Her Majesty the Queen - v. -, 2013 SKPC 210

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 210 Date: December 13, 2013 Information: 24438793 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Joshua Roland McNabb-Brass Appearing: Maureen Longworth For the Crown Ronald Piche For the Accused DECISION BANIAK , J [ 1 ] The accused is charged as follows: On or about the 11 th day of August, A.D. 2012 at Prince Albert District in the Province of Saskatchewan did: 1. While his ability to operate a motor vehicle was impaired by alcohol or a drug, did have the care or control of a motor vehicle contrary to section 253(1) (

a) and section 255(1) of the Criminal Code ;

2. Having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, did have the care or control of a motor vehicle, contrary to section 253(1) (

b) and section 255(1) of the Criminal Code . [ 2 ] A Charter voir dire was entered into. The Crown called three witnesses. Defence did not call any evidence. It was agreed that all admissible evidence from the voir dire would be applied to the trial proper. FACTS: [ 3 ] The Crown’s first witness, Larisa Ballantyne, testified that she came upon the accused’s vehicle between 3:30 a.m. and 4:00 a.m. on August 11, 2012. She was travelling past Christopher Lake towards Emma Lake.

In her words, “as soon as I came over the hill there was a vehicle parked in the middle of the road...”. [ 4 ] She tried to wake the driver, but was unsuccessful. Believing that the position of the vehicle posed a safety hazzard to other users of the road she called the police. She testified that she made the call about 5 minutes after arriving at the scene. She waited in her vehicle for about 20 minutes before the police arrived. During that time she did not observe anything unusual happening.

Shortly after the police arrived she left. [ 5 ] Two officers, in two separate vehicles arrived at the scene at the same time (4:35 a.m.). [ 6 ] Constable Steven Hurst, an R.C.M.P. officer for some 7.5 years testified that he received a call from dispatch at 3:58 a.m. about a possible impaired driver. In his words “upon arrival I observed a black SUV parked halfway on the approach and the back half was on the road at about a 45 degree angle.” [ 7 ] Constable Tiffany Woodman started taking pictures of the vehicle and the occupants in the vehicle.

The flash from the camera did not arouse the occupants. [ 8 ] According to Constable Hurst’s testimony, the accused had his foot on the brake; the brake lights were on; the vehicle was running, a male was behind the wheel, and a female in the passenger seat. [ 9 ] Photos taken by Constable Woodman show the accused’s head slumping up towards the steering wheel, while the passenger was laying on her back in a reclining position in the passenger seat. [ 10 ] Constable Hurst opened the driver’s door and tried to wake the accused.

He testified that he had to elevate his voice (almost yelling at him) and shook the accused. Once the accused opened his eyes he reached for the gear shift. Constable Hurst testified that he prevented the accused from putting the vehicle in gear and turned the motor off. [ 11 ] When exiting the vehicle, the accused used both hands to support himself and was very unsteady. Constable Hurst further testified that he “could smell a heavy odour of alcohol coming from his breath”. When he asked the accused if he had too much to drink his reply was “obviously I have”. [ 12 ] The accused was arrested at 4:38 a.m.

After the arrest, the accused was given his counsel right and police warning (read off the card). Prior to giving the accused his rights, Constable Hurst went to assist Constable Woodman who was having some difficulty with the female passenger, whom he described as being quite hysterical.

[ 13 ] After giving the accused his counsel right at 4:52 a.m., he asked him if he understood. Receiving a reply of “yes sir”, he proceeded to ask the accused if he wanted to call a lawyer, to which he replies “no”. [ 14 ] Constable Hurst read the demand for the breath test at 4:54 a.m. The accused advised him he understood the demand. He testified that he had formed the belief that the accused was impaired by alcohol prior to arresting him. [ 15 ] Constable Hurst and the accused departed the location at 5:06 a.m. and arrived at the Prince Albert R.C.M.P.

Detachment at 5:39 a.m. [ 16 ] After arriving at the detachment, Constable Hurst introduced the accused to Corporal Durocher, the breathalyzer technician.

While the equipment was being readied, Constable Hurst had a brief conversation with the accused during which the accused told him that he was returning from a party, that he had consumed alcohol, and that he would probably blow over the legal limit. [ 17 ] The samples were taken at 5:49 a.m. and 6:10 a.m., with both registering over the legal limit. [ 18 ] The accused was served with a true copy of the Certificate of Analyses and released into the custody of his mother. [ 19 ] The next part of Constable Hurst’s testimony related to the equipment at the detachment.

