Her Majesty the Queen - v. -, 2011 SKPC 152

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 152 Date: September 20, 2011 Information: 24299628 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Daniel G. Page Appearing: Constance R. Hottinger For the Crown Robert Skinner For the Accused JUDGMENT M.

HINDS , J BACKGROUND [ 1 ] On December 13, 2008 at Pilot Butte, Saskatchewan, Daniel Page was charged with the following two offences: (1) having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood did unlawfully have care and control of a motor vehicle contrary to section 253(1) (

b) and section 255(1) of the Criminal Code and

(2) unlawfully have care or control of a motor vehicle and while his ability to operate a motor vehicle was impaired by alcohol contrary to sections 253(1) (

a) and 255(1) of the Criminal Code . [ 2 ] The matter proceeded to trial with two witnesses called for the Crown and one for the defence. It was common ground that the presumption of care or control as set out in s. 258(1) (

a) of the Criminal Code applied. The two questions left for the Court to determine were whether the evidence rebutted that presumption and if it did, whether the evidence established that the accused had de facto care or control. Evidence [ 3 ] Brian Fowlie is a civilian member of the Regina Police Service. He lives in Pilot Butte, Saskatchewan which is located a short distance from the City of Regina. Around 7:00 a.m. on December 13, 2008, while on route to a gas station, Mr.

Fowlie observed a large young man in the driver’s seat of a minivan which was nose down in a ditch in a residential area just off 5 th Avenue in Pilot Butte. Mr. Fowlie also observed that the minivan was running with the headlights on and that the young man in the driver’s seat was passed out. This individual was Daniel Page who was not known to Mr. Fowlie. Mr. Fowlie also observed that there were footprints in the snow leading away from the driver’s door to the rear of the minivan. Mr. Fowlie returned to his home and called 911. [ 4 ] R.C.M.P. Constable Shannon White responded to Mr.

Fowlie’s complaint regarding the man passed out in a running minivan. She arrived at the scene at 8:17 a.m. and observed a grey minivan matching the licence plate description provided by Mr. Fowlie which was perpendicular to 5 th Avenue parked on someone’s lawn. Constable White noted that keys were in the ignition, the engine of the minivan was running, and the sole occupant of the vehicle, Daniel Page, was passed out in the driver’s seat.

On cross- examination Constable White agreed that the minivan was nose down in the ditch, however, in her opinion the minivan could be put in motion. [ 5 ] Constable White testified that she was unable to get Mr. Page’s attention by knocking on the side window of the minivan. As a result she opened the driver’s side door to the minivan and immediately sensed a strong smell of liquor and vomit. She observed vomit on Mr. Page. She also observed a nearly empty 26 ounce bottle of rye whiskey at Mr. Page’s feet on the floor of the minivan. Constable White tried to talk to Mr. Page. She could not understand Mr. Page.

He was slurring his words, mumbling and spitting profusely. Constable White formed the opinion that Mr. Page was in care and control of a motor vehicle while his ability to operate the vehicle was impaired by alcohol and arrested him. Mr. Page did not exit the vehicle on his own. Constable White had to pull Mr. Page by his arm to assist him in exiting the minivan. She noted that Mr. Page was a large man, weighing approximately 265 pounds and that he staggered to the police vehicle. At 8:25 a.m. Constable White demanded that he provide samples of his breath. Mr.

Page was advised of his right to counsel and given a police warning regarding any statements that he made to Constable White. [ 6 ] Constable White left Pilot Butte with Mr. Page at 8:29 a.m. and went to the R.C.M.P. Detachment in Regina. Mr. Page spoke to legal counsel at the Regina Detachment between 9:01 and 9:05 a.m. Mr. Page subsequently provided two breath samples into an intoxilyzer. The first breath sample at 9:19 a.m. was 110 mg%. The second breath sample at 9:43 a.m. was 110 mg%. [ 7 ] During the course of her investigation Constable White determined that the grey minivan in which she found Mr.

