R. v. Balis Date:, 2013 BCPC 28

Citation: R. v. Balis Date: 20130124 2013 BCPC 0028 File No: 57745-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PETER FREDERICK BALIS EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. C. CHALLENGER Counsel for the Crown: L. Falloon Counsel for the Defendant: J. G. Diamond Place of Hearing: North Vancouver , B.C. Date of Judgment: January 24, 2013

[ 1 ] THE COURT: These are my reasons for judgment following a trial in the matter of Balis. [ 2 ] Mr. Balis was charged with impaired care and control, and care and control over .08. The Crown advised at the commencement of trial that they would be seeking a conviction only on the charge of impaired care and control. [ 3 ] The events in question occurred on the night of November 19th and into the morning of the 20th, 2011, in Squamish, British Columbia. The police found Mr.

Balis asleep in the driver's seat of his vehicle at approximately 0745, after a 9-1-1 call at 0729 alerted them to the situation. [ 4 ] The issues in this matter are: - Does the evidence of the Crown prove beyond a reasonable doubt that the ability of the accused to operate a motor vehicle was impaired by alcohol at the time the officer found him in the driver's seat? - Has the evidence of the accused rebutted the presumption of care and control? - If the presumption has been rebutted, does the evidence of the accused raise a reasonable doubt as to whether he had the care and control of the vehicle? [ 5 ] The sole witness for the Crown was Constable Mkrttchian of the RCMP.

He was eight to nine months out of depot at the time of the investigation. He described the weather that morning as being minus six degrees Celsius, cloudy with slight rain falling, and snowy and icy on the ground. [ 6 ] Mr. Balis was parked in the parking lot of the Shady Tree, a local bar. His vehicle was apparently running, as there was exhaust visible. The officer pulled up behind Mr. Balis's vehicle with his emergency lights activated. He could see Mr.

Balis in the driver's side mirror, seated in the driver's seat with his head back, lolling from side to side and his mouth open. [ 7 ] The driver's side window was down. The windshield wipers were operating, the heat was on, and there was very loud music coming from the vehicle. He was unable to say if the seat was reclined. He did not note if the vehicle was a standard or automatic transmission or if the emergency brake was engaged. [ 8 ] When he arrived beside the driver's window, he noted that Mr. Balis was not wearing a seat belt. He also noted a strong odour of liquor on Mr.

Balis's breath from approximately two feet away. He stated twice, "It's the police," but there was no reaction. He then touched Mr. Balis on the shoulder and again said very loudly, "It's the police." [ 9 ] Mr. Balis then reacted. He was asked to turn down the music and did so. He also shut off the vehicle without being asked to do so. The officer believed it took eight seconds for Mr. Balis to make eye contact with him, and described him as appearing "spaced out" and having slow reactions. He had no note of the eight-second delay.

He agreed that it takes some time for people who have been sleeping to become fully aware of their surroundings. [ 10 ] The officer described Mr. Balis's face as flushed, his eyes as glassy and bloodshot, and the odour of liquor on his breath as strong. He testified it smelled of gin, but had no note of this. He was unable to say whether Mr. Balis was wearing glasses. [ 11 ] The officer asked for Mr. Balis's driver's licence. Mr.

Balis checked his jacket, which was on the seat beside him, and then located his wallet in his pants pocket. [ 12 ] The officer said he took some time to look through his wallet and then produced his care card. The officer pointed this out to him and he provided his driver's licence. [ 13 ] His fine motor skills were described as poor when producing his licence. No detail was given to support this conclusion, except that he was slow in his movements and no mention of this was made in his notes. [ 14 ] The officer asked Mr. Balis to confirm the information on his licence and he did so correctly.

He was then asked for his insurance papers, which he produced from the glove box without any difficulty. The officer noted his insurance had expired on November 11th. Mr. Balis appeared surprised by this. [ 15 ] The officer agreed that the residence address indicated on the licence was two blocks away from where he located Mr. Balis. He also said that it was a shorter distance from the Grizzly Pub to the Shady Tree than from the Shady Tree to Mr. Balis's home. [ 16 ] The officer described Mr. Balis's speech as slurred, and that his words were "not fully completed".

