Her Majesty the Queen - v. -, 2015 SKPC 16

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 016 Date: January 14, 2015 Information: 24537759 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kenneth Peter Silzer Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Dave Kreklewich For the Accused JUDGMENT D. J. KOVATCH , J Background [ 1 ] The accused, Kenneth Peter Silzer, is charged that on March 21, 2014, he had care and control of a motor vehicle while impaired by alcohol, and that on the same date, he had care and control of a motor vehicle while his blood alcohol level exceeded .08 percent.

The Evidence [ 2 ] Constable Michael Young testified that he has been with the RCMP for seven years. On March 21, 2014 he was with Constable Lepage in an unmarked vehicle on Highway #2 between Assiniboia and Moose Jaw. They were headed northbound, toward Moose Jaw. Approximately 44 kilometres north of Assiniboia, they came over a crest, and saw a vehicle approximately one-quarter of a mile ahead of them. The vehicle was part way off the road, and part way on the road. At that point, the highway has two driving lanes, a northbound lane and a southbound lane. The shoulders of the highway are very narrow.

The ditch was deep. The driver of the vehicle, who had also been going northbound, had pulled as far to the right as was possible. He was straddling the line on the right side of the road. The right tires were at the edge of the ditch and the left tires were still in the northbound driving lane. The officer testified that in order to go around this vehicle, he would have had to venture into the southbound driving lane. [ 3 ] The officer immediately noticed that this truck had its four way flashers on.

He stopped the police vehicle to investigate, and noted that the time of the stop was 8:44 p.m., according to his wrist watch. They did the usual computer queries and approached the vehicle. They noted that the vehicle was running and the temperature outside was -12 degrees Celsius. [ 4 ] One male was in the vehicle, the accused. He was asleep behind the wheel, and slumped over the steering wheel. He had a cigarette in his mouth, but it was backwards. That is, the filter was not in his mouth, but at the lit end. The accused was clearly sleeping. They spoke to him and got no answer.

They then did a sternum rub and roused him. They asked him to step out of the vehicle. The accused smelled strongly of alcohol and had difficulty walking back to the police vehicle. They escorted him. [ 5 ] Back in the police vehicle, the officer determined he had reasonable suspicion that the accused had alcohol on his body. He did the ASD demand. The ASD test resulted in a fail. He then advised the accused he was under arrest and advised him of his Charter rights. He made the breath demand and gave the police warning. The officers determined that the vehicle could not be safely left where it was.

They radioed for a tow truck. It took some time for the tow truck to arrive and to load the vehicle. Immediately upon the vehicle being loaded, the officers then left for Assiniboia Detachment to administer the Intoxilyzer test. Constable Lepage was the qualified technician. He readied the machine, and the first successful sample was taken at 22:44 or 10:44 according to the Intoxilyzer. The Intoxilyzer printout notes that the investigator time for the first sample was 22:42 or 10:42. In other words, the officer testified that his wristwatch was running two minutes behind the time shown on the Intoxilyzer.

This is confirmed by the Intoxilyzer printout. The first sample registered 150 milligrams per 100 millilitres of blood. A second sample was taken at 23:06, according to the Intoxilyzer and gave the same result of 150 milligrams of alcohol per 100 millilitres of blood. The printout also shows that the investigator time was 23:04. Following the sample being taken, Constable Lepage completed the Notice of Intention to Produce and the accused was properly served. The Certificate of Analyses was entered as Exhibit P-1. [ 6 ] Defence counsel cross-examined the officer regarding the times.

He suggested that the officer’s note as to the initial stop at 8:44 was but an estimate. He suggested that it took at least three minutes to waken the accused and get the accused to the police car so that it was at least 20:47 when the ASD demand was made. This was denied by the police officer. He also suggested that the accused was very tired and slept during the trip back to Assiniboia Detachment. This was agreed to by the officer. [ 7 ] Constable Lepage also testified. In most respects his evidence is quite unremarkable. In most respects, it confirms details of Constable Young’s testimony.