He testified that the detachment was equipped with 6 cameras which took pictures at the rate of two frames per second. The cameras are back in the cells, the main booking area, the secure bay and the breathalyzer room. The cameras did not have audio capability.

According to Constable Hurst, the video surveillance data is normally saved for 90 days after which it is either erased or over written. [ 20 ] For this case, once the accused pled not guilty to the charges, Constable Hurst’s supervisor instructed him to obtain the cell block video, which was requested by defence counsel on September 25, 2012. [ 21 ] Constable Hurst made a request for the video on October 26, 2012. His request was made to Constable Roxanne McLeod who was the R.C.M.P. officer tasked with this duty. [ 22 ] This video was not obtained and Constable Hurst was not aware why.

At some later point, Constable Hurst contacted Constable McLeod about the video and was advised that she did not have it. [ 23 ] During cross-examination, Constable Hurst acknowledged that the cameras would have shown the accused walking into the detachment, his behaviour in the breathalyzer room, and his interaction with the breathalyzer technician. Similarly he acknowledged that the request for the surveillance video was received long before the 90 day period, during which all the surveillance tapes were preserved, had expired.

He had no explanation as to what may have happened to the surveillance video. [ 24 ] During the course of his examination-in-chief it came to light that the Prince Albert Detachment was moved to a new location around Thanksgiving day of 2012. That, however, was not given as a reason for the video’s disappearance. No other explanation was offered. [ 25 ] The Crown’s final witness was Constable Tiffany Woodman, who, at the time of the incident, had been a member of the R.C.M.P. for a little over 2 years. According to her testimony, she arrived at the scene at the same time as Constable Hurst.

[ 26 ] She observed the vehicle to be parked on the highway, headlights on, brake lights on and the motor running. She was right beside Constable Hurst as he tried to wake the accused up and when he prevented the accused from putting the vehicle in gear. [ 27 ] She also testified that she heard Constable Hurst ask the accused if he had anything to drink and the accused’s response was “just a bit”. When asked how she would rate the accused’s intoxication level on a scale of 0 to 10 she answered that he would rate a 10 out of 10 while passed out in the vehicle and an 8 out of 10 while outside the vehicle.

She described him as unsteady on his feet with a strong smell of alcohol. [ 28 ] After that her involvement with the accused virtually ceased. She attended to the female passenger who, she testified, was extremely intoxicated. She noticed a gatorade bottle in the console of the vehicle which she believed to be beverage alcohol. [ 29 ] In addition to looking after the passenger, she moved the vehicle completely off the road and called Lakeland Towing to arrange for removal of the vehicle.

She did not have any other involvement with the accused at the detachment. [ 30 ] During cross-examination, Constable Woodman readily admitted that she concluded that the accused was impaired as soon as she arrived at the scene.

This was largely based on where and how the vehicle was parked. [ 31 ] Following the voir dire , defence advanced a number of points in support of their argument for exclusion of evidence or a stay of proceedings. [ 32 ] First, it was argued that the loss or destruction of the police video surveillance breached the accused ’ s s. 7 and s. 8 Charter right thereby triggering the remedy of stay of proceedings and the exclusion of any evidence that would have been captured on the video. [ 33 ] Second, defence argues that the accused ’ s rights to counsel (s. 10(

b) of the Charter ) were breached. [ 34 ] Third, defence submits that Constable Hurst lacked reasonable grounds to make the breath demand pursuant to s. 254(3) of the Criminal Code . [ 35 ] Finally, defence takes the position that any observations of signs or indices of impairment made by Constable Hurst prior to the accused being advised of his rights to counsel should not be admissible to prove impairment. [ 36 ] The Crown mentions that the police in this instance had reasonable grounds to make the demand for a breath sample; that the accused was advised of his rights to counsel and unequivocally declined to speak to a lawyer; that the surveillance video from the detachment was of questionable relevance and was not lost or destroyed through unacceptable negligence; and that any observations of the accused made by the constable immediately before rights to counsel were given is relevant and admissible evidence to be considered in deciding the accused’s impairment. [ 37 ] I will frame the issues in the following order.

ISSUES: 1. Did Constable Hurst have reasonable grounds to demand the accused provide a sample of his breath? 2. Was the accused’s s. 10(

b) right to counsel breached?

