Her Majesty the Queen - v. -, 2015 SKPC 93

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 093 Date: June 17, 2015 Information: 24462470 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shelly Lynell Yacyshyn Appearing: Ms. K. Humphries For the Crown Mr. M. Owens For the Accused JUDGMENT B.G. MORGAN , J INTRODUCTION [ 1 ] Ms. Yacyshyn faces three charges, all arising out of the events of June 15, 2012, near Rosetown, Saskatchewan, commonly known as impaired operation in Count #1, driving while over .08 in Count #2, and driving while disqualified in Count #3. In each case the charge is particularized in the Information.

[ 2 ] In a prior decision ( R v Yacyshyn , 2014 SKPC 36 ), I dealt with some Charter issues. In that decision, I dealt with the driving behaviour and the observations that led the officer to make the breath demand. I will recap those reasons briefly in this judgment, and will supplement those reasons with additional evidence, as the issue at this stage of the proceedings is whether or not the Crown has established guilt beyond a reasonable doubt on any of the three counts charged.

In particular, I will focus on the impaired driving charge, as one defence argument is that as there is defence evidence that “could reasonably be true”, Ms. Yacyshyn is entitled to an acquittal on that charge: I deal with that specific argument at paragraphs 27 and 28. Count #1 - Impaired operation of a motor vehicle [ 3 ] I find the facts are as follows. Mr. Patraschuk is a truck driver who had some fifty years experience in June of 2012. He was westbound on Highway #7, passing through Delisle, Saskatchewan, when he came up behind the vehicle being driven by Ms. Yacyshyn.

In his words, it was “driving erratically”. Being concerned that this may be an impaired driver, or an individual in need of medical assistance, he called 911 after following that pickup truck for a short time. [ 4 ] Mr.

Patraschuk expanded on what he meant by “erratic driving” in stating that the vehicle, over the approximately fifty kilometre stretch that he followed it, crossed the centre line into the opposing traffic’s lane “at least half a dozen times” and made the same manouevre towards the ditch to the right of the vehicle before correcting back into its proper lane. [ 5 ] He described the vehicle as “wandering around on the road”, which he equated to “zigzagging to the left and the right and not going in a true direction”. [ 6 ] He also noted that on each of these occasions in which the vehicle went entirely into the oncoming lane, “everybody that met the two tone truck moved to the right”, practically to the shoulder of the road to avoid the vehicle. [ 7 ] Mr.

Patraschuk was staying 200 to 300 feet behind that vehicle because it was “not safe to try to overtake and get by”, not surprising considering that he was driving a semi-trailer transport truck. In fact, when he called 911, the operator asked him to see if he could get a licence number, but he was too concerned by the driving pattern to get close enough to observe that licence, fearing that if there was an accident he would be directly involved in it. [ 8 ] In response to that call, Sgt. Skinner left the Rosetown R.C.M.P.

Detachment, west of Delisle on Highway #7, and headed east to attempt to intercept this vehicle. He noted the westbound described vehicle leading a procession of other vehicles, the first following vehicle being the semi-trailer Mr. Patraschuk was in. He turned his vehicle around, and fell in to line behind these westbound vehicles. He passed the other vehicles, and pulled the Yacyshyn vehicle to the side of the road. Mr. Patraschuk pulled over to give his name and contact information to the investigating officer. When he did that, the officer was in the process of speaking to Ms.

Yacyshyn, who had by now exited her vehicle, and was standing to the rear of her truck. When Mr. Patraschuk was within six to eight feet of Ms. Yacyshyn, he caught a “helluva whiff of some good booze coming off the person”, noting that the smell was so strong that she “coulda had a bath in it, it was that strong”. [ 9 ] In cross-examination, Mr. Patraschuk was very fair in acknowledging that the observation he referred to of Ms.

Yacyshyn hanging on to the box of the pickup truck as she walked back to meet the officer after the stop was what he would call “typical sort of walking”, and he clarified that the alcohol smell that he detected appeared to come from her clothes. He did see that she had a dog in the truck with her, and she appeared to have no problem with getting out of the vehicle when the officer did pull her over. [ 10 ] I found Mr. Patraschuk to be an excellent witness; he has been a long haul truck driver with almost 50 years experience at the time, and as he put it in cross-examination, he has “seen it all”.

He was very polite and fair in both examination-in-chief and cross- examination, had no preconceived notions as to what was causing this erratic driving, but was obviously concerned about it for reasons of public safety and perhaps the health of the driver of that vehicle. I accept without reservation everything he said as being accurate. [ 11 ] Sergeant Skinner saw the Yacyshyn vehicle driving in what he referred to as an “erratic manner”, noting as well that the vehicle was “wandering in the lane”.

[ 12 ] Sergeant Skinner followed that vehicle for perhaps four kilometres and noticed that vehicle drove completely into the approaching lane of traffic on two separate occasions, and then over corrected back into the correct lane, then through that lane to the right shoulder, before eventually stabilizing within the proper driving lane. He noted as well the same speed of 90 km/hr in a 100 km/hr zone that Mr. Patraschuk had spoken of, and after he had passed the Patraschuk vehicle, put his emergency lights on in an attempt to attract Ms. Yacyshyn’s attention, and then turned on his siren as well.