Page, had struck a nearby vehicle in Pilot Butte. [ 8 ] Constable White also testified respecting certain statements that Mr. Page made in her presence during the course of her investigation. At trial I ruled these statements were voluntary and were to be admitted into evidence. [ 9 ] Constable White testified that between the first and second breath samples Mr. Page told her that he tried hard not to drink and drive, that he had been out with friends and they had been drinking. Mr. Page said he and his friends had pulled over at the arena in Pilot Butte where they did some drinking.

He drank some rum and some rye and at one point he had been in the back of the van.

[ 10 ] Constable White also testified that she obtained a warned statement from Mr. Page who advised her that he was living with the Garston family and that Kyle Garston had lent him the minivan. Mr. Page left the Garston residence at 12:30 a.m. and drove to Travis’ house, who is a friend who lives in Pilot Butte. He met Travis and Ryan Brock at this residence. Mr. Page drank a 26 ounce of rum and a 26 of rye at this house. The 26 ounce bottle of rye found in the minivan was the same bottle he was drinking from at the house. Mr. Page did not remember everything as he had blacked out. Mr.

Page did not think he was driving and that he thought Ryan Brock was the driver. He thought he was sleeping in the back of the van and he did not know how he got behind the wheel. He does not remember an accident. [ 11 ] On cross-examination Constable White testified that she conducted an investigation respecting Ryan Brock. Ryan Brock provided a warned videotaped statement to Constable White. Ryan Brock told her that he was the driver of the minivan at the time of the accident and that while Mr. Page had been driving earlier, once Mr. Page started drinking, Mr. Brock did all the driving.

Ryan Brock was charged with leaving the scene of an accident and not having a valid driver’s licence. Mr. Brock subsequently entered guilty pleas to these charges. [ 12 ] Ryan Brock testified for the defence. Ryan Brock testified that on December 13, 2008, he was driving a vehicle in Pilot Butte which was involved in an accident and ended up at the side of the roadway. He stated that to the best of his recollection he remembered crashing the vehicle, snapping his finger on the steering wheel, going home and coming back to the vehicle and pulling Daniel Page from the back of the vehicle to the driver’s seat.

The vehicle was nose down in a ditch area. He then tried to get the vehicle unstuck, however, the vehicle would not move. He testified that he immediately left. Mr. Brock testified that Daniel Page’s sobriety was such that he could not function and that Mr. Page did not consent to getting behind the wheel of the vehicle. Lastly, Mr. Brock testified in chief that he subsequently pled guilty to a charge of leaving the scene of an accident. [ 13 ] Ryan Brock’s evidence in chief was brief, lasting less than three minutes.

His evidence in chief provided few details of the events of December 13, 2011. [ 14 ] On cross-examination Mr. Brock was emphatic that he did not drink alcohol on December 13, 2011. He testified that he did not like drinking as drinking tends to make people make stupid decisions. He conceded that his actions in leaving the scene of an accident and leaving his friend in the vehicle in minus thirty below zero weather were stupid. [ 15 ] Mr. Brock testified that Mr.

Page was drinking from a bottle of Wiser’s Whiskey in the back seat of the vehicle. [ 16 ] On cross-examination Ryan Brock was pressed on several details concerning December 13, 2011, including when he first had contact with Daniel Page. Mr. Brock indicated that Daniel Page picked him up around 5:00 or 6:00 p.m. and then the two men went to Travis Blatner’s home which was about six blocks from his home in Pilot Butte. In turn the three men went to the Empire Hotel in Regina to get liquor. He explained that “a friend of ours from the city” purchased the liquor. He could not recall the name of this person.

The three men went back to Mr. Blatner’s home in Pilot Butte, where Mr. Blatner and Mr. Page began drinking. The three men then went to the rink in Pilot Butte around 8:30 or 9:00 p.m. The men then dropped off Mr. Blatner at his home and then Mr. Page asked Mr. Brock to drive him home. On route to Mr. Page’s home, Mr. Page testified that he hit a patch of ice, struck another vehicle, did a 360 and ended up on a neighbour’s lawn perpendicular to the road on a slope. [ 17 ] After initially leaving the scene of the accident, Mr. Brock returned to the minivan where he pulled Mr.