3. Whether provision of counsel rights prior to the demand for a breath sample breached the accused’s right to counsel? 4. Did the R.C.M.P.’s destruction or loss of the surveillance video breach the accused’s s. 7 Charter rights? 5. Did the Crown prove beyond a reasonable doubt that the accused was in care or control of a motor vehicle while impaired? 6. Did the Crown prove beyond a reasonable doubt that the accused was over .08?

Did Constable Hurst have reasonable grounds to demand that the accused provide a sample of his breath? [38] Section 254(3) reads as follows: If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, [39] This section, therefore, authorizes a warrantless search, if the police officer had reasonable grounds to believe that the accusedhad within the preceding three hours operated a motor vehicle while his ability to do so was impaired by alcohol or a drug. [40] Our Court of Appeal, in R. v.

Gunn, 2012 SKCA 80, paras. 7 and 8, states the law as follows: ....the officer must subjectively (or honestly) believe the individual has driven while impaired or “over .08” within the preceding threehours and that belief must be rationally sustainable on an objective basis (see R. v. Bernshaw, (SCC), [1995] 1 S.C.R.254 at para. 48) this does not mean that the Crown has to demonstrate a prima facie case for conviction (R. v. Shepard, 2009 SCC 35, [2009] 2 S.C.R. 527 at para. 23), let alone prove its case beyond a reasonable doubt (R. v.

Bush ONCA, 2010 ONCA 554, 259 C.C.C. (3d) 127); rather the standard of “reasonable grounds to believe” is one of lesser probabilities which simply requirethe Court to determine whether the factors articulated by the officer who made the breath demand were reliable and were capable ofsupporting the officer’s belief that the individual has driven while impaired or “over .08” withing the preceding three hours. [8] Where an individual challenges the validity of the breath demand on the basis that the police officer’s belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual’s ability to operate a motor vehicle was impaired (see: R. v.

Storey, (SCC), [1990] 1S.C.R. 241 at para. 250; and R. v. Restau, 2008 SKCA 147 at para. 17). This is a question of law and a trial judge’s answer to it ismeasured on appeal against the yard stick of correctness. [41] In this case I find that Constable Hurst had the subjective or honest belief that the accused had driven while impaired.

Hisbelief was based on the way the vehicle was parked; the fact that it was running with the lights on and the accused’s foot on the brake;the strong smell of beverage alcohol emanating from the accused; his unsteady balance, and the admission of the consumption ofalcohol. [42] As was held in Gunn, it is not necessary to conduct sobriety tests or to use the ASD if the officer is satisfied that he has thereasonable and probable grounds to make the demand under s. 254(3). [43] Further, in order for the arrest to be lawful, the police officer’s subjective belief must be objectively reasonable. In order to

determine whether the belief was objectively reasonable, it is necessary to examine the facts or evidence available to Constable Hurstprior to the arrest of the accused. [44] As was enunciated in Gunn, in order to arrive at this determination it is necessary to examine “the whole of the evidenceadduced”. [45] Taking the totality of the evidence adduced - location of the vehicle; the motor running; strong smell of alcohol; and theadmission of drinking - I find that the officer’s subjective belief was objectively reasonable, and that he had reasonable grounds todemand a breath sample. [46] As was recently stated by the Manitoba Court of Appeal (R. v.

Mitchell, 2013 MBCA 44), the police are not required to ask orobtain from the accused a detailed alcohol consumption history. Was the accused’s s. 10(

b) right to counsel breached? [47] The onus is clearly on the accused to establish, on a balance of probabilities, a Charter breach (R. v. Luomg, 2000 ABCA 301,para. 12). [48] The right to counsel as contemplated in s. 10(

b) of the Charter has both the informational and implementational componentinherent in it. [49] Once a detained person is informed of his right to counsel, and indicates that he understands it, he has to be provided areasonable opportunity to exercise that right (R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, para. 17). [50] The only evidence before me on this point is from the testimony of Constable Hurst, and it was not seriously challenged.

