R. v. Monkman, 2013 MBPC 29

R. v. Monkman Citation: 2013 MBPC 29 THE PROVINCIAL COURT OF MANITOBA BEREN’S RIVER BETWEEN Her Majesty the Queen ) ) Daniel T. Angus, for the Crown ) - and – ) ) Reino Monkman ) ) William (Bill) F. Armstrong, for the Accused ) ) Judgment delivered: ) June 14, 2013 MOAR, P.J. Introduction [ 1 ] The accused, Reino Martin Monkman, stands charged that on February 27, 2010, he was in care and control of an automobile while his ability to do so was impaired by alcohol and therefore in contravention of s. 253(1) (

a) of the Criminal Code of Canada . [ 2 ] The trial of this matter proceeded in Beren’s River Provincial Court and in consideration of the time of day and need to fly, the court reserved on decision after hearing closing arguments from counsel. [ 3 ] This then is the decision of the court. Background [ 4 ] The Crown called the investigating police officer as the sole witness in the case.

Constable Tommy Abraham Andrews [ 5 ] On February 27, 2010, Constable Tommy Abraham Andrews (“Andrews”) testified that he had been a member of the Royal Canadian Mounted Police (“RCMP”) for about twenty-one years and at that time was stationed with the East Selkirk Inland Detachment. That detachment is responsible for the policing of the Beren’s River First Nation. [ 6 ] At 07:27 hours on that date, a dispatch was received by Constable Andrews from the RCMP COMS advising that there was a vehicle stuck in the ditch at the south end of the reserve.

Constable Andrews patrolled to that location and upon arriving at 07:45 hours, located a 1991 Ford Ranger vehicle in the ditch. [ 7 ] He testified that due to the snow cover he was able to see the tracks of the vehicle from the roadway going into the ditch leading to the point where the vehicle was sitting. He estimated the distance from the shoulder of the roadway to the rear tires of the vehicle to be about thirty feet.

The visible tracks did not make any further disturbances in the snow which indicated to the officer that the vehicle had travelled straight into the ditch and had come to a stop at the bottom of the hill. As the officer approached the vehicle he further noted that there were no tracks in the snow at or near the vehicle. As he continued to approach the vehicle, he noted the engine was running and could see that there was a male in the driver’s seat who he had seen on prior occasions in the community. He was able to identify that male as being Reino Monkman and pointed him out in the courtroom.

[ 8 ] Once at the vehicle, Constable Andrews opened the driver’s door and observed that Mr. Monkman was asleep. He initially attempted to wake him by using his knuckles and conducting a sternum rub but that was unsuccessful in rousing him. He then began to move the accused’s head a bit and shook him for about two minutes before the accused finally opened his eyes and looked at the officer. [ 9 ] At this point the accused immediately reached towards the ignition area of the vehicle. Constable Andrews had turned off the truck and removed the keys prior to trying to wake Mr. Monkman.

The officer noted him to have bloodshot eyes, a sleepy facial appearance and detected an odour of alcohol on the breath of Mr. Monkman. [ 10 ] Mr. Monkman was asked to exit the truck but did not acknowledge this request. He was then told by Constable Andrews that he was being placed under arrest for impaired driving at which point he responded by exiting the vehicle. The officer based the arrest of the accused on his twenty-one years of policing experience along with the fact he had previously dealt with the accused when he had been sober.

The particular observations that the officer based the arrest upon were: • The vehicle was in the ditch; • Tire tracks indicated that the vehicle went into the ditch on its own; • There were no footprints noted around the vehicle, including the passenger side, which indicated to the officer that no one else was present in the vehicle nor had anyone else come to the scene; • The vehicle was running; • The accused was the lone occupant of the vehicle; • There were two cans of Budweiser beer located in the console; • Accused had blood shot eyes; • The officer detected the odour of beer on his breath. [ 11 ] Constable Andrews advised the court that he and his partner had to assist the accused through the deep snow as Mr.

Monkman was unsteady on his feet. That unsteadiness, exhibited by the accused, continued once he was brought onto solid ground from the deep snow. [ 12 ] Once placed into the cruiser car, the accused was formally placed under arrest and provided with his Charter rights by Constable Andrew’s partner. He was then transported back to the detachment arriving at about 08:00 hours. [ 13 ] Prior to leaving the scene, a search of the 1991 Ford Ranger revealed two open cans of Budweiser beer that were located in the console.

The vehicle itself was found to have about ¾ of a tank of gas. [ 14 ] The accused was detained at the detachment and was to be held until he was found to be sober enough to be released on his own. During the entirety of his time at the detachment, the accused was essentially observed to be asleep. [ 15 ] Later that afternoon, at 16:32 hours, the accused was observed to be awake in cells at which time he was again advised of the reason for his arrest.