Neither of these actions had any apparent affect on Ms. Yacyshyn, who kept on driving. [ 13 ] Thus, for the second time in his then 35 year career, he pulled alongside the Yacyshyn vehicle, made direct eye contact with her, indicating she should pull to the shoulder, which she did. I am satisfied the actions of Ms. Yacyshyn as she pulled her vehicle over were smooth and without incident; this is what Mr. Patraschuk as well had noted. What is noteworthy of the stop is that it took approximately two to three kilometres of the officer following, according to Mr. Patraschuk, perhaps four kilometres according to Sgt.

Skinner, before she noted the police vehicle and started to pull over, despite the flashing emergency lights, then siren, with the direct eye contact only attracting her attention. [ 14 ] When the officer approached the driver’s side window, which was rolled down, he noted “a strong odour of alcohol from the interior of the vehicle” and when he asked Ms. Yacyshyn for her driver’s licence, she produced to him an inhaler with her name on it, and never did actually provide the driver’s licence. This would be, as it turns out, because she was a disqualified driver at the time.

He noted at the stop that the colour of Ms. Yacyshyn was “high” and that she had what he referred to as a “pinkish face”. He asked her to exit the vehicle, and he as well noted she used her left hand on the box of the truck for, in his view, balance as she walked back to the police vehicle. At that point, he stated, “I could smell alcohol on her breath even in the strong wind”. It was at that point he formed the opinion her ability to operate a motor vehicle was impaired by alcohol, and arrested her for impaired driving.

Specifically his grounds were his observations of her driving, the information he had from Mr. Patraschuk respecting her driving, the odour of alcohol, which he now knew was from her breath, her flushed face, and her slurred speech which he later referred to as “the general whole conversation” of about one minute in which she said whose truck it was, where she had come from, etc. [ 15 ] All of this accords with the observations of Mr. Patraschuk, who by now had pulled his vehicle to a stop, with the exception of the slurred speech.

He did not make a lot of observations of her at the scene, as he was simply waiting for the officer to complete his investigation, so that he could provide his name and address information and get back on the road to his destination. [ 16 ] In cross-examination, Sergeant Skinner could not provide any specific examples of slurred speech; he referred to her “talking with a thick tongue”, commenting that her pronunciation was not sharp. He agreed the flushed face could be her normal skin colour and he agreed he had no notes respecting difficulty with any coordination issues inside the truck.

It was clear to me that his view was that she was using her left hand for balance as she walked along the side of her truck, but he did agree that was somewhat of an assumption on his part. He agreed he never met Ms.

Yacyshyn prior to this day, that it was very windy that day, and he agreed that it was an older vehicle that she was driving. [ 17 ] When pressed on whether or not the overcorrecting he had referred to was out of the ordinary, he would not, in his words, “go so far” as to say it was a “safe correction”; he referred to it as being “more radical” than a regular safe return back into the driving lane. [ 18 ] Sergeant Skinner had referred to there being a small black dog in the front seat of the Yacyshyn vehicle, and that Ms. Yacyshyn was very concerned about her dog.

He had referred to this dog’s behaviour, when asked in-chief, as “nothing really much . . . it wasn’t barking or carrying on . . . it was just sitting there”, referring to the front passenger seat. He later commented in cross- examination that he thought it was “very unusual” for someone in Ms. Yacyshyn’s situation [undergoing breath analysis] to be so concerned about her dog. The dog had been taken from the scene by another officer, and eventually reunited with Ms. Yacyshyn at the detachment. [ 19 ] I accept the evidence of Sergeant Skinner as set out above in its entirety.

He was fair and candid throughout, polite at all times with both counsel, and was an observant witness. [ 20 ] Dealing firstly with the impaired driving charge, the test of course is whether or not I am satisfied beyond a reasonable doubt of any degree of impairment, ranging from slight to great, caused by alcohol. As Ms. Yacyshyn testified on the voir dire , with her evidence being applied to the trial, I will now look at that evidence as well as part of all of the circumstances.

[21] Ms. Yacyshyn had indicated that her face is always “red” or “pinkish”, and that she had some rods and pins in her back, andwas waiting for surgery; this would have been the condition she was in June 2012, which causes her to walk with some difficulty.

Sergeant Skinner had remarked on that manner of walking as well as being somewhat upright and apparently restrained. [22] She had indicated that she had been drinking two or three beer, she thought, “several hours previously” starting at about 4:00or 5:00 that morning when she woke up, and although she has little recall on details, thought she started out on the road at about 11:00a.m. She did not feel her ability to operate a motor vehicle was impaired by alcohol consumption. [23] I have no reason to reject Ms.

Yacyshyn’s evidence, and I do not generally, although I do not accept as accurate her evidenceon alcohol intake. She wasn’t clear if she had two or three beer, agreeing it could have been four beer. I find that she does not reallyhave any recall as to how much she drank that morning before she started to drive, nor does she have a firm recall of times: there wouldbe no reason for her to have any particular recall, as this was an otherwise ordinary day until such time as she was stopped. [24] In argument, Mr.