But for the exact time of the stop and the first sample being taken, the Defence really did not dispute the facts as stated by the officers. [ 8 ] The accused, Kenneth Silzer, also testified. According to the Information, he was 42 years of age at the time of this incident. He testified that he lives in Creelman. At the time of the incident, he was living in Stoughton. He was working as a farm labourer. Twelve days prior to this incident, he had separated from his spouse. She was continuing to reside in the house and he was sleeping in a camper parked in the driveway or yard.

He testified that it was very cold and he had gotten very little sleep for some number of days prior to March 21, 2014. [ 9 ] On the 21 st , he worked from 7:00 a.m. to 1:00 p.m. He got his cheque, went to Kipling, picked up his snow machine and went back to his home. Around 5:00 p.m., his spouse came out to the garage and started an argument. His children also became involved in the argument. He grabbed some clothes, took his beer and Caesers from the camper and began driving toward Swift Current. He was intent on staying with a friend at Swift Current.

As he neared Assiniboia he received a telephone call on his cell phone

from his friend Michelle. This is the individual he was going to see in Swift Current. She advised that she had been called into work so there was now no point in going to Swift Current. He decided he would go to Moose Jaw instead. He began drinking as he drove, and had a couple of drinks. He said he was close to a breakdown and wanted to sleep so he pulled to the side, and put the vehicle in park. He then had at least six more drinks, and went to sleep behind the wheel of the truck. He agreed that the keys were in the ignition, the engine was running and the four way flashers on, while he slept.

He testified that he intended on sleeping the night there, and then would proceed to Moose Jaw or Regina in the morning however, the police woke him and took him to Assiniboia for the Intoxilyzer. The Defence Argument [ 10 ] The Defence raises two arguments. Firstly, that section 258(1) (

c) of the Criminal Code establishes a presumption that the accused’s blood alcohol reading at the time of the test and at the time of driving or care and control of the vehicle are the same. However, in order for the Crown to rely upon this presumption, the first test must be taken within two hours of the offence being committed. Mr. Kreklewich argues that there is a reasonable doubt as to whether the first test was taken within two hours. As a result, this presumption cannot be relied upon and the Crown would require expert evidence to determine the accused’s blood alcohol level at the time of driving.

No such evidence was adduced. There is no evidence as to the accused’s blood alcohol level at the time of driving and he must be acquitted. [ 11 ] Secondly, Mr. Kreklewich argues that the accused was not in care or control of the vehicle and for that reason must be acquitted. Analysis 1. Can the Crown rely upon the presumption? [ 12 ] I agree with Mr. Kreklewich that the Crown must establish that the first test was taken within two hours of the offence being committed. If there is reasonable doubt about this, then the Crown cannot rely upon the presumption.

However, I am satisfied that the first test was taken within two hours so that the Crown can rely upon the presumption. The officer was very clear as to the times. There is no evidence that he was wrong or incorrect with respect to the times. Mr. Kreklewich asks that I speculate that the officer may be wrong and suggests that there should be a doubt. I do not have that doubt. [ 13 ] Secondly, in making this argument, Mr. Kreklewich places considerable emphasis on the time it would take to awaken the accused and escort him back to the police vehicle.

He argues that this time to awaken would suggest that the accused was in care and control of the vehicle more than two hours prior to the first test. I do not agree. The accused was sleeping behind the wheel of his vehicle, when located by the police. He was apparently in care and control at the time. He did not cease to be in care and control during the time the officers are attempting to awaken him. As a result, in my view, even if it took two to three minutes to awaken the accused, as argued, the two hour clock did not begin to run during this time.