Constable Andrews felt that he may not have recalled the reason he was being detained and wanted to make sure the accused understood that he had been detained in custody due to his level of intoxication. [ 16 ] At that time the accused was again provided with all of his Charter rights to which he indicated that he understood. He was also advised of a warrant in existence out of Winnipeg and that warrant was executed on him at this time.

He was then released from police custody at around 16:48 hours. [ 17 ] In cross-examination the officer agreed that he was not able to definitively state how long the vehicle had been in the ditch. In addition he confirmed that the 1991 Ranger was never towed nor was it placed in the police compound. [ 18 ] The officer was asked about his note taking and acknowledged the importance of making notes in order to refresh his memory, given that this incident occurred some two and a half years prior.

He confirmed that he did not have a notation in his notebook concerning the odour of liquor being detected on the breath of the accused but testified that he did recall that detail from his own memory of the matter. [ 19 ] Constable Andrews agreed that he has had prior occasions to investigate motor vehicle accidents in his capacity as a RCMP officer. He further agreed that people can get hurt in accidents and that may include hitting their head on the steering wheel. In this regard the officer indicated to the court that he did not observe anything to suggest that an accident was the cause of Mr.

Monkman’s condition. In fact, Constable Andrews testified that he saw nothing wrong with the accused’s vehicle. When questioned further, the officer conceded that he did not check the brakes of the vehicle. As for the tires, although he offered that they looked good, he did agree that they were partially concealed by the snow in the ditch. [ 20 ] As for the cans of beer found in the vehicle, the officer confirmed that they were each found to be about half full and he suspected that the accused had drunk from those cans.

Constable Andrews did concede that he was unable to say how long those cans had been in the truck. [ 21 ] The officer was questioned extensively and accepted that many of the observations he made can also be found in a person who is tired. He agreed with the suggestion that the presence of red eyes may be from a person not getting enough sleep as well the unsteadiness noted could also be from a lack of sleep.

[ 22 ] At the conclusion of the Crown case, the accused elected to testify in these proceedings. Reino Monkman [ 23 ] The accused testified that on the date in question he was employed building log houses near the band office. After completing his regular eight-hour work shift, the accused indicated that he then worked a subsequent work shift, this time as a security officer. [ 24 ] His work day started at 08:30 hours on the date in question and ultimately finished at about 23:00 hours.

During this period of time the accused testified that he did not consume any liquor. [ 25 ] Prior to leaving the worksite that evening the accused noted that his vehicle had a low tire but he decided to drive on it anyway as he was in a hurry to get home. The urgency was due to the fact that if he did not arrive home before midnight he would be locked out for the evening by his sister. [ 26 ] It was that low tire that the accused believes later created difficulties when he tried to make it past what he termed “the crossing”.

His initial try to make it up the crossing was not successful however he was able to make it up on his second attempt. He then continued his drive home and at some point described his truck as doing what he called an “L” turn and hit the ditch. Mr. Monkman suggested to the court that the cause of his losing control of the vehicle was the previously noted low tire. [ 27 ] Once in the ditch he remained in the truck waiting for someone to come down the road. While waiting he became thirsty and opened a can of beer he had in the truck and took a drink.

Soon after he fell asleep and when he later awoke he opened the second can of beer and had a drink from that can of beer. Both of these half-full cans were subsequently located and seized by police. [ 28 ] The accused denied that he had consumed any alcohol during the course of his two work shifts and stated that the two cans located by police in the vehicle were the only liquor that he had in the vehicle that evening.

He did admit to having consumed alcohol in the past and indicated that one beer would have no effect on him. [ 29 ] Once at the police detachment, the accused stated that although he was pretty tired, he did comply with all police requests. He testified that he did not know that he was under arrest until he was being led to the cell area. [ 30 ] Upon his release the next day, the accused hitch-hiked back to the location where his truck went into the ditch. Once there, an individual he described as the garbage man came by and helped to pull the vehicle from the ditch.

Once the truck was out of the ditch, the accused observed that he did have a flat tire as he had suspected. [ 31 ] The accused maintained that he was not intoxicated at the time his truck went into the ditch nor when he came into contact with the police. [ 32 ] In cross-examination, the accused confirmed that he had some recollections of his interaction with police but indicated that he was tired. When questioned further on his earlier comment in-chief of not knowing that he was under arrest prior to being placed in cells, the accused denied making that comment.