Based on this testimony, I am satisfied that Constable Hurst advised the accused of his right to counsel; that the accused indicated to himthat he understood those rights; and that he did not wish to speak to a lawyer. The informational duty was discharged. And since theaccused did not invoke his rights to counsel, it cannot be argued that the officer failed in the implementational duty. [51] The Supreme Court since 1987 (R. v. Baig, (SCC), [1987] 2 S.C.R. 537) has steadfastly held that once theaccused is informed of his s. 10(

b) right and indicates that he understands it, the onus passes on to him to prove that he asked for the rightbut it was denied to him. [52] This was again reaffirmed by the Supreme Court in R. v. Bartle, (SCC), [1994] 3 S.C.R. 173. I quote LamerC.J. (191-92): This Court has said on numerous previous occasions that s. 10(

b) of the Charter imposes the following duties on state authorities whoarrest or detain a person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence andavailability of Legal Aid and duty counsel; 2002 SKCA 5 page 8; (2) if a detainee has indicated a desire to exercise this right, toprovide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrainfrom eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency ordanger). (See, for example, Manninen, at pp. 1241-42; R. v.

Evans, (SCC), [1991] 1 S.C.R. 869, at p. 890; and Brydges,at pp. 203-4.) The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature ofimplementational duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. Importantly, the right to counsel under s. 10(

b) is not absolute. Unless a detainee invokes the right and is reasonably diligent inexercising it, the correlative duty on the police to provide reasonable opportunity and to refrain from eliciting evidence will either notarise in the first place or will be suspended... [53] Our Court of Appeal (R. v. Leedahl, 2002 SKCA 5) also held that once the informational component is complied with the

officer is under no obligation to go further unless the accused invokes his right to counsel. [54] Defence counsel, during his submissions, invited me to observe the accused and his apparent lack of sophistication and cometo the conclusion that the police officer should have done “something more” than just go through the motions of advising him of hisrights to counsel. With all due respect, I cannot come to this conclusion by simply looking at the accused. His testimony may have shedsome light on the degree of his intellect or sophistication - however, he did not testify. [55] I conclude, therefore, that the accused’s

section 10(

b) Charter rights were not breached.

Whether the provision of counsel rights prior to the demand for a breath sample breached the accused’s right to counsel? [56] As previously stated, the accused was given his counsel rights at 4:52 a.m., and the demand for the breath sample was madeat 4:54 a.m. [57] Defence argues that the accused’s counsel rights were violated because the right to counsel preceded the breath demand. [58] In my view, this argument may have had some substance if there was a fairly lengthy passage of time between the rights tocounsel and the demand; similarly, defence argument may have been enhanced if the accused had been charged with another or moreserious offence after being given his right.

Neither of these scenarios are present in this case. [59] Again, both our Court of Appeal and the Supreme Court have addressed this issue. [60] In R. v. Schmautz (1990), (SCC), 1 S.C.R. 398, the Court dealt with it as follows: In this case, by serving both the police and the Charter warnings on the appellant at the outset of a short interview, the police officersalerted him that he was suspected and was being investigated in relation to a serious offence.

These warnings made him aware that all hewould say could incriminate him and that he had the right to remain silent and to instruct counsel on every aspect of the interview thatfollowed. The situation that arose with the breathalyzer demand was directly connected to the investigation. Indeed, the demandgenerated the type of situation where the appellant might be expected to take advantage of the warning given to him a few minutesearlier.

The demand itself, together with the fact that he was also advised of the criminal consequences of refusal, would normallytrigger the consideration of the appellant of whether or not to instruct counsel. The appellant never mentioned that he wished to contacta lawyer. The situation, then, was not the one where another more serious offence was suddenly being investigated because of changedcircumstances external to the encounter and destructive of the close factual linkage relating to the prior advice to the detention.

In thiscase, the demand arose directly and immediately out of the inquiry; it was part of a single incident at which the appellant was fully madeaware of his rights. [61] I should add, moreover, that even if a breach was established, if would, in my view, be of such a minor nature that it would nottrigger exclusion of evidence following a Grant analysis. Did the R.C.M.P.’s destruction or loss of the surveillance video breach the accused’s s. 7 Charter rights?

[62] As the evidence clearly established, the video surveillance was either lost or destroyed before it could be copied and providedto defence. Constable Hurst testified that he requested a copy of the tape but same was not provided and he had no explanation why. There is no dispute that the defence requested it in a timely fashion and followed up the request on a couple of more occasions. [63] Defence argued that this evidence was relevant and its loss would prejudice the accused from making full answer anddefence. Because the accused’s

section 7 Charter rights were breached defence argued that two remedies are available: a stay ofproceedings or exclusion of all evidence that would have been captured on the video. [64] We do not have conclusive evidence as to what happened to the video. There was some speculation that it may have been lostduring the move by the R.C.M.P. to their new detachment. This, however, is not an explanation that can withstand scrutiny.

