Her Majesty the Queen - v. -, 2014 SKPC 147

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 147 Date: July 23, 2014 Information: 43792683 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Wayne Eldon Hanson Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Merv Nidesh, Q.C. For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused, Wayne Eldon Hanson, is charged that on November 24, 2012, he had the care and control of a motor vehicle, while he was impaired by alcohol.

He is also charged that on the same date he refused to comply with a demand made by a peace officer to provide samples of his breath for analysis, contrary to s. 254(5) of the Criminal Code . [ 2 ] The issues are whether the accused has rebutted the presumption that he was in care and control of the vehicle, and whether

he had a reasonable excuse for refusing to provide breath samples. THE EVIDENCE [ 3 ] Cst. Ryan Lawrence testified that he has been a member of the Moose Jaw Police Service for approximately six years. On November 24, 2012, he and Cst. Flanagan were in a police service van overlooking the parking lot at the Chiller’s Bar. It was in the very early morning hours, at approximately the time the bar was closing. At this time they noticed a truck in the parking lot, parked by itself, with its running lights on and exhaust coming from the back of the vehicle.

An individual left the bar, and walked across the parking lot to the truck. They very quickly determined that this individual was likely impaired by alcohol as he stumbled and did not walk in a straight line. He had difficulty walking. Cst. Lawrence testified that the individual approached the truck and appeared to reach for the driver’s door handle, but missed it and stumbled backward. He then however, very slowly and deliberately approached the door, was successful in opening it and got into the vehicle.

The officers immediately activated their emergency lights on the police vehicle, and pulled up behind the truck. [ 4 ] Cst. Lawrence testified that as he approached the vehicle, the brake lights on the truck came on and it appeared the truck was to be driven forward. Cst. Lawrence believed that the truck moved forward approximately six inches. Almost immediately the truck turned off. [ 5 ] He opened the driver’s side door, and the accused was the lone occupant in the vehicle, seated in the driver’s seat. He immediately smelled a strong smell of alcohol and noted several signs that the accused was impaired.

He determined that the accused was obviously impaired by alcohol, and advised he was under arrest. [ 6 ] The accused was escorted to the police vehicle and placed in the back seat. He was read his Charter rights and warning, and then was read the breath demand. At each stage, he was asked if he understood, and he indicated that he did. [ 7 ] He was taken to the Moose Jaw Police Station, where he was given an opportunity to contact counsel. After Mr. Hanson had this opportunity, the breath demand was made to him again. He was asked if he would provide a sample and he said “no”.

He was asked several more times if he would provide a sample. On each of those occasions, Mr. Hanson said: “No. Why should I supply samples?” Or, “No. I haven’t driven. Why should I supply a sample?” After several refusals, he was charged. [ 8 ] In cross-examination, defence counsel suggested to the witness that there was no key in the ignition of the accused’s vehicle. The officer agreed. There was extensive cross-examination regarding the layout of the parking lot. Later, Cst. Lawrence agreed that Mr. Hanson told him that Mr. Hanson was waiting for a taxi, and wasn’t going to drive home. Later, Cst.

Lawrence testified that Cst. Flanagan located a Ford key in the accused’s pocket. However, Cst. Lawrence did not try that key to determine if it would start the vehicle. He agreed that some vehicles have two separate keys for the door and the ignition. [ 9 ] Cst. Flanagan also testified. In most respects, his evidence is unremarkable, and quite similar to Cst. Lawrence’s. He testified that the accused was obviously impaired, and that the accused’s vehicle was running. The vehicle stopped as they approached it. He testified that he found a single key in the accused’s back pocket.

He couldn’t say if this key only opened the door to the truck or would start the vehicle. [ 10 ] Mr. Dennis Wilson testified for the accused. He testified that he has worked for years as a parts man for various automobile dealerships. He is also a long time friend of the accused, having known him for approximately 15 years. [ 11 ] On the evening of November 23, 2012, Mr. Wilson received a telephone call from the accused, inviting Mr. Wilson to meet the accused at the Park Hotel, in the bar. Mr. Wilson got a ride to the Park Hotel and met the accused there.