Owens stressed that there is evidence that could reasonably be true, and on that basis, I should conclude thatMs. Yacyshyn was distracted by the dog. She had indicated to the officer that her dog is like her child, jumping around, and he argues,among other things, that this is a case in which Ms. Yacyshyn had her dog with her, and whereas it is probably not a good idea to have adog in the front seat if it is somewhat excitable, that shows bad judgment, as opposed to driving while impaired.

He compares thesituation to someone who is texting while driving; that person may be distracted, but that does not mean that the person’s ability tooperate a motor vehicle is impaired by alcohol. He argues that a Court should not judge her decision to drive with a dog in the front seaton any standard but hers, and that an error of judgment such as this does not equate with driving while one’s ability to drive is impaired.

He argues that the flushed face is how she appears all the time, that there must have been periods over fifty kilometres in which she diddrive well, and that she pulled over in a proper fashion when signalled by the officer. He goes on to note there were no signs ofimpairment noted at the detachment, and that on all the evidence the impaired driving is not made out. [25] I find that Ms. Yacyshyn has a very close relationship with her dog; I have no reason to doubt that it may well be like her childto her. However, I do not find that the dog is in fact as excitable and prone to jumping around as Ms.

Yacyshyn would have me believe. I note that the dog was fine when pulled over by Sgt. Skinner, and I note as well that the officer referred to the dog being “fine” at thedetachment while Ms. Yacyshyn was waiting for her ride to pick her up. I accept the police officer’s evidence respecting the demeanourof the dog. [26] I have considered the evidence with respect to the alleged excitable dog carefully, as I have carefully considered all of Ms.Yacyshyn’s evidence. I reject any of her evidence touching upon any alleged distraction caused by the dog, sparse as that evidence was,and it does not leave me in any doubt.

Applying the W.D. test, I am satisfied on the evidence I do accept, which is that of the policeofficer and Mr. Patraschuk, beyond any reasonable doubt that the impaired driving charge is made out. This is a case in which, on all theevidence, considered as a whole, there is proof of Ms. Yacyshyn’s ability to operate a motor vehicle having been impaired by theconsumption of alcohol. Even if I were to accept that the dog was causing a distraction, which I do not, that would only mean that Ms.

Yacyshyn was drivingwhile her ability to do so was impaired by alcohol, and distracted by a dog. [27] With respect to the argument that Ms. Yacyshyn’s version of events might reasonably be true, that specific argument has been dealt with in the case of R v L.(D.O.), (SCC), [1993] 4 SCR 419, 25 CR (4th) 285, 85 CCC (3d) 289, starting at para 81. Citing the trial judge’s decision, the Court held: Whether an account given by, or on behalf of, an accused might reasonably be true, is not in my view the honest and proper establishedtest of whether the Crown’s evidence should be rejected.

It is simply one factor in assessing the overall impact of the evidence as awhole. If one were to determine criminal cases simply on an academic test, unrelated to all the other facts, of whether something mightreasonably be true, much of the impact of truly and compelling credible Crown evidence such as that here, would go for naught, andtruth would be subjugated by plausibility. [28] That paragraph goes on to state the proper test as follows:

The only question for the trier of fact at the end of the trial is whether or not, on the whole of the evidence, the Crown has proved itscase beyond a reasonable doubt. If it has, the accused must be convicted. If there is a reasonable doubt, the accused must be acquitted. The Court then cites the test in R v W.(D.), (SCC), [1991] 1 SCR 742, at pages 757-58, for the test to use when assessingcredibility. The case of R v McKenzie (1996), (SK CA), 141 Sask R 221 (CA) adds a fourth step. That test isroutinely used in this jurisdiction, and I apply it here.

I am not left in doubt by the evidence of the accused, and I am, on the basis of theevidence which I do accept as set out above, convinced beyond a reasonable doubt by that evidence of the guilt of the accused on Count#1, the impaired operation charge. Count #2 - the over .08 charge [29] Exhibit P-2, being the Certificate of a Qualified Technician, proves that offence; two tests were taken within the prescribedlimit, the second one was the result of 160 milligrams of alcohol in 100 millilitres of blood; that is the lower of the two readings, and theone that is to be used.

In the earlier decision, I had rejected the argument that the officer lacked the necessary grounds to make the s.245(3) demand. Ms. Yacyshyn is guilty on Count #2. Count #3 - the drive while disqualified charge [30] Exhibit P-1 is a certified copy of an Order of Prohibition with respect to Ms. Yacyshyn, issued out of Manitoba, establishingthat on September 3, 2010, Ms. Yacyshyn was convicted of an offence under s. 253(1)(

b) of the Criminal Code, and was prohibited fromoperating a motor vehicle in Canada for a period of two years from that date. Thus, that prohibition order would have been in effect onthe offence date of June 15, 2012. Ms. Yacyshyn is guilty on Count #3. [31] I enter a conditional stay of proceedings on Count #1, the impaired operation, to become final upon the conclusion of anyappeal periods. ______________________________ B.G. Morgan, J