He agreed he did not record anything specific in his notes about the slurring, does not know how Mr. Balis normally speaks, and there is no further mention of problems with speech in his notes. [ 17 ] The officer formed his grounds for a demand and asked Mr. Balis to step out of the vehicle. He did so and was asked to turn to be handcuffed. The officer described his movements as slow and uncertain. He made no notes of this. [ 18 ] The officer then made his demand for breath samples and gave the Charter warnings. Mr.

Balis asked the officer to secure his vehicle, which he did with the keys which were provided by Mr. Balis. [ 19 ] At the detachment, and for reasons which are not clear, a more senior officer intervened and administered an approved screening device. [ 20 ] The investigating officer facilitated contact with counsel. Mr. Balis tore a page in the directory which, in the officer's opinion,

appeared to be the result of poor fine motor skills. Mr. Balis advised he wished to call a certain lawyer and gave the officer the number. That number was not correct and the officer asked him again for the number, and Mr. Balis ran his hand over the lawyer's half-page advertisement and said, "It's there." [ 21 ] The officer said he noted Mr. Balis to have dry, pasty lips and a red face at the detachment. He said otherwise the symptomology noted at the scene remained the same. [ 22 ] The officer described Mr.

Balis's demeanour as "reserved and polite" and that he was cooperative and responsive throughout his dealings with him. He agreed that each symptom noted could be due to other factors, such as fatigue or difficulty waking. [ 23 ] He said that when he was seen at court, Mr. Balis did not appear to have glassy or bloodshot eyes and his face was not red. He described his movements in court as "well carried, certain, and confident". [ 24 ] He had seen Mr. Balis once in the interim at the local airport and noted then that his face was not red and he was standing straight. [ 25 ] Mr. Balis testified.

He is 28 years old and is a commercial pilot. He gave testimony consistent with the officer about where he lives in relation to the two pubs. He said he was wearing glasses at the time of the events. [ 26 ] He described that he was suffering from a herniated disc in his lower back at the time. He had been diagnosed in October of 2011. He testified he was experiencing severe pain in his right leg and foot. The pain was present daily and was worse at night. [ 27 ] On November 20th, he was at work for the day and then drove to the Shady Tree to meet a friend.

He parked, put the emergency brake on, left the vehicle in gear, and went into the bar. He and his friend ate dinner, played pool and darts, and drank two to three beers. They went to the Grizzly Pub around 11, where they drank two to three more beer and played pool. They began walking home around 2:00 a.m. after closing time. [ 28 ] Mr. Balis said the pain in his back and leg was getting worse as the evening wore on, and as he was walking it became even worse. When he reached his vehicle, he decided to get in, to lie down, and try to relieve the pain.

He said he got cold quite quickly and turned the vehicle on for heat after a few minutes. He reclined the seat back far enough that he could not reach the steering wheel, but not so it was horizontal. [ 29 ] He said he put the radio on to keep him awake, as he planned to continue walking home after he felt better. Instead, he fell asleep. He said he had no intention of driving his vehicle. [ 30 ] His next recollection is waking up to find Constable Mkrttchian at the window. He said he was hung over, groggy, and confused when he first woke up. He had not slept well and was in pain.

He said his eyes are usually bloodshot when he first wakes up. He believed he was speaking normally. He said he felt better as time went on. [ 31 ] Mr. Balis testified that he did not remember taking off his jacket or putting the window down or putting the wipers on. He agreed he had to take the vehicle out of gear when he turned it on.

He also speculated that he put the seat upright when he went to turn off the ignition. [ 32 ] He said he left his glasses in the vehicle when he got out to speak with the officer, but he also said he only needs his glasses for distance vision. [ 33 ] The evidence which goes to support a finding of impairment of Mr.

