the vehicle in large part because he had an alternate plan to be picked up by Mr. Nicholauson. As a result, this case falls directly within the principles of law set out by the Supreme Court of Canada in the case of R v Boudreault , 2012 SCC 56 [ Boudreault ], in which Mr.

Justice Fish concluded, at paragraph 9, that care or control within the meaning of s. 253(1) of the Criminal Code signifies: (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 , as opposed to a remote possibility , of danger to persons or property. [ 25 ] In this case, there is no doubt that Mr. Holm was involved in an intentional course of conduct associated with his motor vehicle. Indeed, not long before speaking to Cst.

Wilkinson, he drove his vehicle to where he parked it at the side of the road, and remained there until Cst. Wilkinson found him. Further, I am satisfied that in this case the conditions precedent in s. 258(1)(

c) have been proved by the Crown, and that, as a result, the Certificate of Analyses (Exhibit P-3) proves that Mr. Holm’s blood alcohol concentration, at the time he was found by Cst. Wilkinson, exceeded 80 mg%. [ 26 ] The question in this case, therefore, becomes whether there was a realistic risk, as opposed to a remote possibility, of danger to persons or property. Mr. Kreklewich argued Mr. Holm’s circumstances did not create such a risk, as:

(1) Mr. Holm contacted Mr. Nicholauson to come get him; (2) the vehicle was parked; (3) the vehicle was not running; (4) his shoes were off and, together with the screwdriver, were put by him in the rear box of his truck; and (5) his seat was reclined. For the reasons that follow, I disagree. [ 27 ] Dealing with the last argument first, there was no evidence at the trial that the seat was reclined, and I don’t accept that it was. I do, however, accept, based on Mr.

Holm’s evidence, that his vehicle was parked and its engine was not running and that the music was coming from his boom box - clearly pictured with his cell phone on the front seat in Exhibit P-1 - and not his radio. I also accept that he removed his shoes before the officer arrived. [ 28 ] After hearing the evidence of Cst. Wilkinson, I am not satisfied that he accurately recalls whether the vehicle was running and

where the music was coming from. I do, however, accept the officer’s evidence that Mr. Holm was disoriented and did reach for the radio after he was awakened. As well, I accept the officer’s evidence that the vehicle was operational - with a screwdriver capable of starting it present on the front seat - and could have been started when he arrived at the scene. [ 29 ] In the context of these findings, how, then, is Mr. Holm’s plan to be picked up by Mr. Nicholauson to be interpreted and categorized?

At paragraph 52 of Boudreault , Justice Fish commented on the impact of an alternate plan on the Court’s assessment of the risk of danger. He said this depended on the following considerations: ... first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused. A plan may seem watertight, but the accused’s level of impairment, demeanour or actions may demonstrate that there was nevertheless a realistic risk that the plan would be abandoned before its implementation.

Where judgment is impaired by alcohol, it cannot be lightly assumed that the actions of the accused when behind the wheel will accord with his or her intentions either then or afterward. [ 30 ] In my view, the alternate plan in this case was not objectively concrete and reliable. That is because: 1) Mr. Holm had no idea where he was, by his own admission, as he was travelling between Shellmouth, Manitoba and Esterhazy, and admitted that there were a number of different routes he could have taken; 2) The evidence was clear that he was not parked at a location between Shellmouth and Esterhazy; 3) Mr.

Nicholauson, as well, had no idea where Mr. Holm was - whom he described as having gotten lost a number of times before and having asked for help on these occasions - and as far as I can determine, Mr. Nicholauson was only driving to Churchbridge so that they might have further communication with Mr. Holm to figure out where he was; and 4) The few brief texts between them - without any voice contact - did not in my view form the basis of a concrete and reliable plan. [ 31 ] Further to the lack of a concrete and reliable alternate plan, two admissions made by Mr.

Holm otherwise support a conclusion that there was a realistic risk of danger to persons or property. These were his admissions that: (1) a person can be unpredictable when awoken; and (2) if Mr. Nicholauson had not found him, he would have awoken and “probably” driven back to his home in Esterhazy. That, in turn, means there was a reasonable risk the plan would be abandoned before its implementation. Taken together, I find the risk of danger to persons or property, resulting from Mr. Holm’s presence in the driver’s seat, was a realistic risk as opposed to a remote possibility.

As a result, I am satisfied beyond a reasonable doubt that Mr. Holm was in the care or control of his vehicle when found by Cst. Wilkinson. V. WAS HIS ABILITY TO DRIVE IMPAIRED BY ALCOHOL? [ 32 ] Cst. Wilkinson’s observations of Mr. Holm were that he had an odour of alcohol coming from him, his eyes were bloodshot and watery and he looked like he had been sleeping. The officer said Mr. Holm was unsteady on his feet when he went back to the police vehicle.

He said he did not have shoes on and he was covered in mud. [ 33 ] On cross-examination, the officer admitted that he made no mention of bloodshot, glassy eyes in his notes, and further admitted that Mr. Holm’s speech was normal and that he walked normally at the detachment and was otherwise polite and cooperative. He further said, despite already arresting Mr. Holm for impaired driving, that it was the ASD test which gave him reasonable and probable grounds for the breath demand. Finally, the officer said he noted no gross signs of impairment on Mr.

Holm. [ 34 ] Taken together, the evidence on impairment leaves me with a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol, given the equivocal nature of a number of the symptoms observed by Cst. Wilkinson and the officer’s apparent lack of recollection about some of the key circumstances of this case.

VI. CONCLUSION [ 35 ] Because I am satisfied beyond a reasonable doubt that Mr. Holm was in care or control of this vehicle at a time when his blood alcohol concentration was over 80 mg%, he is found guilty of count #2. [ 36 ] Given my conclusion, above, Mr. Holm is found not guilty of impaired driving (count #1). R. Green, J