He then went on to suggest that if he did say that, he spoke too fast. He further elaborated that he may not have heard the question and finds it hard when people speak too fast. [ 33 ] He then clarified that what he meant was he did not know what the police were doing with him when being led to cells and asked the officer what they were doing. [ 34 ] The Crown continued with this line of questioning and suggested that the accused seemed somewhat confused and had the portion of his direct testimony dealing with this question that was posed by his counsel, as well as his reply, played back for him in court.

After listening to the play-back, the accused again stated he knew what was going on but did not know what they were going to do with him. [ 35 ] When asked about his arrest at the scene, the accused stated that he did not recall being arrested, charged or cautioned at the roadside. What he does remember is that upon waking in the vehicle he did reach for the keys to shut off the vehicle because he was tired. His first thoughts were to grab the keys and get out of the vehicle. However, the police did not give him a chance as they already had his arm and said they also had his keys.

They then said they were going to help him out of the vehicle and essentially the officers were forcing him out of the vehicle at this time. [ 36 ] When asked why he was reaching for the keys, the accused told the court that he thought they were there to help him. He wanted to get the keys out of the ignition so that the RCMP could help him.

When it was suggested that the reason he reached for the keys was that perhaps he was concerned about the fact he was drinking and did not want the RCMP to know he had been driving, the accused denied the suggestion. [ 37 ] He reiterated that he had put the keys back into the ignition because it was cold and left the vehicle running when he fell asleep. [ 38 ] The accused was asked about his entering the ditch and testified that he had been driving slow and did not suffer any injuries due to his accident.

He further advised the court that he did not seek any medical attention after his release from custody nor did he suffer any lasting physical symptoms as a result of going into the ditch. [ 39 ] The accused was questioned about his testimony that once in the ditch he remained in the vehicle waiting for someone to come by so that he could seek their assistance. In this regard he advised the court that he did not remain in his vehicle during the entirety of the time he was in the ditch. In fact on one occasion he testified that he did exit his vehicle.

[ 40 ] He recalled opening his driver side door and when doing so observed that the door did not touch the snow in the ditch. He testified that he then exited directly through the doorway into the box of the truck without the disturbing the snow in the vicinity of the truck.

The accused then suggested that the officer was not correct when he earlier testified that there were no tracks because there were tracks in the bed of the truck. [ 41 ] From the box the accused testified that he was then able to jump directly onto the roadway as the truck was parallel to the roadway and not thirty feet into the ditch as the officer testified.

Once on the roadway, the accused said that he walked to “Lester’s” driveway and then came back, jumped back into the bed of the truck and re-entered the cab without touching the snow around the vehicle. [ 42 ] Once back into the vehicle, the accused again sat in the driver’s seat and placed the keys into the ignition. While sitting there and waiting for help, he became thirsty and opened a can of beer and had a drink from that can before eventually falling asleep. [ 43 ] At 05:00 hours the accused indicated that he awoke and was again thirsty.

He at this time opened the second can of beer and had a drink from that can. When asked why he would open a second beer when the first beer was still half-full, the accused said that beer in the first can was now cold and slushy and he cannot drink slush when thirsty. As a result, when he did wake at 05:00 hours he started the vehicle and warmed the second can before opening it and taking a drink. [ 44 ] Crown counsel continued his cross-examination and asked the accused where he worked to which the accused could offer little or no information.

That being said, he was able to list the general nature of his job and did provide the name of his supervisor. [ 45 ] Upon further questioning concerning his job as a security official, the accused acknowledged that he was alone in his vehicle for periods of time and it is possible that a person in his type of job could drink if they wanted to. The accused seemed somewhat taken aback by that suggestion and rhetorically asked who drinks on the job as it is common sense. [ 46 ] The accused confirmed his earlier testimony that he went directly from the job site to the scene where he ended up in the ditch.

It was then suggested to him that if correct, he would have already had the two beers in his vehicle while at the job site. He denied this suggestion and explained that while on his way home he met up with a couple of friends who gave him a beer and asked him to come and party. After being given that initial beer he suggested that they give him a second beer and when that was done he advised these people that he needed to get going home and continued on his way. [ 47 ] When asked further about who gave him the beers the accused initially indicated that he believed they came from a cousin.

When pressed for the name of that cousin he said that he did not remember and could not provide any specificity where the cousin lived other than that it was on his way home. At this point in the cross-examination, the accused suggested that Crown counsel was again twisting the information. He went on to testify that he was at work and later went to a friend’s. At the end, the accused then told the court that he honestly did not remember where he got the two beers from that evening. [ 48 ] He was asked about his interaction with the police at the vehicle.

