R. v. Fraser, 2018 MBPC 8

CITATION: R. v. Fraser , 2018 MBPC 8 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) A. Gingera ) for the Crown ) and ) ) ) KAELEIGH FRASER ) M. Wasyliw ) for the Accused ) ) ) ) Reasons for Decision delivered: ) February 14, 2018 MP THOMPSON, P.J. INTRODUCTION [ 1 ] Kaeleigh Fraser, a 28-year-old woman, is charged with impaired driving. In particular, it is alleged that her ability to operate a motor vehicle was impaired by alcohol, pursuant to s. 253(1) (

a) of the Criminal Code of Canada , on January 26, 2017. [ 2 ] The Crown proceeded by

summary conviction and her trial in Provincial Court took place on January 31 st , 2018. Identification, date, jurisdiction, as well as the fact that Ms. Fraser was driving, was proven by the Crown and were not seriously disputed by the defence. Nor was it disputed that Ms. Fraser had consumed alcohol at a friend’s home, in the hours prior to driving. Her un-contradicted testimony was she had three mixed drinks, poured by herself, with approximately one ounce of alcohol in each drink: two with vodka and one with rum.

ISSUE [ 3 ] The sole issue is whether the Crown has proven beyond a reasonable doubt that her ability to operate a motor vehicle was impaired by alcohol. LEGAL TEST [ 4 ] The legal test of impairment is set out in the case of R. v. Stellato

(1993) Ont. C.A. as follows: In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [ 5 ] As Ms. Fraser testified in her own defence and denied that she was impaired by alcohol, I must apply the three step test set out by the Supreme Court of Canada in the case of R. v. W.(D.) as follows: In order to ensure that the trial does not become a contest of credibility between witnesses, the judge must keep the principle of

reasonable doubt in mind at all time and remind themselves the burden does not shift from the Crown to prove every element of the offence beyond a reasonable doubt. [ 6 ] The W.(D.) test is as follows: Step 1: if you believe the evidence of the accused, obviously you must acquit. Step 2: if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit.

Step 3: even if you are not left in reasonable doubt by the evidence of the accused, you must ask yourself, whether on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 7 ] This is a case that will turn on findings of credibility and context. OVERVIEW [ 8 ] Ms. Fraser came to the attention of a CN police officer who was on duty and driving a police car west on Wilkes Avenue in Winnipeg.

Shortly before midnight, on January 26, 2017, Constable Eagles was driving ahead of a westbound train to ensure that the rail crossings were clear, that no motor vehicles were trying to beat the train to the Fairmont Road crossing, once the gates were down. [ 9 ] As a result of his positioning ahead of the train, on the road parallel to the train, video surveillance from the front locomotive camera captured what occurred as he drove west on Wilkes Avenue. A copy of that video surveillance was marked as Exhibit 1 in the trial. [ 10 ] That video captured CN Police Cst.

Eagles’ police car driving west on Wilkes and showed an oncoming motor vehicle driving on the wrong side of Wilkes Avenue heading easterly, directly into the path of the police vehicle. In order to avoid a head-on collision, the police car had to take evasive action by pulling over onto the right-hand gravel shoulder. The eastbound car, driven by the accused, continued towards the police car, seemingly oblivious to its flashing headlights and flashing red and blue emergency lights that were activated. Cst.

Eagles saw nothing obstructing the eastbound lane and testified there was no traffic or pedestrians in the area, leaving no obvious reason why Ms. Fraser was driving on the wrong side of the road, heading the wrong way in his lane. [ 11 ] Only after the police car made a U-turn and followed the accused’s car, did the accused switch from the incorrect lane and pull into the eastbound lane, ultimately stopping on the shoulder of the road for Cst. Eagles. [ 12 ] Ms. Fraser testified that she had no idea why the police officer pulled her over and she asked him why she was being stopped. [ 13 ] Cst.