Page from the back seat and placed him into the driver’s seat. Mr. Brock testified that at this time the engine was running but the headlights were off. Mr. Brock further testified that his purpose in placing Mr. Page in the driver’s seat was to assist him in getting the vehicle “unstuck”. Mr. Brock explained that he placed himself at the front end of the vehicle and began to try to push it back onto the roadway. At the same time he screamed at Mr. Page to push down on the accelerator pedal. Mr. Brock testified that Mr. Page pushed down on the accelerator pedal and the tires of the vehicle began to spin.

Despite this joint effort the two men were unable to get the vehicle back onto the roadway. As a result Mr. Brock decided to leave his friend in the minivan and went home. [ 18 ] The Crown successfully sought leave to cross-examine Mr. Brock on a video statement he provided to Constable White on December 17, 2008. There were two glaring inconsistencies between Mr. Brock’s account of December 13, 2008 at trial and his video recorded statement. Those inconsistencies include:

(

a) In the video statement Mr. Brock testified that on December 13, 2008, Mr. Page was driving a minivan and picked him up around12:00 midnight. At trial Mr. Brock testified that Mr. Page picked him up around 5:00 or 6:00 p.m. (

b) In the video statement Mr. Brock testified that they went to Regina and he purchased a 26 ounce bottle of Barcardi Rum. He paid$34.50 and he gave the rum to Mr. Page as he owed him for some food Mr. Page had previously bought for him at McDonald’s. At trialMr. Brock testified that an unnamed friend from the city purchased the alcohol. [19] During cross-examination Mr. Brock acknowledged these inconsistencies. As to the time he was picked up by Mr. Page, Mr.Brock conceded on cross-examination that he does not remember the evening very well, he only remembers “bit and pieces”. Mr.

Brockalso conceded on cross- examination that he does not recall who purchased the liquor. DEFENCE POSITION [20] Counsel for the accused argues that the presumption of care or control has been rebutted. The defence contends Mr. Brockgave credible evidence, that he was driving the minivan which collided with another vehicle and became stuck in the ditch and that Mr.Brock then pulled an unwitting Mr. Page from the back seat of the van and placed him in the driver’s seat of the van. Lastly Mr. Brocktestified that Mr. Page did not consent to getting behind the wheel of the minivan and was not functional.

CROWN POSITION [21] The Crown argues that the presumption of care and control has not been rebutted. In the alternative the Crown argues thecircumstances show de facto care or control. THE LAW AND APPLICATION (

i) Does the evidence rebut the presumption set out in s. 258(1)(a)? [22]

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

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

section 253 ... (

a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, ... theaccused shall be deemed to have had the care or control of the vehicle ... unless the accused establishes that the accused did not occupythat seat or position for the purpose of setting the vehicle ... in motion ... [23] Section 258(1)(

a) of the Criminal Code deems that a person who occupies the seat normally occupied by the operator of amotor vehicle has the care or control of that motor vehicle. This presumption can be rebutted by evidence, which if accepted, establisheson a balance of probabilities that the accused did not assume that position with the intention of setting the vehicle in motion: see R. v.Ford, [1982] S.C.R. 231 (S.C.C.) at para. 6 and R. v. Shuparski, 2003 SKCA 22 , 2003 SKCA 022 at para. 23. [24] In this case the accused did not testify. The defence relies upon the testimony of Mr.

Brock that he placed his heavilyintoxicated friend, Mr. Page, in the driver’s seat of the vehicle and that Mr. Page did not consent to being placed in the driver’s seat, norintend to set the vehicle in motion. The defence contends that the evidence of Mr. Brock rebuts the presumption set out in section258(1)(

a) of the Criminal Code. [25] I have already noted the two glaring inconsistencies between Mr. Brock’s account of December 13, 2008 at trial and hisvideo recorded statement with respect to the time he and Mr. Page first got together and who purchased a bottle of rum. I have also noted

that during cross- examination Mr. Brock admitted that he does not remember the evening very well and he only remembers “bit andpieces”. The location of the whiskey bottle in the minivan also illustrates the problem with Mr. Brock’s memory of December 13, 2008. Mr. Brock testified that he was confident that the Wiser’s Whiskey bottle from which Mr. Page had been drinking from in the back seatwas not in the front seat of the vehicle. However, it is clear from the testimony of Constable White which I accept in full, that thewhiskey bottle was in fact found at the feet of Mr.