[ 12 ] Mr. Wilson testified that when he arrived at the Park Hotel, Mr. Hanson was “pretty tight”. It was obvious that Mr. Hanson had quite a bit to drink. Mr. Wilson told Mr. Hanson that he couldn’t drive, and asked Mr. Hanson for his keys. Mr. Hanson produced a key ring with four keys on it. Two of those keys were for the truck. One was a door key and the other was the ignition key. Mr. Wilson said that he removed the ignition key from the ring, and returned the keys to Mr. Hanson. [ 13 ] Mr. Wilson said that he and Mr. Hanson had a couple of drinks at the Park Hotel, and during this time, Mr.

Hanson spoke of going to the Chiller’s Bar to see an Elvis impersonator. Mr. Wilson was in agreement with that, because his wife was working at the Eagle’s Club, which is across the street from the Chiller’s Bar. Mr. Wilson testified that at approximately 10:00 p.m., he drove Mr. Hanson’s truck to the Chiller’s Bar parking lot. Of course, Mr. Hanson was a passenger in the vehicle for that trip. After a short time at the Chiller’s Bar, Mr. Wilson left the Chiller’s Bar and walked across the street to the Eagle’s Club. He testified that he took with him the ignition key for Mr. Hanson’s truck. At the time that Mr.

Wilson left Mr. Hanson, Mr. Hanson was quite intoxicated and not capable of driving a vehicle. [ 14 ] Mr. Wilson also testified that, being an automobile parts man, he is familiar with remote car starters. Mr. Hanson had a remote starter on his vehicle. One uses the remote starter to start the vehicle some minutes before getting into the vehicle, usually to warm it up during the winter. After being started, the truck will run for a few minutes, and then will shut down. An individual can enter the vehicle while the truck is running, having been started by the remote starter.

However, the ignition key must be placed in the ignition and turned on for the vehicle to be moved. If this does not happen, when you put your foot on the brake, the vehicle will shut down. [ 15 ] In cross-examination, Mr. Wilson was asked how he could recollect all of these events, and knew that they occurred just before Mr. Hanson was charged. Mr. Wilson advised that the following day, he picked up Mr. Hanson to take him back to his vehicle. At that time, Mr. Hanson advised that he had been charged, and hadn’t done anything wrong. Mr. Wilson then made notes of the event. [ 16 ] Mr.

Wayne Hanson testified that he is employed as a boiler maker at the Mosaic Potash Mine. He has been married for 28 years. [ 17 ] He testified that after work that day, he went to the Park Hotel and began drinking. During the course of the evening, he called Mr. Wilson. He told Mr. Wilson that he was going to see an Elvis impersonator at Chiller’s, and asked Mr. Wilson to join him. Later, Mr. Wilson did join him. [ 18 ] Mr. Hanson testified that when Mr. Wilson joined him, he told Mr. Hanson that he had too much to drink, and asked for his keys. Mr. Hanson said he gave Mr. Wilson his keys and Mr.

Wilson removed the ignition key. After awhile, Mr. Wilson left Chiller’s and went to the Eagle’s Club. [ 19 ] Mr. Hanson said that he was there until the bar closed. At that time, he asked the lady at the off-sale desk, to call him a cab. The lady advised it would be half to three-quarters of an hour before the cab arrived. Mr. Hanson said he was waiting inside and everyone was cleaning up. It was apparent they wanted to close up quickly. He said he started his truck with the remote starter, waited a few minutes and then went to his truck.

He testified it was his intention to wait in his truck and keep warm until the cab arrived. [ 20 ] He also testified that he did not have the ignition key and the truck would not move without the ignition key. [ 21 ] He testified that he saw the police vehicle pull up behind him. He put his foot on the brake and the vehicle shut down. [ 22 ] Mr. Hanson was extensively cross-examined regarding his times and how much he had to drink. [ 23 ] On several occasions, Mr. Hendrickson asked Mr. Hanson about refusing the breath test, and suggested that Mr. Hanson did refuse the breath test. On several occasions, Mr.

Hanson answered Mr. Hendrickson with the same question he put to the police officers that night. That is, “why should I supply a breath sample? I wasn’t even driving.” After a few attempts at this, Mr. Hendrickson

suggested to Mr. Hanson that he knew the police officers wanted a breath sample and Mr. Hanson agreed with this. Mr. Hendrickson suggested that Mr. Hanson never did provide a breath sample, and Mr. Hanson agreed with that. THE CHARTER NOTICE AND CHARTER ISSUE [ 24 ] At the beginning of the Crown’s case, counsel advised that there was no Charter notice and there were no Charter issues.