The accused indicated that the when the RCMP found him they did not give him a chance to walk when they took him out of the truck. When it was suggested that he was intoxicated and could not walk on own, the accused denied that assertion. [ 49 ] As for the suggestion that he was passed out behind the wheel, the accused said he was tired. He denied a further suggestion that he ended up in the ditch because he was impaired and indicated that he wished he did not take the two beers.

It was his position that he does not play around with his license as it is important to him. [ 50 ] The Crown again asked him where the two beers came from to which the accused stated that he does not now know as it has been a while, some two years since this happened. He went on to say that he barely remembers last week and did not take notes at the time of this incident. He agreed that his recollection was not good but then quickly stated that he remembers everything.

Defence Argument [ 51 ] Counsel for the accused briefly reviewed the facts of the case. [ 52 ] Essentially, the police responded to a call of a vehicle in the ditch which was later found to be the Ford Ranger that was owned by the accused. Upon arriving the police found the accused asleep and counsel for the accused suggested that the accused was tired having just worked a double shift.

Counsel suggests that is a reasonable assertion and the officer agreed that the accused being tired was reasonable. [ 53 ] The evidence substantiated by the police is that there were two half full cans of beer found in the vehicle and the accused confirmed that he had drank from those two cans after he was already in the ditch. [ 54 ] As for going into the ditch, the accused indicated that it was as a result of a partially flat tire. Counsel suggested that there was nothing contrary to that assertion as the officer on scene never examined the tires at the time of the arrest.

The vehicle was never towed from the scene nor did the officer ever go back to check the tire to see if it was flat. [ 55 ] The accused did run the engine for the heater while in the ditch and there was no evidence the vehicle could be moved. At most, it is suggested by counsel, the accused consumed two beers based on the evidence. The opinion of the officer on impairment was based on the accused having blood shot eyes and being unsteady when on his feet; although the accused said he was pulled out of the vehicle. In this regard a lack of sleep could explain those observations.

[56] As for the odour of alcohol, that was something not noted in the notebook of the officer and came from his memory of theincident. Counsel asks how it is that the officer would now recall this detail. [57] Counsel did acknowledge that the accused did get confused at times but was unshaken during cross-examination. His assertionthat he did not remember a whole lot was the accused being honest and perhaps a little flippant. [58] Even if the court were to accept the evidence of the officer, the evidence of the accused is capable of being true.

The most thatcan be proven is that the accused drank one beer in total and that occurred after the vehicle was in the ditch. Crown Argument [59] The Crown suggested that the officer was an experienced police officer who had previous observed and dealt with this accusedwhen he was sober. The officer detailed his observations of the accused when he came upon him at the roadside and concluded that theaccused was intoxicated.

While at the scene, the accused was provided with his notice of arrest, something he did not recall. [60] The Crown further suggests that the credibility of the accused is certainly at issue in relation to where the vehicle came to stopin the ditch as well as on the issue of foot prints. The officer testified that as he was approaching the vehicle he noted no foot printsaround the vehicle.

The accused testified that there were footprints in the back of the vehicle and explained how it was that he got out ofthe cab of the vehicle and into the back. [61] As for the alcohol, Crown counsel suggests that the accused was vague in his responses and could not really remember. [62] The Crown suggests that it is only necessary for the Crown to establish a degree of impairment and the direct observations ofthe officer are sufficient to ground a conviction. Standard of Proof [63] It must be remembered that this is a criminal case and as such Mr.

Monkman is presumed in Canadian law to be innocent untilproven guilty. It is the Crown that has the onus of proof and must prove each and every element of the offence beyond a reasonabledoubt. [64] Reasonable doubt is not absolute certainty (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320). It has been describedas being “much closer to absolute certainty than to a balance of probabilities” (R. v.

Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144). [65] In a case where an accused testifies, a court must initially assess that evidence and in doing so is guided by the three-stage testset out by the Supreme Court of Canada in the case of R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742 @ para. 28: “1. First, if you believe the evidence of the accused, obviously you must acquit. 2. Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit. 3.

Third, even if you are not left in doubt by the evidence of the accused you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused” [66] If the evidence of the accused is not believed, nor does it leave the court with a reasonable doubt, that does not automaticallylead to the conclusion that guilt is proven. The court, in this third step, still must look to all of the evidence to determine if guilt has beenproven to requisite standard.