Eagles testified he made the following observations when he approached the now-open driver’s window: Ms. Fraser’s eyes were red, there was a smell of liquor and mint coming from the vehicle, and she had dried drool on the right corner of her mouth. [ 14 ] He asked her for her registration and licence. She produced the registration from the glovebox without difficulty, then opened her purse, took out her wallet, flipped through her wallet, bypassing her drivers licence, and produced her MasterCard credit card and passed it to Cst. Eagles. Cst.

Eagles passed it back to her and asked her for her licence, which she was then able to produce. [ 15 ] Cst. Eagles asked her to come out of the vehicle and to accompany him to the rear of the police vehicle. She stepped out of the car and as she walked alongside the car, she ran her arm along the side of it. To be clear, Cst. Eagles testified she was not holding onto the car in an effort to stand up. They stopped at the rear of her car and had a conversation. Cst.

Eagles testified that she was “weaving” back and forth (on further description, it sounded more like she was wobbling back and forth while standing on her feet.) [ 16 ] Now that she was out of the car, he determined that the odor of liquor was actually coming from her. He arrested her, performed a cursory search for safety reasons, put her hands behind her back and cuffed them, at which point she became visibly upset. He placed her in the rear of the police vehicle, and as he sat in the front seat of the police vehicle, taking notes, he noted that she became short of breath and was wheezing.

At her request, he returned to her car to look for a Ventolin puffer in the backseat. Initially he was unable to find it. Eventually, with her assistance he was able to find the puffer in her purse. [ 17 ] When he placed her in the backseat of his police vehicle, she passed out on her side and was not responsive to his voice, so he called for an ambulance. The paramedics and Winnipeg Police Service arrived almost simultaneously. After examination in the ambulance, she was cleared as medically fit.

She was escorted back to the police detachment, given her rights, viewed in by the officer in charge and a female officer conducted a secondary search in privacy. [ 18 ] During his testimony, Cst. Eagle was questioned about her manner of speech. He indicated that she was visibly upset and crying. Her speech was not slurred but some of what she was saying did not make a whole lot of sense. She was talking about work and that this was wrong. When he spoke to her afterward, he noted a different form of speech and that her words were more precise. [ 19 ] Cst.

Eagles is an experienced peace officer, having served as a Peace Officer 18 to 19 years ago at Gilbert Plains. During the two years he was employed there, he was the principal investigator in an estimated 10 to 15 impaired driving cases. [ 20 ] Subsequent to that, in the two years that he worked at the East St.

Paul Police Force, he estimated that he had considerably more experience with impaired drivers (probably 20 to 30 or more). [ 21 ] The last 15 years he has been a CN Constable and estimated that it would be two to three times a year at most that he would stop someone for impaired driving as the principal investigator. W.(D.) ANALYSIS [ 22 ] Ms. Fraser testified, admitting she had three drinks between 7:00 p.m. and 10:00 p.m. She said she drank water in the next hour

before she set out to drive home. Cst. Eagles stopped her at 11:47 p.m. [ 23 ] She testified she was feeling very tired, exhausted after the end of her workweek. She worked 12-hour shifts, working an average of 80 to 90 hours per week as a nurse and doing home care. Although she was wearing new contact lenses for the first time, they did not cause her to be distracted. [ 24 ] After watching the video of her driving on the wrong side of the road into Cst.

Eagles’ path, she testified it was late, she was tired and as soon as she realized she was on the wrong side she pulled back to the other side. [ 25 ] Her testimony was inconsistent in this regard, as she also testified that she had no idea why she was pulled over by the officer and “that’s why I asked him”. [ 26 ] Which was it? Either she knew she was in the wrong lane and she moved back into her lane as soon as she realized it, or she never recognized she was in the wrong lane and that is why she asked Cst. Eagles why he was stopping her. [ 27 ] Cst.

Eagles’ testimony conflicted with hers as to how long it took her to pull over into her own lane. He testified that after he was forced to take the shoulder to avoid a head-on collision with Ms. Fraser’s car, he did a U-turn with his emergency lights still activated and pursued her car going east. All of this is clearly visible in the surveillance video (Exhibit 1). He testified that her car remained in the westbound lane heading east and that he followed her in the westbound lane to get her attention.