Havingsaid that, it is still necessary to determine the relevance of this lost evidence and whether its loss is so prejudicial to the accused’s right tomake full answer and defence that a stay would be the only appropriate remedy. [65] Recently, our Court of Appeal dealt with the issue of disclosure, lost surveillance video and lost notebooks in R. v. Anderson,2013 SKCA 92. In Anderson the Court held that merely establishing a breach of the Crown’s obligation to disclose does not establish aCharter breach. The Court quoted Watt J.A. in R. v.

Spackman, 2012 ONCA 905, para. 111: A breach of the Crown’s disclosure obligations, without more, does not constitute a breach of s. 7 of the Charter. To demonstrateconstitutional infringement, and thus entitlement to a just and appropriate remedy, an accused must show actual prejudice to his or herright to make full answer and defence from the infringement: R. v.

O’Connor, (SCC), [1995] 4 S.C.R. 411, at para. 74;Bjelland at para. 21. [66] Similarly, relevance can only be determined by the facts, and must be assessed in the context of the entire case. [67] The Court in Anderson, when assessing the issue of non-disclosure, quoted Justice Richards in R. v. Ross, 2013 SKCA 45,para. 17: The failure to provide disclosure, assuming there was such a failure, does not automatically entitle Mr. Ross to the relief he is seeking. In R. v.

Dixon, (SCC), [1998] 1 S.C.R. 244, the Supreme Court indicated that disclosure is only the first considerationin an argument about a denial of the right to make full answer and defence. In order to establish a denial of that right, an accused personmust also show either (

a) that there is a reasonable possibility the non-disclosure affected the outcome of the trial, or (

b) that the non-disclosure affected the overall fairness of the trial process. [68] Currie J. dealt with this issue in R. v. Boutin, 2012 SKQB 291. He held that whether Mr. Boutin’s s. 7 right was breached“...depends on whether the information on the videotape may have been relevant to an issue at trial - whether there is a reasonablepossibility that the information on the videotape could be useful to Mr.

Boutin in making full answer and defence to the charge” (para.11). [69] In Boutin, it was held that the passage of some two hours from the time that the accused was found in his vehicle to the timethat the videotaping commenced made the undisclosed information virtually useless: [12] As to the charge of driving over .08 there is no reason to think that any information on the videotape could in anyway be useful toMr. Boutin in making his answer and defence. The videotape recorded events involving Mr.

Boutin beginning two hours after Mr.Boutin had been found in his vehicle, after the police investigation and collection of evidence relating to the charge of driving over .08,the circumstances relating to this charge, are the same as those in Bamford, 2010 SKPC 110. There is no reasonable possibility that theundisclosed information could be useful to Mr. Boutin in making full answer and defence.

[ 70 ] With respect to the impaired driving charge, Currie J. found as follows: [17] The next question is the relevance of that information to the charge of impaired driving. That is, one must ask how the absence of visible signs of Mr. Boutin being impaired at 6:30 p.m. could have evidentiary value in deciding whether he had been impaired at 4:30 p.m. It could not, for two reasons. First, the absence of signs of impairment on the videotape would not necessarily mean that Mr. Boutin was not impaired at the time of the videotape.

The absence would mean only that no such signs were apparent in the videotape, whether Mr. Boutin was impaired at the time or not. The fact that the videotape was recorded in stop-time rather than continuously adds to the force of this reason. [18] Second, the two-hour period between 4:30 p.m. and 6:30 p.m. presents a gap in time that severs the relevance of the videotape information from what is in issue at the trial. If the Crown proves the impaired driving charge, it will do so by proving that Mr. Boutin was impaired at 4:30 p.m.

He may have been impaired at 4:30 p.m. and have shown no signs of impairment at 6:30 p.m. - either because he was no longer impaired by then or because the impairment was no longer visible. The absence of such signs at 6:30 p.m., though, would not be evidence that Mr. Boutin had not been impaired at 4:30 p.m. He could have shown no signs of impairment at 6:30 p.m. whether he had been impaired at 4:30 p.m. or not. The lack of evidence of impairment at 6:30 p.m. would have no evidentiary value on the issue of Mr. Boutin’s impairment at 4:30 p.m. [ 71 ] The time frame in this case is not much different than Boutin .