The Law [67] In the case at bar, the accused stands charged with being in care and control of a motor vehicle while his ability to do so wasimpaired. At the time of his arrest by the Royal Canadian Mounted Police (R.C.M.P.), there is no contradiction in the evidence that theaccused was found in the seat normally occupied by the driver of that vehicle. [68] Section 258(1)(

a) of the Criminal Code of Canada reads as follows:

Proceedings under

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

section 253 orsubsection 255(4) or in any proceedings under any of subsections 255(2) to (3.2): “ (

a) Where it is proved that the accused occupied the seat of position ordinarily occupied by a person who operates a motor vehicle…the accused shall be deemed to have had the care or control of the vehicle…unless the accused establishes that the accused did notoccupy that seat or position for the purpose of setting the vehicle…in motion.” [69] Section 258(1)(

a) thus creates a rebuttable presumption that where it is proven the accused occupied the seat ordinarilyoccupied by the person who operates the motor vehicle, the accused shall be deemed to be in care or control unless he/she can rebut thatpresumption on a balance of probabilities standard. [70] Mr. Justice Dickson in the case of R. v. Whyte, (SCC), [1988] S.C.J.

No. 63 at paragraph 47 said the followingin respect to the purpose for the presumption: “Parliament wished to discourage intoxicated people from even placing themselves in a position where they could set a vehicle inmotion, while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicle other thanto set it in motion.” [71] Essentially the goal is eliminating the potential danger associated with intoxicated people assuming care or control of a motorvehicle. [72] In the case of R. v Burbella 2002 MBCA 106 , [2002] M.J.

No. 355, the Manitoba Court of Appeal reconciled anumber of prior Supreme Court of Canada decisions, along with various appellate decisions from other Canadian jurisdictions, and dealtwith the question as to whether danger was an essential element of care and control. [73] Then Chief Justice Scott for the court came to the following conclusion at paragraph 22: “In my opinion, the Supreme Court in its decisions has been consistent that danger is an essential element of care or control.

Only in thecase where the presumption applies and care or control is conclusively deemed will the absence of danger not afford a defence.” [74] Essentially, if the presumption applies, the Crown does not have to prove any element of danger associated with the actions ofthe accused. [75] In the case of R. v. Meek, [2010] S.J. No. 567(P.C), the Saskatchewan Provincial Court considered a factual background wherepolice came upon a vehicle, still running, that was completely off the road and stuck in snow in the ditch with Mr. Meek in the driverseat. The court considered many cases including that of R. v.

Burbella, supra, and came to the following conclusion at paragraph 18: “If the presumption is not rebutted, the fact that the vehicle was immoveable is of no consequence; Mr.

Meek was still in care orcontrol…In my view, it is clear in law that where the presumption operates, the fact that the vehicle is immoveable is of no consequence.The accused still has care or control, and an absence of danger from the inability to set the vehicle in motion is irrelevant.” [76] At paragraph 19 the court spoke of the standard required to rebut the presumption as follows: “The presumption cannot be rebutted by an absence of evidence about the accused’s purpose for occupying the driver’s seat…it isincumbent upon the accused to rebut that presumption, and he must do so on a balance of probabilities.” [77] As indicated at the outset, this accused was found in the driver seat of a motor vehicle.

That motor vehicle was located in asnow filled ditch and was running. It appears that the vehicle may have been immoveable on its own, however, on these facts it is clearthe presumption in s. 258(1)(

a) does apply and it is the accused that has the onus of rebutting that presumption on a balance ofprobabilities standard. Analysis (

a) Has the testimony of Reino Monkman rebutted the presumption of care or control?

[ 78 ] When examining the testimony of Reino Monkman this court is aware of the direction set out by the Supreme Court of Canada in the 1991 case of R . v. W.(D. ). The court must initially examine the testimony of Mr. Monkman in order to determine if there is any evidence that can be accepted which may rebut the presumption of care or control. [ 79 ] I had the opportunity to watch and listen to the accused as he answered questions posed to him by both counsel. During the course of his examination-in-chief, the accused was quick to respond to the questions posed by his own counsel.

His evidence in-chief was fairly brief and straight forward in that he worked on the date in question and after completing his regular shift worked a second shift as a security officer. When that shift concluded, the accused testified that he had to get home quickly as there seemed to be an understanding that if he failed to arrive prior to midnight the door would be locked on him. Essentially he would then be locked out for the evening. [ 80 ] It is admitted by the accused that he occupied the driver seat of the 1991 Ford Ranger that was located by the police in the snow filled ditch on February 27, 2010.

The accused told the court that prior to leaving his worksite to go home that evening he noted that a tire on his vehicle was low. Although this seemed to be concerning to him, the accused nevertheless began his trek home and after passing what is termed “the crossing”, the mishap occurred that led to him entering the ditch. It is the opinion of the accused that it was the tire related issue that caused him to enter the ditch. [ 81 ] Once in the ditch the accused testified during examination-in-chief that he remained in his vehicle waiting for someone to come by so that he could get their assistance.