He testified it took 15- 20 seconds for her to pull back into her lane, the eastbound lane, and then she pulled onto the shoulder for the police stop. [ 28 ] Both the video evidence and Cst. Eagles’ testimony are consistent that she asked him why he was stopping her, because she had no idea that she had been driving in the wrong lane and had forced a police car with flashing lights off the road to avoid a head-on collision. [ 29 ] I accept Cst. Eagles’ testimony and make a factual finding that Ms.

Fraser did not know she had been driving in the wrong lane, even when stopped by police. [ 30 ] I do not accept her evidence as credible that she pulled back into her own lane as soon as she realized she was on the wrong side of the road. [ 31 ] Applying the first step of the test in W.(D.) , I find the evidence of the accused is inconsistent and not credible. I reject her evidence. [ 32 ] Step two; does her evidence raise a reasonable doubt about whether her ability to operate a motor vehicle was impaired by alcohol? [ 33 ] Her manner of driving is described above.

Her inability to recognize a police car with flashing headlights, then flashing emergency lights driving directly towards her, and the police car having to take evasive action to avoid a collision with her is a strong indicator of impairment despite her contention that she was exhausted. [ 34 ] She also acknowledged that when asked for her driver’s licence, she passed the officer her silver MasterCard in error. She acknowledged on cross-examination, that unlike her driver’s licence, which had her photo and was green, the MasterCard was silver and had no photo.

She testified she was nervous at being stopped by police. She acknowledged in response to Cst. Eagles’ question that she told him she had been drinking. [ 35 ] Cst. Eagles testified he saw dried drool in the corner of her mouth, which is more consistent with impairment by alcohol than impairment by being tired. [ 36 ] On cross-examination, she said in her opinion she was not impaired. On cross-examination, she testified that meant she was not drunk. She agreed that “drunk” she meant “blacking out, throwing up and memory loss”. She testified that she did not meet this definition of drunk.

She agreed she had no legal training on the definition of impairment. [ 37 ] I find that her evidence as to her lack of impairment due to alcohol consumption is not credible.

I do not find I am left with a doubt after consideration of her evidence as to impairment. [ 38 ] With regards to the third step in W.(D.) , on the basis of the evidence which I do accept, am I convinced beyond a reasonable doubt by that evidence of the guilt of the accused? [ 39 ] Counsel for the accused pointed to the combination of the evidence as to her exhaustion, her ability to perform tasks which needed eye-hand coordination, such as retrieving the registration from the glove box, opening her purse and wallet, the lack of slurred speech, no balance issues at the police detachment, amongst other indicators, to raise a reasonable doubt that her ability to operate a motor vehicle was impaired by alcohol. [ 40 ] However, the test in Stellato is: If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [ 41 ] I am satisfied when I look at all of the evidence at trial, that Cst.

Eagles’ opinion that Ms. Fraser’s ability to operate a motor vehicle was impaired by alcohol was sound. I accept that he was forthcoming and not argumentative in giving his evidence. He was fair when detailing what he saw and did. He did not exaggerate his testimony. The accused could not explain why she was driving in the wrong lane, why she did not respond to the flashing headlights and the subsequent emergency lights before running the police cruiser off the road. Cst.

Eagles did not describe gross intoxication, but that is not required. [ 42 ] Some degree of impairment must be proven beyond a reasonable doubt. When I add up the evidence of drooling, driving in the

wrong lane, producing her MasterCard instead of her driver’s license, unsteady balance on her feet when standing at the rear of her car when speaking to the officer, the smell of liquor on her breath and her evidence that she had three alcoholic drinks in the hours leading up to her arrest. I give her opinion as to her lack of impairment no weight. Cst. Eagles’ testimony was credible, Ms.

Fraser’s testimony on key points, was not. [ 43 ] As a result, I am convinced that the Crown has met its burden of proof beyond a reasonable doubt, that the accused’s ability to operate a motor vehicle was impaired by alcohol on the date in question and I find her guilty of that charge. “Original signed by:” MP THOMPSON, P.J.