Page in the driver’s seat of the vehicle. [26] Lastly, I do not accept Mr. Brock’s testimony that he was not drinking alcohol on December 13, 2008. First of all, I ammindful of the words of Mr. Page who told Constable White that he had been out with friends and they had been drinking. Mr. Page saidhe and his friends had pulled over at the arena in Pilot Butte where they did some drinking. Secondly, the admitted actions of Mr.

Brockin leaving the scene of an accident on two occasions and leaving his friend in the vehicle in minus thirty below zero temperatures are inmy view inconsistent with those of a completely sober person and negatively affect the credibility of Mr. Brock. [27] On the whole, I found Mr. Brock to be an unreliable witness with a poor memory of the events of December 13, 2008. As aresult, I am not satisfied on a balance of probabilities that the presumption of care or control has been rebutted. Hence, relying on thepresumption set out in section 258(1)(

a) I find that the Crown has proved that Mr. Page occupied the seat or position ordinarily occupiedby a person who operates a motor vehicle, and is to be deemed to have had the care or control of the vehicle. [28] I further find that as a result Constable White’s dealings with Mr. Page and her observations that he smelled of alcohol andvomit, he slurred his speech, mumbled and was incomprehensible, could not exit the vehicle without assistance and staggered when hewalked to the police vehicle, I am satisfied that Constable White had reasonable and probable grounds to make a breath demand of Mr.Page.

The Certificate of Analyses tendered in evidence by the Crown reveals the two breath samples obtained from Mr. Page at 9:19a.m. and 9:43 a.m. were both 110 mg%. Hence, I find at 8:17 a.m. on December 13, 2008, that the accused had consumed alcohol insuch a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood and was in care andcontrol of the minivan. I therefore find him to be guilty of count number one. [29] I would have also found Mr.

Page guilty of count number two, however, in accordance with the usual practice in thisjurisdiction, a conditional stay shall be entered on count number two, to be made complete upon the expiration of the appeal period oralternatively, until such time as all initiated appeals have been completed, whereby a conviction on count number one is maintained. [30] In R. v.

Breland, 2011 SKPC 124, Judge Gray summarised the test for impairment which I adopt as follows: [22] The Court must be satisfied beyond a reasonable doubt, on the totality of the evidence, that the ability of the accused to operate amotor vehicle was impaired to some degree by alcohol. R. v. Stellato, (ON CA), [1993] O.J.

No. 18 (C.A.), affd. (SCC), [1994] 2 S.C.R. 478 (S.C.C.), provides the test to be applied in determining whether the offence of impaired drivinghas been established; that is: if the Crown has proven beyond a reasonable doubt that the ability of an accused to operate a motor vehicleis even slightly impaired by drug or alcohol, there is sufficient proof of the offence. This does not mean that only slight evidence will beadequate. Rather, the evidence as a whole must establish that such an inference can reasonably be drawn from conduct which is adeparture from the norm.

That departure may fall upon a continuum from slight to great, leading to no other reasonable conclusion butthat the accused’s ability to operate a motor vehicle was impaired to some degree by the consumption of alcohol and/or drugs. [31] In this case, the evidence establishes that there was a strong smell of alcohol and vomit coming from the breath of the accused,he had to be awakened, his speech was slurred and incomprehensible, he needed assistance to exit the minivan and he staggered. Inaddition, he was found on a cold winter morning asleep in a vehicle which left the roadway.

On the whole of the evidence, Mr. Page’sappearance and conduct were a far cry from the norm. CONCLUSION [32] I find Mr. Page guilty on count number one. A conditional stay is entered on count number two.

________________________________ M.J. Hinds, J