It was during this period of waiting that the accused asserts he consumed the portions of the two beers located in his cab. He denied that he had consumed any other liquor earlier that evening. [ 82 ] The cross-examination of the accused was very pointed and throughout that process the accused seemed somewhat distrustful of the Crown and the way questions were being posed. It was during this process that I found many of the answers given by the accused to be somewhat convoluted and very difficult to follow.

My concern with the quality of the testimony of the accused grew as the cross- examination continued. [ 83 ] There were several assertions made by the accused during the course of his testimony which directly contradicted the evidence of Constable Andrews. Those contradictions were never put to the officer and the failure to do so can be seen as an affront to trial fairness and certainly afoul of the rule in the case of Browne and Dunn .

Having said that, I acknowledge that the failure to comply with this “rule” does not go to the admissibility of the testimony but rather is often addressed when the court assesses the weight to be given to that testimony. [ 84 ] The officer testified that when he arrived on scene that with the snow cover present, he was able to see the tire tracks of the vehicle from the roadway to the point where the vehicle was then resting.

Essentially the officer indicated that the tire tracks showed the vehicle travelled straight into the ditch and estimated the distance from the shoulder of the roadway to the rear tires of the vehicle to be about thirty feet. He testified that there were no other disturbances in the snow and as he approached the vehicle on foot he testified that he did not observe any other tracks in the snow at or near the vehicle. [ 85 ] During the cross-examination of the officer, these observations were not challenged nor where they contradicted by any other version of events.

In fact they were not contradicted until the accused was being cross-examined by Crown counsel. [ 86 ] During the direct testimony of the accused, he told the court that once he was in the ditch he remained within his vehicle waiting for someone to come down the road.

That statement was repeated by Crown counsel during the course of cross-examination at which point the accused suddenly indicated that he did in fact leave his vehicle on one occasion. [ 87 ] He testified that at one point in time he opened the door of his truck and when doing so noted that his act of opening the door did not disturb the snow around his truck.

Now standing in the open doorway, he then somehow swung his body into the back of his truck, again without disturbing the snow around his truck. [ 88 ] The accused went on to testify that his truck, while in the ditch, was still parallel to the roadway and close enough that he was able to jump from the back of the truck directly onto the roadway. From there he then went down the roadway to the driveway of “Lester’s” before returning back to his own vehicle. [ 89 ] Once back, the accused testified that he essentially got back into his vehicle the same way he had got out.

He jumped from the roadway into the back of the truck and then swung his body back into the area of the driver seat, again without disturbing the snow in either instance. [ 90 ] The accused asserted that the officer was therefore wrong in his testimony when he related to the court that there were no visible tracks around the vehicle.

The accused suggested that there would have been tracks in the bed of the truck that the officer should have seen. [ 91 ] This portion of the accused’s testimony directly contradicted the evidence of the officer and certainly could, if believed, cast doubt on the reliability of the observations made by the officer.

However, at no time was this version of events ever put to the officer nor was he cross-examined on his testimony relating to the position of the vehicle in the ditch; how far into the ditch it had gone; or whether there were visible show prints in the snow on the roadway near the vehicle or in the bed of the truck. [ 92 ] Casting further doubt on the reliability and veracity of the accused’s testimony is the fact that this version of events only came before the court during the course of cross-examination of the accused.

Given the potential impact of this type of evidence on the issue of care or control, it would seem reasonable to have expected that it would have been introduced during the cross-examination of the officer and failing that, at a minimum during his examination-in-chief. [ 93 ] Further evidentiary concerns arose during the course of cross-examination of the accused in that the replies of the accused became somewhat convoluted and difficult to follow.

What was clear from the accused himself is that he believed the Crown was either trying to twist his testimony or was trying to trick him into saying something that he did not want to or mean to say.

[ 94 ] An example of the testimony being both convoluted and difficult to follow occurred when the accused was cross-examined on the origin of alcohol in his vehicle. Initially Crown counsel confirmed with the accused that immediately after his last work shift, he left the worksite and began to drive directly home before ending up in the ditch. With that it was then suggested to the accused that if this is accurate, he therefore would have then had the beers in his possession prior to leaving the worksite, an assertion he denied.

It was at this point that the accused began to try to explain how the beer came into his possession and in the course of doing so created a great deal of confusion. [ 95 ] The accused initially said that he met up with a couple of friends who gave him a beer and asked him to come to a party. Upon being given the first beer he then asked for a second beer and when given that, he told these friends that he had to get home and left the area with the beer.