The constables received a dispatch at 3:58 a.m., they arrived at the scene at 4:35 a.m. and at the Prince Albert Detachment at 5:39 a.m., that is a total of 1 hour and 41 minutes. It must also be noted that Larisa Ballantyne arrived at the scene some time before. She spent time trying to wake the accused (by her estimate about 5 minutes), and, being unsuccessful, she went to her car and called the R.C.M.P. She would have spent a bit of time giving the dispatcher the information. The dispatcher then would have relayed the information to the constables. All in all, from the time Ms.

Ballantyne first came upon the accused to the time he arrived at the detachment there would have been a gap of some two hours. [ 72 ] I find that the reasoning provided in Boutin is applicable to this case, and, accordingly, I find that the non-disclosure of the R.C.M.P. surveillance videotape did not constitute a breach of the accused’s s. 7 Charter right. Therefore, neither of the remedies sought by defence is appropriate. Did the Crown prove beyond a reasonable doubt that the accused was in care and control of a motor vehicle while impaired? [ 73 ] Ms.

Ballantyne testified that the vehicle was parked on the road in such a way that she could not get by. [ 74 ] Constable Hurst testified that he observed the vehicle to be parked at a 45 degree angle with about half of it on the road. The headlights were on, the motor was running and the accused’s foot was on the brake activating the brake lights. He observed the accused sleeping in the driver’s seat. He had difficulty waking him up - he literally had to yell and shake him. [ 75 ] When the accused finally awoke, he attempted to put the vehicle in gear.

Constable Hurst pulled his hand away from the gear shift and turned off the ignition. [ 76 ] The constable noticed a strong smell of alcohol in the vehicle and directly from the accused once he exited the vehicle. He testified that the accused was very unsteady on his feet and used the side of the vehicle for support. The accused admitted to drinking.

According to Constable Hurst, the accused was quite confused. [ 77 ] Section 258(1) of the Criminal Code reads as follows: In any proceeding under subsection 255(1) in respect of an offence committed under s. 253 or subsection 254(5) or in any proceeding of subsections 255(2) to (3.2),

(

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 and 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... [78] There are a multitude of cases dealing with care and control over the last 30 years; the Supreme Court has previouslyaddressed the issue: Ford v. R, (SCC), [1982] 1 S.C.R. 231; R. v. Toews, (SCC), [1985] 2 S.C.R. 119; R.v.

Boudreault, 2012 SCC 56 , 2012 S.C.C. 56, as has our Court of Appeal: R. v. Shaparski, 2003 SKCA 22; R. v. Buckingham,2007 SKCA 32. [79] Ford stands for the proposition that s. 258(1) of the Code creates a rebuttal presumption, and, in order to escape liability, theaccused is required to establish that he did not enter the vehicle for the purpose of setting it in motion. [80] In this case, the accused was occupying the driver’s seat - the presumption applies. The accused has not adduced anyevidence to rebut the presumption in s. 258(1)(a).

Accordingly, I conclude that the accused was in care and control of the vehicle. [81] Further, in this case, the vehicle was driveable and it posed a realistic risk of danger to persons or property. It could haveeasily been put in motion. [82] Accordingly, whether the issue of care and control is examined on the basis of s. 258 of the Code (i.e., the presumption), or onthe basis that it posed a realistic risk of danger to persons or property, the result is the same - the accused was in care or control of themotor vehicle.

Did the Crown prove beyond a reasonable doubt that the accused was over .08? [83] Constable Hurst arrived at the Prince Albert R.C.M.P. Detachment at 5:39 a.m., and the accused was introduced to thebreathalyzer technician, Corporal Durocher. [84] The first sample of breath was taken at 5:49 a.m., and resulted in a reading of 140 milligrams of alcohol in 100 millilitres ofblood.

The second reading was taken at 6:10 a.m., and a reading of 130 milligrams of alcohol in 100 millilitres of blood was obtained. [85] The accused was then served with a true copy of the Certificate of Analyses and released into the custody of his mother. [86] In light of my findings above that the Certificate of Analyses is admissible evidence, I find the accused guilty of Count #2 ofthe Information. [87] Having found the accused guilty of both counts set out in the Information, and, keeping with the usual practice and being fullymindful of the ruling in R. v.

Kienapple, (SCC), [1975] 1 S.C.R. 729 (S.C.C.), a conditional stay shall be entered withrespect to Count #1, to be made complete upon the expiration of the appeal period. M. Baniak, J