As a result, I conclude that the first test was made within two hours. Under s. 258(1)(

c) of the Criminal Code , I conclude that the accused’s blood alcohol level at the time the police officers arrested him was 150 milligrams of alcohol per 100 millilitres of blood, as indicated in the Certificate of Analyses. 2. Was the accused in care and control of the motor vehicle? [ 14 ] I have previously written judgments that referred to the three Saskatchewan Court of Appeal decisions on care and control. Those are: R v Brahniuk, 2002 SKCA 104 ; R v Buckingham , 2007 SKCA 32 ; and R v Shuparski , 2003 SKCA 22 .

More recently, the Supreme Court of Canada issued its judgment in R v Boudreault , 2012 SCC 56 . In my view, the following principles can be distilled from those cases: 1. Pursuant to s. 258(1) of the Criminal Code , where it is proved that the accused occupied the seat or position ordinarily occupied by the vehicle operator, there is a rebuttable presumption that the accused was in care and control of the vehicle.

2. The accused may rebut this presumption by providing evidence that he did not occupy the driver’s seat or position for the purpose of setting the vehicle in motion. 3. If the accused provides evidence to rebut this presumption, the Court must then decide if the accused remains in de facto care and control of the vehicle. If not, then the accused has successfully rebutted the presumption and must be acquitted. If however, there was a realistic danger of the use of the fittings or the vehicle itself then the Court will conclude that the accused is in de facto care and control and will convict. 4.

Each of these cases is very dependent upon its own specific facts. [ 15 ] In this case, it is very clear that the accused occupied the driver’s seat and the presumption is brought into play. The accused also testified that he ceased his intention to drive, stopped the vehicle, and thereafter occupied the driver’s seat for the purpose of drinking and sleeping, and he had no further intention to drive. [ 16 ] In my view, the facts in this case are very different and distinguishable from the Boudreault case, where the Supreme Court upheld an acquittal.

The facts here are very similar to the Buckingham case, where our Court of Appeal convicted. In that case, at paras. 21 and 23, the Court stated: [21] Nonetheless, it is my respectful view that the trial judge paid too little attention to the fact that the Respondent had started the engine and, indeed, was exerting pressure on the accelerator to rev it when he was discovered.

This was a significant use of the vehicle’s fittings and equipment by an individual in a highly intoxicated state, and one that necessarily enhanced both the risk that the vehicle could inadvertently be set in motion, and the risk that if he awoke, he might intentionally set the vehicle in motion, given his intoxicated state. However small those risks were, they were not negligible, and the realization of those risks was considerably more likely as a result of the motor being activated than it would otherwise have been.

It is just this creation of risk that s. 253 of the Code is intended to address. . . [23] I do not think it is possible to say absolutely, as Crown counsel urged, that turning on the car engine ipso facto amounts to care and control. In the instant case, however, the vehicle was in a public parking lot and was not disabled in any way. [ 17 ] In the case at bar, the accused was not stepping on the gas and revving the engine, but he was also not in a parking lot. He remained on a public highway, and wasn’t even fully out of the northbound driving lane. He was in a very remote location.

Whenever he awoke, he would have to put the vehicle in motion and drive to his next location. In fact, that was his stated intention. Simply put, in my view, in order for an accused person to cease to be in care and control of the vehicle, that person must do something more than partly pulling his vehicle to the side, putting it in park, and commencing drinking. I would add that if I were to determine that this accused had rebutted the presumption, in every case an accused could be acquitted of care and control by simply testifying that he stopped driving and that he intended to drive no further.

In my view, the effect of this

section would be nullified. [ 18 ] It is my determination that the Crown has established all of the requisite elements of the offence and the accused must be found guilty of having care and control of his vehicle while his blood alcohol content exceeded .08 percent. The Impaired Driving Charge [ 19 ] I have concluded that the accused was in care and control of his vehicle when the police came upon him on Highway #2. I have no doubt that he was impaired by alcohol at that time, and would also find him guilty of the charge of impaired driving. However, I impose a judicial stay of that charge.

Dated at Moose Jaw, Saskatchewan, this 14 th day of January, 2015. _________________________________ D.J. Kovatch, J