When he was questioned further as to the identity of the friends, the accused changed his testimony and said that he believed he received the beers from a cousin of his.

He was pressed for the name of that cousin and advised the court that he could not recall who nor could advise the court where this cousin lived other than to say it was on his way home. [ 96 ] During this portion of the cross-examination, the accused suggested that the Crown was twisting his testimony and then started to say that after work he went to a friend’s before quickly saying that he now honestly did not remember how or where he got the beers. [ 97 ] The Crown shifted his focus to another area but returned to the issue of where the beer came from towards the end of the cross- examination.

This time the accused quickly indicated he did not know where the beer came from citing that it has been some two years since this incident occurred. He went on to say that he barely remembers last week and did not make notes at the time of this incident. [ 98 ] The difficulty with the accused’s testimony continued in a further instance when a portion of his direct testimony was put to him. During his examination-in- chief, he told the court that he did not know he had been placed under arrest until he was being led to the cell area.

When that statement was put to the accused by Crown counsel in cross-examination he initially denied making it. [ 99 ] The accused then mused that he is not good when people speak fast and suggested that the Crown has to ask the questions clearly.

He then went on to say that what he meant is that he did not know what they were doing with him and that was the question he asked of the police. [ 100 ] What is confusing about this line of questioning is that the response that was initially put to the accused came from his own direct testimony based on a question asked by his counsel, who I do not believe would have been trying to trick him. [ 101 ] A further example of the accused’s testimony being convoluted and not making any sense occurred when the accused tried to provide an explanation as to why he was reaching for his keys when he was first roused by the officer.

At one point he said that he wanted to get the keys out of the ignition so that the police could help him. How that would assist the police in this case was not expanded upon further by the accused and quite frankly makes no sense. [ 102 ] As I indicated at the outset, I had the chance to watch the accused during the course of his examination-in-chief and cross- examination.

What became clear to me is that the accused actually has little to no recollection of this matter. [ 103 ] The failure to challenge the officer on the location of the vehicle in the ditch in this case is a serious concern in light of his explanation of leaving his vehicle on the one occasion before police arrived.

Even with that, how it is that he would distinctly recall such a minute point of not disturbing the snow around his door when exiting the truck defies logic, particularly when he had no recollection of being arrested at the scene and afforded his legal rights. [ 104 ] The idea of an individual portraying himself as being so grossly tired that he falls asleep at the roadside and then sleeps for multiple hours while in custody, yet he is able to make concerning jumps to and from the roadway defies any sense of being reasonable. [ 105 ] He testified to going to a driveway of a residence, yet does not indicate for what purpose or what he did there, is truly odd.

To put the capper on this portion of the evidence, none of it came out in direct testimony which is amazing in itself. [ 106 ] In terms of the beer found in his truck, his explanation as to where he got the beer from kept changing as the Crown sought more information. Eventually the accused finally admitted to having no recollection as to how those beers came into his possession.

It was apparent throughout that he was trying to make up a story on this point but got caught within his own weaving testimony. [ 107 ] What is most telling about the difficult nature of the evidence being offered by the accused came at the end of his cross- examination where he initially agreed with the assertion that his recollection was not good, but in the next breath stated he remembers everything. It is clear that he does not remember everything that occurred that evening and I think it is a fair assertion by him that may be as a result of having not made any notes.

That being said, it is also clear that he tried to make up evidence and got caught at times in the cross-examination by Crown counsel. [ 108 ] When I consider the totally of the testimony of the accused I find that it is entirely unreliable and I do not accept it nor is there any part of the evidence that leaves me with a reasonable doubt. With this finding, I can also conclude that there is no evidence before the court to rebut the presumption of care or control that arises from the accused being found in the driver seat of the vehicle. (

b) Has the Crown Proven Impaired Operation of a Motor Vehicle? [ 109 ] Having come to the conclusion that the evidence of the accused cannot be accepted does not automatically lead to the finding that the accused is guilty as charged. The court must still assess the remainder of the evidence to determine if the Crown has met its onus of proving, on the requisite standard, that the accused’s ability to operate a motor vehicle was impaired.

[ 110 ] The only other evidence before the court is that of the investigating police officer, Constable Tommy Andrews. Although the officer indicated to having some independent recollection of this matter, he also had a set of notes he made at the time of this incident available to refresh his memory, as required. [ 111 ] During the course of his testimony the officer outlined the observations he made in some detail.