Balis's ability to operate a motor vehicle is: a strong odour of liquor on his breath; a failure to respond to the officer's verbal announcements; appearing "spaced out"; an eight-second delay in making eye contact with the officer; a flushed face; glassy, bloodshot eyes; producing his care card instead of licence; poor fine motor skills; slurred speech and words which were not complete; slow and uncertain movements when getting out of the vehicle; tearing a page in the directory; and dry, pasty lips. [ 34 ] Of these, the officer relies on memory alone with respect to the length of delay in making eye contact and what he describes as uncertain movement.

The officer did not provide details which the court could assess to determine if his opinion with respect to Mr. Balis having slurred speech was well-founded or that his fine motor skills were poor, save for inadvertently tearing a page in the Yellow Pages directory. [ 35 ] Neither did the officer provide any detail about what words Mr. Balis did not complete. When asked what he meant by "spaced out", he said it appeared to take Mr. Balis some time to get his bearings. [ 36 ] Once at the detachment, the officer said the symptomology continued as described, but noted he had dry, pasty lips.

I am unsure what connection this might have to impairment by alcohol; however, it may be consistent with dehydration. [ 37 ] Considered together, these observations are consistent with consumption of alcohol and some degree of impairment by alcohol. However, as noted, the officer's evidence is lacking in detail or vague on some points, or unsupported by notes, and I find it difficult to ascribe significant weight to it. [ 38 ] The evidence which goes against a finding that Mr.

Balis's ability to operate a motor vehicle was impaired is that he awakened as soon as touched; immediately responded to the officer's request to turn off the music; turned off the vehicle and removed the key; located his wallet and removed his documents without difficulty; was coherent and responsive to the officer's questions and commands; remembered to ask the officer to lock his vehicle; had no gross motor control issues in getting out of the vehicle, standing, turning, and walking handcuffed to the police car, or getting into or out of the vehicle while handcuffed, or walking into the detachment or moving about once inside.

[ 39 ] Mr. Balis explained that he had a back injury and that he was tired and "hung over" when located and awoken by the officer. I accept his evidence on this point to be true, given the drinking pattern he described, which was consistent consumption of approximately one beer per hour over a span of eight hours. [ 40 ] I take from common experience that it would be likely he would have shown some signs of veisalgia or withdrawal from excessive alcohol consumption, which would include red and glassy eyes. [ 41 ] He slept for a maximum of five hours.

He testified he was very thirsty throughout his dealings with the officer. [ 42 ] It is trite to say that people who heavily consume alcohol and then sleep for a number of hours can still be highly intoxicated when they awake.

Indeed, even a low blood alcohol level, combined with dehydration and lack of sleep, can cause impairment of one's ability to drive. [ 43 ] On the other hand, even someone whose blood alcohol level is zero, but who has little sleep, would be groggy and slow to orient themselves when they awoke if they had consumed excessive amounts of alcohol in the hours before going to sleep. [ 44 ] I find on the evidence that it is likely Mr. Balis's ability to operate a motor vehicle was impaired to some extent, given the observations of the officer.

However, I am not able to say that the evidence convinces me beyond a reasonable doubt on this issue. [ 45 ] Even if I am wrong in that finding, I find that the evidence of Mr. Balis raises a reasonable doubt in my mind on this issue. [ 46 ] Although I need not address the issue of care and control, I will address it briefly here. [ 47 ] I find that the evidence of Mr. Balis is capable of rebutting the presumption of care and control to the balance of probabilities.

However, had I found the evidence proved beyond a reasonable doubt that his ability to operate a motor vehicle was impaired, I would have found that the Crown had proved beyond a reasonable doubt that he had the care and control of the motor vehicle. [ 48 ] While in the vehicle and while it was running, Mr. Balis removed his coat, operated the window, and turned on the windshield wipers without any memory of doing so. Whatever his intention was when he got into the vehicle, he engaged in using the controls of the vehicle without being aware he was doing so.

This evidence does not accord with the stated intention of Mr. Balis not to operate the vehicle. [ 49 ] Objectively, in these circumstances, this use of the vehicle involved a realistic risk of danger to persons or property, which s. 253 of the Code is aimed at preventing. [ 50 ] I find Mr. Balis not guilty on Count 1, and I dismiss Count 2. (REASONS CONCLUDED)