After the Crown’s case had closed, and on the adjourned date for defence evidence, counsel presented a Charter notice detailing an argument that the accused was unlawfully and arbitrarily detained in a parking lot, based upon the Saskatchewan Court of Appeal decision in R. v. Lux , 2012 SKCA 129 . On the basis of my decision in R. v. Mellquist , 2014 SKPC 48 , and the fact that the Crown’s case was already closed, I did not accept the Charter argument or allow argument on the Charter issue.

Even if I were to decide the Charter issue, however, I would apply the rationale utilized by His Honour Judge Benison in the case of R. v. Higham , 2014 SKPC 124 , and rule that the police officers had reasonable and probable grounds to believe that the accused was an impaired driver in care and control of the vehicle. As a result, they had the right to stop and detain him under the provisions of the Criminal Code . THE IMPAIRED DRIVING CHARGE [ 25 ] Section 258(1) (

a) of the Criminal Code creates a presumption that an individual occupying the driver’s seat is in care and control of that motor vehicle. As I understand the situation, when, as is the case here, there is evidence that the accused was occupying the driver’s seat, the presumption is engaged and in place. Then, an accused must lead some evidence that he did not occupy that seat or position for the purpose of setting the vehicle in motion, in order to rebut the presumption. If such evidence is led, then the Court must decide if there is a realistic risk that the vehicle will be put in motion.

If there is no realistic risk that the vehicle will be put in motion, then the presumption is successfully rebutted, and the accused must be acquitted. In the cases of R. v. Shuparski , 2003 SKCA 22 and R. v. Boudreault , 2012 SCC 56 , the Court accepted the trial judge’s finding of fact that there was no realistic risk the vehicle would be put in motion, and found the accused not guilty of the charge.

Conversely however, if the Court concludes that there is a realistic risk that the vehicle will be put in motion, then the Court will conclude that the presumption is not rebutted, or the accused is in de facto care and control of the vehicle. The Court will then find the accused guilty of the charge. This was the situation in R. v. Brahniuk , 2002 SKCA 104 and R. v. Buckingham , 2007 SKCA 32 . [ 26 ] In the case at bar, the accused was clearly occupying the driver’s seat, and so the presumption was engaged. However, there was significant evidence that he did not have the ignition key.

He testified that he was simply waiting in the vehicle to keep warm until a taxi arrived. There was significant evidence that the vehicle could not be put in motion, and would shut down as it apparently did when the accused put his foot on the brake, as the police approached the vehicle. On these facts, I am satisfied there was no realistic risk that this vehicle would be put in motion. As a result, Mr. Hanson has rebutted the presumption of care and control, and must be found not guilty of the charge of care and control while impaired. THE REFUSAL CHARGE [ 27 ] Mr.

Nidesh referred to the Saskatchewan Court of Appeal decision in R. v. Lewko , 2002 SKCA 121 , and argued that Mr. Hanson did not intend to refuse or defeat the system, and as a result the Crown had not proved the necessary mens rea and Mr. Hanson must be acquitted. As the argument progressed, I suggested there was old case law to the effect that an individual not being the driver or in care and control of a motor vehicle, did not provide a reasonable excuse for failing to provide a breath sample. Finally, Mr. Nidesh argued that Mr.

Hanson acted very appropriately by calling a cab, and thus he should not be convicted. He argued that to convict Mr. Hanson of the charge would bring the administration of justice into disrepute. I will deal with each of these aspects. [ 28 ] The Lewko case involved an individual who made a number of unsuccessful attempts to provide a breath sample. At paragraphs 9 and 10, the Court of Appeal said this: The elements of the offence that the Crown must prove beyond a reasonable doubt are three.

First, the Crown must prove the existence of a demand having the requirements of one of the three types mentioned in ss. (2) and (3). Second, the Crown must prove a failure or refusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus ). Third, the Crown must prove that the defendant intended to produce that failure (the mens rea ). ... Once the Crown has established the three elements of the offence in question, the defendant is presumed guilty and must be so found

unless the defendant raises a defence. That brings us to what may be looked upon as the second stage in the proceedings, namely, thepresentation by the defendant of his/her justifications or excuses – his/her defences. [29] This second stage involves presentation of a reasonable excuse for not providing the breath sample. [30] In my view the Lewko decision and a discussion of whether the accused “intended to refuse or fail to provide a suitablesample”, are much more relevant and applicable where the accused has made several attempts to blow, but failed to provide a suitablesample.