It was clear to the court that he was conducting an investigation given his noted observations that the ground was snow covered, the tire tracks were clear to follow from the roadway and that there were no other tracks at or near the truck. These observations clearly show awareness by the officer of the need to confirm how many people may have been involved in the matter. [ 112 ] The remainder of his testimony came in much the same format and was essentially dispassionate in tone. The officer gave the impression of wanting to advise the court of his observations and the basis for his conclusions.

His testimony was not fraught with the use of adjectives that may at times hint of embellishment. [ 113 ] Although he was clear in his view that the accused’s ability to operate the motor vehicle was impaired, the officer accepted and conceded that some of the observations may well be present as a result of causes besides that of impairment. [ 114 ] Of interest in this regard is that counsel for the accused suggested that people could hit their heads in an accident. What I take from that suggestion is that the symptoms noted could be as a result of an automobile accident.

In that regard the officer agreed that may be possible but indicated that he saw no overt signs of an accident occurring. That issue was put to rest when the accused confirmed in cross-examination that he did not suffer any injuries as a result of entering the ditch. [ 115 ] A further suggestion made, and again accepted as possible, was that the presence of red eyes and unsteadiness could both be from a lack of sleep. [ 116 ] Many of the officers observations articulated to the court were unchallenged by counsel for the accused.

One point of contention was the admission by the officer that although he testified to detecting the odour of alcohol on the breath of the accused, he did not make a note of this in his notebook. The officer admitted to this but maintained that he had an independent recollection of this from his dealing with the accused on the date in question. [ 117 ] In this case I do not take any negative inference from what appears to me to be an oversight.

I come to that conclusion for the reason that at no time was it ever suggested by counsel for the accused that his client had not consumed any liquor on the night in question. In fact, the accused admitted to such during the course of his testimony. [ 118 ] As a result, in this particular case, the officer neglecting to make note of the odour is inconsequential and is essentially a red herring in the assessment of his credibility.

In my view I found the officer to be a credible witness and accept the entirety of his evidence. [ 119 ] That being said, it was the conclusion offered by the officer as to impairment that is questioned by counsel for the accused. As I noted, defence counsel put forward other potential causes for the observations made by the officer that were acknowledged as being possible.

However, as the evidence of the accused was not accepted, there is nothing before the court to support those suggestions on behalf of the accused. [ 120 ] With respect to the evidence of impairment put forward, I note the following observations made by the officer: a. The vehicle was some thirty feet into the ditch which could have occurred either due to the driver driving too fast or the driver not having the awareness he had driven off the road, or perhaps both. b. There were no prints noted in the area of the vehicle. c. The accused was found asleep in the driver seat of the vehicle. d.

The vehicle was running when police arrived on scene. e. The officer indicated that he initially tried using sternum rubs to rouse the accused and then eventually went to shaking him for a couple of minutes in order to rouse him. f. The accused was noted to have bloodshot eyes and there was an odour of liquor on his breath. g. There were two open cans of beer located in the console that were each partially consumed. h. The accused was noted to be unsteady on his feet, both when walking through the snow and when on the roadway, and required the assistance of the officers. i.

The accused had no recollection of being provided with his Charter rights on scene. j. The accused passed out again once placed in cells due to his level of intoxication. [ 121 ] When I consider the totality of the circumstances before me, I have no difficulty in finding that the accused was located in the driver seat of the motor vehicle. He is therefore subject to the presumption noted in s. 258(1) (a), and in the absence of any evidence to rebut that presumption is deemed to be in care or control. It should also be noted, that with the accused deemed to be in care or control, it

is of no concern to this court whether the vehicle is inoperable or immoveable with that finding having been made. [122] In terms of other considerations for this court, I look to the fact that the vehicle was some thirty feet into the ditch. In this regard,it is also worth noting the uncontradicted evidence of the officer as it relates to there being no other tracks in or around the vehicle.

Thisevidence would support the conclusion that no one else left the vehicle after it ended up in the ditch nor has anyone else approached thatvehicle during that same time period. [123] At the time the officer attended to the car, he found the accused essentially asleep or passed out and it took a great deal of effort torouse the accused. There was open liquor located in the car, the accused had the odor of liquor on his breath, he had blood shot eyes andwas noted to be unsteady on his feet to the degree he required the assistance of the arresting officers.

Once back at the detachment theaccused was placed in cells due to his level of intoxication and essentially passed out again for a number of hours. [124] Upon considering the case of R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), I have nodifficulty in concluding that, upon the totality of the evidence, the Crown has proven that Mr. Reino Monkman’s ability to operate themotor vehicle was impaired by alcohol and has done so beyond a reasonable doubt. [125] As a result a conviction will be entered on this count before the court. “ORIGINAL SIGNED BY:” MOAR, P.J.