Where, as here, the accused provides a straightforward and verbal refusal, and doesn’t even make an attempt to blow, the Courtmust almost always find the necessary intent present. This case must be determined not on the basis of whether he had intent to refuse,because clearly he did, but on the basis of whether he had a reasonable excuse for refusing. [31] I have pointed out above that on a number of occasions Mr. Hanson was asked if he would provide breath samples, and hesaid no.

He repeatedly and rhetorically questioned the officers to the effect of “why should I provide a breath sample, I didn’t drive?” When asked by Mr. Hendrickson if he knew the officers wanted a breath sample, he conceded that he did know that and again made hisargument that he did not need to provide a breath sample. In light of these facts, I have no hesitation in concluding that the officers foundMr. Hanson in the care and control of a running motor vehicle. They had reasonable grounds for the demand. They made a lawfuldemand, and Mr. Hanson clearly understood that demand.

He clearly and intentionally refused to comply with that demand, because hefelt he was not legally obligated to do so. As a result, the Crown has proved all of the elements of the case and the charge of refusal ismade out. I must now determine whether he had a reasonable basis to refuse. [32] As mentioned above, I recalled case law to the effect that not being the operator of a vehicle or in care and control of thevehicle, did not provide a reasonable excuse to refuse to supply breath samples.

I was also concerned that this understanding of the lawmay be dated, and thus researched the question. [33] I found that the Supreme Court of Canada dealt with this question in R. v. Taraschuk, (SCC), [1977] 1 S.C.R.385. Chief Justice Laskin, speaking for the Court made the following statements: The question in this appeal is whether a person charged with an offence under s. 235(2) of the Criminal Code is entitled to an acquittalby invoking as a reasonable excuse thereunder the fact that he was acquitted, in respect of the very occurrence, of a charge under s. 234.

Put another way, the issue raised is whether a charge under s. 235(2) may be defeated if on the trial thereof the Court concludes that theaccused was not in fact impaired or did not while impaired have care or control of a motor vehicle, although the charge was the result ofa proper demand by a peace officer, under s. 235(1), for a breath sample. [34] Further: The contention of the appellant is that a reasonable excuse, ex post facto so to speak, arises on a charge under s. 235(2) if the accused didnot in fact have care or control or was not impaired.

This contention invites a self-defeating construction of s. 235 and would wipe outthe difference, clearly made in ss. 234 and 235, between culpability under the one and under the other. Counsel would have it that aperson who cannot be found guilty under s. 234 becomes immune to guilt under s. 235(2), although the requirements for a properdemand for a breath sample have been met. Reasonable excuse, under s. 235(2), refers, in my view, to matters which stand outside of therequirements which must be met (i.e. those under s. 235(1)) before a charge can be supported under s. 235(2). See, for example,Brownridge v.

The Queen, (SCC), [1972] S.C.R. 926. [35] I further ascertained that the Taraschuk decision has fairly recently been followed in significant Saskatchewan decisions. Irefer in particular to the case of R. v. Friesen, 2012 SKPC 59, aff’d 2012 SKQB 488 and R. v. Rezansoff, 2013 SKQB 384. As a result, Iconclude that the principles enunciated in the Taraschuk decision remain valid statements of law today. [36] In the Friesen case, Her Honour Judge Scott determined that the Crown had made out the charge of refusal, and the accusedhad not presented any reasonable excuse for failing to provide a breath sample.

She found him guilty. On appeal, Mr. Justice Schermanquoted extensively from the Taraschuk decision. He concluded:

I am of the opinion that the trial judge was correct in law. The decision of the Supreme Court of Canada in R. v. Taraschuk is on point and was binding on the trial judge. [ 37 ] As a result, I am of the view that the Crown has proved all of the requisite elements to establish the offence of refusal. The defence has not advanced any reasonable excuse for refusing. As mentioned above, Mr. Nidesh did advance the further argument that conviction would bring the administration of justice into disrepute. However, he did not establish any breach of Charter rights or advance any Charter argument.

Clearly, the Court is first required to determine there is a breach of Charter rights, before we look to whether that breach would bring the administration of justice into disrepute. There is no authority or jurisdiction to dismiss a charge simply because counsel argues that conviction would operate unfortunately or unfairly to the accused. [ 38 ] On all of the evidence, I am compelled to find Mr. Hanson guilty of the charge of refusing to provide suitable breath samples.

As mentioned above, I find him not guilty on the impaired charge. [ 39 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan this 23 rd day of July 2014. D. Kovatch, J